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Iamaruru v Reginam [1972] FijiLawRp 13; [1972] 18 FLR 64 (23 June 1972)

(1972) 18 FLR 64

COURT OF APPEAL OF FIJI*

CRIMINAL JURISDICTION

ELLIAS IAMARURU

v

REGINAM

[COURT OF APPEAL, 1972 (Nimmo P., Marsack J.A., Gould J.A.), 12th, 23rd June]

Criminal law-sexual offence-complaint-absence of specific reference to sexual nature of assault-complaint made to persons not members of complainant's family - corroboration-function of.

Criminal law-witness-complainant in charge of attempted rape nearly fifteen years at time of giving evidence-evidence given upon oath-whether judge should have made prior enquiry as to her understanding of nature of oath-Criminal Procedure Code (Cap. 4 - B.S.I.P: Revised Laws 1969) s:134.

Criminal law-evidence and proof-corroboration-nature of-sexual offence.

The complainant, a girl fourteen years of age, gave evidence upon oath that the appellant attempted to rape her. As she ran away she met two men, one of whom gave evidence of the state of her person and clothing; the complainant said to these men that the appellant had caught hold of her but did not complain of sexual assault. The complainant's mother was absent from their village until the evening of the same day and what the complainant then told her mother was not admitted in evidence owing to the lapse of time.

Held: 1. There was nothing in the circumstances of the case which indicated that the trial judge should not have exercised his discretion so as to permit a girl of nearly fifteen years to be sworn as a witness without previous enquiry as to her understanding of the nature of an oath.

2. The absence of specific mention of the sexual nature of the assault to the two men seen by the complainant shortly after the event, and who were not members of her family, did not necessarily throw doubt on the complainant's story.

3. The function of corroboration is not of itself to prove all essential ingredients of an offence but to establish, or help to establish, that the evidence of the complainant is true and that it is reasonably safe to act upon it.

Cases referred to:

R. v. Redpath (1962)  46 Cr.App.R. 319 ; 106 S.J. 412

Appeal against conviction of and sentence for attempted rape by the High Court of the Western Pacific, at Kira Kira.

K. C. Ramrakha and H. M. Patel for the appellant.
D. I. Jones for the respondent.

The facts sufficiently appear from the judgment of the court

23rd June 1972

Judgment of the Court (read by Marsack J.A.):

This is an appeal against a conviction for attempted rape entered in the High Court of the Western Pacific, sitting at Kira Kira in the British Solomon Islands Protectorate on the 25th January, 1972, and also against the sentence of three years' imprisonment imposed for that offence.

The evidence against the appellant, accepted by the learned trial Judge, may be briefly summarised as follows. The complainant, a girl of just on 14 years of age, deposed that on 18th May, 1971, when she was sitting by the sea, at some distance from her village, she was accosted by the appellant who took hold of her. She tried to hit the appellant with the bush knife she carried, and in the struggle which ensued she sustained a slight wound at the back of the head. Although the wound was not serious, it bled profusely. She dropped the knife, which the appellant took away. Shortly afterwards, the appellant came back again and chased the complainant who ran away. He caught her, threw her on the ground and tried to have sexual intercourse with her. She gave some evidence as to the physical condition of the appellant at the time to support her conclusion that he was trying to have intercourse. She struggled and after kicking the appellant in the stomach, managed to get free. She met two men as she ran and the appellant did not pursue her further.

One of these men, Urumae, gave evidence that the girl seemed distressed; she was covered with blood from a wound on the back of her head; she had mud on her hair; her skirt was torn and there were leaves on her clothes and her body. She made no complaint to Urumae of the sexual assault, though she did say he had caught hold of her. The girl was not medically examined until some three months later, and the medical evidence throws no light on what had happened to the complainant on the day of the alleged assault.

On the 9th of July, 1971, Police Corporal Nufu charged the appellant with indecent assault and cautioned him correctly. The appellant's statement made to the Corporal was extremely short: "I only held her breasts." In an unsworn statement made from the dock at the trial, the appellant denied any form of sexual assault.

The amended grounds of appeal argued before this Court were in these terms:-

1. The learned trial Judge erred in law and in fact in holding that the complainant's story as to rape should be believed as: (a) there was no enquiry that she understood the nature of the oath; (b) she was a young person who did not make any "first complaint"; and (c) her evidence was generally unsatisfactory;

2. The learned trial Judge further erred in law, and in fact, in treating the appellant's cryptic statement "I only held her breasts" as corroboration since such statement was equivocal and could refer either to an act of rape or an act of assault.

