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State v Khan [2013] FJHC 124; HAA34.2011 (20 March 2013)

IN THE HIGH COURT OF FIJI AT LAUTOKA
[APPELLATE JURISDICTION]

CRIMINAL APPEAL NO. HAA 34 OF 2011

IN THE MATTER of an appeal
from a decision of the Magistrate's Court of Fiji at Nadi in respect of
Magistrate's Court Criminal Case No. 511 of 2009.

BETWEEN:

THE STATE
APPELLANT

AND:

MOHAMMED FAIYAZ KHAN
RESPONDENT

Counsel: Ms Seini Puamau, State Counsel for the appellant
Mr S F Koya for the respondent

Written-Submissions : 16 May 2012 (by Appellant)
14 March 2013 (by Respondent)

Date of Hearing : 18 March 2013
Date of Judgment : 20 March 2013

JUDGMENT

1. This is an appeal by the Director of Public Prosecutions [DPP] against the ruling dated 26 August 2011 of the learned Magistrate, Nadi, acquitting the accused-respondent [the respondent] at the close of the prosecution case.
   
2. The respondent, who stood charged on one count each of 'Wrongful Confinement' and 'Rape' punishable under Sections 256 and 149/150 of the Penal Code, was acquitted by the learned Magistrate after consideration of an application under Section 178 of the Criminal Procedure Decree No 43 of 2009 to the effect that there was no case for the respondent to answer.
   
3. The DPP, in his petition of appeal dated 22 September 2011aginst the ruling, urged three grounds. They were:
   
   • (a) The Learned Magistrate erred in law and in fact in extraneous and irrelevant matters in arriving at a decision on an Application for "No Case to Answer" inter alia:
     
     • (i) The fact that this was not the first time the complainant had met the accused in Fiji;
       
     • (ii) The fact that the complainant had consumed a little alcohol with drugs prior to the alleged wrongful confinement and alleged rape; and,
       
     • (iii) The fact that in her evidence the complainant had said that the accused was behaving like her boyfriend;
       
   • (b) The Learned Magistrate erred in law and in fact by failing to fairly consider the test on "No Case to Answer" from the position of the both the State and the Defence in that the Learned Magistrate considered the "No Case to Answer" ruling predominantly from the perspective of the Defence as canvassed in their "No Case to Answer" submissions; and,
     
   • (c) The Learned Magistrate erred in law in making corroboration a condition precedent to a finding of credibility in a rape case, a judicial attitude which is prohibited pursuant to Section 129 of the Criminal Procedure Decree, 2009 and disapproved of by the Fiji Court of Appeal in Balelala v. the State [2004] FJCA 49; AAU0003.2004S (11 November 2004).
     
4. The DPP withdrew the 1st and the 2nd grounds of appeal and pursued only the 3rd ground relating to the alleged issue of the learned Magistrate requiring corroboration as a 'condition precedent' to find the victim's testimony credible in this case of rape. Written-submissions, too, were filed by both parties on the issue prior to the hearing.
   
5. Learned Magistrate, who reproduced the evidence-in-chief of the victim verbatim on well over three pages of his ruling followed by the evidence in cross-examination, determined that:
   

'...[T]here was no credible [and] admissible evidence that touches on the ingredients of the offence of rape namely 'that the accused had sex without her consent'.

The learned Magistrate further held that the evidence adduced by the prosecution had been so discredited as a result of cross-examination; and, also the evidence was manifestly unreliable that no reasonable tribunal could safely convict the respondent on it (paragraphs 38 and 39).

6. Evidence revealed that the complainant-victim, who was a New Zealand national, had visited Fiji many times at close intervals prior to April 2009. She had been well-acquainted with the respondent. They had been spending virtually the whole day travelling around and drinking together before and after the alleged incident of rape on 17 April 2009. The victim complained of rape only on 19 April 2009 on her return to New Zealand. These facts were uncontradicted before the learned Magistrate and remained unchallenged before this court as well.
   
7. The learned Magistrate, at the close of the prosecution case, found that:
   
   • (i) The victim did not complain to police on the date of the incident, 17 April 2009, even though she had had ample opportunities to do so as a frequent visitor to Fiji;
     
   • (ii) The victim complained to New Zealand Police upon her return on 19 April 2009 consequent to which investigations commenced in Fiji;
     
   • (iii) The victim's friend-Bunty, for whose birthday the victim had visited Fiji in April 2009, was not called by the prosecution even though the victim asserted that she [the victim] immediately had told Bunty about the alleged incident of rape on 17 April 2009;
     
   • (iv) The complaint should have been made on the first available opportunity reasonably after the offence for the elapse of time would render the complaint inadmissible;
     
   • (v) The victim had been staying with the respondent the whole day of 17 April 2009 travelling, shopping and drinking together before and after the incident; and,
     
   • (vi) The complainant's conduct was not at all consistent with the natural resistance or action of a woman who could be in a situation such as hers.
     

