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Mototabua v State [2008] FJSC 49; CAV0004.2005S (29 February 2008)

IN THE SUPREME COURT, FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0004 OF 2005S
(Fiji Court of Criminal Appeal AAU0025 of 2004S)

BETWEEN:

ELIKI MOTOTABUA
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Mark Weinberg, Judge of the Supreme Court

Hearing: Tuesday, 26th February 2008, Suva

Counsel: Petitioner in Person
A Driu for the Respondent

Date of Judgment: Friday, 29th February 2008, Suva

JUDGMENT OF THE COURT

Introduction

1. On 5 April 2004 Eliki Mototabua was convicted in the High Court on one count of abduction, one of wrongful confinement and five counts of rape. He was sentenced to four years imprisonment on each of the first two counts and ten years on each of the rape counts. The sentences were to be served concurrently. On appeal to the Court of Appeal the conviction for wrongful confinement was quashed. In 2005 a petition for special leave was dismissed but reasons for that decision were never published.
   

Procedural background

2. On an Information from the Director of Public Prosecutions dated 29 January 2003, Eliki Mototabua was charged on seven counts:
   

"1. ABDUCTION: Contrary to Section 152 of the Penal Code, Cap 17.

Particulars of Offence

ELIKI MOTOTABUA on the 5th day of April 2002, at Nausori, in the Central Division, with intent to know a woman took MEREANI RADOVU against her will.

2. WRONGFUL CONFINEMENT: Contrary to Section 251 of the Penal Code, Cap 17.

Particulars of Offence

ELIKI MOTOTABUA between the 5th day of April and the 9th day of April 2002, at Naiyalayala Setelment [sic] in Korovou, Tailevu in the Central Division, wrongly confined MEREANI RADOVU.

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

Particulars of Offence

ELIKI MOTOTABUA on the 5th day of April 2002, at Naiyalayala Settlement in Korovou, Tailevu in the Central Division, had unlawful carnal knowledge of MEREANI RADOVU without her consent.

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

Particulars of Offence

ELIKI MOTOTABUA on the 5th day of April 2002, at Naiyalayala Settlement in Korovou, Tailevu in the Central Division, had unlawful carnal knowledge of MEREANI RADOVU without her consent.

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

Particulars of Offence

ELIKI MOTOTABUA on the 6th day of April 2002, at Naiyalayala Settlement in Korovou, Tailevu in the Central Division, had unlawful carnal knowledge of MEREANI RADOVU without her consent.

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

Particulars of Offence

ELIKI MOTOTABUA on the 7th day of April 2002, at Naiyalayala Settlement in Korovou, Tailevu in the Central Division, had unlawful carnal knowledge of MEREANI RADOVU without her consent.

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

Particulars of Offence

ELIKI MOTOTABUA on the 8th day of April 2002, at Naiyalayala Settlement in Korovou, Tailevu in the Central Division, had unlawful carnal knowledge of MEREANI RADOVU without her consent."

3. Mr Mototabua was tried before a judge and assessors in the High Court and on 5 April 2004 was found guilty on all counts on the unanimous advice of the assessors. On 6 April 2004 the trial judge imposed the sentences previously referred to.
   
4. Mr Mototabua filed a Petition of Appeal against convictions and against his sentences on 19 April 2004. On 18 March 2005 the Court of Appeal dismissed his appeal against conviction, except for the count for wrongful confinement which was quashed. On the same day, Mr Mototabua lodged what was treated as a petition for special leave to appeal to the Supreme Court. His petition for special leave was dismissed on 14 October 2005 by a Court comprising Fatiaki CJ, Handley J and Scott J. Reasons for that decision have not been delivered. The Chief Justice has been purportedly suspended from office by order of the President. Justice Scott, who sat by virtue of his office as a Judge of the Court of Appeal, is no longer a Judge of that Court. It is therefore not now possible to produce reasons for judgment of the Court as previously constituted. In the circumstances the Court decided to constitute a new bench to rehear the petition.
   
