Court of Appeal of Fiji

01^st and 02^nd grounds of appeal

[9] The background to the appellant’s complaint under the first and second grounds of appeal could be found in paragraphs 23-25 of the judgment and paragraph 39 and 101 of the summing-up. Paragraphs 23-25 of the judgment are given below.

23. Defense Counsel repeatedly cross examined the Complainant, surprisingly without any objection from the Prosecution, on the basis that she went a further step forward and kissed Amani and had sexual intercourse with him. Complainant having accepted that she slept with Amani denied that she had sexual intercourse with him. She displayed her honesty by admitting that she slept with Amani. She had every right to deny that she had sex with Amani. She is not bound to answer in public about her past sexual relationships with people other than the accused in this case. It would have been better if the State Counsel, in the interest of justice, watched not only the interest of the State but also that of the Complainant before it is too late.
    
24. Amani was called by the Defence, again without any objection, to prove that the Complainant not only slept with him but also had sexual intercourse with her. Court had to intervene to stop Amani from exposing his sexual experience with the Complainant any further as it had nothing to do with the issue at hand in this case.
    
25. Contention of the Defence Counsel that Complainant’s past sexual experience with Amani is relevant to the issue at hand and his application to further question Amani on that basis were refused by this Court in the interest of justice. Even for the purpose of impeaching the credibility of the Complainant, her previous sexual experience with a third person is immaterial in this case as she was entitled in law to suppress her previous sexual experience with others in court whether it predates or postdates the charge.
    

[10] From paragraph 23 it appears that the defence counsel had in deed cross-examined the complainant repeatedly on her having slept with Amani the day after the incident of rape and suggested that she had kissed and had sexual intercourse with him too. The learned trial judge claims to have intervened when Amani as a defence witness was examined on the same. However, the extent to which Amani had already given evidence when the trial judge stopped him cannot be ascertained without the full appeal record though there is some indication in paragraph 28 of the judgment that Amani had said in evidence that he had indulged in sexual intercourse with the complainant. Therefore, the appellant’s real complaint appears to be on the learned trial judge’s intervention when Amani gave evidence.

[11] The State argues that section 130 of the Criminal Procedure Code prohibits any evidence of past sexual experience history without leave of court and the trial judge’s refusal to grant such leave is justified [see section 130(2)]. The trial judge had refused leave to further question Amani as ‘it had nothing to with the issue at hand’ and seems to have thought that therefore it was not in the interests of justice either to permit Amani to come out with his alleged sexual experience with the complainant [see section 130(3)]. The trial judge had been of the view that even to impeach the credibility of the complainant Amani’s evidence was not material.

[12] On an analysis of section 130, it appears that the court’s discretion to allow (or to grant leave) evidence or put questions to a witness relevant directly or indirectly to the sexual experience of the complainant with a third party other than the accused or the reputation of the complainant under section 130(2), is governed by considerations set out in section 130(3) read with section 130(4) of the Criminal Procedure Code. Therefore, evidence even as to the general disposition or propensity of the complainant in sexual matters would not be considered as being directly relevant and allowed unless such evidence is of direct relevance to the facts in issue or the issue of appropriate sentence and exclusion of it would be contrary to the interests of justice [vide sections 130(3) read with section 130(4)]. However, in terms of section 130(5)(a) leave under section 130(2) is not required inter alia for the purpose of giving evidence or putting questions for the purpose contradicting or rebutting the evidence given by a witness relevant directly or indirectly to the sexual experience of the complainant with any other person other than the accused (third party) or the reputation of the complainant in sexual matters. Section 150(5) appears to contemplate a situation after leave is granted where evidence is led or questions are put under section 130(2) [read with sections 130(3) and 130(4)] of past sexual history of the complainant.

[13] As far as the appellant is concerned (as opposed to his co-accused) he had taken up the defense of consensual sexual intercourse with the complainant which is of direct relevance to a fact in issue namely whether the appellant had sexual intercourse with the complainant with her consent. The learned trial judge does not seem to have given his mind to differentiate the appellant’s position from the rest of the appellants in disallowing such evidence to be elicited from Amani. The difficulty the trial judge may have faced, perhaps, was that the appellant’s counsel defended two other accused whose defense had been a total denial (one of them even took an alibi defense) and they had no right to lead evidence of past sexual history of the complainant in terms of section 130 of the Criminal Procedure Act.

