IN THE HIGH COURT OF FIJI AT LAUTOKA
CRIMINAL JURISDICTION

APPEAL CASE NO. HAA 07 OF 2011

BETWEEN:

ILISONI UGANIDAVUI
APPELLANT

AND:

THE STATE
RESPONDENT

Mr T Lee for the Appellant
Ms S Puamau for the State

Date of Hearing: 25 July 2012
Date of Judgment: 08 August 2012

JUDGMENT

1.	The appellant was charged for committing the offence of 'Rape' punishable under Section 149 read with Section 150 of the Penal Code on one Alopeti Vuli on 27 November 2009.

2.	At the trial before the Magistrate, the victim-Alopeti Vuli, Dr. Ms Mereoni Voce, Ms Salote Bolatolu, a schoolteacher, Vuli Rokolacadamu, an aunt of the victim, AWCP 343 Akisi Waqalevu, DSgt. 1570 Asesela Tuitai gave evidence for the prosecution. The appellant gave evidence in defence and called Kalara Naqelevuki, Etika Mateisuva and Dr. Elenoa Rakabulala in support.

3.	The victim, who was a schoolteacher at Lautoka Primary School, said that she had attended a break-up party at the school on 26 November 2009 where she consumed wine and beer before leaving the premises around 7.00 p.m. Thereafter, the victim, accompanied by two other colleagues at school, visited Hunters Inn nightclub in Lautoka where they had drinks till around 2.00 a.m. following morning. She said that she was used to consuming alcohol and that she got into a van opposite Lautoka Hotel to get off at Vio Road to go home. As she was walking towards home from Vio Road, the appellant grabbed her from back and pushed her down to make her lie upwards. The appellant uttered things and made amorous advances, which made her scared and felt that he was going to do something on her. As the appellant, thereafter, asked the victim to go with him to the town, she had obliged thinking that she could escape.

4.	As they walked up on Sukanaivalu Road later, the appellant pushed her to the side of the road and took her into a drain along a cassava patch and tried to take off her clothes. The appellant, thereupon, punched the victim and pulled down her skirt and her undergarments. The appellant, having fondled her vagina with fingers inserted his penis forcefully and engaged in an act of sexual intercourse without her consent. The victim, thereafter, reached her home around 4.00 am in the morning. 

5.	It was the victim's evidence that she had known the appellant from 2007 and he had been living about 50 metres away from her aunt's place on Vio Road. The victim narrated the incident to her fellow schoolteacher, Salote Bolatolu, on 27 November 2009 and also to her aunt and uncle after which she made a complaint to police around 6.00 pm on 27 November 2009.

6.	Answering cross-examination, the victim confirmed every minute detail of her narration of the event and asserted that the appellant had had forcible sexual intercourse without her consent in the early hours of 27 November 2009.

7.	Dr. Mereoni Voce, in her testimony, stated that she had examined the victim on 28 November 2009 as she was presented by a Policewoman Constable Akisi. She had observed injuries on her left lower jaw and the victim was found to be in pain. She further observed bruises on the neck and on the chest. She said that no injury was seen around genitalia and her hymen was not found to be intact.

8.	Witness Salote Bolatolu stated that the victim was a fellow schoolteacher at Lautoka Primary School. On 27 November 2009, the victim had told her that she was raped by the appellant and that she had seen marks of injury on her face and the neck. The witness had advised her to report the matter to police.

9.	Vuli Rokolacadamu, in her evidence, said that the victim was living with her attending Lautoka Primary School as a teacher in November 2009. As she was doing her laundry work at home, she saw the victim's dirty sulu and jaba in the morning of 27 November 2009. On being asked, the victim said that she was forced to have sexual intercourse by the appellant in the morning of 27 November 2009.

10.	AWCP 343 Akisi Waqalevu stated in her evidence that she was attached to the Sexual Offence Unit of Lautoka Police Station on 28 November 2009 as she received the complaint from the victim against the appellant. She conducted the investigation having made a visit to the scene of the alleged offence.

11.	Dt.Sgt. Asesela Tuitai said that he had conducted the interview under caution of the appellant and placed the evidence pertaining to the interview. 

12.	Prosecution case was closed with the evidence of the above witnesses. 

13.	The appellant in his evidence accepted meeting the victim in the early hours of 27 November 2009 and accompanying her to the town; but, denied having sexual intercourse with the victim. Evidence of the witnesses Kalara Naqelevuki and Etika Mateisuva does not disclose any material in defence of the appellant.

14.	Dr Elenoa Rakabulala'e evidence was that he had examined the appellant on 29 November 2009 and had found no any 'bite marks of the body of the appellant; but, accepted the fact that any superficial bites would not have left any marks.

