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Tanoa v State [2009] FJHC 279; HAA083.2008 (22 December 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

HIGH COURT CRIMINAL APPEAL NO: HAA 83 OF 2008
CRIMINAL CASE NO: 1689 OF 2006

BETWEEN:

JIKO TANOA
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Appellant - In person
Respondent - Ms P. Madanavosa

Date of Hearing: Monday, 7th December, 2009.
Date of Judgment: Tuesday, 22nd December, 2009.

JUDGMENT OF THE COURT

This is an appeal filed by the accused appellant against the conviction and sentence in the above case by Learned Magistrate at Suva on 29/9/2008.
Accused appellant was charged on three counts (3) counts namely:-

1. INDECENT ASSAULT – Contrary to s.154 of the Penal Code Cap. 17.

JIKO TANOA on the 29th day of October 2005 at Kinoya in the Central Division unlawfully and indecently assaulted a woman namely Jowalesi Baleinasasa.

2. RAPE – Contrary to section 149 and 150 of the Penal Code, Cap 17.

JIKO TANOA on the 29th day of October 2005 at Suva in the Central Division had unlawful carnal knowledge of a woman namely Jowalesi Baleinasasa without her consent.

3. INCEST – Contrary to s. 178(1) of the Penal Code Cap. 17.

JIKO TANOA on the 29th day of October, 2005 at Suva in the Central Division had carnal knowledge of Jowalesi Baleinasasa who was to his knowledge his daughter.

After full trial Learned Magistrate convicted the appellant on 1, 2 counts and he has not dealt with count 3 as it is an alternate count. The appellant was then sentenced to 18 months imprisonment on count 1 and 9 years imprisonment on count 2 to run concurrently.
The accused appellant now appeals against the conviction on the following grounds:-

1. The Learned Magistrate erred in law in convicting the accused/appellant without any corroboration on the evidence of the complainant.

2. The Learned Magistrate has not considered the defence and the evidence of the defence witnesses.

3. No expert evidence was led by the prosecution to prove that the complainant was the biological daughter of the accused/appellant.

At the trial, on behalf of the prosecution complainant, receptionist of the Motel where the complainant was alleged to have been raped, grandmother of the complainant, mother of the complainant and the police investigating officer had given evidence and for the defence, the accused, wife of the accused and the sister-in law of the accused gave evidence.

It is submitted by the appellant that the complainant’s evidence was not corroborated in material particular and therefore it is unsafe to convict the accused. In that he brought to the attention of the court to a series of decided judgments including R. v. J. (No. 2) [ 1998] 3 V.R. 602, and the "Longman Warning".

It is submitted on behalf of the respondent that corroboration is required only if the complainant’s evidence cannot be relied upon and in that attention of Court was brought to the decided case of Balelala v. State [2004] FJCA 49; AAU003.2004S

Although in most of the other crimes of serious nature corroboration or rule of warning was not required, it was the practice of Courts to require corroboration in sexual offences against women. This was discussed at length in Balelala case as to how and why the corroboration was required and especially how the minds of the alleged female victims of sexual offences worked when giving evidence. As it was discussed in Balelala case the guidance given by Lord Taylor of Gosforth C.J. in R v. Makanjuola [1995] 1 WLR 1348 will be of immense use when deciding on the matter.

It was to the following effect:-

"It is a matter for the judge’s discretion what, if any warning, he considers appropriate in respect of such a witness as indeed in respect of any other witness in whatever type of case. Whether he chooses to give a warning and in what terms will depend on the circumstances of the case, the issues raised and the content and quality of the witness’s evidence. In some cases, it may be appropriate for the judge to warn the jury to exercise caution before acting upon the unsupported evidence of a witness. This will not be so simply because the witness is a complainant of a sexual offence nor will it necessarily be so because a witness is alleged to be an accomplice. There will need to be an evidential basis for suggesting that the evidence of the witness may be unreliable. An evidential basis does not include mere suggestion by cross-examining counsel. If any question arises as to whether the judge should give a special warning in respect of a witness, it is desirable that the question be resolved by discussion with counsel in the absence of the jury before final speeches. Where the judge does decide to give some warning in respect of a witness, it will be appropriate to do so as part of the judge’s review of the evidence and his comments as to how the jury should evaluate it rather than as a set-piece legal direction. Where some warning is required, it will be for the judge to decide the strength and terms of the warning. It does not have to be invested with the whole florid regime of the old corroboration rules".

