Mototabua v State [2008] FJSC 49; CAV0004.2005S (29 February 2008)

IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0004 OF 2005S
(Fiji Court of Criminal Appeal AAU0025 of 2004S)

BETWEEN:

ELIKI MOTOTABUA
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Mark Weinberg, Judge of the Supreme Court

Hearing: Tuesday, 26th February 2008, Suva

Counsel: Petitioner in Person
A Driu for the Respondent

Date of Judgment: Friday, 29th February 2008, Suva

JUDGMENT OF THE COURT

Introduction

1. On 5 April 2004 Mototabua was cwas convicted in the High Court on one count of abduction, one of wrongful confinement and five counts of rape. He was sentenced to four years imprisonment on each of the firstcounts and ten years on eacn each of the rape counts. The sentences were to be served concurrently. On appeal to the Court of Appeal the conviction for wrongful confinement was quashed. In 2005 a petition for special leave was dismissed but reasons for that decision were never published.
   

Procedural background

2. On an Information from the Director of Public Prosecutions dated 29 January 20liki Mototabua waua was charged on seven counts:
   

"1. ABDUCTION: Contrary to Section 152 of the Pende, Cap 17.

Particulars of Offence

ELIK>ELIKI MOTOTABUA on the 5th day of April 2002, at Nausori, in the Central Division, with intent to know a woman took MEREANI RADOVU against her will.

2. WRONGFUL CONFINEMENT: Contrary to Section 251 of the Penal Code, Cap 17.

Particulars of Offence

ELIKI MOTOTABUA between the 5th day of April and the 9th day of April 2002, at Naiyalayala Setelment [sic] in Korovou, Tailevu in the Central Division, wrongly confined MEREANI RADOVU.

3. RAPE: Contrary to Sections 149 and 150 of the Penal Code, Cap 17.

Particulars of Offence

ELIKI MOTOTABUA on the 5th day of April 2002, at Naiyalayala Settlement in Korovou, Tailevu in the Central Division, had unlawful carnal knowledge of MEREANI RADOVU without her consent.

4. RAPE: Contrary to Sections 149 and 150 of the Penal Code, Cap 17.

Particulars of Offence

ELIKI MOTOTABUA on the 5th day of April 2002, at Naiyalayala Settlement in Korovou, Tailevu in the Central Division, had unlawful carnal knowledge of MEREANI RADOVU without her consent.

5. RAPE: Contrary to Sections 149 and 150 of the Penal Code, Cap 17.

Particulars of Offence

ELIKI MOTOTABUA on the 6th day of April 2002, at Naiyalayala Settlement in Korovou, Tailevu in the Central Division, had unlawful carnal knowledge of MEREANI RADOVU without her consent.

6. RAPE: Contrary to Sections 149 and 150 of the Penal Code, Cap 17.

Particulars of Offence

ELIKI MOTOTABUA on the 7th day of April 2002, at Naiyalayala Settlement in Korovou, Tailevu in the Central Division, had unlawful carnal knowledge of MEREANI RADOVU without her consent.

7. RAPE: Contrary to Sections 149 and 150 of the Penal Code, Cap 17.

Particulars of Offence

ELIKI MOTOTABUA on the 8th day of April 2002, at Naiyalayala Settlement in Korovou, Tailevu in the Central Division, had unlawful carnal knowledge of MEREANI RADOVU without her consent."

3. Mr Mototabua was tried before a judge and assessors in the High Court and on 5 April 2as fouiltyuilty on all coul counts on the unanimous advice of the assessors. On 6 April 2004 thel judge imposed thed the sentences previously referred to.
   
4. Mr Mototabued a Petition of Apof Appeal against convictions and against his sentences on 19 April 2004. On 60;March 200h 2005 the Court of Appeal dismissed his appeal against conviction, except for ount for wrongful confinemeinement which was quashed. On the same day, Mr Mototabua lodged what was treated as a petition for special leave to appeal to the Supreme Court. His petition for special leave was dismissed on 14 Octob05 by a Court comprisiprisitiaki CJ, Handley J and Scott J.ons fors for that decisiocision have not been delivered. The Chief Justice has been puedly suspended from office by order of the President. JustiJustice Scott, who sat by virtue of his office as a Judge of the Court of Appeal, is no longer a Judge of that Court. It is therefore not now possible to produce reasons for judgment of the Court as previously constituted. In the circumstances the Court decided to constitute a new bench to rehear the petition.
   
