Natei v Regina [2013] SBCA 14; SICA CRAC 01 of 2013 (8 November 2013)

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NATURE OF JURISDICTION:	Appeal from Judgment of the High Court of Solomon Islands ( Pallaras J)
COURT FILE NUMBER:	Criminal Appeal Case No.1 of 2013 (On Appeal from High Court Criminal Case No.194 of 2012)
DATE OF HEARING:	29 OCTOBER 2013
DATE OF JUDGMENT:	8 NOVEMBER 2013
THE COURT:	Justice Glen Williams JA, P(Ag) , Sir Gordon Ward JA , Sir John Hansen JA
PARTIES:	Augustine Natei -V - Regina
Advocates: Appellants: Respondent:	T Walenenia and Blundell R Iomea and A Driu
EX TEMPORE/RESERVED:	RESERVED
ALLOWED/DISMISSED	DISMISSED
PAGES	1-10

[1] The appellant was charged with one offence of buggery, contrary to section 160(a) of the Penal Code. He pleaded not guilty, was convicted on 30 November 2012 and was sentenced to seven years imprisonment. He appeals against conviction and seeks leave also to appeal against the sentence and to do so out of time. The Court has given leave.

[2] The victim was an eight year old girl and is the appellant’s niece. In brief summary, the Crown case was that the victim had gone, at her mother’s request, to the appellant’s house to invite his wife to join some ladies in a card game. The appellant asked his niece to help him carry some coconuts and then, as the girl was leaving, called her to help with his weeding. He took her to an area near a cassava patch where he sat on the ground with the victim and told her to hold his penis. She refused and he bent her over and inserted his penis in her anus and either inserted a sharpened cassava stem or rubbed it on her anus. The girl started to cry and returned to her home.

[3] She did not tell her mother because, she said, the other ladies were present. However, some weeks later (and all references to times in the evidence were uncertain) she was having trouble using the lavatory. She told her mother who helped her and noticed blood in her stools. The girl was examined by a doctor on 23 January 2013, some considerable time after the alleged incident, and he found no signs of damage or scarring to her anus.

[4] Evidence of the victim’s complaint from the mother was not admitted by the trial judge as having been delayed too much to be admissible as recent complaint. The judge was, therefore, determining a case, which, in his words, was essentially word against word and where there was no corroboration of the allegations.

[5] By an amended notice, the appellant appeals against conviction on four grounds:

3. His Lordship erred in failing properly to scrutinise the evidence of the complainant in circumstances where there was no corroboration.

4. His Lordship intervened in the conduct of the trial to such an extent as to cause a reasonable apprehension of bias.

Appeal against sentence is on the single ground that it is manifestly excessive.

[6] Grounds two and three may be considered together as both suggest the learned judge erred in treating the complainant as reliable. A number of aspects of the evidence given by the complainant were suggested by counsel for the appellant to support that contention. Ground three deals, in essence, with a further specific reason to suggest that he had erred in his acceptance of her testimony, namely the absence of corroborative evidence.

[7] By the time of the trial, the victim was 10 years old and the record shows a considerable degree of confusion in her understanding of the questions she was being asked. The result was that, on more than one occasion, she contradicted an earlier answer. In some of those cases, the judge intervened in order to clarify with the witness, which was her correct answer. Ms Walenenea for the appellant suggested that many of the victim's answers demonstrated little more than the willingness of a young girl to accept matters put to her by an adult so that many of the answers amounted to no more than gratuitous concurrence with the questioner’s suggestion and should not, for that reason, be accepted as credible.

[8] This suggestion was particularly applied to the questions asked by the learned judge in order to establish the young girl’s competence to give evidence under section 30 of the Evidence Act, 2009. The initial questions by the judge were:

Do you know what it means to tell the truth? What does it mean to tell the truth?

Thank you. You know that it is very important in a courtroom like this one that people tell the truth.

[9] Counsel for the appellant submits that those questions and answers failed to establish with any clarity that the girl understood what constitutes lies and truth and their importance in a court of law. In consequence, the questions asked by the judge did not establish her competence on the balance of probabilities as required by section 30. In addition Ms Walenenea challenged the right of the judge to examine the witness in respect of her competence. She relies on subsection (2):

“(2) Once a court accepts that the issue of competence is properly raised, it is for the party calling the witness to satisfy the court that, on the balance of probabilities, the witness is competent to give evidence in the proceedings."

“(4) Any questioning of the witness in relation to competency shall be conducted by the court in the presence of the parties.

