JUDGMENT
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This is an appeal by the State against the acquittal of the Respondents by Moby Moses Fernando Esq., the Residentstrate at Laba
Labasa, on the alternative count of defilement contrary to section 156 (1) of the Penal Code. In the chargeRespos were cere charged in the "First Count" with the offence of r of rape contrary to sections 149 and 150 nal Code followed by, as stated, "alternative count" of defilement.ment.
The alternative count states that the Respondent on 11 November 1994 at Nadavaci, Nci, Natewa in the Northern Division, had unlawful
carnal knowledge of a girl namely MEREWALESI TIKOISEQASEQA being about the age of 13 years but under the age of 16 years, namely 15 years 3 months 9 days.
The Respondents were acquitted by thrned Magistrate on 19 November 1994 on their plea of guiltyuilty.
The circumstances ly were that they pleaded guilty to the alternative count ount of defilement and not guilty for rape. The facts
were outlined b the prosecution which stated, inter alia, that on 11 November 1994 the Respondent defiled a girl namely MEREWALESOISEQASEQA (hereafter referred to as the "victim") being abng about the age of 13 years but under the age of 16 years, namely 15 years 3 months 9 days.
Then the following "quot; appears on the record:
"The provisioSection 156 (1) states that that it is sufficient defence if it shall be made to appear to the court that the accused
had reasonable cause to believe and had in fact believed that the girl was of or about the age of 16 years. In the circumstances
I order the prosecution to produce the complainant before me in Savusavu Magistrate's Court on 28.11.94".
On 2 December 1994 the victim was taken before the learned Magistrate who recorded as follows (page 17 of the Record):
"This case iled today for sentencing.&nng. e accused have told Court ourt that they thought that the girl was above 17 years
of age I requested the police to produce the victim before me to check whether she looked a girl over sixteen.
The victim Merewalesi Tikoiseqaseqa is before me. She is a wellt girl and lond looks well over 16 years of age even for a Fijian
girl who is generally well built.
Even though all the six accused have pleaded guilty before me, as they are unrepresented I consider the defence and consequently
I hold that they had reason to believe and in fact believed that the girl was over 16 years of age.
ass=MsoNormal styl styl style="margin-top: 1; margin-bottom: 1"> Upon reading the record of the proceedings in the lower court and after hearing ring the learned State Counsel and upon hearing each
of the Respondents I allow the appeal for the reasons hereafter appearing.
Criminal Procedure Code which provides:-
>
"308 (1) Save as hereafter provided, any person who is dissadissatisfied with any judgment, sentence or order of a Magistrate's
court in any criminal case or matter to which he is a party may appeal to the Supreme Court against such judgment, sentence or order.
Pro that no appeal shall be against an order of acquittal exce except by or with the sanction in writing of the Director of Public
Prosecutions."
Under section 206 of the Criminal Procedure Code procedu laid down to be followed wwed when an accused person pleads guilty to the charge. It states:
"(2) If the accused person admits the truth of the the charge, his admission shall be recorded as nearly as possible in the
words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there shall appear
to it sufficient cause to the contrary."
The learned Magistrate failed to comply with the provisions of the said section. bsp; Subje what I say here hereafter on the reasonable
belief that the girl was 16 years of age, the learned Magistrate ought to have, once the respondent admitted the chof defilement,
convicted and passed sentence on them as reqs required by the said section.
Even at the stage of mitigation, after the facts were outlined, when the RespoRespondents raised the matter of their belief that
they had reasonable belief that the victim was of the age of 16 years, the learned Magistrate was required to enter a plea of not
guilty and proceed to hearing in the normal manner.
By virtue of the section 206 (2) of the Criminal Procedure Code, there is a is an obligation on the Court to record, as nearly as possible, the words used by the accused when admitting the truth
of the charge. In ADAN v REPUBLIC, Court of Appeal, NAIROBI 1973&nbs> states ates clearly the procedure that should be followed in a situation such as the present; SPRY V.P there ware was dealing with provision similar to our sect06. ated:-
"When a person is charged, the chand the particulars should ould be read out to him, so far as possible in his own language,
but if that is not possible, then in a language which he can speak and understand. The magistrate s then expl explain to the accused
person all the essential ingredients of the offence charged. e accused then admits all all those essential elements, the magistrate
should record what ccused has said, as nearly arly as possible in his own words, and then formally enter a plea of guilty. the magistrate
should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused
an oppoty to dispute or explain the facts or to add and relevant facts. If the accused does does not agree with the statement of
facts or asserts additional facts which, if true, might raise a question as to his guilt, the magistrate should record a change of
pl "not guilty" and proceed to hold a trial. bsp; If thused does not deot deny the alleged facts in any material respect,
the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of and ccusaccused's
reply muly must, of course, be recorded."
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Iabundantly clear from the record that the learned Magistrate completely misunderstood the ethe effect of the proviso to section
156 (1) of the Penal Code which is in the following terms:-
"Provided that it shit shall be sufficient defence, to any charge under paragraph (a) if it shall be made to appear to the court
before whom the charge shall be brought that the person charged had reasonable cause to believe and did in fact believe that the
girl was of or about the age of sixteen (16) years."
