Sitoni v The State [1994] FJHC 96; Haa0016j.94b (18 August 1994)

IN THE HIGH COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.HAA0016J.94B

Between:

PENI SITONI
Appellant

v.

STATE
Respondent

Mr. A. Kohli for Appellant
Ms. L. Laveti for Respondent

JUDGMENT

Appellant, Peni Sitoni was convicted after trial in the Savusavu Magistrate's Court of rape contrary to Section 169 of the Penal Code and was sentenced to 5 years' imprisonment.

The particulars of the offence alleged were that on the night of 1st April 1993 at Savusavu appellant had forcible sexual intercourse with complainant, one Akisi Kauvou without her consent.

Appellant is appealing against his conviction and sentence on a number of grounds to which reference will be made in a moment.

The prosecution evidence was that on the night in question at about 8 p.m. complainant, an Assistant Teacher left her home in the school compound to go to Church some distance away. She met appellant who was alone on the school ground. Complainant knew him well as he was married to her aunt, also a teacher who taught and lived in the same school. Appellant told her that he had wanted to see her about getting a confidential file from the school for his wife who was on maternity leave.

Appellant said it was important to obtain the file that evening. Complainant told appellant to wait there while she went off to get permission from the head teacher who was then conducting a class at the school. After she obtained permission to remove the file she took a benzine light from him, went to the classroom and got the file. She then sent the file with a pupil to be given to appellant. Complainant then went back to the head teacher and returned the benzine light. As she made her way back to go to Church, complainant was surprised to meet appellant on the other side of the school building. Appellant told her that something was missing from the file to which complainant replied that they could look for it in the morning as there was no light. She then proceeded to leave.

At that point he pulled her hand and told her to wait but she did not want to wait and walked on to get her flip-flops from the school. He followed her but she did not consider he would do anything to her as he was by marriage relationship an uncle of hers. When she picked up her flip-flops from the school verandah appellant grabbed her by the hand and asked her to wait. Nobody could see them. He told her he would give her anything if she agreed to do what he wanted. He asked her to sit down and talk. As she sat down he pushed and forced her to lie down and sat on her thighs. Complainant said she was helpless and scared. She wanted to yell but did not as appellant was well known for his aggressive ways. He told her to take her panties off but she refused and covered her panties with her hands. He pulled her hands away, pulled her dress up, pushed her panties to one side, took off his sulu and forced himself on her. She was a virgin until that night. He was on top of her on a cement floor pushing his penis into her vagina for about five minutes when he finished. She was crying when that happened but he only laughed at her. Complainant said the act was very painful and that she did not consent to it.

That same night, she complained about the rape to her sister-in-law, Ulamila Valatea who found her crying when complainant came home at about 9 p.m.

Next day the matter was reported to the police who then arranged for a medical examination.

According to the medical evidence bruises were sustained to the lateral and interior walls of the vagina. Fresh lacerations were observable on the hymen which was ruptured and bled on touching. The medical evidence established that sexual intercourse had taken place within 7 days from the date of the examination which was on 5 April, 1993.

Prosecution evidence also showed that complainant was in a distressed condition when she reported to her sister-in-law.

Ulamila Valatea's husband was told about the rape next morning and was asked to send a message by letter to the police station at Savusavu which was about thirty miles away. Later the complainant herself went to the police station at Savusavu and reported the rape.

Appellant was interviewed by the police investigating officer, CPl. Apisai. He claimed that sexual intercourse had taken place with complainant's consent. According to him, she did not resist either by putting up any struggle or yelling out.

In court before the learned magistrate appellant gave evidence on oath that complainant had agreed to his request to have sex. All she had asked that he should do it slowly. There was no protest or struggle on her part.

In his judgment the learned Magistrate accepted the complainant's account of the rape. He accepted that sexual intercourse not only took place but was done without consent and explained his reasons for accepting the account of the incident given by complainant.

Several grounds of appeal were relied on which I will now refer to.

In the first set of grounds counsel for appellant submitted that the learned magistrate misdirected himself in law and fact in holding -

(a) that the medical evidence corroborated the evidence of the complainant in a material particular; and

(b) that the medical evidence was indicative of a forceful act without consent on the part of the complainant.

As regards the issue raised by (a) above, it is clear that the learned magistrate relied on the medical evidence regarding the nature of injuries sustained by complainant to her vagina resulting in the loss of her virginity. When considered with other evidence the medical evidence may be regarded, as it was so regarded by the learned Magistrate as corroborative of the evidence of the complainant in a material particular, namely the lack of consent by complainant. The offence of rape consists of three main ingredients -

(i) the fact that appellant had sexual intercourse with complainant i.e. penetration of the penis into her vagina;

(ii) the fact that the act of sexual intercourse was done without the consent of the complainant; and

(iii) that the appellant knew at the time that the complainant did not consent or wished to have sexual intercourse with him or at any rate he was reckless and could not care less whether the complainant was consenting or not to the act of sexual intercourse.

The medical evidence proved not only that sexual intercourse did take place but it was done with great force. Such evidence when taken with other proved circumstances of the case based on credibility of witnesses clearly justified in my view the learned magistrate's finding that the complainant did not consent to having sexual intercourse with the appellant.

As regards issue (b) above regarding the finding that the medical evidence was indicative of a forceful act without consent of the complainant, this must be read in the proper context of the judgment not only in regard to the learned magistrate's factual assertion:

"The medical evidence reveals a brutal type of forceful entry which is in striking contrast to a delicate co-operation handling as is to be expected in the case of consenting and agreeable companions."

but also in his general reasoning from the circumstances surrounding the case.