(5) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by information from a person who has relevant specialised knowledge based on the person's training study or experience."

[11] It has long been the practice in this jurisdiction for the judge to examine young witnesses to establish their competency and understanding of the obligations of giving evidence. We share counsel's difficulty in understanding the significance of subsection (2) but we suggest that its inclusion is to emphasise the responsibility of the party to ensure the competence of any witnesses it intends to call.

[12] We are satisfied that the judges questioning of this girl as to her competence was properly conducted and was sufficient to satisfy him of that question. Although subsection (2) requires proof of competence only on the balance of probabilities, the final decision of the court will still require the witness’s evidence to be evaluated by the court to the criminal standard.

[13] Counsel for the appellant directed our attention to a number of discrepancies in the complainant's account. It was submitted that they separately and cumulatively cast considerable doubt on the honesty and the reliability of her evidence. Both counsel and the judge referred to some of these discrepancies during the trial and the judge himself acknowledged their importance to his final decision.

[14] One of the most significant parts of her evidence, which was referred to a number of times in examination in chief and cross examination, was the actual sequence of events namely, whether the cassava stick or the appellant's penis was first inserted into or rubbed on this girl’s anus. During her cross examination and shortly before the court adjourned at the end of the first day, she was questioned on this issue and on the related question of whether she had ever seen her assailant’s penis in order to know which was being used.

[15] After the witness had left the court, the judge asked counsel for the prosecution; “Mr Aulanga, I'm right am I not that the young girl is the only witness as to the facts of the offence?” Having had that confirmed, he continued:

“I think you can probably see where I am coming from, at the moment, it is very difficult to ascertain, from a witness who is so young, a reliable or consistent account. This is not the time for me to make any judgment but I just let you know so that you might address the issue of reliability – not honesty but reliability - of a witness as young as this young girl is, in a case that is so impolite [sic]. So when the time comes at the end of your case, I would be assisted by submissions relating to the reliability - as I say not honesty but reliability – of a witness. Do you understand?"

[16] Clearly the judge was alive to the significance of these inconsistencies and the need to analyse them very carefully. It is not necessary for the judgment to mention every aspect of a witness’s evidence and state whether he has or has not believed it. However, the passage just quoted plainly demonstrates that he was conscious of the fact that his decision on the credibility of this young girl was likely to determine the whole case. When summarising her evidence, he dealt in some detail with the inconsistencies and also with differences between her oral testimony and a statement she had previously made to the police which were put to her by counsel for the appellant. The transcript shows that, even though she was asked about these differences, the statement itself was never exhibited and therefore had limited evidential value and the judge warned himself that:

“Without that evidence, when comparing the language used by such a very young child, there is a danger of finding distinctions without real or significant differences - at least not such as would necessarily impact on her honesty and credibility.

The issue of the reliability is of course another question. I raised with counsel more than once how such differences as were said to exist in the complainant's evidence and what was said to be in, or missing from, her statement, might affect her evidence. It may be that even if I find the complainant to be totally honest with us, that a degree of naivety in sexual matters and the manner in which she gave her evidence, might result in my rejection of evidence as coming from a witness upon whom it would be too dangerous to rely.”

[17] Having analysed the evidence of the defendant and of his wife whom the defendant had also called and concluding that they were not witnesses of truth, the judge returned to the issue of the discrepancies in the complainant's evidence. He specifically considered those relating to the order of events and her conviction that his penis had penetrated her anus. He concluded:

"Notwithstanding the discrepancies in the evidence of the complainant referred to in this judgement, I find that she has told the truth. I also find that such discrepancies as do exist are insufficient for me to have a reasonable doubt about her truthfulness or her reliability. Or, to put it another way, I find that the Crown have discharged the onus of satisfying me beyond reasonable doubt that the evidence led from the only prosecution witness who testified as to the offence itself, was honest, credible and reliable. I find the evidence of the accused and his witness to be untruthful, rehearsed and conveniently contrived. I reject the defence evidence."

[18] The proper approach for an appellate court went reviewing the trial judge's findings of fact has been repeated many times. As was explained by this Court in Keke v R [2006] SBCA 1:

“ It has been stated many times that an appellate court will only interfere with the trial judge's assessment of the credibility and weight of the witnesses at the trial if they are clearly wrong or cannot be supported on the evidence as a whole. The reason is plain. The judge in the lower court had the benefit of having seen the witnesses and is in a much better position to evaluate their evidence that the appellate judges who can only rely on the written record of the evidence."

