IN THE HIGH COURT OF FIJI
WESTERN DIVISION AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Appeal No. HAA 98/2007

BETWEEN:

ONISIVORO VOLAVOLA
APPELLANT

AND

THE STATE
RESPONDENT

Appearances: 
Mr S. Sharma of Counsel for the Appellant
Ms J. Cokanasiga of Counsel for the State

Hearing Date: 25 August 2008
Date of Judgment: 23 October 2008

JUDGMENT

Penal Code (Cap 17), ss. 149, 150, 156 (1)(a); Criminal Procedure Code (Cap 21), ss. 206 (1) (2); Rape; Defilement; Unrepresented accused; Appeal against conviction and sentence; ‘Consent’ in rape; Definition of rape; Force & submission; Relationship between accused and complainant; Accused as authority figure; Accused in role of father; ‘Don’t tell’ as complicity or threat; Consent not connoted by failure to offer physical struggle; Lack of resistance does not connote consent; Consent vs submission; Submission not consent; Statutory defence re ‘mistake’ as to age; Onus on accused to raise basis for statutory defence; Onus on prosecution to disprove statutory defence; On the evidence, no obligation to put statutory defence; Charges on two separate and distinct offences; Caution statement – unrepresented accused; Admissions in caution statement; Rape – admissions; Defilement – admissions; Extracts from caution statement; Caution statement to be read as whole; Composition of Summary; Law reform: need for definition of ‘no consent’; Need for statutory age differentials vis-à-vis ‘mistake’ as to age; Children - lack of consent to include use by adult of adult sexual techniques to obtain submission 

Abzal Shaheeb v. The State (CrimApp No. 46 of 2007, 24 May 2007)
Akuila Kuboutawa v. Reginam (Labasa CrimApp No. 2/75)
Ali v. State [2008] FJCA 30; AAU0014.2008 (11 July 2008)
Ali v. The State [2001] FJHC 123; Haa0083.2001 (21 March 2001)
Alipate Karikari v. The State (Labasa CrimApp No. 110 of 1999, 6 December 1999)
Anania Nawaqa & Ors .v The State (Misc Actn No. HBM0014.2000L, 15 March 2001)

B (A Minor) v. Director of Public Prosecutions [2000] UKHL 13, [2000] 2 AC 428
Baleitamavua v State [2007] FJHC 77; HAA 107.2007 (29 November 2007)
Banditt v. The Queen [2005] HCA 80
Barry Jenners v. Reginam 18 FLR 61
Bobby Hibbard, Chief Master Sergeant US Air Force (No. 02-0231, CrimApp No. 34371, United States Court of Appeals for the Armed Forces, 6 February 2003)
‘Brk’ & Ors v. The Queen [2001] WASCA 161 (21 May 2001)
Buli v. State [2001] FJCA 13; AAU0003.2000S (24 May 2001)
Buli v. State [2002] FJCA 53; AAU0003.2002S (14 November 2003)

CTM v. The Queen [2008] HCA 25 (11 June 2008)
Chand v. State [2008] FJHC 9; HAC138.05 (18 January 2008)
Cokanisiga v. The State [2005] FJCA 57; AAU0013.2005S (11 November 2005)
Director of Public Prosecutions v. Joalme Pita (1974) 20 FLR 15
Director of Public Prosecutions v. Ram Sam Naidu (CrimApp No. 34 /84 FCA)
Duve v. The State [2002] FJHC 63; Haa0028.2002s (22 May 2002)

He Kaw The [1985] HCA 43, (1985) 157 CLR 523
Holman v. The Queen [1970] WAR 2
Ilaitia Karoiciri v. R. (CrimApp No. 43 of 1979)
Kasim v. State [1994] FJCA 25; Aau0021j.93s (27 May 1994)
Karikari v. The State [1999] 45 FLR 310; Labasa CrimApp No. 110 of 1999 (8 December 1999)
The King v. Forde [1923] 2 KB 400
Kumar v. The State [2006] FJCA 57; AAU0048.2006 (10 November 2006)

MPD v. The State of Western Australia [2008] WASC 57 (14 March 2008)
Marawa v. The State [2006] FJCA 48; AAU032J.2005 (28 July 2006)
Metui Sabobki and Peni Qalo v. State (Labasa CrimApp No. 17/2001)
Michael Iro v. Reginam (1966) 12 FLR 104 (CA)
Mikaele Bari v. Reginam (Labasa CrimApp No. 11/75)

Naciri v. The State [2004] FJHC 323; HAA063.2003B (25 March 2004)
Nanovo v. The State [2001] FJHC 53; Haa0041j.2001s (1 August 2001)
Naidu v. State [2007] FJCA 4; AAU0056.2005S (9 March 2007)
Norberg v. Wynrib [1992] 2 SCR 226; (1992) DLR (4th) 449; [1992] 4 WWR 557; (1992) 68 BCLR (2d) 29 … 
Pemble v. The Queen (1971) 124 CLR 107; [1971] HAC 20

The Queen v. Acre Tukorehu Keremete [2003] NZCA 237 (23 October 2003)
The Queen v Turner [2007] NZCA 427 (1 October 2007) 
Question of Law (No 1 of 1993) (1993) 59 SASR 214

R v. DD [2007] VSCA 317 (19 December 2007)
R. v. K. [2001] UKHL 41, [2002] 1 AC 462 
R. v. VN [2006] VSCA 111 (29 May 2006)
R. v. Audet [1996] 2 SCR 171, La Forest J. said:
R. v. Banditt [2004] NSWCCA 208 (4 August 2004)
R. v. Chadderton (1908) 1 CrApp Rep 229
R. v. David Ram Singh (CrimApp No. 226 of 1990, VCCA, 18 December 1990)
R. v. Day (1841) 173 ER 1026 
R. v. Deblasis [2007] VSCA 297 (2 December 2007)
R. Ewanchuk [1999] 1 SCR 330
R. v. Harding (1938) 26 CrApp Rep 127
R. v. Howard [1965] 3 All ER 684
R. v. Jobidon [1991] 2 SCR 714
R. v. Khan [1990] 1 WLR 815 (26 January 1990)
R. v. Lang (1975) 62 CrimApp Rep 50
R. v. Lock (1872) LR 2 CRR 10
R. v. M (ML) [1994] 2 SCR 3
R. v. March (1844) 1 Car&K. 496, 174 ER 909
R. v. Maes [1975] VR 541
R. v. Matoka [1987]1 NZLR 340
R. v. Mueller [2005] NSWCCA 47
R. v. Nichol (1807) Russ&Ry 131, 168 ER 720 (CCR)
R. v. O’Connor (1998) 123 CCC (3d) 487:
R. v. Olugboja [1981] 3 All ER 443
R. v. Ramsey (2001) 152 CCC (3d) 84; (2001) 41 CR (5th) 298; (2001) 203 SaskR 53; 2001 SKC 8 (CanLii)
R. v. Tavete [1988]1 NZLR 428
Rex v. Golathan (1915) 84 LJKB 788

Senikudra v. The State [1988] FJHC 5; (1988) 34 FLR 114 (18 November 1988)
Sheik Abzal Shaheeb v. State (CrimApp No. 046 of 2007L, No. 74 of 2007-L, 24 May 2007)
Siga v. The State [1996] FJHC 50; Haa0029d.96b (16 September 1996) 
State v. Amato [1995] FJHC 3; HAA0002j.1995b (10 February 1995)
State v Fong Toy [2008] FJHC 223; HAA003.2008 (15 September 2008) 
State v. Marawa [2004] FJHC 337; HAC0016S.2003S (22 April 2004) 
State v. Marawa [2004] FJHC 338; HAC0016T.2003S (23 April 2004)
State v. Racule [2007] FJHC 15; HAC43.2004 (11 May 2007)
The State v. Penisi Senikarawa (High Court Suva, Crim Case HAC0017.2002S, 20 May 2003)
The State v. Samu Seru (Suva Crim Case No. HAS0021.2002S)
State v. Tamani [2003] FJHC 168; HAC0007J.2003S (4 June 2003)

Tamani v. State [2005] FJCA 4; AAU0025.2003S (4 March 2005)
Tukana v. The State [1990] FJHC 1; Haa0064j.89s (2 January 1990)
Vakaciwa v. The State [1996] FJHC 32; Haa0023j.96s (2 August 1996)
Wagenaar v. The Queen [2000] WASCA 325 (3 November 2000)

1.	Charges & Penal Code Provisions

On 6 March 2007, Mr Onisivoro Volavola appeared in the Magistrates Court at Sigatoka before the Resident Magistrate. He was unrepresented. 

1.1	Charged with two counts, Mr Volavola pleaded guilty to each. He was sentenced in respect of each count. He now appeals against conviction and sentence. 

1.2	(a)	Counts & Penal Code (Cap 17) Provisions: The first count in respect of which Mr Volavola pleaded guilty was:

FIRST COUNT
Statement of Offence (a)

RAPE: -Contrary to section 149 and 150 of the Penal Code (Cap 17).

Particulars of Offence (b)

ONISIVORO VOLAVOLA, between the 1/1/2005 and 1/12/2005 in Naqueledamu, Cuvu, Sigatoka in the Western Division, unlawfully had carnal knowledge of a girl namely LITIA KAULIAGI, without her consent.

1.3	The Penal Code (Cap 17) provisions relating to the first Count, rape, read as follows:

Definition of rape

149. Any person who has unlawful carnal knowledge of a woman or girl, without her consent, or with her consent if the consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband, is guilty of the felony termed rape.

Punishment of rape

150. Any person who commits the offence of rape is liable to imprisonment for life, with or without corporal punishment.

1.4	The second Count in relation to which Mr Volavola pleaded guilty reads:

SECOND COUNT

Statement of Offence (a)

DEFILEMENT OF A GIRL BETWEEN 13 AND 16 YEARS OF AGE: - Contrary to section 156(1) (a) of the Penal Code (Cap 17)

Particulars of Offence (b)

ONISIVORO VOLAVOLA, between 1/1/2006 and 31/12/2006 at Naqueledamu, Cuvu, Sigatoka in the Western Division, unlawfully had carnal knowledge of a girl namely LITIA KAULILAGI of the age of 14 years and 1 month.

1.5	The provisions relating to the second count, defilement, provide:

Defilement of girl between thirteen and sixteen years of age

156.-(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; …

is guilty of a misdemeanour, and is liable to imprisonment for *five years, with or without corporal punishment:
*Amended by Ordinance No. 12 of 1969

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.

(2) No prosecution shall be commenced for an offence under paragraph (a) of subsection (1) more than twelve months after the commission of the offence.

(3) It is no defence to any charge under paragraph (a) of subsection (1) to prove that the girl consented to the act.

1.6	(b) Sentence & Appeal: On that same day, 6 March 2007, Mr Volavola was sentenced on his guilty plea: 

•	On the first Count, rape – 8 years imprisonment;

•	On the second Count, defilement – 3 years imprisonment –

Sentence on the second Count to be served concurrently with that on the first Count: Court Record, p. 9

1.7	Mr Volavola originally lodged an appeal in relation to sentence only. Amended grounds were filed on 23 August 2007 appealing against both conviction and sentence, then on 24 July 2008 the grounds now before this Court were filed, also appealing conviction and sentence: Court Record, pp. 1-5; Court File, 28 July 2008

1.8	For Mr Volavola it is said that albeit the convictions were entered on a guilty plea, matters of law arise to be determined by the High Court. In this respect, Abzal Shaheeb v. The State (CrimApp No. 46 of 2007, 24 May 2007) is cited in support. There, His Lordship Justice Govind granted leave to appeal against conviction ‘as it raised matters of law’. In the present appeal, the matters of law raised in the amended grounds are important. The question is, however, whether Mr Volavola’s plea was equivocal. If not, he has no basis for an appeal against conviction. This does not, of course, affect his appeal against sentence..

1.9	There are four grounds of appeal, including Mr Volavola’s original ground as to the ‘harsh and excessive’ nature of the sentence. In this judgment, Ground 3, relating as it does to Count 2, defilement, is considered before Grounds 1 and 2. These grounds, relating to the ‘rape’ charge, Count 1, are interconnected, so are considered next. Sentence is dealt with last. I have also considered procedural matters which, albeit abandoned in the final Grounds before the Court, were originally raised for Mr Volavola. I have done so as it appears to me that it is, again, important that these be considered taking into account the seriousness of the offences.

2.	Grounds of Appeal – Ground 3: Count 2 (Defilement)

It is convenient to deal with this ground first:

(3)	THE Learned Trial Magistrate failed and/or neglected to bring to the attention of the unrepresented Appellant the Statutory defence available under section 156(1) of the Penal Code.

2.1	(a) Law re Exculpatory Defence: The law as to defences such as that under section 156(1) is clear. In an assessor or jury trial, the Judge’s obligation to raise such a defence in the charge to the jury or summing up arises if, and only if, at least some facts exist in the accused’s case or the material put by the accused before the Court, arising in cross-examination or in some other way, that give rise to the possibility that the defence may be open to the accused. Once this is established, then it is for the prosecution to negative such defence. The onus of proof is never on the accused in such case. The onus of proof always lies with the prosecution. However, that onus arises only as follows.

2.2	The first instance or circumstance is where the accused or the accused’s case puts forward a material basis for the defence. As it is sometimes said, an evidentiary onus lies with the accused and, once that evidentiary onus is satisfied, the court must ensure that the defence is made known to the assessors or arbiters of fact (jury), and the prosecution is bound to discharge its onus of proof by addressing the facts and the defence so as to satisfy the court beyond a reasonable doubt that the offence is proven, taking into account the defence. In the absence of a jury, or where there are assessors or a magistrate or judge sitting alone, ultimately the judge or magistrate must address the question whether the statutory defence is disproved by the State. 

2.3	The second is that if matters are before the Court which support the possibility of such a defence (that is, the accused has not put them forward but they exist within all the material before the Court nonetheless – say, through cross-examination, or a caution interview), then in that case too the onus lies upon the prosecution and the Court must explain the defence and its possible application in summing up. Where there is no jury or there are assessors or no assessors (a magistrate or judge sitting alone), then the Court itself must take into account the material together with the prosecution’s success or otherwise in proving beyond a reasonable doubt all the elements that must be proven – as to the defence as well as the substantive elements – in making its determination. 

2.4	The Court will be equally remiss in not addressing the defence if the accused has raised material providing some basis for it, or if such a basis is revealed in the course of the trial or – if there is no trial because an accused has pleaded guilty – in the whole of the material before the Court.

2.5	(b) Authority re Exculpatory Defence - Fiji: In Nanovo v. The State [2001] FJHC 53; Haa0041j.2001s (1 August 2001) Her Ladyship Justice Shameem addressed this question. There, as here, the charge was defilement of a girl between 13 and 16 years of age contrary to section 156(1)(a) of the Penal Code. 

2.6	The basis of the appeal against conviction and sentence in Nanovo v. The State was:

•	that the victim was ‘big in built’ and he thought she was over 18 years;

•	that the victim was not a blood relative;

•	that there was an error as to the victim’s date of birth;

•	that the victim was not a virgin;

•	that the victim should not have been believed; and

•	that the sentence was harsh and excessive: at 2

2.7	There, the young woman said she had agreed to her uncle’s request that she engage in sexual intercourse, albeit she had told her aunt she had been raped ‘because she was scared after the incident’. Consent was not relevant on the charge of defilement. It was relevant on the question of credibility. After dealing with that aspect, Shameem, J. moved on to whether Mr Nanovo had a defence as to belief in age, to have been considered by the Magistrate.

2.8	On this, Her Ladyship said:

On the question of the age of the victim, the victim herself said she did not know if her uncle knew her age but said that he had lived in the house for 6 months, and knew she was still at school. [Mr Nanovo] did not raise the defence that he reasonably believed that she was over the age of consent, during the trial. The learned Magistrate was entitled to conclude that this was not in issue, give the relationship between [Mr Nanovo] and the victim, given the fact that he lived with the family, and given the fact that the victim was still a school girl: at 3

2.9	Upon the foregoing, Shameem, J. dismissed that ground and went on to dismiss the further grounds as to conviction, saying it was:

… clear from the record that the victim was under the age of 16 at the time of the offence, that that she considered him her uncle. This was not disputed at the trial. The question of whether or not she was a virgin is irrelevant both for conviction and sentence: at 3

2.10	(c) Authority re Exculpatory Defence - General: Ample authority exists in other jurisdictions supporting this approach. This was made clear in the Australian High Court cases CTM v. The Queen [2008] HCA 25 (11 June 2008) and He Kaw The [1985] HCA 43, (1985) 157 CLR 523. The former confirmed the latter:

Questions of mistake need to be considered at a criminal trial only if the issue is alive. As Dawson, J. pointed out in He Kaw The:

[T]he burden of providing the necessary foundation in evidence will in most cases fall upon the accused. But it is not inconceivable that during the case for the prosecution sufficient evidence may be elicited by way of cross-examination or otherwise to establish honest and reasonable mistake or to cast sufficient doubt upon the prosecution case to entitle the accused to an acquittal. The governing principle must be that which applies generally in the criminal law. There is no onus upon the accused to prove honest and reasonable mistake upon the balance of probabilities. The prosecution must prove his guilt and the accused is not bound to establish his innocence. It s sufficient for him to raise a doubt about his guilt and this may be done, if the offence is not one of absolute liability, by raising the question of honest and reasonable mistake. If the prosecution at the end of the case has failed to dispel the doubt then the accused must be acquitted.

