Khan v Reginam [1973] FijiLawRp 26; [1973] 19 FLR 133 (28 November 1973)

(1973) 19 FLR 133

COURT OF APPEAL OF FIJI

 

MOHAMMED HAMIDULLAH KHAN

v

REGINAM

[COURT OF APPEAL 1973 (Gould VP, Marsack JA, Henry JA), 15^th, 28^th November]

Criminal Jurisdiction

Criminal law – evidence – tape recorder – admissibility of recording of conversation made between husband and wife – whether privileged – whether obtained by a trick or a trap.

Criminal law – evidence – confession – admission of guilt on tape – whether obtained by a trick or trap.

Criminal law – sexual offences – recent complaints – when admissible in evidence – sentence.

Criminal law – witness – evidence inconsistent with previous statements – whether such evidence should have been rejected.

Criminal law – sentence – sexual offences.

The appellant was charged with offences of rape, incest and indecent assault upon his 14 year old daughter. Whilst on bail, a police officer engineered a meeting between the appellant and his wife in a car in which a tape recorder had been installed. The appellant when alone with his wife, confessed to having sexual intercourse with his daughter.

Held: 1. The tape recordings were properly admitted in evidence and there was no rule of law rendering such recordings inadmissible merely on the ground that it was privileged conversation between husband and wife.

2. Complaints made by a victim of a sexual assault, if made at the first opportunity, are admissible in evidence not as corroboration of the girl’s story but for the purpose of showing consistency in her evidence.

3. The judge gave full consideration to the discrepancies and inconsistencies and different statements of the daughter in his judgment.

4. The sentence for rape would be reduced to 7 years as the offence was virtually identical to that of incest in the present case.

Cases referred to:
Rumping v DPP  (1962) 40 Cr App R 398; [1962] 3 All ER 256.
R v Stewart  [1970] 1 All ER 689;  [1970] 1 WLR 907.
Ibrahim v R  [1914] AC 599; 111 LT 20.
Callis v Gunn  [1963] 3 All ER 677;  [1963] 3 WLR 931.
King v R [1968\3] 2 All ER 610;  [1968] 3 WLR 39.
R v Murphy  (1965) N.I. 138.

Appeal against convictions and sentences imposed by High Court of the Western Pacific sitting at Vila, New Hebrides.

K C Ramrakha for the appellant
S Lewis for the respondent

JUDGMENT OF THE COURT (read by Marsack JA) (28^th November 1973)-

This is an appeal from the High Court of the Western Pacific sitting at Vila, New Hebrides. Appellant was charged on two counts of rape, two of attempted rape, two of incest and two of attempted incest, together with two alternative charges of indecent assault. Appellant pleaded not guilty to all charges. These were heard before a Judge sitting alone. On the 30^th April 1973, the learned trial Judge entered convictions on two charges of rape, two of incest and two of indecent assault, and sentenced the appellant to eight years’ imprisonment on each conviction for rape, 7 years on each conviction for incest and two years on each conviction for indecent assault, the sentences in all cases to run concurrently. The present appeal is brought against the conviction and the sentence imposed in each case.

The offences were alleged to have taken place during the months of March and October 1972 on the island of Espiritu Santo in the New Hebrides, where the appellant was living with his wife and his daughter, Nigar Begum Khan, who was 14 years of age on the 27^th May, 1972. In this judgment the girl will be referred to as the complainant. Appellant’s wife was the girl’s stepmother, her mother being dead. The permanent domicile of the appellant and his family is in Fiji. The appellant came to New Hebrides in 1968 under contract with the British National Service for a term originally of two years; this was later extended at the request of the appellant. The medical examination of the girl on the 20^th of October, 1972 at the French Hospital, Santo, showed that she was not then a virgin and the medical certificate which was admitted in evidence set out that the loss of her virginity was not a recent event as there was no visible trace of internal injury or external violence.

The evidence adduced by the prosecution and upon which the convictions were based consisted almost entirely of:

(a) the testimony of the complainant herself; and

(b) a tape recording of a conversation between appellant and his wife, which will be referred to in more detail later in this judgment.

The grounds of appeal argued before us may be summarized as under:-

(1) that the learned trial Judge erred in law and in fact in admitting in evidence the tape recording of a conversation between the appellant and his wife.

(2) that the learned trial Judgment erred in law and in fact in admitting the evidence of the complaints made by the complainant.

(3) that in view of the inconsistencies and contradictions in the statements made by the complainant, they should have been rejected.

(4) that the sentences are harsh and excessive and wrong in principle.

In respect of the first ground of appeal it is necessary to set out in some detail the facts surrounding the taking of the tape recording.

