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Free from jail

Mere Naleba
Monday, December 09, 2013

THE coram of the Supreme Court of Fiji on Friday used the term "grave injustice" to describe how the Fiji Court of Appeal failed to properly investigate an appeal by a man accused of rape.

The coram presiding over the case were Justice Anthony Gates, Justice William Calanchini and Justice Daniel Goundar agreed to allow Kaliova Vuki Balemaira's appeal against the final judgment of the Court of Appeal that confirmed his conviction against one count of rape.

Mr Balemaira was sentenced to six years imprisonment but on Friday had his conviction and sentence quashed.

He was accused of raping a former national netball player during a drinking party in Deuba on November 20, 2007.

The Coram agreed that the "Court of Appeal failed to carry out a proper inquiry into the reasonableness of the trial judge's verdict in this case".

"If the Court of Appeal would have applied the correct principles of unreasonable verdict, they would have reached the conclusion that we have reached regarding the inconsistency in the petitioner's guilty verdict, resulting in substantial and grave injustice".

"The criteria for special leave have been satisfied.

"For these reasons, we would grant special leave and quash the petitioner's conviction and sentence".

The coram also said it was not in the interest of justice to order a re-trial.

The appeal was allowed on the grounds that the trial judge convicted Mr Balemaira on the second count of rape although there was no evidence to support the allegation.

"There is no logic in the reasoning that the resistance and escape on behalf of the complainant only applied to the second sexual penetration when her evidence was that she had not consented to any sexual activity with the petitioner.

"The guilty is not consistent with the not guilty verdict in count one".

The facts of the case were at 7:30pm the petitioner and three other team mates, after arriving into the country from New Zealand headed to Pacific Harbour to a villa.

The court heard around 11pm, three men that included Mr Balemaira arrived at the villa to join the women in the party.

It was also said in court that the party continued into the early hours of the morning before the complainant went to bed in one of the rooms in the villa.

She claims that while she was in bed, the accused who is the appellant in the case had sex with her twice without her consent.

Mr Balemaira during the trial confirmed he had sex with the complainant and she had consented to it.

Mr Balemaira was represented by Legal Aid Commission lawyer Romanu Vananalagi.