IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.HAA0032J OF 2000B

Between:

JESE HELLYDAY KOROICULE
VILIAME RAVITUBA
Appellants

And

THE STATE
Respondent

Appellants in Person
J. Rabuku for the Respondent

Date of Hearing: 25 August 2000
Date of Decision: 4 October 2000

JUDGMENT

Jese Hellyday Koroicule and Viliame Ravituba the appellants appeal against their conviction and sentence for the offence of rape for which they were convicted on 20 September 1999 by the Magistrate’s Court at Labasa contrary to section 149 and 150 of the Penal Code Cap.17 and sentenced to five years imprisonment. On 7 April 1996 at Cawaira Labasa the appellants had unlawful carnal knowledge of the complainant Ilisapeci Vakasigaleka without her consent. The appellants seek a retrial.

Jese Hellyday Koroicule has filed the following grounds of appeal:

1)	The complainant did not appear at the trial to give her testimony and I did not cross-examine her;

2)	The injuries as per her medical report were inflicted by her parents which is why neither she nor her parents appeared at the trial to give evidence;

3)	The evidence retried on for conviction was unsafe;

4)	The learned Magistrate erred in law and fact in imposing a sentence that was harsh and unconscionable;

5)	The five year sentence is not applicable as I still maintain my innocence;

Viliame Ravituba appeals against conviction and sentence on the following grounds:

1)	The five year sentence is not applicable as I maintain my innocence;

2)	The complainant did not appear at trial to testify and I did not cross-examine her;

3)	The injuries as per the complainant’s medical report were inflicted by her parents which is why neither she nor her parents appeared at trial to give evidence;

4)	The evidence relied on for conviction was unsafe;

5)	The learned Magistrate erred in law and fact in imposing a sentence that was harsh and unconscionable;

The grounds of appeal as formulated by the court have been redrafted to avoid duplication and to make some sense of what the appellants were intending. If the court has not properly interpreted their wishes it seeks their indulgence.

The first appellant’s first ground of appeal and the second appellant’s second ground of appeal are identical and will be considered together. The complainant’s evidence is set out at pages 23 and 24 of the court record. She was cross-examined by both the appellants at pages 25 and 27 of the court record. Miriama Qelokai, the complainant’s mother gave evidence at page 27 of the court record. The first appellant cross-examined her at the same page while the second appellant chose not to do so. There is therefore no merit in this ground of appeal because the court record speaks for itself.

The second ground of appeal of the first appellant is identical to the second appellant’s third ground of appeal. It is to the effect that the injuries the complainant suffered as per the medical report were inflicted by her parents. The medical report is at pages 73 to 75 of the court record. She had a wound on the left side of lower lip consistent with being hit by one of the appellants prior to the rape as she stated in evidence. There was a moderate amount of milky fluid oozing out of her vagina consistent with sperm. And there were pinpoint lacerations on the left upper part of the complainant’s labia minorca and her hymen was not intact. All these findings were consistent with her claim of non-consensual sexual intercourse. There is no merit in this ground of appeal.

The third ground of appeal of the first appellant is identical to the second appellants fourth ground of appeal. They claim the evidence relied on was unsafe. In their sworn evidence, both admitted they had sexual intercourse with the complainant. However they claim it was consensual. Apart from the act of penetration by the penis of the vagina, there is also a mental element. The appellant must have actual knowledge of the fact the woman was not consenting or was determined to have intercourse with her whether she was consenting or not Ilaitia Korociri v R Criminal Appeal No. 43 of 1979. The complainant’s testimony that the appellants had forced themselves on her despite her lack of consent is borne out by the injuries she sustained as recorded in her medical report. Her hymen had been ruptured, she had injuries to her private parts and there was milky fluid seeping from her vagina. The learned Magistrate believed the complainant despite the lack of corroboration against which he warned himself. There was also evidence of recent complaint as disclosed by the complainant to her mother and aunt and they in turn testified to her distressed state. This ground must therefore fail.

The fourth ground of appeal of the first appellant is identical to the fifth ground of appeal of the second appellant. They submit their five year prison sentence is harsh and unconscionable. There is no merit in this ground of appeal. The five year prison term meted out by the learned Magistrate is the maximum sentence he can impose. Rape is a serious offence and carries a life imprisonment as a maximum sentence. In the High Court, the offence of rape is viewed with the utmost seriousness because it reflects a proprietorial and demeaning attitude of women. Their Lordships of the learned Court of Appeal have suggested a seven year term as a starting point for the offence of rape. Given those considerations, this ground is denied.

The first appellant’s fifth ground of appeal is identical to the second appellant’s first ground of appeal. They submit they are still innocent. The appellants are entitled to due process. They are innocent till proven guilty beyond a reasonable doubt. They have had hey day in court and the court is of opinion that the learned Magistrate very properly convicted the appellants of the offence of rape contrary to sections 149 and 150 of the Penal Code on the evidence before him. This ground fails.

The appeal is accordingly dismissed and there is no basis for the appellants request for a retrial which is denied.

Joni Madraiwiwi
PUISNE JUDGE

At Labasa
4 October 2000