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Rage v The State [1996] FJHC 55; Haa0058d.96s (23 September 1996)

Fiji Islands - Rage v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Suva

Appellate Jurisdiction

CRIMINAL APPEAL NO. 0058 OF 1996

BETWEEN:

KALIOVA RAGE
Appellant

AND:

THE STATE
Res> Respondent

Appellant in Person
Ms. R.imayin for the State

<1">

REASONS FOR DECISION

ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> On the 19th of September, 1996 this Couashed the appellant's conviction and ordered his retrial. Oal. On that occasion the Court said it would provide detailed reasons later which I now do.

On the 21st of November, 1994 the appellant was charged in the Suva Magistrate Court with an offence of Rape. He had been earlier bailed to appear in Court on that day but he failed to appear and a bench warrant was duly issued for his arrest.

The warrant was subsequently executed after 17 months and on the 22nd of April 1996 the appellant appeared in the Suva Magistrate Court and pleaded 'not guilty' to the charge.

On 29th April 1996(including the complainant) to prove its case, and tand the appellant gave evidence on oath. Thereafter the trial magistrate '... (took) a short break to consider (his) ruling', and upon resumption, he delivered a short 3-page handwritten 'RULING' convicting the appellant. After a further 'short break to consider the sentence', the trial magistrate imposed a sentence of 5 years imprisonment and 5 strokes of corporal punishment but this time, in a 7 page handwritten 'SENTENCE'!

On 27th May 1996 thellant lodged an appeal against his conviction. The appeal raises various matters including ding the absence of corroboration in the case.

I set out below (in full) the trial magistrate's 'RULING' against which this appeal is brought:

"RULING

I have considered all facts andence very carefully.

I find PW1 to be an honest and reliablness.

She was never evasive in her testimony and in her ansto questions from the accusaccused. I find her to be a credible witness.

I believe PW2 as well. She appeared honest witness.

On ther hand, I found the evidence of accused as well as his ahis answers to questions, both from prosecution and court, to be far fetched and at times evasive.

I observed the accused when he wasng evidence. I did not find find him to be an honest witness.

Thence of accused was that he did not rape but she consented.nted. However, in reply to a question from the court, whether she consented, he said: "Thought she did".

/b>

This clearly shows that there was no abe certainty that she did coid consent.

Furthermore, he admitted oss-examination that he could not control his urge to have have sex. On facts I find that she never consented to sex. I also find it hard to believe the accused's evidence that the complainant took off her pants and put her legs up while he was going to her in the back seat.

It is the prosecution duty to prove its casend reasonable doubt - (W(Woolmington v DPP). (1935) A.C. 462.

In my view, the prosecution has done that.

I findaccused guilty as charged. &quopan>

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I confess that on first seeing the trial magistrate's 'RULING'I was somewhat taken aback back not only by its undue brevity given that this was a contested trial after a 'not guilty' plea, but also, in its almost complete failure to comply with the mandatory requirements of Section 155(1) of the Criminal Procedure Code (that):

"Every judgment shall, ... contain the point or points for detation, the decision thereonereon and the reasons for the decision ..."

As was said by Thompson J. in quashing theiction

in Mano Datt Sharma v. R. (1966) 15 F.L.R. 136 at p.138:

"The Magtes Courts are called upon to deal with large numbers of caof cases and to do so expeditiously. This undoubtedly militates against the writing of lengthy judgments. Nevertheless there is a degree of brevity beyond which a judgment ceases to comply with Section 154(1) [now Section 155(1)] and ceases to show that the Magistrate has applied his mind properly to the defence raised."

Furthermore it need hardly be said that the trigistrate's 'RULING' also fails to foll follow the clear guidelines provided in the judgment of Grant Ag. C.J. in Chandar Pal v. R. (1974) 20 F.L.R. 1 when his lordship said at p.4:

If these considerations are kept in view, not only will it make the task of an appellate court easier, it might well lead to fewer decisions being upset."

In his 'RULING' in this case the tmagistrate appears to have decided the case solely on his dhis determination of the credibility of the complainant as against that of the appellant without any reference to or analysis of the evidence in the case.

In Nirmal v. R (115 F.L.R. the Court of Appeal in allowing the appeal in that case:

"Held: 1. Thessment of the credibility of witnesses by their demeanour nour alone is wrong if it can be avoided; All the evidence should be weighed before deciding what to accept and what to reject."

I accept at once that "... a magistrs not obliged to give reasons for his acceptance or rejectijection of the evidence of any particular witness ..." where it is based upon his assessment of the witness's general credibility per Grant J. (as he then was) in Jan Barkat Ali v. R. (1972) 18 F.L.R. 129 at 130G, but even in such a case, it is still incumbent on the trial magistrate in my view, to refer clearly in his judgment, to the evidence which he accepts as establishing the ingredients of the offence.

