Turagakece v State [2019] FJSC 4; CAV0023.2018 (25 April 2019)

IN THE SUPREME COURT OF FIJI
[CRIMINAL APPELLATE JURISDICTION]

CRIMINAL PETITION No: CAV 0023 of 2018
[On Appeal from Court of Appeal No: ABU 0085 of 2014]

BETWEEN:

SAVENACA TURAGAKECE
Petitioner

AND:

THE STATE
Respondent

Coram : Hon. Mr. Justice Saleem Marsoof, Judge of the Supreme Court
Hon. Mr. Justice Priyasath Dep, Judge of the Supreme Court
Hon. Mr. Justice Frederik Brand, Judge of the Supreme Court

Counsel: Ms. S. Nasedra for the Petitioner
Ms. S. Tivao for the Respondent

Date of Hearing: 12 April 2019

Date of Judgment: 25 April 2019

JUDGMENT

Marsoof, J

1. I have had the advantage of perusing the judgment of Brand, J in draft and I agree with his reasoning and conclusions. I also agree with the orders proposed by him.
   

Dep, J

2. I have read the judgment of Brand J and I agree that conviction and sentence are to be affirmed.

Brand, J

3. The Petitioner is Mr. Savenaca Turagakece. He was charged in the High Court before Temo, J and assessors on six counts of sexual offences. The complainant in all instances was his step daughter. At the commencement of the trial the petitioner pleaded guilty to the two charges of indecent assault (counts 1 and 6) and not guilty to the rest. At the close of the prosecution case both parties agreed that there was no case for the petitioner to answer on count 4, which was a charge of an unnatural offence.
   
4. In consequence the issues at the trial were confined to counts 2,3,5,7 and 8 which were five charges for rape. They were representative counts in that it was alleged, in respect of each count, that the offence was committed over a specified period. So, for example, in count no.2 it was alleged that the complainant was raped by the petitioner “between January 2005 and 31 December 2005”; and in court 3 that she was raped by him “between 1 January 2006 and 31 December 2006.” Since the complainant was born on 19 October 1993, it was not a dispute that in 2005 she was only 12 and that in 2011, at the time of the last charge, she was 18 years of age.
   
5. At the end of the defence case the trial Judge summed up the case for his assessors. Thereafter all three assessors found the appellant guilty on counts 2, 3, 5 and 8 while the majority also found his guilty on count 7. Temo, J agreed with the majority and in consequence convicted the petitioner on all counts. Since nothing turns on any distinction between count 7 and the other charges, we need not be detained by this difference of view between the one assessor and the rest of the court. In the event he was sentenced to 2 years imprisonment on each count of indecent assault and 14 years’ imprisonment on each count of rape; the learned Judge directed however that all these sentences were to be served concurrently, which resulted in an effective sentence of 14 years on which he imposed a non-parole period of 13 years.
   
6. The petitioner appealed to the Court of Appeal against both conviction and sentence. The appeal against conviction was confined to his objection that the learned trial Judge had failed to properly informed the assessors with regard to the contents of his caution interview. Likewise, the appeal against sentence rested on one ground only, namely that “the non-parole period is too close to the head sentence resulting in more severe punishment”. Neither of these two challenges found favour with the Court of Appeal. In the result the appeals, both against conviction and sentence, were dismissed. Hence the petition to this Court seeking leave to appeal against that dismissal.
   
7. In the Petitioner’s grounds of appeal to this Court, several new grounds were raised. As to the appeal against conviction, the petitioner’s representative, however, confined her argument to four of these grounds which in effect amounted to three grounds because ground 3 effectively repeated ground 2. They are formulated thus- and I paraphrase to avoid the cumbersome formulation of the original:
   

Ground 1

That the learned Trial Judge erred in convicting the petitioner on defective charges in that Kadavu Island is situated in the Southern Division and not the Central Division, as alleged in the Information by the Director of Public Prosecutions.

Ground 2

That the learned Trial Judge erred in not holding a trial within a trial to determine the voluntariness and admissibility of the interview police records.

Ground 5

That the Court of Appeal erred in finding (in paragraph 16 of its Judgment) that the trial court’s failure to properly instruct the assessors with regard to the contents of the cautionary statement did not prejudice the petitioner.

8. I shall revert to the appeal against sentence. I propose to deal with the grounds of appeal against conviction first. As I see it, the objections raised in grounds 1 and 2 need not detain us too long. They can be dealt with prior to considering the evidence presented at the trial in any detail.
   
