Vuinakece v Reginam [1978] FJSC 55; Criminal Appeal 068 of 1978 (10 November 1978)

IN THE SUPREME COURT OF FIJI
Appellate Jurisdiction

Criminal Appeal No 68 of 1978

Between:

RAFAELE VUINAKECE

V.

REGINAM

JUDGMENT

On the 19th July 1978 at Suva Magistrates Court the appellant was convicted after trial of defilement contrary to section 149(1) of the Penal Code and was sentenced to five years' imprisonment. He has appealed against conviction and sentence.

The prosecution evidence which the trial Magistrate accepted established that on the night of the 29th March 1978 the appellant, aged twenty six, took the complainant, who was in her eleventh year, on a pretext to a secluded area at Raiwaqa where he committed the offence of which he stands convicted, the complainant's identification of him being corroborated by a police officer who picked him out at a properly conducted identification parade.

In his grounds of appeal the appellant claims that under cross-examination the complainant contradicted herself on the matter of identification, in that when the appellant asked her under cross-examination whether she had said at the police station that she did not know him she replied: "I said - I do not know you but I was sure you were the person". This does not, in my view, amount to a contradiction nor does it throw any doubt on the correctness of her identification of the appellant, as clearly the complainant was drawing a distinction between knowing the appellant - in the sense of being on familiar terms with him - and recognising him as the offender. This is borne out by the evidence of the police investigating officer who, when the appellant asked him under cross-examination whether he, the appellant, had asked the complainant at the police station whether she knew him the investigating officer replied: "Yes, you asked the girl if she knew you. She said you were the man but that she did not know you before."

The appellant also claims that the police investigating officer gave contradictory evidence about the loss of his notebook, but there was no contradiction, Under cross examination the police investigating officer, who had subsequently left the Police Force to take up an appointment as an enforcement officer with the Suva City Council, stated that since he had left he had lost track of his notebook; and when the trial Magistrate inquired further into this aspect of the matter the investigating officer simply elaborated on the point, stating that the notebook was not with his kit and as he had left the Police Force he did not know where it was.

The final point taken by the appellant is that there was a contradiction between the complainant and a police officer as to the clothes he was wearing. The complainant stated under cross-examination that the appellant was wearing black and white short pants and a brown shirt over a light green singlet, while the police officer, who saw him later the same night accompanying the complainant towards her home after the commission of the offence, stated under cross-examination that at that time the appellant was wearing short pants with his shirt slung over his shoulders, and that he did not see a singlet. I do not consider this to be a material discrepancy, nor does it throw any doubt on the proper identification of the appellant which, in all the circumstances of the case, was accurate and reliable.

The appeal against conviction is accordingly dismissed.

With regard to sentence, as the appellant took advantage of a young girl it is a proper case for imprisonment, but five years is too severe (R. v. Solomoni Qito Suva Cr.App. No. 37 of 1978).

The sentence is quashed and in substitution therefor the appellant is sentenced to four years' imprisonment with effect from the 19th July 1978.

Grant CJ
Chief Justice

Suva,
10th November 1978.