Case on Defilement

[2008] FJHC 259

HIGH COURT OF FIJI

Volavola

State

High Court Scutt J

25 August, 23 October 2008

(1) Criminal procedure - Trial - Judge - Defilement of minor - Statutory

defence - Mistake as to age of victim - Unrepresented accused pleading
guilty - Magistrate convicting and sentencing accused - Accused appealing
against conviction - Whether magistrate required to inform unrepresented
accused as to availability of defence -Relevant considerations - Penal
Code, s 156.

(2) Criminal procedure - Trial-Judge - Caution statement - Unrepresented

accused charged with rape and defilement - Accused pleading guilty -
Caution statement not put to accused - Magistrate not questioning
voluntariness of caution statement - Magistrate convicting accused -
Accused appealing against conviction - Whether treatment of caution
statement founding irregularity - Whether accused wrongly deprived of
defence - Relevant considerations.

(3) Criminal procedure - Trial - Guilty plea - Rape - Unrepresented

accused pleading guilty - Magistrate convicting accused - Accused
appealing against conviction - Whether plea unequivocal - Explanation of
charge by magistrate - Whether sufficient - Caution statement - Whether
exculpatory statements properly considered - Whether conviction to be
upheld - Relevant considerations - Penal Code, ss 149, 183.

(4) Appeal - Appellate court - Role - Sentencing - Rape - Unrepresented

accused sentenced to eight years' imprisonment for rape and three years'
imprisonment for defilement - Victim the 14-year-old stepdaughter of
accused - Whether sentences to be upheld - Relevant considerations.

V was charged with the rape and defilement of L, his 14-year-old

stepdaughter, under ss 149 and 155 of the Penal Code. Section 149 defined
rape as unlawful carnal knowledge of a woman or girl without her consent.
Section 183 defined carnal knowledge as the act of penetration. Section
156 included a proviso which provided for a defence where the accused
had reasonable cause to believe and did in fact believe that the victim was
16 years old. Upon his arrest, he made an extensive statement under
caution to police, admitting to raping L. He appeared, unrepresented, in the
magistrates court, where he pleaded guilty to each charge and was
sentenced to eight years' imprisonment for rape and three years'
imprisonment for defilement. The magistrate did not question the
circumstances under which the caution statement had been provided by V.
The court record noted that the charge of rape had been 'read and explained'
to V. V appealed subsequently, with representation, to the High Court
against his conviction on the following grounds: (i) the magistrate failed to
make clear to V that a defence pursuant. to the s 156 proviso might be
available to him; (ii) the magistrate did not treat the caution statement made
by V properly and (iii) V's plea of guilty to rape was equivocal because the
magistrate's summary to V, which referred simply to ¢sex¢, did not properly
outline the elements of the offence, in particular, the requirement for lack
of consent and for penetration. V also appealed against his sentence,
arguing that it was harsh and excessive.

HELD: Appeal dismissed.

(1) In an assessor or jury trial the judge's obligation to raise the statutory
defence of mistake as to the age of a victim under s 156 of the Penal Code,
in the charge to the jury or summing up, arose if at least some facts existed
in the accused's case that gave rise to the possibility that the defence might
be open to the accused. Once that was established, then it was for the
prosecution to negative such defence. The following principles were
applicable to accused persons who were unrepresented in cases where the
charge was defilement: (a) Although an evidentiary onus lay upon the
accused to put before the court material giving rise to the prospect that the
defence might apply, where the accused was unrepresented, an obligation
lay upon the court to make known, both in a language and in a way
intelligible to the accused, that the defence existed and what it meant or its
application. If material before the court provided a basis for the statutory
defence, the court had to consider it in the context of the statutory defence.
(b) In the absence of any material one way or the other, the court had to
ensure that the accused had a proper opportunity to avail him- or herself of
the defence, so that if the accused had any basis upon which the defence
could apply, then s/he could 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 operated did not
apply if there was material before the court which discounted the
possibility that the defence applied to the accused. In the instant matter,
there was no obligation on the magistrate to put a statutory defence to V
because the voluntary caution statement refuted any proposition that there
was material to be put forward by V which could support that defence (see
paras [2.1], [2.42]-[2.48], [2.50]-[2.51], [2.53], below). R v CTM [2008]
HCA 25, [2008] 5 LRC 44 applied. Ali v State [2008] FJCA 30 considered.

