Balecala v The State [1996] FJHC 86; Haa0062.96 (1 January 1996)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0062 OF 1996

BETWEEN:

VILIKESA BALECALA
APPELLANT

A N D:

THE STATE
RESPONDENT

Appellant in person
W. Clarke for the respondent

JUDGMENT

The Appellant appeals against his conviction and sentence of 5 years imprisonment for the offence of Rape. The Chief Magistrate recorded the conviction and imposed the sentence on 8 April 1995 at a special Saturday morning sitting of the Court at Suva. The Appellant was unrepresented, and entered an apparent plea of Guilty.

It is tempting to dismiss this appeal, as I do not believe most of the Appellant’s evidence. His witness TAPAITINA KORO, the complainant in the rape took the matter no further in direct relation to the Appellant.

Were it not for the disturbing background to the pleas of Guilty by all 3 accused this Appellant might well have failed in his Appeal.

The disturbing background is the attempt that was made by investigating police to over-reach the rights of the Appellant’s co-accused.

What happened to them bespeaks gross incompetence, and hints at a more sinister influence at work.

On no admissible evidence at all of Attempted Rape the Appellant’s co-accused were charged with that offence.

This reflects very badly on the investigating police. It makes one wonder: is this just ignorance of the law, or were they hoping to get away with it by putting pressure on all three accused to plead Guilty?

It may be noted that the 2 co-accused make the same complaint of improper pressure as the present Appellant.

All 3 travelled in a police vehicle where the Appellant says the pressure to plead Guilty was exerted on all three.

All 3 followed a remarkably similar course in pleading Guilty in the Magistrates’ Court in Suva before the Chief Magistrate in the special Saturday morning Court hearing.

A travesty of Justice now occurred against the Appellant’s co-accused. On the Summary of Facts read out which contained no sufficient evidence whatever of Attempted Rape by B2 and B3, this Magistrate convicted them and sent them away to 3 years imprisonment each! This was scandalous.

The most cursory reading of the Summary of Facts would reveal the need for further enquiry before accepting the pleas of ‘Guilty’. The police evidence should have been called for to see if there was any other evidence available. This was not done and the Magistrate was completely remiss in his duty in not doing so.

When their appeal came before me on 10 December 1996 it was immediately apparent, with the consent of the D.P.P.’s Counsel that B2 and B3 Attempted Rape convictions could not stand.

The convictions were quashed and they were immediately released after having served 20 months imprisonment for no proper reason in law!

Had the magistrate performed his duty and queried the pleas of Guilty of the Appellant’s co-accused, it may have led him to ask the highly relevant and prudent question of all 3 accused: Has any person in authority, police or otherwise, given you any inducement or made any offer or promise of benefit to you to persuade you to enter a plea of ‘Guilty’ to these Charges?”

The alleged improper persuasion in this case may then well have come to light.

Insofar as I have the power to do as a High Court Judge I would put a guideline for all Magistrates in Fiji that they ask all unrepresented accused persons offering to plead Guilty the question I have posed above, to see if any improper pressure has been at work.

If an accused answers “No” it will go a long way toward preventing appeals of the present kind being brought.

Reverting to the present Appeal I have said I do not believe much of the appellant’s evidence. But even if I found he lied in large parts of his testimony, (and people sometimes lie in desperation when they are in deep trouble) there could be still a residuum of truth in his main assertion. The State’s main police witness Detective Corporal Andriu Donu was not in the least impressive and heightened, if anything, the impression that the Appellant’s main claim may be true on a balance of probabilities. I find that, by the barest of margins the Appellant’s evidence tips the balance of probabilities in his favour.

I find that no real unequivocal plea of ‘Guilty’ was entered by the Appellant at Suva Magistartes’ Court on 8 April 1995. I therefore allow his Appeal, order that his plea of Guilty in Suva Magistrates’ Court on 8 April 1995 be vacated, and the sentence of 5 years’ imprisonment imposed consequent thereon be quashed.

I order that the Appellant be remanded in custody to the Suva Magistrates’ Court to be further dealt with according to law.

K.J. TOWNSLEY
JUDGE