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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[ON APPEAL FROM THE HIGH COURT]
Criminal Appeal No. AAU 0100 of 2014
(High Court Case No. HAC 005 of 2011)
BETWEEN:
NIZAR MUNIT SAMUT
Appellant
AND:
THE STATE
Respondent
Coram: Gamalath, JA
Prematilaka, JA
Bandara, JA
Counsel: Appellant in Person
Mr. S. Babitu for the Respondent
Date of Hearing: 14 November 2019
Date of Judgment: 28 November 2019
JUDGMENT
Gamalath, JA
[1] The appellant stood charged in the High Court of Lautoka, on a charge of Rape, under section 207(1) and (2) (b) and (3) of the Crimes Act 2009, and according to the particulars of offence, he had on the 12th January 2013, at Lautoka, inserted his finger into the vagina of one X (name suppressed), a child of three years, an alleged incident of digital rape of a child. At the conclusion of the trial, the appellant was found guilty as charged and sentenced to 14 years and 8 months imprisonment with a non-parole period of 13 years imprisonment. Being aggrieved by the said conviction and the sentence the appellant proceeded to file a timely application for leave to appeal and the learned single Judge, having considered the following grounds of appeal, granted leave to appeal against the conviction and the sentence;
Grounds of Appeal
(1) The Learned Trial Judge erred in law and in fact when he failed to direct the assessors and/or caution them about the dangers of relying on photograph identification.
(2) The Learned Trial Judge erred in law when he failed to remind the child victim about the importance of telling the truth before receiving her evidence resulting in unsafe conviction.
(3) The Learned Trial Judge erred in law and in fact when he failed to direct the assessors that evidence of recent complaint is not evidence of the facts complained of and cannot be regarded as corroboration with her evidence given at trial.
(4) The Appellant was prejudiced due to lack of legal representation.
(5) The Learned Trial Judge erred in principle and also erred in exercising his sentencing discretion to the extent:
- (a) That he took a high starting point of 12 years imprisonment;
- (b) Adding 4 years as aggravating factors to the already high starting point;
- (c) The aggravating factors included repeated features which was unfair to the Appellant.
[2] As reflected in the Ruling of the learned single Judge, the State had conceded at the leave stage that the grounds “two and three above are arguable”. Further, while agreeing with the contention of the counsel for the appellant at the leave hearing, the learned single Judge ruled that there had been double counting of the aggravating factors, of which details would be referred to in the judgment later, and thus it poses an arguable point as to the accuracy of the quantum of the sentence of imprisonment.
[3] Before us on 14 November 2019, the day of the argument of this appeal, the appellant appearing in person , submitted that in addition to the aforementioned grounds of appeal, he is presently relying on a set of new grounds of appeal , sixteen in all, which according to him ,were submitted to the Registry with the permission said to have been granted by Hon. Calanchini P, on the day of the call over in June. According to the appellant, Honorable Calanchini P, at the call over in June 2019, granted permission to him to tender them along with the written submissions. The new grounds, thus filed have not been included in our appeal briefs. However, the counsel for the DPP informed that his office had received them through the Registry in August 2019. Be that as it may, we informed the appellant that in order for these new grounds to be entertained, the threshold requirements as per the Rules should be satisfied by obtaining the enlargement of time on the one hand and leave to appeal on the new grounds on the other hand. Counsel for the State informed the Court that the new grounds, do not contain any thing significantly distinguishable to the grounds upon which the original leave to appeal application was founded, save as one of the grounds of contention that at the end of the prosecution’s case, the learned High Court Judge ought to have considered the termination of the proceedings for want of evidence to establish a prima facie case that warrants the calling of a defense. The appellant conceded the submissions of the counsel for the State. Given the fact that the appellant is appearing in person, the Court decided to consider the new ground along with the rest as referred to above.
The Facts
[4] At the trial, the prosecution relied mainly on the evidence of the victim and her mother, one P. B. Devi. They claim a relationship, with the appellant in the sense that the appellant’s father and the father-in law of P. B. Devi are brothers. According to Devi’s evidence, the appellant who had been living in the USA used to visit them whenever he returned to Fiji. On the day of the alleged incident, the appellant had visited them on invitation by Devi’s mother-in law, who sought the appellant’s assistance to have a broken window mended. There had been several people chatting in the house, while the victim had gone out to collect eggs. It was at that stage the appellant had taken the victim into a spare room, removed her clothes, and after having wet one of his fingers with saliva, inserted it into the victim’s “private part”. This caused pain to her private parts. The victim knew the appellant prior to this incident. She described him as “Niz uncle”, who had once visited the victim’s family and “stayed with them for a long time.”