5. Justice French, who was originally scheduled to sit on this petition, became unavailable to do so. In those circumstances, Mr Mototabua was asked whether he would object to Handley J sitting in place of French J, bearing in mind that Handley J had been a member of the Court that dismissed his petition in 2005. Mr Mototabua expressly stated that he had no such objection.
   

The factual background

6. The following summary is taken from the record of the trial.
   
7. The first and main witness for the prosecution was the complainant, Mereani Radovu. She said that on Friday, 5 April 2002 she was at the Nausori Bus Stand waiting to catch a bus to Nakelo where she lived when she was approached by Mr Mototabua. He was a total stranger. He told her that his father had just taken up a position as Principal at Fulton College, and that he himself was a stranger to Suva. He asked her to point out where the bus left for Fulton College.
   
8. According to Ms Radovu, she agreed to do so. However, as she directed him to the location of the bus stop, he hailed a passing taxi, grabbed her bags, and pushed her inside. She said that she could smell liquor on his breath, and that he appeared drunk. She said that she was frightened of him.
   
9. Ms Radovu said that Mr Mototabua took her, against her will, to his house at Naiyalayala Settlement. He told her to get out of the taxi. When she refused, he dragged her out.
   
10. She said that over the next four days, she was his prisoner. She said that on one occasion, shortly after their arrival, she tried to escape. However, Mr Mototabua chased her down the drive, caught her, and beat her severely. That particular incident was witnessed by Mr Mototabua’s mother. She gave evidence against him at the trial.
    
11. Ms Radovu described in some detail how she was repeatedly raped by Mr Mototabua over the next few days. She said that he threatened to kill her if she resisted, and that he struck her frequently. Ultimately, on the Tuesday, she was finally allowed to leave. Later that same day, after she had returned home, she informed her sister-in-law of what had happened. There was then an interlude of several days while the family attempted to confront Mr Mototabua about his actions. Finally, on Saturday, 13 April 2002 she made a statement to the police.
    
12. On that same day she was seen by a doctor. The doctor’s evidence, at trial, indicated that she had sustained various injuries in and around the genital area, and to her back, which were consistent with her having been raped.
    
13. Mr Mototabua made an unsworn statement. He claimed that she had initiated contact with him while he was sitting at the Vuci Bus Stand opposite the Nakelo Bus Stand. She had asked if she could accompany him home. They had had dinner together, in the presence of friends. She had willingly had sexual intercourse with him. He claimed that over the next few days, she had remained at his home, even when he had gone to Suva. They had had intercourse on a number of occasions and she had always been a willing participant.
    
14. Mr Mototabua did not call evidence from any of the persons he said were in his and the complainant’s presence at the house.
    

Reasons for decision of the Court of Appeal

15. The Court of Appeal summarised the grounds of appeal lodged by Mr Mototabua as follows:
    
    • (i) The trial judge obliged the appellant to proceed to trial unrepresented.
      
    • (ii) The evidence did not support the convictions, and guilt beyond reasonable doubt was not proved.
      
    • (iii) The trial judge directed that there was no corroboration in respect of the rape charges, yet convictions were entered.
      
    • (iv) The trial judge directed that corroboration was available on the abduction charge where there was none; and
      
    • (v) The alleged offence was not reported to the police until 13 April 2002 which was four days after the complainant left the appellant’s house.
      

16. Mr Mototabua expanded on these grounds during the hearing of the appeal. He complained about the way the trial judge had dealt with a question relating to drugs which he had asked in cross-examination. He complained that he had been prevented from cross-examining about matters relevant to his defence. He submitted that the trial judge should have overturned the assessors because of inconsistencies in the complainant’s evidence. He complained that after he had been convicted and sentenced he had not advised of his rights of appeal, or assisted by the trial judge to prepare grounds of appeal. Finally, he submitted that the trial judge had erred in law in dismissing a submission of no case to answer which he had made at the close of the prosecution evidence.