15.	The learned Magistrate, after an analysis of the evidence of all the witnesses concluded that the victim was a truthful witness and disbelieved the evidence of the appellant on his denial of having sexual intercourse with the victim. Learned Magistrate came to the finding that the case for the prosecution was proved beyond a reasonable doubt and convicted the appellant of the charge of rape under Section 149 read with Section 150 of the Penal Code. A term of eight year imprisonment was imposed on the appellant after hearing submission as to the sentence.

16.	The appellant, in his appeal to this court, advanced following grounds:

(i)	That the Learned Trial Magistrate erred in law and fact in not warning himself on the dangers of convicting in the absence of corroboration.

(ii)	That the Learned Trial Magistrate erred in law and fact in considering the Complainant's medical report as "conclusive" evidence to prove that Complainant was raped.

(iii)	That the Learned Trial Magistrate erred in law and fact in allowing victim to give evidence behind a "screen".

(iv)	That the Learned Trial Magistrate erred in law and fact in convicting Appellant on evidence that is so uncredible and unreliable.

(v)	That the Learned Trial Magistrate erred in law and fact in accepting the compliant made by Victim to Ms Salote Bolatolu and Ms Vuli Rokolacadamu as recent complaint.

(vi)	That the Learned Trial Magistrate erred in law in not granting Appellant his right to be granted bail.

(vii)	That the Learned Trial Magistrate erred in law in sentencing Appellant with unsafe, dangerous, unsatisfactory evidence.

(viii)	That the Learned Trial Magistrate erred in law by failing to consider the entire evidence adduced by the State to prove the charges.

(ix)	That the Learned Trial Magistrate erred in law by failing to consider that no evidence was adduced in court relating to victim being under a lot of distress when they met her.

(x)	That the Learned Trial Magistrate erred in law by failing to consider the Appellant's Medical Certificate.

(xi)	That the Learned Trial Magistrate erred in law by failing to consider the consistency of Appellant's caution interview statement to his evidence in Court.

(xii)	That the Trial Magistrate erred in law in sentencing Appellant under the Sentencing & Principle Decree of 2009.

(xiii)	That the 8 years imposed is manifestly harsh and excessive having regards to all the circumstances of the case.

17.	There is no requirement under the law now to look for corroboration of the victim's evidence to found a conviction in a case of rape. The evidence of the victim is to be looked at as any other witness in any other case; and, if the trial Magistrate accepts the evidence of the victim and the prosecution evidence as a whole, the law does not hinder the Magistrate from proceeding to convict. I am of the view that the facts of this, in any event, did not require the learned Magistrate to guard himself against corroboration warning as the evidence of the victim was not shown to have been tainted with any elements probable fabrication [Qalovaki v State: 2008 FJHC 399; Crim. App. HAA 0111/2007]. Therefore, this ground fails. 

18.	As regards the absence of positive medical evidence to establish the act of sexual intercourse, it should be noted that the law does not require such medical evidence as a rule to sustain a conviction in a case of rape. What, in fact, matters is the reliability of the evidence of the victim, which the learned Magistrate had ruled to be acceptable beyond reasonable doubt. I see no merit, in the circumstances, on this ground.

19.	I have considered the complaint and submissions of the learned counsel for the appellant in relation to the conduct of the trial in camera having screened the victim. The application by the prosecution for that course of action was inquired into by the leaned Magistrate. It is totally within the powers of the Magistrate to consider such application under Section 295 of the Criminal Procedure Decree. The Learned Magistrate had formed the opinion that it was desirable to record the evidence of the victim from a screened position. The appellant has failed to show any elements of prejudice caused as a result of this course of action. I am unable to consider this ground as valid to interfere with the findings of the learned Magistrate.

20.	The rest of the grounds against the conviction are either duplicated or repetitive and do not form valid bases to interfere with the learned Magistrate's findings. I accordingly reject them. I, however, have considered the record of evidence in order to satisfy that the conviction was validly made having regard to the overall evidence (Regina v Jones (Anthony) [2003] UHHL AC (1) at 1 . I am satisfied that the conviction is well supported by evidence and find no reason to interfere with it.

21.	Learned counsel for the appellant withdrew the challenge against the application of the Sentencing and Penalties Decree; but, sought to challenge the sentence on the basis that it was excessive.

22.	I have considered the sentence ruling of the learned Magistrate. Learned Magistrate has correctly applied the principles and imposed a sentence, which, in my view, could only be viewed as lenient.

23.	I, however, do not propose to substitute the sentence with one of this court. I am, nevertheless, inclined to impose a non-parole period of six years from the date of sentence as the learned Magistrate had failed to act under Section 18 of the Sentencing and Penalties Decree.

24.	Appeal is, accordingly, dismissed.

Priyantha Nāwāna
Judge
High Court

Lautoka
08 August 2012