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Vukei v The State [2004] FJHC 97; HAA0064J.2003S (29 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0064 OF 2003S

Between:

SEMITI VUKEI
Appellant

And:

THE STATE
Respondent

Hearing: 22nd April 2004
Judgment: 29th April 2004

Counsel: Mr. T. Fa for Appellant
Mr. W. Kurisiqila for State

JUDGMENT

The Appellant was convicted after a trial of the following offences:

COUNT ONE

Statement of Offence

INDECENT ASSAULT ON FEMALE: Contrary to Section 154 of the Penal Code, Cap. 17.

Particulars of Offence

SEMITI VUKEI in the year 1990, in Suva in the Central Division, unlawfully and indecently assaulted Kelera Vakaloloma.

COUNT TWO

Statement of Offence

INDECENT ASSAULT ON FEMALE: Contrary to Section 154 of the Penal Code, Cap. 17.

Particulars of Offence

SEMITI VUKEI in the year 1992, in Suva in the Central Division, unlawfully and indecently assaulted Kelera Vakaloloma.

COUNT THREE

Statement of Offence

INDECENT ASSAULT ON FEMALE: Contrary to Section 154 of the Penal Code, Cap. 17.

Particulars of Offence

SEMITI VUKEI in the year 1994, in Suva in the Central Division, unlawfully and indecently assaulted Kelera Vakaloloma.

COUNT FOUR

Statement of Offence

RAPE: Contrary to Section 149 and 150 of the Penal Code, Cap. 17.

Particulars of Offence

SEMITI VUKEI in the year 1996 in Suva, in the Central Division, had unlawful carnal knowledge of Kelera Vakaloloma without her consent.

COUNT FIVE

Statement of Offence

INDECENT ASSAULT ON FEMALE: Contrary to Section 154 of the Penal Code, Cap. 17.

Particulars of Offence

SEMITI VUKEI in the year 1997 in Suva, in the Central Division, unlawfully and indecently assaulted Kelera Vakaloloma.

COUNT SIX

Statement of Offence

INDECENT ASSAULT ON FEMALE: Contrary to Section 154 of the Penal Code, Cap. 17.

Particulars of Offence

SEMITI VUKEI on the 21st day of May 1998 in Suva, in the Central Division, unlawfully and indecently assaulted Kelera Vakaloloma.

He appealed against conviction and sentence in person, on a number of grounds. However on the date of the hearing of this appeal he was represented by counsel who abandoned all grounds save one. That ground reads:

“That the learned magistrate erred in law by refusing my only piece of evidence (a letter of apology written by the complainant confessing that she made up the allegation I am accused of.”

The facts

The charges were filed on the 17th of December 2001. The Appellant pleaded not guilty. Over numerous hearing dates, there was some difficulty to getting the complainant to court. On 30th July 2002, the Appellant told the court that he had a letter written by the complainant stating that she had lied in her complaint. The court gave the letter to the prosecutor to hand over to the police for further investigation. A bench warrant was issued for the complainant. The Appellant was remanded in custody on the ground that he had interfered with a prosecution witness.

The trial finally proceeded on the 27th of August 2002 after the Appellant had been remanded in custody for two weeks. The complainant gave evidence from behind a screen.

She said that the Appellant was her natural father and that she had lived since her childhood with him and her stepmother Mere Vukei. Her date of birth is 30th May 1984. In 1990 when she was six years old, she was sleeping on her bed when her father indecently assaulted her by touching her genitals. She told no one. In 1992, he did this again, and performed oral intercourse with her. This incident was repeated on another occasion, and also in 1995. In 1996, when she was in Class 6 and was 2 years old, he tried to rape her, by forcing part of his penis into her vagina. In 1997 he again touched her private parts after he had disciplined her by belting her. He did this after he saw her talking to a boy.

In 1998, after he again touched her breasts and private parts she told her class teacher that she had been abused by her father. Her teacher took her to the Principal who asked her for details. The Principal then called the Women’s Crisis Centre. Later the complainant went to the Maafu Girls’ Home where she remained for a few months while police investigations continued. She said: “I recall writing a letter, asking for forgiveness from my dad. My father asked me to write the letter. I didn’t write the letter out of my own free will. Because I was living with the accused, I had no choice but to write it.”

The letter was shown to the complainant and she identified it. It was tendered as an exhibit.

In cross-examination, the Appellant suggested to the complainant that she had concocted her entire story, that he had never indecently assaulted her, not had sex with her. The court record indicates that she wept while being cross-examined, saying that her evidence was the truth and that she was sorry but had no choice but to tell the truth.

Edward Brown and Catherine Nand, who were the complainant’s school teachers gave evidence of her distress on telling them what the Appellant had done to her. There was very little cross-examination of them.

