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State v Volavola [2003] FJHC 72; HAA0106J.2002S (9 April 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0106 OF 2002S

Between

THE STATE
Appellant

And

WAISEA VOLAVOLA & OTHERS
Respondents

Hearing: 26^th March 2003
Judgment: 9^th April 2003

Counsel: Ms S. Shah for State
Mr E. Veretawatini for Respondents

JUDGMENT

This is the State’s appeal against the finding of the Nausori Magistrates Court on 11^th July 2002, that there was no case for the Respondents to answer, in respect of the following offence:

Statement of Offence

RAPE: Contrary to sections 149 and 150 of the Penal Code, Cap 17.

Particulars of Offence

WAISEA VOLAVOLA, TIMOCI TURAGA, TECIASA RARA, SOSICENI BAINIVUAI, KELEVI NAU and NEREO VATULAWA, on the 10^th day of September 1998, at Dawasamu, Tailevu in the Central Division, had unlawful carnal knowledge of SALAOTE SALAIWALU without her consent.

The Director of Public Prosecutions appeals against that finding on the following grounds:

“(a) The learned Magistrate erred in law and fact when he ruled that there was no case to answer.

(b) The learned Magistrate erred in law and in fact when he stated that there was no recent complaint and stated that it was a critical issue.

(c) The learned Magistrate erred in fact when he found that the silence/refusal to answer questions by the victim in cross-examination was consent.

(d) The learned Magistrate erred in law when he did not admit the caution interview statement of the Respondents as evidence.

(e) The learned Magistrate erred in law when he did not regard the admissions by the accused persons as corroboration.

(f) The learned Magistrate erred in law and fact when he failed to consider the entire evidence adduced by the State to prove the charge.”

The history of the case

The charge was laid on the 13^th of August 1999. The charge was read and explained to the 9 accused persons on that day, but plea was deferred until legal representation was available. They pleaded not guilty on 15^th September 1999. The trial commenced on 28^th May 2002. Between September 1999 and the 28^th of May 2002, the proceedings were delayed due to the non-attendance of the Respondents. On the 28^th of May, the trial commenced with the evidence of the complainant. Her evidence was heard in camera. She said that on the 10^th of September 1998, she was sleeping at her grandfather’s house at Siliana village in Tailevu, when she was called by the 5^th Respondent. It was 9pm and he called her from outside of the house. She went outside and he pulled her, telling her that the 1^st Respondent, wanted to speak with her. She refused to go with him, but he pulled her to a vacant house belonging to one “Koli.” There were 10 boys inside the house and there was no light inside. She could not see them, but heard one Cakau calling their names. The 5^th Respondent then slapped her on the fact three times and began to touch her breasts. The 1s^t Respondent was also present, and also slapped her. The 5^th Respondent took her clothes off and she was then raped by the 1^st Respondent “Cakau”, then the 1^st Respondent again, then the 6^th Respondent, then the 2^nd Respondent, then the 4^th Respondent, then the 3^rd Respondent, and then the 5^th Respondent. At this point, the complainant was bleeding from the vagina and was in pain. She tried to run away but the door was locked and she was in pain. She finally opened the door. Some church members (her uncles) shone a torchlight inside the house, and all the Respondents ran away. The 3^rd Respondent was the last to run away as he was still pulling on his trousers. The church members then came into the vacant house and saw the complainant wearing only her underwear. They asked her who she was and she said she was from another village. They left and she walked home slowly. She was wearing only her t-shirt and panties. On her way she met her grandfather and was too scared to talk to him. He did not ask her any questions. When she reached home, she found there were bloodstains on her sulu and blood coming out of her vagina. Her grandmother was at home asleep. She did not tell her grandparents what had happened.

The next day all the Respondents came to her grandparents’ home for a bulubulu ceremony. She was not present when this occurred. She said that she had not consented to have sexual intercourse with any of the Respondents, and that when she was interviewed by the police, she told the police this. She said she had never given any statement to the police saying that she had consented to sexual intercourse with the 1^st Respondent.

