Regina v Sisiwa [1979] FJSC 72; Criminal Appeal 141 of 1978 (31 January 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Appellate Jurisdiction
Criminal Appeal No. 141 of 1978

BETWEEN

REGINA
(Appellant)

AND

1. LUKE SISIWA
2. RUSIATE KURINACOBA
(Respondents)

Mr. D. Williams, Counsel for the Appellant
Mr. A. Kuver, Counsel for the 1st Respondent 2nd Respondent - In Person

JUDGMENT

The accuseds Luke Sisiwa and Rusiate Kurinacoba were both charged for the offences of rape, defilement of a girl under 16 years and wrongful confinement. All the offences were committed on 29th September, 1977 and against the same female complainant.

The record of the trial is contained in 112 typed sheets and the judgment amounts to 21 pages at the conclusion of which the learned magistrate acquitted both accuseds of the rape charge but convicted them of defilement and of wrongful confinement on 12.7.78.

Accused 1, Luke Sisiwa, a well built pugilist, has 15 previous convictions dating from March 1967 for assault causing bodily harm, drunk and disorderly, criminal trespass and larceny. He has been to prison on 4 occasions the two longest terms being 3 months and 4 months. Of him the learned magistrate said the offences of defilement and wrongful confinement seemed to be isolated incidents in his life.

Having regard to Accused 1's record it is somewhat, difficult to know what the magistrate meant by "isolated incidents". He sentenced Accused 1, Luke Sisiwa, to 18 months' imprisonment for the defilement suspended for 2 years, plus a fine of $120 and 4 months imprisonment indefault, with 6 months imprisonment for wrongful confinement suspended for 12 months. The learned magistrate appears to have overlooked the judgments of this Court to the effect that it is usually inappropriate to impose suspended sentences on persons who have served of imprisonment.

Accused 2, Rusiate, with 5 previous convictions for larceny, assault and defilement received 15 months and 6 months immediate imprisonment concurrently. The only reason for the different sentences appears to be that accused 2 had one previous conviction for defilement.

On 24/7/78 the Crown appeals against those sentences as manifestly lenient and wrong in principle. Apparently the Crown, at the time of the petition, were not in possession of a copy of the record or judgement because certificate copies thereof were not signed by the magistrate until 8/11/78 which is nearly 4 months after the appeals were filed.

On 8/1/79, Mr. D Williams, Chief Legal Officer, filed a notice of motion requesting leave to appeal against the acquittals on the charges of rape. Mr. Kuver who had appeared for the respondents in the magistrate’s court did not appear at the hearing of the motion but indicated that he was not objecting to the application. Leave to appeal out of time was granted to the D.P.P.

The complainant was 13 years and 4 months old at the date of the offences which were committed at Keyasi, Sigatoka.

At the material time the complainant was working for a woman called Eva and slept at her house along with 2 other girls Paulina, (P.W.3) and Caroline, (P.W.4). They had seen the two accuseds earlier that evening bit it appears that only the woman Eva spoke to them. The females retired at 10.00 p.m.

Salote, the complainant, said Accused 1, Sisiwa, came to the house about 10.30 p.m. and went away then he returned about 2 a.m. and threatened to knock the door unless it was opened. His demands were met and when the door opened Sisiwa grabbed the complainant's hair, pulled her off a companion's bed and pulled her out of the house by her arm.

P.W.3, Paulina, confirmed the violent entry of Sisiwa, (Accused 1), and said she ran outside and hid because she was frightened. She heard him say he wanted Salote (complainant).

P.W.4, (Caroline), confirmed Accused 1's violent entry and saw P.W.3 run outside. She says she was on a bed with the complainant, Salote, and Accused 1 said he wanted Salote, got hold of Salote's hair and arm and pulled her outside towards the river. She (Caroline), joined P.W.3, (Paulina) outside and said she heard Salote crying from the direction of the river.

The complainant, Salote, described how Accused 1 carried her across the river and kept a hand on her mouth. She alleged that she was raped five times on the opposite side of the river, that Accused 1 Sisiwa had intercourse with her 3 times and Accused 2 Rusiate twice. They alternated. Sometime later they re-crossed the river and she followed them. On reaching Eva's house she re-joined the girls P.W.' s 3 & 4 and with them went to hide at another house, the complainant having told them Sisiwa had threatened to come for them.