As these reasons will later show, no question of mistake was sufficiently raised at the trial of the appellant to require consideration of that issue by the jury …: at para [179], per Hayne, J.

2.11	In CTM v. The Queen the Australian High Court went on to look specifically at the ‘age defence’. At trial, the accused had faced an explicit difficulty in putting his case to the jury. The defence was ‘not that the [accused], at the time of having intercourse, mistakenly believed that the complainant was over 16, but a denial that intercourse occurred at all’:

This contention may well reflect a serious forensic difficulty facing an accused who seeks to urge alternative answers to a charge of the kind now in question. It may be accepted that it is not always easy to argue that intercourse did not occur but that, if it did, the accused was mistaken about the age of the other person. But whatever may be the forensic difficulties in such an argument it was not shown that there was any legal reason why an accused could not assert both arguments … 

… in instructing the jury in a criminal trial, the trial judge must given such instructions as are necessary to ensure a fair trial of the accused. That is why, in Pemble v. The Queen [(1971) 124 CLR 107; [1971] HAC 20] this Court held that, whatever course counsel for an accused may take, the trial judge ‘must be astute to secure for the accused a fair trial according to law’ and to that end must ‘put to the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused’: at paras [191]-[192] (Hayne, J.’s emphasis)

2.12	This did not, however, avail the accused in CTM v. The Queen, for in all the circumstances, no obligation arose by which the judge was wrong in not directing the jury about mistake. That, said the Court, turned on whether an issue of mistake was raised at the trial. A statement had been made by CTM to the police that he ‘believed the complainant to be aged 16 years because she had told him this’. However, no question about the alleged conversation or any communication she may have had with him as to her age was directed to her in her evidence. Not having raised this with her, it was:

… not then open to the appellant, relying only on which he had told police, to say that there was a live issue at the trial about his belief about the complainant’s age. To enliven the issue it was essential that the complainant be asked whether there had been a conversation of the kind described by the appellant to police. But not having raised the matter with her, it was not open to the appellant to say that the evidence elicited in the course of the prosecution's case sufficed to enliven the issue: at para [194]

2.13	Agreeing with Hayne, J. in CTM v. The Queen [2008] HCA 25 (11 June 2008) Gleeson, CJ, Gummow, Crennan and Kiefel, JJ. said:

An honest and reasonable belief that the other party to sexual activity is above the age of 16 years is an answer to a charge of a contravention of s. 66C(3). The evidential burden of establishing such a belief is in the first place upon an accused. If that evidential burden is satisfied, then ultimately it is for the prosecution to reprove beyond reasonable doubt that the accused did not honestly believe, on reasonable grinds, that the other party was above the age of 16 years …The evidential burden of establishing such a belief is on the accused …

We agree … that the circumstance that, in answer to a police question in the course of an interview, the appellant said that the complainant was 16 and that she had told him that was her age did not, in the light of the course of evidence, and absence of evidence, at trial, discharge the evidentiary burden involved in reliance on honest and reasonable mistake of fact as a ground of exculpation … 

Here, the fact that the defence at trial (unsupported by sworn evidence of the appellant) was that no intercourse occurred did not of itself make the point unavailable, especially where, according to the defence case, the only reason no intercourse occurred was that the appellant’s plans in that regard were interrupted. There was, however, nothing to support the honesty and reasonableness of a suggested belief in the truth of his out-of-court assertion that the complainant had told him what would have been a lie about her age. The complainant (who was in fact 15) gave evidence that she was in year 9 at school. The appellant, aged 17, was in year 11. In his record of interview the appellant, when asked by the police how old the complainant was, said ‘16’. When asked how he knew that, he said that the complainant had told him. He also said the complainant was, he thought, in year 10. It was not suggested to the complainant in cross-examination that she had lied to the appellant about her age or, for that matter, that she had discussed it with him.

Honesty and reasonableness are essential features of the mistaken belief relied upon as a ground of exculpation. The belief of the appellant was a matter peculiarly within his own knowledge, but he gave no sworn testimony about it. The reasonableness of his belief was based on an out-of-court assertion as to what the complainant allegedly said, but this was not put to her in cross-examination. A tentative out-of-court suggestion by the appellant as to the complainant’s class at school, which would have been consistent with his case, was shown by the evidence to be wrong. The evidential burden was not satisfied: at paras [35] [36] [38] [39]

2.14	Similarly the English House of Lords has held that the prosecution bears the onus of proving an absence of mistake of fact as to age in such offences, a basis for it having been raised: B (A Minor) v. Director of Public Prosecutions [2000] UKHL 13, [2000] 2 AC 428; R. v. K. [2001] UKHL 41, [2002] 1 AC 462 

2.15	So, too, in Aotearoa/New Zealand. There, the Court of Appeal has said as to evidential burden and onus of proof:

The burden of proof is on the prosecution, beyond a reasonable doubt. The only burden that lies upon the defendant is an evidential one: the evidence must include a ‘credible narrative’ that might lead a jury to entertain the reasonable possibility that a defence is made out: R. v. Matoka [1987]1 NZLR 340, at 344; R. v. Tavete [1988]1 NZLR 428, at 430 (Emphasis added)

2.16	Again in The Queen v. Acre Tukorehu Keremete [2003] NZCA 237 (23 October 2003), again citing R. v. Tavete [1988] 1 NZLR 42, the Aotearoa/New Zealand Court of Appeal said: 

We agree that a trial Judge is under a duty to direct a jury to consider all issues which are reasonably open to the jury on the evidence. That remains the case even where defence counsel has elected not to address on the issue in question. If there is a sufficient evidential foundation for a potential defence, and there is no relevant concession, the Judge must leave it to the jury to resolve: at para [12] (Emphasis added)

2.17	In the United States and Canada a like rule applies. As an example of its universality, not only does this apply in general law, but also in military law. For example, in United States v. Bobby Hibbard, Chief Master Sergeant US Air Force (No. 02-0231, CrimApp No. 34371, United States Court of Appeals for the Armed Forces, 6 February 2003) the issue was as to ‘honest and reasonable mistake of fact as to the victim’s lack of consent’, an affirmative defence to a rape charge: United States v. True 41 MJ 424 (CAAF 1995), at 426; United States v. Taylor 26 MJ 127 (CMA 1988), at 128. In Hibbard the Court said:

The military judge is required to instruct the court-martial panel on the availability and legal requirements of an affirmative defense, if ‘the record contains some evidence to which the military jury may attach credit if it so desires’: United States v. Brown 43 MJ 202 (CAAF 2000), at 205. An affirmative defense ‘may be raised by evidence presented by the defense, the prosecution, or the court-martial’ …

The defense theory at trial and the nature of the evidence presented by the defense are factors that may be considered in determining whether the accused is entitled to a mistake of fact instruction, but neither factor is dispositive: United States v. Jones 49 MJ 85 (CAAF 1998), at 91; Taylor 26 MJ, at 131 ‘Any doubt whether an instruction should be given should be resolved in favor of the accused’: Brown 43 MJ, at 189 (quoting United States v. Steinruck 11 MJ 322 (CMA 1981), at 324, at 3

2.18	As an example of the operation of the rule in the US, in Hibbard it was held that in the context, Mr Hibbard’s ‘cursory parting remark – that ‘at least’ the act was consensual – need not be viewed as anything more than an after-the-fact attempt to recast unpleasant circumstances in a favorable light. Cf United States v. Buckley 35 MJ 262 (CMA 1992)(appellant’s remark to victim that he thought she was awake did not raise mistake of fact as to consent)’:

In summary, the evidence cited by the defense in light of the totality of the circumstances, including the manner that the issue was litigated at trial, was insufficient to reasonably raise the issue of whether [Mr Hibbard] had a reasonable belief that TSgt W consented to sexual intercourse: at 10

2.19	(d) Unrepresented Accused Person – Authority: The question addressed by Shameem, J. in Nanovo v. The State [2001] FJHC 53; Haa0041j.2001s (1 August 2001) was considered more recently by the Court of Appeal in Ali v. State [2008] FJCA 30; AAU0014.2008 (11 July 2008). There, the additional question of the unrepresented accused was in issue. 

2.20	Mr Ali was acquitted of unlawful carnal knowledge of a girl without her consent. The State appealed on grounds that there was an error of law and fact, or alternatively an error of law. The error of law and fact was as to the finding that Mr Ali was not guilty, ‘contrary to the weight of the evidence’. The error of law was as to the failure to convict Mr Ali on another offence open to him in law: at 2

2.21	In the High Court, both grounds were upheld but ‘for reasons not clear in the judgment’ Mr Ali was then convicted of defilement under section 156(1), rather than rape (the original charge). Subsequent to his sentencing, Mr Ali appealed to the Court of Appeal. The relevant ground of appeal was:

That the learned Judge erred in law in quashing the acquittal by the Magistrate and convicting [Mr Ali] for defilement …. without allowing him the right to argue a defence under the proviso to section 156(1) of the Penal Code: at 2

2.22	Having reviewed the provisions of the Criminal Procedure Code (Cap 21) as to the powers of the High Court on appeals (ss. 176, 319), the Court of Appeal concluded that the High Court had the power to convict of the lesser, kindred offence ‘provided no injustice is caused to the accused’: at 4

The Court then went on to consider the statutory defence, saying that in the case of an unrepresented accused, ‘any statutory defence should be broght to his attention by the court’, citing Bari v. R (Labasa CrimApp No. 11/75) where Grant, CJ said:

I might add for the guidance of Magistrates that, in the case of an unrepresented accused, any statutory defence should be brought to his attention. For instance, on a charge of this nature, the accused should be informed that he is charged with unlawful carnal knowledge of a particular girl of a specific age and that he had no reasonable cause to believe that she was of or above the age of sixteen years; and the record should disclose that the charge was explained accordingly: at 4

2.23	Karikari v. The State [1999] 45 FLR 310; Labasa CrimApp No. 110 of 1999 (8 December 1999), relied upon by Mr Volavola in this appeal, was taken into account by the Court of Appeal in Ali v. State, the Court’s observing that in Karikari His Lordship Justice Pathik held that an available statutory defence ‘must be raised by the court even if not raised by an unrepresented accused’.

2.24	In Karikari, Mr Karikari admitted the offence, saying in mitigation he ‘thought she was over 16 years of age by looking at her built. She consented to have sexual intercourse. We had been having sexual intercourse before this for one year’. It was late at night, he was drunk and went to the kitchen where the young woman was cake baking. Sexual intercourse took place after Mr Karikari took her into the cassava patch and under a mango tree. Upon her returning home and his learning of this, her father reported it to police. A medical examination found she was not a virgin. 

2.25	Initially, State Counsel opposed the appeal saying ‘the girl is half his age’. When, however, ‘confronted by the Court about the proviso … not having been put to [Mr Karikari] he agreed that that should have been done. He then conceded the appeal’: at 2

2.26	Pathik, J. surmised that the Magistrate was ‘of the impression that because of [Mr Karikari]’s involvement in sexual intercourse with the complainant for [the] previous 12 months was sufficient compliance with section 156(1)(a)’. In this, however, ‘he fell into an error and the conviction cannot stand in view of the said proviso’: at 3

2.27	Mr Karikari’s attention was not drawn to the proviso, said His Lordship, and:

In any case on what he said in mitigation about his belief as to the girl’s age, the learned magistrate should have set aside the conviction and entered a plea of not guilty: at p 4

2.28	Pathik, J. ‘for these reasons and for this error’ allowed the appeal, setting aside conviction and sentence.

2.29	Further relied upon for Mr Volavola is Sheik Abzal Shaheeb v. State (CrimApp No. 046 of 2007L, No. 74 of 2007-L, 24 May 2007). There, Mr Shaheeb pleaded guilty to abduction and ‘Defilement of girl between 13-16 years of age namely 15 years & 9 months’. He was sentenced to 2 years imprisonment on Court 1 and 3 years on Court 2. 

2.30	As to the second Count, for Mr Shaheeb it was said that as he was unrepresented and ‘not acquainted by the Learned Trial Magistrate of the statutory defence under s. 156 of the Penal Code …. [and] … the girl was 15 years and 9 months [this] was a case where the proviso should have been put to [him]’: at 2

2.31	The State conceded the appeal, referring to Karikari v. State and Metui Sabobki and Peni Qalo v. State (Labasa CrimApp No. 17/2001). In the latter, as in the former, Mr Sabobki and Mr Qalo were convicted of defilement on their own guilty pleas, both were unrepresented, with the proviso not explained to them. 

2.32	In Sheik Abzal Shaheeb v. State His Lordship Justice Govind referred further to Mikaele Bari v. Reginam (Labasa CrimApp No. 11/75) – where Mr Bari had ‘engaged in sexual intercourse [with the young woman] on previous occasions and they were intending to get married’. There, the conviction was quashed, with sentence set aside ‘because the proviso … was not brought to his attention’. 

2.33	Govind, J. also referred to Akuila Kuboutawa v. Reginam (Labasa CrimApp No. 2/75), citing in particular His Lordship Chief Justice Grant’s reference to Bari, and his saying:

I might add for the guidance of Magistrates that, in the case of an unrepresented accused, any statutory defence should be brought to his attention. For instance, on a charge of this nature, the accused should be informed that he is charged with unlawful carnal knowledge of a particular girl of a specific age and that he had no reasonable cause to believe that she was of or above the age of sixteen years; and the record should disclose that the charge was explained accordingly: cited at 3

2.34	In these cases, ‘the convictions were set aside for’ this reason, His Lordship going on to quash and set aside similarly Mr Shaheeb’s conviction, ‘the proviso not having been brought to [his] attention the conviction cannot stand’: at 3

2.35	The question then was, he said, whether a retrial should be ordered:

In this case the girl was less than 3 months short of 16. She was intending to migrate to Australia and may well have done and carried on with her life. In any case [Mr Shaheeb] has served over 8 months in custody which equates to over 12 months after remission.
In the outcome, I acquit [Mr Shaheeb ] on this count as well: at 3-4

2.36	Although the point was not made, the evidence in Mikaele Bari v. Reginam (Labasa CrimApp No. 11/75) of previous engagement in sexual intercourse does not of itself indicate any belief in age, just as the intention to get married is equivocal – it could indicate a belief that the young woman was of an age to marry, or that she was not – hence having to wait. By very reason of its being equivocal, the proviso had to be drawn to attention so that a finding could be made by the court as to whether the whole of the evidence (the proviso’s being put having enabled Mr Bari to expound upon his belief or otherwise) discounted such belief or there was a reasonable doubt in favour of it.

2.37	In Ali v. State [2008] FJCA 30; AAU0014.2008 (11 July 2008), the Court of Appeal itself cited Grant, CJ’s stricture on advising accused persons of the proviso. Constituted by Pathik, Goundar and Powell, JJA. the Court said:

[Mr Ali] was unrepresented at trial and on appeal. Albeit he was caution interviewed for defilement, he was not specifically asked whether he knew the complainant to be under age or whether he believed her to be over the age of sixteen years at the time of sexual intercourse. At trial, the charge was rape. Before the commencement of the trial, the Magistrate enquired from the prosecution whether they were relying on an alternative charge of defilement to which the prosecution replied in the negative. At trial [Mr Ali] raised the defence of consent which was an available defence on the charge of rape. [He] succeeded in his defence and … was acquitted of rape.

On appeal, without any notice as to the nature of the charge, [Mr Ali] was convicted of defilement which is considered a kindred offence to rape.

Whilst the High Court had the jurisdiction to convict [Mr Ali] for defilement, the power could only have been exercised if it may have seemed just. [Mr Ali] … was led to believe by the prosecution that he only had a rape charge to defend, after an acquittal of that charge, was convicted on appeal for defilement without being notified of an available statutory defence. [This] lead[s] us to conclude that we cannot rule out the possibility of injustice being done to [Mr Ali]: at paras [15] [16]

2.39	The appeal was allowed, with a new trial ordered on the original charge of rape, its being left to the Director of Public Prosecutions to determine whether in all the circumstances the retrial would proceed.

2.40	In State v. Marawa [2004] FJHC 337; HAC0016S.2003S (22 April 2004), His Lordship Justice Gates dealt with the matter in his summing up in a trial in the High Court, before assessors, as follows:

[Mr Marawa] has had to conduct his defence without the assistance of counsel. Do not hold against him the fact that he may not have conducted that defence ably. Make allowances for him with that disability … 

[Mr Marawa] has addressed you and said he had sex with consent of the complainant. If you have doubts about the complainant’s evidence or disbelieve her when she said she was forced, the correct opinion to tender would be one of not guilty of rape but guilty of defilement of a girl between the ages of 13 and 16, an offence contrary to section 156(1) of the Penal Code.

By virtue of section 176 of the Criminal Procedure Code when a person is charged with rape and the court is of opinion that he is not guilty of that offence but guilty of an offence under one of a list of alternative offences, the relevant one of which her is the offence of defilement which I have just referred you to, the court may find the accused guilty of the alternative offence.

There is no suggestion that [Mr Marawa] thought this Form 3 student in his care was over 16 years of age, whilst consent is not a defence in law to a charge of defilement. The acts of unlawful sexual intercourse have been admitted I this trial.

