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State v Lal [2013] FJMC 418; Criminal Case 1513.2009 (12 December 2013)

IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Criminal Case No: - 1513/2009

STATE

V

PRASHNEEL LAL

For Prosecution: Ms. DarshaniKumar (DPP)
For Accused: Ms. PriyaLal (Legal Aid)

JUDGMENT

1. The accused has been charged with the following offences
   

FIRST COUNT

Statement of Offence

Defilement of a girl between 13 and 16 years of age: contrary to Section 156 (1)(a) of the Penal Code Act. 17.

Particulars of Offence

Prashneel Lal on the 16th day of November 2009, at Suva in the Central Division had unlawful carnal knowledge of Geeta Anajali, a girl being aged 15 years and 10 months.

SECOND COUNT

Statement of Offence

Defilement of a girl between 13 and 16 years of age: contrary to Section 156 (1)(a) of the Penal Code Act. 17.

Particulars of Offence

Prashneel Lal on the 17th day of November 2009, at Suva in the Central Division had unlawful carnal knowledge of Geeta Anajali, a girl being aged 15 years and 10 months.

2. The accused pleaded not guilty to this charge and the trial was taken on 06/06/2013, 19/06/2013 and 05/09/2013.
   
3. For the prosecution's case 3 witnesses were called (victim, mother and a police officer) and for the defence the accused gave sworn evidence.
   

SUMMARY OF EVIDENCE

4. PW1 was Geeta Anjali in her evidence she said that in 2009 she got to know the accused through a friend. She told him that she was a student and she was 16 years old when she called him. On 16 November 2009 she met the accused at the Suva Bus Stand and from there they went to a hotel. There they had sex 5-6 times and she went back home next morning.
   
5. In cross examination she was shown her statement to the police and asked the reason why she said she was 16 years to the Court. In re-examination she said her date of birth is 26/01/1994 and she told the accused she was 15 years old and a Form 4 student.
   
6. PW2 was ShashiSingh, the mother of PW1 and through her the birth certificate of PW1 was tendered as EX-01.
   
7. PW3, PC Kaki was the Interviewing Officer and through her the Interview was marked as EX-02.
   
8. By consent the charge statement and the medical report were tendered as EX-03 and Ex-04 respectively.
   
9. The prosecution closed the case after marking these documents and the Court found a case against the accused. The accused was given his rights pursuant to section 179 of the Criminal Procedure Decree and he opted to testify in this case.
   
10. The accused in his evidence said he got to know PW1 through a radio program and after two weeks they met. She told him her name and the class but failed to mention about the age. She was similar in size to the accused and he though she was 18 to 19 years old. They had sex and the accused was not aware that she was 15 years old at that time.
    
11. In cross examination he said he asked her about the age but she did not tell that and they had an affair. The accused also said both agreed to stay overnight. He also said at that time PW1 was in Form 4 and when he was in Form 4 he was 15 years old. But he assumed that PW1 may have repeated the exams.
    
12. The defence also closed their case after leading the evidence of the accused and both parties opted to file closing submissions.
    
13. In the submission filed by the State they submitted that they have managed to prove all the elements in this offence and the accused has no reasonable cause to believe she was at or above 16 years at that time.
    
14. The learned counsel for the Defence in her closing submission submitted that the State has failed to prove this charge beyond reasonable doubt and at that time accused had reasonable belief that she was above the age of 16 years.
    
15. Before analyzing the evidence I will briefly consider the law that would be applicable in this case.
    

The LAW

16. The accused has been charged with 02 counts of Defilement of a Girl between 13 and 16 years of age contrary to section 156(1) (a) of the Penal Code.
    

Section 156 (1) (a) provides:

Any person who-

(a) Unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any girl being of or above the age of thirteen years and under the age of sixteen years

"A person commits a summary offence if he or she commits an assault occasioning actual bodily harm."

Based on the particulars of the offence the elements of the offence are:

1. The accused
2. Unlawfully and carnally knows or attempt to have unlawful carnal knowledge

100. Of any girl being of or above the age of thirteen years and under the age of sixteen years.
     

17. In landmark case of Woolmington v DPP (1935) AC 462 Viscount Sankey LC observed that'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law".
    

18. InState v RODNEY AUGUSTINE FONGHAC 300 OF 2011S His Lordship JusticeTemo in his summing up defined the burden of proof and standard of proof in criminal trial as follows :-

"As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.

The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty."

19. In Miller V Minister Of Pension [1947] 2 AER Lord Denning explained the 'proof beyond reasonable doubt' as 'That degree is well settled It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of the doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor, which can be dismissed with the sentence "of course it is possible but not in the least probable", the case is proved beyond reasonable doubt, but nothing short of that will suffice.'

20. Section 156 also has a proviso which is a statutory defence for a person who is charged for this offence . The proviso states:"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.(emphasis added) "
    
21. A burden imposed on the defence has to prove on balance of probabilities (section 61 of the Crimes Decree) .
    
22. The classic definition of proof on a 'balance of probabilities' is that of Denning J in Miller v Minister Of Pensions [1947] 2ALL ER 372, at p.374:' If the evidence is such that the tribunal can say:" We think it more probable than not", the burden is discharged, but, if the probabilities are equal, it is not.'( Blackstone's CRIMINAL PRACTICE 2011 at p.2346)
    

Analysis of the Evidence

23. From the evidence I find that there is no dispute about the elements in this offence. PW1 and the accused both admitted that on that day they had sex.
    
24. From the birth certificate the Court is satisfied at that time she was below 16 years old (15 years and 10 months). This document was marked as Ex-01.
    
25. I believe the only issue to be determined in this case is whether the accused had a reasonable cause to believe that PW1 was above 16 years old at that time.
    
26. PW1 in her evidence said when they talked in the phone first time she told him she was 16 years old. But in re- examination she said the accused knew she was 15 years old and in Form 4 at that time.
    
27. The accused in his evidence never mentioned that PW1 told him that she was 16 years old. In evidence in chief he said he thought she was 18 to 19 years old and also she never mentioned about her age to him.
    
28. He also said she was not a virgin and she had experience. When this was given the Court cautioned him about it . Section 130 of the criminal procedure decree is very clear that past sexual history of the complainant is not relevant in this kind of offence and I believe this should not have been mentioned in closing submission too.
    
29. In cross examination the accused admitted that he had known the complainant for nearly a month and they were talking and texting her before they met. He said they had a relationship and he knew only the date of her birthday which I find hard to believe.
    
30. He also admitted that he asked her about the age but she did not tell him. This shows even if PW1 has told him she was 16 years old at the beginning (as suggested by the defence in the closing submission) he did not believe that. Otherwise I do not see any reason for the accused to inquire about her age.
    
31. The accused also admitted that he knew she was in Form 4 at that time. He also admitted he was 16 years old when he was in Form 4. But he assumed that she would have repeated the classes. But he never inquired about this from her. I do not see a person can have a reasonable cause to believe a thing by assuming things.
    
32. From all the evidence in this case I do not see accused could have any reasonable belief PW1 was above the age of 16 years old. And also there is no evidence to show that the accused believe this also.
    
33. Therefore I decide that the prosecution has proved this charge beyond reasonable doubt.
    
34. I find the accused guilty for these two counts and convict him accordingly.
    
35. 28 days to appeal.
    

12 December 2013

H.S.P.Somaratne
Resident Magistrate, Suva