Vuicakau v State [2010] FJHC 378; HAA015.2010 (3 September 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAA 15 OF 2010

BETWEEN:

ALIPATE VUICAKAU
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Mr. Sen - for the Appellant
Mr. Kaisamy - for the Respondent

Date of Hearing: 13.08.2010, 31.08.2010, 01.09.2010
Date of Judgment: 03.09.2010

JUDGMENT

1. The appellant preferred an appeal against the conviction against him by the Learned Magistrate of Labasa dated 15/02/2010.

2. The charge against the appellant is as follows:

Statement of Offence

DEFILEMENT OF GIRL BETWEEN 13 AND 16 YEARS OF AGE: Contrary to Section 156(1) (a) of the Penal Code, Cap 17.

Particulars of Offence

ALIPATE VUICAKAU on 17th day of January 2010 at Labasa in the Northern Division, unlawful carnal knowledge of Luisa Levulevu a girl being aged 15 years 8 months 2 days.

3. The ground of appeal of the appellant are as follows:

1. That the sentence ordered by the trial court is too harsh and excessive;
   
2. That there has been an inconsistency in the sentence ordered for the same offence by the offence same trial magistrate;
   
3. That the starting point of sentence is too high with too little deduction granted for my early plea at the first opportunity, my mitigation and the fact that I am a first offender; and,
   
4. That I reserve the right to add to these grounds later.
   

4. When the appeal was taken up for hearing, the appellant raised another ground of appeal as follows:

"That the conviction against me is erroneous, wrong in Law and a nullity for the following reasons.

1. The proviso to Section 156 (1)(a) of the Penal Code provides me a defence to the charge.
   
2. That the victim's Birth Certificate was not produced
   

100. Shifting of onus of proof by the Magistrate to my defence under the proviso.
     

5. State Counsel submitted that the Magistrate has failed to bring the proviso to the attention of the appellant and that his Birth Certificate was also not provided. Hence the Magistrate erred when delivering his sentence.

6. Now I peruse the proceeding of the Magistrates Court of Labasa.

7. 21/01/10

Prosecution - WPC Selai

Accused – Present

Charge read explained.

Understand charge.

Right to counsel – waived.

Plea – plead guilty.

Court - Did anybody force you to lead guilty?

Accused - No on my own.

Facts admitted.

Mr. Kohli as amicus curial informs court that the facts reveal in this case supposes that the Accused was of the view that girl's age might be above 16.

Prosecution says se needs time to go through the Caution Interview notes.

To be fair on the case, I allow the application.

Court - Accused to be bail on $500.00.

Court - For mention on 12/02/2010.

Sgd;

Resident Magistrate

Court - Erroneously bail conditions not recorded.

Bail conditions:

1. not to reside in victims village and accused to stay in Labasa;
   
2. kept 100m away from the victim;
   
3. not re-offend;
   
4. every Saturday to report to Labasa Police Station between 6.00a.m. – 6.00p.m.
   

For mention on 12/02/2010.

Sgd:

Resident Magistrate

8. 12/02/2010

Prosecution - Sergeant Hassan

Accused - Present

Prosecution says Caution Interview notes has been perused by the prosecution and the accused has not stated that the victim looks above 16.

Court - Do you maintain the same plea.

Accused - Yes.

Court - Did anyone force you to plead guilty?

Accused - No.

No previous convictions – first offender.

In mitigation:	21 years.
	Single
	Farmer
	50 FJD a month

I convict the accused on his plea and pass the following sentence.

The sentence prescribed under the penal code is 10 years of imprisonment.

The tariff is 3 – 5 years of imprisonment.

Sentencing on 15/02/2010.

Sgd:

Resident Magistrate

9. The Magistrate has imposed 5 years imprisonment on the accused appellant.

10. Now I consider Section 156(1) of the Penal Code.

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

11. In Peceli Viriki v R Suva Cr. App. No. 79 of 1972 (unreported) Grant Ag. C.J. (as he then was) in quashing the appellant's conviction on a charge of Defilement observed:

"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 other satisfactory proof of the girl's age should be furnished."

(See also: per Grant J. in Barry v R. 18 F.L.R 61)

12. Furthermore as was said by Lord Hodson in Comptroller of Customs v. Western Lectric Co. Ltd. (1965) 3 All E.R. 599 at p.601:

"If a man admits something of which he knows nothing, it is of no real evidential value."

13. More particularly as to the trial magistrate's duty in this regard where the accused is unrepresented, Grant C.J. (as he then was) said in Akuila Kaiboutawa v. R. Labasa Cr. App. No. 2 of 1975 (unreported):

"... 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 particulars 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."

14. The question raised by the appellant was dismissed and decided by Justice Fatiaki in Ashok Hussain vs The State and Justice D Pathik in Sigaimata v State (1998) FFJHC 63; HAA013.98 (30 April 1998). Came to a conclusion that the conviction is erroneous and it should be remitted to the Magistrate to take fresh plea.

15. Considering all above factors, I agree with the appellant that finding guilty by the Magistrate is erroneous. Therefore I remit the case back to the Magistrate of Labasa to take the plea again.

16. Appellant discharged.

S.Thurairaja
JUDGE

At Labasa
3 September 2010