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Sami v State [2004] FJCA 54; AAU0046.2002S (26 November 2004)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU0046 OF 2002S
(High Court Criminal Action No. HAA 0035 of 2002L)

BETWEEN:

MITHUN VIMAL SAMI
Appellant

AND:

THE STATE
Respondent

Coram: Barker, JA
Tompkins, JA
Scott, JA

Hearing: Monday, 22 November 2004, Suva

Counsel: Mr. H. A. Shah for the Appellant
Mr. K. Tunidau for the Respondent

Date of Judgment: Friday, 26 November 2004

JUDGMENT OF THE COURT

Introduction

[1] The appellant was charged with defilement contrary to s 156 of the Penal Code in that he had unlawful carnal knowledge of a girl then aged fourteen years and two months. Following a trial in the magistrates' court, he was sentenced to two and a half years imprisonment.

[2] He appealed to the High Court against conviction and sentence. In a judgment delivered by Prakash J on 4 October 2002, his appeal against conviction was dismissed. His appeal against sentence was allowed, the sentence of two and a half years being reduced to a sentence of eighteen months.

[3] The appellant has appealed against that judgment on the grounds that the Judge erred by upholding the conviction in the magistrates' court and by not reducing the sentence to a sentence less than eighteen months.

[4] This appeal is governed by s 22 of the Court of Appeal Act (Cap. 12):

22. (1) any party to an appeal from a magistrates' court to the Supreme Court may appeal, under this Part, against the decision of the Supreme Court in such appellate jurisdiction to the Court of Appeal on any ground of appeal which involves a question of law only (not including severity of sentence).

[5] Mr Shah accepted that, under that section, there was no right to appeal against sentence. The appeal against sentence was abandoned.

Facts

[6] The facts can be shortly stated. On 9 January 2002 six persons including the appellant and the complainant drove to Saweni Beach. When they arrived, the others left the car. The complainant remained in the backseat. It was her evidence that the appellant came to her in the backseat and after some preliminary advances, he had sexual intercourse with her.

[7] The evidence of the accused did not differ significantly from the evidence called by the prosecution except he says that he did not have sexual intercourse with the complainant when she was in the car or otherwise that evening.

[8] The complainant said that after these events she washed herself in water and they drove back to Marine Drive. She said she was ashamed to go home so she stayed with the church pastor and his wife. Shortly after, the complaint was made to the police.

The decision in the magistrates' court

[9] In his decision the Magistrate summarised the evidence of the complainant and the other witnesses for the prosecution. In referring to the evidence of the appellant he said:

"The accused admits the complainant's story except he says that he did not have sexual intercourse in car. . . He further stated that he thought the complainant was over 16 years old due to her size and built (sic) as his statutory defence. . . I have also considered defence evidence but reject it as not true. They confirm everything said by the prosecution witnesses except what implicates them in the crime. The accused denied sexual intercourse at the beach. However, he turns around and says the size and built (sic) of the complainant showed she was over sixteen years old. If he had no sex why would he talk of this statutory defence?

. . .

I also found this accused to blush and evade questions of prosecution on the relevant issues of sex. He did not seem to be a truthful witness."

[10] He concluded that the complainant's story was well corroborated by the witnesses in the case. He found that the prosecution had proved its case beyond reasonable doubt.

Section 156 of the Penal Code (Cap. 17)

[11] The issue in the High Court and in this Court centred on the proviso to subs (1) of s 156 of the Penal Code. Paragraph (a) of that subsection provides that a person is guilty of a misdemeanour who unlawfully and carnally knows any girl being of or above the age of 13 years and under the age of sixteen years. The proviso to the subsection provides:

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 sixteen years.

The judgment in the High Court

[12] In his judgment on the appeal to the High Court Prakash J referred to the proviso to s 156 (1) and to the relevant passages in the Magistrate's decision. He held that it was clear that the Magistrate did not "shut out the statutory defence." He found that the Magistrate did not believe the appellant regarding evidence the appellant had given that he did not know about the complainant.

[13] The Judge went on to say that it would have been ideal if the Magistrate had specifically rejected the appellant's belief in clear words in his judgment. But that did not suggest that he did not address it and reject it. Prakash J concluded that there was no basis for disturbing the conviction.

The onus of proof

[14] The first question of law that arose out of counsel's submissions to this Court was, where there are circumstances that could give rise to the proviso applying, on whom does the onus of proof rest?

[15] It was the case for the prosecution that, in those circumstances, it was for the person charged to make it appear to the court, on the balance of probabilities, that he had reasonable cause to believe and did in fact believe that the girl was over sixteen years of age.

[16] It was the case for the appellant that, in those circumstances, the onus rested on the prosecution to prove, on the balance of probabilities, that the person charged did not have cause to believe and did not in fact believe that the girl was over sixteen years of age.

