IN THE HIGH COURT OF FIJI
(AT SUVA)
APPELLATE JURISDICTION

CRIMINAL. APPEAL NO. HAA0030 OF 1997

BETWEEN:

LIVINIA TAVISA
JONA VATA
NIKO JITOKO
APPELLANTS

AND:

THE STATE
RESPONDENT

Appellants in Person
Mrs. R. Olutimayin for the Respondent

DECISION

These Appellants, aged respectively 16 years and 10 months, 19 years, and 16 years 11 months as at 17 September 1996, appeared on that date before Nausori Court on the following Charge:-

RAPE: Contrary to Section 149 and 150 of the Penal Code, Cap. 17

Particulars of Offence

LIVINIA TAVISA, JONA VATA, NIKO JITIKO AND JONA TAWAKE on the 16th day of September 1996 at Nakasi Hart Settlement in Nausori in the Central Division, had carnal knowledge of ADI VUNIASI WAQANITOGA without her consent.

While this charge follows the Form No. 4 at the back of the Criminal Procedure Code, it is wrong and defective in law in omitting the word "unlawful" appearing in the Section 149 which defines the offence of Rape. It is a necessary element of the offence, and needs to be alleged in the particulars, not withstanding any provision of section 122(a)(iii) or (iv) of the Criminal Procedure Code.

The complainant said that all 4 committed actual rape upon her. The Appellants pleaded Guilty and admitted the girl's story. That was recorded by the Magistrate. He found the First Appellant and Third Appellant guilty, not using the word "conviction" because of their ages as juveniles. He found the 2nd Appellant guilty and convicted him because he was 19. So the pleas of guilty had been formally accepted and findings made and conviction entered.

The Magistrate then remanded the three Appellants in custody for Social Welfare Reports. In his report the second Appellant claimed he was not successful in his attempt to have sexual intercourse with the victim.

The Magistrate despite the unequivocal plea and recorded conviction, purported to reduce the charge from 'Rape' to 'Attempted Rape'.

Of course, he cannot do such a thing. The most he could do would be to enter a plea of 'Not Guilty' and remand that particular accused for trial: see D.P.P. v. JOLAME PITA 20 F.L.R. 5 at 6 and RAM SAMI NAIDU v. R Cr. App. 34 of 1984.

It may even be doubted if the latter authorities apply in this case because they talk of something equivocal arising after plea. Here a conviction had been actually entered, and the plea accepted. It seems to me that could be too late a stage to be resiling from a clear plea of 'Guilty' and admission of alleged facts.

However, whether perfectly valid pleas of Guilty should be set aside or not, a clearer reason exists for overturning the findings, conviction and sentences in this case.

It is that the charge and findings or convictions based upon it are void for uncertainty. There cannot be 4 separate acts of Rape rolled up in the one count.

The charge as laid can only refer to one act of rape. It does not specify who was the actual rapist, and who were the aiders and abettors. Such particulars must be furnished to accused where the prosecution is proceeding on one count only of Rape. It cannot relate to 4 different individual acts.

It is only by alleging one offender's act of rape, and the other three as aiders and abettors, (or otherwise caught as parties to the offence), that one can have a charge in its present form.

The convictions of individual acts of rape by the Appellants cannot stand. They are quashed and the sentences of 2 years, 2 ½ years and 2 years imprisonment set aside.

The matter must start again before the Nausori Magistrates Court on a date to be fixed of which the Appellants are to be given notice. There must be three separate counts of Rape, one for each accused, naming him, if it is desired to proceed against each of these three Appellants for his own individual act of Rape.

Each Appellant is admitted to bail on his own recognizance of $500, together with one surety of like amount, on the conditions that:

1. He appear for hearing of the charge of Rape against him on a date to be notified by the prosecuting authorities at Nausori Magistrates Courts;

2. That he abstain from violation of the law;

3. That he not approach or interfere with the complainant directly or indirectly;

4. That he reside with his family at Hart settlement Nakasi and not change that address without leave of the Court;

5. That he report to Nakasi Police Post once a week on Saturdays between 6.00 a.m. and 6.00 p.m.

K.J. TOWNSLEY
JUDGE

21ST JULY, 1997.
SUVA
HAA0030.97