Nalasewa v State [1999] FJHC 178; Criminal Appeal 080 of 1999 (28 December 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

SUVA CRIMINAL APPEAL NO.080 OF 1999
(Navua Mag. Ct. Crim. Case No. 140/98)

Between:

JOSAIA NALASEWA alias JOSAIA ROBA NALA
Appellant

And

THE STATE
Respondent

Mr M Raza for the Appellant.
Ms A. Prasad for State

JUDGMENT

This is an appeal against conviction and sentence.

On 15 April 1999 in Navua Magistrate=s Court Crim. Case No. 140/98, the appellant was after trial convicted of the offence of defilement of a girl between the age of 13 years and 16 years of age contrary to Section 156(1)(a) of the Penal Code and sentenced to imprisonment for 4 years.

The particulars of offence are that between 1 December 1997 and 31 December 1997 at Navua in the Central Division the appellant had unlawful carnal knowledge of VIKALI MARAMA, a girl of or above the age of 13 years and under the age of 16 years.

The grounds of appeal are as follows:-

1. THAT the Learned Magistrate erred in Law and in Fact in convicting the Accused.

2. THAT the Solicitors for the Appellant had written to the DPO, Suva and a copy to the Magistrate’s Court informing them that the Appellant’s Solicitor, Mr Mehboob Raza of Mehboob Raza & Associates would be engaged in a Manslaughter case before Justice Sadal and accordingly

sought an adjournment.

3. THAT in fact the Learned Chief Magistrate proceeded to hear the case, which was contrary to CPC and the Constitution, and found the Appellant guilty and sentenced him on the same date.

4. THAT the Appellant appeals against the sentence which was harsh and excessive having regards to all circumstances of the case.

5. THAT the appellant reserves the right to file further grounds of appeal subject to receiving the court record.

The only ground to which it is necessary to refer being ground 1. As for ground 2 a lot has been said about the alleged letter written by Mr Raza to the Divisional Prosecuting Officer (DPO) seeking consent to adjournment as he is in High Court in a murder case but the receipt of the letter is denied. Be that as it may, the appellant was unrepresented in the lower court as the record does not show that he ever instructed counsel to appear for him. On the day of the hearing the appellant did not tell the learned magistrate that he has counsel and that he would like an adjournment. The learned magistrate as is the procedure proceeded to hearing. The case is a Navua case and it was heard there but transferred to Suva Magistrate’s Court for sentencing the next day and not the same date as stated in ground 3.

This is a case of an unrepresented accused. Section 156(1)(a) under which the accused is charged requires the magistrate to draw the accused’s attention of the proviso to the said section at the trial when the plea is taken. This was not done at all. The said section in so far as it is relevant provides:-

A156. - (1) Any person who –

(a) unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any girl being of or above the age of thirteen years and under the age of sixteen years; or

(b).....................................................................

is guilty of a misdemeanor, and is liable to imprisonment for 5 years, with or without corporal punishment:

Provided that it shall be a 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 so charged had reasonable cause to believe and did in fact believe that the girl was of or above the age of sixteen years.

2. ....

3. ....@

Although the appellant did not raise the defence that he believed the girl to be 16 years of age, he did in answer to the question in his police Interview (Exhibit 3): AQ19 Do you know how old is Vika now?” replied AA. I know that she’s 17 yrs@.

This question was asked on 2 June 1998. It should be noted that at the time of the alleged offence the girl was 15 years 11 months 7 days (short of 24 days to 16 years) having been born on 24 January 1982.

On the interpretation of the proviso to the said section, it is pertinent to note what Grant C.J. had to say in Sat Deo Shiri Wasto s/o Chandar Deo and Reginam (Crim. App. No. 1/77). He said:-

It is quite clear from this wording that an accused does not have to be satisfied beyond reasonable doubt that the girl is of or above the age of sixteen; it is only necessary for him to believe it on reasonable grounds. Moreover, it is not incumbent upon an accused to satisfy the court beyond reasonable doubt that he had reasonable cause to believe and did in fact believe that the girl was of or above the age of sixteen; nor does he have to satisfy the court on the balance of probabilities. The use of the word “defence” in the proviso does not connote any shifting of the burden of proof. The proviso refers to no more than an evidential burden so that, for an accused to fall within the exception created by the proviso, there need only be some evidence, adduced either by the prosecution or by the defence, sufficient to raise a reasonable doubt.