17. The prosecution conceded before the Court of Appeal that the conviction of wrongful confinement could not stand. That was because, as pleaded, it did not comply with the requirements of s 251 of the Penal Code, Cap 17 in that the requisite intent for that offence was not specified. Acting on the concession, the Court of Appeal quashed that conviction. This made no practical difference to the outcome as the sentence for wrongful confinement was to be served concurrently with all other sentences. The Court of Appeal rejected a contention that because the conviction on that count had been quashed all other convictions should also be quashed.

18. In relation to ground one, Mr Mototabua complained that the trial had been forced on although he was unrepresented. However, the Court of Appeal noted that he had been granted repeated indulgences. Legal aid was granted on 7 November 2003 and an adjournment was then granted until 23 February 2004. A pre-trial conference was scheduled for 19 February 2004. Mr Mototabua did not appear, and the hearing was adjourned to 22 March 2004. On that date he confirmed that he had withdrawn instructions from counsel assigned by the Legal Aid Commission. Counsel was given leave to withdraw and the trial set down for the following week.

19. At the commencement of the trial, on 29 March 2004, Mr Mototabua said that he wanted a lawyer of his own choice, to be paid for by the Legal Aid Commission. The trial judge considered that he had had ample opportunity to engage counsel, and that the trial had been delayed long enough. The Court of Appeal rejected this ground of appeal. The fact that the trial proceeded although Mr Mototabua had no legal representation was a situation of his own making. The Court had delayed the trial for over a year to enable him to seek legal aid.

20. The Court of Appeal dismissed, as without substance, the contention in ground two that the convictions should not stand because the evidence did not establish guilt beyond reasonable doubt. The Court observed that the prosecution case was a very strong one "... especially as the appellant, although making an unsworn statement, called no evidence" (at [6]).

21. On the question of corroboration, raised by ground three, the Court of Appeal referred to the rule of practice requiring a warning that it is dangerous to convict on the uncorroborated evidence of a complainant. The Court stated that there is no basis for the contention that a conviction for rape cannot be supported in the absence of corroboration. It referred to its judgment in Seremaia Balelala v The State (Criminal Appeal No AAU0003 of 2004S) which decided that the rule of practice that required such a warning should no longer be followed.

22. The Court of Appeal observed that it might be said that the trial judge had given Mr Mototabua "the benefit of the doubt" when she both warned the assessors of the dangers of convicting in the absence of corroboration, and told them that there was in fact no corroboration in relation to the rape charges. The Court of Appeal noted that the medical evidence could be said to provide corroboration, at least in respect of the issue of absence of consent. Accordingly, there was no substance to this ground.

23. In relation to ground four, Mr Mototabua submitted that there was no corroboration in respect of the abduction charge, and accordingly that charge could not be sustained. The Court of Appeal held that there was no requirement of actual corroboration in relation to this charge. Nonetheless, ample corroboration was available, consisting of what seemed to be compelling evidence from Mr Mototabua’s own mother. As previously indicated, her testimony was that she saw her son dragging the complainant from a taxi and forcing her up the hill to his house, despite her screams and physical resistance.

24. The Court of Appeal held that ground five, namely that of delay in complaining to the police, had no substance. The complainant informed her sister-in-law of what Mr Mototabua had done to her on the very day she left his home, where she said she had been raped. The Court of Appeal observed that in view of her distressed condition and her family’s decision that Mr Mototabua should be confronted, the delay was understandable. In addition, Mr Mototabua drew the delay to the attention of the assessors in his closing address.

25. The Court of Appeal next dealt with the supplementary grounds that had been advanced at the hearing. There was nothing in the complaint that Mr Mototabua had been prevented from cross-examining. The trial judge had warned him of the possible prejudicial effect of cross-examining on the matter relating to drugs at his home. The warning was given in the absence of the assessors, and when the assessors returned, Mr Mototabua was in no way prevented from cross-examining as he saw fit.

