IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA0019 OF 2005

BETWEEN:

TEMO VULI
Appellant

AND:

STATE
Respondent

Counsel: Mr. N. Vere – for the Appellant
Ms V. Lidise – for the State

Date of Hearing/Judgment: 20th April, 2005

EX TEMPORE APPEAL JUDGMENT

Background

The appellant was charged with rape contrary to Sections 149 and 150 of the Penal Code, Cap. 17. It was alleged that on the 13th of May 2001 while on a boat travelling between Moala Island and Suva the appellant had carnal knowledge of Susana Wati without her consent.

At his trial before the Magistrates Court the appellant was represented down to the point of judgment. Regrettably at the point of judgment as he had not paid his counsel’s fee he was unrepresented.

What transpired was that the learned Magistrate had doubt in his mind on the issue of consent. He found that the complainant did indeed consent to have sex with the accused and therefore acquitted the accused on the rape charge.

However, using the provisions of Section 156 of the Criminal Procedure Code the learned Magistrate did not leave matters there. The accused had admitted sexual intercourse took place. The victim was born on the 7th of May 1986 and was at the time of the offence 15 years and 6 days old. The learned Magistrate moved immediately from that statement of fact to an otherwise unsupported conclusion that the appellant accused should be convicted of the kindred offence of defilement pursuant to Section 156 of the Penal Code. The accused was duly convicted and sentenced to 18 months imprisonment. He has lodged this appeal.

Issue

The real issue for this appeal is whether or not the learned Magistrate could validly form an opinion under Section 156 of the Criminal Procedure Code that the accused despite being not guilty of the rape offence was nonetheless guilty of defilement.

For the provisions of 156 to properly operate the learned Magistrate would at the very least need to provide some reasons for his opinion. Those reasons would have to satisfy the appropriate onus and burden of proof for an offence of that kind. That would involve a quite intricate analysis of the matrix of facts of any particular case. That is not an easy task as an offence under Section 156 of the Penal Code involves not only the usual standard and burden of proof associated with criminal charges but a shifting of that onus and burden of proof throughout the course of the trial depending on the available evidence.

In my view it would only be safe to enter such a conviction if considerations on the issue of the accused’s state of mind and belief about the age of the complainant had been properly drawn to his attention during trial or properly addressed by his counsel. There is some law on that matter. Although not directly relevant the decision of Sigaimata v The State, Criminal Appeal No. HAA0013 of 1998 (Labasa), a decision of my learned brother Judge Pathik is relevant.

For the purposes of this appeal, however, the matter is more simply stated. The learned Magistrate gave no reasons for his opinion beyond the bold re-statement of the complainant’s age as proved by her birth certificate tendered in the trial and by inference the agreement between the prosecution and defence that sexual intercourse did indeed take place. However, there were 2 passages of evidence that directly raise the positive defence contained in Section 156 and these were not addressed by the learned Magistrate when making his finding.

The first in time and most important is that during the course of his police interview (question 29) the accused was asked as to his belief about the complainant’s age. He replied that he thought she was 16 years of age.

Secondly, during her evidence in chief the complainant’s mother said that her daughter was a huge girl and then “accused could be mistaken that she is 18 years or 19 years old”.

When taken together both of those statements raise the positive defence to the necessary evidential standard for a positive averment and it would then be necessary for the State to negative that positive defence. None of this was achieved. 

Decision

Accordingly, I am of the firm view that the conviction for the kindred offence of defilement under Section 156 of the Penal Code cannot stand.

Having indicated that to counsel I sought their submissions on the issue of the disposition of the matter in the light of that finding. Counsel are in agreement that the accused has not been in jail for a significantly long period of time. The just course of action is for this matter to be referred back to the Magistrates Court before an alternate Magistrate for a proper trial on the charge of defilement under Section 156 of the Penal Code. This will at the very least leave it open to the Director of Public Prosecutions to make the necessary enquiries and decide whether or not he intends to proceed with such a charge or will in the light of the victim’s attitude towards a further trial elect not to proceed.

Conclusion

For the reasons stated in this judgment I grant the appeal. The conviction entered by the learned Magistrate on the 18th of October 2004 for the kindred offence of defilement pursuant to Section 156(1)(o) of the Penal Code Cap. 17 is overturned. I direct that a re-trial on that charge may at the Director of Public Prosecution’s discretion be heard in the Magistrates Court before an alternate Magistrate. I direct that the successful appellant is released today. In the circumstances the State quite properly do not make any application for his submission to bail. He is released at large but on the clear understanding that he will answer any further summons sent to him in respect of the re-trial matter.

Gerard Winter
JUDGE

At Suva
20th April, 2005