P.W.3 said that she saw complainant return and the complainant who was weeping complained that she wanted to sleep; and alleged that the accuseds had slapped her. She observed that complainant was very dirty and her hair was covered with grass and her face was swollen. P.W.3 stated that she saw both accuseds returning with the complainant.

P.W.4 Caroline confirmed P.W.3's evidence of complainant's distressed condition and that complainant said the accuseds had punched her and told her not to cry.

The second accused Rusiate did not give evidence or call witnesses.

Sisiwa, 1st Accused, denied having intercourse with the complainant. He stated that he went to the house and persuaded her to go and join Accused 2 because she was Accused 2's girl friend.

The Crown complains that the learned magistrate's findings of fact in relation to the charges of wrongful confinement and defilement were consistent with a finding of guilt against both accused on the rape charge.

Having found both accuseds guilty on the charges of wrongful confinement defilement it follows that the magistrate was satisfied that both accuseds had sexual intercourse with the complainant. It also follows that at some stage the complainant had been held against her will and since all three charges are part and parcel of the same series of incidents occurring, in the magistrate's judgment between 2.00 a.m. and 8.00 a.m., one may wonder why there was an acquittal for rape and a conviction for wrongful confinement. I do not mean that the two findings were bound to be inconsistent but in the circumstances the magistrate's findings of fact may well call for careful scrutiny.

In arriving at his finding of not guilty of rape the learned magistrate said at p.9 of his judgment,

"The circumstances under which P.W.1 was taken away from P.W.5' s house is one of the most important matters in this case and this has to be decided solely on the evidence of P.W.1, P,W.3 & P.W.4."

He enlarges on this at p.10 of his judgment stating,

"Hence it is doubtfu1 that force of the nature alleged by P.W.1 was actually used on P.W.1 to enable me to say in the light of other evidence that P.W.1 was taken away in such circumstances with the use of that much force that gave the impression that excessive force was used to get her out of the house. Although I must say that accused 1 was not justified in going inside the house in this manner at that hour of the night."

During that portion of his judgment on the rape charge the learned magistrate made no findings in respect of the allegations that P.W.1 (complainant) was forcibly moved from the house, forcibly carried across the river forcibly subjected to sexual intercourse. The learned magistrate may be under the impression that the use of force will not substantiate a charge of rape unless it amounts to "excessive force."

He commented at p.10 of his judgment that on her return the complainant did not vociferously and at once complain that she had been raped, but merely told P.W.'s 3 & 4 to run away because the first accused might come after them, and that all three girls then hid.

The magistrate found that the complainant in not at once complaining to P.W.'s 3 & 4 had not behaved as one would expect of a victim who had been raped 5 times. In certain sets of circumstances there could be merit in that comment e.g. where there were no witnesses of events proceeding or connected with the rape. But according to the learned magistrate P.W.'s 3 & 4 saw Accused 1 come into the house in a violent manner, heard him say he wanted Salote (the complainant), and one or other saw him pull her from the room and one or other heard her crying as he took her away, and they both saw her return with both accuseds and both noted her distressed condition. One may wonder if the victim would later need to complain to those persons. Such circumstances could speak more loudly than a complaint. The learned magistrate in reviewing the evidence on the other counts of defilement and wrongful confinement said at p.18,

"In the outcome I prefer to accept the testimony of P.W.1, P.W.3 & P.W.4 in respect of the material particular than that of Accused 1 and his witnesses."

Although P.W.'s 3 & 4 did not actually see P.W.1 being subjected to forceful sexual intercourse they could have had little doubt concerning the Accused 1's intentions towards the complainant. No doubt P.W.1 would not regard it as necessary to complain to two girls who had seen her being taken away and who ran into hiding with her when the accused returned.

In my view the learned magistrate in those circumstances over emphasised the absence of an immediate specific vociferous complain.

On p.11 of his judgment immediately following his finding of not guilty of rape the learned magistrate said in relation to the other counts,

"I find as a fact and am satisfied beyond all reasonable doubt that on 29th September 1977, the A.1 went to P.W.5's house at Keyasi at about 2 a.m. and took the P.W.1 out of P.W.5's house by holding her hand. There was some commotion when he did that P.W.3 and P.W.4 did not see exactly how she was taken out."

The learned magistrate did not find that the complainant voluntarily left the house, but that she was taken from it and he continued,

"The P.W.1 did not scream because of fear and because of the way she was held by Accused 1."