In his argument on the first ground, counsel for the appellant contended that as the complainant was under 15 years of age when she gave evidence, there should have been some enquiry as to her understanding of the nature of an oath. Counsel referred the Court to the proviso to Section 134 of the Criminal Procedure Code of the British Solomon Islands Protectorate, the relevant portions of which read as under:-

"Provided that the court may at any time, if it thinks it just and expedient ..... take without oath the evidence of any person . . . who by reason of immature age or want of religious belief would not, in the opinion of the court, be admitted to give evidence on oath."

It is a well-established law that an infant of any age may be sworn as a witness in any criminal case provided that such infant appears sufficiently to understand the nature and moral obligation of an oath; Archbold, 36th Edition, Para. 1287. It is a matter for the discretion of the judge; and in our view there is nothing on the face of it to show that the learned trial judge in the present case should not have exercised his discretion in the direction of permitting a girl of nearly 15 years of age to be sworn as a witness, without making previous enquiry as to her understanding of the nature of an oath.

With regard to ground 1(b), Mr. Ramrakha contends that as the girl made no complaint of a sexual assault to the man Urumae, the first person to whom she spoke after the incident, her evidence as to the sexual nature of the assault should be regarded with suspicion. It is true that in many cases of this character evidence is given of a complaint made shortly after the alleged offence to a person who might be expected to receive such a complaint; and such evidence is received, not as corroboration, but as tending to show the consistency of the conduct of the complainant with her sworn evidence. But we have been unable to find any authority laying down that the absence of such a complaint must necessarily be taken as throwing doubt on the complainant's story. In this case the complainant may well have been reluctant to speak of a sexual assault to a man who was not a member of her family. It would certainly have been expected that she would tell her mother exactly what had happened; but her mother was away from the village and did not come back until that evening. For this reason, what she did tell her mother was not admitted in evidence, on account of the lapse of time between the incident and her report to her mother. Accordingly, the lack of what counsel refers to as a "first complaint" cannot, in our view, be a ground for rejecting or hesitating to accept the evidence of the complainant.

As to ground 1(c), it is true that there are certain inconsistencies in the evidence of the complainant, but these are not, in our opinion, material to the extent of appreciably reducing the weight of her evidence. The learned trial Judge, in the course of his judgment, made it clear that he believed the complainant, and that her evidence so accepted covered all matters necessary to substantiate the charge of attempted rape. We think that the learned trial Judge was justified in so finding. Consequently, the first ground of appeal fails.

On the second ground, Mr. Ramrakha contends that the appellant's statement "I only held her breasts" could not amount to corroboration of the complainant's evidence that he had attempted to commit rape. The act admitted would, in counsel's submission, be equally consistent with an indecent assault, or a simple assault, or even an effort to protect himself from injury when the girl was striking at him with her knife.

What the counsel's argument appears to have overlooked is that the admission of holding complainant's breasts is not the only item of corroboration appearing in the evidence. The learned trial Judge makes it clear in his judgment that there was, in his opinion, ample corroboration of the evidence of the complainant that the offence of attempted rape had been committed. Her evidence of a violent struggle, which took place in part on the ground, is corroborated by the state of her clothing and person; the fact that the appellant held her breasts can also in our opinion be taken as corroboration of the girl's evidence that his assault was sexual in its intent. Then there is further the evidence of the witness Urumae that the girl was distressed. This evidence in itself is in some degree corroboration; as is said by the Court of Criminal Appeal in Redpath  46 Cr.App.R. 319  at p.321:

"It seems to this court that the distressed condition of a complainant is quite clearly capable of amounting to corroboration."

That certainly was a case of indecent assault, whereas this is one of attempted rape. But the function of corroboration is not of itself to prove all essential ingredients of the offence charged; its function is to establish, or help to establish, that the evidence of the complainant is true, and that it is reasonably safe to act upon it.

On a full consideration of the evidence and the judgment, we are satisfied that the learned trial Judge was justified in accepting the evidence of the complainant as substantially true and sufficiently corroborated by outside evidence. Accordingly, the appeal against conviction must fail.

With regard to the appeal against sentence, we are unable to say that the sentence of three years' imprisonment was either manifestly excessive or imposed on a wrong principle. In fact counsel for the appellant, very properly in our opinion, conceded that the sentence of three years' imprisonment for attempted rape, in the circumstances found by the learned trial Judge, could not be considered excessive. The appeal against sentence also fails.

Appeals dismissed.

*N.B. The Court of Appeal of Fiji was the appellate court at this time for the High Court of the Western Pacific, sitting in the British Solomon Islands Protectorate.