[17] In support of his submission, counsel for the appellant referred to the judgment of Pathik J in Nalasewa v The State Crim App No 080 of 1999, where he had adopted the following passage from the judgment of Grant CJ in Sat Deo Shiri Wasto s/o Chandar Deo and Reginam Crim App No 1/77:

"It is quite clear from this wording that an accused does not have to be satisfied beyond reasonable doubt that the girl is of or above the age of sixteen; it is only necessary for him to believe it on reasonable grounds. Moreover, it is not incumbent upon an accused to satisfy the court beyond reasonable doubt that he had reasonable cause to believe and did in fact believe that the girl was of or above the age of sixteen; nor does he have to satisfy the court on the balance of probabilities. The use of the word "defence" in the proviso does not connote any shifting of the burden of proof. The proviso refers to no more than an evidential burden so that, for, an accused to fall within the exception created by the proviso, there need only be some evidence, adduced either by the prosecution or by the defence, sufficient to raise a reasonable doubt."

[18] Although he does not say so expressly, we take the former Chief Justice to be holding in this passage that where there are circumstances that could make the proviso applicable, the onus of proof rests on the prosecution to establish beyond reasonable doubt that the defence does not apply.

[19] The issue was considered by the Court of Criminal Appeal in England in R v Simmons (1931) 23 Cr App R 25. At that time the comparable proviso was of substantially the same effect as the proviso in s 156 (1). It was in s 2 of the Criminal Law Amendment Act 1922:

Provided that in the case of a man of 23 years or under the presence of reasonable cause to believe that the girl was over the age of sixteen years shall be a valid defence on the first occasion on which he is charged with an offence under this section.

[20] The Court of Criminal Appeal held at 27:

"With regard to carnal knowledge of a girl under the age of sixteen, in order to make to good the defence set up of "reason to believe" the burden of proof rests upon the appellant."

[21] This same issue was considered by the Court of Appeal in New Zealand in R v Perry and Pledger [1920] NZLR 21. At that time the comparable proviso was contained in s 208 (2) of the Crimes Act 1908. It was again to the same effect as the proviso in s 156 (1). It provided:

Provided that it shall be a sufficient defence to any charge under this section if it is made to appear to the jury before whom the charge is brought that the accused was under the age of twenty-one years at the date of the commission of the offence, and had reasonable cause to believe that the girl was of or over the age of sixteen years.

[22] Hosking J, delivering the judgment of the Court, said at 23:

"There can be no doubt that the proviso to s 208 (2) of the Crimes Act 1908 throws on the accused the burden of establishing the defence which the proviso allows - that is, the burden of making it appear to the jury that the accused had reasonable cause to believe that the girl was of or over the age of sixteen years. This implies that the accused must also make it appear to the jury that he did in fact believe upon reasonable cause that the girl was of or over the age of 16 years. Such has always been the construction placed by our courts on this proviso . . ."

[23] We see no reason why the proviso in s 156 (1) of the Penal Code should not be applied in the same way as the comparable provisions have been applied in the United Kingdom and in New Zealand. Accordingly we answer the first question of law by holding that where there are circumstances that could give rise to the proviso applying, the onus of proving, on the balance of probabilities, that the person charged had reasonable cause to believe and did in fact believe that the girl was over sixteen years of age, rests on the person charged.

The decision in the magistrates' court

[24] The second question of law advanced on behalf of the appellant was whether the Magistrate, in his decision, had reached a decision on whether the appellant had established the defence in the proviso. We doubt that this can correctly be considered a question of law only as required by the section, but are prepared to answer it.

[25] Is clear from the passages in his decision we have set out above, that the Magistrate had the defence in mind. He found that the appellant was not truthful. He was also aware of the apparent contradictions in the appellant's evidence when he said that he did not have sexual intercourse with the complainant while at the same time attempting to invoke the defence in the proviso. Further, he had the opportunity of observing the complainant in the witness box and forming his own view on whether there was reasonable cause for the appellant to believe that she was over the age of sixteen years. She was fourteen years and two months, well under sixteen. In Perry and Pledger (above) the Court of Appeal held that the appearance of the complainant in the witness box was evidence to which the court - in that case the jury - can have regard in deciding whether there was reasonable cause for the belief.

[26] We agree with Prakash J that it would have been preferable for the Magistrate, in his decision, to have made an express finding on whether the appellant had discharged the onus of proof resting on him under the proviso. But we have no doubt that the Magistrate had reached the conclusion that the defence had not been established. We answer the second question accordingly.

The result

[27] The answers to the questions of law are in [23] and [26]. As a consequence of those answers, the appeal against the decision of the High Court dismissing the appeal against conviction is dismissed.

Barker JA
Tompkins JA
Scott JA

Solicitors:
H.A. Shah Esq. Lautoka for the Appellant
Office of the Director of Public Prosecutions, Suva for the Respondent