Bureci v State [2010] FJHC 558; HAA015.2010 (15 December 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No: HAA 015 of 2010

BETWEEN:

VILIAME BURECI
The Appellant

AND:

THE STATE
The Respondent

Counsel: Appellant in Person
Mr. T. Ravuniwa for the Respondent

Date of Hearing: 10 December 2010
Date of Judgment: 15 December 2010

JUDGMENT

[1] The appellant was sentenced to concurrent terms of three years imprisonment for two counts of defilement in the Magistrates' Court at Nabouwalu. The complainant was 14 years old at the time of the alleged defilement while the appellant was 23 years old. He appeals against his sentence alone.

[2] Counsel for the State quite fairly brings to the attention of the Court a matter in relation to the conviction.

[3] The court record shows that the appellant appeared in the Magistrates' Court on 12 January 2010 and after waiving his right to counsel, he pleaded guilty to the charges. In mitigation the appellant informed the learned Magistrate that he thought the complainant was over 16 years old. The learned Magistrate then vacated the guilty plea. Whilst the guilty plea was properly vacated, the proceeding thereafter was contrary to natural justice.

[4] Instead of setting the case for trial, the learned Magistrate remanded the appellant in custody and ordered the complainant to be brought to court. On 15 January 2010, the complainant appeared in court. The complainant informed the court that she had told the appellant that she was 14 years old at the time of the offending. This statement of the complainant was not received on oath. After listening to the complainant, the learned Magistrate said:

"I am satisfied that the victim does not look anymore than 15 years old. Hence, the accused does not have a valid defence."

[5] After concluding that the defence of mistaken belief as to the age of the complainant was unavailable to the appellant, the learned Magistrate adjourned the case for sentencing. On 11 June 2010, the appellant was sentenced to 3 years imprisonment on each count of defilement, to run concurrently.

[6] Counsel for the State submits that the learned Magistrate erred in sentencing the appellant without re-taking his plea after it was vacated. I agree.

[7] The appellant was clearly denied due process. The learned Magistrate should have proceeded to trial after the appellant's plea was vacated. The complainant would have given sworn evidence and the appellant would have had an opportunity to cross-examine her.

[8] By accepting the unsworn statement from the complainant, the appellant was denied an opportunity to cross-examine his accuser, which is an essential component of due process. After rejecting the appellant's defence of mistaken belief as to the age of the complainant, the learned Magistrate sentenced the appellant on a vacated guilty plea. In other words, the appellant was punished for an offence he was not convicted.

[9] In these circumstances, I set aside the sentence of the appellant and order a trial de novo before another Magistrate.

[10] I remand the appellant in custody to appear in the Magistrates' Court on 20 December 2010 for a bail hearing.

Daniel Goundar
Judge

At Labasa
Wednesday 15 December 2010

Solicitors:

Appellant in person
Office of the Director of Public Prosecutions for State