(2) Although there was a discrepancy between the summary and the caution
statement, as to where the acts in question occurred, it was not such as to
lead to a quashing of V's conviction or to provide a basis for a finding of
irregularity. Nor was there any suggestion of police force, pressure or
promise to V should he confess or plead guilty. At the same time, the
magistrate should have put the caution statement to V and provided him
with an opportunity to state to the court whether it was voluntarily made or
was made under pressure or by threat or inducement. Not doing so meant
that the court was effectively depriving itself of the full information it
should have before it. In the instant matter, V challenged his conviction on
the basis that he was wrongly deprived of a defence open to him. On the
material before the court, that defence was not open to V and that ground of
appeal should be dismissed (see paras [3.4]-[3.6], [3.16]-[3.21], below).
Nawaqa v State (15 March 2001, Misc no HBM00142000L, unreported),
Fiji HC distinguished. Koroi v State [2002] FJHC 152 applied.

(3) The court record noted that the charge of rape was `read and explained'
to V 'Explanation' connoted more than simply reading out or reiterating the
charges or the Penal Code provisions. The magistrate was experienced and
long-serving and, in the absence of any explicit basis to the contrary, it was
proper to infer that the magistrate, in explaining the charge, did so
accurately and with reference to the essential elements of the charges under
ss 149 and 183 of the Penal Code. A summary should state clearly, and
without any ambiguity, precisely what was alleged to have occurred.
Explicit reference to what the actual acts were as charged and as revealed
from the investigation was called for. Although the use of `sex' in the
context of a charge of rape involving penetration of the vagina by the penis
without consent was not satisfactory, it did not provide a basis for quashing
V's conviction. The magistrate 'explained' the charge to V. Furthermore, the
caution statement made it clear that V did not misunderstand what 'sex'
meant. Similarly, material in the summary confirmed that lack of consent
was an integral component of rape, providing a proper basis upon which
the magistrate could consider V's plea of guilty unambiguous. The caution
statement again made it clear that V was aware of the lack of consent on
the part of L. The fundamental question was whether V was confronted
with ambiguity, confusion, unfairness or injustice. Deciding that required
taking into account the whole of the summary and the court record. On the
facts, V's plea of guilty was unequivocal. Similarly, the magistrate did not
overlook or fail to give attention to the so-called exculpatory statements in
the caution statement. When considered in the context of the caution
statement as a whole, it was apparent that V engaged in the sexual
penetration of L, a child, without her consent and knowing that she was not
consenting (see paras [4.8]-[4.10], [4.13], [5.1]-[5.12], [5.15]-[5.16],
[5.20], [5.22], [5.26], [5.28]-[5.29], [5.33], [6.2], [6.4], [6.22], below).
Dicta of Major J in R v Ewanchuk [2000] 3 LRC 88 at [45]-[49] and of
ShameemJ in State v Seru [2003] FJHC 189 applied.

Per curiam. All around the common law world, since at least the 1970s,
rape and other sexual offences have been the subject of review, revision
and reform. It will be important for Parliament to give consideration to the
importance of rape and sexual offences law reform. Three matters that arise
in this case are as follows. First, 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. Secondly, 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. Thirdly, 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, for example, 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 ten or more years-the contention that the accused
believed the victim to be above the age of consent does not apply (see para
[9], below).

(4) The principle governing appeals against sentence was that courts should
not interfere with the setting of the sentence by the court below unless it
was 'harsh and excessive'. In the instant matter, although he did not set out
explicitly the mitigating and aggravating factors, the magistrate took into
account all relevant matters. In particular, L's rape by V, her stepfather, was
a serious breach of trust that was properly taken into account by the
magistrate. The appeal against sentence was, accordingly, dismissed (see
paras [8], [8.25]-[8.27], [8.29], [8.32]-[8.33], below).