The complainant made a full statement to the police in Santo on the 8^th December 1972. As a result of her complaint, appellant was arrested on 9^th December and charged with incest. On 11^th December he formally appeared before a Magistrate and was released on bail. Later, on 20^th December, appellant once more appeared before the Magistrate and was released on bail on the condition that he remained in Vila and did not return to Santo. Superintendent Liddle of the Police stated in evidence that he was anxious to ascertain the truth, and was further concerned to seek corroboration of the complainant’s story. He then decided to bring appellant and Mrs Khan together, and arranged to have a cassette recorder operating to make a record of their conversation. With that end in view, he asked Mrs Khan if she would like to see her husband in Vila; and when she agreed to this suggestion he arranged for her passage by air to Vila on 23^rd December. On the 22^nd December Superintendent Liddle explained to appellant that his wife would be coming the following day and offered to take him to the airport to meet his wife. Appellant was glad to accept. Before calling for appellant – who was staying at the Rest House in Vila – on the morning of the 23^rd, the Superintendent installed a cassette recorder and microphone under the front seats of the car. He then drove appellant to the airport; and while appellant was waiting for his wife, the Superintendent switched on the tape recorder. Later he took appellant and his wife back to the car. He left them there, saying that he had to pick up another mail-bag and take it back with him. On two or three occasions, he returned briefly to the car and then went away saying that he had not yet found the mail-bag. Ultimately, he came back and drove appellant and his wife back to the Rest House in Vila.

During his absence, appellant and his wife discussed the matter very frankly and their conversation was fully recorded on the machine. In the course of these conversations appellant admitted in a most forthright manner that he had had sexual relations with his daughter; and he threatened to have them again, in front of his wife, when he and the girl were once more at home.

In our opinion, the evidence of the tape recording, if admissible, establishes beyond doubt the guilt of appellant on the charges of incest, and the question of its admissibility is thus vital to appellant’s case.

Mr Ramrakha raised the preliminary point that appellant was really in custody at the time of the making of the recording and as he had not been warned in accordance with the Judge’s rules, the tape recording was inadmissible. We cannot accept this argument. Appellant was out on bail though on condition that he did not return to his home in Santo. Subject to that limitation he was free to go as he pleased, and could not in any sense be regarded as being in custody, that is to say being detained against his will.

Mr Ramrakha’s main argument on this ground was that the police had set a trap for the appellant, that by this subterfuge he was induced to talk to his wife with the assurance that his conversation would not be overheard; and that in any event, conversations between husband and wife are privileged.

Dealing first with his last point, we are satisfied that this has been settled by the authoritative decision of the House of Lords in Rumping v DPP  (1962) 46 Cr App R 398. Mr Ramrakha urges that this Court is not strictly bound by a judgment of the House of Lords; but very good reasons would have to be shown before we could disregard it, particularly when it concerned an interpretation of the English Common Law. In that case, a letter addressed by the husband to the wife was given to a third person to post, but was handed over by the third person to the police.

The letter, which contained a confession of guilt was admitted in evidence at the trial, notwithstanding the submission of counsel that it was a rule of the Common Law applying both in civil and criminal cases that all communications made between husband and wife during marriage are inadmissible in evidence. In his lengthy judgment Lord Morris of Borth-y-Gest concluded that no such rule existed and that the letter had been properly admitted. We are satisfied that there is no rule of law that would render inadmissible the evidence of the tape recording in this case merely on the ground that it was a privileged communication between husband and wife.

In his argument on the manner in which the police had obtained a recording of the conversation between appellant and his wife. Mr Ramrakha argued that the action of the police was indefensible. The element of unfairness, in counsel’s submission, was the key to the whole matter. He relied on the judgment of the Court of Appeal in R v Stewart  [1970] 1 All ER 689 at p.690 where it was said that the Court could have refused to admit certain evidence on the ground that:

“... this was obtained by a trap and the Court does not in general approve of a trap being laid for a man who is in custody.”

We have already held that the appellant was not at the material time in custody, so that the judgment in Stewart’s case does not strictly apply. At the same time there are no doubt cases in which a confession obtained by a trick on the part of the police has been ruled inadmissible as not being a free and voluntary confession within the principles laid down in Ibrahim v R  [1914] AC 599. In Callis v Gunn  [1963] 3 All ER 677 at p.681 Lord Parker, CJ, referring to the discretion held by the trial Judge as to the admission of evidence, said:

“This discretion would certainly be exercised in excluding the evidence if there was any suggestion of its having been obtained oppressively, by false representations, by a trick, by threats, by bribes, or anything of that sort.”