To return to the information before you,. If you believe the complainant is telling you the truth about being forced and threatened and accept her explanation for not bringing this matter to light earlier, you may properly convict [Mr Marawa] on the 2 counts of rape. But if you believe the complainant gave her free consent, then your opinion will be not guilty of rape but guilty of defilement. These are matters for you to consider along with all my directions before you arrive at your opinions: at paras [28] [39]-[42]

2.41	In Marawa, the evidence was that the child was 14 years, ‘a schoolgirl from the interior living away from home, and just recently placed by her parents into the care of [Mr Marawa] and his wife for schooling in Suva’: at para [21] On appeal, the Court of Appeal was satisfied that all matters were fairly placed before the assessors and could ‘find no fault in the way in which any of the matters was dealt with’: Marawa v. The State [2006] FJCA 48; AAU032J.2005 (28 July 2006) at para [3]

2.42	(e) Unrepresented Accused - Principles: Taking the authorities as to defences of this nature and in particular the statutory defence here, and those applicable to unrepresented accused, the principles apply generally, as follows. 

2.43	An evidentiary onus lies upon the accused to put before the Court material giving rise to the prospect that the defence may apply. Where the accused is unrepresented, however, to ensure a fair trial – or ‘no injustice being done’( per Ali v. State [2008] FJCA 30; AAU0014.2008 (11 July 2008), an obligation lies upon the Court to make known, both in a language and in a way intelligible to the accused, that the defence exists and what it means or its application. Otherwise, an unrepresented defendant may not, simply out of ignorance of the law, take advantage of a defence open to her/him. At the same time, if there is material before the Court in direct opposition to such defence and which clearly discounts it, then an obligation upon the Court to raise the defence with the accused does not lie.

2.44	Hence, the following principles are applicable to accused persons who are unrepresented in cases where the charge is defilement:

A.	If there is material before the Court providing a basis for the statutory defence of mistake as to age, then the Court must consider it in the context of the statutory defence.

B.	In the absence of any material one way or the other, the Court must ensure that the accused has a proper opportunity to avail himself of the defence, so that if the accused has any basis upon which the defence may apply, then s/he can put it before the Court, for the Court’s consideration. 

C.	The obligation to advise an accused of the existence of the defence and explain the way in which the defence operates – that those seeking to avail themselves of it must put before the Court a basis for its application - does not apply if there is material before the Court which discounts the possibility of the defence’s applying to the accused. 

2.45	What, then, is the case as regards Mr Volavola?

2.46	(f) Material Before the Court – Summary and Mitigation Statement: The Summary of Facts submitted to the Court – which the Court Record confirms as ‘read out and explained to’ Mr Volavola, relevantly provides:

Between 1/1/2005 and 31/12/2005 … Onisivoro Volavola …. 37 years … had sexual intercourse with a girl namely Litia Kauilagi …, 14 years, a Form 3 student of Naqeledamu, Cuvu, Sigatoka, without her consent and also … had sexual intercourse with [her] on several occasions in 2006;

The complainant was born on 11/11/1992 and after one year her father left the mother. Since then she and another brother were brought up by their grandparents.

In the year 1993, the complainant’s father left the mother due to domestic dispute ... In 2003 [Mr Volavola] got involved with the complainant’s mother namely Naomi Voliyaki and all stayed in the same house. Naomi is a hairdresser in the village whereas [Mr Volavola] is working for Fijian Hotel in the Golf section as a carry boy.

In the year 2005, [Mr Volavola went to the bedroom of the complainant, woke her up and took her to his bedroom …

Again in the year 2006, [Mr Volavola] had sexual intercourse with the complainant …: Court Record, pp. 7-8 (Emphasis added)

2.47	Mr Volavola is recorded as saying in mitigation:

Ask for leniency. It is my first offence. Won’t repeat it. 37 years old. Married with no children. Carry boy at the Golf Course at the Fijian Hotel. Am from Naqeledamu, Cuvu. Am married to the victim’s mother. Will change my behaviour from now on: Court Record, p. 8 (Emphasis added)

2.48	Resting solely upon this material (none of which is disputed as to its facts), there was no obligation upon the Magistrate to put the statutory defence to Mr Volavola:

•	the complainant was born on 11 November 1992 – this means that in 2005 and 2006, when the offences were alleged to have occurred, she was thirteen and fourteen years of age;

•	Mr Volavola ‘got involved’ with the complainant’s mother in 2003 and ‘all stayed in the same house’ – hence, he commenced living with her and her mother when she (the complainant) was 10 years of age, or at the most 11 years of age (her birthday being at the end of each year); 

•	Mr Volavola was married to the complainant’s mother – at some stage after 2003 when he ‘got involved’ with her.

•	Mr Volavola lived with the complainant and her mother over a period of some three or four years including the years when the offences were alleged to have occurred.

2.49	This means that Mr Volavola lived in the family where from 2003 to 2006 the complainant had a minimum of two birthdays (and possibly three), and was undertaking schooling. Even accepting that in a village situation birthdays may not be celebrated as they are in urban areas, schooling and school attendance are crucial in locating age. These are proper inferences to be drawn from the facts before the Court, and they were facts provided by Mr Volavola or known to him.

2.50	In these circumstances, it is not feasible that Mr Volavola did not know that the complainant was below the age of 16 years. What material could Mr Volavola realistically put before the Court supportive of, or raising a basis in or for, the statutory defence? In not putting the statutory defence to Mr Volavola, the Magistrate was acting well within principle. No benefit would have been conferred upon Mr Volavola by the Magistrate’s doing otherwise. 

2.51	Mr Volavola could put nothing before the Court - if told of the statutory defence and having it explained to him by the Court - upon which a court could find he made a mistake about the complainant’s age, and that he believed she was 16 years. Mr Volavola was not deprived thereby of a fair trial, of a fair determination as to guilt or acceptance of his plea, nor of a just outcome.

2.52	(g) Material Before the Court – Caution Statement: It is not necessary, therefore, to go to the Caution Statement. An earlier ground of appeal (no longer pursued) was that the caution statement had not been put to Mr Volavola with his being provided with an opportunity to state whether or not the caution statement was voluntary. The State has in response said that the Magistrate did not in any event rely upon the caution statement.

2.53	Whatever the case in that respect, the Caution Statement supports the proposition that there was no material reasonably or realistically to be put forward by Mr Volavola in support of the statutory defence. Indeed, the opposite is the case. If the Caution Statement was voluntary – and there is no suggestion it was not – its terms refute any proposition that Mr Volavola has any basis upon which he could rely for the application of the proviso. Hence, again, this rules out any contention that there was error in the proviso’s not having been drawn to his attention and explained to him. 

2.54	Relevant questions and answers in the Caution Statement include:

Q16.	Are you married.
A.	Yes.

Q17.	To whom you are married to?
A.	Naomi Volavola.

Q18.	Are you legally married to Naomi Volavola?
A.	Yes.

Q19.	Do you have any children from Naomi Volavola?
A.	No, but Naomi had 2 children before marrying me.

Q20.	Are both of the children boys or girls?
A.	One girl and one boy.

Q21.	Where are both the children staying?
A.	With us.

Q22.	Whos[e] house is that you people are staying in?
A.	My house.

Q23.	When did you get married with Naomi Volavola?
A.	In 2003.

Q24.	How old are the children?
A.	The girl is 14 yrs and the boy is 13yrs.

Q25.	Are they both schooling?
A.	Yes.

Q26.	In which classes are they in?
A.	The girl is in Form 3 and the boy is in Form 2.

Q27.	Where they are schooling?
A.	Both are at Cuvu College.

Q28.	Do you know the names of both children?
A.	Yes.

Q29.	What are their names?
A.	The girls name is Litia and the boys name is Mesulame.

2.55	Mr Volavola thus volunteers that the complainant is under 16 years of age, and well under that age – 14 years as at the date of the caution interview, namely March 2007. Hence, a proper inference can be drawn that in 2005 Mr Volavola knew she was 13 years of age (up to November 2005) and that in 2006 she was 14 years. He further volunteers that she was in Form 3. Additionally, he volunteers the information that he knows a child of 13 years would be in Form 2.

2.56	Mr Volavola further imparts the information that the children were living together with him and their mother, in his house and that they are the children of his wife, and that they had been living with him in his house from 2003. 

2.57	If the Magistrate relied upon the Caution Statement (albeit for the purpose of addressing this ground he did not need to do so), then again Mr Volavola could put before the Court no reasonable or feasible material to provide a basis for the defence of mistake as to age. There was no obligation upon the Court to advise him of the proviso. It would have availed Mr Volavola nothing.

2.58	Had this been an assessor trial (or a jury trial) with assessors or jurors finding ‘for’ Mr Volavola on the basis of mistake of fact as to age, such finding would be perverse. Looked at in that light, too, then, it is clear that no requirement fell upon the Court to advise Mr Volavola of the proviso. There was no basis upon which the Court could nor should take it into account. The Court was not so obliged.

2.59	(h) Application of Authorities to Present Case: A perusal of the aforesaid authorities supports this position.

2.60	Mr Volavola’s circumstances are clearly distinguishable from those in Karikari v. The State [1999] 45 FLR 310; Labasa CrimApp No. 110 of 1999 (8 December 1999). In Karikari material before the Court satisfied the evidential burden and could have satisfied the proviso: he ‘thought she was over 16 years of age by looking at her built. She consented to have sexual intercourse. We had been having sexual intercourse before this for one year’. Mr Volavola said nothing at all akin to this, and could not do so. 

2.61	Mr Volavola’s circumstances are equally distinguishable from those in Sheik Abzal Shaheeb v. State (CrimApp No. 046 of 2007L, No. 74 of 2007-L, 24 May 2007). There, the basis of the proposition was that the ‘… the girl was 15 years and 9 months’. This was the basis upon which the Court said the proviso should have been put to Mr Shaheeb. There is a vast difference between 15 years and nine months – three months off the 16 year ‘age of consent’ - and 13 and 14 years – the ages to which the charges in Mr Volavola’s case relate. 

2.62	Albeit the matters put forward in Mikaele Bari v. Reginam Labasa CrimApp No. 11/75) as to ‘previous engagement in sexual intercourse’ and that ‘they were intending to get married’ gives no clear indication of a belief as to age, on the other hand it does provide some material upon which advice as to the proviso was necessary – because (for example) an intention to marry may support a belief in existence of the marriageable age. As earlier noted, it may not: the ambiguity requires the provision to be put and explained to Mr Bari. There was nothing akin to this in Mr Volavola’s case – rather the opposite.

2.63	As for Akuila Kuboutawa v. Reginam (Labasa CrimApp No. 2/75) and the requirement that an unrepresented accused person be ‘informed that he is charged with unlawful carnal knowledge of a particular girl of a specific age’, Mr Volavola was informed that he was charged with unlawful carnal knowledge of a particular girl of a specific age – 

•	this was stated in the summary read out in Court; and

•	these were facts he knew and any proper inference on the material before the Court was that he knew. 

2.64	Mr Volavola could not have been told by the Court that ‘he had no reasonable cause to believe that she was of or above the age of sixteen years’ for that would run directly counter to the material before the Court. Nor in my view could he sensibly have been asked whether he had a belief that she was over 16 years of age.

2.65	Mr Volavola’s circumstances are distinguishable from those in Ali v. State [2008] FJCA 30; AAU0014.2008 (11 July 2008), too. There, Mr Ali had no warning at all that he was to be sentenced for defilement by the High Court, and had nothing at all put to him in this regard in the High Court. Before the trial, ‘… he was caution interviewed for defilement, [but] not specifically asked whether he knew the complainant to be under age or whether he believed her to be over the age of sixteen years at the time of sexual intercourse …’ . At trial, the charge was rape and the defilement charge was not relied upon. Hence, again Mr Ali had no opportunity to put before the Court any matters or facts which might raise an evidentiary basis upon which the Magistrates Court would be obliged to consider the proviso. As he was not advised of the proviso (its being unnecessary in the circumstances to do so), he had no reason to provide any evidentiary basis and the Court had no reason to look for it. 

2.66	This fits within the principle set out above:

B.	In the absence of any material one way or the other, the Court must ensure that the accused has a proper opportunity to avail himself of the defence, so that if the accused has any basis upon which the defence may apply, then s/he can put it before the Court, for the Court’s consideration: at para [2.37] 

2.67	Mr Volavola’s situation is commensurate with that in State v. Marawa [2004] FJHC 337; HAC0016S.2003S (22 April 2004) where the child was the niece of the accused, Mr Marawa and had ‘recently’ come into his care and that of her aunt for schooling away from her home in the village. It fits squarely within Nanovo v. The State [2001] FJHC 53; Haa0041j.2001s (1 August 2001) and even more so. I say ‘even more so’ because in Nanovo the uncle (the accused) ‘had lived in the house for 6 months, and knew she was still at school’. Here, Mr Volavola not only ‘knew she was still at school’ – but the class she was in, knew her age (or if the summary of facts and plea in mitigation are all that are taken into account, did not contest this), and had lived in a household together with her and her younger brother from 2003 to 2006 (the date of the caution interview).

2.68	In dismissing the proposition that Mr Nanovo should have had the proviso put and explained to him, Shameem, J. concluded:

This ground is also dismissed. As to the other grounds it is clear from the record that the victim was under the age of 16 at the time of the offence, and that she considered him her uncle. This was not disputed at the trial …: at 3

2.69	A distinction is that Mr Nanovo pleaded not guilty and had the benefit of a trial (where ‘there was no substantive cross-examination of this witness by the accused and she maintained her story’). On appeal, Mr Nanovo said ‘he thought she was over 18’. In the present case, Mr Volavola pleaded guilty so that there was no trial and no opportunity for cross-examination. This does not, however, affect the matter here. On all the evidence, no cross-examination could have raised a proviso issue.

2.70	Her Ladyship’s decision in Nanovo is applicable here. This Ground must be dismissed. 

3.	Caution Statement

The Caution Statement figures in Mr Volavola’s appeal in respect of both conviction and sentence. Parts of it are particularly referred to in respect of Count 1 – rape – on the question of ‘consent’ or lack thereof. Further, ‘the circumstances of the offending’ are referred to in respect of Ground 4 of the appeal, namely the appeal against sentence. In Ananaia Nawaqa & Ors v. The State (Misc Action No. HBM0014.200L, 15 March 2001), an extensive review of the authorities and principles by His Lordship Justice Gates makes clear importance of a Magistrate’s having recourse to the Caution Statement before accepting as unequivocal the guilty plea of an unrepresented accused. 

3.1	Hence, before moving to Grounds 2, 3 and 4, I turn to the Caution Statement.

3.2	(a) Caution Statement: As noted, parts of Mr Volavola’s Caution Statement are relied upon by Mr Volavola in respect of his appeal. It is important to set out the Caution Statement in full. This makes easier the ascertainment of the basis of the grounds of appeal and whether they are well-founded better open to testing. 

3.3	The Record of Interview was taken on 5 March 2007 at Sigatoka Station in the Western District. It runs through 6½ handwritten pages, commencing at 18.30pm:

Q1.	In which language do you wish to be interviewed?
A.	In English.

Q2.	Can you read, written and understand English properly?
A.	Yes.

Q3.	What is your education standard?
A.	Form 6.

Q4.	Do you have any complain[t] to tell me before I commence your interview?
A.	No.

Q5.	Are you suffering from any sickness which will her your interview?
A.	No.

Q6.	Do you know about your constitutional rights under the Constitution of Fiji?
A.	No.

Q7.	Let me explain you that you have the right to consult a lawyer of your own choice and if you can’t afford one then can have one from the Legal Aid. You also have the right to consult your wife, family, friend, next of kin, any social or religious worker do you understand that now?
A.	Yes.

Q8.	Do you wish to exercise your rights which is just being explained to you now?
A.	I don’t want to engage a lawyer but my family will be coming in the evening.

Q9.	Will you now sign this as an acknowledgement that you wish to be interviewed in English and do not wish to exercise your rights now.
A.	Yes.

[Signatures of three appear – Mr Volavola, the interviewing officer, and accompanying officer]

I am Detective Constable 2204 Anoop and this man is Detective Corporal 1665 Beni and both of us are working in Crime Branch at Sigatoka Police Station and I am investigating a case where it is alleged that you between January 2005 and 4.3.07 at Nagelidamu Cuvu Village raped your stepdaughter Litia Kavilagi aged 14 yrs on several occasions inside your house. You are not obliged to say anything unless you wish to do so but what you say may be put into writing and given in evidence.

Q.10	Do you understand the above allegation?
A.	 Yes.

Q11.	Do you understand the nature of caution put to you?
A.	Yes.

Q12.	Will you now sign this as an acknowledgement that you fully understood the allegation and caution?
A.	Yes.

[Signatures of Mr Volavola and police officer’s initials]

Q13.	For the purpose of this case what is your correct name and address?
A.	My name is Onisivoro Volavola and I am staying at Nageledamu Cuvu Village Sigatoka.

Q14.	Are you working somewhere.
A.	Yes.

Q15.	Where do you work?
A.	At Fijian Hotel.

Q15.	What job do you do?
A.	Caddyboy for the golfers.

Q16.	Are you married.
A.	Yes.

Q17.	To whom you are married to?
A.	Naomi Volavola.

Q18.	Are you legally married to Naomi Volavola?
A.	Yes.

Q19.	Do you have any children from Naomi Volavola?
A.	No, but Naomi had 2 children before marrying me.

Q20.	Are both of the children boys or girls?
A.	One girl and one boy.

Q21.	Where are both the children staying?
A.	With us.

Q22.	Whos[e] house is that you people are staying in?
B.	My house.

Q23.	When did you get married with Naomi Volavola?
C.	In 2003.

Q24.	How old are the children?
A.	The girl is 14 yrs and the boy is 13yrs.

Q25.	Are they both schooling?
A.	Yes.