Further, in his judgment the learned magistrate said:

"As regards the element of non-consent the evidence of the complainant is well corroborated by the medical evidence and other evidence (emphasis supplied)".

I find no merit in these grounds of appeal.

The next ground of appeal averred that the learned magistrate erred in law and fact in convicting on the uncorroborated evidence of the complainant.

There is no rule of law that a trial court could not enter a rape conviction on the uncorroborated evidence of a complainant. In the present case the essential question for the trial court was whether the complainant was telling the truth or not when she said that she did not consent to having sexual intercourse with the appellant. The learned magistrate has in his judgment given reasons why he believed the complainant's evidence in preference to the account given by the appellant regarding the manner in which sexual intercourse took place between them. The trial court has a particular advantage, not available to an appeal court in assessing the credibility of witnesses. The trial Court's assessment of whether a witness was telling the truth or not will not be disturbed unless the appellant can satisfy this Court that the reasoning behind such findings was plainly wrong or unsound or that they are against the weight of evidence when considered as a whole. In my view that is far from being the situation here.

Also under this ground of appeal complaint was made that the learned magistrate did not warn himself of the danger of convicting appellant on the uncorroborated evidence of the complainant.

The learned magistrate was sitting without jury or assessors. In his case he was judge both of law and fact. In this situation and given the fact that the learned magistrate was professionally experienced as a trial magistrate it was unnecessary and otiose for the learned magistrate to give himself a danger warning against convicting on uncorroborated evidence of complainant inasmuch as that practice was mainly intended for a court sitting with a jury or assessors. The essential question for the learned magistrate was whether on his assessment or evaluation of the evidence based on the credibility or otherwise of witnesses, there was sufficient evidence to establish the charge of rape. It is, with respect, quite clear from the judgment of the learned magistrate based on his evaluation of the evidence in the case that the three main elements of the charge had been established, namely the fact of sexual intercourse, the absence of consent on the part of the complainant and the knowledge of appellant regarding lack of consent by complainant.

I find no merit in this ground of appeal.

The next ground of appeal avers that the learned Magistrate failed to direct his mind to the question of consent and to the fact that the offence was one which required mens rea to be proved. As has already been noted, the learned magistrate based his judgment on his assessment of the evidence and credibility of witnesses as he was entitled to do. In my view he was amply justified in the conclusions he reached. As the evidence showed the forcible sexual intercourse took place at about 8 p.m. At about 9 p.m. on her return home complainant was seen by her sister-in-law in a rather distressed condition in that she had been crying. On arriving home she complained about the rape. Taken together with other evidence, the complainant's distressed condition and her complaint of the rape almost immediately after the incident may, if accepted as genuine and not simulated be properly regarded as corroborative of the complainant's evidence that sexual intercourse was forced on her by the appellant without her consent. As to the appellant's knowledge of the lack of consent on the part of the complainant, this is made manifest in the judgment where the learned magistrate stated:

"I do not believe the Accused when he states that he had sexual intercourse with her with her consent".

The clear inference from such a finding was that accused knew the complainant was not a consenting party and did not care whether she consented or not.

In these circumstances, I am satisfied contrary to the submissions made, the learned magistrate did direct his mind to the issue of consent and appellant's knowledge (mens rea) that complainant was not a consenting party to the act of sexual intercourse.

The next ground of appeal complains about a letter dated 10 September, 1993 written by complainant and presumably intended for the learned trial magistrate before judgment was delivered which was claimed to be highly prejudicial to the appellant. It was not established whether the letter was received or even read by the learned magistrate. Nor was it established one way or another whether, if he had read it, it had any influence on him in adjudication of the case. The most that can be said I think is that it was unfortunate and regrettable that such a letter should have been written and sent. No doubt it was written out of understandable anxiety by the complainant about the appellant being found not guilty on the charge of the rape upon her.

I am satisfied that given the fact that he was professionally well experienced in conducting criminal trials, the learned Magistrate would not, if he had read the contents of the letter, have allowed himself to be prejudicial against appellant. Therefore in my view nothing of any material consequence turns on the letter.

Finally, the appellant complains that the learned Magistrate failed to give reasons for not accepting the testimony of the appellant or give reasons for his decision.

In Jan Barkat Ali v. R. [1972] 18 FLR 129 an appeal which was heard and decided by Grant, J. (who later became Chief Justice) in the Supreme Court (now High Court), the headnote reads:

"A magistrate is not obliged to give reasons in his judgment for his acceptance or rejection of the evidence of any particular witness, and so long as the evidence to which he has referred and which he accepts is sufficient to establish the ingredients of the offence, there is no failure to comply with the requirements of Section 154 (now 155) of the Criminal Procedure Code."

The same point was made by the same judge in the later case of Mohammed Abdul Razak [1973] 19 FLR1. In the light of these cases and careful evaluation of the evidence by the learned magistrate and the finding he arrived at, I am satisfied also that there is no merit in this ground of appeal.

For the reasons given the appeal against conviction must be dismissed.

As for the appeal against the sentence of 5 years' imprisonment, it is clear that the sentence could not in any sense be regarded as harsh and excessive. On the contrary it is very much on the side of lenience. Appellant can count himself fortunate that this case was not tried in the High Court where he would almost certainly have received a much more realistic sentence. Appeal against sentence is also dismissed.

Chief Justice

Suva
18 August, 1994

HAA0016J.94B