[Editors' note: Sections 149 and 156 of the Penal Code, so far as material,
are set out at paras [1.3] and [1.5], below.

Section 183 of the Penal Code provides: `Whenever, upon the trial for any
offence punishable under this Code, it may be necessary to prove carnal
knowledge, it shall not be necessary to prove the actual emission of seed in
order to constitute a carnal knowledge, but the carnal knowledge shall be
deemed complete upon proof of penetration only.']

Cases referred to in judgment

Akuila Kuboutawa v R (Crim App No 2/75, unreported)
Ali v State [2001] FJHC 123, Fiji HC
Ali v State [2008] FJCA 30, Fiji CA
B (a minor) v DPP [2000] 4 LRC 405, [2000] 1 All ER 833, [2000] 2 AC
428, UK HL
Balecala v State (Crim App 62 of 1996, unreported)
Banditt v R [2005] HCA 80, (2005) 224 CLR 262, Aus HC; affg [2004]
NSWCCA 208, (2004) 151 A Crim R 215, NSW CCA
Bari v R (Crim App No 11/75, unreported)
Brk v R [2001] WASCA 161, W Aus CCA
Buli v State [2001] FJCA 13, Fiji CA; leave to appeal out of time refused
[2002] FJCA 53, Fiji CA
Chand v State [2008] FJHC 9, [2008] 3 LRC 359, Fiji HC
Cokanisiga v State [2005] FJCA 57, Fiji CA
DPP v Ram Sam Naidu (1984, Crim App No 34 /84, unreported), Fiji CA
Duve v State [2002] FJHC 63, Fiji HC
He Kaw Teh v R [1986] LRC (Crim) 553, (1985) 157 CLR 523, Aus HC )
Iro v R (1966) 12 FLR 104, Fiji CA
Jennions v R [1972] 18 FLR 61
Karikari v State [1999] FJHC 128, [1999] 45 FLR 310, Fiji HC
Kasim v State [1994] FJCA 25, Fiji CA
Koroi v State {2002] FJHC 152, Fiji HC
Koroiciri v R (Crim App No 43 of 1979, unreported), Fiji CA
Marawa v State [2006] FJCA 48, Fiji CA; rvsg in pt [2004] FJHC 337, Fiji
HC
Mutch v State (Crim App AAU0060 of 1990, unreported), Fiji CA
Naciri v State [2004] FJHC 323, Fiji HC
Naivalarua v R (Crim App No 46 of 1987, unreported)
Nanovo v State [2001] FJHC 53, Fiji HC
Navunigasau v State (Crim App AAU0012 of 1996, unreported), Fiji CA
Nawaqa v State (15 March 2001, Misc no HBM 00142000L, unreported),
Fiji HC
Norberg v Wynrib [1993] 2 LRC 408, [1992] 2 SCR 226, (1992) DLR
(4th) 449, Can SC
Pemble v R (1971) 124 CLR 107, Aus HC
Poese v State [2005] FJHC 9, Fiji HC
Question of law reserved on acquittal (No 1 of 1993) (1993) 59 SASR 214,
Sth Aus SC
R v Acre Tukorehu Keremete [2003] NZCA 237, NZ CA
R v Audet [1996] 2 SCR 171, (1996) 135 DLR (4th) 20, Can SC
R v Chadderton (1908) 1 Cr App Rep 229
R v CTM [2008] HCA 25, [2008] 5 LRC 44, Aus HC
R v Day (1841) 9 C & P 722
R v Ewanchuk [2000] 3 LRC 88, [1999] 1 SCR 330, 169 DLR (4th) 193,
Can SC
R v Golathon (1915) 84 LJKB 788
R v Harling [1938] 1 All ER 307, 26 Cr App Rep 127, UK CCA
R v Howard [1965] 3 All ER 684, 50 Cr App Rep 56, [1966] 1 WLR 13,
UK CCA
R v Jobidon [1991] 2 SCR 714, Can SC
R v K [2001] UKHL 41, [2002] 2 LRC 424, [2001] 3 All ER 897, UK HL
R v Khan [1991] LRC (Crim) 699, [1990] 2 All ER 783, 91 Cr App Rep
29, UK CA
R v Lang (1975) 62 Crim App Rep 50, UK CA
R v Lock (1872) LR 2 CRR 10, UK CCR
R v M (ML) [1994] 2 SCR 3, Can SC R v March (1844) 1 Car & Kir 496
R v March (1844) 1 Car & Kir 496
R v Matoka [1987]1 NZLR 340, NZ CA
R v Mueller [2005] NSWCCA 47, (2005) 62 NSWLR 476, NSW CCA
R v Nichol (1807) Russ & Ry 131, UK CCR
R v O'Connor (1998) 123 CCC (3d) 487, BC CA
R v Ramsay (2001) 152 CCC (3d) 84, (2001) 41 CR (5th) 298, Sask CA
R v Singh (18 December 1990, Crim App No 226 of 1990, unreported)
R v Tavete [1988]1 NZLR 428, NZ CA
R v Turner [2007] NZCA 427, NZ CA
Saboboki v State [2001] FJHC 193, Fiji HC
Senikudra v State (1988) 34 FLR 114, Fiji HC
Shaheeb v State (24 May 2007, Crim App No 46 of 2007, unreported)
Siga v State [1996] FJHC 50, Fiji HC
State v Fong Toy [2008] FJHC 223, Fiji HC
State v Marawa [2004] FJHC 338, Fiji HC
State v Racule [2007] FJHC 15, Fiji HC
State v Saukuru (HAA013 of 2000L, unreported), Fiji HC
State v Senikarawa [2003] FJHC 1955 Fiji HC; rvsd in part [2006] FJCA
25, Fiji CA
State v Seru [2003] FJHC 189, Fiji HC
State v Seru 2003 FJHC 190, Fiji HC
State v Tamani [2003] FJHC 168, Fiji HC; affd [2005] FJCA 4, Fiji CA
State v Turagabeci [1996] FJHC 173, Fiji HC
Tukana v State (1990] FJHC 1, Fiji HC
United States v Brown (2000) 43 MJ 202
United States v Buckley (1992) 35 MJ 262
United States v Hibbard (6 February 2003, No 02-0231, Crim app no
34371, unreported), US Armed Forces CA
United States v Jones (1998) 49 MJ 85
United States v Steinruck (1981) 11 MJ 322
United States v Taylor (1988) 26 MJ 127
United States v True (1995) 41 MJ 424
Vakaciwa v State [1996] FJHC 32, Fiji HC