[5] At the trial, for some reason that is not easy to fathom having regard to the available material in the record, the victim was made to testify initially from behind a screen , in order most probably to alley her possible fears of being directly confronted with the presence of the appellant. It was at that stage, pursuing a rather peculiar procedure, the State Counsel, with the permission of court exhibited a “photo board” to the victim, who in turn had identified the appellant’s photograph among nine other person’s photographs as that of the appellant’s. Thereafter, the screen had been removed and the victim identified the appellant in open court as “Niz uncle”. It is significant that the victim had identified the appellant without any difficulty.
[6] The victim’s evidence remained un-impeached in the cross examination. The appellant questioned the victim about the clothes she was wearing on the day of the incident and apart from that terse cross examination, the appellant did not venture into questioning the victim about any other material issue on which the victim gave convincing evidence, implicating him in the commission of the offence. Importantly, he did not challenge her evidence on the recognition she made of him and the accusation that after removing her clothes he interfered with her “private part” of the body. The victim pointed to her genital area as her private part and described how she felt the pain when the appellant “used his finger on the private part”. There had been bleeding slightly as well, according to the victim’s evidence. As already stated, this crucial evidence remained unchallenged in the cross - examination.
[7] The victim informed her mother P.B. Devi and her grandmother about the incident. P.B. Devi referred her to a medical officer for examination. According to P. B. Devi, while bathing her daughter, she noticed that the victim was in a state of shock and when questioned, the victim had related the incident to her. Victim requested her not to apply soap or water on her “private part of the body”. Her evidence is that “then she said chachu inserted the finger in the private part. She said little bit of blood came out”. Nizar, the appellant was staying with them for three days and it was her mother in law who had informed the appellant’s father about the incident. Devi’s evidence is that the father of the appellant had informed the incident to the police.
[8] Devi took the victim to a medical Doctor Tieri Margret Konrote, who could not examine the victim until 1-February 2013, due mainly to her emergency work at the intensive care unit. Upon examination of the victim, the doctor found no bruises or lacerations to her private area .However, the medical evidence was that there was a 8 o’clock position “cleft (split) (gap) (uneven area)”, which was 2mm.The doctor’s evidence is that “it is possible that history and physical examination are consistent 80% time”, and “cleft or discontinued area in hymen could have been caused by penetration of vagina by finger”. Answering the cross examination the witness further said that “cleft could have represented the injury to hymen which is healed”
[9] The rest of the prosecution evidence came from the police investigators. At the conclusion of the prosecution case, the learned Judge explained the evidence to the appellant and called upon him to exercise his rights. The appellant had opted to remain silent.
A brief analysis of the totality of the evidence
[10] Considering the evidence as a whole, it is clear that the appellant who is a relative of the victim and her family and who had opted to stay with the victim’s family whenever he returned from abroad had taken advantage of the vulnerability of the victim who was merely four years old at the time when she fell pray to the sexual aggression. The main evidence relating to the alleged offence transpired through the uncontradicted, unambiguous evidence of the three year old victim appears convincing. The assessors had unanimously opined that the appellant is guilty as charged and the Learned Trial Judge agreed with the opinion.
The grounds of appeal
[11] (a) The learned Trial Judge erred in law and in fact when he failed to direct the assessors and /or caution them about the dangers of relying on photograph identification.
In the learned single Judge’s ruling he held that since the appellant was not represented by counsel, tendering of photographs may have had a prejudicial effect on the appellant. Thus he ruled that the first ground of appeal should be considered along with the fourth ground of appeal that; “the appellant was prejudiced due to lack of legal representation”.
[12] Considering these grounds of appeal together, on being questioned by the Court as to what prevented the appellant from seeking the assistance of legal aid through the Legal Aid Commission, which he could have availed of with ease, the appellant informed that it has been on his own volition he opted to represent himself. He had rejected the assistance once afforded by the Legal Aid Commission and decided to rely on his own wits to defend himself. In the trial, the learned trial Judge has, correctly adhering to the procedural propriety that ought to have been followed in instances of this nature, where the accused appeared in person, explained to him the nature of the accusation and the evidence as produced by the prosecution. In the circumstances, the non-availability of legal assistance at the trial stage cannot be considered as having a serious impact on the final outcome of the case.
[13] On the issue of the identification, clearly the identification of the appellant was based on recognition and both the victim’s uncontradicted evidence and the evidence of Devi bears ample testimony to that fact.
