IN THE HIGH COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 10 OF 1993

Between:

SURESH CHAND
s/o Siujan
Appellant

- and -

THE STATE
Respondent

Mr. A. Kohli for the Appellant
Mr. Ian Wikramanayake for the State

REASONS FOR DECISION

On the 24th September 1993 this Court quashed the conviction and ordered that the fine if paid is to be refunded to the appellant. I then said that I would give my reasons later and this I now do.

The appellant was charged before the Labasa Magistrate's Court with the offence of defilement of an idiot or imbecile contrary to section 156(1)(b) of the Penal Code Cap. 17.

The Particulars of Offence in the charge reads as follows:-

SURESH CHAND s/o SIUJAN on 19th day of March, 1992 at Nabouwalu, Bua in the Northern Division attempted to have unlawful carnal knowledge of SEREANA DAINIMATI a person suffering from severe subnormality.

The appellant pleaded not guilty to the charge but after trial was on the 17th March, 1993 found guilty and convicted and sentenced to a fine of $200 and in addition was sentenced to six months' imprisonment which was suspended for one year.

He now appeals against his conviction on five Grounds (the last ground having been added on the day of the hearing) which are as follows:-

(a)	That the Learned Trial Magistrate erred in law and in fact in finding that the complainant was suffering from severe subnormality.

(b)	That the Learned Trial Magistrate erred in law and in fact in finding that the Petitioner knew at the time of the commission of the offence that the Complainant was suffering from severe subnormality.

(c)	That the Learned Trial Magistrate erred in law and in fact in accepting the Medical evidence of PW3 Dr Vakawaletabua as evidence of the fact that the Complainant was suffering from severe subnormality.

(d)	That the Learned Trial Magistrate erred in Law and in fact in failing to give reasons for either believing or disbelieving the material witnesses.

(e)	That the learned trial Magistrate misdirected himself as to onus of proof that lay on the prosecution.

The State also appealed; its appeal is against sentence in that it was manifestly lenient and wrong in law.

The learned State Counsel stated at the commencement of the hearing that there are in fact two Appeals. The first, by the Appellant is against conviction and the second, by the State is against sentence and if the Appellant succeeds then the question of sentence does not arise.

At the conclusion of the submissions by the learned counsel for the Appellant the learned State counsel conceded the appeal by the appellant. He said that the learned experienced Magistrate was overwhelmed by emotion because of the nature of the case and strayed from the "narrow path of law and justice" and was "aided and abetted" in this by the "eloquent and emotional" submission of the prosecuting counsel.

For the reasons the learned State counsel gave he concluded that it would be dangerous to allow the conviction to stand and that it should be set aside.

I therefore do not find it necessary to set out the details of the case, but shall confine myself to the material defects in the evidence and the judgment with reference to the grounds of appeal.

Briefly the facts of the case, which are not in dispute, are that on the 19th March, 1992 Corporal Suresh (the accused) together with Police Constable Isireli and others was travelling from Labasa to Nabouwalu in a police van. Two of them got off at Vinod's shop while the others including the accused continued on and stopped at Kasim's shop where the complainant got into the van. A short distance away the accused and the complainant got off the van but before that the two were sitting close together in the back seat and holding hands. The next day on 20th March 1992 she was examined by a doctor; she had eight superficial haematoma on both sides of the neck and back. There were no internal or external injuring in the vaginal region. She was a virgin at the time of the examination.

I shall now deal with Grounds (a) and (c)

The section under which the accused is charged reads as follows:-

"156 (1)	Any person who -

(a) ......

	Defilement of idiots or imbeciles

(b)	Unlawfully and carnally knows or attempts to have unlawful carnal knowledge of any female person suffering from severe subnormality under circumstances which do not amount to rape but which prove that the offender knew at the time of the commission of the offence that the woman or girl was a person suffering from severe subnormality, is guilty of a misdemeanour, and is liable to imprisonment for five years, with or without corporal punishment".

In section 4 of the Penal Code "severe subnormality" is defined as follows:-

"severe subnormality" means a state of arrested or incomplete development of mind which includes subnormality of intelligence and is of such a nature or degree that the patient is incapable of living an independent life or guarding himself against sources of exploitation or will be so incapable when of an age to do so".

The prosecution has not discharged the burden of proving that the complainant is a person suffering from severe subnormality as defined. In this regard I agree with both counsel on their submission.

The evidence is overwhelming against holding that the complainant suffers from "severe subnormality".

It is clear from the evidence that although the complainant is deaf and dumb, according to the accused, she has been working at Kasim's shop (which is about 200 metres from the Police Station) at Nabouwalu; she has been seen on the road and at the market. The accused had been stationed at Nabouwalu for 4 years and had seen her in that area (page 37 of the Record). The Learned Magistrate has not rejected this aspect of the accused's evidence.

There is clear evidence that although she is deaf and dumb, she is able to communicate with the help of her sister MERE SEULA but the doctor says that he does not know her present state of mind.