Legislation referred to in judgment

Australia
Crimes Act 1900 (NSW), s 66C(3)
Criminal Code 1899 (WA)

Canada
Criminal Code, ss 135, 265(3)

Fiji Islands
Penal Code, ss 149 - 150, 156, 183
Criminal Procedure Code, ss 176, 206, 319

Other sources referred to in judgment

Bryant `The Issue of Consent in the Crime of Sexual Assault' (1989) 68
Canadian Bar Review 94 at 127-131
Scutt `Consent versus Submission: The Question of Force, Fear and
Threats in Rape' (1977) 13 University of Western Australia Law Review 52
Scutt `The Standard of Consent in Rape' [1976] NZLJ 262
Spisto and Wright `(Justifiable) Homicide Whilst Effecting An Arrest:
When Is This Lawful? A Comparison Between The South African And
New Zealand Systems of Law' [1999] Waikato Law Rev 6
Turner (ed) Russell on Crime (12th edn, 1964), vol 1, p 678

Appeal
The appellant, Onisivora Volavola, appealed against his conviction and
sentence by the magistrates court on 6 March 2007 of the charges of rape
and defilement under the Penal Code. The facts are set out in the judgment.

S Sharma for the appellant.

J Cokanasiga for the state.

23 October 2008. The following judgment was delivered.

SCUTT J.