In King v R [1958] 2 All ER 60 the Privy Council gives consideration to this extract from the Judgment of Lord Parker, CJ. In his judgment Lord Hodson quotes with approval a passage from the judgment of the Courts-Martial Appeal Court in R v Murphy  (1965) N.I 138, at p. 617-

“We do not read this passage as doing more than listing a variety of classes of oppressive conduct which would justify exclusion. It certainly gives no ground for saying that any evidence obtained by any false representation or trick, is to be regarded as oppressive and left out of consideration. Detection by deception is a form of police procedure to be directed and used sparingly and with circumspection; but as a method it is as old as the constable in plain clothes and regrettable though the fact may be, the day has not yet come when it would be safe to say that law and order could always be enforced and the public safety protected without occasional resort to it.”

In Murphy’s case it certainly could be said that the police had used a trick and set a trap for the appellant, by posing as members of the subversive organization with which the authority suspected the appellant to have sympathies, and asking questions and eliciting replies on the subject of the charge. The Courts-Martial Appeal Court admitted the evidence, and their Lordships of the Privy Council in King v R expressly agreed with that judgment.

Those cases, in which the evidence was held admissible, go a lot further in our view than the present case. There the trick or the trap was intended to induce the suspect actually to make some statement which would incriminate him. In the present case, all that could be said is that the appellant was given an opportunity to talk to his wife as he wished. Thee was no pressure put on him to do so. He might have decided not to discuss the matter with his wife until he arrived in the seclusion of his room at the Rest House in Vila. The actual confession itself was not obtained by a trick, though it could be held that the record of it was so obtained.

Upon full consideration of all the authorities which were cited to us, we have come firmly to the conclusion that the evidence of the tape recording was properly admitted, and that the learned trial Judge had correctly exercised his discretion in that regard.

With reference to the second ground, it is well established that the evidence of complaints made by the victim of alleged sexual assault, if made at the first opportunity and to a person in authority, are admissible in evidence, not as corroboration of the girl’s story, but for the purpose of showing consistency in her evidence. The evidence of complaints made by the girl in the present case to her stepmother or to Constable Biu, could properly be regarded as made at first opportunity and to persons in authority, and would therefore be admissible.

In his argument on the third ground, Mr Ramrakha drew our attention to several inconsistencies and in fact contradictions in the statements made by the complainant on different occasions. These discrepancies were referred to in great detail in his final address at the trial, and were carefully considered by the learned trial Judge in his judgment. He there drew attention to the evidence of A.S.P. Short to the effect that when she gave her first statement:

“the complainant had been in a very distressed condition: she had seemed tired and timid and at first reluctant to speak. He said initially she had been slow in speaking, had had apparent difficulty recollecting the facts and on one occasion had said she was shy of recounting what had happened.”

Later, the Judge points out that the statement was made on the 8^th December 1972, following the complainant’s flight from her father’s house late the previous night, her interview with the District Agent, and an encounter with her father who told her to say nothing; and then a further medical examination. In the Judge’s opinion all these must have been exhausting and upsetting for a girl of fourteen.

Later in his judgment the learned trial Judge says:-

“The complainant was most closely cross-examined as to the details of these two assaults and as to where they occurred. Apart from retracting her previous evidence in chief that the accused had had complete intercourse with her, the complainant maintained that the accused had on two occasion sexually assaulted her. She was not shaken in her account of where these assaults had occurred and no evidence was called to refute her answers.”

It is thus clear from the Record that the learned trial Judge gave full consideration to the discrepancies and inconsistencies and the different statements made by the complainant. After this full consideration he goes on to say in his judgment:-

“I believe the complainant’s evidence that she was twice sexually assaulted by the accused in Fiji in December 1970 or early 1971 and I am satisfied that her recollection of these events has got confused in the passage of nearly two years since these occurrences. I have, however, borne in mind this initial divergency in her evidence in considering the rest of her evidence on the charge preferred against the accused in this case. I am quite satisfied that the complainant is telling the truth.”

In these circumstances we do not think that we can say that the learned trial Judge was wrong in admitting the evidence and in concluding that the complainant was a truthful witness. He refers in his judgment to some outside evidence which could be corroborative of part of her story. But the most convincing corroboration of her complaint that her father had had sexual intercourse with her comes from the statement made by appellant to his wife in the police car, the recording which we have ruled to be admissible.

In the result we find that the charges of incest against the appellant were fully proved and his appeal against convictions for that offence must be dismissed.

We turn now to consider the two convictions for rape, alleged to have taken place in March 1972 (Count 1) and on October 23^rd, 1972 (Count 3).

With regard to Count 1 the finding of the learned trial Judge was in these words:-