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Seruvatu v The State [1991] FJHC 8; HAA0004.1991 (30 January 1991)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

Criminal Appeal No. 4 of 1991

Between:

LEDUA SERUVATU
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. J. Prakash for the Respondent

JUDGMENT

The appellant was convicted on his guilty plea to an offence of Defilement of a Girl Between the Age of 13 years and 16 years contrary to Section 156(1) (a) of the Penal Code. The particulars of offence averred that the complainant was aged 15 years 25 days on the date of the offence.

In mitigation the appellant is recorded as having said:

"The girl came to me at home. I did not know of her age then. She is a big girl. It was through her elder sister this matter came to court. I ask for forgiveness and leniency. Complainant has had previous sexual relationship before me."

In sentencing the appellant the learned trial magistrate correctly referred to Section 156(3) of the Penal Code which laid down that consent is no defence to a charge of Defilement however in doing so the learned trial magistrate appears to have ignored the unchallenged assertion of the appellant that he did not know the complainant's age and that she was a big girl which raises prima facie grounds for a defence to the charge under the proviso to Section 156(1)(a).

Recently this Court has set aside the convictions of 2 appellants convicted of Defilement in which their pleas in mitigation raised a possible defence to the charge. These were in Cr. App. Nos. 105 of 1990 Rajen Kumar v. The State and upon the State's concession in Cr. App. 15 of 1991 in Saimone Kete v. The State.

In the present case under appeal the mitigation of the appellant which has been set out above also raises prima facie evidence in support of the statutory defence contained in the above-mentioned proviso.

Learned State Counsel very correctly and fairly concedes that he is unable to support the appellant's conviction albeit that this is only an appeal against sentence.

In all the circumstances the appellant's conviction must be and is hereby quashed and mindful that he has already served 6 months of his prison sentence, I make no order for retrial.

(D.V. Fatiaki)
JUDGE

At Suva,
30th January, 1991.