Cross-examination commenced on the 30^th of May and continued until the 19^th of June 2002 over several separate days. It was suggested to her that the 1^st Respondent was her boyfriend and that she had gone to the vacant house voluntarily. She said that an earlier statement to the police (which she denied making) which said that she had gone with him voluntarily was not correct.

The record shows that the complainant showed increased reluctance to answer questions in cross-examination. On the 4^th of June the complainant said she wanted the charge withdrawn because the relationship between her family and others in the village had deteriorated. The DPP did not agree and the trial proceeded. As cross-examination proceeded, the complainant refused to answer questions. The learned Magistrate treated her as a refractory witness and remanded her in custody for 7 days under section 137(b) of the Criminal Procedure Code. He also ordered that she be examined by a psychiatrist.

On the 11^th of June 2002, Maleli Cakau, who had originally been charged with the others, appeared and his name was added to the charge. The trial proceeded and the complainant answered the questions put to her. A previous statement dated 30/9/98 was put to her. She agreed that she had made the statement but said she could not recall saying that she had gone to the vacant house voluntarily.

The record shows that the complainant continued to give contradictory and reluctant answers in cross-examination. State counsel protested at one stage that defence counsel was shouting at the complainant thus her lack of co-operation. The record also shows that a report from the St. Giles Hospital said that the complainant had been threatened by the family of the Respondents and that she had been under pressure to “drop the case.”

On the 12^th of June, the complainant again refused to answer a series of questions put to her and again many of her answers contradicted her evidence-in-chief. In particular, she said that when the church members came into the vacant house she was unconscious, but later she said she could not recall if she was conscious or not and that she was asked by them if she was all right. She agreed that the room was too dark to identify any of the 10 men who raped her. Her answers were halting and protracted. She said she could not recall who had sexual intercourse with her at first, and later said that she saw Cakau and the 1^st Respondent inside the room.

When it was suggested to her that she had consented to the sexual intercourse, there was a 5 minute pause before her answer -: “I did not consent.”

In re-examination she said that she knew the identity of the men raping her because Cakau was calling out the names of each boy before each rape.

The next witness Meli Rabele gave evidence that the complainant was his grand-daughter. On the 10^th of September 1998, he went to church at 8pm. He saw her after 9pm when she ran home. He questioned her but “she appeared to be lost in senses.” The next day he found out what had happened and told the police that she had been raped at Kaniana’s vacant house. A village meeting was held and he question all the Respondents. They admitted raping the complainant and presented their bulubulu to ask for forgiveness.

In cross-examination he denied that the Respondents had admitted only to consensual sexual intercourse. Later he said he could not recall the Respondents saying that the complainant had consented to sexual intercourse.

PW3 was Ana Ranadi, the complainant’s mother. On 11/9/98 when she visited her parents at Siliana Village, her father told her that the complainant had been raped. She beat her daughter because she was angry with her and took her to the hospital and the police. She said her daughter was in a state of shock after the alleged incident. Under cross-examination she said that she had hit her daughter because she had refused to say what had happened to her and that she did not report the matter until 19 days after the incident.

The next witness was Joseua Nabuto, who had been attending a prayer meeting at Silana on 10/9/1998. After the prayer meeting at about 10pm, he with others, walked past Kaniana’s house when they heard someone crying. One of them shone a light inside the house and saw four youths running out. The 1^st and 6^th Respondents were identified. They then left. Under cross-examination he said he thought the sound of crying came from a child about 10 years old. He said it did not occur to him that sexual intercourse had taken place in the house and that he had questioned the youths who had appeared frightened.

