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IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 0043 OF 1997
BETWEEN:
ASHAF HUSSEIN
s/o Mohammed Hussein
Appellant
AND:
THE STATE
Respondent
Mr. H. Robinson fe Appellant
Ms. L. Laveti for the Respondent
REASONS FOR DECISION
On the 25th of September 1997 after hearing the appeal, this Court quashed the appellant's conviction for reasons which I now deliver.
The appellant was charged on the 18th July 1997 before the Labasa Magistrate Court for the following offence:
Statement of Offence
DEFILEMENT OF GIRL BETWEEN THIRTEEN AND SIXTEEN YEARS OF AGE: Contrary to Section 156(1)(a) of the Penal Code Cap. 17.
Particulars of Office
ASHAF HUSSEIN s/o Mohammed Hussein between November, 1995 and June, 1997 at Labasa in the Northern Division, had unlawful carnal knowledge
of YASMIN NISHA d/o Mohammed Yasin a girl between 13 and 16 years of age.
The Magistrate Court record of proceedings indicates that the appellant pleaded guilty to the charge and admitted facts that alleged
that he had had sexual intercourse with the victim on numerous occasions over a period of 20 months and as a result of which the
victim became pregnant. Upon his conviction the appellant was sentenced to 18 months imprisonment.
The appellant appealed against both his conviction and sentence but for the purposes of this judgment I need only refer to the sole
ground of appeal against conviction which reads:
"1. That the learned Magistrate erred in law and in fact in convicting the Appellant."
Having regard to the provisions of Section 309(1) of the Criminal Procedure Code (Cap. 21) the appeal against conviction appears on the face of it, to be 'statute-barred'.
In Peni Rakorako v. R. Suva Cr. App. No. 85 of 1978 however, Grant C.J. (as he then was) in entertaining an appeal against conviction where the appellant had pleaded guilty in the Magistrate Court, said [after referring
to the identically-worded predecessor 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 (R. v. Gyan Deo 22 F.L.R. 1)."
Learned counsel for the appellant, argued in the appeal that the guilty plea of the appellant who was unrepresented in the Magistrate
Court, must be considered as 'equivocal' bearing in mind the following 'factors':
(1) The various defects in the charge;
(2) The trial magistrate's failure to require strict proof of the victim's age; and
(3) The trial magistrate's failure to investigate the statutory defence;
In this latter regard the proviso to Section 156(1)(a) of the Penal Code under which the appellant was charged, reads:
"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."
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 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."
(later affirmed in Mikaele Bari v. R. Labasa Cr. App. No. 11 of 1975 per Grant C.J.)
Quite plainly in this case the above procedure was not followed nor is there anything on the record to show that this defence was
brought to the attention of the appellant at the time his plea was taken.
Learned State Counsel forcefully submits however that the fact that the victim was schooling when sexual intercourse first occurred,
and more so, where the appellant is admittedly the victim's 'cousin', he should have known and would have had no 'reasonable cause' for believing that she was "of or above the age of sixteen". I agree and would be willing to apply the 'proviso' to Section 319 of the Criminal Procedure Code (Cap. 21) if that was the sole ground of appeal but unfortunately, it is not.
I turn next to consider the second 'factor' raised by counsel for the appellant, namely the insufficiency of the evidence regarding the victim's age. In this regard the evidence
before the trial magistrate comprised a bare statement of the police prosecutor (albeit admitted by the accused) that:
"The victim is born on 1.6.1981."
There was also a Medical Officer's Report of the victim dated 17.7.97 produced to the trial magistrate, in which the Patient's Age, presumably given by the victim, is recorded as being: '15'. Quite plainly, if the 'date of birth' stated by the prosecutor is correct, then the age recorded in the Medical Officer's Report would be incorrect by thirteen (13) months.
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 Jennions v. R. 18 F.L.R. 61)
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."
A fortiori where the age of the victim is an essential ingredient of the offence charged.
