IN THE HIGH COURT OF THE FIJI ISLANDS
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO: HAA 0026 OF 2008

BETWEEN:

SAKIUSA TABUATOGA KAUKIMOCE
Appellant

AND:

THE STATE
Respondent

Mr. Nepote Vere for the Appellant.
Mr. Tevita Muloilagi for the State.

Date of Ruling: 30 January 2009.

RULING

1.	Sakiusa Tabuatoga Kaukimoce, you are the appellant in this proceedings. You were charged with the following offence:

Statement of Offence

INDECENT ASSAULT: Contrary to section 154(1) of the Penal Code Cap 17

Particulars of Offence

SAKIUSA TABUANITOGA KAUKIMOCE on the 31st January 2007 at Labasa in the Northern Division, unlawfully and indecently assaulted Dilitia Boginivalu.

2.	You pleaded not guilty and after a trial lasting 4 days, you were found guilty as charged and you were convicted.

3.	You were sentenced to 9 months imprisonment suspended for 2 years with effect from 7 April 2008. You were also ordered to pay court costs of $50.00.

Appellant’s Grounds of Appeal [Court Summary]

4.	By your petition of appeal dated 24 October 2008, you have submitted the following grounds in support of your appeal against conviction and sentence:

i)	that the charge was defective in that it incorrectly stated the State of Offence as ‘Indecent Assault’, when the proper Statement of Offence should have been ‘Indecent Assault of a Female’. Consequently the particulars omitted the words ‘woman or girl’, which is an essential elements of the offence under section 154(1) of the Penal Code Cap 17. The appellant submits that the correct wording of the charge should have been: 

‘Sakiusa Tabuatoga Kaukimoce, on 31 day of January 2007, at Labasa in the Northren Division, unlawfully and indecently assaulted a woman, namely Dilitia Boginivalu.’ 

This omission, you submit was fatal and since the prosecution did not apply to have the defect corrected before the trial was completed, the finding of guilty should be set aside and the appellant acquitted.

You further support your submission by drawing the court’s attention to section 28 (1) (j) of the Constitution, which says that no person should be charged with an offence which at the time of the offence the act or omission constituting the offence, was not an offence.

ii)	The learned Magistrate erred in law and fact when he accepted the distressed condition of the PW1 as corroboration in this case. Through your counsel you claim that given the inconsistent evidence of PW1 in court and in his police statement and her statement with those given by other witnesses, the learned Magistrate had no credible evidence to base his finding of corroboration. In other words the facts proven in this case could not provide corroboration.

State Response: [Court Summary]

5.	The State, as respondent submits that the charge was not defective in that while the words ‘woman or female’ is not in the particulars of the offence, it was saved by the fact that the name of the victim was included and that was sufficient particulars to inform the appellant what he was charged with. The appellant was not prejudiced at all in the preparation of his defence. The State further submits that if there was any short coming in the wording of the charge, it was saved by sections 119 and 122 of the Criminal Procedure Code Cap 21 [CPC].

6.	As regards the claim of lack of corroboration by the appellant, the State submits that the learned Magistrate was correct and his reasoning as set out in his judgment.

Appeal Determination

Was the Charge Defective?
 
7.	The first ground of appeal by the appellant contends that the charge was defective because it did not allege that the indecent assault was committed on a girl or woman, which is an essential element of the offence. That this defect rendered the entire proceedings a null and void.

8.	At the trial there was no objection taken to the charge in is current form after the close of prosecution case.

9.	The charge was laid pursuant to section 154(1) of the Penal Code Cap 17 [PC], which reads:

‘Any person who unlawfully and indecently assaults any woman or girl is guilty of felony....’

10.	The above provision is clear that in Fiji, the alleged victim of indecent assault can only be a female [i.e. woman or girl]. In other words if a male person is subjected to the same indecent assault it is not an offence under this provision. This may be discriminatory and needs to be reviewed to bring it into line with other common law jurisdiction. 

11.	The charge in this case did not specify that the indecent assault was against a woman or girl, instead the charge allege that the appellant unlawfully and indecently assaulted Maria Boginivalu. Mr Vere contends for the appellant, that the charge should have been frames thus ‘…unlawfully and indecently assaulted a woman, namely Maria Boginivalu.’ This failure is fatal and cannot be saved by the provisions of section 119 and 122 of the CPC.

