| Fiji Islands - Nanovo v The State - Pacific Law Materials |
ass=MsoNormal align=cenn=center style="text-align: center; margin-top: 1; margin-bottom: 1"> IN THE HIGH COU FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO: HAA 041 OF 2001S
BETWEEN:
JOSATEKI NANOVO
Appellant
AND:
p class=MsoNormoNormal align=center style="text-align: center; margin-top: 1; margin-bottom: 1"> THE STATE
Respondent
Appellant in Person
Mr P. Bulamainaivalu for Respondent
Hearing: 27th July 2001
Judgment: 1st August 2001
JUDGMENT
On 20th April 2001, the Appellant was convicted i Suva Magistrates Court of the following offence:
Statement of Offence
DEFILEMENT OF A GIRL BETWEEN 13 AND 16 YEARS OF AGE:- Contrary to Section 156(1)(a) of the Penal Code, Act 17.
Particulars of Offence
&-GB>
JOSATEKI NANOVO, on the 11th day of November, 2000 at Nasinu in the Central Division, has unlawful carnal knowledge of a namely RUCI
BULOUKALOU aged 15 years 7 months and 3 days.
He was sentenced to 3 years imprisonment.
He now appeals against conviction and sentence on the ds:
N-GB>
1) & p; &&bsp;; &nbp; &nbp; &&nbp;; That That that the victim was “big in built” and he ht sh overears;n> 2-GB>2) &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp; an>spat the victim was not not a relative;
3) N-GB>4) &nbbsp; &nbbsp; &nbp; &nbp; &nb/p; That the victim waim was not a virgin;
5) &nbssp; &nbssp; &nbp; &nbs; that ictim should nuld not have been believed; and
langB>6) &nbssp; nbsp;   &nbs; &nbss; &nbs; &nbs; ;&nbpp; span that the sentence wnce was harsh and excessive.
> The Facts
The facts of the case, as given in evidence, were that the victim, in November 2000 was 15 years old and a Form IV studt the DAV College.
She was was staying with her aunt, uncle and her cousin. She was alone at home with her cousin on the 11th of November when the
Appellant came into her room and sat on her bed. He is her uncle. He asked her if they could have sexual intercourse and she agreed.
They then had sexual intercourse twice.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> When her aunt returned home, the victim told her what had happened but said that she had been raped. She gave a police report, and
was medically examined. The medical report showed vaginal injuries “consistent with recent vaginal penetration.” Under cross-examination,
the victim said that she had lied about being raped because she was scared after the incident. Under caution, the Appellant told
the police that they had sexual intercourse with the victim’s consent, and that the victim was his niece. The Appellant was convicted
on the basis of the evidence led by the prosecution. The learned Magistrate said:
“There was no substantive cross-examination of this witness by the accused and she maintained hery.”
In mitigation the Appellant said he was 26 years old, married and eed as a sales assistant.
Appeal Against Conviction
ass=MsoNormal style="margin-top: 1; margin-bottom: 1">
The Appellant’s submission is that the victim lied about being raped, she was not raped, aat he thought she was over 18.
Consent is of course, as State Counsel pointt at the hearing of this appeal, not relevant to the question of Defilement. However the
quhe question of consent in this case was pertinent to the issue of the victim’s credibility as a witness. She was not raped, as
she said in her evidence. She consented to the acts of sexual intercourse, but lied about it to her aunt.
In her evidence she explained the lie to the court, saying that she was too scared to say that she had consented. The learned Magistrate
evidently accepted this explanation, and convicted the Appellant. An appellate court will rarely interfere on findings of fact and
on conclusions as to the credibility of witnesses. I will certainly not do so in this case. This ground is dismissed.
On the question of the age of the victim, the victim herself said she did not know if her knew her age but said that he had lived
in the house for 6for 6 months, and knew she was still at school. The Appellant did not raise the defence that he reasonably believed
that she was over the age of consent, during the trial. The learned Magistrate was entitled to conclude that this was not in issue,
given the relationship between the Appellant and the victim, given the fact that he lived with the family, and given the fact that
the victim was still a school girl.
This ground is also dismissed. As to the other grounds it is clear from the record that the victim was under the age oat the time
of the offence,ence, and that she considered him her uncle. This was not disputed at the trial. The question of whether or not she
was a virgin is irrelevant both for conviction and sentence.
Appeal Against Sentence
ass=MsoNormal styl styl style="margin-top: 1; margin-bottom: 1"> The sentence is within the tariff for the defit of young girls by younger men. There can be no excuse for the Appellant, for taking
advanadvantage of a young relative who trusted him, and who should have been relied upon by the family to refrain from taking advantage
of her youth.
I see no reason to interfere with the sentence. The appeal against sentence is dismissed.
ass=MsoNormal style="margin-top: 1; margin-bottom: 1">
Nazhat Shameem
> JUDGE
At Suva
1st August 2001n>
Haa0041J.01S
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