In this case not only was the 'undesirable practice' perpetuated, in addition, the Particulars of Offence provided completely failed to follow the usual form where the actual age of the victim 'to-the-day' is stated, but that omission was perhaps inevitable having regard to the 'form' of the charge which suffers from several serious 'defects' which I shall now examine in turn.
Firstly, learned counsel for the appellant submits that the opening date of the charge ('November, 1995') is 'time-barred' insofar as Subsection 2 of Section 156 expressly states that:
"(2) No prosecution shall be commenced for an offence under paragraph (a) of subsection (1) more than twelve months after the
commission of the offence."
In this case the charge was filed on the 18th of July 1997 which is 'more than twelve months after the commission of the offence' and is therefore prima facie time-barred. This point was very properly conceded by State Counsel.
The second 'defect' highlighted in counsel's submissions relates to the closing date of the charge ('June 1997'), by which date, counsel submits on the prosecution's own 'date of birth', the victim would have turned sixteen (16) years of age, and therefore, no offence contrary to Section 156(1)(a) could possibly have been committed against her by the appellant. This too is conceded by State Counsel.
The third and final 'defect' in the charge is that, 'in form', it charges numerous offences in a single charge. That is to say the charge is duplex or bad for duplicity.
As long ago as 1936 in Robertson v. R. 25 Cr. App. R. 208 Hewart L.C.J. observed of the charge in that case, which charged the obtaining of food from a hotel over a period of 8 months on every day of which it was alleged that the offence was committed, at p.209:
"It is elementary that a count in an indictment should not charge more than one offence. It is obvious however, that the first
count in the indictment before us deals with scores, if not hundred, of offences ... It is said that that form is becoming 'common';
it ought to be stopped. It is difficult to understand why an indictment should be framed in that form ... It is hoped that this kind
of indictment will disappear."
Even earlier in 1913 in Thompson v. R. [1913] UKLawRpKQB 236; 9 Cr. App. R. 252 where the appellant was charged that "on divers days between the month of January 1909 and the 4th October, 1910 did have carnal knowledge" of his daughter, the Court of Appeal (U.K.) although content to apply the 'proviso' in that case, nevertheless said, at p.259:
"... the practice is uniform and well established, that several offences should not be charged in the same count, and the indictment
in this case was irregular for that reason."
and later at p.260 the Court said:
"If we had thought that any embarrassment or prejudice had been caused to the appellant by the presentment of the indictment
in this form, we should have felt bound to quash the conviction, whatever our views might be as to the merits of the case."
A fortiori where the accused is unrepresented and cannot therefore be expected to know or understand the niceties of criminal pleading.
State Counsel as a last resort, also sought in this appeal to rely on the 'proviso' to Section 319 of the Criminal Procedure Code (Cap. 21) which empowers this Court to dismiss an appeal "if it considers that no substantial miscarriage of justice has actually occurred."
In D.P.P. v. Solomone Tui 21 F.L.R. 4 Grant C.J. in rejecting a somewhat similar argument based on Section 342 of the Criminal Procedure Code (Cap. 21) said at p.7:
"Despite its apparent scope, it has been held that the provision of this section cannot validate a fundamental error going to
the root of the matter; such as the failure to include in the charge a necessary ingredient of the offence in question, duplicity in a charge, want of jurisdiction, or a charge which discloses no offence known to law ... As was stated by Humphries J. in the English Court
of Criminal Appeal in R. v. West (1948) 64 T.L.R. 241 at 243:
'It is an essential feature of the criminal law that an accused person should be able to tell from the indictment the precise nature
of the charge or charges against him so as to be in a position to put forward his defence and to direct his evidence to meet them.'"
(my underlining)
In the light of the above and considering the numerous irregularities and defects that occurred in this case the appellant's conviction
was quashed.
D.V. Fatiaki
JUDGE
At Labasa,
14th October, 1997.
Haa0043d.97b
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