12.	Mr Muloilagi for the State, agree that that the words ‘woman or girl’ should have been in the charge, but submits that it is not necessary in this case because the name of the victim which is included in the charge clearly indicates that it’s a woman or a female.

13.	The relevant principles of law governing charges are that they must include all the essential elements of the offence. The offence of indecent assault in Fiji can only be committed by a person on a female. Therefore in the drafting charges under section 154(1) of the Penal Code Cap 17, the minimum that should be included in the particulars of the charge are the essential elements of the offence. So long as the all essential elements are in the particulars of the offence, if the wordings are imprecise or lacking detail they will be saved by section 119 of the CPC. 

14.	In considering section 154 of the Penal Code Cap 17, it is titled ‘Indecent Assaults on Females.’ Subsection (1) states:

‘Any person who unlawfully and indecently assaulted any woman or girl is guilty of a felony and is liable to imprisonment for five years with or without corporal punishment’ 

15.	 It is clear from the wording of subsection (1) that a charge to be preferred under that provision of the Penal Code, it must have the following, as minimum, to avoid the claim of a defective charge:

i)	A person [the accused]

ii)	unlawfully and indecently assaults

iii)	A woman or girl

16.	On that basis it is obvious that a charge preferred under section 154(1) of the Penal Code Cap 17 must have the following: Statement of Offence would be Indecent Assault on Female and the Particulars of the Offence may be worded in any number of ways under the provision of section 119 and 122 of the Criminal Procedure Code, but which ever way it is worded, it must include as a minimum the above three essential elements of the offence.

17.	The failure to include an essential element of the offence in the manner of the wording by the charge cannot be saved by the provisions of section 119 and 122 of the CPC. This is so because without the inclusion of all the essential elements in the charge, it would in law be a nullity. The defect is not one of lack of particularity which prejudices the person charged, rather the fact that on the wording of the charge as laid, there is no offence disclosed. 

18.	Section 119 and 122 CPC would save a charge which does not give sufficient or clear information with regard to certain elements of an offence charged. It would not save a charge that is lacking in an essential element, because without the inclusion of that essential element the charge discloses no offence. 

19.	In State v Riogi [2001] FJHC 61, the sedition charge was not defective because it first of all had the essential elements of the offence of sedition; the complain was that one element of offence, namely ‘seditious intent’ was too uncertain in the manner it was particularised that it prejudiced the right of the accused to be informed precisely of the charge preferred against him. The court observed that section 119 CPC and the lack prejudice to the accused, based on the evidence in the trial moved that court to conclude that the charge is not defective.

20.	Mr. Muloilagi for the State has forcefully argued that the charge is not defective because the accused in this case is not prejudiced in his defence by any lack of particularity or details in the charge. He urges the court that section 199 and 122 of the CPC assist his contention that a charge would not be held defective by a court if its lacks material particulars. He cites not authority for his submission.

21.	In response, I accept the following observation by Ashworth J in Garman v Plaice (1969) 1 All ER 62 as applicable in this instance to the submission by the State. At page 64 the learned justice said:

‘ It is sought by counsel for the appellant to rescue the appeal by reliance on s.100 of the Magistrates Court Act 1952, but the rescue operation can have no success at all if, as I believe to be the fact, the summons or information is void ab initio, by not disclosing any offence at all’

22.	Recently in Khan V State [2008] FJHC 79 the appellant was charged with Indecent Assault on female under section 154(1) of the Penal Code Cap 17. Like the charge in this present appeal the particulars. The defective charge claim was made on the basis that a charge pursuant to section 154 (1) of the Penal Code Cap 17 must allege that the act of indecent assault was committed on a woman or girl, instead of naming the female complainant in the particulars. In it’s conclusion the court held:

‘The charge in the present case in my view complied with the CPC. The charge commenced with a statement of offence, identified the offence of indecent assault and made reference to section 154 (1) of the Penal Code. The particulars of offence specified that the appellant ‘on the 5th day of May 2007, at Kulukulu, Sigatoka in the Western Division had unlawfully and indecently assaulted Sainimere Kilitate’. There was absolutely no doubt that the complainant Sainimere Kilitate was a female and the appellant knew that his accuser was a female. For these reasons, I hold the charge was not defective.’ 