PW4 was Mere Vukei, the Appellant’s wife and the complainant’s stepmother. She also gave evidence that the complainant told her that she had been abused by the Appellant. There was no cross-examination.

Sgt. Miliakere Dumulolo gave evidence that she interviewed the Appellant under caution. He denied any act of indecent assault or of rape or attempted rape. Dr. James Fong tendered the medical report of the complainant. Although he was not the examining doctor he tendered the report as a trade or business document under section 4 of the Evidence Act.

The medical report was recorded on the 26th of May 1998. The complainant was then 13 years old. She told the doctor she had been touched on her private parts by her father every week since she was small and that there had been no penile penetration. She was distressed when the doctor conducted his examination of her genital area. The doctor found that the complainant’s hymen was not intact and that sexual assault had occurred over many years using a finger. There was no evidence of penile penetration, but the doctor considered that his findings were consistent with sexual abuse.

Under cross-examination the doctor said that vaginal penetration was probably 2 years previously because the injuries likely to be caused by forceful contact would have healed. The doctor was asked if the complainant may have caused the rupture of the hymen herself. He said that it was possible but that it was unusual for a girl to abuse herself and to cause herself injuries.

The Appellant gave sworn evidence. He pointed to the inconsistency between the complainant’s allegation of penile penetration and the medical report. He said the complainant had concocted her story and that the letter she wrote proved his innocence.

Under cross-examination he said he had frequently disciplined his daughter with sticks and belts but that he had never sexually abused her. At page 31 of the record he said: “I didn’t abuse my daughter. I did not rape her. I did not force my daughter to write the letter she wrote. I didn’t apologise to PW1.”

Judgment was delivered on 26th November 2002. After reviewing the evidence, and giving himself the appropriate corroboration warning, he concluded that there was no corroboration of the complainant’s evidence. However he found the evidence of recent complaints to her teachers, and the medical report, to be consistent with the allegations of sexual abuse. He said he found the complainant to be a credible and reliable witness. He said that there was some doubt as to whether there had been any penile penetration, but accepted that the Appellant had attempted such penetration without the complainant’s consent. He convicted him instead of attempted rape on Count 4, and convicted him on all other counts. He sentenced him to 12 months imprisonment on each count of indecent assault, and to 3 years imprisonment on the count of rape. The total sentence was 8 years imprisonment.

A perusal of the learned Magistrate’s judgment reveals that counsel rightly abandoned all other grounds of appeal. Although the Appellant was unrepresented at the trial, the learned magistrate obviously took care to ensure that he was not prejudiced by lack of representation. The defence was clear and unequivocal and cross-examination was vigorously conducted. There were no errors of law or fact in the judgment.

The only remaining ground is that the learned Magistrate erred in failing to refer to the letter written by the complainant. That letter was written in Fijian and no English translation was included in the record. However the High Court interpreter prepared the following translation:

“Dear Dad,

Hello father. I hope that you are well. I am well here and there is no problem.

Dad, I am only writing to you now because I have regretted making those allegations against you falsely. I came home and Mum told me that you are being prosecuted. I stand and think about the wrong that I have put you in. Dad, I request you and Mum to forgive me. Dad, I wish to come clean to you, that all the allegations I made against you, I made it all up inside me. I did all that because I wanted a free life and do not want anyone to boss me. I made up my story from Titilia. Dad, I know that both you and Mum are really ashamed, but your shamefulness is small compared to mine. Dad, I am frightened to see the police. I am also ashamed to come home. Dad, I request a favour from you, when you go to court again, show this letter to the police. I am really ashamed. Dad, I hope you have accepted me. I wish to end here. Regards.

From your only daughter.

K. Vakaloloma”

If accepted, this letter would have constituted a previous inconsistent statement because it states that the charges against the Appellant were false. However, in her evidence-in-chief, the complainant quite categorically explained the circumstances in which she wrote the letter. She said she had been forced by her father to write the letter and that it was false. The Appellant never cross-examined her on this issue. This failure on his part may have been due to his ignorance about the laws of evidence, but the record shows that he was able to put his case in other respects, succinctly to the complainant including an allegation that she and her friend Titilia had made up the allegation. Further, although the letter is undated, it was agreed by the Appellant that this letter was written when the complainant was 13 years old and living with him. What weight could any court put on a letter written by a complainant in these circumstances?

It would certainly have been advisable to refer to the letter in the analysis of the complainant’s evidence, but I do not consider that a failure to refer to it renders the convictions unsafe. Given the complainant’s clear explanation for the letter, a conclusion that no weight could be put on the letter, particularly when her evidence was accepted as being credible and reliable would be unsurprising.

For these reasons, this ground of appeal fails.

There is no appeal against sentence. This appeal is dismissed.

Nazhat Shameem
JUDGE

At Suva
29th April 2004