Vunaki v State [2011] FJHC 762; HAA026.2011 (23 November 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA 026 OF 2011

BETWEEN:

KOLINIO VUNAKI
Appellant

AND:

STATE
Respondent

Mr. P. Lomaloma for the Appellant
Mr. K. Waqavonovono for the State

Dates of Hearing : 19th October 2011
Date of Judgment : 23rd November 2011

JUDGMENT
__________________

[1] On the 15th July 2011, the appellant was convicted of rape contrary to Section 149 and 150 of the Penal Code, Cap 17 in the Magistrates Court at Labasa. He was sentenced on 20th July 2011 to a term of imprisonment of nine years (with 8 years minimum).

[2] He now appeals his conviction having earlier abandoned an appeal against sentence.

[3] The fact of the case were that at the time of the offence, the appellant was an Inspector of Police stationed at Tukavesi in Cakaudrove. In January 2009 he was alone there, his family having gone to Suva. The victim/complainant lives in Tukavesi village with her parents and her family was friendly with the appellant. On the 21st January 2009 the appellant returned home to find the complainant there watching a DVD with some other people. The appellant prepared his dinner and was talking with the complainant while doing so. He asked her if she was going to sleep at his house or at her home. She elected to stay over at his house. The complainant gave evidence that she went to sleep near the appellant's son who was sleeping on a mattress in the sitting room. She says the appellant followed her and sat on a chair nearby still talking. Wanting to sleep she tried to cover her ears with pillows. She fell asleep but says she awoke to find the appellant on top of her with his penis in her vagina. She tried to move but he kept pushing her to the floor. She said that when she went to sleep she was fully dressed wearing brown panties and green cargo pants (3/4). When she pushed the appellant away these garments were laying beside her and she had one leg in the air, and the other on the floor.

[4] She left the appellant's quarters and went to her auntie's house nearby. She knocked and her aunty (PW2) said she was distressed and when Aunty asked her what's wrong she said something. The words she said (in Fijian) have been differently interpreted and differently recorded. The Magistrate records it as "The accused did something to me". The prosecution claims she said "The accused wanted to do something to me" and the defence submission on no case records it as "The accused tried to have sex with me."

[5] From Aunty (PW2), she then went to Aunty DW3 who says that the victim said she was raped by the accused but DW3 asked her if he was successful and the victim replied "No". Finally Aunty DW3 took her to her mother to whom the victim said that the accused had tried to have sex with her.

Grounds of Appeal

[6] Counsel for the Appellant grounds of appeal relate in the main to credibility of witnesses and that a delay between hearing of prosecution evidence and delivery of judgment (21st October 2010 until 13th July 2011) made it virtually impossible to assess credibility of the witnesses from their demeanor. He submits that removal of the victims' clothes and raising one leg in the air without waking her is so implausible that it required the Magistrate to be additionally careful about credibility and that the inconsistencies raised by the three ladies to whom early complaint was made also needed to be dealt with.

[7] In addition to the implausible evidence of the complainant and to the inconsistencies averted to by other witnesses, concern is also raised by inconsistencies within the Magistrates' own written rulings during the trial. In his Ruling on no case to answer the learned Magistrate had this to say about Aunty PW2 's evidence. She said that the complainant came to her house on 22 January 2009 and she was crying and said that the accused tried to have sex with her. However in his final judgment he changed the evidence to "she saw that the complainant was crying and she informed her that she was raped by the accused.

[8] There is a huge difference between "tried to have sex" and "rape" and it was a difference that casts doubt on the final judgment of the Magistrate.

[9] There was no medical report produced in evidence that would corroborate the evidence of the complainant.

[10] Counsel for the State submits that the complainant would have been in a state of shock the next morning, and would not know what she was saying. He also submits that the Magistrate was entitled to come to the finding that he did, preferring to believe the evidence of the complainant despite the inconsistencies.

Conclusion

[11] Perhaps one inconsistency could be reconciled, perhaps one erroneous conclusion of the Magistrate could be explained but several inconsistencies casting doubt on the veracity of the complainant and at least two written errors on the evidence from the Magistrate leads the Court to believe that the conviction is unsafe.

[12] The appeal against conviction succeeds and the conviction is quashed. The appellant is to be released and is discharged.

P.K. Madigan
JUDGE

At Labasa
23 November 2011