Drauna v State [2011] FJHC 590; HAA016.2011 (23 September 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 016 OF 2011

BETWEEN:

LEPANI DRAUNA
Appellant

AND:

STATE
Respondent

Mr K. Waqavonovono for the State
Mr A. Sen for Appellant

Date of Hearing : 22nd August and 19th September, 2011
Date of Judgment: 23rd September, 2011

JUDGMENT

[1] On the 17th March 2011, the Appellant was sentenced to two concurrent terms of three years six months imprisonment for two counts of defilement which he had been convicted of after trial in the Magistrates Court at Labasa. Conviction was entered by way of a lengthy written ruling of the presiding Magistrate dated 23 March 2010 but he having been moved on to another post within the judiciary, the ruling was delivered by the new Resident Magistrate on 8th June 2010, the delay having been caused by the accused absenting himself from proceedings.

[2] The appellant is now appealing both his conviction and sentence on the following grounds:

(i) that the learned Magistrate erred in convicting the accused without considering the available defences.

(ii) that the Magistrate erred in convicting when there was uncertainty as to when the alleged offences were committed.

(iii) that the sentence is "irregular as his judgment was delivered several months after the hearing".

(iv) that the learned Magistrate failed to analyze the evidence and the defence of the appellant before convicting him.

[3] The appellant had been originally charged with four counts of defilement contrary to Section 156(1)(a) of the Penal Code, three for the month of December 2006 and one for the month of January 2007. However the judgment of the learned Magistrate deals with and convicts the appellant on only two of these, one for December 2006 and one for January 2007. Although the judgment is silent on the reasons for this, it is in the circumstances quite proper. If there were three acts of defilement in December as the prosecution alleges, it is not necessary for these acts to be represented by three separate counts. One count is enough as a representative count.

[4] Both the Appellant and the State were ordered to file written submissions on this appeal. The appellant filed out of time, and on the very date of hearing and his submissions were therefore not accepted. The State, showing no interest in the appeal, have filed no submissions at all.

[5] The brief facts of the case were that in December 2006, the victim was aged 14 years and 2 months and was in Class 6 of a school in Tukavesi where she lived with her family. The accused was a serving Police Officer at Tukavesi. He was well known to the victim because he was related to her father and she actually called him "uncle". It was in December when the victim met the accused and he took her to his quarters within the Police compound where he led her to a bedroom and undressing themselves they had sex, not once but three times before he returned her to her home. Sometime after that, in January 2007, when the accused was at her home, the victim's mother asked him to go and buy cigarettes for her and allowed her daughter to go with him. Once more he took her to the Police Compound and prepared a sulu covered space on the ground under the house where they again had sex. The victim became pregnant and as a result the defilement and its' perpetrator were revealed.

[6] The appellant orally submits that there is no evidence as to when the offences were committed and certainly no reference was made to an incident or incidents in December 2006. It is true that the victim was very unsure of exact times and dates; however at the very beginning of her examination in chief the prosecutor is specific in asking the victim to tell of events in December 2006, upon which the victim tells of the first time she had sex with the accused. It was also the expert evidence of the Doctor after an
ultra sound scan that the victims' baby would have been conceived in the early part of December 2006. The exact date of offending is not an element of the offence and it cannot then be said that lack of proof of the dates in the counts is fatal to the conviction.

This ground of appeal fails.

[7] The appellant relies in his appeal on the ground that both judgment and sentence were delayed after the evidence had been completed. The evidence was completed on the 16th July 2009. The reasons for conviction were delivered (by another Magistrate) on the 8th June 2010. Sentence was handed down on the 17th March 2011. For most of the time between July 2009 and June 2010, the accused had absented himself from Court and was on bench warrant. The period in-between verdict and sentence was sent in hearing extensive mitigation and with the new Magistrate acquainting himself with the record.

The delays are not excessive and are justifiable in the circumstances. This ground of appeal must fail.

[8] The appellant submits that he was not adequately informed of the defence available to him under Section 156 of the Penal Code. Section 156 is the section creating the offence of defilement, but contained within that section is the following proviso:

"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".

[9] The import of this proviso was examined in some detail by the Court of Appeal in Yasin Ali v State AAU0014 of 2008, and in particular with reference to an unrepresented accused. The Court adopted the dicta of Grant CJ in Bari Crim. App. 11/75, where the CJ said;

"I might add for the guidance of Magistrates that, in the case of unrepresented accused, any statutory defence should be brought to his attention. For instance, on a charge of this nature, 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."

In Karikari v State (1999) 45 FLR 310, Pathik J. held that such an available statutory defence must be raised by the Court even if not raised by an unrepresented accused.

[10] The appellant below was unrepresented at trial. Immediately after he had entered his pleas of not guilty, the Magistrate told him of the defence available under Section 156 in quite clear terms. He twice more referred to the defence; once just before the accused was about to cross-examine the victim and again at the end of his cross-examination. However the record shows that for these latter two, the Magistrate merely referred to a possible "defence under Section 156" without further explanation. If it were just that, then the reference would be meaningless to an unrepresented accused.

[11] At the end of the prosecution case the accused was put to his election. He chose to remain silent. If there were to be any time to tell the accused of a statutory defence available to him, this would have been the time; yet nothing was said.

[12] It could be said that for the accused to run that defence was hopeless; he knew the family well and must have known that the victim was only 14. That however is not the point. If there is a defence available to an unrepresented accused, then he must be told of it at the time that he is put to his election on defence. Even if the defence would be regarded as hopeless, it is only just that he be fully equipped before deciding his course of action.

[13] It is obvious that the Magistrate was aware of the defence because he refers to it; but his advice to this accused was not enough and wrongly timed.

[14] In the premises, this Court is of the view that the accused has suffered an injustice and as such his convictions on the two counts cannot stand.

The appeal against conviction succeeds on this ground and the convictions are quashed.

[15] The appeal against sentence falls away.

[16] Given that the appellant was a Police Officer at the time as well as an elder relative, he has abused his trust on two counts; I order that the matter go to trial again solely at the discretion of the Director of Public Prosecutions.

Paul K. Madigan
JUDGE

At Labasa
23 September 2011