5. Justice French, who was originally scheduled to sit on this petition, became unavailable to do so. In those circumstances, Mr Mototabua was asked whether he would object to Handley J sittinplace of French&#16h J, bearing nd that Handley&dley J had been ber of the CourtCourt that dismissed his petition005. 60;Mototabua expressly stated that he had no such such objection.
   

The fThe factual background

6. The following summary is taken from the record of the trial.
   
7. The first and main witness for the prosecution was the complainant, Mereani Radovu. She said that on Friday, 5 April she was at the Nausorausori Bus Stand waiting to catch a bus to Nakelo where she lived when she was approached by Mr Mototabua.as a total strangtranger. Hd her that his father had just taken up a position as PrincPrincipal at Fulton College, and that he himself was a stranger to Suva. Hed her to point out where the bus left for Fulton College. ege.
   
8. According to Ms Radovu, she agre do so. How. However, as she directed him to the location of the bus stop, he hailed a passing taxi, grabbed her bags, and pushed her inside. She said that she could smell liquor on his breath that he appeared drunk. Shk. She said that she was frightened of him.
   
9. Ms Radovu said that Mr&#16otabtotabua took her, against her will, to his house at Naiyalayala Settlement. He told her to get out of the taxi. When she refused, he dragged her out.
   
10. She said that over the next four days, she was his prisoner. She said that on one occasion, shortly after their arrival, she tried to escape. However, Mr Mototabua d her down the drhe drive, caught her, and beat her severely. That particular incident was witnessed by Mr Mototabua’s motShe gahe gave evidence agaiim at the trial.
    
11. Ms Radovcribesome detail how show she was repeatedly raped by Mr&#1Mr Mototaber the next few days days. She said that he threatened to ker if she resisted, and that he struck her frequently. Ultimately, on the Tuesday, she was was finally allowed to leave. Later that day, after she had returnedurned home, she informed her sister-in-law of what had happened. There was then an interlude of several days while the family attempted to confront Mr Mototabua abou actions. Fin. Finally, on Saturday, 13 April 2002 she made a stnt ment to the police.
    
12. On sameshe was seen by a by a doctor. The doctor’s evidence, at trial, indicated that she hahe had sustained various injuries in and around the genital area, and to her back, which were consistent with her having been raped.
    
13. Mr Mototabua made an unsworn statement. He claimed that she had initiated contact with him while he was sitting at the Vuci Bus Stand opposite the Nakelo Bus Stand. She had asked if she coulompany him home. They had had dinner together, in the presepresence of friends. She had willingly had sexual intercourse with him. He claimed that over the next few days, she had remained at his home, even when he had gone to Suva. They had had intercourse on a number of occasions and she had always been a willing participant.
    
14. Mr Mototabua did not evidence ence from any of the persons he said were in his and the complainant’s presence at the house.
    

Reasons for decision of the Court of Appeal

The Court of Appeal summarised the grounds of appeal lodged by Mr Mototabufollows:

• (i) The trial judge obliged the appellant to proceed to trial unrepresented.
  
• (ii) The evidence did not support the convictions, and guilt beyond reasonable doubt was not proved.
  
• (iii) The trial judge directed that there was no corroboration in respect of the rape charges, yet convictions were entered.
  
• (iv) The trial judge directed that corroboration was available on the abduction charge where there was none; and
  
• (v) The alleged offence was not reported to the police until 13 April 2002 was dour days after tter the complainant left the appellant’s house.
  

16. Mr Mototabua expanded on tgrou grounds during the hearing of the appeal. He complained about the way the trial judge had dealt with a question relating to drugs which he had asked in cross-examination. He complained that he had been prevented from cross-examining about matters relevant to his defence. He submitted that the trial judge should have overturned the assessors because of inconsistencies in the complainant’s evidence. He complained that after he had been convicted and sentenced he had not advised of his rights of appeal, or assisted by the trial judge to prepare grounds of appeal. Finally, he submitted that the trial judge had erred in law in dismissing a submission of no case to answer which he had made at the close of the prosecution evidence.