PW5 was Eroni Lutu who was also in the same group of men returning from a prayer meeting. He said he heard the sound of someone crying and that by his torchlight he saw the 3^rd accused inside the house pulling up his pants. When he came out of the house he saw the 2^nd and 6^th accused outside the house. Later in evidence-in-chief, after reading his statement to police, he said he saw only the 3^rd Respondent in the house. Under cross-examination, he said he had heard the sound of crying from inside the house, and the 3^rd Respondent standing in the living room.

PW6 was PC 277 Jitoko Filipe who tendered the complainant’s medical report which showed that the complainant said she was raped by 4 youths, and that she was distressed. He recorded statements under caution from the 1^st and 5^th Respondents. He did not inform them of their right to counsel. He said both statements were voluntary. He later interviewed the 4^th Respondent, 5^th Respondent and the 2^nd Respondent. He tendered the statements.

Under cross-examination he said that there was delay in charging the Respondents because some could not be found and because the medical report was not conclusive. He agreed that the complainant had made one statement on 30/9/1998 and one statement on 3/10/1998. In the later statement, he said that she had told the police that she had consented to having sexual intercourse with the 1^st Respondent only. He agreed that he had interviewed the Respondents without a witnessing officer; that he had not given them an opportunity to alter, add or change anything in their statements. Finally he agreed that there had been insufficient evidence to charge the Respondents.

PW7 was PC Mosese Vakacegu who was the charging officer. He agreed that they were not given the right to consult counsel, saying that the Constitution was new and he was then not familiar with its provisions.

PW8, Sgt. Levi Seduadua interviewed the 6^th Respondent. He had no witnessing officer and did not inform the Respondent of his right to counsel. During cross-examination he agreed the questions had been put to the Respondent which had not come from the complainant and that one question in the original Fijian had been deleted from the English translation.

PW9, Vilisoni Cakacaka charged the 1^st and 3^rd Respondents and agreed that he had erred in failing to inform the Respondents of their right to counsel.

The prosecution closed its case on the 2^nd of July 2002. The defence submitted that there was no case to answer. The learned Magistrate ruled on 17^th July 2002, upholding the defence submissions. He correctly directed himself as to the test for no case to answer submissions and went on to consider the evidence. He found that the complainant had failed to make a recent complaint despite being beaten by her mother, that she had failed to call for help when church-goers had come to the vacant house, that the medical report was inconsistent with the complainant’s evidence was inconsistent with the complainant’s evidence, that the admissions contained in the caution statements were inadmissible because of the breach of section 27(1)(c) of the Constitution from which breach he found that the Respondents were prejudiced, and finally, that the complainant’s evidence was so discredited that no reasonable tribunal could have relied upon it. This he said, was despite holding the trial in camera and allowing her frequent adjournments to compose herself.

I now turn to the appeal.

The no case to answer finding

State counsel in her submissions does not suggest that the learned Magistrate applied the wrong test at the end of the prosecution case. Indeed, as I have already said, the learned Magistrate correctly told himself (at page 208 of the record):

“A submission that there is no case to answer may be properly made and upheld:-

when there has been no evidence to prove an essential element to the alleged offence;

when the evidence adduced by the prosecution has been so discredited as a result of cross-examination and is so manifestly unreliable that no reasonable tribunal could safely convict on it.”

The elements of the offence of rape are that the accused had carnal knowledge with the victim without her consent either knowing she did not consent or being reckless about her lack of consent. All the elements of the offence were present in the evidence of the complainant except to knowledge or recklessness as to her consent. Leaving the interviews aside (and I return to those under a separate ground of appeal), a prima facie case could have been found on the basis of her evidence, on the evidence of her grandfather as to the admissions made by the Respondent that they had had sexual intercourse without the victim’s consent and on the evidence of the other lay witnesses as to the noise of someone crying in the house when they shone a torch inside. All this evidence, if not so discredited as to make it unreliable, could have led a reasonable tribunal to convict. The learned Magistrate thought “that there was no evidence to prove all the essential elements of the alleged offence and that the evidence was so manifestly unreliable that no reasonable tribunal could safely convict on it.”