The learned Magistrate in paragraph 32 of his ruling stated that:

The[re was] no forensic evidence which support[ed] a rape situation such as torn clothes and bodily injuries. The complainant in cross-examination stated that her bikini was not damaged. The complainant was medically examined in New Zealand 73 hours after the incident. There [was] no medical evidence to show that there ha[d] been signs of recent forced sexual contact. The complainant was not medically examined immediately after the rape.

8. It is the above conclusion that had formed the basis for the DPP to appeal to this court against the ruling of the leaned Magistrate on the ground set-out above.
   
9. I have considered the evidence had before the learned Magistrate in light of his ruling and the submissions of learned counsel at the hearing.
   
10. Upon consideration of the ruling, I find that the learned Magistrate had not looked for corroboration as a 'condition precedent' to hold the victim's account acceptable. Instead, what the learned Magistrate had considered, as set-out in paragraph (8) above, was to see the necessary evidence for the learned Magistrate to be able to be satisfied that the accused did, in fact, have unlawful carnal knowledge to constitute the offence of rape. This became absolutely necessary in view of the victim's failure to lodge a prompt complaint in Fiji after the alleged incident. The belated complaint, in my view, went so deep as to affect the all-important issue of 'absence of consent' without which an allegation of rape could not sustain. The search for discovery of such evidence in order to prima facie establish a charge of rape, in my view, was within the juridical purview of a court for proper evaluation and analysis of the evidence of a victim in a case of rape like in any other.
    
11. The learned Magistrate did not guard himself against the traditional warning that it was dangerous to act on uncorroborated evidence of the victim [in sexual assault cases]; nor, did he insist on the rule of practice on such warning, which, until recently, was followed as a common law principle in sexual offences. The learned Magistrate, in the circumstances, did not make 'corroboration' a 'condition precedent' to attach credibility to the victim in this case as contended by the DPP in his sole ground of appeal.
    
12. In the circumstances, I am of the view that the learned Magistrate had not offended the principles set-out in Balelala v the State [2004] FCA 49: 11 Nov. 2004; or, the explicit statutory provisions contained in Section 129 of the Criminal Procedure Decree No 43 of 2009 on the rule against the need for corroboration in sexual offence cases.
    
13. Conversely, the decision in Balelala case (supra), upon which much reliance was placed by Ms Puamau, appears to have been misunderstood in its essence. Firstly, it expounds the principle of corroboration based on the English decision in Regina v Baskerville [1916] 2 KB 658 holding that 'the corroboration is evidence independent of the [victim] to be corroborated which confirms some material particular[s] not only the evidence that the crime had been committed but also the prisoner committed it.' Secondly, it distinguishes the evidence of corroboration from the evidence of consistency. Their Lordships of the Fiji Court of Appeal in Balelala's case held that '...[the evidence] concerning the forensic samples ...[victim's] distressed state, the presence of bruising and scratches to her person and [recoveries] did not amount to corroboration .... They only amounted to '... evidence of consistency with the complainant's account.... [Such] evidence, however, still remained relevant for an assessment of [victim's] credibility as a witness.(At page 4 of 12 of the judgment).
    

(Underlined for emphasis)

14. In effect, the learned Magistrate had conformed to the principles laid down in Balelala's case, which also permitted a trial court to be circumspect and scrupulously analyze a victim's evidence when there are circumstances such as unexplained delay in reporting - like in this case - and room for fabrication for some reason or the other (See page 11 of 12 of the Balelala's judgment). This is good law and that should continue to be the law. In as much as a victim's evidence in a case of sexual offence should not be fettered by obsolete rules such as corroboration warnings, criteria for analysis of such evidence also should not be relaxed so as to give her [the victim] a special standing at the trial.
    
15. Moreover, credibility of the victim in order to determine the issue of 'absence of consent' was essentially a question of fact. The learned Magistrate was best positioned to determine the issue having had the benefit of seeing the demeanor and deportment in the course of the victim's testimony. An appellate court would not usually interfere with such a factual consideration of a trial court unless there are compelling circumstances such as that the trial Magistrate has manifestly erred on the issue of assessing evidence. I do not find such circumstances in this case.
    
16. I, accordingly, find that the sole ground of appeal, too, is misconceived and has no merit. I dismiss the appeal but without costs although the respondent had asked for the same at higher scale in his written-submissions.
    

Priyantha Nāwāna
Judge
High Court
Lautoka
20 March 2013