The procedure adopted by the learned Magistrate (as stated above on page 17 of the Record), before proceeding to acquit the Respondents
once the defence of "reasonable belief" was raised by them, was irregular as well as unlawful for once this defence is raised: "it nullifies any purported plea of guilty and the court must thereupon formally enter a plea of not guilty on behalf of the accused and hear the
evidence so as to decidthe evidence whether the person charged had reasonable caus cause to believe and did believe that the girl
was sixteen years of age or over."  >GRANT Atg.Chief Juef Justice in PECELI VIRIKI and REGINAM Criminal Appeal No:79/92). PECELI (si> (supra), GRANT ACJ saat "by no stretch of the imagination can the appellants purported plea of guiltyuilty be treated as unequivocal and the conviction
on each count is accordingly quashed with the sentence set aside." (underlining mine for emphasis)
In another case, namely 1. PENAIA EREVONU, 2. DICK STEINER and REGINAM (Labasa Criminal Appeal No.5 of 1975) where on a charge of rape the plea was unequivocal and GRANT CJ set aside the conviction and remitted it to the Magistrate's Court with direction to proceed to enter a of not guilty to b to be
formally entered and the case set down for hearing.
Similarly, in this case the purported plea of guilty was nullified.&nbs was nullified in the circucircumstances of this case (PECELI supra) particularly when the learned Magistrate made up his own mind on his own observation of the victim and formed his own impression
of the victim's age and proceeded to immediately acquit the Respondents without further ado. Consequently toceedings ings in the
Magistrate's Court became an absolute nullity.
nbsp; I might mention at this stage for future guidance, in the words of GRANT CJ in AKUILA KUBOUTAWA and REGINAM (Labasa Criminal Appeal No.2 of 1975 which was a case of defilement:
"....... that in the case of an unrepresented accused any statutory defence should be brought to his attention. Fstance, in
a charge of thof this nature, the accused should be informed that he is charged with unlawful carnal knowledge of a particular girl
of a specific age and that he had a reasonable cao believe that she was of o of or about the age of sixteen years; and the record
should disclose that the charge was explained accordingly."
I would also observe at this stage, as said in < PECELI VIRIKI (supra) that:
"It is an undesirable practice to accept as t as established by a plea of guilty facts which constitute an essential ingredient
of the charge of which an accused may have no personal knowledge, such as the precise age of the girl in question, and for this reason
a birth certificate or other satisfactory proof of the girl's age should be furnished ........"
This becomes all the more desirable in this case in view of the Respondents' belief as to the victim's age and because of the learned
Magistrate's own personal 'view' of the victim when she was presented to him in Court.
Because there is a charge in the alternativevoid any pitfalls in view oiew of the order which I propose to make, it would be wise
to bear in mind the following procedure where there is an alternative count as contained in the Chief Magistrate's Circular No.7 of 1976:
"Where the prosecution charge an accused oned on more than one count in the alternative and a conviction is recorded on one, no verdict or finding should be entered on the other.
2. For example if the accused pleads guilty to one of the counts and the plea is accepted by the prosecution and the accused convicted
thereon, the alternative count should simply remain on the file.
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4. Where an accused has been convicted on onon one of alternative counts he should not be acquitted on the other, as this ties the
hands of an appellate court."
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In this above aspect of "alternative count" I alsI also refer to GRANT CJ's judgment in THE DIRECTOR OF PUBLIC PROSECUTIONS and PENI RAITEVUI (Labasa Criminal Appeal No:14 of 1978). There be made refereo the the above circular which he says correctly sets out the practice.
In relation to appeals from Magistrates' Court s.319 of the Criminal Procedrocedure Code sets out the powers of High Court as follows:-
"319. - (1) At the hg of peal, the Supe Supremepreme Court shall hear the appellant or his barrister and solicitor, if he appears,
and the respondent or arrister and solicitor, if he appears, and the Director of Public Prosecutions or his reprerepresentative,
if he appears, and the Supreme Court may thereupon confirm, reverse or vary the decision of the magistrate's court, or may remit
the matter with the opinion of the Supreme Court thereon to the magistrate's court, or may order a new trial, or may order trial
by a court of competent jurisdiction, or may make such other order in the matter as to it may seem just, and may by such order exercise
any power which the magistrate's court might have exercised:
Provided that -
(a) nbsp; &nbhp; tpr Su Court may, noy, notwithstanding that it is of opinion that the point raised in the appeal might be decided
in favour of the appellant, dismhe apif itiders no sntialarriage oage of jusf justice tice has ahas actualctually ocly occurred:
(b) &nbssp; &nsp;&nbp; the Supreurt snall not ordt order a new trial in any appeal against an order or acquittal."
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In this cas I have stated earlier, the learned Magistrate was not empo empowered to acquit the Respondents. It was an unlawful act
on his part. The acquittal itself was l nullity. Therefore proviso (beaboveabove in s.319 did not apply to an unlawful ordeacquittal.
In my view, the proviso is applicable only to a valid order of acquittal mtal made in accordance with the law.
ass=MsoNormal style="marginargin-top: 1; margin-bottom: 1">
For the above reason I remit the case to the Magistrate's Court at Labasa under the provisions of section 319 (1) of the Criminal Procedure Code for fresh plea on the charges and re-hearing before a different Magistrate. Accory, the order of acquiacquittal is set aside.
D K
JUDGE
AT LABASA
10 February 1995.
Haa0002j.95b
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