[19] This principle has long been recognised by appellate courts in other jurisdictions. In the case of SS Hontestroom (Owners) v SS Sagaporack (Owners) [1927] AC 37, 47, Lord Sumner referred to the disadvantage experienced by appellate judges as against the trial judge who has heard the witnesses and pointed out that:

“... unless it can be shown that [the trial judge] has failed to use or has palpably misused his advantage, the higher courts ought not to take the responsibility of reversing conclusions so arrived at, merely on the result of their own comparisons and criticisms of the witnesses and of their own view of the probabilities of the case."

[20] The advantage enjoyed by the trial judge was further explained in Galea v Galea [1990] 19 NSWLR 263,266:

"The trial judge has advantages which simply cannot be provided to an appellate court under present arrangements. He or she is aware of interruptions, hesitations and delays in the giving of testimony, which will generally be quite unknown to the appellate court. The judge at the trial will be able to observe the body language of the witnesses that can sometimes be important to interpreting communication. This is usually unrecorded in the cold page of an appeal book. These and other reasons have lead to the conventional theory, accepted by the courts of [Australia] and of England, the trial judge has marked advantages in the assessment of the credibility of witnesses which an appellate court, prisoner of the transcript, can rarely match."

[21] The duty of this Court is to review the facts proved at the trial and the conclusions, findings and reasons derived by the judge from those facts.

[22] We have examined the various discrepancies and inconsistencies referred to by the appellant and are satisfied that the trial judge had them in mind when giving his judgment. He warned himself correctly as to the significance of the complainant's evidence. His conclusions are clearly supported by the evidence and were made with a clear awareness that the decision depended effectively on her evidence alone. On that foundation and analysis he found the complainant honest and reliable. We do not find any reason to interfere with that decision.

[23] The third ground deals with one particular aspect of the judge’s decision which was stated in the following passage:

“In a case of this nature I have to be satisfied beyond reasonable doubt first, that the offence of buggery as alleged has been committed and second that it was the accused who committed it. Next, I have to be particularly slow to convict in a case, which is essentially word against word and where there is no corroboration of the allegations. I do not suggest that there is any legal requirement for corroboration to be present before a conviction can be entered, however cases are often strengthened by being corroborated by evidence coming from a source other than the complainant."

[24] Counsel for the appellant acknowledges that the judge is not referring to the previous legal requirement of corroboration in such cases. However, the word ‘corroboration’ continues to import a element of legal obligation. In this jurisdiction that requirement was removed by the Evidence Act, 2009. Notwithstanding, any judge will always look for evidence from some other credible and independent source which supports the complainant’s account. That becomes more important in a case such as this, where the whole case depends on the evidence of one witness – the more so where that witness is also the victim or otherwise personally involved.

[25] The appellant's submission is that the absence of any supporting evidence makes it essential that the judge should scrutinise the evidence especially carefully and that the judge in the present case failed properly to consider the girl’s evidence in that manner.

[26] In the passage set out above, the judge is sensibly and properly reminding himself, of the clear need for such care. It was an apt warning. What he is clearly stating is that he is conscious of the lack of any evidence from any other source, which confirms or supports the complainant’s account. We have already reached the conclusion in respect to ground 2 that he did properly and carefully evaluate the victim’s evidence and we repeat that we are satisfied that he clearly and thoroughly examined the victim’s account and accepted it. We find no merit in ground 2 and 3.

[27] The fourth ground refers to the number and nature of the judge’s interventions in the trial and their effect. The appellant complains that those interventions, by their nature and frequency, were such that they caused a reasonable apprehension of bias. It is a serious suggestion and one to which we have given anxious consideration.

[28] It is easy to appreciate the reasons for the complaint. The transcript records frequent interruptions of counsel’s examination of the witnesses and a tendency more than once effectively to take over the examination for a short while.

[29] Any judge is entitled to ask questions of a witness. In any trial it will almost inevitably be necessary occasionally to clarify an answer from a witness. It may be necessary to ask a series of questions. Any fair-minded observer will see the reason for such questions and will accept that they are asked to assist the judge in understanding the case properly and conducting a fair trial.

[30] However, should the interventions become too frequent or appear to be taking over counsel's role they may be interpreted by the parties or an observer as demonstrating partiality by the judge. Every judge knows that counsel is acting under his lay client’s instructions and must put the case according to those instructions and frequent interruptions may lead counsel and possibly also his client to feel that the judge does not agree with counsel’s conduct of the case or may disturb his train of thought sufficiently to hinder the manner in which he conducts his case.