17. The prosecution conceded before the Court of Appeal that the conviction of wrongful confinement could not stand. That was because, as pleaded, it did not comply with the requirements of s 251 of thel Code, Cap 17 in17 in that the requisite intent for that offence was not specified. Acting on the concession, the Court of Appeal quashed that conviction. This no practical difference to the outcome as the sentence fore for wrongful confinement was to be served concurrently with all other sentences. The Court of Appeal rejected a contention that because the conviction on that count had been quashed all other convictions should also be quashed.

18. In relation to ground one, Mr Mototabua complaihat the trhe trial had been forced on although he was unrepresented. However, the Court of Appeal noted that he had been granted repeated indulgences. Legal aidgranted on 7 November 2003 and aournmentnment was then then granted until 23 February 2004. A pral confeconference was scheduled for 19 February 2004. Mr Mbuataid not appear, and thnd the hearing was adjourned to 22 March 20n that date nfirmedirmed that he had withdrawn instructions from counsel assl assigned by the Legal Aid Commission. Counsel was given leave to withdraw and the set down for the following week.

19. At the cthe commencement of the trial, on 29 March 2004, Mr Mototabua said th wanted a ed a lawyer of his own choice, to be paid for by the Legal Aid Commission. The trial judge considered that he hadamplertunity to engage counsel, and that the trial had been delayed long enough. The CThe Court ourt of Appeal rejected this ground of appeal. The fact that the trial proceeded although Mr Mototabu no legal representesentation was a situation of his own making. The Court had delayed the trial for over a year to enable him to seek legal aid.

20. The Court of Appeal dismissed,ithout substance, the contecontention in ground two that the convictions should not stand because the evidence did not establish guilt beyond reasonable doubt. The Court observed that the prosecution case was a very strong one "... especially as the appellalt, although making an unsworn statement, called no evidence" (at [6]).

21. On the question of corroboration, raiseground three, the Court of Appeal referred to the rule of practice requiring a warning that that it is dangerous to convict on the uncorroborated evidence of a complainant. The Court stated that there is no basis for the contention that a conviction for rape cannot be supported in the absence of corroboration. It referred to its judgment in Seremaia Balelala v The State (Criminal Appeal No AAU0003 of 2004S) which decided that the rule of practice that required such a warning should no longer be followed.

22. The Court of Appeal observed that it might be said that the trial judge had given Mr Mototabua "the benefit of the doubt" when she both warned the assessors of the dangers of convicting in the absence of corroboration, and told them that thes in fact no corroboration in relation to the rape charges. The Court of Appeal noted that that the medical evidence could be said to provide corroboration, at least in respect of the issue of absence of consent. Accordingly, there was no substance to this ground.

23. In relation to ground four, Mr Mototabbmitted that there were was no corroboration in respect of the abduction charge, and accordingly that charge could not be sustained. The Court of Appeal held that there was no requirement of a corroboration in relation tion to this charge. Nonetheless, ample corroboration was available, consisting of what seemed to be compelling evidence from Mr Moto’s own mother. Asr. As previously indicated, her testimony was that she saw her son dragging the complainant from a taxi and forcing her up the hill to his house, despite her screams and physical resistance.

24. The Court of Appeal held that ground five, namely that of delay in complaining to the police, had no substance. The complainant informed her sister-in-law of what Mr Mototabua had done t on then the very day she left his home, where she said she had been raped. The Court of Appeal observed that in view of her distressed condition and her family’s decision that Mr Mbua s be confronted, ted, ted, the delay was understandable. In addition, Mr Mototabua drew the delayhe the attention of the asrs in his closing address.

25. The Court of Appeal next dealt with the supplemeplementary grounds that had been advanced e hearing. There was nothing in the complaint that Mr #160;Motothad been preventevented from cross-examining. The trial judge had warned him of the possible prejudicial effect of cross-examining on the matter relating to drugs at his home. The warning was in the absence of the asse assessors, and when the assessors returned, Mr Mototabua was in no weventevented from cross-examining as he saw fit.