23.	In this appeal I have reached a different conclusion. I do so because I do not agree that a charge that is a nullity because it discloses no offence in law or lacks an essential element of the offence may be saved by section 119 and 122 of the Criminal Procedure Code Cap 21.

24.	In my view a charge that, as in this case, is without an essential element of the offence under section 154(1) of the Penal Code Cap 17, is null and void. On a strict interpretation of the charged as particularised in this case, the alleged offence is against a name rather than a woman or girl whose name is Dilitia Boginivalu. I note that it is highly possible that a male may carry a female name.
 
25.	In reaching the above conclusions, I had considered and adopted the following statement of law by Grant CJ in DPP v Solomone Tui [1975] 21 FLR 4, at page 7 thus;

‘ Despite its apparent scope, it has been held that the provisions of this section cannot validate a fundamental error going to the root of the matter; such as a failure to include a necessary ingredient of the offence in question, duplicity in a charge, want of jurisdiction or a charge which discloses no offence known to law.

26.	The above position was also followed by Pathik J in Vilikona Bukai v State [1999] FJHC; HAA 040 of 1999. In that case the learned Justice made the following observation:

‘The purpose of a charge is to tell an accused person as precisely and concisely as possible the particulars of the offences with which he is charged and sections 119 and 122 of the Criminal Procedure Code give clear and explicit directions on how, inter alia, a charge should be framed.

A charge must contain those particulars which give the accused an idea of the case which he has to meet. It may not contain elaborate details but there should be no doubt as what is the case against him and what allegations he has to meet.

Here I find that the charge in count 3 has not been framed properly and hence it discloses no offence and therefore is void ab initio. It was so held in Director of Public Prosecutions v Solomone Tui 21 FLR 4:

"If a summons or information discloses no offence it is void ab initio, and it cannot be cured by application of Criminal Procedure Code s 80(2)  ..." 

27.	The Court of Appeal in Shekar v State [2005] FJCA 18; AAU 0056 of 2004 noted and upheld the principle enunciated by Grant CJ in Solomone Tui (supra) when it said of that decision thus:

‘[20] Tui’s case was one in which the appellant had not been represented. The decisions was that the defect in that case were fundamental and could not be cured. It does no state any novel proposition of law but simply states the basis rule. In the present case, whilst the charge should have been better worded, there was no fundamental fault with the wording and the charge is not defective.’

28.	I adopted the above statement of the law in my decision in Khan V State [2008] FJHC 267, where I held that a charge was defective because it did not disclose all the essential elements of the offence the appellant was charged with. 

29.	In conclusion I would allow the appeal on this ground and set the conviction of the appellant in the Magistrate Court aside. 

30.	I would not order a retrial because it is not in the overall interest of justice to do so. It would give the prosecution an unfair advantage in filling the gap that should have been addressed in the first instance. The appellant in entitled in my view to benefit from the negligent prosecution of the case against him. 

31.	 Despite the above conclusion, I would consider the other ground of appeal submitted by the appellant and I will also discuss a matter of serious concern to regarding the conduct of this trial.

Corroboration- Recent complaint [distressed condition]

32.	 With regard to this ground of appeal and because of the difficulty I had in understanding what is the essence of the point in law of the appeal, I have reviewed the relevant parts of the evidence on what may be considered corroborative evidence for the complainant.

33.	I have also considered the law as expressed recently in Balelala v State [2004] FJCA 49; AAU 003 of 2004 and in Soqonaivi v State [1998] FJCA 68. I am satisfied that while there were some inconsistencies in the complainant’s evidence as to timing of her recent complaint and the sequence in which it was made to her workmate PW2, there was no basis for finding that, as regards the fact the recent complaint was made and that the distressed condition was indeed observed, the magistrate had erred.

34.	I conclude that the trial magistrate was able to conclude as he did as regards the recent complaint of the complainant and what it corroborates in the trial. This ground of appeal has no merit and I dismiss it. 

Fairness of the trial

35.	In reviewing the trial record, there was one issue that stood out which in my view needed my determination. I refer to the nature and extent of the questioning of witnesses by the trial Magistrate.
 