9. The objection in ground 1 derives from the allegation in the information by the DPP that counts 1 to 7 were committed “at Vabea Village, Ono, Kadavu in the Central Division”. For present purposes I am prepared to accept, without determining whether or not this is true, that Kadavu Island is indeed situated in the Southern Division and not in the Central Division as alleged by the DPP. But at the same time, I believe it is safe to assume that the petitioner knows where Kadavu Island is geographically situated. After all, that is where he lives. The purpose of the particulars of the alleged offence provided in the Information document, so it has been said, correctly in my view, is to indicate to the accused person the nature of the case the state intends to present (see State v Singh AAU 0097/2015; para 36). In the circumstances there is no doubt in my mind that the petitioner knew exactly where, according to the case relied on by the State, he committed the offences. It follows that the reference to the division in which Kadavu Island is situated is not only irrelevant, but could in no way mislead or prejudice the petitioner. It follows that there is no prospect of any success in an appeal on this ground.
   
10. As to ground 2, it was never the petitioner’s case that the interview statement had been obtained improperly in any way. On the contrary, his evidence in cross examination was that:

“When I was interviewed by the police, they did not assault me, did not threaten me nor made me false promises”

In short, the admissibility of the statement was never challenged. The only issues arising from the cautionary statement turned on what the petitioner actually said during the interview. This rendered a trial within a trial inappropriate. These issues arising were for the assessors to decide at the end of the trial proper. It follows that ground 2 is in my view equally devoid of merit.

11. This brings me to ground 5, which does require some consideration of the background facts. The State’s case rested in the main on the evidence of the complainant. But reliance was also placed on the petitioner’s alleged admissions under caution. It is common cause that the petitioner is married to the complainant’s mother. No children were born of that marriage, but she has three daughters of a previous marriage; the youngest of whom was the complainant. It appears that the petitioner knew the complainant since about 1998, when she was five years old. The complainant’s testimony was in broad terms that in 2004 the petitioner started to abuse her sexually. In 2005, the abuse turned into rape, after which, she testified, he raped her on a regular basis over the next five years.
    
12. On the complainant’s version there can be no doubt that on each of these occasions he had penetrated her and that he thus had sexual intercourse with her against her will. Apart from verbal threats of general physical violence, she testified about incidents where he threatened her with weapons such as a knife and a spear so as to force her into submission. Moreover, he threatened to kill her or hurt her mother if she should tell anyone about what he did. That, she explained, is why she was scared to report the abuse. Matters however came to a head, she testified, in August 2011 when she went on a school excursion to Suva. At the end of the excursion, the petitioner persuaded the complainant’s teacher not to take the complainant home with the rest of the group but to leave her in his care. According to the complainant he then took her to a hotel where he closed the door and raped her again. She then decided, so she testified, that this could not go on any longer; that she could take it no more. When she returned home, she therefore told her mother what the petitioner had done to her.
    
13. The latter part of the complainant’s testimony was confirmed by her mother. According to the mother’s testimony the complainant told her that the petitioner abused her by fondling her breasts and her vagina and that he put his penis into her vagina. When she confronted the petitioner with what the complainant had told her, the mother testified and I quote: - “he cried and admitted to me what prosecution witness 1[i.e. the complainant] told me.”
    
14. The petitioner’s version at the trial was is in short that he never penetrated the complainant. Although he admitted that he had inappropriately touched and fondled her, he denied that he ever had sexual intercourse with her at any time. Against this background, I can now consider the petitioner’s objection that the learned trial judge had failed to properly instruct the assessors with regard to his caution statement, coupled with his further objection that the Appeal Court had failed to recognize the prejudice that he suffered as a result of this error on the part of the trial court.
    
15. What the learned judge said to his assessors in this regard appears from paragraph 22 of his Summing Up which reads as follows:
    

“His defence was very simple. In his sworn evidence, he denied ever inserting his penis into the complainant’s vagina at any time whatsoever. He admitted fondling the complainant’s breast and kissing her at times. He admitted he was caution interviewed by the Police on 27 and 29 June 2012 at Kadavu and Nabua Police Station. He admitted that the police did not assault, threaten or made promises to him before, during and after the caution interview. While the interview notes recorded him admitting having sexual intercourse with the complainant on numerous occasions, he appeared to say that this was a fabrication by the police. Because of the above, he is asking you as assessors and judges of fact, to find him not guilty as charged on the five counts of rape and acquit him accordingly. That was all the case for the defence”.