26. There was then the suggestion that because of inconsistencies in the complainant’s evidene trial judge should have overruled the opinion of the asse assessors. The Court of Appeal examined the evidence. It held that there were no inconsistencies on the essential ingredients of the charges that could possibly justify the trial judge in taking the rather extreme step of overruling the unanimous opinion of the assessors.

27. As to the point about not having been assisted by the trial judge in framing grounds of appeal, the Court of Appeal summarily, and correctly, rejected the submission that she was under any obligation to provide such assistance. Finally, as to the contention by Mr Mototabua that his no case submission should have been accepted, the Court of Appeal found that the case against him was extremely strong, if not overwhelmThe appeal was dismissed.

The petition for special leave

28.p>28. The petition for special leave to appeal to the Supreme Court was rather discursive beginning with recitation of provisions of the Constitution and the International Covenant of Civil and Political Rights. In substance, the petition raised the same five grounds as were relied upon before the Court of Appeal, but included two additional complaints. There were that:

• the Court of Appeal did not have regard to the fact that the petitioner was not represented during the hearing of his appeal; and
  
• the proceedings before the Court of Appeal constituted an abuse of process. The judges of the Court of Appeal were said to have "erred in law and in fact" and were "deaf and blind" to his eight pages of reply to the prosecutor’s argument. The Court of Appeal’s judgment was biased in not addressing his reply to the Court in the judgment delivered on 18 March 20r>

29.p>29. In his oral submissions to this Court Mr Mototabua raised a number of additional grounds some of which were alluded to, but not sput in his written submissions. He articulated some fourteenrteen grounds in all.

30. In summary, these grounds (and our usions regarding each of thof them) were and are as follows:

(1) The President of the Court of Appeal had erred in law in not recommending that legal aid be granted to Mr Mototabuasuant to s 3560;35(1)(f) of the >CourtCourt of Appeal Act Cap 12;

31. Section 35(1) (f) provides that a judge of the Court may, in the exercise of his ordiscr, recommend that that legal aid be granted to an appellant.lant. Section 35(3) provides that if ge rdge refuses an application on the part of the appellant to exercise a power under subs (1) i appellant’s favs favour, the appellant may have the cation determined by the Full Court.

32. ThereThere is nothing in the record to indicate that Mr Mototabua applied e Pret tont to make any sucy such recommendation. Nor is there anything to indicate that he sought to have any such application deter by the Full Court. There is no mention of this matter in that Court’s reasons for juor judgment. A judge to whom such an application is made is not bound to accede to that application. The matter is entirely discretionary.

33. In any event, the power conferred is simply to "recommend". The decision as to whether legal assistance will be provided is ultimately a matter for the Legal Aid authorities.

34. There is nothing in this ground which warrants the grant of special leave.

(2) This ground asserts that the evidence did not support the convictions, and that the case against Mr Mototabua ot been proved beed beyond reasonable doubt. It replicates ground (ii) before the Court of Appeal.

35. The evidencenst Mr Mototabua was described b Cthe Court of Appeal as "very strong"... From our rear reading of the record, that is an apt description. There is no substance in this ground.

(3) This ground complains of lack of legal representation at the trial. It replicates ground (i) before the Court of Appeal.

36. The Court of Appeal explained, in clear terms, how it was that Mr Mototabua came to bepresentesented at his trial. He had been offered a Legal Aid lawyer, but elected not to be represented by her. He sought instead to have Legal Aid fund a lawyer of his own choice. He was not entitled to insist that Legal Aid provide assistance in these circumstances.

37. Mr Mototabua can hardly complain that his rights under s 28(1)(d) o Constitution wern were infringed. It has been held that that section does not give an absolute right, in every case, to ben theices of a legal practitioner, paid for by the Stae State: Ratu Jope Seniloli & Otp; Others v The State Criminal Appeal No AAU0041 of 2004 at p 9 and Seremaia Balelala v The State Criminal Appeal No AAU0003 of 2004S at pp 8-9. It certainly does not give an absolute right to a lawyer of one’s own choice, to be provided by Legal Aid.

