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Valu v State [2009] FJHC 67; HBM001.2009 (12 March 2009)

IN THE HIGH COURT OF THE FIJI ISLANDS
AT LABASA
APPELLATE JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: 001 OF 2009

MATEO VALU

V

THE STATE

Mr Amrit Sen [Pro Bono Counsel] for the Applicant

Mr. M. Korovou for the State

Date of Hearing: 10 March 2009

RULING

1. I made a ruling on this matter soon after I heard submissions, allowing the application and the appeal against conviction and sentence. I now provide my written reasons.
   
2. The applicant Mateo Valu was convicted of one count of Defilement of a Girl Under the Age of Thirteen Years, contrary to section 156(1) of the Penal Code Cap 17 and sentenced to 2 years 4 months imprisonment on 14 August 2009.
   
3. Applicant started this matter as an application for leave to appeal out of time against conviction and sentence. His application was in the form of a letter dated 29 September 2008. After listening to the initial submission of Mr Sen and my initial review of the Court Record, it was evident that the trial magistrate had committed certain errors which in law undermined the guilty plea of the applicant, upon which his conviction was entered. I granted Leave to Appeal and moved to hear the Appeal proper.
   

Background Facts

4. The applicant was charged on 5 April 2007 with one count of Defilement of a Girl Under age Thirteen Years of Age, contrary to section 156(1) of the Penal Code Cap 17. The particulars of the offence was that ‘Mateo Valu, sometimes in March 2005 at Savusavu in the Northern Division had unlawful carnal knowledge of Iliana Cacabe, a girl aged 12 years.’
   
5. The charge was first mention in the Magistrates Court on 16 April 2007 and the applicant did not appear because he was not notified. At the next call date on 14 May 2007, the applicant was present. The court explained his rights to counsel to him and the accused told the court he will apply for Legal Aid assistance. He elected trial in the magistrates court and the charge was explained and put to him, but his plea was not taken. The court deferred the plea until disclosures were available.
   
6. On 13 June 2008 when the case was again called, the applicant informed the court that he had consulted counsel from the Legal Aid Commission. The charge was again read and explained to him and after informing the court that he understood the charge, he entered a guilty plea. The court enquired from the applicant whether his guilty plea was forced, coerced or subject of threats and he told the court it was not. A Summary of Facts was read and tendered as Exhibit 1. The applicant admitted and the convicted him as charged.
   
7. The court proceeded to pass sentence and in the course of delivering its ruling found that the particulars of the offence for which the applicant was charged should have been preferred under section 155 and not 156 of the Penal Code Cap 17 as filed in court.
   
8. In a written ruling dated 14 June 2007 and after considering this issue of whether the charge was fatally defective or not, the trial magistrate vacated the guilty plea and the conviction and entered a not guilty plea and ordered that the matter be heard before another magistrate. Despite this ruling, the matter came before the same magistrate on 15 July 2008 and he proceeded to hear the matter again, contrary to his earlier ruling dated 14 June 2007.
   
9. On the essential element of the age of the complainant, the trial magistrate asked the applicant: ‘Do you admit knowing that the girl was under age?’ The applicant answered. ‘I do not admit knowing the girl was under 13 years.’
   
10. The trial magistrate than adopted a curious approach in proving an essential element of the offence and that is to impute knowledge of the age of the victim to the applicant on the basis of the fact that they were from the same village. This coupled with the nature of certain questions being asked by the trial magistrate to the applicant, was unfair and indicated bias on his part.
    
11. Despite the above, the trial magistrate went ahead and found the applicant guilty as charged, and sentence him to 2 years 4 months imprisonment.
    

Applicant’s Submission

12. The essence of Mr Sen’s submission is procedural unfairness suffered by the applicant at the hand of the court, both in terms of procedure adopted and in the delay in hearing the substantive matter. A summary of Mr Sen’s submission follows:
    
    1. There were factual finding of the trial magistrate which were not in the summary of facts admitted to by the applicant, which he considered in his ruling. Reference was made by the trial magistrate to ‘The girl became pregnant and the matter was reported to the police’. He submits there was no evidence before the court to support this finding.
       
    2. The charge was defective and should have resulted in an acquittal. The trial magistrate admitted as much but instead of acquitting the applicant simply change the plea to a not guilty plea and ordered that the matter be heard anew before another magistrate;
       
    3. Unfairness in that the same trial magistrate having ruled that the matter be heard before another magistrate, ignored that ruling and unfairly proceeded to hear the case again;
       
    4. Guilty verdict was entered by the trial magistrate when the summary facts did not disclose an element of the offence charged against the applicant; that of the age of the victim.
       
13. Mr Sen was rightly disturbed by the lack of concern exhibited by the trial magistrate in this case that has led to the improper conviction of the applicant with the resulting loss of his employment and the unfavourable impact it has had on him and his family.
    