I consider that he erred on the first limb, but was correct on the second. As I have said, there was some evidence to prove the carnal knowledge, the lack of consent and the Respondents’ knowledge of her lack of consent. However, it is evident from the court record that the complainant was a profoundly unsatisfactory witness. How much of her lack of co-operation and her silence in response to questions was due to fear of the process of justice including, it appears, the unacceptable conduct of defence counsel in shouting at her during cross-examination, and how much of it was due to her inability to explain what had happened that night, is difficult to tell. However, it is inescapable that she told the doctor that only 4 men raped her, that she gave contradictory answers under cross-examination, that she was beaten before she agreed to report the rape and that she made a previous inconsistent statement (according to the police officer who recorded it) saying that she had consented to sexual intercourse with the 1^st Respondent. Without her evidence, the evidence from other witnesses as to distress, and admissions made by the Respondents at the bulubulu ceremony was of little weight. Supporting evidence as to carnal knowledge and lack of consent cannot explain the circumstances of the rape. The only direct evidence came from the victim and from the admissions of the Respondents in their caution interviews. In this case, the supporting evidence could not stand alone.

Of course, the victim’s inability to give credible and reliable evidence can be explained by the trauma she may have suffered as a result of what was purportedly a brutal and sustained gang-rape. However, the only person who could give this explanation was the complainant herself. She did not do so.

In the circumstances, while the learned Magistrate erred in finding that there was no evidence to prove the elements of the offence, he did not so err in finding that the evidence was manifestly unreliable. It follows that he did not err in upholding the no case to answer submissions.

Recent complaint

The law on recent complainant is based on an exception to the general rule that previous consistent statements are inadmissible. The exception is in offences of sexual assault, and the rule is, that provided the complaint is unprompted and “recent”, a witness may give evidence that the victim made a complaint of the offence. As the learned Magistrate correctly said, there was no recent complaint in this case because despite the beating she received at the hands of the mother, the victim did not complain until she was taken to the police.

However, evidence of recent complaint is intended to strengthen (and not corroborate) her evidence. Lack of recent complaint should not be taken to show that her evidence is manifestly unreliable. At page 210, the learned Magistrate said:

“The fact that the complainant kept silent and did not want to reveal the incident to anyone until she was beaten and punched by her mother (PW3) were consistent with consent on her part to the accused having sexual intercourse with her.”

However, her silence could easily have been consistent with her shame at the incident, connected with cultural taboos in relation to discussing sexual matters with elders. To say that an absence of recent complaint confirms consent is an error of both fact and law. On the facts of this case, there was nothing to suggest that her silence meant consent to the sexual intercourse.

Similarly, in respect of her silence in response to questions (Ground (c) of the grounds of appeal) consent is not the only inference that one might draw from such conduct. Fear and shame might well lead to such conduct. However, without evidence as to the reasons for her silence, it is dangerous to speculate. All that one can say, is that her refusal to answer questions, especially questions as to her lack of consent, rendered her evidence manifestly unreliable. The learned Magistrate erred in concluding that her silence showed consent, but did not err in the conclusion he reached as to her reliability as a witness.

The interviews

Section 27(1)(a) of the Constitution provides:

“Every person who is arrested or detained has the right:

(a) to be informed promptly in a language that he or she understands of the reason for his or her arrest or detention and of the nature of any charge that may be brought;”

This right has been extensively discussed by the High Court and the Court of Appeal. Merely depriving a suspect of this right will not automatically lead to the exclusion of the statement, but it will if the Respondent was prejudiced by the breach of the right. It is for the prosecution to prove lack of prejudice (R –v- Goodwin (1993) 2 NZLR 153). Further, the court must consider the overall justice of the case, including the public interest, in considering exclusion of the evidence.