(4) This ground was used as a "catch all" to raise a series of matters not previously addressed in the Court of Appeal. For example, Mr Mototabua complained of til failure of the prosecution to call as a witness the police officer to whom the complainant made a second statement on 5 May 2He also complained of d of the failure of the prosecution to tender the various implements said by Ms Radovu to have been used by him when he assaulted her at his home.

38. This Court will not normally entertain points such as this, raised for the first time, on appeal, by way of oral submission. In any event, there is no merit in this ground.

(5) Mr Mototabntends that, as a ma a matter of law, there cannot be a conviction on a charge of rape in the absence of corroboration. This ground replicates ground (iii) before the Court of Appeal.

39. Mr Mototabua is wrong iee resp respects. First, it has never been the law that actual corroboration is required in cases involving sexual offences. Thes only a requirement, at common law, that a warning be given of the dangers of convicting oing on the uncorroborated evidence of a complainant. Second, it has been held by the Court of Appeal that that rule of practice no longer exists in Fiji: see Seremaia Balelala v The State at p 19. Third, there was, in any event, ample corroboration of Ms Radovu7;s evidence. The mede medical evidence plainly supported her claim to have been forcibly raped, rather than having had consensual sex.

(6) This groas used as the vehicle to attack the trial judge’s fa;s failure to order severance of the counts. The point was not taken in the written submissions, and was not raised before the Court of Appeal.

40. The trial judge was not asked to consider severing these counts in the exercise of her discretion. The offences were all committed within a few days of each other. They were of the same character, and all involved the same victim. There was no basis upon which severance could properly have been ordered.

(7) Mr Mototabua complained that he was taken by surprise when his mother went beyond her initial statement to the police, and described in greater detail how she had seen her son drag Ms Radovu backrds his house. 41. In her original statemtatement dated 4 May 2002, Mr Mototabua&#8 mother told thld the police that she had heard the girl wh with her son scream as they stood outside her house.

42. In her evidence at the trial, she went much further. She that she had seen her son dson drag Ms Radovu out of the taxi ag hnst her will. She saw the girl resist. She saw him grab her and punch her repeatedly. She said that her original statement had been untrue. She had withheld the truth because she was frightef what her son might do to o to her.

43. It seems that the evidence given by Mr Mota’s mother was ents entirely unexpected. There is no suggestion that the prosecution failed to give proper disclosure. The record shows that Mr Mototcrossined his mother, her, accusing her of having lied to t to the assessors. He drew their attention to her earlier statement to thece, upon which he relied. Had he thought that he needed some time to further prepare his cris cross-examination, having regard to the new evidence that she gave, he could have asked for a brief adjournment which almost certainly would have been granted. He did not to do so.

44. In the circumstances, we do not consider that this ground is made out.

(8) This ground raises the issue of delay on the part of the complainant in reporting the matter to the police. It replicates ground (v) before the Court of Appeal.

45. The Court of Appeal dealt with this matter at par [10] of its reasons for judgment. It was a matter for the assessors to consider whether the explanation given for the delay was satisfactory. Mr Mototabua relied the delay elay in his submissions to the assessors. We agree with the Court of Appeal that there is no substance to this ground.

(9) This ground complains that Mr Mototabua was preventem crom cross-examiningining the complainant regarding a matter that was critical to his defence, namely the number of people who entered and left his house throughout the entire time that she here.

46. Ther There are two difficulties with this ground. The record shows that the trial judge stopped Mr Motota8217;s cross-examinatmination, and sent the assessors out, because his questions were open ended, and invited the complainant toal that he was dealing in drugs. Sensibly, having been warned by the trial judge of the rise risks that he was taking, Mr Mototaesisted from asking qing questions in that form after the assessors returned. However, he continued to press the complainant aboe numbers of people who had been to the house throughout the period that she was there. Mr&. Mr Mototabua was in no way prejudiced by what had occurred.

(10) This ground complains that the Court of Appeal erred at par [12]:

"O essential ingredients of the charges ... there are no inconsistencies in the complainant&#ant’s evidence that could possibly justify the trial judge in taking the rather rare step of overruling the unanimous view of the assessors."