State Submission

14. Mr Korovou when asked by the court to respond to the matters raised by Mr Sen on behalf of the applicant above conceded [ correctly in my view] that the applicant have indeed suffered due to the unfairness in the procedure followed by the trial magistrate. He stressed in particular the fact that after his ruling on 14 June 2007, the trial magistrate was functus officio and in fairness he should not have continue to adjudicate in this case again. His failure was fatal in this case. It amounted to miscarriage of justice.
    

Court Determination

15. Leave to appeal is granted and the appeal is also allowed for the reasons briefly discussed below.
    
16. The first reason is that having determined that the charge was defective in his ruling of 14 June 2007, the issue that confronted the court was whether there should be a retrial or an acquittal in the interest of justice. He did not address this at all. Instead the trial magistrate simply ordered a retrial by vacating the guilty plea. He justified this on the basis the guilty was equivocal.
    
17. Having reviewed from the court record, the circumstances in which this guilty plea was given by the applicant, I concluded that the plea was unequivocal. What the applicant pleaded guilty to was a charge preferred under the wrong section of the Penal Code. The guilty plea was unequivocal but to a wrong charge. That in law is a fatal defect and not mere irregularity: Christian Skipper v R [1979] HAA 70/78. The applicant should have been given the benefit of the error because it is entirely the fault of the prosecution and which has caused prejudice to him.
    
18. In this regard, it is also noted that the charge was substituted from the original charge preferred under section 156(1) to a section 155(1) of the Penal Code. This substitution being unilaterally done by the trial magistrate. There was no application made by the prosecution for this substitution to be made. The trial magistrate did not say on what basis was it acting upon. Nor is there any explanation why the amendment was made. In Abel Hassan & Anor v R (1973) 19 FLR 11, where the particulars of the charge was altered that it represented an entirely different offence and the accused not given a new opportunity to plead, the proceeding were declared null and void on appeal.
    
19. The second reason: is that after his ruling on 14 June 2007, the trial magistrate was functus officio. Having made a ruling which involved the assessment of evidence in the case, he could not in fairness sit again to determine the same issue. Justice requires that it be heard by another magistrate. He acknowledged that in his ruling, but he did not follow it. His failure to follow his own ruling that the trial of this matter be before another magistrate, his later action may be seen as bias on his part and was a miscarriage of justice. This was an error in procedural fairness. It cannot stand.
    
20. The third reason is that the trial magistrate did not draw the attention of the applicant to the proviso of section 156(1) of the Penal Code Cap 17. In Mikaele Bari v R [Labasa Crim Appeal No: 11/75] the then Grant CJ referred to another case Kuboutawa v R [ Labasa Crim Appeal No: 2/75] where he discussed the requirements of section 156(1) of the Penal Code cap 17, thus:
    

‘I might add for the guidance of Magistrates that, in the case of an unrepresented accused, any statutory defence should be brought to his attention. For instance, on a charged 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’

21. This was not followed by the trial magistrate in this case. In the above cited case the conviction was set aside and the appellant set free forthwith.
    
22. The proof of the age of the victim in the face of clear statement of the applicant that he did not know the victim was below 13 years of age should have been proven by evidence by a birth certificate and some identity evidence. A birth certificate alone without identity evidence is insufficient. In Rogers (1914) 10 Cr App R 276, at 278 Reading CJ said:
    

‘Some evidence is necessary to connect the girl with the certificate, and that evidence is entirely absent, although it could obviously be given by the mother’.

23. In this case, the trial magistrate had the birth certificate but there were no evidence to connect the victim to it. He simply imputed to the applicant that he must have known the fact that the victim was under 13 years, because they live in the same village with the victim and he knew the victim was in class 6. This is a fatal mistake and one which on its own justifies the quashing of the conviction entered in this case: Alipate Karikari v The State 45 FLR 310. This was improper.
    
24. Where a trial magistrate is faced with the question of insufficiency of evidence on the age of the victim, the following guideline statements of Grant CJ [then was] in Viriki v R (Crim App No: 79/72) should be followed and also followed in Sigaimata v State 44 FLR 55, at page 57:
    

‘It is an undesirable practice to accept as established by a guilty plea facts which constitute an essential ingredient of the charge of which the 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 statutory proof of the girls age should be furnished. A medical certificate is desirable, not only to establish tat sexual intercourse did in fact take place, but for the purpose of sentence it may well be relevant whether the girl in question was previously a virgin or was sexually experienced.’

25. The above approach was not followed in this case and it is therefore difficult to understand how the guilty plea could have been accepted in those circumstances.
    
26. In the light of the above, I would allow the appeal against sentence and conviction. In the special circumstances of this case, I am satisfied that the conviction and the sentence be set aside.
    
27. I have considered whether the interest of justice requires a retrial and I have concluded that the applicant should not be retried and I therefore acquit him of the charge he was charged with. He must be released from prison forthwith.
    

ORDERS

28. I make the following orders:
    
    1. Leave to appeal is granted;
       
    2. Appeal succeeds;
       
    3. Conviction and sentence of the applicant is set aside;
       
    4. The applicant is acquitted of the charge he was charged with in this case;
       
    5. The applicant must be released from prison forthwith.
       

Isikeli Mataitoga
JUDGE

At Labasa
12 March 2009.