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Gopala v Reginam [2016] SBCA 24; SICOA-CRAC 20 of 2015 (14 October 2016)

IN THE SOLOMON ISLANDS COURT OF APPEAL

JUDGMENT OF THE COURT

1. The Appellant was convicted of two offences by the High Court following trial in July and August 2015. He was sentenced to six years’ imprisonment for an offence of rape and a further four years for the offence of buggery. It is against that conviction and those sentences which he now appeals.
2. The allegations arose from a single incident against a single victim. The victim, who was a witness in the trial is both deaf and mute. In those circumstances it was apparent to all that to facilitate the giving of evidence by the alleged victim, arrangements were necessary to assist her in communication.
3. The grounds of appeal against conviction are that no proper inquiry into the ability and impartiality of the interpreters was conducted nor any determination of the competence of the deaf and mute victim. It is also said that the conviction was against the weight of the evidence and that there was not sufficient evidence of an essential element of the offence of buggery.
4. A fifth ground of appeal, on the failure to put the defence case was not pursued.
5. The circumstances said to have arisen are that the Appellant and the victim found themselves both in a toilet where sexual intercourse took place between them. The Appellant raised the question of consent to the rape charge. As to the buggery, for which consent is not an issue, he submits that there is no evidence of penetration by the penis.
6. Other than being both deaf and mute, prior to trial there were no grounds to suppose that the victim lacked competence to give evidence. Counsel for the Appellant, however, raised the issue. In our view that was wrong. Whilst counsel on this appeal sought to justify the raising of the competence question having regard to what took place when the interpreters were sworn and evidence was given, and we make no comment on that, it is nevertheless plain that prior to the commencement of the trial there was no rationale behind the decision to raise the competence question. It was, in our view, a question of communication assistance for a witness as dealt with by section 69 of the Evidence Act, for a speech impaired witness as dealt with by section 70 of the same Act and, possibly, the impartiality of an interpreter as dealt with by section 71 of the same legislation.
7. There is a presumption of competence provided by section 24 of the Evidence Act and how to deal with a lack of competence is set out in section 29. Section 30 deals with making a determination of competence. For completeness we reproduce those sections here as it appears that they were not drawn to the attention of the trial judge during the hearing and through that the judge was left at a loss as to what counsel were trying to achieve.

PART 4 –COMPETENCE AND COMPELLABILITY

General competence

24. (1) A person is presumed to be competed to give evidence in all proceedings.

(2) Subject to this Act, a person who is competent to give evidence about a fact is compellable to give evidence in all proceedings.

Lack of capacity

29. (1) A person who is incapable of understanding that, in giving evidence, he or she is under an obligation to give truthful evidence is not competent to give sworn evidence but the person may be competent to give unsworn evidence

(2) Prior to a person giving unsworn evidence, the court must inform the person of the importance of telling the truth.

(3) A person is not competent to give evidence (sworn or unsworn) about a fact if –

(a) for any reason (including physical disability), the person lacks the capacity to understand or to give an answer that can be understood, to a question about the fact; and

(b) that incapacity cannot be overcome,

except that the person may be competent to give evidence about other facts.

(4) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by information from a person who has relevant specialised knowledge based on the person's training, study or experience.

Determination of competency

30. (1) Whenever the question arises as to whether a witness in criminal proceedings is competent to give evidence in the proceedings, whether raised by a party or the court, shall be determined by the court in accordance with this section.

(2) Once a court accepts that the issue of competence is properly raised, it is for the party calling the witness to satisfy the court that, on the balance of probabilities, the witness is competent to give evidence in the proceedings.

(3) In determining competency, the court shall treat the witness as having the benefit of any of its directions that may be made in relation to the taking of his or her evidence.

(4) Any questioning of the witness in relation to competency shall be conducted by the court in the presence of the parties.

(5) For the purpose of determining a question arising under this section, the court may inform itself as it thinks fit, including by information from a person who has relevant specialised knowledge based on the person's training, study or experience.

8. Given that the victim was both deaf and mute we regard section 29 (3) (b) as significant, as with the benefit of communication assistance in the form of interpreters, any suggested lack of capacity could be, and indeed was, overcome. We further note that section 69 to 71 inclusive deal with communication assistance for witnesses and the use of interpreters to assist the same.
9. But it is that lack of clarity as to what actually took place during the trial that forms a substantial part of this appeal. After counsel sought, without grounds, to seek a voir dire on the competence of the witness to give sworn evidence and the partiality of the interpreters, the judge attempted to deal with the two questions. As he was given no grounds properly to raised competence, he dealt with the ability of the interpreters and, when pressed, gave a view as to the competence of the victim. He said: -

“In this case I have listened to the evidence of the Complainant. I heard the answers. I heard the questions and the answers. She appeared to be – to understand them in this case.

10. He went on to discuss what he regarded as a failure in the manner in which the competence and impartiality questions had been dealt with during the trial and concluded that it may be better to order a fresh trial and approach the two questions once more. When pressed by the Crown on whether it was necessary to have a repeat voir dire on competence the judge said: -

“Yes, I think it should be done.”

