Hearing: 9th May 2001
Judgment: 15th May 2001
JUDGMENT
This is an appeal against the conviction of the Appellant in tva Magistrates Court on two counts.
The charges read as follows:
FIRST COUNT
nbsp; Statement of Offence
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PERSONATION:rary to section 115(b) of the Penal Code, Act 17.
Particulars of Offence
JOELI BALE, on the 1st day of February 2000 at Suva in the Central Division, personated to be a person employed ji Police Force as
police oice officer no. 2401 and did an act by virtue of his employment.
SECOND COUNT
Statement of Offence
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RAPE: Contrary to sections 149 and 150 of the Penal Code, Act 17.
Particulars of Offence
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JOELI BALE, on the 1st day of February 2000 at Suvahe Central Division, had carnal knowledge of TITILIA QALO without her consent.
The Appellant pleaded not guilty on both counts and the matter proceeded to trial on the 9th of February 2001. Two witnesses called
by the prosecution,tion, Dr Neil Sharma and Titilia Qalo. The hearing was then adjourned to 14th February when the record reads as
follows:
“For Prosecution: Ms Senikuraciri
> Accused: Present.
Prosecutionspan lang=EN-GB>: I have been informed that this accused wants to change his plea. I ask thsk that the charge be put to him.
ass=MsoNormaNormal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> Accused: Is the complainant coming back to court?
Court: No, we’ve finished with her.
p class=MsoNormaNormal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> Accused: I wish to changplea to guilty.
Charge read and explained and understood. Election Count 2: I elect Magistrate’s Court trial.
Plea: Count 1: I understand thrge. I admit it. I admit them on my own free will.”
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> After the facts were read out, and mitigation heard the Appellant was sentenced to 12 months imprisonment on Count 1, and 3 years
and 4 months imprisonment on Count 2. The sentences are to be served consecutively.
The petition of appeal filed by the appellant contained a number of grounds. However, at the hearing of the appeal he argued the sole
ground that his plea of guilty was not unequivocal, and that a re-trial should be ordered.
In his submission in court, the Appellant said that he had been forced by the Magistrate to plead guilty, that the prosecuto requested
the Magistrate tate to “put him in”, that he had not been given a chance to prepare his cross-examination because he had left his
notes at home, that he had been threatened by the Magistrate because he was slow in formulating questions and that his plea was therefore
invalid.
State Counsel submitted that the record showed nns of threats or brow-beating by the learned Magistrate. She said that the proceedings
were were conducted fairly and that there was no reason to consider that the plea was other than unequivocal.
The facts of the case, as outlined by the prosecution in the Magistrates Court, and as given in evidence by Titilia Qalo, are that
the complainant was 17 years old at the time of the incident. On 1st February 2000, at sometime after midnight, she and her boyfriend
one Viliame Vunasina were eating a meal under a baka tree in Struan Street. They were approached by the Appellant who identified
himself as a policeman with an identification number 2401. He told the complainant that her mother was looking for her
and that an Inspector of police was waiting for her in a police vehicle at Robertson Roadthen took the complainant some distance away
beside Struan ruan Street, and raped her beside a bush. She tried to struggle and shout but the Appellant covered her mouth with
his hand. After raping her, he told the complainant to go. She returned to her boyfriend and told him what had happened. They reported
the matter to the police. She was examined by a doctor who found that her physical symptoms were consistent with her related history
of rape.
The Appellant was interviewed under caution and he denied the offences. He was identified by the complainant in an identification
parade. He was then arrested and charged.
Section 309(1) of the Criminal Procedure Code pro:
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“No appeal shall be allowed in the case of an accperson who has pleaded guilty and has been convicted on sucn such plea by a magistrates’
court, except as to the extent or legality of the sentence.”
Appeals against convictions are therefore not permitteless of course the plea of guilty is shown by the Appellant to be equivocal
and a nullity iity in law. On the record, there is no suggestion that the plea is ambiguous in any way. It was said in R -v- Griffiths 23 Cr. App. R. 153, that in the case of an unrepresented accused, care must be taken by the presiding judge or magistrate to see that he or she understands
the elements of the offence, especially where the evidence shows that there is a defence.
In this case, the record shows that the accused understoodcharge and understood what he was pleading guilty to. His cross-examination
of the complainplainant on the 9th of February was thorough and comprehensive. I note that the learned Magistrate recorded the difficulties
the Appellant appeared to be having whilst cross-examining. However, the cross-examination itself was measured and relevant and it
does not appear that the Appellant was in any way prejudiced by the fact that he had forgotten his notes.
Further there is nothing on the record to substantiate the Appellant’s claims that the Magistrate and the Prosecutor colluded to put
pressure on him to change his plea. The plea appears to have been changed freely, and with full knowledge of the meaning of the charges.
The appeal against conviction on both counts therefore fails.
Sentence
There was also an appeal against sentence. The sentence of 3 years and 3 months imprisonment appears to be lenient given the Court
of Appeal guidelines in Mohammed Kasim -v- State. This is particularly so when there were several aggravating features in the case, and only one mitigating feature (the guilty plea).
I further consider that rather less credit should be given for this guilty plea than would ordinarily be the case because it was
entered after the prosecution had called the complainant for examination-in-chief and cross-examination.
Nevertheless when considering the totality of the offe and of the sentences passed, a total of 4 years and 4 months is not wrong in
principle. Ite. It is certainly not manifestly excessive.
The appeal against sentence is also dismissed.
Nazhat Shameem
JUDGE
At Suva
15th May 2001 Haa0030j.01s
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