Failure to comply with the putting of the proviso to an accused has led to conviction being quashed and sentence set aside [Grant C.J. in AKUILA KUBOUTAWA (Labasa Crim. App. No. 2 of 1975); THE STATE v SEREMAIA AMATO & 5 ORS (Lab. Crim. App. No. 2/95 - delivered 10.2.95, Pathik J), MIKAELE BARI v R (Lab. Crim. App. 11/75 Grant CJ).

Further, in regard to the proviso I refer to the following passage, which should not be overlooked by Magistrates, from the judgment of GRANT CJ in AKUILA (supra):

A....that in the case of an unrepresented accused any statutory defence should be brought to his attention. For instance, in a charge of this nature (viz defilement), 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 no reasonable cause to believe that she was of or above the age of sixteen years; and the record should disclose that the charge was explained accordingly.

There is another unsatisfactory feature of this case about which the learned counsel for the appellant also complains. It is this, that no Medical report was tendered in evidence for court’s consideration. Why the purported report was not accepted is explained thus by the learned Magistrate in his judgment (page 19 of the Record): “The Medical Report submitted by the prosecution cannot be used because there was no evidence presented to show that the report was served on the accused 10 days before the trial”. (vide the observation of Surman J in SENTIKI VOLAVOU etc v THE STATE Crim. App. No. 067/98, Suva High Court).

On the insufficiency of evidence due to medical report not being put before the court as an exhibit the following paragraph from the judgment of GRANT CJ in PECELI VIRIKI and REGINAM (Crim. App. 79/72) is apt and worth bearing in mind in the determination of an essential ingredient in a defilement case: -

It would appear that neither a birth certificate nor a medical certificate was tendered. It is an undesirable practice to accept 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 satisfactory proof of the girl’s age should be furnished. A medical certificate is desirable, not only to establish that sexual intercourse did in fact take place, but for the purpose of sentence it may well be relevant whether the girl in question was previously a virgin or was sexually experienced.

There are certain cases in which decisions turn of medical reports and analyst’s reports. Magistrate’s should ensure that these are tendered to Court to prevent the likelihood of convictions being set aside in the absence of these reports. On this point I refer to the following passage from the judgment of GRANT J (as he then was) in Barry Jennions v Reginam (18 F.L.R 61 at 63) which is apt:

Finally, it is an undesirable practice to accept as established by a plea of guilty facts of which an accused may have no personal knowledge. In this case the accused pleaded guilty to possession of Indian hemp, but the question of whether or not the substance in question was Indian hemp turns on expert evidence. It is for this reason that in cases of this nature the substance is sent for examination by a properly qualified analyst and, while it is clear from the record that this was done in this case and that the facts put before the Court were based on an analysis, the analyst’s reports was not produced to the Court. In any future cases of this nature Magistrates should ensure that analysts’ reports are tendered and that accused persons are informed of their contents. The same procedure should be followed in analogous cases, such as those which turn on medical evidence (e.g. assaults occasioning actual bodily harm or grievous harm) requiring medical reports to be tendered and communicated to the accused.

In the outcome, inter alia, for not having brought to the attention of the appellant the proviso to s156 (1) (a) it is fatal to the appellant’s conviction which is therefore quashed and the sentence set aside. The appellant is set free forthwith. There will be an order for re-trial after a fresh plea is taken. The appellant is released on bail in his own recognizance of $200.00 with one surety of like amount to appear at the Navua Magistrate’s Court on 19th January 2000 at 9.15a.m.

The appeal is allowed to the above extent.

D. Pathik
JUDGE

At Suva
28 December 1999