26. There was then the suggestion that because of inconsistencies in the complainant’s evidence the trial judge should have overruled the opinion of the assessors. The Court of Appeal examined the evidence. It held that there were no inconsistencies on the essential ingredients of the charges that could possibly justify the trial judge in taking the rather extreme step of overruling the unanimous opinion of the assessors.

27. As to the point about not having been assisted by the trial judge in framing grounds of appeal, the Court of Appeal summarily, and correctly, rejected the submission that she was under any obligation to provide such assistance. Finally, as to the contention by Mr Mototabua that his no case submission should have been accepted, the Court of Appeal found that the case against him was extremely strong, if not overwhelming. The appeal was dismissed.

The petition for special leave

28. The petition for special leave to appeal to the Supreme Court was rather discursive beginning with recitation of provisions of the Constitution and the International Covenant of Civil and Political Rights. In substance, the petition raised the same five grounds as were relied upon before the Court of Appeal, but included two additional complaints. There were that:

• the Court of Appeal did not have regard to the fact that the petitioner was not represented during the hearing of his appeal; and
  
• the proceedings before the Court of Appeal constituted an abuse of process. The judges of the Court of Appeal were said to have "erred in law and in fact" and were "deaf and blind" to his eight pages of reply to the prosecutor’s argument. The Court of Appeal’s judgment was biased in not addressing his reply to the Court in the judgment delivered on 18 March 2005.
  

29. In his oral submissions to this Court Mr Mototabua raised a number of additional grounds some of which were alluded to, but not spelt out in his written submissions. He articulated some fourteen grounds in all.

30. In summary, these grounds (and our conclusions regarding each of them) were and are as follows:

(1) The President of the Court of Appeal had erred in law in not recommending that legal aid be granted to Mr Mototabua, pursuant to s 35(1)(f) of the Court of Appeal Act Cap 12;

31. Section 35(1) (f) provides that a judge of the Court may, in the exercise of his or her discretion, recommend that legal aid be granted to an appellant. Section 35(3) provides that if a judge refuses an application on the part of the appellant to exercise a power under subs (1) in the appellant’s favour, the appellant may have the application determined by the Full Court.

32. There is nothing in the record to indicate that Mr Mototabua applied to the President to make any such recommendation. Nor is there anything to indicate that he sought to have any such application determined by the Full Court. There is no mention of this matter in that Court’s reasons for judgment. A judge to whom such an application is made is not bound to accede to that application. The matter is entirely discretionary.

33. In any event, the power conferred is simply to "recommend". The decision as to whether legal assistance will be provided is ultimately a matter for the Legal Aid authorities.

34. There is nothing in this ground which warrants the grant of special leave.

(2) This ground asserts that the evidence did not support the convictions, and that the case against Mr Mototabua had not been proved beyond reasonable doubt. It replicates ground (ii) before the Court of Appeal.

35. The evidence against Mr Mototabua was described by the Court of Appeal as "very strong"... From our reading of the record, that is an apt description. There is no substance in this ground.

(3) This ground complains of lack of legal representation at the trial. It replicates ground (i) before the Court of Appeal.

36. The Court of Appeal explained, in clear terms, how it was that Mr Mototabua came to be unrepresented at his trial. He had been offered a Legal Aid lawyer, but elected not to be represented by her. He sought instead to have Legal Aid fund a lawyer of his own choice. He was not entitled to insist that Legal Aid provide assistance in these circumstances.

37. Mr Mototabua can hardly complain that his rights under s 28(1)(d) of the Constitution were infringed. It has been held that that section does not give an absolute right, in every case, to be given the services of a legal practitioner, paid for by the State: Ratu Jope Seniloli & Others v The State Criminal Appeal No AAU0041 of 2004 at p 9 and Seremaia Balelala v The State Criminal Appeal No AAU0003 of 2004S at pp 8-9. It certainly does not give an absolute right to a lawyer of one’s own choice, to be provided by Legal Aid.