Q26.	In which classes are they in?
A.	The girl is in Form 3 and the boy is in Form 2.

Q27.	Where they are schooling?
A.	Both are at Cuvu College.

Q28.	Do you know the names of both children?
A.	Yes.

Q29.	What are their names?
A.	The girls name is Litia and the boys name is Mesulame.

Q30.	How many bedrooms do you have in your house?
A.	2 bedrooms[s].

Q31.	Can you tell us how you people are occupying your rooms?
A.	In one bedroom both kids are staying and the other myself and my wife.

Q32.	Do you drink grog?
A.	Not now but before I used to drink grog.

Q33.	Does your wife drinks grog?
A.	Yes. Nearly every night.

Q34.	Where your wife normally drinks grog?
A.	In the village.

Q35.	Normally what time your wife comes back after drinking grog?
A.	2 or 3 in the morning.

Q36.	What about the children where they stay when your wife goes out to drink grog?
A.	Most of the time the stay home with me.

Q37.	Do you like your step children?
A.	Yes, I do love them.

Q38.	It is alleged that you raped your step daughter Litia Kauilagi sometimes in year 2005. What you have to say about it?
A.	Yes, I had sexual intercourse with her.

Q39.	Did Litia Kauilagi agreed with you to have sex?
A.	No. She did not agreed to have sex.

Q40.	Did you forced her to have sex with you?
A.	Yes.

Q41.	Can you recall when you had sexual intercourse with Litia Kauilagi?
A.	I cannot recall the date and month but it was in 2005.

Q42.	Where was your wife when you had sex with Litia Kauilagi?
A.	She was out drinking grog.

Q43.	Where was Mesulame when you had sex with Litia?
A.	He was in the house sleeping.

Q44.	Can you tell how you forced Litia Kauilagi to have sex with you?
A.	I went inside their bedroom and saw both were sleeping so I Litia up and lie down on her bed beside her and started touching her breast and vagina and then I had sex with her.

Q45.	Did Litia Kauilagi stopped you that to have sex with her?
A.	No. 

Q46.	Who removed the clothes of Litia Kauilagi?
A.	I told her to remove her clothes.

Q47.	Was Litia Kauilagi frightened of you when you told her to remove her clothes?
A.	I think so she was frightened.

Q48.	Did you frightened Litia Kauilagi before having sex?
A.	No. 

Q49.	What happened after you touched Litia’s private parts?
A.	I pushed my prick inside her vagina.

Q50.	Did Litia Kauilagi cried when you pushed your penis into the vagina of Litia Kauilagi?
A.	No.

Q51.	What happened after you had sex with Litia?
A.	I stood up and went outside the house.

Q52.	Did you ejaculate inside the vagina of Litia?
A.	No.

Q53.	Why you didn’t ejaculate inside the vagina?
A.	I thought she might become pregnant.

Q54.	Did you tell Litia Kauilagi not to tell anyone after sex?
A.	Yes.

Q55.	What did you tell her?
A.	Not to tell anyone.

Q56.	Is that the only time you had sex with Litia Kauilagi?
A.	On that night I had sex only once with Litia.

Q57.	Did you had sex again with Litia Kauilagi?
A.	Yes.

Q58.	How many times you had sex with Litia Kauilagi?
A.	I think 3 times in 2005 and 2 times in 2006.

Q59.	Can you recall the dates when you had sexual intercourse later with Litia Kauilagi in the year 2006 and year 2006.
A.	I cannot recall the dates.

Q60.	Where you had sex with Litia Kauilagi the rest of the time?
A.	I had sex once in my bedroom and the rest of the time in her bedroom.

Q61.	Did all the time where you had sex with Litia Pushed your prick right inside the vagina?
A.	Yes.

Q62.	Before pushing your penis into the vagina of Litia Kauilagi what you used to do?
A.	I used to touch her breast and rub the vagina with my fingers and I also used to leak the vagina with my tongue and then she gets the feeling I pushed my prick inside.

Q63.	Who removed the clothes of Litia on all occasions you had sex with Litia Kauilagi?
A.	I always tell her to remove her clothes.

Q64.	It is also alleged that you used to show the naked pictures to Litia Kauilagi what you have to say about it.
A.	Yes – it is true.

Q65.	Is there anything else do you wish to say?
A.	I sorry for what I have done.

Q66.	Do you wish to read your statement?
A.	You read it for me [read back 20.00hrs – 20.00 hrs]

Q67.	Do you wish to add, alter or correct anything.
A.	No.

Q68.	Was there any force, threat, false promise or inducement made to get your statement?
A.	No.

Q69.	Is this the true statement you gave?
A.	Yes.

Q70.	Did you made it on your own free will?
A.	Yes.

Q71.	Do you have any complain to make as I am about to conclude your interview?
A.	No.

[Signed by Mr Volavola and witnessed]

3.4	One of the first Amended Grounds of Appeal (dated 31 July 2007 and received by the High Court on 23 August 2007 (cover note from the Officer in Charge, Suva Prison, dated 13 August 2007) was that:

… the Learned Trial Magistrate erred in law in not allowing to challenge any of the evidence contained in the caution interview: Ground 5

3.5	That Ground is not now pursued. Nonetheless, authority is clear: the Magistrate should have put the Caution Statement to Mr Volavola and given him an opportunity to state to the Court whether it was voluntarily made or was made under pressure or by threat or the holding out to him of some reward. The State says that as the Magistrate did not rely upon it, there was no need for such opportunity to be provided to Mr Volavola:

In this case … the learned Magistrate did not rely on the confession of [Mr Volavola] in his Caution Interview Statement when convicting [him]. The Prosecution had tendered the caution statement … which was exculpatory and the said statement was attached as part of the record. However nowhere in the Court’s deliberations did it refer to the statement given by [Mr Volavola] to the police. It appears that the Court convicted [Mr Volavola] on the summary of facts put forward by the Prosecution and his unequivocal guilty plea. The Court did not rely on the tendered Caution Interview Statement … It is submitted, as held in Chand [v. State [2008] FJHC 9 (18 January 2008)] that ‘If the caution interview of an unrepresented accused contains incriminating statements and the learned Magistrate wants to rely on it to make a finding of guilty, then the accused’s consent is necessary’.

Thus since the Court did not rely on the admissions in the caution interview it was not necessary to ascertain whether those admissions were given voluntarily: Written Submission, 25 August 2008, p. 3

3.6	If, as the State says here (and as suggested for Mr Volavola), the Caution Statement ‘was exculpatory’, then the Magistrate should have taken it into account: not to do so would, as is asserted by Counsel for Mr Volavola, provide a good ground of appeal. In order to take the Caution Statement into account, its voluntariness or otherwise should have been ascertained directly from Mr Volavola. 

3.7	Because the question of the Caution Statement is crucial to the justice of the case, and certain content of it is relied on by Mr Volavola as vital to his grounds of appeal, I address the proposition that the Caution Statement was not properly dealt with.

3.8	In Chand v. State [2008] FJHC 9; HAC138.05 (18 January 2008) in a through review of the authorities, His Lordship Justice Goundar said, amongst other matters:

The Caution Interview

To ensure [Mr Chand]’s pleas of guilty were [un]equivocal the prosecution tendered the caution interview … and the medical reports of the first and second complainants. The practice of tendering the caution interview, and the medical report of [a] complainant, when the accused is unrepresented is proper (see State v. Isai Saukuru Lautoka High Court HAA013 of 2000L; Ananai Nawaqa & Ors v. The State Lautoka High Court HBM0014.2000L). The practice allows the court to examine the caution interview and the medical report so that the court is satisfied that the unrepresented accused fully comprehends what the plea of guilty involves. It is only after the court is so satisfied [that] the unrepresented accused should be convicted.

The record states that the caution interview was voluntarily made and there [was] no force, threat or promise. It appears this part of the record was the prosecution’s submissions and not an outcome of an independent inquiry made by lingered Magistrate from [Mr Chand]. If the caution interview of an unrepresented accused contains incriminating statements and the learned Magistrate wants to rely on it to make a finding of guilt, then the accused’s consent is necessary. An accused cannot be convicted on a confession if that conversion was involuntarily obtained. The learned Magistrate should have ascertained from [Mr Chand] whether he had voluntarily made the statements in the caution interview rather than relying on the prosecution’s submissions that the caution interview was given voluntarily. This ground of appeal succeeds: at paras [33] [34]

3.9	Goundar, J. went on to observe that the original Caution Interview was in Hindi language and that was tendered in Court. The translation became a part of the Court Record. His Lordship noted discrepancies in the translation which were prejudicial to Mr Chand. There is nothing of this nature in the present case.

3.10	Similarly in Ananaia Nawaqa & Ors v. The State (Misc Action No. HBM0014.200L, 15 March 2001), the discrepancies between the summary put to the Court and the Caution Statements – of which there were two for each of the eight unrepresented accused – were both glaring and fundamental. Most striking was the assertion as to all but one of the accused having admitted the offence of rape to the police, whereas this was patently incorrect: only one of the eight had done so.

3.11	Does this equate with the position of Mr Volavola?

3.12	In Koroi v. The State [2002] FJHC 152; HAA0055.2002S (23 August 2002) His Lordship Justice Singh addressed this question in the context of an appeal against conviction and sentence where the Appellant, Mr Aseri Koroi, was charged with five counts of incest allegedly occurring over a period of thirteen months from September 2000 to October 2001, When the charge was read to him on 22 February 2002, Mr Koroi pleaded guilty. The facts were not outlined and the case was adjourned to 25 February 2002for the facts to be outlined and for sentencing. Mr Koroi was told to ‘get a lawyer if he wanted to’. On 25 February the case was again sojourned to the following day, 26 February 2002. Apparently the case was twice adjourned because ‘the typed facts were not ready’. On 26 February they were, and were given to Mr Koroi. He admitted the facts. Mr Koroi stated in mitigation that he was 42 years of age, married, and ‘we all have weaknesses in life and he was weak on this occasion’: at 2

3.13	Singh, J. said:

POLICE PRESSURE TO PLEAD GUILTY:

Counsel for [Mr Koroi] also submitted that on the strength of Vilikesa Balecala v. The State (CrimApp 62 of 1996) the Learned Magistrate should have asked [Mr Koroi] if he was pressured or induced into pleading guilty. The facts of Vilikesa Balecala are unusual in that three accused were jointly charged and they all alleged that they were pressured by the police into pleading guilty. They pleaded guilty at a special sitting of the court on a Saturday to the offence of attempted rape. The facts as outlined did not disclose any offence of attempted rape against two of the co-accused of the appellants. However, they were convicted. The conviction[s] of those two co-accused were set aside. The appellant’s guilty plea was vacated and [the] case remitted to the Magistrate’s Court.

The circumstances in that case pointed to something improper. There is no allegation of improper police conduct or facts not disclosing an offence here. Courts would be bogged down into a meaningless and irrelevant enquiry if each time an accused appeared, they were to enquire into police conduct. I find no merit in the ground: at 5 

3.14	A possible discrepancy arises in the Summary in Mr Volavola’s case, when compared with the Caution Statement. The summary says:

In the year 2005, [Mr Volavola] went to the bedroom of the complainant, woke her up and took her to his bedroom where [he] forcefully had sex without her consent. On a number of occasions, [Mr Volavola] had sex with the complainant when her mother went out to drink yaqona in the village.

Again in the year 2006, [Mr Volavola] had sexual intercourse with the complainant in his bedroom. [Mr Volavola] warned the complainant not to tell anybody: Court Record, p. 8

3.15	The Caution Statement indicates:

Q43.	Where was Mesulame when you had sex with Litia?
A.	He was in the house sleeping.

Q44.	Can you tell how you forced Litia Kauilagi to have sex with you?
A.	I went inside their bedroom and saw both were sleeping so I Litia up and lie down on her bed beside her and started touching her breast and vagina and then I had sex with her.

Q56.	Is that the only time you had sex with Litia Kauilagi?
A.	On that night I had sex only once with Litia.

Q57.	Did you had sex again with Litia Kauilagi?
A.	Yes.

Q58.	How many times you had sex with Litia Kauilagi?
A.	I think 3 times in 2005 and 2 times in 2006.

Q59.	Can you recall the dates when you had sexual intercourse later with Litia Kauilagi in the year 2005 and year 2006.
A.	I cannot recall the dates.

Q60.	Where you had sex with Litia Kauilagi the rest of the time?
A.	I had sex once in my bedroom and the rest of the time in her bedroom.

Q61.	Did all the time where you had sex with Litia Pushed your prick right inside the vagina?
A.	 Yes.

3.16	The Summary says the acts occurred in Mr Volavola’s bedroom. Mr Volavola says in the Caution Statement that ‘sex’ was had ‘once’ in his bedroom and the remainder of the time in Litia’s bedroom in response to the question as to ‘later in 2005 and in 2006’. This appears to indicate that the acts took place twice in Mr Volavola’s bedroom and the remainder of the time in Litia’s bedroom (which she shared with her brother). Whether it was once (earlier 2005) or twice (earlier and later 2005) that the acts are said by Mr Volavola to have occurred in his bedroom, according to Mr Volavola they did not all occur there but, rather, in his stepdaughter’s bedroom. 

3.17	This is not, however, a discrepancy such as arose in Ananaia Nawaqa & Ors v. The State (Misc Action No. HBM0014.2000L, 15 March 2001). It is not such as to lead to a quashing of Mr Volavola’s conviction or to provide a basis for a finding of irregularity founding the quashing of conviction. Nor can it found an appeal against conviction in the case of a plea of guilty.

3.18	Rather, Koroi v. The State [2002] FJHC 152; HAA0055.2002S (23 August 2002) is applicable here. There is not now, and never was previously (in earlier Grounds or prior) any suggestion of police force, pressure, promise or holding out of a benefit to Mr Volavola should he confess or plead guilty. The present Grounds rely upon the Caution Statement as containing statements said to be exculpatory and which therefore should have been taken into account.

3.19	At the same time, as earlier observed, as a matter of proper trial procedure the Court should have put the Caution Statement to Mr Volavola and ascertained its voluntariness from him. Not to do so meant that the Court was effectively depriving itself of the full information it should have before it, to be wholly taken into account to arrive at a determination as to (amongst other matters) whether or not Mr Volavola’s plea of guilty should be accepted – that is, was it unequivocal. Further, it was essential to have it fully before the Court to ascertain the facts in their entirety as stated by Mr Volavola in that Caution Statement – matters exculpatory or condemnatory, ambiguous or unambiguous, relevant or irrelevant (so that the latter, if any, could be set to one side and the former could be taken into account).

3.20	The first Ground challenges Mr Volavola’s plea of guilty – and this is the only basis upon which the grounds going to conviction can be brought before this Court – for it suggests that he was wrongly deprived of a defence open to him. As I have said, on all the material that defence (the proviso) was not open to Mr Volavola in any event.

3.21	Ground 3 is dismissed.

4.	Grounds of Appeal – Ground 2 Count 1(Rape) – Submissions & Elements

The plea of guilty is also challenged, however, upon the basis that Mr Volavola did not plead guilty to the charge of rape because it was not properly or adequately set out in the summary and not properly or adequately explained to him. The contention is that Mr Volavola’s plea was not unequivocal.

4.1	Ground 2 in relation to rape says:

THE summary of facts as presented does not satisfy the charge of rape since all the elements of the offence [are] not included in the facts as presented particularly the mental element of the Accused.

4.2	(a) Submissions for Mr Volavola: For Mr Volavola it is said that he was charged with rape under sections 149 and 150 of the Penal Code:

For the charge to succeed it is important that the summary of facts presented to the Court state all the elements of the offence in a manner that … can be easily understood by the unrepresented Accused: Written Submissions, 14 August 2008, p. 6

4.3	Then the ‘relevant portion only’ of the summary is quoted:

In the year 2005, [Mr Volavola] went to the bedroom of the Complainant, woke her up and took her to his bedroom where [Mr Volavola] forcefully had sex without her consent.

4.4	The elements of the offence are then set out in the written submissions, together with the criticism – of what is said not to be stated in the summary of facts:

[Elements]

(1)	It was [Mr Volavola] who had penetrated the Complainant’s vagina with his penis;

(2)	The act of penetration was done without the consent of the Complainant on the occasion as alleged; and

(3)	[Mr Volavola] knew at the time that the Complainant was not consenting but he was reckless as to whether she was consenting or not.

[No statement of]

(1)	What was the act [Mr Volavola] had forcefully done there is no suggestion of what he did;

(2)	The word sex is misleading because it could include oral or physical sex. The use of the word sex would have forced [Mr Volavola] to think about consensual sex hence the increased chances of misunderstanding by an unrepresented Accused;

(3)	There is no mention of what the Complainant did that would have led to a lack of consent on her part particularly there is no mention of any resistance or unwillingness on her part to submit to the Accused.

(4)	There is nothing to suggest in the summary of facts that there was an act of penetration by the penis of [Mr Volavola] into the vagina of the Complainant. The word ‘sex’ as used in the summary of facts cannot be said to have complied with section 183 of the Penal Code which defines Carnal Knowledge as the act of penetration.