Referring to the summing up, I find the following directions in paragraph 20 (see page 121) on the subject of the identification;
“In assessing the identification evidence, you must take following matters into account;
(1)Whether the witness has known the accused earlier?
(2) For how long did the witness have the accused under observation and from what distance?
(3)Did the witness have any special reason to remember?
(4)In what light was the observation made?
(5)Whether there was any obstacle to obstruct the view?”
[14] As can be understood, these directions are given in line with the oft cited dicta contained in R. v Turnbull [1977] Q.B. 224 at 228-231. However, suffice it to state that as far as the trial of this appeal is concerned, the identification of the appellant had never been an issue, for it had been the consistent position of the lay prosecution witnesses that the appellant is their relative, uncle Niz, and the factual narration of the events, particularly that of the victim is concerned it had been devoid of any prevarication and thus could be acted upon with no difficulty. The application of Turnbull becomes relevant in instances where the visual identification evidence is challenged by the defense. Which is not what had happened exactly in the instant case. In the sense, Turnbull guidance does not provide a common yardstick to be used in each and every issue relating to identification of an accused person, but most certainly it does operate with full vigor in instances where the visual identification of an accused person becomes the core issue of a case, and whenever the issue is seriously contested to debase the very foundation of a prosecution. The issue of identity of uncle Niz had never been a contested one. He belonged to the victim’s family through extension. Neither the victim nor her mother Devi was cross- examined on that fact and thus the issue of the identification of the appellant was not a contested one.
[15] However, the question is about the peculiarity of the proceedings resorted to both by the investigators as well as the prosecutor by requiring the child victim to point out the photograph of the appellant which had appeared on a “photo board” along with nine other persons. Here also the undisputed evidence is that the victim had made no mistake in picking the photograph of the appellant and in the backdrop of the circumstances of this case the picking of the appellant’s photograph should be considered, in all probabilities, as an inevitability. I am, therefore, in agreement with the respondent’s submission that “the use of photograph identification is not in itself fatal to this case”.
[16] Further, another issue that deserves consideration revolves around the fact that whether the photo board used by the prosecution had caused any prejudice to the appellant at the trial, in the sense would that had caused a prejudicial effect in the minds of the assessors. The law as had been decided in the common law acknowledges that certain degree of caution should be administered in admitting photograph evidence on identification of an accused person. In R. v Carusi (1997)92 Crim LR 52, Hunt CJ (Newman and Ireland JJ concurring) at p64-65, decided that;
“...I reject the appellant’s submission that evidence of identification from photographs should always be excluded if at the time when they were shown to the witness it was reasonable and practicable, or reasonably open to the police to request the suspected person to participate in an identification parade”.
“In my judgment, there is no rigid rule excluding the use of photographs in relation to a person who is under suspicion but who has not been taken into custody. Nevertheless , a primary issue in most cases will be whether it was necessary at that stage in that peculiar case to show photographs to that particular witness in order to know who to arrest and charge. Until the police have such knowledge, the detection process (to adopt the language of Stephan J) is not complete and useful.
“There are well recognized considerations which would incline a trial judge to permit evidence to be given of identification from photographs, notwithstanding the police already knew at that time that he was the person to arrest and charged; such as, where it would be inappropriate in relation to the police investigation to reveal to the accused that he is under suspicion; where the accused has refused to participate in an identification parade or has failed to co-operate when the parade is conducted; where by reason of the unusual physical appearance of the accused it is not reasonably practical in the circumstances to provide a sufficient number of other persons of roughly similar physical appearance to stand with the accused in such parade; where the physical appearance of the accused is materially different to what it was at the time when he is alleged to have committed the offence; where the accused cannot within a reasonable time be located; where there are other exigencies of time which would make it impracticable to conduct an identification parade; where the witness is unable reasonably so to participate. That list is not intended to be exhaustive” (p70).
[17] In the case of Alexander v. The Queen [1981] HCA 17; (1981) 145 CLR 395, Gibbs CJ at 400-401 states as follows; “...There are however, two grounds of objection to the proof of identification by means of police photograph. In the first place, the accused will be absent when the identification is made, and has no means of knowing whether there was any unfairness in the process or whether the witness was convincing in the way in which he made the identification. Secondly, the production in evidence at the trial of photographs coming from the possession of the police is very likely to suggest to the jury that the person photographed had a police record, probably for offences of the kind in question”.