(4) This ground was used as a "catch all" to raise a series of matters not previously addressed in the Court of Appeal. For example, Mr Mototabua complained of the failure of the prosecution to call as a witness the police officer to whom the complainant made a second statement on 5 May 2002. He also complained of the failure of the prosecution to tender the various implements said by Ms Radovu to have been used by him when he assaulted her at his home.

38. This Court will not normally entertain points such as this, raised for the first time, on appeal, by way of oral submission. In any event, there is no merit in this ground.

(5) Mr Mototabua contends that, as a matter of law, there cannot be a conviction on a charge of rape in the absence of corroboration. This ground replicates ground (iii) before the Court of Appeal.

39. Mr Mototabua is wrong in three respects. First, it has never been the law that actual corroboration is required in cases involving sexual offences. There was only a requirement, at common law, that a warning be given of the dangers of convicting on the uncorroborated evidence of a complainant. Second, it has been held by the Court of Appeal that that rule of practice no longer exists in Fiji: see Seremaia Balelala v The State at p 19. Third, there was, in any event, ample corroboration of Ms Radovu’s evidence. The medical evidence plainly supported her claim to have been forcibly raped, rather than having had consensual sex.

(6) This ground was used as the vehicle to attack the trial judge’s failure to order severance of the counts. The point was not taken in the written submissions, and was not raised before the Court of Appeal.

40. The trial judge was not asked to consider severing these counts in the exercise of her discretion. The offences were all committed within a few days of each other. They were of the same character, and all involved the same victim. There was no basis upon which severance could properly have been ordered.

(7) Mr Mototabua complained that he was taken by surprise when his mother went beyond her initial statement to the police, and described in greater detail how she had seen her son drag Ms Radovu back towards his house.

41. In her original statement dated 4 May 2002, Mr Mototabua’s mother told the police that she had heard the girl who was with her son scream as they stood outside her house.

42. In her evidence at the trial, she went much further. She said that she had seen her son drag Ms Radovu out of the taxi against her will. She saw the girl resist. She saw him grab her and punch her repeatedly. She said that her original statement had been untrue. She had withheld the truth because she was frightened of what her son might do to her.

43. It seems that the evidence given by Mr Mototabua’s mother was entirely unexpected. There is no suggestion that the prosecution failed to give proper disclosure. The record shows that Mr Mototabua cross-examined his mother, accusing her of having lied to the assessors. He drew their attention to her earlier statement to the police, upon which he relied. Had he thought that he needed some time to further prepare his cross-examination, having regard to the new evidence that she gave, he could have asked for a brief adjournment which almost certainly would have been granted. He did not to do so.

44. In the circumstances, we do not consider that this ground is made out.

(8) This ground raises the issue of delay on the part of the complainant in reporting the matter to the police. It replicates ground (v) before the Court of Appeal.

45. The Court of Appeal dealt with this matter at par [10] of its reasons for judgment. It was a matter for the assessors to consider whether the explanation given for the delay was satisfactory. Mr Mototabua relied upon the delay in his submissions to the assessors. We agree with the Court of Appeal that there is no substance to this ground.

(9) This ground complains that Mr Mototabua was prevented from cross-examining the complainant regarding a matter that was critical to his defence, namely the number of people who entered and left his house throughout the entire time that she was there.

46. There are two difficulties with this ground. The record shows that the trial judge stopped Mr Mototabua’s cross-examination, and sent the assessors out, because his questions were open ended, and invited the complainant to reveal that he was dealing in drugs. Sensibly, having been warned by the trial judge of the risks that he was taking, Mr Mototabua desisted from asking questions in that form after the assessors returned. However, he continued to press the complainant about the numbers of people who had been to the house throughout the period that she was there. Mr Mototabua was in no way prejudiced by what had occurred.

(10) This ground complains that the Court of Appeal erred at par [12]:

"On the essential ingredients of the charges ... there are no inconsistencies in the complainant’s evidence that could possibly justify the trial judge in taking the rather rare step of overruling the unanimous view of the assessors."