The description negatives any suggestion that the complainant voluntarily left the house. It shows that in the magistrate’s view she was taken away by force.

The accused 1 had entered the house at 10 p.m. and after a short while he departed. The magistrate's judgment continues on page 11,

"The Accused 1 came again at 2.00 a.m. and was punching the door; after Saiyad opened the door the Accused 1 came; P. W.1 and the other occupants of the house were frightened and "fled" to where Saiyad was sleeping, The P.W.1 was 'dragged' out of the house by Accused 1. Half a chain away from P.W.5' s house was Accused 2 hiding in the bamboo. Accused 2 joined accused 1 and P.W.1 was carried across the river on the shoulder by accused to the other side of the river."

That passage indicates the magistrate's finding that P.W.1 was in fact forcibly removed from the house where she was sleeping and forcibly carried to the river. His judgment continues,

"She was again dragged across the river where they both had sexual intercourse with her despite resistance from her. She was not given any opportunity to run away; she was overpowered by accused 1."

I would regard the magistrate's acceptance of that evidence as a clear and deliberate finding of rape by each accused.

The judgment continues,

"The P.W.1 was crying and reaching P.W.5’s house fled from there with P.W.3 & P.W.4 because they were frightened in case Accused 1 came again as accused 1 hinted to P.W.1 when being raped."

Those words amount to a finding of fact showing the complainant's distressed condition and her continuing fear of the accuseds. Her distressed condition is some corroboration of her allegation that she did not consent.

In her evidence in chief the complainant had said that she warned P.W.’s 3 & 4 that Accused 1 was going to get them too. P.W.'s 3& 4 confirmed this. Surely that warning was in the nature of a complaint.

At p.15 the magistrate said,

"I am more than convinced that both Al & A2 acted in concert. The Accused 1's main intention was to get P.W.1 out of P.W.5's house and have sexual intercourse with her. All the evidence that there is before me points in that direction."

On the same page he says,

"Even taking Al's own evidence I find that he used some force to get her out of P.W.5' s house."

At p.l9 the magistrate states,

"I find as a fact and am satisfied beyond all reasonable doubt that after taking P.W.1 across the river both accused 1 and accused 2 had unlawful carnal knowledge of P.W.1 who was 13 years 9 months and 23 days at the time. Under S.150 even if she consented, which I find she did not in the circumstances outlined here above, it is no defence."

Once again the learned magistrate revealed a distinct finding that there was an absence of consent on P.W.1's part, which of course is the very essence of rape.

In dealing with the charge of wrongful confinement he said at p.19,

"I have no doubt whatever in my mind that I do find as a fact that Accused 1 with some force took P.W.1 away from P.W.5's house and then Accused 1 & Accused 2 both wrongfully confined her and when they took her across the river and had sexual intercourse with her. She was placed by Accused 1 and Accused 2 in such a situation that she could not make a move to get away from the place. They released her after their sexual desires were satisfied."

Those words once again amount to distinct finding of rape committed by each of the accuseds.

There are several distinct statements by the magistrate each of which amounts to a finding of facts which justify a conviction for rape.

Mr. Kuver, for the respondents, argues that the magistrate had made two different findings of fact in connection with the rape charge. He submits that if the magistrate’s findings of fact which gave rise to the acquittal are correct then the Crown’s appeal must fail and he contended that the findings pointing to an acquittal are far stronger than those which support a finding of guilt. In my view, Mr. Kuver’s approach makes the appellant’s task too simple. The record including the judgement must show that the magistrate’s acquittal cannot be justified and that his understanding of what was required to prove the offence of rape was quite erroneous.

The essence of the charge of rape is having sexual intercourse with a woman without her consent. For the purposes of the instant proceedings the lack of consent on the complainant’s part was allegedly overcome by the use of force. The magistrate therefore had to be satisfied that the act was committed by force against the complainant’s will. If the complainant could have saved herself by physical resistance to the force offered, or by escaping her aggressors or by giving an alarm by crying for help then her failure to do so would weaken the Crown’s case on the issues of an absence of consent. If she put up a token persistence only and then submitted to the acts of intercourse the alleged absence of consent would scarcely be supported.

