Naikawakawavesi v State [2012] FJHC 1307; HAA009.2011 (29 March 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO: HAA 009/2011

BETWEEN:

NIMILOTE TAMANI NAIKAWAKAWAVESI
APPELLANT

AND:

STATE
RESPONDENT

BEFORE: Hon. Justice Mr Prabaharan Kumararatnam
COUNSEL: Appellant in Person
Mr. Y. Prasad for the Respondent/State

JUDGMENT

01. Nimilote Tamani Naikawakawavesi (hereinafter "the appellant") was charged with one count of RAPE, contrary to section 149 and 150 of the Penal Code, Chapter 17. The Charge was filed in the Nausori Magistrates Court.

02. The particulars of offence were:

"Nimilote Tamani Naikawakawavesi, on the 15th day of July 2007 at Wainibokasi, Nausori in the Central Division, had unlawful carnal knowledge of a woman namely Tulia Rasovo"

03. The hearing commenced on 17/09/2010, was adjourned thereafter with scheduled hearing dates and the trial proper concluded on 18/10/2010. On 25/10/2010, the accused was found guilty on the charge of Rape, after full court hearing and submissions made by the prosecution and the defence.

04. On 27/10/2010, the accused was sentenced to seven and half years, with non-parole fixed for 5 years at the Nausori Magistrate Court.

05. Being aggrieved, the appellant has appealed against the conviction and sentence on the following grounds:

1. The Learned Magistrate erred in law and in fact in failing to evaluate the evidence adduced by the appellant.
   
2. The Learned Magistrate erred in law and facts and in fact when he only considered the evidence adduced by the prosecution and totally ignored to consider the evidence adduced by the defence.
   
3. The Learned Magistrate misdirected himself in law in fact when he made adverse inference on failure of the appellant remember anything at all during the commission of the alleged offence.
   
4. The learned magistrate erred in law in fact when dealing with the elements of the offence when he failed to mention and/or consider that the one of the material elements of the offence was whether the appellant was the one and same person who raped the complainant.
   

06. The learned magistrate in his ruling stated the issue of credibility of witnesses and whom the court believes. The magistrate considered the state witnesses to be credible. The magistrate had observed that the defence witnesses had given contradictory and unreliable evidence in court. The basis of court analysis stemmed from demeanour and consistency of witnesses while they were adducing evidence in court.

07. The appellant states that he had failed to remember anything during the commission of alleged offence. But he had admitted assaulting and raping the complainant in his caution interview statement. The caution interview statement became admissible evidence after it was tendered by the investigating officer. This was not challenged by the appellant in the magistrate court thus became evidence in this case. No objection was taken up by the defence to the caution interview statement by challenging the admissibility and making an application for trial within a trial before the trial proper commenced.

08. The victim of this case positively identified the accused during the police investigations and during the trial proper. No single contradiction marked regarding identity of the accused.

09. In this case the victim's evidence clearly supported by the medical evidence. Medical report shows "soft tender swelling over scalp and whole area is tender. 4 x 5cm area of swelling abrasion on the forehead. Linear scratches mark on the face. Swelling over both thighs. Grass thorns on both thighs and knees "Injuries are quite consistence with the victim's version. The doctor could not express an opinion regarding penetration as the victim had delivered 2 full term infants vaginally.

10. In Soqonaivi v State (1968) FJCA 64 and Req v Redpatyh (1962) 46 Cr.App Rep 319, where it was held;

"It is true that the evidence of bruising and of scratches of distress, was corroborative of the complainant's evidence of absence of consent".

Furthermore the issue of corroboration is no longer applicable or mandatorily required in proving sexual offences as held in the case of Balelala v State [2004] FJCA 49, AAU0003.2004s (11th November,2004.

"The primary issue which arises on this appeal, concerning the correct approach to the need for evidence corroborative of complainants in rape cases, is one of considerable public importance. It has a particular relevance since under Fijian law; rape can only be committed against women. (Section149 of the Pena Code Cap.17).

It is first convenient to note that corroboration is evidence independent of the witness to be corroborated which "confirm in some material particular not only the evidence that the crime had been committed but also that the prisoner committed it": DPP v Baskerville (1910)2KB 658. It means "confirmation" or "support" DPP v Hester (1973) AC 296. It does not have to prove, by itself, the guilty of the accused beyond reasonable doubt; it is sufficient if it confirms or tends to confirm the accused's participation, or involvement, in the crime charged Doney v The Queen [1990] HCA 51; (1990) 171 CLR 207.

11. The issue of corroboration in sexual offences is also not required in our Criminal Procedure Decree 2009 now.

12. The learned magistrate had considered all defence witnesses and watched their demeanour before reaching his decision. The appellant had been properly represented by a counsel.

13. In Enkama v State [1988] 34 FLR 135 the appellate court emphasized the proceedings of magistrate court in terms of seeing and hearing witnesses during the trial proper, especially on the issue of demeanour;

"We feel we ought to draw attention to an important point of practice concerning the exercise by the High Court of its appellate jurisdiction. An appellate court is primarily concerned to satisfy that the conclusion reached by the trial court can be reasonably being supported on the evidence adduced and upon applicable law. Where a case depends essentially, as the present case does, on the credibility of witnesses and findings of facts connected therewith, an appellate court ought to be guided by the impression made on the magistrate who saw and heard witnesses and not by its own evaluation of the printed evidence which can be misleading"

14. The learned magistrate despite the aggravating factors with no notable mitigating factors picked up the lower end of the tariff and no error has been shown.

15. As none of the grounds of appeal have been made out, the appeal against the conviction and sentence are dismissed.

P.Kumararatnam
JUDGE

At Suva
29/03/2012