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Kumar v The State [1990] FJHC 82; Haa0105j.90s (20 December 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 105 OF 1990

Between:

RAJEN KUMAR
s/o Krishna Pillay
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. S. Hettige for the Respondent

JUDGMENT

The appellant appeared in the Suva Magistrate Court on the 28th of June 1990 and pleaded guilty to an offence of Abducting a girl under the Age of Sixteen Years: Contrary to section 255 of the Penal Code Cap. 17 and a second offence Defilement of a girl between 13 and 16 years of Age: Contrary to Section 156(1)(a) of the Penal Code Cap 17. The case was then adjourned to the following day for facts to be outlined.

After the facts were outlined the appellant was convicted and the appellant mitigated in the following terms:

"23 years single and am Welder at Hanif Builders. When I came to know victim 18 months ago she did not appear to be under age. She always told me she is over 18 years. I want to marry the complainant despite what has happened."

Thereafter the case was adjourned on no less than 6 occasions over 3 months in order to enable the Court to see the complainant. During this entire time the appellant appears to have remained at large on bail pending sentence! Finally, on 11th September 1990 without ever seeing the complainant the learned Chief Magistrate sentenced the appellant to 1 year's imprisonment on the Abduction count and 3 years imprisonment for the Defilement both sentences being ordered to be served concurrently.

The appellant now appeals against both his conviction and sentence on the following grounds:

"(a) That the learned Magistrate erred in Law and fact in convicting the Appellant when the evidence as a whole was not sufficient to establish the charge against him; and

(b) That the sentence is harsh and excessive."

If I may say so the ground of appeal against conviction is drafted in very broad terms and it was not until the hearing of the appeal that it became clearer in the submissions of learned counsel for the appellant.

Needless to say in seeking to appeal against a conviction grounded in a guilty plea learned counsel for the appellant is faced with the prohibitory provisions of Section 309(1) of the Criminal Procedure Code. Cap. 21.

In Ramsami Naidu v. R. Lautoka Cr. App. No. 7 of 1984 Cullinan, J. (as he then was) had occasion to consider the meaning and effect of the above-mentioned Section 309(1) and said:

"I have no doubt that a strict literal interpretation of those provisions would lead to injustice in some case."

In the learned judge's view:

"the words in the subsection, that is, 'who has pleaded guilty', must be interpreted to mean an unequivocal plea."

He also cited with approval the dicta of the former Chief Justice Grant in R. v. Mohammed Khalil and Anor Labasa Cr. App. No. 10 & 11/78 when he said of the then equivalent of Section 309(1):

"That Section presupposes that the offence to which an accused has pleaded guilty is one known to law, that the admitted facts substantiate the offence charged, and that the accused understood the charge and unequivocally admitted his guilt; and this Court can entertain an appeal against conviction after a plea of guilty only if the grounds relate to one or other of these elements."

In this present appeal learned counsel for the appellant submits that the statement of the appellant in mitigation that:

"the victim did not appear to be under age. She always told me she is over 18 years ........"

raised prima facie material before the learned magistrate to require him to re-consider the equivocality of the appellant's guilty plea at least on the Defilement count.

Moreso as the particular provision under which the appellant was charged contains a proviso in the following terms:

"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."

In dealing with this proviso in Sat Deo Shiri Wasto v. R. Suva Cr. App. No. 1 of 1977 the former Chief Justice Grant said at pp. 2 & 3:

"It is quite clear from this wording that an accused does not have to be satisfied beyond reasonable doubt that the girl is of or above the age of sixteen; it is only necessary for him to believe it on reasonable grounds. Moreover, it is not incumbent upon an accused to satisfy the court beyond reasonable doubt that he had reasonable cause to believe and did in fact believe that the girl was of or above the age of sixteen; nor does he have to satisfy the court on the balance of probabilities. The use of the word "defence" in the proviso does not connote any shifting of the burden of proof. The proviso refers to no more than an evidential burden so that, for an accused to fall within the exception created by the proviso, there need only be some evidence, adduced either by the prosecution or by the defence, sufficient to raise a reasonable doubt."

In this case under appeal there was no challenge by the prosecutor to the appellant's claim in mitigation nor was there any evidence led to contradict the appellant's belief as to the victim's age. Furthermore the fact that the victim is alleged to have been 15 years 8 months and 23 days in the Defilement count only serves to compound the problem further.

In the light of the above the learned magistrate ought to have entered a plea of not guilty to both counts and proceeded to trial. He did not and the appellant's conviction cannot be allowed to remain on a seemingly equivocal plea.

Accordingly and for the avoidance of any doubt I quash the appellant's conviction and sentence in respect of both Counts and order that he be re-tried by a different magistrate.

(D.V. Fatiaki)
JUDGE

At Suva,
20th December, 1990.

HAA0105J.90S