AND:
THE STATE
Respondent
Appellant in Person
Mr J. Waqaivoa for the Respondentspan>
Hearing: 20th October 2000
Judgment: 26th October 2000
JUDGMENT
This is an appeal against conviction and sentence in respect of the following charge:
Statement of Offence
/p>
RAPE: contrary to Section 149 and 150 of the Penal CCap. 17.
Particulars of Offence
FILIPE BECHU on the 13th day of August 1994 at Levuka in the Eastern division, had unlawful carnal knowledge with LUISA TUINABUA without
her consent.
The Appellant was convicted of the offence on 2nd December and sentenced to five years imprisonment. He now appeals on a number of
grounds which I su I summarise below for clarity:
1. p; &nnsp;&nbp;&&nbp;;&nbpp;&nbp; The ainplt wan the the Appellant’s girlfriend and she consented to the sexual intercourse.
2. &nnsp;&&nsp;;&nspp;&nssp;&nsp; Thecemai who receiveceived the complainant’s complaint of rape was her uncle and he forced her to proceed with criminaestigs. 1">
3. p;&nbbsp; &nbssp; &nbp; &nbp; &nbp; ; ppellanellant was awas assaulted by the investigatificerforceconfespan>p class=MsoNormal style="text-indent: 36.0pt; margimargin-topn-top:
1; : 1; margimargin-botn-bottom: 1">
4. &n/span 5. &nnsp;&&nsp;;&nspp;&nssp;&nsp; The Appelwas nreprnrepresented in court.
6. &nnsp;&&nsp;;&nspp;nbsp;&nbp; ;&nspp;&nssp; The sehe sentence was excessive.
;
The Appellant submitted that the complainant was his girlfriend at the time of the incident, that he was angry with her for kissing
another man, that he assaulted her but did not rape her. He said that she consented to sexual intercourse, and that she was a person
of immoral character, having had an illegitimate child.
On a perusal of the court record, it is apparent none of these matters were raised at the trial. In evidence, the complainant said
that in J in July 1994, when she was 20 years old, she visited Levuka to stay with her uncle. On 13th August she decided to attend
a dance at the Levuka Club. On her way home after 12 midnight she boarded a van driven by one Saiasi Taufa to get a lift home. The
Appellant also boarded the van at the same time. She asked the driver to stop at her home at Ucuinacula but the accused told him
to keep driving. When the van stopped at a remote spot between two villages, the Appellant forced her to get off the van by assaulting
her on the eye, mouth and chest. He pulled her out of the van. The van left. The complainant was dragged by the Appellant into the
bush, and was raped for half an hour. The Appellant appeared drunk and said he would give the complainant $20.00 the next day.
The complainant then went to the police station. She was distressed. She met one Anare Ratu and told him what appened. He gave her
his jais jacket and accompanied her to the police station where she gave her statement to Police Constable 1026 Atunaisa.
She was medically examined and was found to have bruises on the c forehead and face. These injuries could have been caused by a blunt
object. She was found ound to be distressed.
The complainant’s evidence was consistent with the evidence of Anare Taqanavanua and Saiasi TaFurthermore, under caution the Appellant
admitted pulling ting the complainant out of the van, punching her, forcing her to lie down, and having sexual intercourse with her.
He admitted that she was weeping when he had sexual intercourse with her, and that she had refused to go with him. He said he raped
her because he was drunk and he was jealous because the complainant saw other men.
In his sworn evidence, the Appellant said that the complainant was his girld.
The assertion that the complainant was his girlfriend was never put to hen she was cross-examined by the Appellant. Even if it had
been, the answer would have had had limited relevance. The previous sexual history of the complainant with the accused is only relevant
if the accused asserts reasonable belief in consent. The Learned Magistrate took this assertion into account when considering the
accused’s state of mind at the time of the incident. He found that either the Appellant knew that the complainant did not consent,
or was reckless about her lack of consent.
The evidence points clearly to the former. The Appellant had to drag the complainant out of an. She was weeping and distressed. She
was refusing to go o go with him. He assaulted her several times and dragged her into the bush. Under caution he agreed to all of
this, but said that she nevertheless agreed to have sexual intercourse!
The Appellant did not, and does not submit that he was too drunk to ascertain whether or not snsented. He was right not to do so.
The clarity with which hich he recalled the incident and its details when he was questioned by the police, suggests that he knew
what he was doing, and knew that the complainant resisted.
On these facts, and in these circumstances the Learned Magistrate was correct in finding that the Appellant had equisite state of
mind to c to commit the offence. Although his reference to the English Sexual Offences (Amendment) Act 1976 was inaccurate, because such legislative change has not been enacted in Fiji, his finding that the Appellant must have known that
the complainant did not consent, or didn’t care whether she did or not, was inescapable on the facts.
Indeed the Sexual Offences (Amendment) Act 1976 was intended to give effect t House of Lords decision in DPP -v- Morgan (1b> [1975] UKHL 3; (1976) AC 182. The mens rea for rape after Morgan (supra) is knowledge of lack of consent, and recklessness as to lack of consent. The court may consider whether there were reasonable
grounds for believing in consent in deciding whether or not the Appellant did so believe.
On the facts of this appeal, it was clearly open to the court to conclude that either the Appellant knew the complt did not consent,
or was rwas reckless in this regard. The issue of a previous relationship is only relevant to the issue of belief in consent.