[14] However, whether the trial judge under section 130 of the Criminal Procedure Act had correctly disallowed the evidence of Amani of the complainant having allegedly slept and had engaged in sexual intercourse with him the day after the incident of multiple acts of rape committed by the appellant and his co-accused, in the light of the appellant’s defense of consensual sex, could be considered more a question of law mixed with facts.

[15] Another matter that could also be considered as a question of law is whether Amani’s evidence could be regarded as past sexual history of the complainant as referred to in the title to section 130 and whether the prohibition under section 130 extends even to evidence on the sexual experience of the complainant with any other person other than the accused or the reputation of the complainant in sexual matters after the commission of the offence in the information.

[16] In paragraph 25 of the judgment the learned trial judge had expressed his view on the second matter above as follows

‘Contention of the Defence Counsel that Complainant’s past sexual experience with Amani is relevant to the issue at hand and his application to further question Amani on that basis were refused by this Court in the interest of justice. Even for the purpose of impeaching the credibility of the Complainant, her previous sexual experience with a third person is immaterial in this case as she was entitled in law to suppress her previous sexual experience with others in court whether it predates or postdates the charge.

[17] Therefore, although I cannot say at this stage that there is a reasonable prospect of the first two grounds of appeal succeeding in appeal, as a matter of formality I am inclined to grant leave on the above questions of law (though leave is not required for a pure question of law) so that the full court could clarify the legal position on both issues of law.

03^rd ground of appeal

[18] The appellant’s complaint is that the learned trial judge had failed to scrutinize and/or analyzed in detail the inconsistencies in the evidence of the complainant and other prosecution witnesses. The trial judge had summarized the issue of inconsistency of the complainant’s evidence from paragraphs 14-17 of the judgment.

14. ‘Defence Counsel contended that Complainant’ sown previous statements are contradictory to her evidence and, in view of those contradictions, her evidence should be rejected. Their main focus was on the so called contradiction in her previous statement to police, and also to the doctor, where she is alleged to have stated that she was raped by seven people. In Court, she denied having stated to police that she was raped by seven people.
    
15. Director of Public Prosecution has filed the information only against five people. His Counsel says that police had made a mistake in recording her statement.
16. Complainant had mentioned Epi’s name to police but his name is recorded as ‘Levi’. Another name ‘Osea’ that appears in her statement to police was never transpired at the trial. She stated that names of Manu and Suka were mentioned to police as they also participated in the grog session and not as the ones who raped her. Meciu confirmed that Suka was also arrested by police at his house along with him. But Suka was not charged. Therefore, possibility of making mistakes in recording the police statement cannot be ruled out. What is important here is that she had mentioned the names of the accused to police soon after the incident.
    
17. The conditions under which Complainant may have given her previous statements to police and to the doctor are quite understandable. I do not consider those contradictions material so as to affect the credibility of her evidence.
    

[19] The judgment of a trial judge cannot not be considered in isolation without necessarily looking at the summing-up because in terms of section 237(5) of the Criminal Procedure Act, 2009 the summing-up and the decision of the court made in writing under section 237(3), should collectively be referred to as the judgment of court (vide Lilo v State [2020] FJCA 51; AAU141.2016 (13 May 2020), Ferei v State [2020] FJCA 77; AAU073.2019 (11 June 2020), Valevesi v State AAU 039/2016 (22 June 2020), Lasarusa Tikoigiladi v State AAU 138 of 2016 (23 June 2020), Ravulowa v State [2020] FJCA 93; AAU0090.2018 (1 July 2020)] and Prasad & 03 others v State AAU 125.2016 (10 July 2020).

[20] On a perusal of the summing-up, I find that the trial judge had directed the assessors on how the complainant had responded under cross-examination in paragraphs 36-48 and specifically asked them to consider the issue of inconsistency in paragraphs 115 and 116 and directed himself accordingly. He had also drawn their attention to the evidence of PW3 (Tomu Senidave) and PW4 (Saula Madraiyawa). I also find references in the summing-up to most matters of alleged inconsistencies, if not all, highlighted in the appellant’s written submission and therefore they are part of the judgment too.