[31] This issue was considered and guidelines suggested in the Galea case at 281 which include:

“The test to be applied in is whether the excessive judicial questioning or pejorative comments have created a real danger that the trial was unfair. If so the judgement must be set aside. ...

Where a complaint is made of excessive questioning or inappropriate comment, the appellate court must consider whether such interventions indicate that a fair trial has been denied to a litigant because the judge has closed his or her mind to further persuasion, moved into counsel’s shoes and into the perils of self persuasion. The decision on whether the point of unfairness and been reached must be made in the context of the whole trial and in the light of the number, length, terms and circumstances of the interventions. It is important to draw distinction between intervention which suggests that an opinion has been finally reached which could not be altered by further evidence or argument and one which is provisional, put forward to test the evidence and to invite further persuasion.

[T]he judge does not know what is in counsel's brief and the strength of cross examination may be destroyed if a judge, in a desire to get to what seems crucial, at any stage prematurely intervenes by putting questions.”

[32] The appellant, relying on those guidelines, submits that the judge’s conduct was such as to create a real apprehension of bias. He had closed his mind to further persuasion, moved into counsel’s shoes and into the perils of self persuasion to the extent that it caused a real danger of an unfair trial. The submissions go further and suggest that many of his actions clearly favoured the prosecution and hindered the defence.

[33] Counsel points out that the trial judge asked a total of 124 questions during the evidence of the complainant and 53 during that of her mother. Clearly simply stating numbers may easily give a false impression but we accept the transcript reveals very frequent interventions by the judge either by questions to the witnesses or to counsel.

[34] The judge’s right to ask questions has being repeated in numerous cases. In Cain v R [1936] Crim App R 204 the court stated:

“There is no reason why the judge should not from time to time interpose such questions as seem to him fair and proper.”

[35] However, a judge should exercise this right with care and bear in mind the words of caution in R v Esposito [1998] 45 NSWLR 442,472:

“The line that a trial judge walks when asking questions of the witness is a narrow one. There is nothing wrong with questions designed to clear up answers that may have been equivocal or uncertain, or, within reason, to identify matters that may be of concern to himself. However, once the judge resorts to extensive questioning, particularly of the kind that amounts to cross examination in a criminal trial before a jury, then he is treading on thin ice. The thinness of the ice will depend upon the identity of the witness being examined and whether the questions appear to be directed towards elucidating an area of evidence that has been overlooked or left in an uncertain or equivocal state, or directed towards establishing a point that is favourable or adverse to the interests of one or other of the parties."

[36] We have read the transcript and considered all the matters raised by the appellant. We do not set them out but consider that the manner and frequency with which the trial judge intervened was unfortunate. We accept that when young children are in the witness box the judge may often have to take over some of the examination. He may need to intervene to explain matters to the child, to ensure that the meaning the child wishes to express is accurately understood by the court and generally do all he can properly do to make the child comfortable whilst being examined by counsel. Our examination of the record suggests the judge’s interventions during the child’s evidence went beyond such considerations. We also note his interventions were frequent at other stages of the trial and were equally unfortunate.

[37] The question we have to ask ourselves is whether the overall effect was to cause a real possibility that the court was biased. This Court considered the questioned bias in Pitakaka and Hence v R [2007] SBCA 16:

"In the case of Talasasa v Paia and Anor [1980-1] SILR93, Daly CJ adopted the test suggested by Lord Denning in Metropolitan Properties v Lennon [1968] EWCA Civ 5; [1968] 3 AllER 304, that the court must look at the impression which will be given to other people. If a right minded person would think that, in the circumstances there was a real likelihood of bias the judge should not sit. It is also important to remember that, in Solomon Islands, the judge is the judge of fact as well as law. Any bias is more serious than in jurisdictions where there is a jury to determine matters of fact.

The test in Australia has long been a reasonable apprehension or suspicion of bias; Webb v The Queen [1994]CLR 181, but the New Zealand Court of Appeal suggested that there was effectively no difference between asking whether a reasonable and informed person would consider there was a real likelihood of bias and asking whether the same person would reasonably apprehend or suspect bias; Auckland Casino Limited v Casino Control Authority [1995] 1 NZLR 142.

A similar approach has now been adopted in England where it was suggested that the tests in the Commonwealth and England were effectively the same. The court set out the test:

‘The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the court was biased.’; In Re Medicaments and Related Classes of Goods (No 2) [2000] EWCA Civ 350; [2001] 1 WLR 700.”

[38] We should add that the conduct of the judge in that case was more serious than that of the judge in the present case.

