Court of Appeal of Fiji

(i) Acted upon a wrong principle;(ii) Allowed extraneous or s or irrelevant matters to guide or affect(iii)Mistook the facts;(iv) Failed to take into account somt some relevant consideration.

[7] Grounds of appeal urged on behalf of the appellant are as follows:

Conviction

1. The learned trial judge erred in law and in fact in convicting the Appellant on evidence that raised reasonable doubts in the State’s case.
   

Sentence

2. That the learned trial judge erred in law and in fact in sentencing the Appellant to a sentence that is harsh and excessive.
   

[8] The trial judge had summarized the prosecution evidence as follows in the sentencing order:
‘2. The Brief facts were as follows:-

In the evening of 25^th February, 2015 the victim, accompanied by Miriama, her cousin sister, the accused who was Miriama’s boyfriend and Petero Yalimaiwai a friend of the accused after drinking and clubbing went to the house of the accused at Dratabu.

3. They reached this vacant house the next morning at around 5 am. Miriama and the accused slept on the mattress which was on the floor while the victim and Petero were talking on the wooden bed inside the house. After a while Petero left.

4. The victim lay on the bed with her face resting on both her hands over the pillow. She was not sleeping but had closed her eyes. After a while she felt someone coming near her, the accused came and used a white bed sheet to block her mouth and covered her eyes then turned her over and wrapped her hands with the same bed sheet. He then started removing her pants and panty. The victim was struggling to push him away but she couldn’t, at this time he punched her thighs.

5. The victim was crying and calling Miriama, she tried to push the accused away and free her hands. By this time he had pulled her panty and pants to her knees. The accused forcefully inserted his penis into her vagina. The victim was unable to move around and her thighs were very painful.

6. The victim was crying while the accused had forceful sexual intercourse which lasted for about 15 minutes. The victim kept on trying to free herself until Miriama started calling the accused at this time he stopped. The victim was trying to breath because the bed sheet around her face was tight.

7. During the struggle the bed sheet around her face had gone loose. As soon as Miriama came and lifted the white bed sheet that was covering both of them the accused rolled over, stood up and started wearing his pants. Miriama then pulled the victim who stood up crying. The victim wore her panty and her pants the accused sought forgiveness from the victim for what he had done to her.

8. By this time it was day break, at around 6 am the complainant left the house with Miriama and reported the matter to the police.

[9] The appellant had elected not to give evidence but had called one witness whose position was that he was on the same bed with the complainant until 7.00 a.m. to imply that no incident of rape involving the appellant happened.

01^st ground of appeal

[10] The counsel has referred only to paragraphs 37 and 39 of the summing-up and submitted that the evidence therein raises doubts in the state’s case. This ground of appeal has not been further elaborated or substantiated in the written submissions.

[11] Paragraphs 37 and 39 of the summing-up are as follows:

37. The complainant could not see anything she was crying calling Miriama, she was trying to push this person away by trying to free her hands but by this time he had pulled her panty and pants to her knees. At this time this person was trying to spread her legs but could not. After a while he inserted his penis into her vagina. The complainant was unable to move around and her thighs were very painful.

38. The complainant was crying this person had sexual intercourse with her which lasted for about 15 minutes. She was also having her menstruation she was lying down and could not do anything since her mouth was blocked and her eyes were covered. The complainant kept on trying to free herself until Miriama started calling her boyfriend the accused. The complainant was trying to breathe because the cloth around her face was tight when Miriama called out this person stopped.
    

39. The complainant smelt liquor on this person by this time the cloth around her face had gone loose. As soon as Miriama came and lifted the white sheet that was covering both of them this person stood up, she saw the accused Miriama’s boyfriend Seru was wearing his pants and she knew he was the one who had sexual intercourse with her. Miriama then pulled the complainant who stood up and was crying. The complainant wore her panty and her pants at this time she saw blood stains on her pants and the bed as well.

[12] At best, the attempt on the part of the counsel for the appellant could be understood as casting possible doubts on the identity of the appellant as the person who committed rape on the complainant. However, the evidence of second prosecution witness Miriama Nayavusoata dispels any hypothetical doal doubts. The paragraphs 53-56 of the summing-up deal with her evidence:

53. l went into the vacant hous house belonging to the accused. Petero and Lice sat on the bed while the witness and the accused went to sleep on the floor. She was sleeping with the accused behind the bed.
    
54. The witness woke up at about 6 am because someone pulled her hand, when she opened her eyes she saw her bag was open and her phone was missing. At this time she saw Petero standing she asked him about her phone. He denied taking her phone. At this time the phone alarm started ringing since she had set the alarm for 6 am it was coming from Petero. Petero threw the phone at her and ran outside.
    
55. After Petero left the witness started looking for the accused. As she turned around she saw the accused lying next to Lice, she heard Lice calling her name. The witness moved closer to the bed and saw the complainant and the accused having sexual intercourse.
    
56. The witness called the accused but he was not responding so she lifted the bed sheet, she saw Lice’s eyes and mouth were covered with a bed sheet and her hands were tied. The accused then rolled over and started wearing his shorts. At this time Lice was crying she pulled the accused away from Lice who stood up crying and wore her clothes. The witness heard the accused was asking for forgiveness from Lice.

[13] In fact Miriama Nayavusoata’s evidence discredits defence witness Petero Yalimaiwai too. His evidence was that he asked the complainant if he could have sex with her but she refused and thereafter both slept on the bed. He had further said that he had woken-up at 7 am, woke the accused up and told him that he was going home and then he left for home. According Miriama’s evidence, Petero could not have been inside the house when she saw the appellant having sexual intercourse with the complainant. Petero had left the house by that time. Miriama’s evidence is more consistent with that of the complainant who had stated that Petero did not sleep with her, he only asked whether she was married or single and when she told him that she was married Petero gave her $20.00 being her fare home and he left.

[14] Given the totality of the evidence of the complainant and that of Miriama there is no doubt that the appellant was the perpetrator and the complainant was not a consenting party but sexual intercourse had been forced upon her by the appellant.

[15] Therefore, I think on the evidence available the majority of the assessors and the trial judge could not have entertained any reasonable doubt as to the prosecution case.