Bulimaiwai v The State [2005] FJHC 261; HAA0068J.2005S (2 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0068 of 2005S

Between:

RUSIATE BULIMAIWAI
Appellant

And:

THE STATE
Respondent

Hearing: 26th August 2005
Judgment: 2nd September 2005

Counsel: Appellant in Person
Mr. D. Prasad for State

JUDGMENT

The Appellant was charged as follows:

First Count

Statement of Offence

ATTEMPTED RAPE: Contrary to section 151 of the Penal Code, Act 17.

Particulars of Offence

RUSIATE BULIMAIWAI on the 24th day of February, 2003 at Suva in the Central Division, attempted to have unlawful carnal knowledge of a woman namely FANIA SERU without her consent.

Second Count

Statement of Offence

COMMON ASSAULT: Contrary to Section 244 of the Penal Code, Act 17.

Particulars of Offence

RUSIATE BULIMAIWAI, on the 24th day of February, 2003 at Suva in the Central Division, unlawfully assaulted FANIA SERU.

He pleaded not guilty and was convicted on the 31st of March 2005. He was sentenced to a total of 2 years imprisonment. He now appeals against conviction and sentence.

The grounds of appeal are that there was no corroboration of the evidence of the complainant, the medical report on its own was inadequate to convict the Appellant, and the State failed to properly lead the evidence.

The case was first called on the 19th of June 2003. The Appellant pleaded not guilty on both counts. There were numerous adjournments to allow legal aid counsel to appear, and also for the non-appearance of witnesses. The trial commenced on the 17th of June 2004.

The evidence of the complainant was that on the 23rd and 24th of February 2003, she was working at the Dragon Night Club from 5pm to 3am. She went to the Birdland Nightclub for half an hour with her work mates and then went home to Nadera. She took a short cut from the Top Shop in Raiwaqa. As she walked past the Police Post, she saw the Appellant on the porch. He called out to her and asked her for cigarettes. She said she had known the Appellant for four years. He was wearing a police uniform because he was a Special Constable. She gave him cigarettes. The record then reads as follows:

“I gave him a roll of cigarettes when he held my hand. This happened inside the Police Post, when I went back to give him a roll of cigarette. When he held my hand, I told him, “Rusi cava manati iko”. He replied “tikolo madaga na gusumu lako mai ke.” He pulled me towards the porch, there is a door to the wash room, where he held me against the wall outside, pulled up my skirt. I called out “Rusi cava manati iko.” He replied “tikolo na gusumu, kua ni tovolea mo kaila, de’u na vacuki iko.” He then touched my private part. He put me on the floor bending down, and started to unbutton his trousers. I pushed him and warned him at the same time, that I shall report him to Michael, the father of my child, a daughter. When he heard of my warning he then released me.”

She said that to touch her private parts, the Appellant had lifted her underwear. She said she was distressed because she had always treated the Appellant like a brother. As she got up from the floor, the Appellant punched her.

She then complained about the incident to her brother, Apenisa Seru, who advised her to report the matter at the Raiwaqa Police Station. She did so. Two days later, the Appellant’s wife came to her home, seeking reconciliation. The complainant chased her away.

The Appellant was defended by counsel. She said she was not certain of the exact time of the incident. She said that before the incident, she had drunk four glasses of rum and coke.

The prosecution called Corporal Sakiusa Vunivesilevu of Raiwaqa Police Station. He said that on the 24th of February 2003, he received a report of attempted rape and indecent assault, by Fania Seru. He interviewed the Appellant under caution. The Appellant told him that the complainant came to the police post at 5.22am. She was drunk. He made an entry about her arrival in the Station Diary. He said that she spilt some water over the diary and that he asked her for a roll of cigarettes. She gave him a roll. She then started to fill an electric kettle with water, apparently with the intention of throwing water over him. He punched her on the mouth. The kettle fell down. He told her to leave the Post. She left, but she came back to say that she would report him. He denied trying to rape her or indecently assault her.

The trial continued on the 5th of November 2004. The complainant’s brother was the next witness. He said that on the 24th of February 2003, at 5.30am the complainant woke him up crying and told him that the Appellant had tried to rape her at the Police Post that morning. He told her to report the matter. Under cross-examination he said he could see bruises on his sister’s mouth and that she did not smell of alcohol.

Police Support Officer Jitendra Singh gave evidence that he was on duty at the Police Post from 6.45am to 4pm on the 24th of February. He said that when he took over from the Appellant, the Appellant told him that he had slapped the complainant when she tried to put on the kettle and when she spilt water on the station diary.

The trial was then adjourned again, and continued on the 1st of March 2005. The prosecution closed its case. The Appellant gave sworn evidence which was similar to his caution statement. Under cross-examination he denied attempting to have sexual intercourse with the complainant. However he also said that he did not assault her, but that the kettle accidentally hit her mouth when he tried to slap her from throwing water on him.