(5)	There is nothing stated in the summary of facts that would suggest that [Mr Volavola] knew the Complainant was not consenting or was determined to have intercourse whether she was consenting or not: Written Submissions, 14 August 2008, pp. 6-7

4.5	(b) Court Record – Charges Put to Mr Volavola: The Court Record shows that Mr Volavola was first informed that he was ‘charged with serious offences’ and asked whether he would ‘like to seek legal advice first before plea is taken?’: Court Record, p. 7

4.6	Mr Volavola’s answer is recorded: 

I would like plea to be taken now. Don’t need a lawyer: Court Record, p. 7

4.7	The Court Record goes on to say:

Charge: Read, Explained to Accused: Understands both charges

Election put & explained to accused on the 1st count: 	Elects Magistrate’s court trial

Plead	:

1st count - Guilty
2nd count -Guilty

Facts

Summary of Facts submitted to Court (read out and explained to Accused): Court Record, p. 7

4.8	(c) Plea of Guilty - Rape: Mr Volavola’s plea of guilty was expressed after the reading of the charges. The charge of rape unequivocally states that Mr Volavola ‘unlawfully had carnal knowledge of a girl namely LITIA KAULIAGI without her consent’: Court Record, p. 6 (Emphasis added)

4.9	This was read and explained to Mr Volavola, the Court writing in the record that he ‘understands both charges’: Court Record, p. 7

4.10	The notation in the Court Record as to ‘read’ and ‘explained’ has to be taken to mean that more was done than that the counts were simply read out to Mr Volavola. ‘Explained’ must mean something more and, in my view, it is correct to accept that the Magistrate recorded accurately that he ‘explained’. ‘Explained’ in the context of a charge of ‘carnal knowledge … without consent’ – that is, rape, has to be understood as drawing to Mr Volavola’s attention each of the relevant elements of the charges, namely (in relation to rape) that:

•	There was penetration of the vagina by a penis, that the vagina was that of the complainant and that the penis was that of Mr Volavola: in my view, ‘explanation’ of this charge can properly be understood in no other way. It is not, as I understand it, suggested that the Magistrate wrote in the record anything other than what was actually done on the day. Certainly Magistrate’s can err. However, the notion that the Magistrate, in ‘explaining’ the charge of rape, did not explain the matters going to this element is unsustainable.

•	The penetration was without the complainant’s consent – this is another fundamental element of rape or unlawful carnal knowledge without consent, per the Penal Code provision. First, Mr Volavola in the reading of the charge has already been advised that ‘without consent’ is an element or a part of the offence with which he is charged. It would be extraordinary if an ‘explanation’ of the charge did not include a reference to the necessary lack of consent.

•	There was knowledge or recklessness thereto on his part. As this is a further essential element in lack of consent, for it not to be included in the ‘explanation’ of the charge of rape – unlawful carnal knowledge without consent – would be extraordinary. 

4.11	In Ilaitia Koroiciri v. R. (CrimApp No. 43 of 1979) the Court of Appeal said: 

… in the definition of rape [in section 149 of the Penal Code] no intent is stated but a long line of cases has settled the law that not only must the fact of intercourse without consent be proved but it also must be proved that the accused intended to commit the crime. The recognised mental element has been stated to be that the accused had actual knowledge of the fact that the woman was not consenting or was determined to have intercourse with her whether she was consenting or not. The intent of the accused and the act (namely that the woman was not in fact consenting) must both concur to constitute the crime.

4.12	More recently, in Siga v. The State [1996] FJHC 50; Haa0029d.96b (16 September 1996) His Lordship Justice Fatiaki referred to Ilaitia Koroiciri observing that ‘quite plainly’ a setting out of the ‘ingredients’ of the offence of rape, the omission of any reference to mens rea of the offence would fail to accord with the law: at 3

4.13	As I have said, ‘explanation’ must have meaning. It connotes more than simply reading out or reiterating what is in the counts or in the Penal Code. The Magistrate here is an experienced and long-serving Magistrate. It is likely that over the period of his service, he has addressed the need for an explanation of ‘unlawful carnal knowledge without consent’ on many occasions. In the absence of any explicit basis upon which it is suggested that the Magistrate’s record of ‘explanation’ is inaccurate, or that the ‘explanation’ was deficient, it is proper to infer that the Magistrate did, in explaining the charge, do so accurately and with reference to these essential elements.

4.14	(d) Summary in Full: To gauge whether the Summary was misleading or inadequate as proposed for Mr Volavola, providing a basis for the ground of appeal, requires setting out the summary in full. The extract provided in support of Ground 2 must be seen in context.

4.15	Turning, then, to the Summary:

Between 1/1/2005 and 31/12/2005 at Naqeledamu, Cuvu, Sigatoka, Onisivoro Volavola (Accused), 37 years, a carry boy of Naqeledamu, Cuvu, Sigatoka, had sexual intercourse with a girl namely Litia Kauilagi (PW-1), 14 years, a Form 3 student of Naqeledamu, Cuvu, Sigatoka, without her consent and also Accused had sexual intercourse with PW on several occasions in 2006.

The complainant was born on 11/11/1992 and after one year her father left the mother. Since then she and another brother were brought up by their grand parents.

In the year 1993, the complainant’s father left the mother due to domestic dispute. In 2003 the Accused got involved with the complainant’s mother namely Naomi Voliyaki and all stayed in the same house. Naomi is a hairdresser in the village whereas Accused is working for Fijian Hotel in the Golf section as a carry boy.

In the year 2005, Accused went to the bedroom of the complainant, woke her up and took her to his bedroom, where Accused forcefully had sex without her consent. On a number of occasions, The Accused had sex with the complainant when her mother went out to drink yaqona in the village.

Again in the year 2006, Accused had sexual intercourse with the complainant in his bedroom. Accused warned the complainant not to tell anybody.

On the 4th day of March 2007 at about 1pm, the complainant’s mother beat her for not washing the clothes of her brother. The Complainant then informed her mother that Accused raped her. Matter was reported to police by the Turaga-ni-Koro and the complainant was medically examined by doctor at Sigatoka Hospital.

Accused was interviewed under caution and he admitted the offence and subsequently charged for 2 counts as per charge. Accused kept in custody.

Birth Certificate of Complainant -	Exhibit 1
Medical Report			-Exhibit 2
Interview Statement 		-	Exhibit 3: Court Record, pp. 7-8 (Emphasis added)

4.16	Under the heading ‘Facts’, prior to the commencement of the Summary, the following notation appears:

Summary of Facts submitted to Court (read out and explained to [Mr Volavola]): Court Record, p. 7 (Emphasis added)

5.	Grounds of Appeal – Ground 2 Count 1(Rape) – Submissions in Detail

Leaving to one side the ‘explained to’ part of the Court Record, I turn to the concerns raised for Mr Volavola.

5.1	(a) What was the act Mr Volavola had forcefully done – there is no suggestion of what he did: (1) Written Submissions, 14 August 2008, p. 6

5.2	As the summary makes clear, Mr Volavola is alleged to have ‘had sexual intercourse … without her consent’ between 1 January 2005 and 31 December 2005, and to have ‘had sexual intercourse’ with her on several occasions in 2006: Court Record, p. 7 

5.3	There is the later reference simply to ‘sex’ (that word being used twice in the summary): Court Record, p. 7 However, it is incorrect to say that the Summary refers only to ‘sex’. 

5.4	A Summary should state clearly and without any ambiguity, as is contended in this appeal, precisely what is alleged to have occurred. At the same time, it is incorrect to say ‘there is no suggestion of what he did’. The Summary is explicit as to ‘waking her up’ and ‘forcefully’ ‘without … consent’ engaging in the ‘sex’. Reference is made to Mr Volavola’s having ‘warned the complainant not to tell anybody’: Court Record, p. 7

5.5	I agree with Counsel for Mr Volavola that the use of the word ‘sex’ in the context of a charge of rape which involves penetration of the vagina by the penis without consent was not satisfactory. However, it does not provide a basis for quashing the conviction. As indicated, the Court Record affirms the Magistrate ‘explained’ the Summary to Mr Volavola. As previously noted, where the charge is rape – and also where the Magistrate has already told Mr Volavola that he is ‘charged with serious offences’: Court Record, p. 7 it is apparent that the Court was well aware of the need to provide an explanation, consistent with procedural requirements and the seriousness of the charges and, in the present context, the charge of rape. 

5.6	It is not sufficient for the State to resort to the definition of ‘sexual intercourse’ as provided on the World-Wide-Web to confirm the adequacy of the summary. I accept that ‘sexual intercourse’ is generally understood as meaning vaginal-penile penetration. Other forms of sexual activity – such as fellatio or cunnilingus – are generally referred to in common parlance by terms other than ‘sexual intercourse’ – other terms (frequently slang) have common currency. Hence, it is not only highly unlikely that Mr Volavola would have been under any illusion as to what was being said in the Summary. All the evidence before the Court makes Mr Volavola’s understanding patent. 

5.7	However, that does not mean that the Summary is free from criticism. It should have been explicit as to the precise nature of the crime charged, in accordance with the definition of rape. At the same time, taking into account the Summary as a whole, as well as the Magistrate’s notation as to ‘explanation’ and again that this is a long-serving and experienced Magistrate, I do not accept that the use of the words ‘sexual intercourse’ and ‘sex’ in the Summary provide a basis for the contention that ‘there is no suggestion of what [Mr Volavola] did’. To the contrary.

5.8	(b) The word sex is misleading because it could include oral or physical sex. The use of the word sex would have forced [Mr Volavola] to think about consensual sex hence the increased chances of misunderstanding by an unrepresented Accused: (2)Written Submissions, 14 August 2008, pp. 6-7

5.9	‘Sex’ was not a good use of terminology or language in a criminal trial where rape is charged (along with defilement). Explicit terminology should have been employed. At the same time, there is an obligation to ensure that a charge is explained to accused persons in language which they can understand. The situation will not be assisted (and in any event would be contrary to procedural requirements and Constitutional provisions) if a Summary references ‘legal terms’ or ‘legal terminology’ only: a Summary must include terms which are readily understood by accused persons.

5.10	Explicit reference to what the actual acts are as charged and as revealed from the investigation is called for. Here, there is also the fact that in the Caution Statement Mr Volavola admits to imposing upon the complainant oral sexual activity (cunnilingus). However, the Caution Statement makes clear his understanding of ‘sex’ in the way it is put in the Summary, namely as providing the foundation for sexual action or activity of the type that can, if accompanied by a lack of consent and the requisite intention, qualify as ‘rape’. 

5.11	The Summary cannot be judged in isolation from the educational level of an accused person (here, Form 6: Court Record, p. 13). Nor can it be assessed without regard to the accused person’s knowledge and understanding as evidenced before the Court.

5.12	The Caution Statement makes clear that Mr Volavola had no misunderstanding as to what ‘sex’ meant. Both ‘sex’ and ‘sexual intercourse’ are employed, and Mr Volavola’s responses confirm his clear understanding as to what is meant. ‘Rape’ is employed and he responded with the term ‘sexual intercourse. To questions in the caution interview Mr Volavola responded indicating that for him ‘sexual intercourse’ and ‘sex’ meant vaginal-penile penetration:

Q49.	What happened after you touched Litia’s private parts?
A.	I pushed my prick inside her vagina.

Q50.	Did Litia Kauilagi cried when you pushed your penis into the vagina of Litia Kauilagi?
A.	No.

Q51.	What happened after you had sex with Litia?
A.	I stood up and went outside the house.

Q52.	Did you ejaculate inside the vagina of Litia?
A.	No.

Q53.	Why you didn’t ejaculate inside the vagina?
A.	I thought she might become pregnant.

Q54.	Did you tell Litia Kauilagi not to tell anyone after sex?
A.	Yes.

Q55.	What did you tell her?
A.	 Not to tell anyone.

Q56.	Is that the only time you had sex with Litia Kauilagi?
A.	On that night I had sex only once with Litia.

Q57.	Did you had sex again with Litia Kauilagi?
A.	Yes.

Q58.	How many times you had sex with Litia Kauilagi?
A.	I think 3 times in 2005 and 2 times in 2006.

Q59.	Can you recall the dates when you had sexual intercourse later with Litia Kauilagi in the year 2006 and year 2006.
A.	I cannot recall the dates.

Q60.	Where you had sex with Litia Kauilagi the rest of the time?
A. I had sex once in my bedroom and the rest of the time in her bedroom.

Q61.	Did all the time where you had sex with Litia Pushed your prick right inside the vagina?
A.	Yes.

Q62.	Before pushing your penis into the vagina of Litia Kauilagi what you used to do?
A.	I used to touch her breast and rub the vagina with my fingers and I also used to leak the vagina with my tongue and then she gets the feeling I pushed my prick inside.

Q63.	Who removed the clothes of Litia on all occasions you had sex with Litia Kauilagi?
A.	I always tell her to remove her clothes: Court Record, pp. 16-18

5.13	That an explanation of the Summary was provided to Mr Volavola by the Magistrate must also be taken into account: Court Record, p. 7

5.14	(c) There is no mention of what the Complainant did that would have led to a lack of consent on her part particularly there is no mention of any resistance or unwillingness on her part to submit to the Accused: (3) Written Submissions, 14 August 2008, p.7

5.15	There is no requirement at law for a person who is sexually imposed upon to struggle or ‘resist’, to exhibit injury or injuries, or to show unwillingness or physical resistance in order for rape to be proven: Senikudra v. The State [1988] FJHC 5; [1988] 34 FLR 114 (18 November 1988); R. v. Ramsay 2001 SKCA 8 (CanLII); Question of Law (No 1 of 1993) (1993) 59 SASR 214; R. Ewanchuk [1999] 1 SCR 330; R. v. Khan [1990] 1 WLR 815 (26 January 1990); R. v. Banditt [2004] NSWCCA 208 (4 August 2004); Banditt v. The Queen [2005] HCA 80; R. v. Mueller [2005] NSWCCA 47; Brk & Ors v. The Queen [2001] WASCA 161 (25 May 2001; contra R. v. Howard [1965] 3 All ER 684; R. v. Chadderton (1908) 1 CrApp Rep 229; R. v. Harding (1938) 26 CrApp Rep 127; R. v. Lang (1975) 62 CrimApp Rep 50; R. v. David Ram Singh (CrimApp No. 226 of 1990, VCCA, 18 December 1990)

5.16	The complainant need do nothing to signify consent or lack of consent. What needs to be proven by the State is that there is no consent, or that the consent is obtained by force, fear or threat, or intimidation of fear. As the Penal Code says, rape is carnal knowledge ‘without consent, or with consent is obtained by force or by means of threats or intimidation of any kind, or by fear of bodily harm, or by means of false representations as to the nature of the act, or in the case of a married woman, by personating her husband’: s. 149

5.17	In Aotearoa/New Zealand in The Queen v Turner [2007] NZCA 427 (1 October 2007) the Court of Appeal said that the following summing up as to consent in rape was said to be ‘entirely orthodox’:

Now it is the Crown who must prove that this occurred without the female’s consent. Consent has the same meaning and implications in relation to each of the three counts in this indictment. Consent means a true consent, given by a woman who is in [sic] a position to make a conscious decision and choice. The material time for you to consider whether there was consent, is at the time the sexual connections takes place. You are entitled to remember that true consent can still be given reluctantly or hesitantly. True consent can sometimes be regretted afterwards. Even if consent is given in that manner, provided it is given without threats or force or under coercion, then an act of sexual connection to which that kind of consent has occurred, simply is not rape.

On the other hand, submission to the inevitable, or submission out of despair when one is trapped and has no alternatives is not a real and valid consent. Consent must be freely and willingly given to be valid in the eyes of the law. Likewise, paralysed submission to some sort of unexpected and unwelcome sexual advances does not amount to free, valid consent.

Now obviously, if you are satisfied that a woman has refused intercourse or connection of some other kind, or has resisted by her words or by her conduct, then you are able to take that as evidence of a lack of consent. The law, however, goes on a little bit further on this question of consent and it specifically refers to certain matters which in particular circumstances are not to be taken as consent simply by themselves. This includes the fact that a person does not protest or offer physical resistance to sexual connection. The law provides that that does not, by itself, indicate that she is giving some sort of tacit or unspoken consent. Nor does the fact that a person acquiesces or goes along with sexual connection if she does so in the face of actual force or a threatened application of force. That is not true consent either.

It is important to remember in every case of this kind, that rape is not sexual intercourse by force. It is simply sexual intercourse without valid consent and without a belief on a part of the man that the woman is consenting such belief having to be on reasonable grounds. And the same applies to all forms of sexual violation. They do not involve sexual violation by force and that does not have to be proved. What has to be proved is sexual violation without valid consent and without an honestly and reasonably held belief that the woman is consenting. If the Crown satisfies you of those two things, then the sexual connection will be unlawful: at paras [11]-[14].

5.18	There, the Court of Appeal said:

Those directions were entirely orthodox. The use of a different form of words to convey the same concepts to the jury could have made no difference. This ground of appeal cannot succeed: at para [42]

5.19	As was said by the Supreme Court of Canada in R. v. Ewanchuk [1999] SCR 330 (as to mistake in consent’) 

Consent is an integral component of the mens rea [in rape], but considered from the perspective of the accused. In order to cloak the accused’s actions in moral innocence, the evidence must show that he believed that the complainant communicated consent to engage in the sexual activity in question. A belief by the accused that the complainant, in her own mind, wanted him to touch her but did not express that desire, is not a defence. The accused’s speculation as to what was going on in the complainant’s mind provides no defence.

There is a difference in the concept of ‘consent’ as it relates to the state of mind of the complainant vis-à-vis the actus reus of the offence and the state of mind of the accused in respect of the mens rea. For the purpose of the actus reus ‘consent’ means that the complaint in her mind wanted the sexual touching to take place. In the context of mens rea – specifically for the purposes of the honest but mistaken belief in consent – ‘consent’ means that the complainant had affirmatively communicated by words or conduct her agreement to engage in sexual activity with the accused. The two parts of the analysis must be kept separate.

