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Crown v Leo [2014] TVHC 13; Misc. Referral 01.2013 (21 February 2014)

In The High Court of Tuvalu

HC. Misc. Referral case no. 1/13
At Funafuti

Criminal Jurisdiction

Referral Case

Between:
Crown

v

Teipouli Leo

BEFORE THE JUDGE

Ms. Laigane Italeli for the Crown
Ms. Filiga Taukiei for Leo.

Referral for the opinion of the High Court .

The learned Senior Magistrate has referred for the answer of the High Court this question:

"Of whether the court can or cannot do anything if the accused plead guilty to the charge and the facts did not support the section in which the accused was charged".

The facts from which the referral arises are not in dispute. The defendant and a little four year old girl were taking part in a game of hide-and-seek. They hid together in the lavatory. The defendant twice asked the little girl to suck his penis. Twice she did so.

The defendant has been charged with indecent assault pursuant to section 133 of the Penal Code. He has pleaded guilty. The Senior Magistrate is of opinion that the facts do not support the charge.

The learned Senior Magistrate is correct. Section 133 id headed "Indecent assault on females". The defendant did not indecently assault the little girl but obliged her to take part with him in an act of gross indecency.

There is no provision in the Criminal Code relevant to what happened. The solution to the problem must be found elsewhere.

Tuvalu has inherited statutes of general application in force in England on 1st January 1961. What English Act, if any relevant to the facts of this case, was in force in England on 1st January 1961? The answer seems to be the Indecency with Children Act 1960 (which I assume came into operation before 1st January 1961). Absent any amendment or repeal (and I have been told of none) that Act is part of the law of Tuvalu and was so in December 2009, the date of the incident. Section 1 is the appropriate section (see Archbold, forty - third edition para 20-392).

I suggest that in this case the appropriate procedure is for the Senior Magistrate to refuse to accept the defendant's plea of guilty and substitute for it a plea of not guilty and to find the defendant not guilty.

It will be then for the prosecution to consider how to proceed.

Date 21st day of February 2014.

Hon. Robin Millhouse QC
JUDGE OF THE HIGH COURT OF TUVALU