11. The trial was then adjourned to begin afresh after discussion of suitable dates. The matter came before him again after an interval of several days.On 23 July 2015 the trial began with the swearing in of the victim who gave evidence through an interpreter. The evidence was of what happened to her which gave rise to the two offences. There were no submissions made by either counsel on either the impartiality or competence questions. Indeed, no reference was made to the issues or a voir dire until the judge interjected when faced with the second Crown witness. He asked of counsel whether the second witness was to give evidence on the voir dire or the trial proper. He was told that the evidence was part of the trial proper.
12. This exchange between counsel and the bench seems to us to indicate that the judge understood that he would conduct a voir dire a second time as he said he would at the end of the earlier trial period. Both counsel appears to have taken a different view in spite of the order made by the judge on the previous occasion. If that is indeed the case counsel have only themselves to blame given the clear indication given by the judge on 17 July 2015 as set out in the transcript which forms part of our appeal book.
13. Having been advised by counsel that they regarded this evidence as evidence in the trial proper and having also been advised that counsel took his earlier ruling on competence as disposing of the question and the matter not requiring further inquiry, the judge proceeded with the trial No submission was made by defence counsel at that stage as to the procedure adopted. There was no submission of no case to answer and the defence proceeded with the Appellant giving evidence on oath after the close of the prosecution case. The Appellant gave his evidence of consensual sexual intercourse and no explanation of injuries to the victim as outlined in the medical report admitted by consent. In response to a question from the trial judge the Appellant explained that the sexual activity had begun whilst he was sitting on a toilet seat but ended on the cement floor as he found that more comfortable.
14. Although the procedure adopted during the trial might at first glance appear less than optimal, further consideration demonstrates that the learned trial judge made all the necessary determinations. He came to a conclusion on the ability of both the interpreters and the deaf and mute witness. He concluded that the witness was capable of understanding the questions put to her and that the answer which flowed from those questions were intelligible to him. He did attempt to suggest that the finding he made could have been arrived at following a better procedure and indeed adopted that course which was, regrettably derailed by the action of counsel in the trial. Nevertheless, taken as a whole the judge determined that which he was obliged to determine. In the circumstances it is not, in our view, open to say that any miscarriage of justice occurred.
15. The appeal relating to those issues is therefore dismissed.
16. Turning to the weight of evidence question raised we note the evidence relating to consent. It was made clear prior to and during the trial that sexual intercourse took place and that consent was the issue to be determined. Evidence on consent came from the Appellant and the victim was questioned on the same subject. Her evidence on consent was inconsistent. In evidence in chief she said that the boy grabbed her, punched her, took off her clothes and “hem using front blo me and back blo me after hem punched me then hem ran away.” In subsequent questioning by the Crown it becomes clear that using front amounted to sexual intercourse per vagina and back blo me per anus.
17. In cross-examination she agreed that the same boy had asked her to agree to sexual intercourse and that having been asked to agree to sexual intercourse she in fact agreed. In re-examination she repeated that she agreed with the boy to have sexual intercourse. Subsequently questions from the Crown relied upon the term “like” and there was a discussion as to who “liked” the intercourse during which exchange the victim said that the boy “liked” it but she did not.
18. In his judgment the learned trial judge said that:

“The court believe and accept the evidence of the victim and disbelieve the evidence of the accused.”

19. Given the evidence given by the victim to say that there was indeed consent it is difficult to conclude that there was sufficient reliable evidence on which a conclusion of lack of consent to the criminal standard could be reached. There is nothing in the judgment which seeks to deal with the contradictory evidence which came from the victim.
20. In those circumstances it was not open to the trial judge to conclude that he was satisfied beyond reasonable doubt that the charge of rape had been made out. There was evidence of consent coming from the victim which appears not to have been taken into account when the judge came to reach his findings.
21. There was evidence, though, from the medical report of injuries sustained resulting from penetration of the anus. The medical report obviously does not seek to determine what it was that caused the injury other than to describe a blunt object. There is unchallenged evidence that the medical examination took place on the same afternoon as the incident and no evidence of any intervening event. Taken together with the evidence from the victim of being “used” at the back it appears to us that there was sufficient evidence on which the learned trial judge could conclude that sexual intercourse per anum did indeed take place. Given that consent is not an essential element of a charge of buggery that issue does not arise.
22. In the event the conviction for rape is set aside for the reasons given above. The conviction for buggery remains again for the reasons set out above. Having set aside the conviction for rape the question of whether the sentences imposed should have been consecutive or concurrent falls away. No complaint was made on appeal as to the imposition of a four-year sentence for an offence of buggery and we therefore do not interfere with it.
23. The decision on appeal is to set aside the conviction and sentence for rape and to confirm the conviction and sentence for buggery. The effect of that decision is that the Appellant will serve a total of four years’ imprisonment with effect from 2 September 2015.
    

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Goldsbrough P

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Lunabek JA

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Young JA