Judgment was delivered on the 31st of March 2005. After reviewing the evidence he said that an attempted rape is complete even if the perpetrator voluntarily desisted, as long as there has been a proximate act. He found that in this case the Appellant’s acts were sufficiently proximate on the basis of the evidence of the complainant and convicted him accordingly on both counts.

Mitigation was heard on the 4th of April 2005. The Appellant himself mitigated, saying that he did not commit the offence and that he was a 29 year old married man with a child. The learned Magistrate sentenced him to 2 years imprisonment on Count 1, and 9 months (concurrent) on Count 2.

The appeal

The Appellant says that there was insufficient evidence to corroborate the complainant’s evidence and that the convictions were therefore unsafe. The Court of Appeal decision in Seremaia Balelala Crim. App. AAU0003 of 2004S has recently removed the necessity for giving a corroboration warning in cases of sexual assault. This is because the law of corroboration was based on the discriminatory premise, that the evidence of women in sexual cases, is inherently unreliable. Thus, there was no need to look for corroboration of the complainant’s evidence.

Clearly, the learned Magistrate accepted the complainant’s evidence. It is unfortunate that he did not explain why he preferred her evidence over the Appellant’s, but the way in which he set it out in full, and the contradictions apparent in the record when the Appellant was giving evidence, make the reasons for his decision self-apparent. The complainant’s evidence was given logically. She did not contradict herself. The bruise on her mouth was consistent with both her evidence, and the Appellant’s. However, the Appellant had given two different explanations for it. There is evidence that the complainant was distressed immediately after the incident and there is evidence of recent complaint which is consistent with her account of the incident. It is therefore unsurprising that the court preferred her evidence.

In relation to the medical report, I note that although the prosecution tried to tender it from the bar table, the defence objected and asked for the doctor to be called. The court agreed and thereafter, although the doctor did not give evidence, the court placed no weight at all on the medical report. Nor did counsel seek to call the doctor for the defence.

The last ground of appeal is that this was not a case of attempted rape but one of indecent assault, even on the evidence of the complainant. Although this ground was not specifically raised in the letter of appeal, I am considering it because the Appellant is not represented by counsel. Further, this ground raises important issues of law which warrant determination.

Section 380 of the Penal Code provides as follows:

“When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.

It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.

It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.”

The elements of the offence of attempted rape are first that the accused intended to have carnal knowledge without consent, and second that he did some overt act to put his intention into execution. Often the intent to rape is implied from the nature of the overt act. A touching of the breasts may only constitute an indecent assault. An attempt to take off underclothes together with a touching of the breasts may constitute a sufficient overt act. A great deal depends on the circumstances of each case.

The “overt acts” in this case were the holding of the complainant’s hand, the pulling of the complainant towards the porch, the holding of the complainant against the wall, the pulling up of her skirt, the touching of her private parts, the pushing of the complainant to the floor, and the Appellant’s act of bending down and unbuttoning of his trousers. Together with these acts, he told her to keep her mouth shut and “to come here” and to shut her mouth or he would punch her. He only desisted when she threatened to tell the father of her daughter, a fellow police officer. All that was left for the Appellant to do, was to attempt a penetration. His aggressive conduct makes it clear that he was doing what he was doing despite her lack of consent to that conduct.

In Hari Chand v. State Crim. App. 03 of 2005LAB, I found that where the Appellant pushed the victim onto a bed, lifted up her dress, pulled down his own trousers and put his hand over her mouth when she struggled, accompanied by a request for sexual intercourse, there was sufficient evidence to prove both the overt acts and the intention to rape. It is essentially a question of fact whether the offender’s acts are sufficiently overt or proximate (R v. Patnaik [2000] 3 Archbold News 2).

On the basis of the complainant’s evidence, there was ample proof of an intention to rape and of overt acts which manifested that intention. It is irrelevant that he desisted of his own motion. He had already committed the overt acts with the necessary mens rea. The offence was complete. This was not a case of indecent assault.

The learned Magistrate’s judgment makes it apparent that he considered the necessary elements of the offence of attempted rape, and correctly directed himself on those elements.

The appeal against convictions is dismissed. The Appellant did not pursue his appeal against sentence. However the 2 year term of imprisonment is within the tariff for attempted rape and is not manifestly excessive. In Joji Aunima v. State Cr. App. 33/2000, I identified the tariff for attempted rape as being 12 months imprisonment to 5 years imprisonment. Sentences at the upper end of the tariff should be imposed where gratuitous violence is inflicted, where a weapon is used, where there is a gross breach of trust or where there is a large age gap between complainant and offender. In Hari Chand v. State (supra) I upheld a 3 year term for the attempted rape of his daughter-in-law by the offender. There was no gratuitous violence but there was a gross breach of trust.

In this case, the 2 year term imposed is at the lower end of the tariff. Although the Appellant was of previous good character, the offence involved a gross breach of trust. He was a police officer in uniform. He was also well-known to the victim. I do not take into account the punch he delivered because he was charged separately for it on Count 2. The sentence was therefore correct in principle.

This appeal is wholly dismissed.

Nazhat Shameem
JUDGE

At Suva
2nd September 2005