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State v Liano [2014] FJMC 30; Criminal Case 548.2010 (11 March 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No. 548/2010

STATE

VS

MORISI LIANO

For Prosecution : Ms. Latu for the State
For Accused : Ms. Vulimaidave for the Legal Aid

Judgment

1. The accused is charged in this Court for following offence.
   

Statement of Offence (a)

DEFILMENT OF CHILD BETWEEN 13 AND 16 YEARS OF AGE :- Contrary to Section 156(1) (a) of the Penal Code, Act 17.

Particulars of Offence (b)

MORRISI LIANO, between the 1st day of July 2009 and the 30th day of September 2009 at Suva in the Central Division had unlawful carnal knowledge of KARALAININ LEWAGASAYAWA, a girl being aged 15 years and 11 months.

2. The accused pleaded not guilty for this charge and the trial was conducted on 02nd October 2013 and 17th February 2014. Upon the conclusion of the trial both parties opted to file closing submissions which they filed accordingly.
   
3. For the prosecution’s case the 04 witnesses were called and for the defence the accused gave testified. I will first consider the evidence presented by both parties.
   
4. PW1 was Karalani Lewagasasayawa and she said in 2009 she was in Wainadoi with her parents. At that time she was working in Ramsami factory. One day when she was going to factory she met the accused and later they had sex. At that time she was 15 years old. After few days again he had sex with her. Few days later when she was going to bath again the accused met her and had sex with her. PW1 identified her birth certificate and this was tendered as PE-01. She also identified the accused in the Court.
   
5. In cross examination PW1 said on the first day she told him she was 15 years old and she did not consent for the sex.
   
6. PW2 was Dr. Alinita who medically examined PW1 on 19th December 2009 and the report was marked as PE-02.
   
7. PW3, Natalie Chutte was the IO as well as the interviewing officer of the accused and the cautioned statement was marked as PE -03.
   
8. PW4, WDC 2296 Sainimili was the charging officer and the charge statement was marked as PE -04.
   
9. The State closed their case after that and the defence made an application for no case submission which was disallowed by this Court on 29th October 2013.
   
10. Thereafter the accused was explained about his rights pursuant to section 179 of the Criminal Procedure Decree and he opted to give sworn evidence.
    
11. The accused said he knew PW1 and asked her to be her boyfriend which she agreed. After one week they met in the playground and had sex. Few days later again they had sex in the playground and later whilst she was going for a bath again he met her and had sex. The accused did not know she was underage and thought she was around 20 years old from the way she was talking and because she was working. In cross examination the accused admitted that he did not ask her age. The defence did not call any other witnesses and closed their case also after calling this witness.
    
12. In the closing submission filed by the State the learned State counsel submitted that through the evidence the State has managed to prove the charge beyond reasonable doubt and therefore the accused should be convicted for this charge.
    
13. Now I would consider the relevant law in this case. The accused is charged with one count of Defilement contrary to section 156 (1) (a) of the Penal Code, Cap17.
    
14. Section 156(1) (a) reads :
    

“.-(1) 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”

.”

15. In State V Vueti [2013] FJHC 310; HAC 159.2012s9 27 June 2013) His Lordship Justice Temo said that the elements of this offence are :
    

[a] The accused

[b] Unlawfully

[c] Had sexual intercourse with the female complainant

[d] Who was or above 13 years and under 16 years old.

16. In Woolmington v DPP (1935) AC 462 the Court 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".
    

17. In State V Driti [2013] FJHC 644; Criminal Case005.2012 (26 November 2013) in his summing up His Lordship Justice Madigan stated :-

"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."

18. When a person is charged for this kind of offence he can take the following defence.
    

"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.".

19. The defence has to prove this on balance of probabilities and this been defined by 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)

20. After considering the relevant law now I would analyze the evidence presented by both parties.
    
21. From the evidence I find that there is no dispute about the accused having sex with the complainant. Also from the birth certificate the State has proved that at that time PW1 was below 16 years old.
    
22. Therefore only issue to be decided in this case is if the defence has managed to raise any evidence about the statutory defence in the trial.
    
23. The accused in his evidence in chief said that he thought PW1 was around 20. This was based on her manner of talking and also because she was working. But in cross examination he admitted that he never asked her about her age. I find this is not convincing as according to the accused they were having an affair.
    
24. Also I am prepared to accept Pw1's testimony regarding her telling the accused about her age.
    
25. After considering all the evidence I am satisfied that the State has managed to prove all the elements of this offence beyond reasonable doubt.
    
26. Therefore I find the accused guilty for this offence and convict him accordingly.
    
27. 28 days to appeal.
    

11th March 2014

H.S.P.Somaratne
Resident Magistrate, Suva