[18] Per Stephan J. at 409; “The use of photo identification in evidentiary process involves three further factors of a quite different kind which apply to its use in that process. Unlike the case of an identification parade, an accused whose identity as the offender is sought to be proved at his trial by evidence of previous photo-identification, is likely to know nothing at first hand of the way in which the identifying witness earlier identified his photograph as that of the offender. He must rely upon cross-examination of prosecution witnesses for knowledge of the conditions of identification and of what safeguards were taken against error on the part of the identifying witness”.
[19] The principles of law as enunciated in the judgments above have no relevancy to the instant case. As already stated the appellant and the witnesses were known to each other and there had not been any dispute over the issue about their familiarity through family connectivity. On the issue of prejudice, every item of evidence produced in a trial by any competing party would carry in it an inevitable degree of prejudice. What is directly relevant to be evaluated is whether the prejudicial effect of the particular evidence outweighs the probative value of the evidence and on the face of the record I do not find any material to conclude that that had been the case in this instance and in the circumstances the grounds of appeal as relied upon by the appellant are untenable.
[20] Now I turn to ground 2;
“The learned trial judge erred in law when he failed to remind the child victim about the importance of telling the truth before receiving her evidence resulting in unsafe conviction”; The State conceded before the single Judge’s hearing that this poses an arguable issue.
[21] In so far as this ground is concerned , what appears from the proceedings at the trial is that before the victim testified , the learned trial Judge had “asked a few questions to ascertain whether she could understand and give rational answers” and according to the learned trial Judge the victim “had given proper answers” to those questions. It is unfortunate that the nature of this important inquiry has no reflection in the proceedings and as had been stated in the decision of Dass v State [2018] FJCA 67; AAU 59.2014 (1 June 2018), and later endorsed by the Supreme Court in Dass v. State FJSC 28; CAV 0014,2018 (2 November 2018) , it is incumbent upon the trial judge to maintain the record of the nature of the important inquiry conducted in determining whether the child witness has the capacity to understand the questions put to her. Criminal Procedure Code, section 117 (1) provides the general principles of law of evidence on examining a witness either on oath or affirmation. Exception to this general rule of evidence is in section 117 (2), which states that “the court may at any time, if it thinks it just and expedient, take without oath the evidence of any person ...”, and subsection (b) of section 117 refers to children who “by reason of immature age ... ought not to be required to give evidence on oath....” As decided in the aforementioned decisions as well as the statutory provisions –see section 117 (3), of the Criminal Procedure Act, whenever the court determines to act under the exception of sub-section (2) of 117, the court “shall record the fact that evidence has been taken in accordance with sub-section (2), and the reasons for allowing the evidence to be taken without oath.”
[22] This exercise should have reflection in the court proceedings and this duty should not be considered as insignificant. The statutory provisions referred to above are self-explanatory and thus there is no requirement for further effort for the interpretation of its purposiveness. In the instant case, there is nothing on record to show the learned Judge’s adherence to the legal requirement. However, having regard to the evidence given by the child victim of this case, there is nothing to question her comprehensibility of the nature of the evidence and the coherence with which she had testified at the trial, despite being a child of merely 4 years of age. In the circumstances, I am unable to agree with the validity of this ground of appeal and I find that the ground lacks merit to vitiate the final outcome of the trial.
[23] The third ground advanced by the appellant is that; “the learned trial Judge erred in law and in fact when he failed to direct the assessors that evidence of recent complaint is not evidence of the facts complained of and cannot be regarded as corroboration but goes to the consistency of the conduct of the complaint with her evidence given at trial”.
As regards this contention, the learned Trial Judge had stated as thus; [see paragraph 33 of the summing-up]; “In assessing her evidence you have to keep in mind that she is the mother of the complainant. If you believe her evidence beyond reasonable doubt then there is evidence of recent complaint. You have to decide whether her evidence confirms the evidence of the victim.”
[24] In my opinion, it is incorrect to construe that the learned High Court Judge had used the word “confirms” to convey to the assessors that that piece of evidence is capable of corroboration the evidence of the victim as she was sexually abused by the appellant. What the learned Judge has stated in clear terms is that the victim’s version in evidence has been confirmed by the witness’s evidence, in the sense one’s evidence is compatible with the others. It is in my view a legitimate observation made by the learned Trial Judge, having regard to the evidence of the case. (See Kumar v State [2018] FJSC 30; CAV 0017.2018(2 November 2018).
