Sireli v State [2008] FJHC 205; HAA053.2008 (8 September 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA 053 OF 2008

BETWEEN:

IOWANE SIRELI
Appellant

AND:

THE STATE
Respondent

Counsel: Appellant in Person
Ms. S. Hamza for the State

Date of Hearing: Friday 1st August, 2008
Date of Judgment: Monday 8th September, 2008

JUDGMENT

Background

[1] Following a trial in Suva Magistrates’ Court, the appellant was convicted for rape and was sentenced to 6 years imprisonment. He appeals against conviction and sentence. The grounds of appeal, in summary, allege the following errors:

• Failure to direct on standard of proof.
• Conviction not supported by evidence.
• Lack of resistance.
• Lack of corroboration.
• Sentence is unlawful and wrong in principle.
  

Facts

[2] The complainant is a young woman in her early twenties. She grew up in the same village as the appellant. She has known the appellant from a young age. The complainant was in a relationship with the appellant’s nephew (Lasike), who also resided in the same village. Lasike’s home was a few meters away from the appellant’s house.

[3] On 2 June 2006, Lasike and the complainant attended a fundraising together at a home in the village. Later in the night, they walked to the roadside. The complainant was drunk. Lasike left the complainant at the roadside and went to buy a cigarette from a shop. The complainant said that while she was waiting at the roadside for her boyfriend to return from the shop, she was forcefully taken underneath a nearby house by one Jo Waisuku and raped.

[4] When Lasike returned, he saw the complainant crying. Lasike took the complainant to the appellant’s house but it was closed. Lasike knew the appellant and his wife were attending a function at his home. He went home, got the key to the house from the appellant’s wife, and returned to the complainant. Lasike took the complainant inside the appellant’s house, and after a conversation left her there, and returned home to check if the function at his home was over. Lasike said the complainant closed the door when he left but he does not know whether the complainant locked it. After 10 minutes, Lasike returned and found the complainant outside and the appellant and his wife inside their house. Lasike noticed injury on the complainant’s face. He took the complainant to her home and left her there.

[5] The complainant said she was raped by the appellant when she was lying down inside the appellant’s bedroom after her boyfriend had left. She said the appellant pulled her down from the bed on to the floor and had sexual intercourse with her. She resisted but the appellant covered her mouth. While the appellant was having sex, his wife walked in and punched the complainant. Under cross examination the complainant said she recognized the appellant because she had seen him many times in the village. She said although there was no light inside the bedroom, she recognized the appellant’s face and when his wife walked in, she turned on the light and punched her when she saw the appellant on top of her.

[6] The appellant’s caution interview was tendered without any objection. The appellant said that when he and his wife returned to their home, he saw the complainant lying in his bedroom. He said he tried to wake her up and tell her to go home. He denied raping her.

[7] The appellant’s sworn evidence was consistent with his caution statements. The appellant’s wife gave evidence confirming the account given by him.

Consideration of Appeal Grounds

[8] The case against the appellant substantially depended on the complainant’s evidence. There was evidence that the appellant had sexual intercourse with the complainant and without her consent. The learned Magistrate directed herself that the prosecution carried the burden of proving the charge beyond reasonable doubt.

[9] When considering the complainant’s evidence the learned Magistrate directed her mind to the question of corroboration of her evidence. Being satisfied that the complainant was a reliable witness, the learned Magistrate found there was no need for corroboration. The learned Magistrate accepted the complainant as a truthful witness after warning herself about the requirement of corroboration in sexual cases.

[10] The learned Magistrate dealt with the appellant and his wife’s evidence and disbelieved them. The learned Magistrate said:

"Iowane Sireli and his wife Unaisi Leweniqila, according to their evidence entered the house together. It’s a one bedroom house. According to the evidence Iowane Sireli went to wake Nina whilst Unaisi went to warm up the food. It appears strange that Unaisi did not show any curiosity as to who was lying on her bed and just continued with the warming of the food. Their evidence sounded very doubtful."

[11] The appellant contends that he cannot be convicted for rape unless corroboration is present. There is no basis for the contention. There is no statutory requirement for corroboration in cases of sexual offences. The rule of practice that required a warning that it was dangerous to convict on the uncorroborated evidence of the complainant was reviewed by the Court of Appeal in the case of Seremaia Balelala v The State Criminal Appeal No. AAU0003 of 2004S. The court declared that the rule of practice should only be applied if there was some particular aspect of the complainant’s evidence that gave rise to a question as to its reliability.

[12] Although the appellant challenged the complainant’s identification of him, the identification by the complainant was not a case of a fleeting glance. The appellant was not a total stranger to the complainant. She saw his face while he was on top of her, which identification was later confirmed when the appellant’s wife turned on the light and punched the complainant when she saw the appellant and the complainant together. The evidence of the appellant’s wife did not support the complainant’s evidence, but his. The issue then was whether the appellant and his wife were telling the truth, or whether the complainant was telling the truth.

[13] In this case there was no corroboration of the complainant’s evidence and as I have said the law did not require corroboration. The learned Magistrate convicted the appellant after being satisfied that the complainant was a truthful witness. I cannot see any error in the manner in which the learned Magistrate assessed the complainant’s credibility and her evidence. The learned Magistrate convicted the appellant after being satisfied of his guilt beyond reasonable doubt.

[14] In her sentencing remarks the learned Magistrate said this must have been a horrific experience for the complainant. First she was raped by a fellow village man and then when she took shelter at the appellant’s home she was raped by the appellant who also was a fellow village man. The learned Magistrate considered the fact that the complainant grew in the same village and that the appellant knew her and had seen her growing up as an aggravating factor. The mitigating factors were the appellant’s previous good character and family circumstances. The learned Magistrate used a term of 7 years as a starting point. After adjusting for the mitigating and aggravating factors, she imposed a term of 6 years imprisonment. The sentence is neither wrong in principle nor manifestly excessive.

Result

[15] In the result all the appellant’s grounds of appeal are rejected and the appeal is dismissed.

[16] The conviction and sentence are confirmed.

Daniel Goundar
JUDGE

At Suva
Monday 8th September, 2008

Solicitors:
Appellant in Person
Office of the Director of Public Prosecutions, Suva for the State