5.20	Material in the Summary confirms lack of consent or ‘consent … obtained by force or by means of threats or intimidation of any kind or by fear of bodily harm …’ providing a proper basis upon which the Magistrate could consider the plea of guilty unambiguous, and hence in relation to which Mr Volavola could be said to have been properly advised of the nature and content and elements of the charges,

… had sexual intercourse with a girl namely Litia Kauilagi (PW-1), 14 years, a Form 3 student … without her consent …

The complainant was born on 11/11/1992 … [and] in 2003 [Mr Volavola] got involved with the complainant’s mother … and all stayed in the same house … 

In the year 2005, Accused went to the bedroom of the complainant, woke her up and took her to his bedroom, where Accused forcefully had sex without her consent. On a number of occasions, The Accused had sex with the complainant when her mother went out to drink yaqona in the village.

Again in the year 2006, Accused had sexual intercourse with the complainant in his bedroom. Accused warned the complainant not to tell anybody: Court Record, pp. 6, 7

5.21	That is, Mr Volavola was an adult man in a paternal and parental relationship, one of authority, his being the step-father of the complainant and married to her mother. She was a child born in 1992 and some 11/12-13 or at the most 14 years at the time of the conduct the subject of the charges. The conduct took place in Mr Volavola ‘s bedroom (and also in her bedroom – note re Summary earlier referred to). There was a threat – ‘warning’ – ‘not to tell anybody’. This activity took place in the absence of the girl’s mother – the person usually in the position of protector of a child, which meant that the child was vulnerable.

5.22	The Caution Statement makes clear that Mr Volavola was aware of the lack of consent. This provides a backdrop to his understanding of the Summary. 

Q38.	It is alleged that you raped your step daughter Litia Kauilagi sometimes in year 2005. What you have to say about it?
A.	Yes, I had sexual intercourse with her.

Q39.	Did Litia Kauilagi agreed with you to have sex?
A.	No. She did not agreed to have sex.

Q40.	Did you forced her to have sex with you?
A.	Yes.

Q41.	Can you recall when you had sexual intercourse with Litia Kauilagi?
A.	I cannot recall the date and month but it was in 2005.

Q42.	Where was your wife when you had sex with Litia Kauilagi?
A.	She was out drinking grog.

Q43.	Where was Mesulame when you had sex with Litia?
A.	 He was in the house sleeping.

Q44.	Can you tell how you forced Litia Kauilagi to have sex with you?
A.	I went inside their bedroom and saw both were sleeping so I Litia up and lie down on her bed beside her and started touching her breast and vagina and then I had sex with her.

Q45.	Did Litia Kauilagi stopped you that to have sex with her?
A.	No. 

Q46.	Who removed the clothes of Litia Kauilagi?
A.	I told her to remove her clothes.

Q47.	Was Litia Kauilagi frightened of you when you told her to remove her clothes?
A.	I think so she was frightened.

Q48.	Did you frightened Litia Kauilagi before having sex?
A. No. 

Q49.	What happened after you touched Litia’s private parts?
A.	I pushed my prick inside her vagina.

Q50.	Did Litia Kauilagi cried when you pushed your penis into the vagina of Litia Kauilagi?
A.	No.
…

Q54.	Did you tell Litia Kauilagi not to tell anyone after sex?
A.	Yes.

Q55.	What did you tell her?
A.	Not to tell anyone.
…

Q60.	Where you had sex with Litia Kauilagi the rest of the time?
A.	I had sex once in my bedroom and the rest of the time in her bedroom.

Q61.	Did all the time when you had sex with Litia pushed your prick right inside the vagina?
A.	Yes.

Q62.	Before pushing your penis into the vagina of Litia Kauilagi what you used to do?
A.	I used to touch her breast and rub the vagina with my fingers and I also used to leak [lick] the vagina with my tongue and then she gets the feeling I pushed my prick inside.

Q63.	Who removed the clothes of Litia on all occasions you had sex with Litia Kauilagi?
A.	 I always tell her to remove her clothes.

Q64.	It is also alleged that you used to show the naked pictures to Litia Kauilagi what you have to say about it.
A.	 Yes – it is true.

Q65.	Is there anything else do you wish to say?
A.	 I sorry for what I have done.

…: Court Record, pp. 16-18 (Emphasis added)

5.23	(d) There is nothing to suggest in the summary of facts that there was an act of penetration by the penis of [Mr Volavola] into the vagina of the Complainant. The word ‘sex’ as used in the summary of facts cannot be said to have complied with section 183 of the Penal Code which defines Carnal Knowledge as the act of penetration: (4) Written Submissions, p. 7
 
5.24	As noted earlier, ‘sex’ would have been better replaced with a more precise term. Mr Volavola interpreted it in his caution interview as meaning ‘penetration’ of the vagina by the penis: that much is clear. Nonetheless, the Summary should precisely recite the actual and specific elements of the crime charged. Here, however, ‘sex’ was not the only description employed. ‘Sexual intercourse’ was used more than once in the Summary. The word ‘penetration’ is not there. Nor is the word ‘penis’ or ‘vagina’. It might be suggested that the use of both ‘sex’ and ‘sexual intercourse’ imports a confusion. The better approach is, as noted, to employ specific terms, without using different (albeit many would say equivalent) terms interchangeably. 

5.25	The State says that the Summary of Facts ‘clearly outlined though generally what constituted the offence of rape and defilement’. ‘Generally’ is not enough: each charge should have been outlined explicitly in the Summary. Further, as was said in Vakaciwa v. The State [1996] FJHC 32; Haa0023j.96s (2 August 1996), the Magistrate should have ensured that he asked Mr Volavola if he ‘admitted (or disputed) the facts as outlined by the Police’. This would have been ‘a clear indication that he knew what he was answering to’: at 3

5.26	However, the fundamental question is whether the Court Record shows that Mr Volavola was not confronted with ambiguity, confusion, unfairness or injustice. Deciding this requires taking into account the whole of the Summary and the Court Record rather than extracts or an extract. Further, as earlier, the Summary and Mr Volavola’s understanding cannot be seen in isolation. It is Mr Volavola’s understanding that is in issue here, and whether his plea was or was not equivocal. 

5.27	Did Mr Volavola understand what was put? Did he have a fair opportunity to understand, so that his plea was given in circumstances that were fair and just? Was the process followed one that robbed him of a fair opportunity to know and consider the matters that were being put to him, the offences with which he was charged, and the dimensions, particulars and crucial elements of those offences?

5.28	That understanding must be discerned from what is before the Court. Here, it must be seen against the backdrop and in the context of the Caution Statement. As was said by Her Ladyship Justice Shameem in State v. Seru [2003] FJHC 189; HAC0021D.2002S (26 March 2003):

A plea is ambiguous if the accused makes an answer which is neither guilty nor not guilty. Where an accused person is unrepresented, his plea may be considered ambiguous if he did not understand and agree to the commission of all the elements of the offence. …

The paramount question … is whether the plea was unequivocal, and made with a full understanding of the offence alleged and its ingredients. In considering this question, the history of the case itself is highly relevant: at 6, 7

5.29	Most importantly, the Court Record shows that the Magistrate explained the Summary to Mr Volavola.

5.30	As noted, the Caution Statement should have been put to Mr Volavola. He should have been asked by the Magistrate if it was his Caution Statement and it was obtained without force, pressure, threats or any promise. At the same time:

•	There is no suggestion of its being obtained by unlawful means;

•	Mr Volavola relies upon the Caution Statement in his Grounds of appeal – this stands for itself and surely confirms and acceptance of the Caution Statement as his own, obtained without pressure, force, threat or promise;

•	Most particularly, Mr Volavola relies upon its content for the purpose of having this Court accept that he has a right to appeal vis-à-vis conviction;

•	The Court Record shows that the both the charges and the Summary were explained to Mr Volavola.

5.31	In the Caution Statement, Mr Volavola himself answered to ‘rape’. He volunteered ‘penis’, ‘vagina’ and ‘penetration’. He provided his answers in being questioned about ‘sex’ and ‘sexual intercourse’. 

5.32	(e) There is nothing stated in the summary of facts that would suggest that [Mr Volavola] knew the Complainant was not consenting or was determined to have intercourse whether she was consenting or not: Written Submissions, 14 August 2008, pp. 6-7

5.33	The Summary of Facts not only suggests that Mr Volavola knew the child was not consenting, but explicitly said so: 

•	‘… Onisivoro Volavola (Accused), 37 years … had sexual intercourse with a girly namely …, 14 years, a Form 3 student … without her consent …: Court Record, p. 7

•	… woke her up and took her to his bedroom where Accused forcefully had sex without her consent: Court Record, p. 8

•	Again in the year 2006, Accused had sexual intercourse with the complainant in his bedroom. Accused warned the complainant not to tell anybody …

•	The complainant then informed her mother that Accused raped her: Court Record, pp. 7, 8

5.34	Every one of these statements in the Summary says that Mr Volavola engaged in the conduct in the absence of consent. The statement from the complainant is her version of the facts. It was in the Summary. Mr Volavola had the Summary read to him. He knew precisely of what he stood accused, and of what he was charged. The Summary makes it plain. 

6	Grounds of Appeal – Ground 1 Count 1(Rape) – Exculpatory Statements

This Ground relies upon statements in the Caution Statement:

THE Learned Trial Magistrate erred in law and in fact by not taking into account the exculpatory statements made by [Mr Volavola] in respect of the victim’s consent in his Caution Interview.

6.1	(a)	Submissions & Extract from Caution Statement: For Mr Volavola it is said that in the caution interview there are ‘some answers given by [him] which are exculpatory in nature in that those answers ought to have alerted the learned Trial Magistrate to exercise care in accepting the guilty plea’.

6.2	The submissions extract the ‘exculpatory answers’ from the Caution Statement as a whole, and also isolate some of them from accompanying questions and answers. To fairly consider them, they need to be seen as a part of the record in its entirety. The questions and answers which are extracted as – Q. 44, Q45, Q48, Q62: Written Submissions, pp. 3-4

6.3	 These are set out below, with the intervening questions and answers – that is, Q46, Q47, Q49-Q61. So that the ‘exculpatory answers’ can be understood in the way they are put for Mr Volavola, those sought to be relied upon are set out here in bold, with the intervening (excluded) questions and answers re set out between them, as they appear in the Caution Statement: 

Q44.	Can you tell how you forced Litia Kauilagi to have sex with you?
A.	I went inside their bedroom and saw both were sleeping so I Litia up and lie down on her bed beside her and started touching her breast and vagina and then I had sex with her.

Q45.	Did Litia Kauilagi stopped you that to have sex with her?
A.	No. 

Q46.	Who removed the clothes of Litia Kauilagi?
A.	I told her to remove her clothes.

Q47.	Was Litia Kauilagi frightened of you when you told her to remove her clothes?
A.	I think so she was frightened.

Q48.	Did you frightened Litia Kauilagi before having sex?
A. No. 

Q49.	What happened after you touched Litia’s private parts?
A.	I pushed my prick inside her vagina.

Q50.	Did Litia Kauilagi cried when you pushed your penis into the vagina of Litia Kauilagi?
A.	No.

Q51.	What happened after you had sex with Litia?
A.	I stood up and went outside the house.

Q52.	Did you ejaculate inside the vagina of Litia?
A.	No.

Q53.	Why you didn’t ejaculate inside the vagina?
A.	I thought she might become pregnant.

Q54.	Did you tell Litia Kauilagi not to tell anyone after sex?
A.	Yes.

Q55.	What did you tell her?
A.	Not to tell anyone.

Q56.	Is that the only time you had sex with Litia Kauilagi?
A.	On that night I had sex only once with Litia.

Q57.	Did you had sex again with Litia Kauilagi?
A.	Yes.

Q58.	How many times you had sex with Litia Kauilagi?
A.	I think 3 times in 2005 and 2 times in 2006.

Q59.	Can you recall the dates when you had sexual intercourse later with Litia Kauilagi in the year 2006 and year 2006.
A.	I cannot recall the dates.

Q60.	Where you had sex with Litia Kauilagi the rest of the time?
A.	I had sex once in my bedroom and the rest of the time in her bedroom.

Q61.	Did all the time where you had sex with Litia Pushed your prick right inside the vagina?
A.	Yes.

Q62.	Before pushing your penis into the vagina of Litia Kauilagi what you used to do?
A.	I used to touch her breast and rub the vagina with my fingers and I also used to leak the vagina with my tongue and then she gets the feeling I pushed my prick inside.

Q63.	Who removed the clothes of Litia on all occasions you had sex with Litia Kauilagi?
A.	I always tell her to remove her clothes.

Q64.	It is also alleged that you used to show the naked pictures to Litia Kauilagi what you have to say about it.
A.	Yes – it is true.

Q65.	Is there anything else do you wish to say?
A.	I sorry for what I have done.

…: Court Record, pp. 16-18 (Emphasis added to Questions/Answers put forward as ‘exculpatory’)

6.4	In my view, it is not possible to derive from the statements cited the proposition put forward for Mr Volavola. The Magistrate did not overlook them or fail to give them the attention herein sought. When looked at in context it is apparent that Mr Volavola engaged in sexual penetration of the child without her consent and knowing she was not consenting. For example, when asked ‘how he forced Litia Kauilagi to have sex’ with him, Mr Volavola does not deny it, say he didn’t force her, that she was a ‘willing "partner"’, that ‘she wanted it’. He does not prevaricate in any way. He immediately responds:

Q44.	Can you tell how you forced Litia Kauilagi to have sex with you?
A.	I went inside their bedroom and saw both were sleeping so I Litia up and lie down on her bed beside her and started touching her breast and vagina and then I had sex with her.

6.5	That she was sleeping when Mr Volavola approached the child cannot be exculpatory. On the contrary. A person asleep cannot provide resistance or is unlikely to do so unless it is a reflex action. Taking a child unawares in this way is, if anything, behaviour that may well be described as predatory. As the Magistrate stated:

The accused took advantage of the vulnerability of this young girl who is his step-daughter and committed these heinous crimes on her: Court Record, p. 8.

6.6	An alternative is that the approach was made without thought for the child’s vulnerability and inability to fight back through being caught in sleep – consistent with the Magistrate’s remarks as to:

[Her] look[ing] up to him as her step-father for protection, yet in his sexual lust, he raped and defiled this young girl …’: Court Record, p. 8

6.7	The question and answer as to whether the child ‘stopped you that to have sex with her’ comes immediately after the answer that the child was sleeping at the initial approach and is followed by Mr Volavola’s answer to the question ‘Who removed the clothes … I to which he answers that he told her to do so. Consent cannot fairly be derived from this exchange and this circumstance. A willingness to participate would show the ‘partner’ removing her own clothes (and possibly those of the initiator). Later (Q63) Mr Volavola volunteers that it was he who ‘always tell her to remove her clothes’. That is, on no occasion did the child take the initiative, undressing herself: on every occasion, Mr Volavola had to ‘tell’ her to do so. No exculpation here.

Q63.	Who removed the clothes of Litia on all occasions you had sex with Litia Kauilagi?
A.	I always tell her to remove her clothes.

6.8	Mr Volavola then says ‘I think so she was frightened’ (Q47) an exchange omitted from the ‘exculpatory answers’ which, simply, cannot be removed in this way. The following question and answer: 

Q48.	Did you frightened Litia Kauilagi before having sex?
 A. No. 

cannot be taken out of context in this way. 

6.9	Taking this into account in the context of the whole, and looking at further of the questions and answers, the authorities need to be borne in mind:

Q49.	What happened after you touched Litia’s private parts?
A.	I pushed my prick inside her vagina.

Q50.	Did Litia Kauilagi cried when you pushed your penis into the vagina of Litia Kauilagi?
B.	No.

Q50.	Did Litia Kauilagi cried when you pushed your penis into the vagina of Litia Kauilagi?
A.	No.

6.10	In R. v. Ramsay [2001] SKCA 8 the appellant argued that there was:

… no evidence upon which a properly instructed jury could reasonably find a lack of consent to sexual intercourse or an attempt of sexual intercourse. The complainant’s evidence that she cooperated or did not resist amounted in law to consent even though she was induced to do what she did by Mr Ramsay’s exercise of his authority over her as an adult and as a police officer, and by his threat to expose her sexual activities to her mother: …

The Crown’s position was that … exercise of authority and threats, even if non-violent were always relevant to whether consent existed in criminal law, whether the common law or the Criminal Code …

The complainant, … 44 years … at the date of the trial, gave evidence that at the relevant time in 1969 she was 14 years of age, about five feet tall, weighed about 80 pounds, and lived with her parents and siblings in Pelican Narrows, an aboriginal community in northern Saskatchewan. The appellant, am ember of the RCMP, then 32 years of age, called at their home in uniform, and took her to the police station located in the community hall. The complainant said she was ‘scared’ and ‘terrified’ because she did not know why he was taking her there and she did not know what she had done wrong. At the police office, the appellant asked her if she was a virgin, and when she replied ‘no’, he asked whether her mother knew, to which she again replied ‘no’. He ten told her that if she did not have sex with him, he would tell her mother she was not a virgin. They then had sex in a standing position with her pants at her knees.

