High Court of Fiji

[3] Prosecution Counsel and the accused have both addressed you on the facts but once again you need not adoptr views oews of the facts unless you agree with them. You wake into account all of the evidence both oral and documentumentary. You can accept some of what a witness says and reject the rest. an accept all of what he orhe or she says and you can reject all. As judges of the facts you are masters of what to accept from the evidence.

[4] Yst judge udge this case solely on the evidence that you heard in this Court room. There will be no more evidence, you are not to speculate on what evidence there might have been or should have been. You judge the case solely on what you have heard and seen here.

[5] The court room is no place for sympathy or prejudice. You must judge this case solely on the evidence produced in this Court and nothing else.

[6] I am not bound by your opinions but I will give them full weight when I decide the final judgment of the Court.

[7] It is most important that I remind you of what I said to you when you were being sworn in. The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you. If however you are sure that the accused had sexual intercourse with Lusia, knowing and believing that she was under 16, then you will find him guilty.

[8] The accused in this case is charged with two counts of defilement. You must look at each of these two counts separately: if you happen to be of the opinion that he is guilty of one of the counts does not necessarily mean that he is guilty of the other.

[9] Most unusually in this case each of the two defilement charges that the accused faces is charged under different law. The reason for that is that between the dates of the first charge (January 2010) and the date of the second charge (May 2010) the criminal law in Fiji changed. The offence still remains the same but the legal sections referred to in the charges are different.

[10] So what then is defilement in our law?

Defilement is defined in our law as having sexual intercourse or attempting to have sexual intercourse with any person who is under the age of 16 years. It is a separate offence and the two offences charged here are such, that a person having sex with another under 16 but 13 and over is guilty of defilement. The law says that it is a defence to the charge that the accused had cause to believe and did in fact believe that the person was of or above the age of 16. Lastly, it is no defence to the charge that the young person consented to the acts of sex.

[11] So to prove this case so that you are sure, the prosecution in this case must prove the following elements:

(i) That it was this accused

(ii) That he had sexual intercourse with Lusia

(iii) That Lusia was under 16 years of age but older than 13.

[12] You might find that you have no trouble with these elements. You have seen Lusia's birth certificate and you have heard that the accused confessed to Police that they did have sex. Lusia identifies the accused and he does not deny that it was him. However the matter does not stop there. It is a defence to the charge of defilement if the accused can prove to you that he thought that Lusia was at least 16. He does not have to prove to you beyond reasonable doubt that he had that belief- it is a lesser test. All he has to do is to show you that it was more probable than not that he thought Lusia was over 16. So if you think that it was probable that the accused thought she was at least 16 you will find him not guilty of each count.

[13] The evidence was short, you only heard it yesterday and today so I will not spend too much time on it except as to remind you of the important relevant parts. Lusia told you that in January and May 2010 she was only 15 years old. On the 21st January she was at the accused house with her aunty. Her aunty went away and the accused forced her into the bedroom where he pulled down her panties and raped her. She said that she was again at his house on the 3rd May- they were alone. She fell asleep, woke up; the lights were off and the accused was on top of her having sex with her. She was medically examined and when her Mum noticed her body changes, she told Mum that her boyfriend had impregnated her. We then heard the Policeman read out the cautioned interview of the accused. We heard in that interview that the accused admitted having sex with Lusia; he never mentioned anything about her age and he denied that there was any force. If you think that the accused did give those answers and that they were true, then it is evidence that you can rely on.

[14] At the end of the prosecution case you heard me tell the accused what his options in defence were. He elected to give evidence. He, having made that choice means that I must direct you that he does not have to give evidence and the fact that did does not relieve the burden on the State to prove their case beyond reasonable doubt. The accused does not have to prove anything. But now that he has given evidence it is for you to assess and give weight to it as you think fit.

[15] The accused told us that he had sex with Lusia, not once but 18 times, all times on her instigation. He had known her for 12 years since she was a child, they lived together in the same settlement for all those years. He knew her mother and step-father and he says that he accepts responsibility for Lusia's baby. He says that Lusia told him she was 17 and he believed it because "of her height and weight".

[16] I direct you Sir and Madam that the pregnancy or who the father of the baby is, are matters which are irrelevant to the charge and it should not be part of your deliberations. Nor is it relevant that Lusia may have consented to these sexual acts.

[17] So there you have it Sir and Madam. You will have no trouble in finding that the accused had sex with Lusia and you will have no trouble finding that she was under 16 years old. What you must decide is this. Did the accused have reasonable cause to believe and did in fact believe that she was 17 as he says? If you don't think that he could or did believe that, then you will find him guilty. If you think that he did believe that and that he had reasonable cause to believe that, then you will find him not guilty of each charge.

[18] That is all I wish to say to you. You will be required each of you to give me a separate opinion on each count. Your possible verdicts are guilty, or not guilty. It would be better if you could both be agreed but that is not strictly necessary. Let one of my staff know when you are ready and I will reconvene the Court. You may now retire.

[19] Any redirections Counsel?

Paul K. Madigan

Judge

At Suva,

26 April, 2012.