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Vasu v The State [2005] FJHC 114; HAA0118.2004 (17 May 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA0118 OF 2004

BETWEEN:

JOSEPH BEN VASU
RUPENI ROKO
Appellant

AND:

STATE
Respondent

Counsel: Ms S. Devan – for 1st Accused
Mr. Vakaloloma – for 2nd Accused
Ms P. Madanavosa – for State

Date of Hearing: 5th May, 2005
Date of Judgment: 17th May, 2005

JUDGMENT

Introduction

The appellants were convicted in the Magistrates’ Court on one count each of rape (Section 149 of the Penal Code, Cap. 17). They were sentenced to 6 years imprisonment. They appeal against conviction and sentence.

It was the Prosecution Case that on the 26th of August 2000 the appellants were at home, they had been drinking since midday and were drunk. They noticed the female complainant, a 15 year old, returning from the Suva City Library to her home. It was asserted that the first appellant (Joseph Vasu) invited the complainant into the house and shortly thereafter took her to the bathroom and locked the door.

The Prosecution alleged that this appellant then demanded sex which was refused. The complainant said that Mr. Vasu took her pants off, pulled her down to the floor and forced her to sit on top of him. She resisted he insisted. He was too strong for her and he made her sit on his erect penis and forced her to have sexual intercourse with him. The incident was brief. She stood up to put on her clothes. He wouldn’t let her. He kept the room locked. He took her again for a second time forcing her to sit on him again. He then left the bathroom. She put on her clothes and walked outside the bathroom.

Regarding the second appellant (Rupeni Roko). It is asserted that when the complainant came out of the bathroom he pulled her towards the sitting room and then a bedroom and forced her to take her clothes off telling her not to scream. He held her against the wall and started to kiss her and then pushed her to the floor. She resisted and tried to push him away but felt weak. As he lay on top of her he harshly demanded sex and then inserted his penis inside her vagina. He then left.

The complainant got dressed and went straight home. She told her grandmother she was raped. Her grandmother described her appearance as crying continuously and asking for help and asking to be taken to the hospital. A medical examination was conducted some hours later. The complainant appeared calm. There were no injuries noted other than a superficial bleeding abrasion on her labia minora.

The complainant did not want to have sex with either of the two appellants. They later admitted having sexual intercourse with the complainant, largely as described, but alleged the acts were consensual.

Grounds of Appeal

The appellant Vasu appeals against conviction upon the grounds:

(i) That the learned trial Magistrate erred in law and in fact in accepting the uncorroborated evidence of the complainant.

(ii) That the learned trial Magistrate erred in law and in fact in admitting the medical report as evidence of the fact that the complainant was raped.

(iii) That the learned trial Magistrate erred in law and in fact in failing to give reasons for either believing or disbelieving the material witnesses.

(iv) That the learned trial Magistrate misdirected himself as to the onus of proof that lay on the prosecution.

(v) That the verdict is unsafe, dangerous and unsatisfactory and cannot be supported having regard to the evidence as a whole.

(vi) That the sentence is harsh and excessive having regards to all the circumstances of the case.

Corroboration

Following the Court of Appeal’s decision in Balelala v The State, Criminal Appeal No. AAU0003 of 2004S (Ward P., Penlington JA, Wood JA) it is no longer mandatory for a corroboration warning to be given in sexual offence cases. A corroboration warning should be rare and only be given when the reliability of some evidence is truly questionable.

Counsel submits that inconsistencies in the complainant’s evidence made it necessary for that discretion to be exercised in this case. It was submitted that these inconsistencies demonstrate that the issue of consent required corroboration.

That matter can be resolved quickly. The accused appellants agreed they had sexual intercourse with the complainant. There was accordingly no need for corroboration concerning the act itself.

The evidence concerning the complainant’s distressed state and recent complaint to her grandmother that she was raped is corroborative of her evidence of absence of consent (see Soqonaivi v The State [1968] FJCA 64 and The Queen v Redpath [1962] 46 Cr. App. Rep. 319). However, and importantly in this case, this evidence also remains relevant for assessment of her credibility as a witness.

In his judgement the learned Magistrate reminded himself (page 56 of the record) that this was a case requiring corroborative evidence. Further, the learned Magistrate commented on the complainant’s appearance and complaint to grandmother. He found that this evidence demonstrated consistency in the complainant’s account of the events.

The learned Magistrate had the benefit of hearing the evidence. He found the complainant and her grandmother to be credible witnesses. He accepted their evidence. The accused's unsworn statements were rejected. He found the accused were not credible witnesses on the issue of consent. That is not surprising their unsworn statements were not able to be tested in cross examination. The recent complaint evidence, on the other hand, corroborated the complainant’s evidence.

Accordingly even if the inconsistencies relied on by this appellant are substantial, which I do not accept, the learned Magistrate clearly weighed those issues in his finding of credibility and was appropriately satisfied that the complainant did not consent to sexual intercourse with these two. That credibility assessment was something the learned Magistrate was perfectly entitled to make. There was no error of law or fact in that regard.