The purpose of the section 27(1)(a) right is to protect and foster fairness in the investigative process. However this right must be balanced with the right of the public to efficient police investigations, and the duty of the police to bring offenders to justice. Where there is a conflict between the right to counsel and the public interest it is for the judiciary to decide how a balance is to be struck (see Law –v- Canada (1999) 170 DLR (4^th) 1).

Thus in R –v- Elliot (1996-98) 4 HRNZ, the New Zealand Court of Appeal said that that right to consult a lawyer without delay, and to be informed of that right must be interpreted according to the individual circumstances of the case.

The interviews in this case are not included in the court record. However, the ruling of the learned Magistrate, and the evidence of the police officers, shows that all Respondents were questioned, that they were not told that they had the right to consult counsel, or that they could alter anything in their statements. The learned Magistrate found the form of questioning to be “sharp cross-examination” and certainly the use of inappropriate and unnecessarily crude language (for instance the use of the word “fuck” in the interview of the 6^th accused) does not inspire confidence in the interview process. Further, it is unfortunate that defence counsel considered it appropriate to use such language in court, during cross-examination apparently without complaint or correction. This finding, that the Respondents were prejudiced was one the learned Magistrate was entitled to come to on the evidence. This is despite his failure to hold a trial within a trial to give the Respondents an opportunity to give evidence on the confessions alone.

In the circumstances the learned magistrate did not err either in law or in fact in excluding the caution interviews. He found not only a breach of section 27(1)(c), but also that the Respondents were prejudiced by the breach. This ground fails.

Corroboration

It follows that the interviews could not provide corroboration in this case. However, corroboration was present in the evidence of the victim’s grandfather that all the Respondents, at a village meeting, admitted to raping the victim, and from the evidence of crying emanating from the vacant house from which several of the Respondents emerged. That evidence was capable of corroborating the victim as to lack of consent. In respect of those Respondents who emerged from the house, the evidence of distress could have been capable of corroboration (provided the court accepted that the sound of crying came from the complainant) because it implicated those Respondents and showed lack of consent.

However, corroboration should only be looked for where the evidence to be corroborated, is itself credible evidence. Although the learned Magistrate was only at the no case to answer stage of the trial, he considered her evidence so unreliable that no reasonable court could have convicted on it. In the circumstances, he was unlikely, had he proceeded to the end of trial, to have found her evidence credible enough to warrant a search for corroboration.

As Lord Morris said in DPP –v- Hester (1972) 57 Cr. App. R. 212 at 229:

“The essence of corroborative evidence is that one creditworthy witness confirms what another creditworthy witness has said .... The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely credible evidence.”

And, in DPP –v- Boardman (1970) 60 Cr. App. R. 165 at p.183, Lord Hailsham said:

“.... Unless a witness’s evidence was intrinsically credible he could neither afford corroboration, nor be thought to require it. In such cases, the witness’s evidence is rejected before the question of corroboration arises. Of course, a conviction in such a case can sometimes result if, notwithstanding the unreliable testimony, the independent evidence is strong enough. But this is because the independent evidence has proved the case independently of the unreliable witness, and not because the unreliable witness is corroborated.”

Thus, no degree of corroboration can be sufficient if the complainant’s evidence itself is inherently unreliable.

As for the confessions themselves, the learned Magistrate did not err in excluding them for the reasons he gave, and in the circumstances they could not have provided corroboration even if the victim’s evidence had been reliable.

The entire evidence

As I have said, the learned Magistrate did err in putting too much weight on the lack of early complaint, in finding that there was no evidence to prove the charge when in fact there was some evidence in respect of each element of the offence and in concluding that the victim’s silence in court suggested consent to sexual intercourse. However, he did not err in finding that the victim’s evidence was so discredited that no reasonable tribunal could have convicted on it. For this reason, despite the errors I have found, the conclusion he reached was correct in both law and fact.

Conclusion

This appeal against acquittal is unsuccessful and is dismissed.

Nazhat Shameem
JUDGE

At Suva
9^th April 2003