It is now settled law that the requirement of corroboration depends on the reliability of the witness and in that is the discretion of the trial Judge/Magistrate depending on the circumstances of each case. In this aspect I am inclined to follow the guidance of Lord Taylor of Gosforth C.J. in R. v. Makanjuola which was followed in Balelala case.

In the instant case the Learned Magistrate has carefully considered the evidence of the complainant and in page 7 of his judgment good and sufficient reasons are given for his conclusion in accepting the evidence of the complainant.

Serious sexual crimes of this nature are usually not committed in public, but in privacy. Therefore there cannot be eyewitnesses to the sexual act committed. But on the other relevant factors like the accused being present at the place where the alleged offence was committed, evidence can be elicited and accepted as evidence to corroborate the fact.

In the instant case receptionist of the motel gave evidence and said the man who went to the room with the young woman wanted her to come and knock at the door at 11pm, as he had to leave at the time. So the witness had knocked at the door at 11pm. The complainant also in the evidence when cross examined at page 21 said the lady knocked at the door.

The receptionist is an independent witness who has no special interest in the matter. The complainant has given a fair description of events which took place in the motel room and as to how the accused raped her, without being inconsistent. Therefore the Learned Magistrate had sufficient evidence to accept the version of the complainant and reject the defence of alibi taken by the accused, and the evidence given on his behalf by his wife and his sister –in-law. Apart from these facts, this position of the defence was never put to the complainant when she gave evidence as mentioned in the judgment by the Learned Magistrate.

At the argument stage of this appeal appellant further submitted that the court should consider the delay in making the complaint. Accused is the father of the victim complainant and the complainant has explained in her evidence as to why she could not complain for one week. Complainant had been seen living with the accused in the same house. Learned Magistrate had well considered this fact as well as given reasons for his conclusion in page 7 and 8 of his judgment.

Appellant further contended that there was no medical or expert evidence led to prove that he is the biological father of the complainant. Prosecution has to prove its own case beyond reasonable doubt. There is no burden cast upon the accused. In this case from the inception complainant said that the accused is her father and the accused appellant accepted her as his daughter. Complainant’s mother gave evidence and said about her de-facto relationship with the accused and as to how when it was informed later the appellant accepted the complainant as his daughter. This position was not challenged by the accused at the trial. Further accused had accepted in his evidence itself that complainant is her daughter.

In page 35 of the Magistrate’s Court case record when accused appellant gave evidence he has referred to the complainant as his daughter several times. Accepting the position of the complainant as to the relationship accused in his own evidence has referred to the complainant has his own daughter. Therefore in appeal he cannot be heard to say that the complainant is not his daughter.

DNA evidence if had would have seen another piece of evidence which would assist the prosecution to prove the relationship. Merely because the DNA report was not obtained one cannot say that other evidence as aforesaid cannot be accepted or relied upon. Anyhow this question should not arise at this stage as the Learned Magistrate has not convicted the accused appellant for 3rd count on incest as it was an alternate count.

For the aforesaid reasons I see no reason to interfere with the judgment of the Learned Magistrate convicting the accused on counts 1 and 2.

The appellant although filed this appeal against the sentence as well, did not pursue any argument against the sentence. In perusing the evidence and when considering the nature of the offence I see no reason to interfere with the sentence given by the learned Magistrate. The sentence is neither excessive nor illegal. The appeal against the sentence is meritless.

For the aforesaid reasons, the appeal against the conviction and sentence is dismissed.

Priyantha Fernando
Puisne Judge
22.12.09