36.	From the court record, the following is established:

i)	The number of questions asked of the following witnesses by the trial magistrate are: to PW1, 7; to PW2, 12; to PW5, 12 and to DW1(Accused), 26;

ii)	The nature of the questioning did not cover matters of clarification, it strayed into evidential issues which were not raised by either the prosecution or by Defence counsel;

(iii)	The above questioning of witnesses took place after both parties have finished theirs.

37.	 The role of the trial magistrate given the above facts in this case was clearly unfair and out of order. By deciding to ask the amount of questions he has asked, the defence counsel have had to ask to re-examine prosecution witnesses he had already cross-examined, thus prejudicing their right to develop their defence in the manner they so chose.

38.	It is the right of a person accused of a criminal offence to be brought before and tried in a court of law that is fair and impartial: section 29 (1) Fiji Constitution. In this country the Criminal Procedure Code Cap 21, in particular Part VI covering sections 198 to 222 sets the procedure to be followed in criminal trial in the Magistrates Court. Underscoring these provisions are the demarcation of roles of the principal parties to a trial, namely, the trial magistrate as the impartial arbiter or judge of the law and facts as proven in evidence that is called during a trial. The prosecutor who has the duty in law to prove by admissible and credible evidence, all the elements of the offence they are charging the accused with, beyond reasonable doubt. The accused or through his counsel [if applicable] to cross examine prosecution witnesses and examine witnesses they may wish to call in their defence.

39.	Under this criminal procedure, a trial magistrate is not expected in law and as a matter of practice, to be asking questions of witnesses who are called by the parties before him in a trial. To do so would be to descend into the trial arena and in so doing will rightly bring into question his impartiality. A trial Magistrate [or a judge] must resist the temptation to ask questions except in the rare occasion when a clarification on matters already raised may be asked. Even in that situation the trial magistrate must warn itself before asking the question, that it is the duty of the prosecution to ensure that witnesses they call given evidence which are clear and relevant. If they are not, the trial magistrate takes note and deal with the lack clarity in the evidence, in his assessment of the total evidence in the trial. It is not his duty, to ask questions to clarify what may be unclear in the prosecution evidence. Indeed the defence is entitled to take advantage of that lack of clarity.

40.	I find that in this case the number and the nature of the questions asked by the trial magistrate to the various witnesses called by the prosecution and the accused when he gave sworn evidence, far exceeded the accepted norm. A reasonable observer of the conduct of this trial would justifiably conclude that the trial magistrate have entered the arena of the trial, thus losing his impartiality. He has acted unfairly.

41.	The Court of Appeal in Tamaibeka & Katonivualikuv State [1999] FJCA 1; AAU 001 of 1997 [Tamaibeka] reviewed some overseas decisions regarding the need for balance and fairness for a trial judge in summing up to the jury. In this case, the appellant’s complain that the nature of summing up was imbalance and unfair in putting the appellant’s defence to the assessors. In this case, the court concluded that:

‘It is our view that in the present case the summing up lacks those essential qualities of objectivity evenhandedness and balance required to ensure a fair trial. In the light of that conclusion the conviction cannot stand.’

42.	In Tamaibeka (supra) the court referred to R v Fotu [1995] 3 NZLR 129, where the Court of Appeal in New Zealand was concerned with a challenge to a summing up on the grounds of lack of impartiality. After considering the summing up that Court concluded thus ‘ with great regret we are driven to conclude that this summing up clearly crossed the line into imbalance’ 

43.	I would conclude that in the interest of justice the conviction and sentence passed by the trial magistrate must be set aside. I do not consider that this is a case where retrial be ordered due to the unfairness that marred the first trial. 

44.	This ground is independent of the first ground discussed above on which I have allowed the appeal. I would have allowed the appeal on this ground only, even thought it was not raised by the appellant and I had concluded that the charge was not defective.

ORDERS:

45.	In the light of the foregoing conclusions I make the following orders:

i)	The appeal succeeds on the ground that the charge preferred at the trial against the appellant was fatally defective;

ii)	The conviction and the sentence passed at the appellant’s trial is set aside;

iii)	There will be no retrial ordered against the appellant for the reasons discussed above;

Isikeli Mataitoga
JUDGE

At Labasa
30 January 2009.