Matanisiga v State [1990] FJCA 12; AAU0005u.90s (2 November 1990)

Fiji Islands - Matanisiga v The State - Pacific Law Materials

IN THE FIJI COURT OF APPEAL

CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 5 OF 1990
(Criminal Case No. 26 of 1989)

BETWEEN:

INOKE MATANISIGA
Appellant

AND:

THE STATE
Respondent

Appellant in Person
Mr. J. Semesi for the Respondent

Date of Hearing: 22nd October, 1990
Delivery of Judgment: 2nd November, 1990

JUDGMENT OF THE COURT

The appellant, who appears in person, was on the 8th March, 1990 convicted by the High Court at Suva of Rape contrary to Section 149 of the Penal Code and sentenced to five years imprisonment.

He appeals against sentence on the following grounds:

"1. That the learned trial Judge erred in law when failing to give me my right for a trial within a trial when I disputed the contents to my caution interview statement which was raised by the State Prosecutor also contradictory.

2. That the victim's allegation in evidence was proved contradictory when challenged under cross examination by me.

(a) She alleged that I had dragged her about 15 metres from the drinking site and forced her by undressing her and having sex with her.

(b) Under cross examination she said that her dress were torn, but when I requested the Court for her dress to be checked it was done whereby found her allegation to be false because the dress were not torn.

(c) If the alleged victim Naomi Cama was forced and dragged like she claimed then naturally her clothes would have been torn and injuries would have been evident on her body, but in fact it contradicted her allegations and proves her evidence to be fabricated.

3. That the learned trial Judge erred in law by allowing the assessors to sit in and hear me dispute certain points from my caution interview statement which I claimed to not have been given by the state prosecutor as been given by me and which was contradictory to my evidence in the dock.

4. That the alleged victim's credibility was questionable and doubtful by her contradicting allegations.

5. That if I had raped the alleged victim like alleged, with respect to one and all I would not have been that stupid to go to the Police with her clothes and to make up a story like the Police alleged.

6. That the Police lied where they said that I had given myself up because I know that the girls were going to report. That statement was put into my caution interview by the Police and was not given by me.

7. That taking into consideration the circumstances and facts of the case, the said sentence of 5 years imprisonment is too harsh and excessive.

8. That because of my unfortunate predicament I've lost my job at the Marine Shipping. Would the Court kindly order my re-instatement at the conclusion of this appeal. "

These are grounds raised by a layman and can conveniently be divided into grounds alleging errors in law (grounds 1 and 3) and criticism of the evidence and grounds related to the sentence.

Before briefly setting out the facts we will dispose of grounds 1 and 3.

A perusal of the Record indicates that the appellant was given an opportunity of cross-examining the police corporal who produced the appellant's cautioned statement. He stated, when asked, that he had no questions to ask the Corporal. He elected to give evidence on oath and repeated virtually the whole of the facts stated in his cautioned statement. In both his evidence and his cautioned statement he admitted having sexual intercourse with the complainant but alleged it was with her consent. In his evidence in chief the appellant did not complain about the recording of his cautioned statement. He made none of the alleged complaints which if established would have justified the exclusion of his statements.

On cross-examination he did on more than one occasion deny having said something and alleged that the police had fabricated the statement. These denials were on minor matters of detail and related to events after the alleged rape.

The learned judge did not err as alleged by the appellant. He did not in his statement confess to rape. The statement recorded his story about what happened at the time, a story which he substantially confirmed on oath at the trial.

There is no merit in either of the two grounds of appeal. We turn to the other grounds of appeal.

The basic facts were not in dispute.

The complainant a bar maid 25 years of age, on the day in question met the accused who is her cousin. He invited her to go and have some drinks with him. She went with her cousin and his friend to a place in Waimanu Road which is quite deserted. After four bottles of beer had been drunk by the three the appellant asked his friend to go and bring some more beer although two bottles of beer had not been consumed at the time.

After his friend left the appellant had sexual intercourse with the complainant. Her story was that she did not consent and she related in some detail what happened.

The appellant admitted sexual intercourse but contended the complainant had consented.

The issue that had to be decided by the learned judge and the assessors was whether or not the complainant had refused to have sexual intercourse and whether the appellant was aware that she was unwilling or did not care.

There were facts proved which enabled them to determine where the truth lay.

The most significant established facts are that while the appellant was in the act of having sexual intercourse with the complainant she persuaded him to desist telling him firstly that some people were watching and secondly that she wanted to urinate. He released her before completing the intercourse and she immediately ran off to the nearest house completely naked complaining she had been raped. From that house she rang the police. She was then crying and in a distressed state.

The other significant fact is that at the time the complainant was menstruating. The learned judge left it to the assessors to decide whether that fact lent support to the complainant's story. Their unanimous view that they were of the opinion the appellant was guilty of rape would appear to indicate they considered it unlikely a woman in her condition would agree to have sexual intercourse.

Another very significant fact is that when the complainant did not return to him the appellant took the complainant's clothes, bag and shoes and went direct to the Police Station in a taxi. It is clear from these facts that he expected the complainant, whom he knew was in a naked condition to go to the police to complain.

It is pertinent to state that except that he continued to allege that the complainant had consented he did not deny what the complainant stated on oath.

The learned judge found as a fact that the complainant did not consent to the appellant having sexual intercourse with her. The evidence in support of the charge clearly established the charge of rape.

As regards the appeal against sentence we see no grounds for disturbing the sentence.

The appeal is dismissed.

Sir Moti Tikaram
Justice of Appeal

Sir Ronald Kermode
Justice of Appeal

D.V. Fatiaki
Justice of Appeal

Aau0005u.90s