Once the Learned Magistrate accepted that the complainant did nnsent, and the Appellant knew this, or didn’t care, the possibility
of a previous or currenurrent relationship became irrelevant. In R -v- R (A Husband) 1992 1 AC 59AC 599, the House of Lords held that even a husband could be convicted of raping his wife, because rape was an offence
in the criminal law irrespective of the accused’s relationship with the victim. This decision led to the revised definition of rape
in section 1 of the Sexual Offences Act 1956, as substituted by the Criminal Justice and Public Order Act 1994. Although this common
law principle is yet to result in legislative change in Fiji, it is of compelling weight nonetheless.
This ground is dismissed.
Grounds 2 & 3
The Appellant submits that the investigating officer was the victim’s uncle, and forced her to complain.
No such allegation was put to the investigating officer, Corporal 1386 Isimeli Savutini of Levuka Police Station. Nor was it suggested
t officer that he assaulted lted the Appellant or applied any pressure during the interview. The assertions made by the Appellant
are made only at the appeal.
I find nothing on the court record to suggest polipropriety. Nor was the evidence of the confession challenged by the Appellant when
Corporalporal Isimeli gave evidence of voluntariness.
These grounds are also dismissed.
Ground 4
ass=MsoNormal styl styl style="margin-top: 1; margin-bottom: 1"> The Appellant says he was not given access to tor or a lawyer during police custody and during trial.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The 1997 Constitution guarantees a right to a lawyer whilst in custody. The 1990 Constitution (which was in force when the Appellant
was arrested) did not guarantee such a right. The 1990 Constitution allowed a request for a lawyer to be made, which the police had
a discretion to refuse in the interests of justice.
In this case, the Appellant does not appear to have made such a request. If he had, the police might have had difficulty in accommodating
the request in Levuka. Nor does there appear to have been a request for a doctor. The Appellant did not suggest during the trial
that such a request had been made.
For these reasons, I do not consider that the police acted unfairly or osively in the detention of the Appellant.
This ground is also dismissed.
5. p;&nbbsp;&nsp; &nsp;&nLegal Represion iion in Court
; The Appellanellant was charged with this offence on 16th August 1994. He was released on bail on the same day, and remained on bail
for this offence until the trial commenced on 1st March 1996. He had ample opportunity to instruct a solicitor, on legal aid or otherwise.
His failure to take this opportunity over two years cannot be laid at the court’s door.
This ground also fails.
Corroboration
On a perusal of the court record, it is evident that the Learned Magistrate failed to give himself the customary corroboration warning.
Although this was not raised as a ground of appeal, I asked the State to make submissions on this point.
State Counsel submitted that there was ample corroborative evidence, and that there had been no substl miscarriage of justice. He
urged me to apply the proviso viso to section 319(1) on the ground that no substantial miscarriage of justice had occurred.
A corroboration warning is normally required in cases oexual nature. The failure to give such a warning to the assessors is usually
fatal.
However in Mohammed Kasim -v- Reg 22 FLR 120, Williams J found that this strict requirement was not necesin the magistrates courts wrts where there was cogent corroborative evidence
confirming the ingredients of the offence. At page 130 he said:
“There was no need for the magistrate to wamself of the danger of convicting on uncorroborated evidence. There was cogent corroborativrative
evidence from more than one source confirming the act of sexual intercourse, the absence of consent and implicating the accused.
It would have been preferable for the magistrate to record his awareness of the need for corroboration on those points .... I conclude
that in a trial conducted by a professional magistrate sitting alone, where there is corroboration in a sexual case he is not obliged
to specifically direct himself as to the need for it provided it is apparent that he must have accepted it.”
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In R -v- Tripp (1963) 1 WLR 305, the only issue for the court to consider, was the identity of thist. The judge in summing uing up to the jury, failed to warn it
of the danger of convicting on the uncorroborated evidence of the complainant. It was held that the absence of such a direction was
prima facie fatal to a conviction in a sexual case, and quashed the conviction. The Court said that the proviso comparable to section
319(1) of the Criminal Procedure Code should only be applied in exceptional cases when a corroboration warning has not been given.
I believe that this is one such case. Corroboration was in fact provided by the evidence of the complainant’s distress shortly afte
sexual intercourse, and tand the evidence of her distress and lack of consent in the caution interview. The findings of the medical
examination are consistent with the complainant’s evidence (although they are also consistent with the Appellant’s story of assault).
The caution interview is certainly corroborative. If the Magistrate had directed himself, he would have found sufficient corroboration
from the evidence in this case.
Furthermore, I find that the Learned Magistrate did in fact approach the complainant’s evidence with care, placing heavy reliance
on the contents of the caution statement.
In all the circumstances although the Learned Magistrate should hdministered the corroboration warning, I find that there was no substantial
miscarriage of e of justice and I apply the proviso to section 319(1) accordingly.
Sentence
p class=MsoNormalormalormal style="margin-top: 1; margin-bottom: 1"> The Appellant appeals against the sentence of five years imprisonment. There appear to have been no mitigacircumstances in the case.
ase. The Appellant used violence on the complainant, committed the offence in a remote area forcing her to make her own way home
in a state of distress, and has shown no remorse to the complainant for the rape or the assault. The fact that he may have known
her personally, aggravates rather than mitigates the circumstances.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Although it is unfortunate that the trial was delayed for five years, the delay must have been as distressing fe victim as it was
for the the Appellant. In Mohammed Kasim v- The State (Crim. App. 21/93) the Court of Appeal lay down seven years imprisonment for the offence of rape. As Pain J said in Walota Smith -v- State Crim. App. 32/95, if the Appellant had been tried in the High Court, he may well have been given a greater sentence. The Magistrates
Court can only impose a term of five years imprisonment or less.
The appeal against sentence is dismissed.
Nazhat Shameem <1"> JUDGE
At Suva
26th October 2000
Haa072j.00s
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2000/116.html
