Court of Appeal of Fiji

Particulars of Offence

(i) Acted upon a wroa wrong principle;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.

[7] Gr of s of appeal against conviction and sentence urged on behalf of the appellant are as follows.

(i) ‘THE learned trial judge had erred in law and in fact when he failed to direct the assessors and himself on the principle of recent complaint and/or delayed reporting.

(ii) THAT the sentence imposed on the appellant is harsh and excessive.

[8] The appellant is the complainant’s mother and the complainant was 14 years of age when the incident happened. The trial judge had summarised the evidence of the complainant and the appellant as follows in the summing-up.

‘THE PROSECUTION CASE

19. ‘The prosecution’s case were as follows. The accused (DW1) is 45 years old. She is a single mother, and had three sons and a daughter. Her sons were aged 24, 21 and 8. Her daughter was 14 years old and is the complainant (PW1) in this case. At the time of the alleged offendings, the accused and her children were living at Wainibuku Hart as a family. PW1 is now a form 3 student at a school in Suva. At the time of the alleged offences, she was schooling at a primary school in Wainibuku.
    
20. According to the prosecution, when the accused and the complainant were at home alone, the accused used to force PW1 to take off her clothes. Thereafter, she used to tell PW1 to lie down. Then she fondled her breasts. According to the prosecution, PW1 was often lying down naked, and the accused used to forcefully part her legs, and licked her “mimi”, the term PW1 used to describe her vagina. According to the prosecution, when the accused was licking PW1’s vagina, her tongue often penetrated her vagina for about 2 minutes.
    
21. According to the prosecution, the accused did the above to PW1 approximately 20 times when her other siblings were not at home. She also used to fondle her breasts for about 20 times. PW1 said the accused also poked her vagina 3 times. Because of the above, the prosecution is asking you, as assessors and judges of facts, to find the accused guilty as charged on both counts. That was the case for the prosecution.
    

THE ACCUSED’S CASE

22. On 8 November 2017, the information was put to the accused, in the presence of her counsels. She pleaded not guilty to the charge. In other words, she denied the allegations against her. At the end of the prosecution’s case, she was acquitted on count no. 3. However, a prima facie case was found against her on count no. 1 and 2. She was called upon to make her defence. She chose to give sworn evidence and called no witness. That was her right.
    
23. The accused’s case was very simple. On oath, she denied the allegations against her. She said, she loved her daughter a lot and all she wanted for her was to focus on her education and to succeed in life. Because of the above, the defence is asking you, as assessors and judges of facts, to find the accused not guilty as charged. That was the case for the defence.’
    

01^st ground of appeal

[9] The appellant’s complaint is based on paragraph 26 of the summing-up which is as follows.

[26] The state’s case against the accused was based fundamentally on her daughter’s (PW1) verbal evidence in court. I will quote her evidence from the record for you,

“...She used to come to the room, that is, my mother. She used to tell me to take off my clothes. She used to tell me to lie down. I said no. She then forced me to lie down. She than touched my body. That is my breast and “mimi”. I was naked, she then poked my “mimi”. She was using her hand to touch me. She then licked my “mi221#8221;. My mother licks my “mimi”. She uses her tongue to lick my “mimi” for about 2 minutes. “#8221; is my private part. My private part is below me.

When she was licking king my “mimi”, I can feel it. I can feel the wetness of her tongue inside my “mimi”. I was scared. I use the “mimi” to urinate with. [PW1 point to where her vagina is, to demonstrate where her “mimi” is]. I can feel her tongue inside my “mimi”. Her tongue were inside my “mimi”, from the front. She licked my “mimi” for 2 minutes. She parted my legs and licked my “mimi”. She licked the front of my “mimi”. She force me to part my legs, so that she could licked me. I was crying. What she was doing to me was painful. When she was licking my “mimi”, it was painful. After that she told me to get dressed. She told me not to tell anyone else about the incident. I was scared of my mother. She had a short temper.

When mum touched my breast and licked my “mimi”, she did it in a room in our home. It was the house our family stays in. My brothers were not in the house and were somewhere else. Only myself and mum were in the house at the time. Between 1 January to 5 July 2016, she did the above most of the time, that is, she did it about 20 times. She touched my breast for about 20 times during the above period.

I used to cry on my way to school. I then told my form teacher about the above. Then we went to the Nakasi Police Station (NPS). At Nakasi Police Station, I gave my statements. I was later taken to the HOME.

I can’t recall 5 July 2016. The last time mum licked my “mimi” was on 5 July 2016. Before she licked my “mimi”, she touched both my breasts. At the time, I was living with mum. I was attending Wainibuku HART Primary School. She also poked my mimi 3 times. She also told me to poke her “mimi” some times.

My relationship with my mum was not good because she did not care for me. When I asked her to do something, she often refuses. When by brothers assaulted me, she does not care about it. Taniela often assaults me. Only he assaults me...”

[10] The appellant’s argument is on the portion of the complainant’s evidence ‘I used to cry on my way to school. I then told my form teacher about the above. Then we went to the Nakasi Police Station (NPS). At Nakasi Police Station, I gave my statements. I was later taken to the HOME.’. He submits that by that piece of evidence the prosecution had offered recent complaint evidence but the trial judge had failed to direct them in accordance with the law relevant to recent complaint evidence causing a miscarriage of justice. He relies on Raj v State [2014] FJSC 12; CAV0003.2014 (20 August 2014).

[11] In Raj v State (supra) the Supreme Court set down the law regarding recent complaint evidence as follows.

‘[33] In any case evidence of recent complaint was never capable of corroborating the complainant’s account: R v. Whitehea&#16> (1929) 1 KB 99. At moswas rwas relevant to the question of consistency, or inconsistency, in the complainant’s conduct, and as such was a m goinher credibility and reliability as a witness:&#16: Basant & Others hers v. s v. The State Crim. App. 12 of 19160;<;Jones v. The Queen [1d">[1997] HCA 12; (rd">(1997) 191 CLR 439; Vasu e State& Crim. App. 11/2006S, 24th N4th Nor 2006.