When … asked if she cooperated with the appellant, she said that she had no choice, that she had to cooperate in view of his threat to tell her mother of her state of non-virginity. When asked why she did not physically resist, she replied that as a 14 year old girl, she was not going to fight an adult policeman and that she had her ‘survival instincts’ and one was not to say or do anything: at 4-5

6.11	At the relevant time, the provision of the Criminal Code said:

135.	A male person commits rape when he has sexual intercourse with a female person who is not his wife,

(a)	without her consent, or

(b)	with her consent if the consent

(i)	is extorted by threats or fear of bodily harm,

(ii)	is obtained by personating her husband,

(iii)	or is obtained by false and fraudulent representations as to the nature and quality of the act.

6.12	Mr Ramsey argued that the exercise of authority was not relevant to the issue of consent under s. 135. However, the Court said this ‘is not so’, citing R. v. Lock (1872) LKR 2 CRR 10; R. v. Nichol (1807) Russ&Ry 131, 168 ER 720 (CCR) and R. v. O’Connor (1998) 123 CCC (3d) 487:

[These cases] recognised that, at common law, exercise of authority was relevant to the issue of consent:

These cases establish that: (1) consent means an active will in the mind of the complainant to permit the doing of the act, and (2) if a relationship of authority exits between the accused and the complainant it is a circumstance which may be taken into account in determining whether the complainant consented to the acts companied of, and, if she did not consent, to explain the lack of resistance: at para 42

Furthermore, there is substantial authority to the effect that excise of authority has long been a relevant factor in determining the issue of consent or the absence thereof in the criminal awl.

In R. v. Jobidon [1991] 2 SCR 714 the Supreme Court of Canada was dealing with consent as a defence to assault. Section 265(3) of the Criminal Code listed four factors which vitiated consent to assault, one of which was exercise of authority. The Court said at pp. 739-40:

Parliament did not set foot into new territory when listing the four vitiating factors in s. 265(3). On the contrary it will be seen that, for the most part, that list merely concretized, and made more explicit, basic limits on the legal effectiveness of consent which had for centuries formed part of the criminal law in England and in Canada. The expression in the Code did not reflect an intent to remove the existing body of common law which already described those limitations and their respective scope. The Code such spelled them out more clearly, in a general form.

That common law is rich and extensive, with roots reaching back well into the decades preceding Canada’s adoption of the Code of 1892. For instance, it provided that, as a general rule, consent would only be valid or legally effective if it was given freely by a rational and sober person (see Russell on Crime … vol. 1, 12rth ed, by JW Cecil Turner … 1964, at p. 678)

Thus in R. v. March (1844) 1 Car&K. 496, 174 ER 909, the English criminal court, speaking through Lord Tindal CJ held that a fraudulently obtained consent to common assault was no consent at all … In R. v. Lock (1872) LR 2 CCR 10, an English criminal court held that eight-year-old boys were too young to understand the nature of a sexual act with a grown man to be able to consent to it. Submission by a young child to an older stronger person, an authority figure, would not be considered consensual. The consent would in all probability have been obtained under a coerced and ill-informed will. The principle now finds expression in Canada …

This makes clear that the common law recognised exercise of authority as a factor to be considered in determination of the issue of consent in the criminal aw, and the reference to Lock makes it clear that it was a factor to be considered in determination of the issue of consent in relation to sexual offences … It follows that the enactment of the Criminal Code .,.. did not change the common law insofar as it recognised exercise of authority as being relevant to the issue of consent to sexual intercourse, simply by failure to list it as a vitiating factor in s. 135(b): at paras [16]-[19]

6.13	In Ramsey the Court went on to observe that ‘if there is any doubt left’ in R. v. Audet [1996] 2 SCR 171, La Forest J. said:

The relative positions of the parties have always been relevant to the validity of consent under Canadian criminal awl. The common law has long recognised that exploitation by one person of another person’s vulnerably towards him or her can have an impact on the validity of consent: historical review prepared by AW Bryant, ‘The Issue of Consent in the Crime of Sexual Assault’ (1989) 68 Canadian Bar Review 94, at pp. 127-31; R. v. Jobidon [1991] 2 SCR 714, at p. 740; and … Norberg v. Wynrib [1992] 2 SCR 226; (1992) DLR (4th) 449; [1992] 4 WWR 557; (1992) 68 BCLR (2d) 29 … 

Accordingly, we must reject the appellant’s argument that exercise of authority was irrelevant to the determination of whether [complainant] had consent to sexual relations, and that it was an error of law for the judge to instruct the jury that it was.

That brings us to the appellant’s argument that there was no evidence upon which a jury, properly instructed, could reasonably find that the complainant had not consented to sexual relations.

In view of our determination that exercise of authority is relevant to the issue of consent, there is abundant evidence upon which a jury could find lack of consent. If we were wrong in this conclusion, the result would be the same. The appellant’s argument that the complainant’s cooperation amounted to consent is the equivalent of saying submission amounts to consent. Authorities from R. v. Day (1841) 173 ER 1026 to R. v. M (ML) [1994] 2 SCR 3, have consistently held that submission does not necessarily prove consent. Consent or lack thereof is a question of fact for the jury to decide, subject of course to proper instruction as to the law. Accordingly, the appellant’s argument that an order of acquittal should be entered on these grounds must be rejected: at paras [20]-[23]

6.14	As was said in R. v. Khan [1990] 1 WLR 815 (26 January 1990): 

Please do not confuse consent with submission. By that I mean there may be cases, and the prosecution says this is one of them, where a girl allows a man to have sex with her without a struggle. That does not amount to consent at all. If a girl decides that it is better to suffer being violated than run the risk of possible injury she is obviously not giving her consent to what is happening. It is common sense to do that rather than struggle and probably risk more aggression, and also the best weapon of the rapist is fear: at 5 – Summing Up of Trial Judge

6.15	As to the following:

Q54.	Did you tell Litia Kauilagi not to tell anyone after sex?
A.	Yes.

Q55.	What did you tell her?
A.	Not to tell anyone.

 this is properly classified as a threat and as indicating a lack of consent and a knowledge on Mr Volavola’s part of a lack of consent. Logically, if the child were complicit in the conduct – engaging willingly in illicit sexual activity with her step-father, then there would be no need for him to tell her not to tell anyone. Why should he? And why would she? If the child and Mr Volavola were engaging in consensual sexual activity behind her mother’s and his wife’s back, she just as well as he would well know not to tell anyone. The very fact of his requiring her to ‘keep quiet’ (effectively) about what he was doing is confirmation both of his awareness of the wrongful activity in which he was engaging, and of the child’s lack of engagement with him – namely her lack of consent. After all, if he new that the conduct shouldn’t be spoken of, why wouldn’t the child? Why would she have to be warned?

6.16	This is put forward as ‘exculpation’ in the suggestion that it shows or could indicate the child’s willingness to engage in the activity. However, it rather indicates:

(a)	Mr Volavola’s willing engagement in the imposition of sexual intercourse and sexual activity upon his young step-daughter; and

(b)	His recognition that she has to be threatened ‘not to tell’ because he risks the information being advised to anyone.

6.17	Whom would she tell? The very person she ultimately did – her mother. If it was willing on her part, her mother would be the last person she would tell – and Mr Volavola would have no need to advise her not to do so.

6.18	As to the exchange:

Q62.	Before pushing your penis into the vagina of Litia Kauilagi what you used to do?

A.	I used to touch her breast and rub the vagina with my fingers and I also used to leak the vagina with my tongue and then she gets the feeling I pushed my prick inside.

6.19	This comes after Mr Volavola has already acknowledged he ‘raped’ the child. It comes after he has said he ‘told her to take off her clothes’ (albeit before he said he ‘always’ told her so), after he said he ‘forced her’ that ‘she was frightened’ and after he says to the question: ‘Did [she] stopped you not to have sex with her?’ the answer ‘No’.

6.20	This is put forward as a response from which it can be inferred that the child was a willing participant in the activity. First, Mr Volavola was charged with rape as well as defilement. If by his conduct he had brought the child to a state of (in his mind – and here, see R. v. Ewanchuk [1999] SCR 330) sexual interest or excitement, then that is defilement. However, this cannot be attributed to the first episode where Mr Volavola acknowledges the child’s being ‘frightened’ (which is from what he said applicable in any event to all the acts of sexual intercourse). Further, if an adult uses adult sexual techniques to ‘interest’ a child in sexual activity – or to persuade himself that he is ‘not guilty’ because ‘she enjoyed it’, this is a most serious form of sexual exploitation and needs to be viewed as such.

6.21	Ample research and writing testifies to the possibilities of women’s bodies responding to aggressive acts of sexual imposition. This does not mean that their bodies and minds are in agreement, but that a physical reaction to a stimulus can be unwilled and unwanted. For many, this reaction is even more distressing, adding to the psychological trauma of rape.

6.22	This Ground cannot be upheld.

7.	Appeal Against Conviction - General

In Vakaciwa v. The State [1996] FJHC 32; Haa0023j.96s (2 August 1996) His Lordship Justice Pathik referred to Mr Vakaciwa’s statement in mitigation that he ‘regret[ted] for committing such a serious offence. May I be given another chance.’ This was accepted as further acknowledging the facts. There, too, Pathik, J. accepted the admission of ‘sexual intercourse with the complainant’ in the ‘absence of anything to suggest otherwise’ as confirmation of acknowledgement of guilt of rape: at 2, 3 (Emphasis added)

7.1	Here, Mr Volavola did not use Mr Vakeciwa’s words: Mr Vakeciwa did not refer to ‘serious charge’ (albeit this was made explicit to him at the outset by the Magistrate: Court Record, p. 7). However, he did ‘ask for leniency’, said it was his ‘first offence’, that he ‘wouldn’t repeat it’; he was ‘married to the victim’s mother’ and would ‘change [his] behaviour from now on’. As in Vakaciwa v. The State this is concrete acknowledgment of the offences.

7.2	Section 206 of the Criminal Procedure Code (Cap 51) provides:

Accused to be called upon to plead

206.-(1) The substance of the charge or complaint shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge.

(2) If the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words used by him, and the court shall convict him and pass sentence upon or make an order against him, unless there shall appear to it sufficient cause to the contrary.

(3) If the accused person does not admit the truth of the charge, the court shall proceed to hear the case as hereinafter provided.

7.3	Again, the circumstances are similar to those in Vakaciwa v. The State. As Pathik, J. said:

It is true that s. 206(2) should be complied with (Barry Jennions v. Reginam 18 FLR 61) and in certain situations non-compliance with it could lead to the setting aside of the sentence as in Josefa Naivalarua v. Reginam where ‘change of election’ was not recorded by he Magistrate and the Magistrate proceeded to trial and convicted and sentenced the accused. There Sheehan J. said that the Magistrate’s Court ‘is a court of record and failure to record that the requisite procedures were followed is an immediate indicator that that Court has exceeded its jurisdiction’.

Here, there can be no doubt whatsoever that the charge was properly put to the accused for the record stats as is usually recorded in that busy jurisdiction … ‘Charge read and explained: Understood: Election: Magistrates Court trial. Plea: Guilty. Undoubtedly the accused did plead ‘guilty’. Even if there was any doubt in that regard, but I find there was none, it was allayed by the accused acknowledging the facts as correct when he in no uncertain terms said … ‘I admit the facts as outlined by the Police’ which is a clear indication that he new what he was answering to: at 3

7.4	There was no ‘I admit the facts …’ statement here. However, the record is clear. There is no equivocation. As in The Director of Public Prosecutions v. Ram Sami Naidu (CrimApp No. 34/84 FCA) (cited in Vakaciwa v. The State) no question arises of the Magistrate’s having had to ‘investigate’ further whether Mr Volavola understood and his plea was unequivocal. As Pathik, J. said:

The question is whether the Magistrate was [or was not] required [to inquire further whether the accused understood the facts] in the circumstances of this case [where he] had already admitted the facts as outlined. The answer to this is definitely in the negative. The record is abundantly clear as to the procedure followed by the magistrate and this cannot be flawed as great care was taken to make certain that he understood the charge and that he really wished to plead guilty. It is an established practice not to entertain matters of this nature on appeal, which was not, but which could have been set up by the accused when the charge was put to him and facts outlined albeit he was unrepresented there. In considering whether the plea is an equivocal or an unequivocal plea, one looks … solely to what happened before the Magistrate to see whether the Court acted properly in accepting an apparent plea of guilty as an unequivocal plea. Now through is counsel he is asking the appellate Court to in effect be allowed to change his plea by raising the alleged irregularity. If that were permitted there would be no end to trials and subsequent appeals.

When the charge was read to [Mr Vakaciwa] and his plea taken, there is nothing in the Record to indicate that the Magistrate has not properly recorded what was actually sad by [him] in response to the charge. I find that the Magistrate had acted in the best interests of [Mr Vakaciwa] and no miscarriage of justice had occurred. He has fully complied with the provisions of s. 206. There is nothing in the record to suggest that the plea was equivocal: at 4

7.5	His Lordship cited Rex v. Golathon (1915) 84 LJKB 788 and referred to Michael Iro v. Reginam 12 FLR 104 (FCA) where it was said:

… it is the duty of a trial judge … to exercise the greatest vigilance to ensure that the accused person fully comprehends exactly what the plea of guilty involves: cited at 4

In the case of an undefended prisoner care must be taken that he fully understands the elements of the crime to which he is pleading guilty, especially if a good defence is disclosed in the deposition: cited at 5

7.6	In this regard, State v. Seru [2003] FJHC 189; HAC0021D.2002S (26 March 2003) is also helpful. 

7.7	Here, the Court Record confirms Mr Volavola made his plea of guilty in an understanding of the elements and what the charges meant, fully comprehending ‘exactly what’ the plea of guilty involved. There was no ambiguity. The Court Record shows he did understand and agree to the commission of all the elements of the offences with which he was charged. I do not consider that there is a ground here upon which Mr Volavola’s appeal can succeed.

8.	Grounds of Appeal – Ground 4: Sentence

The fourth Ground of appeal is:

APPEAL AGAINST SENTENCE

(1)	THE sentence is harsh and excessive considering the circumstances of the offending.

8.1	(a) Basis of Appeal on Sentence: The matters raised in respect of this Ground are:

… the Learned Trial Magistrate failed to consider a starting point for the sentence [which] would have [provided] an opportunity [to] understand the make-up of the sentencing structure since this case does not have aggravating factors such as violence or prolonged violence, threat to safety and so on.

The Learned Trial Magistrate ought to have after finding a relevant starting point given a third (1/3) discount for guilty plea and a further discount for cooperation with the Police, lack of violence, threat to her security and good character.

The aggravation of breach of trust ought not to be the deciding factor her because it appears from the summary of facts that the Complainant may have been a willing partner throughout: Written Submissions, pp. 9-10

8.2	(b) Basis of Magistrate’s Sentence: In considering this Ground and the submissions, it bears setting out in full what was said by the Magistrates Court:

[Mr Volavola] has pleaded guilty and is a first offender. He is charged with the serious offences of Rape and Defilement. [He] took advantage of the vulnerability of this young girl who is his step-daughter and committed these heinous crimes on her.

The victim looked up to him as her step-father for protection, yet in his sexual lust he raped and defiled this young girl. It is abhorrent, to say the least.

The starting point for Rape of a child is 10 years imprisonment. I give credit to [Mr Volavola] being a first offender and pleading guilty at the first instance thus saving this young girl the trauma of giving evidence in Court.

Again I re-iterate what the Courts and other agencies have said time and again that our women and girls need to be protected from such sexual offences.

A deterrent is called for. Taking all the above factors into account, I sentence [Mr Volavola] as follows:-

1st Count-8 years imprisonment
2nd Count-3 years imprisonment – concurrent to 1st count

Right to appeal 28 days
(Sgd)	MK
Resident Magistrate

8.3	(c) Authorities: The authorities confirm the starting point in the offence of rape of an adult at seven (7) years: Kasim v. State [1994] FJCA 25; Aau002j.93s (27 May 1994), at 5 and of a young person as 10 years. As Her Ladyship Justice Shameem said in Poese v. The State [2005] FJHC 9; HAA0091J.2004S (21 January 2005), after undertaking a thorough review of the statutory provisions for sentence in Magistrates Courts:

The tariff for rape in Fiji on one count is 5 to 10 years imprisonment where the victim is an adult. In Mark Lawrence Mutch v. State (CrimApp AAU0060 of 1990) the Court of Appeal said that for the rape of children, 10 years imprisonment was the minimum appropriate. Other cases suggest that the rapes of children have resulted in sentences of between 9 years (Waisake Navunigasau v. State (CrimApp AAU0012 of 1996) to 12 years imprisonment.

