Fotofili v Reginam [1977] FJSC 82; Criminal Appeal 096 of 1977 (29 September 1977)

THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 96 OF 1977

TEVITA FOTOFILI
alias OHU
Appellant

v.

REGINAM

Respondent

JUDGMENT

The appellant was on the 8th March, 1977 convicted of the offence of Rape by the Magistrates Count sitting at Lomaloma Lau and sentenced to 3 years' imprisonment. He appeals against conviction and sentence.

There are 10 grounds of appeal. Many of them are irrelevant and are complaints about the Investigating officer and the interpreter. He asserted his innocence. I have treated his grounds as being allegations that there was insufficient evidence on which to convict him.

The complainant was a girl aged 14. The Magistrate in his judgement refers to her as a shy little girl who could be taken to be 12 years of age from her appearance. She was a virgin before the offence.

On the 12th February 1977 the complainant went with two other girls to Wailevu to get vegetables. At Wailevu the accused spoke to the complainant and invited her to go to his plantation where he would give her vegetables. She related what happened after she arrived at the accussed's plantation where the alleged offence was committed.

The complainant testified that the accused asked her for a kiss she refused and started crying. He then grabbed her by the thigh and pulled her pants off and fondled her breasts. He put her on the ground and raped her while she was crying and yelling. The complainant gave details of what happened which I do not consider it necessary to repeat. The trial Magistrate considered all the evidence and had no hesitation in accepting her evidence in its entirety.

The accused after the offence took the girl back to her companions to whom she immediately made a complaint and took off her pants and showed then the blood on her pants.

She returned to her village and told her mother about the incident. There was considerable delay by the complainant's family in reporting the matter and it was not until the 1st March 1977 that she was medically examined. The doctor testified that the complainant's hymen was ruptured and was caused by forcible penetration which could have occurred about a fortnight previously.

One of the complainant's companions gave evidence of the complainant's complaint and her condition when she returned from the appellant's plantation. She was crying, and her shorts were torn and she had blood on the inside of her pants.

The other companion also gave evidence about the complainant's condition. She was crying, her trousers were torn and there was fresh blood on the crotch of her panties. She also saw what appeared to be semen on the panties.

The appellant gave evidence on oath and told a story which the Magistrate rightly labelled patently absurd. He alleged he was trying to find out if the girl had been out with anyone before. That she took off her parts and he pretended to lie on top of her and to see whether she was a virgin he inserted his finger in her vagina. He denied having intercourse with her.

The trial Magistrate considered all the evidence and was satisfied beyond reasonable doubt that the offence had been committed and convicted the accused. On my consideration of the evidence there was ample evidence to establish the offence and the appellant was rightly convicted, the appeal against conviction fails.

On the question of sentence I do not consider the sentence excessive. If anything it was on the lenient side.

The appellant was formerly a member of the Royal Fiji Police. While no great force was used by the appellant this was no doubt due to small size of the girl who was an immature school girl and the size of the appellant a strongly built male. The Magistrate considered the complainant was terrified by the accused’s behaviour.

The full details of this case make distressing reading and despite the appellant's prior good conduct there are no grounds for exercising leniency.

The appeal is dismissed.

(R.G. Kermode)
JUDGE

Suva,
29th September, 1977.