In acquitting on the charge of rape the magistrate did not find that no force was used in making her submit but that excessive force was not used to get her out of the house; but at the same time said that "the Accused 1 was not justified in going inside the house in this manner at that hour of night". He also stated at p.9 that P.W.3 and P.W.4’s evidence was outlined by his relating to the Accused 1’s entry into the house. His judgment records at p.4 that P.W.4 saw the Accused 1 hold the complainant's hand and hair, pull her out of bed and drag her out of the house. Evidently he accepted that she was taken away by force and this is confirmed by his finding on the wrongful confinement charge that Accused 1 came at 2.00 a.m. and was punching the door and he dragged the complainant out of the house. There is nothing in those findings to indicate that the learned magistrate found that the prosecution had failed to prove that force was used to overcome the P.W.1, but to the contrary.

He says at p.10 that the complainant's behaviour on returning to the house was not that of a female who had been raped. One wonders why he made that comment when he said that on her return she advised P.W.'s 3 & 4 to hide from the first accused and accompanied them to a place of concealment. What reason could they have for hiding? Surely that was the conduct and behaviour of females who were afraid of the accuseds. The Accused 1 is a big man. He is a boxer and had been training with Accused 2. The complainant, a young girl, was rejoining companions, young girls also, who had seen her forcibly removed from the house, from her bed at 2.00 a.m. She was in a distressed condition and she warned them that Accused 1 may come for them too. For the P.W.1 to complain would have been to state the obvious. Although the learned magistrate found that the complainant was crying on her return to her companions he made no comment as to whether he regarded this as some corroboration of the prosecution allegation of an absence of consent.

In my view the learned magistrate did not find one set of facts when acquitting of rape and another when convicting of defilement and wrongful confinement. His error lay in failing to apply the facts he found to be proved on the wrongful confinement and defilement charges to the charge of rape. The three charges all arose out of the same set of circumstances. The evidence of the prosecution witnesses which the learned magistrate said that he accepted was not of the kind which could be divided into three tight and separate compartments. My reason for making that statement is that any conviction of rape which amounts to sexual intercourse by force necessarily involves the offence of wrongful confinement and charges of rape and defilement necessarily involve sexual intercourse. What the magistrate should have done was to avoid arriving at any decision on any of the charges until he had reviewed all the evidence showing which witnesses he believed and had recorded all his findings of fact. He correctly reviewed the evidence as a whole and before recording any verdict he should have followed this up by findings of fact on all the issues raised by all the charges since they were interwoven. Then he should have applied those findings to the charges and decided whether they proved some or none of the charges.

In his judgment he reviewed the evidence and gave reasons for rejecting or accepting it. He saw the witnesses and heard them and there has been no submission to suggest that he acted on any wrong principles in deciding where the truth lay. My review of the evidence does not lead me to consider that he accepted evidence which was in any way dubious.

He found unhesitatingly that the complainant had been defiled by each accused not just briefly but to the extent that each had gratified his sexual lust. The next issue was whether there was any force used and if so, why was it used. If it was used to detain or wrongfully confine her how was the wrongful confinement related to the defilement? The wrongful confinement and defilement although occurring during the same period may not necessarily have provided proof of rape. She could have been wrongfully confined then on being released could have consented to sexual intercourse, or having consented to sex could later have been wrongfully confined. However, the magistrate's emphatic finding of fact was that she was wrongfully confined at a spot to which she was forcibly removed so that the accuseds could have intercourse with her. He found as a fact that she was forcibly detained and forced to submit to sexual intercourse against her will. There was ample evidence which the magistrate clearly accepted which justified those findings.

He seriously erred in acquitting the accuseds of rape when his findings demonstrated that they were guilty of rape.

S.300 (1) (b) C.P.C. does not permit me to send the case back for re-trial on the charge of rape when the accuseds have been acquitted thereof. Nevertheless it is open to me under S.300(1) to reverse the magistrate's decision and replace the acquittal by a conviction. It is an unusual step for an appellate Court to take but in my view it would be unjust to allow the acquittals to stand.

Accordingly I set aside the acquittals on the charge of rape and I substitute convictions therefore as against each accused.

(Sgd.) J.T. Williams,
JUDGE.

LAUTOKA,
31st January, 1979.

Director of Public Prosecutions for the Appellant
Messrs. A. Kuver & Co., for the 1st Respondent
2nd Respondent in Person

Date of Hearing: 18th January, 1979.