Bale v The State [1998] FJHC 22; HAA0002j.1998b (27 February 1998)

Fiji Islands - Bale v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

Criminal Appeal No. 2 of 1998
(Labasa Magistrates Court Criminal Case No. 110 of 1995)

BETWEEN:

:

PAULA BALE
Appellant

AND:

THE STATE
Respondent

Appellant in person
P. Petaia for the Respondent

JUDGMENT

On 4 September 1997 the Appellant was convicted after trial of the offence of rape. He was sentenced to 5 years imprisonment. He now appeals against the conviction and sentence.

In his petition of Appeal filed on 7 November the Appellant advances 4 arguments. He says first, that the complainant was a willing partner and indeed the instigator of the "sexual encounter" second, that the complainant’s mother put the complainant up to fabricating the complaint, third that he had had a long standing relationship with the complainant who was in fact the mother of one of his children and that he had witnesses to prove this relationship and, fourth that the Complainant had wanted to withdraw her allegations but was pressured by the Police. At the hearing of the appeal the 4th argument was supplemented by a letter which the Appellant handed me purportedly signed by the Complainant whom the Appellant advised me was sick and therefore unable to come to Court as she had wished to present the letter and support the appeal.

As the Appellant was representing himself I agreed to accept the letter which was then carefully read. It is a plea for mercy to be shown to the Appellant. The author of the letter states that she "strongly supports the appeal". She also says in the 5th paragraph:

"Sir, to be sincere and true I was forced by a Police to make statement and facts which a totally against my will and my consent to humiliate the prisoner" (sic).

The letter is written in what might be termed prison appeal English. It is not entirely clear or easy to understand. For the purposes of this appeal I have assumed it to be genuine, to have been written by or at the request of the Complainant and to be an accurate statement of the Complainant’s views. In agreeing to accept the letter I treated its tender as a request to file further evidence at the hearing of an appeal and it is against that background that I have considered its meaning and effect.

Having examined the letter and the 4 arguments advanced by the Appellant I have reached the conclusion first, that none of the arguments suggests any failure or shortcoming by the Resident Magistrate in the conduct of the trial and secondly, that nothing in the letter suggests that any of the evidence given by the Complainant at the trial was false.

At the conclusion of the trial the Resident Magistrate found himself satisfied that the prosecution had proved the offence of rape. It had proved it not only by calling the Complainant but also be adducing independent corroborative evidence. Shortly after the alleged incident the Complainant was found to be suffering from shock and a bruised jaw; her private parts were inflamed and her underpants had been ripped and torn. In the police interview the Appellant had denied having intercourse with the Complainant at all and was unable to explain the apparent signs of ejaculation having taken place. At the trial on the other hand he had admitted intercourse but claimed it to be consensual, the submission adopted, as has been seen, in the Petition of Appeal.

Whether or not the Appellant had had a previous relationship with the Complainant or whether she had wanted to withdraw the complaint were not the issues in the trial before the Resident Magistrate. The single issue before him was whether the Appellant had raped the Complainant on the night in question.

I am not satisfied that the Appellant has pointed to anything which inclines me to doubt the correctness of the Resident Magistrate’s conclusion on the issue before him. The appeal against conviction is dismissed. As the sentence, as pointed out by Mr. Petaia 5 years imprisonment is well within the sentencing bracket as laid down by the Chief Justice in Circular Memorandum 1/88. For some time now the Courts have been stressing what a serious offence rape is. There was nothing wrong in the sentence passed. The appeal against sentence is also dismissed.

M.D. Scott
JUDGE

27 February 1998

Haa0002j.98b