[39] As we have stated, this ground of appeal has caused us some anxiety and we accept the appellant’s contention that it was unfortunate. However we are satisfied that it fell far short of the type of conduct which would lead an informed observer to conclude there was a real possibility of bias.

Ground 1
[40] The first ground of appeal was that the verdict is unsafe and unsatisfactory. Section 23(1) of the Court of Appeal Act defines the basis upon which an appeal against conviction may be considered unsafe or unsatisfactory. It requires the Court to set aside a conviction it considers unreasonable or which cannot be supported having regard to the evidence or where the decision was wrong on any question of law or that on any ground there was a miscarriage of justice. We do not consider that any aspect of this case can be described in the terms of that section and the appeal against conviction is dismissed.

[41] The appellant was sentenced to seven years imprisonment and the sole ground of appeal is that it was manifestly excessive. The appellant submits that the judge failed to consider the circumstances of the case with reference to existing sentencing precedents, the maximum sentence applicable and the personal circumstances of the appellant. It is submitted that the result was an arbitrary and excessive sentence. Counsel added that, as offences of buggery are not common in this jurisdiction, the need for the sentence to be a deterrent to others is reduced.

[42] We do not consider that the sentencing judge failed to take these matters into account. On the contrary, in a detailed sentencing judgment, he acknowledged the hardship a sentence of imprisonment would impose on the appellant’s family, his age and previous good character and the apparent lack of preplanning. There was no suggestion that he considered that the appellant would commit any further offence of this nature. The judge, however, pointed out that circumstances personal to the offender have less effect on the sentence in sexual cases than in most other serious crimes; R v Ligiau and Dori [1986] SBHC 15.

[43] On the other hand, he found substantial aggravating features. The very young age of the child and the substantial disparity between that and the appellant’s age, his family relationship to the child and the breach of trust and, whilst not suggesting the knife was used as a weapon, the judge found that its use to sharpen the cassava stick must also have caused enormous stress and fear in such a young child. The offence was further aggravated by his attempt falsely to accuse the child's mother of maliciously and falsely fabricating the allegation and to involve his wife in giving false evidence at the trial. In a case involving a single incident such as this, genuine remorse can be a powerful mitigating factor. The appellant’s conduct in the trial showed a total lack of any such feeling.

"When the facts of this case are analysed it becomes apparent that your offence is characterised by aggression, force, intimidation, bullying and fear.... No right-thinking person and particularly no parent can begin to comprehend how you could treat a child with such cruelty and contempt."

[45] The role of an appellate court when considering sentence was stated by this Court in the case of Kaimanisi v R [1996] SBCA 2:

“The principles governing the appellate court’s jurisdiction to review sentence imposed by a trial judge are well settled in this jurisdiction: see Saukoroa v R [1983] SILR 275 and Berekame v DPP [1985-6] SILR 272. The appellate court will not interfere with the sentence imposed by the trial judge in the exercise of his discretion unless it is shown to be manifestly excessive or manifestly inadequate either because the judge has acted on a wrong principle or has clearly overlooked or understated or overstated or misunderstood some salient feature of the evidence. The question therefore is not whether the court would have imposed a different sentence to the one given but rather whether there was an error in the exercise of the sentencing discretion of the court below.”

[46] The maximum sentence for the offence of buggery is 14 years imprisonment - less than the maximum of life imprisonment for rape or defilement. It is hard to envisage why there is such a difference but the court must determine the appropriate sentence within that range. Whilst the learned judge clearly accepted that, apart from the offence itself, there was no additional or gratuitous violence, the matters to which he referred as aggravating the offence place this case well up the scale of seriousness.

[47] The relative rarity of cases of this nature makes any comparison with earlier sentences of only limited value. Similarly, as the judge clearly recognised, there can be little value in first determining a starting point. The sentencing judge must consider what, in his opinion on the facts of the particular case, is an appropriate position in the scale of up to 14 years imprisonment.

[48] Clearly the aggravating factors correctly enumerated by the judge led him to place the sentence in the middle of the range. We consider that the commission of offences of this nature against such a young child should, in itself and without any other aggravating features, place it in the middle of the range of sentence. The court should then pass on to consideration of the other factors of aggravation and mitigation. We bear in mind, however, the comments in Kaimanisi’s case. Whilst we consider the sentence could have been higher, we see no error in the manner in which the trial judge approached his determination of the appropriate level of sentence and do not consider it should be changed.

Court of Appeal of Solomon Islands

Natei v Regina [2013] SBCA 14; SICA CRAC 01 of 2013 (8 November 2013)