47. Mr Mototabua sought to mood thod this ground by pointing to several supposed inconsistencies on the part of the complainant. However, these related to relatively inconsequential matters. The ground is without merit.

(11) Mr Mototabua clthat the trial rial judge should have acceded to his no case submission.

48. The evidence in support of the variousges which he faced was cogent, and was in any event corroborated. Mr Mototabua referreferred to the observations of Lord Lane CJ in R v Galbraith [1981] 2 All ER 1060 regarding the principles govern no case submissions. There is nothing in that case that sts this ground.

(12) Mr Mototabua sought tght to introduce, for the first time, a claim that the trial judge had erred in not directing the assessors as to the relevance of his having been intoxicated.

49. There was evidence from tmplainant that when she wase was first confronted by Mr Mototabu smelt liquor on hion his breath. Indeed, she said he was drunk. However, there was no evidence to suggest that he was so heavily inebriated at the time of any of the alleged rapes, as to requhe trial judge to give a sp a special direction to the assessors regarding this issue. Mr Mototaid not rely upon the the fact that he was intoxicated as any part of his defence to these charges. His case was simply that the complainant had consented.

50. In these circumstances, we reject this ground of apof appeal.

(13) Mr Mototaought to raise, againagain for the first time, an issue regarding the trial judge’s directions as to recklessness.

51. The Court declined to hurther argument on this issue. It is plain that the trial jial judge’s directions regarding recklessness were entirely orthodox, and in accordance with law.

(14) Mr Mototabuaht to argue that that this Court should set aside his convictions because he had not been legally represented at his preliminary inquiry.

52. There is no basis for this ground.

53. To complete this suis summary of Mr Mototabua’s va complaomplaints, we should add that he argued, in his written submissions, that a police record of interview recording his silence in answer to questions should have been tendered. Mr Moua seo have considereddereddered that this document had to be tendered before he could be convicted. That submission is misconceived.

54. Mr Mototabua also aed that he t he did not elect trial by assessors. What What he meant by this submission was not at all clear.

55. Mr Mototabua sought to agitate the contention that the assessors were not directed to apply the criminal standard of proof beyond reasonable doubt. He complained that in the course of the trial they were asked to leave court number of occasions. He asse asserted that there was a danger that the assessors would draw an adverse conclusion from that fact. Again, there is nothing in these complaints.

56. Mr Mototabua submitted further written argument to the Court on 2 January 2008. Additional matters raised in his written submission included the following:

1. Error of law by tial judge in remanding Mr Mototabua itody before fore fore sentencing, contrary to s 29(1) of the Contion.

2. Error of law by the sentencing judge in not endeavouring to assist Mr Mototabua to find proper legal representation on mitigation

3. Bad faith by counsel for the prosecution and thnd the trial judge by failing to give Mr Mbua ample time to replthe lthe prosecution’s skeleton "Submission in Sentencing"cing".

4. No summary of facts was disclosed to Mr Mototabfore earing of his chis case in the High Court.

5. Errors made by the trial judge about the history of Mr Mototin img sentence. Mr&#1Mr Mototabua red to the quashiuashing of the conviction for wron wrongful confinement. He contended that tad the consequence that he had no criminal intention at all according to law. The quashing hing of that conviction, related to the form of the Information and the failure to allege an essential element of the offence.

57. We have considered all of the materials and arguments submitted by Mr Mototabua. None of thets thts the requirements of s 7f the Supreme Court Act juct justifying the grant of special leave. Rather, there is an assortment of complaints which have been properly dealt with by thet of l, other matters ters of a scandalous nature impugning the the integrity of that Court, and of the trial judge, and others directed simply to the length of the sentences imposed. No basis was shown for disturbing any of those sentences and there were no grounds for special leave in relation to sentence in any event.

58. For these reasons the Court as presently constituted confirms the earlier order that special leave to appeal be refused, and that the petition be dismissed.

Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice Mark Weinberg
Judge of the Supreme Court

Solicitors:
The Petitioner in person
Office of the Director of Public Prosecutions, Suva for the Respondent