The learned counsel for the Appellant has referred to numerous statements from the complainant's own evidence to show that she does not suffer from "severe subnormality": she knows the accused, recognised the accused, recognizes the vehicles, has a sense of direction, knows names of places, knows difference between standing and sitting, knows who controls the steering wheel, able to know what is inside and outside, also said accused gave her nothing, able to comprehend whether she is naked or not naked, knows what is Police Station. 

She is able to say whether accused is a good or bad man; is capable of understanding wrong and right even by way of punishment from her father (page 29 of Record). In the case of a person suffering from "severe subnormality" there would not have been any need for her father PW6 to smack her to correct as counsel says and with that I agree.

There are other statements in the evidence of other witnesses to which reference was made in support of these grounds of appeal and I need not set them out here suffice it to say that the evidence does not establish that the complainant suffers from "severe subnormality".

I agree with the learned State counsel that to establish "severe subnormality" the prosecution went to the extent of introducing hearsay evidence of the doctor when the Doctor said that "patient is a known congenital mentally handicapped person with inability to talk well. She can't speak well." He referred the Court JOHN HAMILTON HALL (1988) C.A. 86 Cr. App. R. p. 159 in which no question arose as to whether the accused `knew' of the complainant's condition as the accused was the principal of the college where the complainant used to be which was the home for mentally defective. The doctor's knowledge of the complainant's condition is clearly hearsay.

In the outcome from the evidence before the Court without a shadow of a doubt this complainant is quite capable of leading an independent life and guarding against "exploitation". Hence she is not a person suffering from "severe subnormality" as defined in the Penal Code. The learned Magistrate evidently has not directed his mind in this direction by analyzing the evidence in this regard and making a specific finding.

The Appellant therefore succeeds on grounds (a) and (c).

I shall now deal with the rest of the grounds of appeal together but without specific reference to the grounds referred to hereabove.

It is for the prosecution to prove that the accused "knew at the time of the commission of the offence" (underlining mine) that the complainant was suffering from "severe subnormality".

Unlike the English legislation on the matter, the burden of proof does not shift to the accused. It rests throughout upon the prosecution.

Both counsel agree that the learned magistrate misdirected himself as to the onus of proof and this is evident from the following paragraphs of his judgment at pages 89 and 91 of the Record:

"Now I come to consider the defence available to the accused as contained in the penal section. The section requires the offender to know at the time of the commission of the offence that the woman or girl was a person suffering from severe subnormality.

Hence if the accused can prove that he did not know at the time of the commission of the offence that the woman was suffering from severe subnormality it is a sufficient defence to the charge and the accused can not be convicted. If the accused is to reply on this defence he has to establish on a balance of probability that he did not know or had no reason to suspect that the girl was a person suffering from severe subnormality.

As established by English authorities on this point the approach to the problem viz establishing a balance of probability that the accused did not know or had no reason to suspect that the woman was suffering from severe subnormality has to be a subjective and not objective. In other words we have to see whether the accused himself under the circumstances did not know or had no reason to suspect that the woman was suffering from severe subnormality. We have to take into account and consider the whole of evidence on the matter such as the girl's condition appearance conversation and the like."

The learned Magistrate mentions "established English authorities on this point". He is clearly referring to REGINA v HUDSON (1966) QBD P. 448 (although he has not said so) because he has used the very words of the headnote to that case in the above-quoted passage from his judgment and has applied it to this case.

The English provision on the matter under the Sexual Offences Act 1956 as substituted by the Mental Health Act 1959 is different from our S. 156(b).

The relevant English section in s.7 provides that "(2) A man is not guilty of an offence under this section because he has unlawful sexual intercourse with a woman if he does not know and has no reason to suspect her to be defective" (underlining mine) whereas our section provides "the offender knew at the time of the commission of the offence" (underlining mine) that the woman or girl was a person suffering from severe subnormality.

The learned Magistrate has made the burden of proof shift to the accused and has thereby misdirected himself. The accused I hold is not required to prove anything or raise any defence. It is for the prosecution to prove that the accused "knew" (underlining mine). The burden of proof is throughout upon the prosecution.

The misdirection in itself is sufficient to dispose of the appeal in favour of the appellant. The learned Magistrate had proceeded to deal with the case after misdirecting himself. He has narrated quite fully the evidence but makes very few specific findings of fact; he has not evaluated the evidence and has not given his reasons for disbelieving the accused and his witnesses. Because of what he says at p.91 of the Record (3rd paragraph) in his judgment he concludes that on his own evidence the accused admitted she is not "normal". He did not analyse the evidence adduced by the accused to show that he did not know but it was not up to him to prove anything. The learned State counsel complained that there was no basis for the recall of the complainant's father; it was illegal he said and the learned Magistrate "should not assist one side or the other". I entirely agree with these submissions and uphold them.

The appellant therefore succeeds on the remainder of the grounds in this appeal.

In the circumstances of this case, for the reasons given hereabove, the appeal was allowed. The conviction was therefore quashed and the sentences were set aside and the fine if paid was to be refunded to the appellant.

On application by the State leave to withdraw the cross-appeal was granted and it was therefore dismissed.

D. Pathik
Acting Puisne Judge

At Suva
28th October, 1993
HAA0010D.93S