Bailala v The State [2005] FJSC 6; CAV0002.2005S (21 October 2005)

IN THE SUPREME COURT OF FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0002 of 2005S
(Fiji Court of Appeal No. AAU0003 of 2004S)

BETWEEN:

SEREMAIA BAILALA
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Daniel Fatiaki, President of Supreme Court
The Rt Hon Justice Thomas Gault, Judge of Supreme Court
The Hon Justice Kenneth Handley, Judge of Supreme Court

Hearing: Tuesday, 12 October 2005, Suva

Counsel: Petitioner in Person
Mr R. Gibson and Mr D. Gounder for the Respondent

Date of Judgment: Friday, 21 October 2005, Suva

REASONS FOR JUDGMENT ON PETITION FOR SPECIAL LEAVE TO APPEAL

[1] These are the reasons for the dismissal of the petition for special leave to appeal which the Court announced at the end of the hearing.

[2] The petitioner was convicted on one count of wrongful confinement and three counts of rape after trial in the Magistrate’s Court at Suva.

[3] The material evidence was that of the complainant who said she was accosted by a man with a cane knife while she was walking in the Colo-i-Suva Forest Park. She was forcefully taken to a secluded place where she was confined overnight and raped three times. She emerged in a distressed state in the morning. Medical evidence was given of injuries consistent with assault and of the presence of spermatozoa in a smear taken from her vagina.

[4] The petitioner was interviewed by the police the same day and signed a statement confessing to the allegations. The next day the petitioner was identified by the complainant at a police identity parade.

[5] In the course of the trial the petitioner denied any involvement and claimed that his caution statement to the police was false and had not been voluntary. He gave evidence of being in town over the relevant period and of threats from the police that he would be beaten as he alleged he had been previously. He called three witnesses who gave little support to the claim that the petitioner was threatened with beating. The police officers denied the use of force and maintained the statement was given voluntarily.

[6] The Magistrate found the evidence of the complainant (who was cross-examined on behalf of the petitioner by counsel representing him at that stage) as to identification of the petitioner of “very high quality” and accepted it. He rejected the petitioner’s evidence that he was elsewhere at the material time.

[7] The Magistrate, although recognising he could convict on the uncorroborated evidence of the complainant, found corroboration in certain evidence of the complainant’s condition and demeanour and aspects of her account of what occurred. On that basis he found the charges proved. He went on however to find the petitioner’s caution statement to have been made voluntarily and that this also corroborated the complainant’s evidence. The case was committed to the High Court for sentencing.

[8] In the Court of Appeal it was held that the Magistrate had erred in finding as corroborative of the complainant’s evidence, facts which did not link the petitioner with the offending. The Court was satisfied however, that there was, in light of the confession and the evidence overall, no substantial miscarriage of justice and dismissed the appeal against conviction.

[9] The Court of Appeal went on in its judgment to review the law relating to corroboration in cases of rape and other sexual offences. It ruled that, as in the law generally, it would henceforth be a matter of discretion for a judge to give a warning or caution where there is some particular aspect of the evidence giving rise to a question of reliability.

[10] The petition to this Court for special leave to appeal was directed primarily to the voluntariness of the petitioner’s caution statement. This was added to with grounds asserting breach of his fundamental rights leading to an unfair trial and insufficiency of the evidence against him.

[11] There was tendered to us a medical certificate indicating treatment of the petitioner, over a period from December 1996 to May 1998, for broken bones in his arm and leg. His submission was that those injuries had been inflicted by the police and it was through threats and fear that similar mistreatment would be suffered again, that he made the false statement to the police in 2002.

[12] The petitioner’s evidence with reference to being poked with a stick, pushed and having his false teeth broken might have indicated that he was claiming to have been assaulted at the time he made the statement. Overall however his evidence was reasonably clear and consistent with the stance he has maintained subsequently, that he was not assaulted by the officers to whom he made his statement. His claim is that his experience of some five or six years before gave rise to fear that induced him to make the false (though detailed) statement.

[13] There is no evidence before the Court that the injuries suffered by the petitioner in 1996 were caused by police or were inflicted to force a confession. The evidence of the policemen to whom the statement was made that it was not made under threat or force, was accepted by the Magistrate. There is no basis for this Court to disturb the finding that the statement was made voluntarily.

[14] Once the statement is accepted, it provides support for the complainant’s evidence. Also, in its terms, it records acknowledgements by the petitioner that he was informed on more than one occasion of his rights, including the rights to remain silent and to contact a lawyer. He was assisted by a lawyer for the cross-examination of the complainant before she returned to her home overseas. He applied for, but was refused, further legal aid. His subsequent lack of legal representation was reviewed fully by the Court of Appeal and we find no error in the reasoning of the Court on that issue.

[15] Our review of the case in the light of the grounds advanced in support of the petition satisfy us that it is not a case in which special leave should be granted in terms of Section 7 of the Supreme Court Act 1988.

Hon. Justice Daniel Fatiaki

President of Supreme Court

Rt Hon Justice Thomas Gault

Judge of Supreme Court

Hon. Justice Kenneth Handley

Judge of Supreme Court

Solicitors:

Petitioner in Person

Office of the Director of Public Prosecutions, Suva for the Respondent

CAV0002.05S