Bulewa v Reginam [1978] FJSC 48; Criminal Appeal 043 of 1978 (28 August 1978)

IN THE SUPREME COURT OR FIJI
Appellate Jurisdiction

Criminal Appeal No 43 of 1978

Between:

WAISAKE BULEWA
Appellant

and

REGINAM
Respondent

Appellant in Person
Mr. M. Razak, Counsel for the Respondent

JUDGMENT

The appellant was convicted for attempt rape contrary to section 145 of the Penal Code and for damaging a dress and a watch band belonging to the complainant contrary to section 360(1) of the Penal Code. He appeals against his conviction.

He appeared in person and he had drafted his own grounds of appeal. At the hearing he claimed to be inarticulate and handed 19 foolscap pages in closely written English setting out arguments pertaining to the prosecution evidence. None of it raised any points of law and in the end one still had to decide whether there was sufficient reliable and credible evidence to justify the conviction.

I have read the appellant's detailed submissions and his critical analysis of the evidence given by the prosecution witnesses. As the record shows the proceedings were held over for about ½ hour to enable Crown Counsel to peruse them.

The facts as found by the magistrate and which were not in dispute by the accused, but which in fact have been prayed in aid by him, are that he attended "a village dance" which was also attended by the complainant and other girls of the locality. About 12.30 A.M. the complainant and her companion P.W.2, another Fijian young woman, returned home to the village. They were accompanied by the accused.

The girls went to bed but were attracted by the appellant knocking on the window. P.W.1, the complainant, went and spoke to the appellant, left the house and joined him in strolling as far as the village store which was not far away and in sight of the house.

From this stage onwards the stories of the complainant and the appellant diverge except that it is not disputed that the appellant and complainant were together for some time after she had left her home. She gave evidence that the accused tried to have intercourse with her without her consent. Her evidence indicated that her dress, one which she wore for sleeping in and which has a zip, was badly torn in the struggle; that he tried to force her to the ground and the band of her wrist watch was broken in the struggle. When he threatened to punch her to unconsciousness she suggested going to another building. On realising she had tricked him the appellant redoubled his efforts managing to remove her pants and force himself on top of her. In the course of the struggle she received numerous superficial cuts and abrasions. Finally she escaped and sat close to her home where her mother found her shortly after 6.00 a.m. Recent damage to the complainant's watch band and dress and her injuries was referred to by other prosecution witnesses.

In evidence the appellant denied the allegations of force but stated that they had kissed and that he had with her approval kissed her breasts. He denied attempting to rape her.

About 6:00 a.m., P.W.3, the girl's step-father saw appellant when he was looking for the complainant. P.W.3 said the appellant denied all knowledge of the complainant's whereabouts. On discovering the girl and hearing her complaint P.W.3 challenged the appellant and he says the appellant admitted using force to try and have sex with the girl. He said, and the appellant also admits, that the appellant tendered a taboo to the complainant's parents in an endeavour to placate them and to persuade them not to notify the police.

In that respect the appellant said that it was better for him to agree with his adversary than to have the police called in because he, (the appellant) may not be believed.

P.W.4, complainant's mother, confirms that when she and P.W.3 were seeking the complainant the defendant denied having been with her.

The magistrate believed the prosecution witnesses and there was ample evidence to justify the conviction. The appellant's detailed analysis of the alleged shortcomings in the prosecution evidence does not reveal any inadequacies or inconsistencies therein nor does it reveal any factors pointing to a lack of credibility which the learned magistrate may have overlooked.

The appeal is dismissed.

SUVA,
28th August, 1978.

J.T. Willians
JUDGE

Appellant in Person
Director of Public Prosecutions for the Respondent

Date of Hearing: 28th July, 1978.