My findings in this regard also resolve the third ground of appeal. The learned Magistrate gave as his reasons for accepting the complainant’s evidence the fact that she complained of rape recently after the event to her grandmother, was distressed and asking to go to the hospital. Grandmother’s account was consistent with this testimony. These are sufficient reasons to believe the witness to be credible.

Admission of the Medical Report

The appellant complains that the Trial Magistrate was wrong in admitting the medical report as evidence of the fact the complainant was raped. Counsel says there was no warning to the accused to impress on them the importance of this evidence and their options concerning its admissibility through the complainant.

It is correct that there was no warning to the accused concerning the admission of this report into evidence [Section 19(b) of the Criminal Procedure Code (Cap. 75)]. However, I accept the State’s submission that the medical report provided little if any evidential support of the fact that the complainant was raped.

The medical report is irrelevant concerning the act itself. It describes some injury to the complainant that may be consistent with blunt force trauma of the vagina. However, that was not relied on by the learned Magistrate in coming to his findings on consent. Accordingly, there can be no prejudice to the appellants by the acceptance of the report without warning.

In my view it would have been wrong for the medical report to be rejected as it contains exculpatory material for the defence. Indeed the inconsistencies to which appellant’s counsel refers in this hearing are in part based around comments made by the complainant to her doctor at the time of examination. (Cf paragraph 4 of counsel’s submissions). I reject this ground of appeal.

Onus of Proof

Ground 4 was not greatly emphasized on appeal. Counsel could point to no overt error or mis-statement of the onus of proof. Counsel did not point out any indirect inference that the burden or onus of proof was overlooked. Rather this ground in combination with ground 5 was a complaint that there were few reasons for the judgment given by the learned Magistrate. A judge is not obliged to address in his judgment each issue of fact raised in a trial. A professional judicial officer is required to give reasons. Frequently those reasons come from the matters of evidence in the trial that have impressed themselves upon the judicial mind.

In this case it is clear that the learned Magistrate placed some reliance on the recent complaint evidence and a consequent finding of credibility for the complainant and against the accused appellants. He was perfectly entitled to do so. There was no error of law in that regard. I reject this ground of appeal.

Roko Appeal

Counsel for Mr. Roko advanced; with leave; several grounds of appeal. For the reasons expressed in my judgment concerning the appeal of the co-accused Mr. Vasu I reject the first ground of appeal concerning the lack of corroborative evidence. In my view the inconsistencies highlighted by counsel in the complainant’s evidence (the fact that she stayed in the house for sometime, had sex with the two men the first for two hours, in allegedly ‘consensual position’ of women on top) are not valid reasons to require a corroborative warning.

However, if I may be wrong in that regard, I am further satisfied that the learned Magistrate did remind himself of the need for corroboration particularly concerning the issue of consent and that he found good reason in the recent complaint evidence to make a credibility finding in favour of the complainant. He was at liberty to reject the drunken recollections of the accused appellants in preference for the clear statements and evidence of the complainant supported by her distressed state and consistent with her recent complaint of rape to her grandmother.

The Absence of Legal Representation

I next turn to the fact that the appellant was not legally represented during trial. The record shows that he initially had representation and various counsel appeared for him throughout 2001. However, he failed to appear between September 2002 until his arrest in January 2004. When he did return to court he had no defence counsel with him.

The desirability of an accused person having legal representation at a trial is obvious but it is not an absolute right – Robinson v The Queen [1985] AC 956. The Constitution Amendment Act 1997 Section 28(1) does not require the provision of legal services merely the explanation of choice. It is not incumbent on the State to provide representation privately or through systems of legal aid.

The appellant was given every opportunity to secure private representation by a lawyer. Indeed he had a lawyer for the first year and a half of his case but then absconded and did not answer his bail. He did not avail himself of the opportunities to have a lawyer at his trial.

He exercised his rights of cross-examination thoroughly. He made an unsworn statement, sought to call witnesses but then waived the right to do so relying merely on additional questioning of defence witness 4. In my view this ground is not made out.

The Appeal Against Sentence

The appeal against sentence lacks any merit. There was no error in the sentencing approach that was taken for these rape offences. The sentences for this rape were well within the legitimate tariff range as evidenced by decisions such as R v Billam [1986] 8 Cr. App.48 and Mohammed Kasim v The State, Cr. Appeal No. 21 of 1993.

The starting point for rape is 7 years imprisonment (State v Viliame Tamani, HAC0007 of 2003S). The learned Magistrate applied the well accepted principles found in Kasim (supra). He discusses aggravating factors and identifies an appropriate discount in mitigation.

In my view on appeal this court should not interfere with a sentence unless it is wrong in principle or unjust. This was a fair penalty for the drunken self indulgent and degrading acts of these two in taking and raping a 15 year old girl.

Accordingly, I must find that this sentence is correct. It lies within the range of available penalties is not harsh or manifestly excessive.

Conclusion

The appeals against conviction and sentence for the reasons stated in this judgment are dismissed.

Gerard Winter
JUDGE

At Suva
17th May, 2005