Quite plainly in this case the trial magistrate has made no reference to any of the evidence led in the trial nor made any findings of fact sufficient to establish the ingredients of the offence with which the appellant was charged and which offence is nowhere identified in his 'RULING' as it should have been. (See: Section 155(2) of the C.P.C.)

The trial magistrate in his 'RULING' also mentioned in particular, the lant's answer to the Court'ourt's question as to whether the complainant consented to intercourse and where the appellant is recorded to have said: 'Thought she did'. This answer the trial magistrate states: "... shows that there was no absolute certainty that id did consent." With all due regard to the trial magistrate his observation comes perilously close to a reversal of the 'burden of proof' in a criminal trial, and in any event, misrepresents the 'standard of proof'.

Furthermore even if one accepted that the 'form' of the trial magistrate's 'G' sufficientlyently complied with the requirements of Section 155 and that the magistrate was entitled to prefer the complainant's evidence to that of the appellant, nevertheless, the trial magistrate completely failed to "... expressly warn (himself) and seriously consider the very real danger of convicting (the appellant) on (the complainant's) uncorroborated testimony". (per Hammett C.J. in Peceli Vosararawa v. R. (1970) 16 F.L.R. 202 at 204; and per Salmon L.J. in R.v. O'Reilly (1967) 51 Cr. App. R. 345 at 348/349.) Undoubtedly this was a serious omission on the trial magistrate's part and amounted in my view, to an incurable non-direction.

Learned State Counsel whilst conceding: 'that the trial Magistrate did not warn hf of the danger of convictivicting in this case in the absence of corroboration', nevertheless, submits 'that no substantial miscarriage of justice occurred in this case', and counsel asks, 'that the proviso to Section 319(1) of the Criminal Procedure Code Cap. 21 be applied'.

In R. v. Trigg (1963) 47 Cr. App. R. 94 the Court ominal Appeal (U.K.) in > in rejecting a similar submission in a rape case where no direction had been given on corroboration and where the only issue in the case was the identity of the assailant, said at p.101:

"In prie this court feels that cases where no warning as to corroborroboration is given where it should have been should, broadly speaking, not be made the subject of the proviso to Section 4." (cf: Section 319(1) proviso)

Earlier, on the same page the Court said:

"A jury that receives a ng in regard to corroboration must in the nature of things ings approach the complainant's evidence with a sense of caution. It follows from the warning, and indeed is the object of the warning, ..."

More recently in R. v. Birchall and Others/b> (1986) 82 Cr. App. R. 208 a rape case where ther there had also been no direction on corroboration and where there was a clear issue as to 'consent', the Court of Appeal in applying Trigg's case, and in rejecting a submission that the 'proviso' be applied said, at p.211:

"There was tear issue between the Crown on the one hand and the defencefence on the other hand and we think it would be wholly wrong in the circumstances to apply the proviso."

Similarly in the present case there was a clear issue as to 'consent' ng from the sworn testimonyimony of the complainant on the one hand, and the sworn testimony of the appellant on the other, and it was therefore vital that the trial magistrate should have warned himself about the necessity to look for corroboration of the complainant's evidence as to the absence of any consent on her part to the sexual intercourse that occurred, and in the circumstances this Court too, considers that it would be 'wholly wrong to apply the proviso'.

Then learned State Counsel urges (the Court) (to) order a retrial in this case".

>

In Dennis Reid v. The Queen (19.C. 343 the Privy Council in discussing the exer exercise of a court's power to order a retrial said at p.350: (as summarised in the Headnote):

"Factors which may deserve consideration are the seriousnessprevalence of the offence; nce; the probable duration and expense of a new trial; the ordeal to be undergone for a second time by the defendant (and the complainant) and the lapse of time since the commission of the offence and its effect on the quality of the evidence. The strength of the prosecutions case at the original trial ... and lastly that it is not in the interests of justice that the prosecution should be given an opportunity to cure the deficiencies in its case against the defendant by a new trial."

Bearing the above factors in mind and thellant's own request that he be given an opportunity b>"... of having a fair trial before another magistrate", this Court ordered that the appellant be retried and he was accordingly conditionally bailed to appear before the Magistrate Court, Suva on 30th September 1996.

Finally, I would draw to the attention of the trial magistrate, the recent jut of the Court of AppeaAppeal (U.K.) in R. v. Peter O's (1993) 14 Cr. App. R. (S) 633 in which the Court in reducing the sentence in that case for a conviction of Indecent Assault:

"Hu>: in imposing sentence, the sentencer said that the offenoffences had resulted in serious damage to the girls, who might be marked for the rest of their lives. There was apparently no specific evidence before the Court to justify the sentencer's comments. The Court had emphasised in Hobstaff (1992) 14 Cr. App. R.(S) 605 that that kind of assumption should not be made unless the necessary evidence had been laid before the Court."

D.V. Fatiaki
JUDGE

At Suvpan>

23rd September, 1996.

Haa0058d.96s

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