N THE HIGH COURT FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 17 OF 2001
(Labasa Mag. Ct. Crim. Case No. 634/2000)

Between:

METUI SABOBOKI

PENI QALO
Appellants

And:

STATE
Respondents

Appellants in person
Mr. J. Rabuku for the State 

JUDGMENT

On 29 September 2000 the appellants Metui Saboboki and Peni Qalo were on their own plea convicted and sentenced to imprisonment for two years for the offence of defilement contrary to section 156(1)(a) of the Penal Code Cap. 17. 

The Particulars of Offence reads as follows:

METUI SABOBOKI, PENI QALO, TIMOCI RABULAGO, and another on the 25th day of September 2000 at Dreketi in the Northern Division had unlawful carnal knowledge of TOKASA NADROKA a girl age 13 years 4 months and 9 days.

The appellants submit that the third accused’s sentence of 2 years imprisonment was, on appeal, reduced to 6 months by the learned Chief Justice. They say that they are 19 years old and their sentence of two years is harsh and excessive in the circumstances. They say that the complainant had consented to sexual intercourse on previous occasions.

The learned counsel for the State admits that the sentence of a co-accused was reduced. Although the offence is serious, for consistency and fairness the appellants’ sentence should be reduced as well. When asked by the Court, Mr. Rabuku conceded that the proviso to s156(1)(a) was not brought to the attention of the appellants. He also stated that there is no evidence that the complainant is below 16 years of age.

Consideration of appeal

On the evidence before him it is abundantly clear that by not following the requirements of the law in a case of this nature, the learned Magistrate made a grave error in convicting the appellants and sentencing them.

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

"156. – 

(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 that the girl was of or above the age of sixteen years.

2. ....

3. ....."

For failing to comply with the putting of the proviso to an accused has led to conviction being quashed and sentence set aside [Akuila Kuboutawa (Labasa Crim. App. No. 2 of 1975); The State v Seremaia Amato & 5 Ors. (Lab. Crim. App. No. 2/95), Mikaele Bari v R (Lab. Crim. App. 11/75). 	Further, in regard to the importance of referring the proviso to an accused it is stated thus in the following passage from the judgment of Grant CJ in Akuila (supra):

"... 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".

While I am on the subject of the offence of defilement, I ought to bring to the attention of Magistrates how certain elements of the offence have to be proved by referring to the following passage from the judgment of Grant CJ in Peceli Viriki and Reginam (Crim. App. 79/72):

"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".

For a fuller discussion on the subject of proof in defilement cases see my judgments in Saiyasi Sigaimata and State (Crim. App. No. 13/98 Labasa), Alipate Karikari and The State (Crim. App. No. 110/99 Labasa) and Josaia Nalasewa alias Josaia Roba Nala and The State (Suva Crim. App. No. 80/99). If matters stated in these cases are kept in view, not only will it make the task of an appellate Court easier, it might well lead to fewer decisions being upset.

In this appeal, in the outcome, inter alia, for the proviso not having been brought to the attention of the appellants it is fatal to their convictions which are therefore quashed and the sentences set aside. The appellants are set free forthwith. It is not proposed to order a re-trial in this case as they have already served approximately the same period which a co-accused succeeded on appeal referred to hereabove.

The appeals are allowed.

D. Pathik
Judge

At Labasa
21 May 2001