[25] The other ground is about the sentence and according to the ground of appeal, “the trial Judge enhanced the sentence by 4 years to reflect the following aggravating factors;
(i) Serious breach of trust by the victim towards the appellant;
(ii) Victim is of very young age;
(iii) Lack of remorse;
(iv) The victim relive her experience in court;
(v) The appellant took advantage of the victim’s vulnerability;
(vi) The appellant had traumatized the life of the victim”.
[26] “The appellant submitted that factors (iii), (iv) and (v) are repeated factors of aggravation which are already part of (i) and (ii)”. (See the learned single judge’s ruling in paragraphs 5 and 6). The learned single Judge held that there is an arguable error in the sentencing discretion regarding the consideration of the aggravating factors. I wish to concur with the opinion expressed by the learned Single Judge as regards this matter. As decided in Anand Abhay Raj v The State (CAV003.2014), the tariff for rape of young children is between 10 to 16 years. The victim in this case as discussed above, was only 3 years old when she fell prey to the desires of the appellant. Taking the starting point at the lower end of the tariff, the learned trial Judge has commenced the sentence at 12 years imprisonment. In the backdrop of all the attendant circumstances of this case, I see no reason to interfere with that decision. However, there seems to be a perceivable error in considering the aggravating factors. On the issue of aggravating factors, sometimes it is common for us to refer to the United Kingdom’s guiding principles on sentencing as contained in AG’s reference no. 73,75 and 03 of 2010, in R v Michael Anighbugu Hyung Worpyo and Mark Stuart McGee [2011] EWCA of 633”. Some of the aggravating factors as decided in the judgments have been as follows:-
(i) Abduction or detention
(ii) Offender aware that he is suffering from a sexually transmitted infection
(iii) More than one offender acting together
(iv) Abuse of trust
(v) Offence motivated by prejudice
(vi) Sustained attack
(vii) Pregnancy or infection attack
(viii) Offender ejaculated or cause the victim to ejaculate
(ix) Background of intimidation or coercion
(x) Use of drugs, Alcohol or the substance to facilitate the offence.
The list is not exhaustive. In the two cases referred to above, the Court of Appeal considered the two cases of women being seriously assaulted that night when asleep in their own homes, and a third of a woman similarly assaulted whilst caring for a fragile elderly man whose home was burgled. Finding that unduly lenient sentence has been imposed in relation to all three defendants, the Court of Appeal provided the useful guidelines as stated above on sentencing.
[27] In the decided cases, the court identified further aggravating features including the taking of photographs of the victim which they described as a serious aggravating feature. Mitigating factors were also considered in the judgment referred to above where it was held that where the victim is aged 16 or over; the victim engaged in consensual sexual activity with the offender on the same occasion and before the offence or reasonable belief (by a young offender) that the victim was aged 16 or over could be mitigating factors. The above decisions along with an array of our own authorities would provide sufficient precedence as to what factors should be considered as aggravating and mitigating in sentencing in sexual offences.
[28] On a careful consideration of the aggravating factors, as per the sentencing decision of the learned trial Judge in this case, I find that the factors (iii) to (vi) above are interrelated as they are all subsumed in (i) and (ii) aggravating factors referred to by the learned trial Judge in sentencing. This in my opinion is a perceivable error in the computation of the total sentence. Thus the 4 years period imposed based on the aggravating factors should be reduced by 2 years, making the total sentence to be spent 13 years and 8 months. In order to be compatible with the reduction of the sentence of imprisonment, the non-parole period should also be reduced to 12 years.
[29] Finally, the new ground of appeal advanced by the appellant was to the effect that the learned Trial Judge should have terminated the proceedings on the basis of no case to answer, at the conclusion of the prosecution case. Applying the principles of Galbraith [1981] 1 WLR1039; 73 CR. App.R.124, CA, the convincing evidence available in this case would not warrant a termination of proceedings at the conclusion of the prosecution’s case, as per section 231 (1) of the Criminal Procedure Act 2009 (chapter 21).
Prematilaka, JA
[30] I have read in draft the judgment of Gamalath JA and agree with the conclusions therein. However, in my view sentencing error in double counting is regarding (ii) & (v) and (iii) & (iv) as separate aggravating factors. They should have been treated as two aggravating factors instead of four. The rest can stand as separate aggravating factors.
Bandara, JA
[31] I agree with the reasoning and conclusions reached by Gamalath JA.
The Orders of the Court are:
Hon. Justice S. Gamalath
JUSTICE OF APPEAL
Hon. Justice C. Prematilaka
JUSTICE OF APPEAL
Hon. Justice N. Bandara
JUSTICE OF APPEAL
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