These cases suggest that a starting point of 10 years imprisonment in the case of the rape of a child would be appropriate: at 6

8.4	There, Shameem, J. concluded that albeit the total sentence was correctly set at 15 years, the approach to sentence on each count was ‘wrong in principle’. There were four charges of rape and a charge of indecent assault, two charges of rape and that of indecent assault relating to events in 1998 when the victim was 11 years old, one count of rape when she was 11 or 12 years of age, and one count of rape when she was she was 14 or 15 years. Mr Poese was the young girl’s father. On the first occasion of rape, there was violence involving assault (including indecent assault), tying the child’s hands and mouth, and tying her to a cupboard. He took off her clothes and made threats and warnings - with a dagger, and ‘not to make any noise or he would kill her’, ‘not to tell her mother’ and that ‘ he would make her pregnant when she was 16 years old’. The other rapes involved forcing and indecent assault involved, variously, forcing her to drink alcohol, punching, and an effort to have her engage in fellatio. In the first rape, duplicity was also involved – cutting her ankle with a razor blade to ‘explain’ the vaginal bleeding; at 2-3

8.5	The Magistrate’s sentence of 15 years was made up of consecutive sentences of 3½ years for each of the rapes and one year for the indecent assault. Mr Poese had denied the charges and was convicted at the end of a trial where the victim gave evidence and was cross-examined. On cross-examination the contention was that she had ‘fabricated her evidence in collusion with her mother’ and had failed to make a complaint to her mother until 2002. Her complaint was made when, after the final rape, she moved to a relative’s home where after telling him of the rapes she was advised to tell her mother (who by then was living with someone else), which she did. In his evidence on oath Mr Poese said his daughter had ‘manufactured the story with her mother in order to keep him in prison’. His former wife, his daughter’s mother, was cross-examined on the basis that she had ‘collaborated with her to accuse [him] in order to gain custody of her children’: at 3

8.6	Shameem, J. concluded there were no mitigating circumstances – Mr Poese was ‘not of previous good character … was the victim’s father and her pastor [she being] entirely at his mercy and he appear[ing] to have done with her as he wished’. Referring to the tying up, threat with the dagger and cutting with a razor blade to ‘explain’ the bleeding,, and that the first count of rape occurred when the victim was only 11 years old, Her Ladyship said:

Clearly she felt that he had robbed her of her childhood.

8.7	The sentences were varied to each count of rape being assessed at 15 years imprisonment and the indecent assault at 3 years imprisonment, each to be served concurrently. The violence additional to the rapes themselves, including the typing up, and razor-cutting, did not occur in the present case, and the present case is distinguishable by the mitigating factors. The similarities are the threat ‘not to tell’; that the victim was Mr Poese’s daughter (here, step-daughter); and the equivalence in age; as well as one rape occurring in the child’s bedroom. Taking all this into account, a sentence of 15 years is not upon this basis within range here.

8.8	More recently in State v. Fong Toy [2008] FJHC 223; HAA003.2008 (15 September 2008), His Lordship Justice Mataitoga substituted 14 years for a sentence, when the Director of Public Prosecutions appealed against the Magistrate’s sentence (six years each to be served concurrently), on the basis that:

i.	The Learned Magistrate erred in law and fact in failing to considerate seriousness of the offence, and that it warranted a consecutive sentence;

ii.	The sentence imposed by the Learned Magistrate was manifestly lenient having regard to all the circumstances of the case: at para 3]2

8.9	The circumstances put forward by the DPP were fivefold:

•	The victim was 14 years old at the time of the rape;

•	The position of trust the respondent was in, at the time he was committing the 4 counts of rape - the victim was a step-daughter;

•	The fact that threat and force were used to procure sexual intercourse with the victim;

•	The fact that the victim is now pregnant at 15yeats of age: at para [6]

8.10	Further, the DPP said:

… if the Learned Magistrate had correctly applied the sentencing guidelines for rape cases against a child given by the Court of Appeal in Mohammed Kasim v. The State (FCA, CrimApp Case No. AAU043 of 1993) and how the High Court has applied those principles in State v. Nacanieli Marawa the proper sentence for each count should be 11 years imprisonment and not 6 years: at para [7]

8.11	For Mr Toy it was said that the sentence of 6 years imprisonment for each count ‘is harsh and excessive’, reference being made to ‘7 Magistrate Court cases where the sentence for rape ranges from 2.5 years to 5 years’. Mataitoga, J. pointed out that it was not stated vis-à-vis these cases whether they ‘involve the rape of a child in circumstances similar to the rape cases here. Without actually stating it, but by implication, [Mr Toy] is suggesting that the sentence in each count of rape in which he pleaded guilty be in that range i.e. 2.5 to 5 years’: at para [8] His Lordship demurred from this approach.

8.12	Mataitoga, J. considered:

•	‘Given the persistent nature of the offending against the victim who was and still is a child’;

•	That ‘sexual offending against children is particularly abhorrent’;

•	That ‘the victim has since become pregnant’;

•	The ‘likely social and psychological consequences of such depraved acts’ of Mr Toy

10 years was the proper starting point for sentence in the circumstances of the case. 

8.13	He went on to observe that at sentencing, mitigating factors had been submitted for Mr Toy but it was ‘not evident from the sentence ruling’ that the sentence was discounted’. One year should have been subtracted, making nine (9) years. 

8.14	Turning then to the nine aggravating factors considered, His Lordship noted that they had resulted in an increase of three (3) years, and taking them into account, His Lordship agreed with the Magistrate’s evaluation. This then came to 12 years. The plea of guilty ‘requires … a discount of 3 years’. Hence, a sentence of nine (9) years imprisonment resulted for each count of rape, a total term of 36 years. Taking the totality principle into account, ’36 years would be harsh and excessive, given [Mr Toy’s] age …’ The totality principle resulted in the 14 year outcome: at paras [14]-[20]

8.15	In coming to this conclusion, Mataitoga took into consideration:

•	The offending ‘in this instance do not form a single transaction, they occurred as four separate and distinct criminal transactions;’

•	The ‘acts of [Mr Toy were] perpetrated on the young victim in flagrant abuse of [Mr Toy]’s dominant position of trust’;

•	The sentence ‘must take into consideration’:

The serious and heightened concern of the public, against the prevalence of sexual offences involving child victims who are often at the mercy of persons who hold a dominant position of trust over them. This was the case here. The court must where appropriate on the facts before them respond to these legitimate concerns in passing sentence that underscore that community concern and abhorrence: at paras [19] [20]

8.16	Again, there are similarities and differences vis-à-vis the present case. At the same time, it can categorically be stated on the basis of the authorities that what was suggested for Mr Toy, namely a range of. 2.5 to 5 years would be completely outside all principle as expressed by the Courts. Here, there was some ‘persistent offending’ against a child – who was still a child – albeit Mr Volavola was convicted on two counts only – one rape, one defilement and hence cannot be put in Mr Toy’s category of four counts. At the same time, ‘sexual offending against children is particularly abhorrent’. In the present case, nonetheless, no pregnancy has resulted. At the same time, the ‘likely social and psychological consequences of such depraved acts’ should be taken into account vis-à-vis Mr Volavola, as with Mr Toy. On that basis, again, 10 years was the proper starting point for sentence in the circumstances of the case. 

8.17	Unlike Mr Toy’s case, the Magistrate sentencing Mr Volavola did take into account mitigating factors, albeit for Mr Volavola it is said that all mitigating factors were not taken into account. Not all the aggravating factors in Mr Toy’s case were present here. Some were – abuse of a position of trust and youth, the separate and distinct offences (two as opposed to four), and public concern. ‘Threats and force’ would be seen as a distinguishing feature by Mr Volavola. However, this needs to be addressed in the context of the circumstances of Mr Volavola’s offending.

8.18	Finally, it is useful to turn to State v. Marawa [2004] FJHC 338; HAC0016T.2003S (23 April 2004) where His Lordship Justice Gates set down clear guidelines for sentencing in sexual offences against children, citing Roberts and Roberts (1982) 4 CrAppR (S) 8; Kasim v. State [1994] FJCA 25; Aau002j.93s (27 May 1994); Lasaro Turagabeci & Ors (Suva High Court CrimCas No. HAC0008.1996S) and The State v. Navauiani Kori (CrimApp Case No. HAA0050.2002S), saying:

Parliament has prescribed the sentence of life imprisonment for rape. Rape is the most serious sexual offence. The courts have reflected increasing public intolerance for the crime by hardening their hearts to offenders and by meting out harsh sentences.

A long custodial sentence is inevitable. This is to mark the gravity of the offence as felt, and correctly so, by the community. Imprisonment emphasizes the public’s disapproval and serves as a warning to others who may hitherto regard such acts lightly. One must not ignore the validity of the imposition of condign punishment for serious crime. Lastly the sentence is set in order to protect women from such crimes …: at paras [10] [11]

8.19	Gates, J. set out Mr Marawa’s background, including his age, retirement, state of health and asking for forgiveness from the family – rather than the child, Moli, the complainant: ‘I have not heard of any apology tendered to her … She, more than anyone else, needs to hear you say "sorry"’. Lack of a clean police record – albeit ‘most … for minor offences’, being ‘over by 1980 and none … for sexual offences’ – so was disregarded: at paras [12]-[15]

8.20	His Lordship then observed that in Lasaro Turagabeci His Lordship Justice Pain said:

The Courts have made it clear that rapists will be dealt with severely. Rape is generally regarded as one of the gravest sexual offences. It violates and degrades a fellow human being. The physical and emotional consequences to the victim are likely to be server. The Courts must protect women from such degradation and trauma. The increasing prevalence of such offending in the community calls for deterrent sentences: at para [17]

8.21	Mitigating factors listed by Gates, J. (although not present – except ‘clean record’) for Mr Marawa) include:

•	A plea of guilty sparing the child from having to give evidence;

•	Time spent in custody waiting trial;

•	Previous good character: The State v. Samu Seru (Suva Crim Case No. HAS0021.2002S (Shameem, J.)

•	Being hardworking and struggling to raise another child single-handed: The State v. Penisi Senikarawa (High Court Suva, Crim Case HAC0017.2002S, 20 May 2003) (Shameem, J.)

•	First offender, raising his family ‘without help from his wife who was ill’ – 11 year sentence upheld on appeal: State v. Viliame Tamani (High Court Suva Crim Case No. HAC0007.2003S, 4 June 2003); Tamani v. State [2005] FJCA 4; AAU0025.2003S (4 March 2005)

•	Force appearing to be minimal – 12 year sentence with appeal to Supreme Court refused as ‘no arguable case’: Buli v. State [2001] FJCA 13; AAU0003.2000S (24 May 2001); Buli v. State [2002] FJCA 53; AAU0003.2002S (14 November 2003)

8.22	Aggravating factors listed by Gates, J. – present for Mr Marawa:

First, … that the victim was a small made person in comparison with [Mr Marawa], and only a 14-year-old school girl at the time. She was therefore in a vulnerable category, one which the courts must protect.

Second, she was a virgin on the first occasion [Mr Marawa] raped her. [He] beat her into submission. [He] caused her significant pain, shock, and trauma. She bled. No father would ever wish for his daughter to be initiated into the natural act of sex by being painfully raped by a relative nearly three times her age. It will be hard for [her] to remove these two incidents from her memory. I do not forget either the months she kept silent for fear of [the] threats [of killing her if she told anyone].

Third, the victim became pregnant, at such a young age, by [Mr Marawa’s] acts.

Fourth, [Mr Marawa was] entrusted by the parents of this young girl with their daughter. This arrangement was to give Moli an educational opportunity to impel herself. [Mr Marawa was] to act in the place of her parents. [He] broke that trust badly.

Fifth, [Mr Marawa] persisted in [his] defence of these charges and forced the complainant to relive her traumatic time in [his] house by having to give evidence. She had to endure being cross-examined by [Mr Marawa].

Sixth and lastly, Moli’s educational opportunity has been brought to an end by what [Mr Marawa has] done. She is now a mother at a very young age. One can only hope she may get another opportunity to improve herself. But [Mr Marawa] spoilt her secondary schooling and a large part of her adolescence: at paras [24]-[29]

8.23	His Lordship sentenced Mr Marawa on each count of rape to 13 years, to be served concurrently taking into account the totality principle. This was from (at that time) a starting point of seven (7) years (since as noted raised to a starting point of ten years). This was arrived at by taking into account:

Though the violence … was not of the worst type, the complainant was beaten and she had to live in fear of [a] terrible threat. It was enough that she believed you, albeit naively. The sum total of these aggravating factors makes for an ugly combination of criminal behaviour: at para [30]

8.24	A further year was added for each of the six aggravating factors: at para [30]

8.25	(d) Mr Volavola’s Sentence – Analysis: His Worship could, it is true, have set out the ‘pluses’ and ‘minuses’ – mitigation or ‘credit’ and aggravating factors – in a way which made absolutely explicit what was taken into account in each regard. However, analysis of the judgment makes readily discernable the factors taken into account, in relation to the ‘starting point’ of 10 years. If anything, in terms of those matters referred to by His Worship, Mr Volavola’s sentence, rather than being ‘harsh and excessive’, is not only within range but may be arguably on the light side. 

8.26	Starting at 10 years, subtracting one third for the plea of guilty brings the sentence to seven years. One year for good character takes the sentence to six years. It is then necessary to take into account aggravating factors. There was no aggravating factor here in the nature of a weapon or violence such as hitting or tying up or punching as has occurred in a number of reported cases, or pregnancy – see for example Poese v. The State [2005] FJHC 9; HAA0091J.2004S (21 January 2005); State v. Fong Toy [2008] FJHC 223; HAA003.2008 (15 September 2008). On the other hand, contrary to the submission that there is no aggravating factor such as ‘threat to safety’, there was a direct threat to the complainant’s safety. To be the subject of sexual imposition by one’s step-father in one’s own home, and in one’s bedroom at night, threatens safety and security. If a person – particularly a child or young person – cannot be safe from harm at home – and at night, and in her bedroom – where can she feel safe? In the same vein, the contention that Mr Volavola ought to have received a ‘further discount for …. [no] threat to her security’, is unsustainable. The child’s security was threatened. Not only was it threatened, it was directly impinged upon. She was also threatened by Mr Volavola – as noted earlier, in his ‘warning her not to tell anybody’. This also goes to safety and security – the deliberate inference and even removal from the child of the comfort and support she would ordinarily turn to in times of distress, and particularly where the victim of an offence.

8.27	It would be generally accepted that in times of distress, children turn to their parents for help and support. Here, it was the child’s step-father who engaged in the actions against her, and who threatened her, in all the circumstances making it the more difficult for her to seek the comfort and support of her mother. That is a denial of security and safety to the child.:

1.	Starting point – 10 years

2.	Credit – 

A.	First offender

B.	Plea of guilty – ‘at first instance thus saving this young girl the trauma of giving evidence in Court’

3.	Aggravating factors – The judgment indicates (albeit not explicitly attributed as aggravating factors with an equivalence in years or months attached) that aggravating factors were:

A.	Taking advantage of the vulnerability of the young girl;

B.	That she was his step-daughter;

C.	That the crimes are heinous;

D.	That she ‘looked up to him’ as her step-father for protection;

E.	That Mr Volavola indulged his ‘sexual lust’ by raping and defiling her;

4.	General factors considered were that:

A.	‘… our women and girls need to be protected from such sexual offences’;

B.	A deterrent is called for.

8.28	One matter to which His Worship did not explicitly refer, and which is raised for Mr Volavola, is that of his cooperation with police.

8.29	Mr Volavola’s immediate cooperation with police when he was questioned is important and should be taken into account. In accordance with the authorities, however, this is taken into account in the context of the guilty plea as a whole. The authorities provide that where police cooperation is in question, it is dealt with as a matter deserving of particular ‘discount’ where it assists police in bringing accomplices before the courts. That is, where an accused person provides police with information about persons with whom the offences have been committed, which lead to police being able to arrest and charge them as well as the person cooperating with them. 

8.30	In Tukana v. The State [1990] FJHC 1; Haa0064j.89s (2 January 1990) His Lordship Justice Fatiaki took police cooperation into account in ‘ordinary’ circumstances – that is, where it was a part of the whole transaction of an early guilty plea. However, the factors there included the extreme youth of the appellant and that it would lead to his freedom in time for his 21st birthday. Winters, J. has set the benchmark in this regard. For example, in State v. Racule [2007] FJHC 15; HAC43.2004 (11 May 2007) His Lordship said:

In mitigation, I accept that a significant discount must be given for your cooperation with the police and early acceptance of responsibility for this homicide. I accept you have remorse for your actions that was underscored by your attitude to the offending and trial procedure. You are young, with no previous convictions.

For these mitigating features I allow a discount of three years: at paras [13]-[14]

8.31	See also Cokanisiga v. The State [2005] FJCA 57; AAU0013.2005S (11 November 2005); Naciri v. The State [2004] FJHC 323; HAA063.2003B (25 March 2004). 

8.32	(e) Sentence within Appropriate Range: The principle governing appeals on sentence is that courts ought not to interfere with the setting of the sentence by the court below, unless it is within the ‘harsh and excessive’ category as in out of range. The sentence here is clearly within range.

8.33	As earlier recited the Magistrate did take into account all the relevant matters. There was a breach of trust that was properly taken into account by His Worship and in my view this was all the more serious in the context of the attempted introduction of the child into adult sexual behaviour.

9. 	Note re Law Reform

All around the common law world, rape and other sexual offences have been the subject of review, revision and reform. This has occurred since at least the 1970s. It will be important for the Parliament upon its reconvening to give consideration to the importance of rape and sexual offences law reform. Three matters that arise from consideration in this case are:

•	The need (amongst other matters) to give consideration to including in the Penal Code a definition of what is not consent for the purpose of the offence of rape;

•	The need to incorporate into the definition that the utilisation of adult sexual techniques to obtain the submission of a child to sexual intercourse (sexual penetration) does not lead to a conclusion that the child ‘consented’ to the penetration;

•	The need to incorporate an age differentiation into the proviso whereby an accused can claim mistake as to age as a defence: namely, that if there is say two to three years difference between the young person and the accused, then that can be a defence, and a differential up to a maximum applies so that where there is a substantial age difference – such as 10 or more years – the contention that the accused believed the victim to be above the age of consent does not apply.

ORDERS

1.	The appeal against conviction is dismissed.

2.	The appeal against sentence is dismissed.

Jocelynne A. Scutt
Judge

Lautoka
23 October 2008