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Boa v State [2002] FJHC 178; HAA0079J.2002S (25 October 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA 79 OF 2002S

Between:

JONE BOA
Appellant

And:

THE STATE
Respondent

Hearing: 24th October 2002
Judgment: 25th October 2002

Counsel: Appellant in Person
Mr D. Toganivalu for State

JUDGMENT

The Appellant was, on the 20th of April 2001, charged with the following offence:

Statement of Offence

INDECENT ASSAULT: Contrary to Section 154(1) of the of the Penal Code, Act 17.

Particulars of Offence

JONE BOA, on the 17th day of March 2001 at Lami in the Central Division, unlawfully and indecently assaulted a woman namely MERE DELAIVUNA.

He pleaded guilty but the trial commenced because he disputed the facts outlined by the prosecution. The prosecution called Mere Delaivuna, (the complainant) and two police officers. The evidence was that on 16th March 2001, the complainant, whose husband is a soldier and was away at Monasavu, was alone at home with her three children. She went to sleep at 8pm. Between 3am and 4am that night a person came into her bedroom and touched her vaginal area. She woke up and saw the Appellant in the light that was on in the sitting room. He ran away. She tried to switch on the light but could not. She then went to the main switch and found it had been turned off. She turned it on and followed the Appellant outside and saw him running away. She did not see his face but recognised him by his build. She said she knew the Appellant well because he visited the house regularly. The police witnesses tendered the Appellant’s police statements in which he had confessed to the offence. He had initially denied going to the complainant’s house that night, but when he was told that his father’s statement contradicted his, he changed his story. He said he had gone to the complainant’s house to see one Semesa, and saw the complainant lying there. He then touched her private parts. She got up and he ran outside. He said that he was the complainant’s first cousin.

The Appellant, when cross-examining the police witnesses suggested that they threatened him to make him confess. He gave sworn evidence saying that the police had failed to record everything he had said. Under cross-examination, he said the complainant’s evidence was untrue and that he had been forced by the police to give his statement. He said “the police officer who caution interviewed me didn’t punch me. The police charging officer didn’t punch me. I confessed because the police threatened me. They said they will lock me in the cell and punch me. I can’t remember the officer’s number. I had pain in the ribs. I didn’t seek medical examination. I didn’t report the matter to the police.”

He called a witness, Vika Rodgers, who said that she had been with the Appellant at 2am on 17th March 2001. She said she didn’t know where the Appellant was at 3am.

The learned Magistrate said that although the complainant’s evidence of identification was not reliable, he accepted the evidence of the confession. He found the offence proved beyond reasonable doubt, convicted the Appellant and sentenced him to two years imprisonment.

The Appellant appeals against conviction and sentence on several grounds which I summarise for the sake of convenience:

1. The identification evidence was unreliable;
   
2. The victim had said that the Appellant was doing the same thing to other married women;
   
3. There was no corroboration;
   
4. There was evidence of an alibi which should have been accepted;
   
5. The Magistrate refused to hear witnesses;
   
6. The sentence of two years imprisonment was harsh and excessive.
   

At the hearing of the appeal, the Appellant abandoned most of these grounds, and argued only that the evidence of identification was unreliable, and that he had been assaulted in police custody by the interviewing officer and that therefore the statements ought to have been excluded.

State counsel opposed the appeal. He conceded that the learned Magistrate ought to have dealt more thoroughly with the evidence relating to the admissibility of the confession, but said that there was ample evidence to justify conviction. He further submitted that the sentence was appropriate and fell within the tariff for indecent assault cases.

Identification

The learned Magistrate did not rely on the evidence of identification because he said the complainant had not seen the assailant’s face. Thus this ground of appeal lacks merit because the evidence was not relied upon.

Of course, it is arguable, that because the complainant was identifying a close relative, who was a regular visitor, recognition of his build might have been acceptable as safe identification evidence. However, an assessment of the quality of identification evidence is usually best left to the trial court on the basis of the length of the encounter, the lighting and the nature of the relationship between the witness and the accused. In this case the learned Magistrate assessed the evidence to be unreliable. The Appellant’s first ground of appeal is therefore based on a misapprehension of the basis of the judgment.

The Confession

The learned Magistrate directed himself generally about the burden and standard of proof, but did not do so specifically in respect of the admissibility of the confession. He said that he accepted the evidence of the two police officers who interviewed and charged the Appellant and rejected the evidence of the Appellant, which he said was contradictory in itself.

It is unfortunate that the learned trial Magistrate did not direct himself on the law relevant to the admissibility of confessions. In all cases, the prosecution must prove beyond reasonable doubt that any confession made to a person in authority is voluntary, and not obtained by unfair means, or by oppression. However, if he had so directed himself, I doubt that the result would have been different. The Appellant said he was not assaulted, then, that he was. At the hearing of this appeal, he said he had been assaulted in the chest by the interviewing officer. At the trial, he alleged only threats, but then appeared to allege assault on the ribs. His evidence was clearly incredible and any reasonable tribunal would have rejected it. There were no credible grounds to challenge the admissibility of the confession. Thus, whilst the learned Magistrate erred in failing to refer to the test for admissibility, or to the burden of proof, I find that there was no miscarriage of justice. This ground of appeal also fails.

Sentence

The sentence of 2 years imprisonment falls within the tariff for indecent assault cases in this country. In Ratu Veretariki Kadavu -v- State Crim. App. No. HAA 049 of 2000L, Prakash J after reviewing a number of indecent assault sentences, said that a custodial sentence of between 1 and 4 years is the tariff. In this case the Appellant assaulted a woman who trusted him as a relative, entered her home in the middle of the night as she lay asleep, and touched her vagina. The circumstances show a number of aggravating features and no mitigating ones.

In the circumstances I decline to reduce the sentence. This appeal is wholly dismissed.

Nazhat Shameem
JUDGE

At Suva
25th October 2002