47. Mr Mototabua sought to make good this ground by pointing to several supposed inconsistencies on the part of the complainant. However, these related to relatively inconsequential matters. The ground is without merit.

(11) Mr Mototabua claims that the trial judge should have acceded to his no case submission.

48. The evidence in support of the various charges which he faced was cogent, and was in any event corroborated. Mr Mototabua referred to the observations of Lord Lane CJ in R v Galbraith [1981] 2 All ER 1060 regarding the principles govern no case submissions. There is nothing in that case that supports this ground.

(12) Mr Mototabua sought to introduce, for the first time, a claim that the trial judge had erred in not directing the assessors as to the relevance of his having been intoxicated.

49. There was evidence from the complainant that when she was first confronted by Mr Mototabua she smelt liquor on his breath. Indeed, she said he was drunk. However, there was no evidence to suggest that he was so heavily inebriated at the time of any of the alleged rapes, as to require the trial judge to give a special direction to the assessors regarding this issue. Mr Mototabua did not rely upon the fact that he was intoxicated as any part of his defence to these charges. His case was simply that the complainant had consented.

50. In these circumstances, we reject this ground of appeal.

(13) Mr Mototabua sought to raise, again for the first time, an issue regarding the trial judge’s directions as to recklessness.

51. The Court declined to hear further argument on this issue. It is plain that the trial judge’s directions regarding recklessness were entirely orthodox, and in accordance with law.

(14) Mr Mototabua sought to argue that this Court should set aside his convictions because he had not been legally represented at his preliminary inquiry.

52. There is no basis for this ground.

53. To complete this summary of Mr Mototabua’s various complaints, we should add that he argued, in his written submissions, that a police record of interview recording his silence in answer to questions should have been tendered. Mr Mototabua seems to have considered that this document had to be tendered before he could be convicted. That submission is misconceived.

54. Mr Mototabua also asserted that he did not elect trial by assessors. What he meant by this submission was not at all clear.

55. Mr Mototabua sought to agitate the contention that the assessors were not directed to apply the criminal standard of proof beyond reasonable doubt. He complained that in the course of the trial they were asked to leave court on a number of occasions. He asserted that there was a danger that the assessors would draw an adverse conclusion from that fact. Again, there is nothing in these complaints.

56. Mr Mototabua submitted further written argument to the Court on 2 January 2008. Additional matters raised in his written submission included the following:

1. Error of law by the trial judge in remanding Mr Mototabua in custody before sentencing, contrary to s 29(1) of the Constitution.

2. Error of law by the sentencing judge in not endeavouring to assist Mr Mototabua to find proper legal representation on mitigation.

3. Bad faith by counsel for the prosecution and the trial judge by failing to give Mr Mototabua ample time to reply to the prosecution’s skeleton "Submission in Sentencing".

4. No summary of facts was disclosed to Mr Mototabua before the hearing of his case in the High Court.

5. Errors made by the trial judge about the history of Mr Mototabua in imposing sentence. Mr Mototabua referred to the quashing of the conviction for wrongful confinement. He contended that this had the consequence that he had no criminal intention at all according to law. The quashing of that conviction, related to the form of the Information and the failure to allege an essential element of the offence.

57. We have considered all of the materials and arguments submitted by Mr Mototabua. None of them meets the requirements of s 7(2) of the Supreme Court Act justifying the grant of special leave. Rather, there is an assortment of complaints which have been properly dealt with by the Court of Appeal, other matters of a scandalous nature impugning the integrity of that Court, and of the trial judge, and others directed simply to the length of the sentences imposed. No basis was shown for disturbing any of those sentences and there were no grounds for special leave in relation to sentence in any event.

58. For these reasons the Court as presently constituted confirms the earlier order that special leave to appeal be refused, and that the petition be dismissed.

Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice Mark Weinberg
Judge of the Supreme Court

Solicitors:
The Petitioner in person
Office of the Director of Public Prosecutions, Suva for the Respondent