1. CHARGES AND 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.

(a) Counts and Penal Code (Cap 17) provisions

[1.2] The first count in respect of which Mr Volavola pleaded guilty was:

`FIRST COUNT

Statement of Offence (a)

RAPE: Contrary to ss 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.'

(Corporal punishment is unconstitutional per Ali v State [2001] FJHC 123.

Convicted persons cannot be sentenced to this punishment and any
sentence purporting to incorporate it is unconstitutional; such punishment
will be set aside on appeal.)

[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 s 156(1) (a) of the Penal Code (Cap 17)

Particulars of Offence (b)

ONISIVORO VOLAVOLA, between 1/1/2001 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.'

(Corporal punishment is unconstitutional: Ali v State [2001] FJHC 123 so

cannot be imposed. If it is, the sentence will be set aside on appeal.).

(b) Sentence and appeal

[1.6] On that same day, 6 March 2007, Mr Volavola was sentenced on his
guilty plea:

• On the first count, rape - eight years' imprisonment;

• On the second count, defilement-three years' imprisonment

(Sentence on the second count to be served concurrently with that on the

first count.)

[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.

[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, Shaheeb v State (24 May 2007, Crim App No 46 of 2007,
unreported) is cited in support. There, Govind J 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. (See Ali v State [2008] FJCA 30 for a review by
the Court of Appeal as to the powers of the High Court in criminal appeals,
referencing the Criminal Procedure Code (Cap 21), ss 176, 319 and
observing that those powers are 'broad'.).

[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.'

(a) Law re exculpatory defence

[2.1] The law as to defences, such as that under s 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 to 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.

(b) Authority re exculpatory defence – Fiji

[2.5] In Nanovo v State [2001] FJHC 53 Shameem J addressed this

question. (On the rights of unrepresented accused persons generally, see
Nawaqa v State (15 March 2001, Misc no HBM00142000L, unreported),
Fiji HC; see further reference re the summary of facts and ground 2.)
There, as here, the charge was defilement of a girl between 13 and 16 years
of age contrary to s 156(1)(a) of the Penal Code.

[2.6] The basis of the appeal against conviction and sentence in Nanovo v
State [2001] FJHC 53 was:

 that the victim was 'big in build' 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; C

 that the victim was not a virgin;

 that the victim should not have been believed; and

 that the sentence was harsh and excessive.

[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 six 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.'

[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 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.'

(c) Authority re exculpatory defence—general

(2.10) Ample authority exists in other jurisdictions supporting this

approach. This was made clear in the Australian High Court cases R v
CTM [2008] HCA 25, [2008] 5 LRC 44 and He Kaw Teh v R [1986] LRC
(Crim) 553. The former confirmed the latter ([2008] 5 LRC 44 at [179] per
Hayne J):

`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 Teh:
"[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 is 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 ...'

[2.11] In R v CTM [2008] 5 LRC 44 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'
([2008] 5 LRC 44 at [191]-[192]):

`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 vR (1971) 124 CLR 107
at 117, per Barwick CJ 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 118 per
Barwick CJ) ...' (Hayne J's emphasis.)

[2.12] This did not, however, avail the accused in CTM, 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.' (See [2008] 5 LRC
44 at [194].)

[2.13] Agreeing with Hayne J in CTM, Gleeson CJ, Gummow, Crennan and
Kiefel JJ said ([2008] 5 LRC 44 at [35]-[36], [38]-[39]):

‘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 prove
beyond reasonable doubt that the accused did not honestly believe,
on reasonable grounds, that the other party was above the age of 16
years ... 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 nine 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 ten. 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 what 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.'

[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 DPP [2000] 4
LRC 405 and R v K [2001] UKHL 41, [2002] 2 LRC 424.

[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 and R v Tavete
[1988]1 NZLR 428 at 430.' (See Spisto and Wright '(Justifiable)
Homicide Whilst Effecting An Arrest: When Is This Lawful? A
Comparison Between The South African And New Zealand
Systems Of Law' [1999] Waikato Law Rev 6.) (My emphasis.)