[21] In Nadim v State [2015] FJCA 130; AAU0080.2011 (2 October 2015) the Court of Appeal commented on inconsistencies as follows

‘The broad guideline is that discrepancies which do not go to the root of the matter and shake the basic version of the witnesses cannot be annexed with undue importance (see Bharwada Bhoginbhai Hirjibhai v State of Gujarat ef="http://www.paclii.olii.org/cgi-bin/LawCite?cit=%5b1983%5d%20AIR%20753" title="View LawCecord">[1983] AIR 753, 1983 SCR (3) 280).

[22] In the circumstances,nces, the appellant has not demonstrated that he has a reasonable prospect of success in this ground of appeal.

04^th ground of appeal

[23] The appellant’s argument is basically about the delay in reporting the incident of sexual abuse despite the complainant having had early opportunities to do so. This aspect had not escaped the attention of the learned trial judge. In paragraphs 9-13 under the heading ‘Recent compliant Evidence’ he had dealt with it in the judgment as follows.

9. Complainant had not complained to police soon after the incident. Defence Counsel argued that she did not take two opportunities to report the alleged incident because she was never raped. I am unable to accept that contention.
   
10. Complainant in fact complained at the earliest opportunity to the lady (Lice) who invited her to have grog at her house on the 23^rd of January, 2013. It was that lady who relayed the incident to Saula, the Deputy Chief of the village, on the 24^th. Saula in turn informed the incident to the Rakiraki Police Statn the presence of the Complainant. Complainant herself at t at the same time reported the matter to Police over the phone. When she was asked why she failed to make a prompt complaint to police, she said that there was no transport, and no mobile phones. Police officers confirmed that there was no motorable road up to Maciu’s house situated at the interior part of Nakorovu village. Complainant was taken to the Rakiraki Hospital on the same day where she informed the doctor Alma that she was raped. Her statement was recorded by the Police on the 25^th Jan 2013.
    
11. Both Saula and Dr. Alma gave evidence and confirmed that they received the rnt information from the Come Complainant. Both of them are independent witnesses. After this incident was reported to police Saula was under pressure to resign from his Deputy Village Headman post at a meeting called by the accused’s family in which Seru Digo, the Village Headman, also participated.
    
12. Complainant was a total outsider to Nacara Settlement in that night. She had visited her aunt, Losena who is the mother of the 3^rd accused for the first tJoka Jokaveti is Losena’s sister. Defence Counsel’s contention that she could have complained to Jokavaeti soon after the incident is not tenable. Complainant said that she was scao go out in the dark. Some Some of the accused were still inside the house. Reaching Jokaveti’s house to complain, crossing a river in the night, after an invasion on her body and soul, seemed nearly impossible.
    
13. Even if she had an opportunity to complain, it would be wrong to assume that every person who has been the victim of a sexual assault will report it as soon as possible. The experience of the Courts is that victims of sexual offences can react to the trauma in different ways. Some, in distress or anger, may complain to the first person they see. Others would react with shame, or fear or shock or confusion, do not complain or go to Police or any other authority for some time. It takes a while for self-confidence to re-assert itself.’

[24] In addition, the learned trial judge had addressed the assessors and himself on the aspect of alleged delay in paragraphs 112-114 of the summing-up. Therefore, it looks to me that the reasoning of the learned trial judge, that there had not been a delay as such in that the complainant had complained at the first suitable opportunity available within a reasonable time and in any event she had explained why she had to wait till 24 January to make the complaint, cannot be faulted.

[25] Therefore, there is substantial compliance with State v &#160levu  [2018] FJCA 163; AAU141 (4 4 (4 October 2018) guidelines on how to deal with an allegedly delayed complaint.

‘[24] In law the test to be applied on the issue of the delay in making a cint icribed as &#82>“th20;the totality of circumstances test”. In the case in the United States, in Tuy#1rd&186, 186, N.W. 2d at 548 it was decided that:-

‘The mere lapse of time occurring after the inand tme of the complaint is not the test of the admissibility of evidence. The rule rele requirequires that the complaint should be made within a reasonable time. The surrounding circumstances should be taken into consideration in determining what would be a reasonable time in any particular case. By applying the totality of circumstances test, what should be examined is whether the complaint was made at the first suitable opportunity within a reasonable time or whether there was an explanation for the delay.’

[26] Thus, I do not find a reasonable prospect of success in this ground of appeal.

Order

1. Leave to appeal against conviction is allowed.
   

Hon. Mr. Justice C. Prematilaka

JUSTICE OF APPEAL