16. Later on in the Summing Up, the proposition that, contrary to his evidence in court, the petitioner admitted in his interview statement, that he had sexual intercourse with the complainant with her consent, was repeated several times. On a proper analysis of the interview statement, it appears to me however that the petitioner never admitted sexual intercourse in the sense of penetration in his interview statement. What he admitted was that he had “sex” with the complainant with her consent. What he meant by “sex’, as I understand it, in the context of the statement as a whole, amounts to no more than indecent assault in the form of fondling and inappropriate touching. It must also be borne in mind that the petitioner was interviewed by the police in the i-Taukei language after which his statement was translated into English. The police officers who interviewed the petitioner in i-Taukei, testified as to how he understood the petitioner. In this regard he said:
    

“Accused admitted having sex with Prosecution Witness 1. Accused said... [she] consented and they had sex i.e. rubbing his penis on [her] vagina.”

17. It therefore seems to me that, properly understood, the petitioner’s evidence at the trial did not materially deviate from what he said in his interview statement. Nor did he suggest any fabrication by the police, as the trial judge had thought. On the contrary, his admissions in evidence were directly in line with what he admitted in his interview, namely that, although he had sexually abused the complainant, he never penetrated her. My inevitable conclusion is therefore that the trial judge had erred in his summing up.
    
18. Moreover, I do not agree with the Court of Appeal that the Petitioner had not been prejudiced by this misdirection. In the view held by the learned trial judge, the perceived contradiction by the petitioner weighed heavily against him in that;
    
    • (a) he had contradicted his statement to police;
    • (b) he had falsely ascribed those contradictions to fabrications by the police; and
    • (c) his admissions in his interview statement supported the evidence of the complainant in a material respect

Moreover, not only did the learned judge convey these views to the assessors; they are reflected in his own judgment when he said that apart from the complainant’s evidence:

“I also accept the accused’s confession in his police caution interview that he had sex with the complainant as alleged.”

19. The question remains however whether this mistake on the part of the trial judge, serious as it may have been, resulted in a miscarriage of justice. Stated somewhat differently, the question is whether it is reasonably possible that a correct direction by the trial judge could have lead to the acquittal of the petitioner. If the conclusion by this Court is that, despite the judge’s mistake, the guilty verdict was inevitable, in the sense of being the only reasonable verdict on all the evidence, the appeal is bound to fail. This is so because, as was said by Goundar JA in the Court of Appeal in Roshni Lata v The State AAU 0037 of 2013;
    

“If appeals were to be allowed for every mistake or wrong decision a trial judge makes in the course of a trial which has no effect on the innocence of the accused, that itself would amount to a miscarriage of justice.”

20. On a proper analysis of the evidence my conclusion is indeed that, notwithstanding the mistake by the trial judge, the conviction of the petitioner was inevitable in any event. First there is the fact that the complainant obviously made a favourable impression on the learned judge and his assessors. Secondly, there is the fact that, by contrast, the learned Judge found the petitioner an unsatisfactory witness who was; “very evasive when answering questions from the prosecution”. Thirdly, there is the uncontroverted evidence of the complainant’s mother, i.e. the petitioner’s wife- who appears to bear him no ill will- that when she confronted the petitioner with complainants allegations of what he had done to her, he admitted those allegations and that he broke down and cried. In these circumstances, I hold the view that the application for leave to appeal against conviction cannot be sustained.
    
21. In support of the appeal against sentence, the petitioner relied on one ground only. The main thrust of this ground is that the non-parole period imposed is so close to the period of the head sentence that it leaves no room for rehabilitation. The problem underlying this ground was also raised in the case of Timo and Lockington CAV22/18 and CAV26/18 that came before this Court during this session. As appears from the judgement of Justice Keith in that matter (para. 40) the problem arises from the approach by the Commissioner of Corrections to the calculation of the remission of a prisoner who had a non-parole period fixed, as in this case. What the practice amounts to is that the Commissioner releases the prisoner, not after two thirds of his sentence, but only after two thirds of the difference between the sentence and the non-parole period had been served. In this case it means that the petitioner would not be entitled to remission of more than four month. As appears from the judgement in Timo, Justice Keith considered the problem and suggested possible solutions (para 43). In the end it is apparent from the Timo judgement, however, that as the law stands at the moment, the petitioner’s appeal against sentence is also bound to fail. In the circumstances the application for special leave to appeal against both conviction and sentence should in my view be refused.
    

The Orders of the Court:

1. The application of the petitioner seeking special leave to appeal against conviction and sentence is refused.
   
2. The conviction and sentence imposed upon the petitioner by the High Court is affirmed.
   

Hon. Mr. Justice Saleem Marsoof

Judge of the Supreme Court

Hon. Mr. Justice Priyasath Dep

Judge of the Supreme Court

Hon. Mr. Justice Frederick Brand

Judge of the Supreme Court