[2.16] Again in R v Acre Tukorehu Keremete [2003] NZCA 237 at [12],

again citing R v Tavete [1988]1 NZLR 428, 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.'
(My emphasis.)

[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 Hibbard (6 February 2003, No 02-
0231, Crim app no 34371, unreported), US Armed Forces CA, 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
(1995) 41 MJ 424 at 426 and United States v Taylor (1988) 26 MJ 127 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 (2000) 43 MJ
202 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 (1998) 49 MJ 85
at 91; United States v Taylor (1988) 26 MJ 127 at 131 "Any doubt
whether an instruction should be given should be resolved in favor
of the accused": United States v Brown (2000) 43 MJ 202 (quoting
United States v Steinruck (1981) 11 MJ 322 at 324).'

[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 favourable
light. Cf United States v Buckley (1992) 35 MJ 262 (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 T Sgt W
consented to sexual intercourse.'

(d) Unrepresented accused person—authority

[2.19] The question addressed by Shameem J in Nunovo v State [2001]

FJHC 53 was considered more recently by the Court of Appeal in Ali v
State [2008] FJCA 30. There, the additional question of the unrepresented
accused was in issue.

[2.20] Mr AIi 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.

(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 s
156(l), 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(l) of the Penal Code.'

[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'.
The court then went on to consider the statutory defence, saying that in the
case of an unrepresented accused 'any statutory defence should be brought
to his attention by the court', citing Bari v R (Crim App No 11/75,
unreported), 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.'

[2.23] Karikari v State [1999] FJHC 128, [1999] 45 FLR 310, relied upon
by Mr Volavola in this appeal, was taken into account by the Court of
Appeal in Ali v State, the court observing that in Karikari Pathik J 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 build. 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'.

[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 twelve months was sufficient compliance
with s 156(1)(a)'. In this, however, `he fell into an error and the conviction
cannot stand in view of the said proviso'.

[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.'

[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 Shaheeb v State (24 May
2007, Crim App No 46 of 2007, unreported). 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 two years'
imprisonment on count 1 and three years on count 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]'.

[2.31] The state conceded the appeal, referring to Karikari v State [1999]
FJHC 128, [1999] 45 FLR 310 and Sabobaki v State [2001] FJHC 193. In
the latter, as in the former, Mr Sabobaki 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 Shaheeb v State (24 May 2007, Crim App No 46 of 2007,

unreported) Govind J referred further to Bari v R (Crim App No 11/75,
unreported)—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 R (Crim App No

2/75, unreported), citing in particular Grant CJ'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.'

[2.31] 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'.

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

'In this case the girl was less than three 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
eight months in custody which equates to over twelve months after
remission. In the outcome, I acquit [Mr Shaheeb ] on this count as
well. (As to whether in such circumstances an acquittal can be
entered, see Duve v State [2002] FJHC 63, where the High Court
said in respect of a guilty plea, when in a charge of larceny there
was effectively a claim of taking "as of right" rather than an
 intention to unlawfully deprive: "If the plea is ambiguous or is
equivocal, then the magistrate must set it aside and proceed to trial
on a not guilty plea. An accused person cannot be acquitted after a
guilty plea. The prosecution must be given a chance to lead
evidence and the accused must be given a chance to cross-examine.
Whether or not the Appellants' defences are accepted, that is
whether they honestly believed they could keep the money and that
the owners could not be found, will be a matter for the trial court to
consider, after hearing all the evidence".)'

[2.36] Although the point was not made, the evidence in Bari v R (Crim
App No 11/75, unreported) 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 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 (at [151-[16]):

'[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 inquired 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].

[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 Gates J dealt with the matter in
his summing up in a trial in the High Court, before assessors, as follows (at
[28], [39]-[42]):

‘[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 s 156(1) of the Penal Code. By virtue of s
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 here 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 in 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 two
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.'

[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 [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
State [2006] 48 at [3].

(e) Unrepresented accused— principles

[2.42] 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), 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.

(f) Material before the court—summary and mitigation statement

[2.46] 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 ...' (My emphasis.)

[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.’ (My
emphasis.)
[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 13 and 14 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 ten years
of age, or at the most eleven 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-
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. (The caution statement confirms that the
facts apart from date of birth were volunteered by Mr Volavola.).

[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.

(g) Material before the court—caution statement

[2.52] (As to the caution statement and whether it was properly before the
court, see later.) 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 13 yrs.

Q25. Are they both schooling?

A. Yes.

Q6. 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 girl's name is Litia and the boy's name is Mesulame.'

(Quoting part rather than all a caution statement can result in a 'taking out
of context'. In the present instance, however, the questions and answers
here are incontrovertible and their meaning does not change or the
impartation of knowledge on Mr Volavola's part disappear in the reading of
the whole of the caution statement. The caution statement in its entirety is
set out later, with further comment as to its substance and as to the matter
of its being taken into account, or not being taken into account, by the
magistrate.)

[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.

(h) Application of authorities to present case

[2.59] A perusal of the aforesaid authorities supports this position.

[2.60] Mr Volavola's circumstances are clearly distinguishable from those

in Karikari v State [1999] 45 FLR 310. 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 build. 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 Shaheeb v State (24 May 2007, Crim App No 46 of 2007, unreported).
There, the basis of the proposition was that `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 a years—the ages to which the charges in Mr Volavola's case relate.

[2.62] Albeit the matters put forward in Bari v R (Crim App No 11/75,
unreported) 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 R (Crim App No 2/75, unreported) 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, 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 (it
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 (at [2.37]):

'(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.'

[2.67] Mr Volavola's situation is commensurate with that in State v

Marawa [2004] FJHC 337, 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 State [2001] FJHC 53 and even more so. I say 'even more so'
because in Nanovo the uncle (the accused) `had lived in the house for six
months, and knew she was still at a 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 2003-2006 (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.'
[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 Nawaga v State (15 March
2001, Misc no HBM00142000L, unreported), Fiji HC, an extensive review
of the authorities and principles by Gates J makes clear the 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.
(a) Caution statement

[3.2] 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 six-and-a-half handwritten
pages, commencing at 6.30 pm:

'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 [sic] 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.

Q10. Do you understand the above allegation?

A. Yes.

Q 11. 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 sornewhere?
A. Yes.

Q15. Where do you work?

A. At Fijian Hotel.

Q 15. What job do you do? [Note-two Q15s appear in the record of
interview/ caution statement. This is the second.]
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.

Q 19. 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 13 yrs.

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 children stay home with me.

Q37. Do you like your stepchildren?

A. Yes, I do love them.

Q38. It is alleged that you raped your stepdaughter 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 agree 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 Mesuiame 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
[woke] Litia up and lie down on her bed reside 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 frighten 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 [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.

Q66. Do you wish to read your statement?

A. You read it for me [read back 20.00hrs]
 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, the 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
[Chand v State [2008] FJHC 9, [2008] 3 LRC 359] 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.'
[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. (On the ground vis-a-vis
'exculpatory' statements and nature of the caution statement, see later.) 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] 3 LRC 359 in a through review of the

authorities Goundar J said, amongst other matters (at [33]-[34]):

`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 Saukuru (HAA013 of 2000L, unreported), Fiji HC and
Nawaqa v State (15 March 2001, Misc no HBM00142000L, unreported),
Fiji HC). 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.'

[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 Nawaqa v State (15 March 2001, Misc no

HBM00142000L, unreported), Fiji HC, 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 State [2002] FJHC 152 Singh J 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 13 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 2002 for 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'.

[3.13] Singh ] said:

'POLICE PRESSURE TO PLEAD GUILTY:

Counsel for [Mr Koroi] also submitted that on the strength of Balecala v
State (Crim App 62 of 1996, unreported) the learned magistrate should
have asked [Mr Koroi] if he was pressured or induced into pleading guilty.
The facts of 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 magistrates 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 inquiry if each time an accused
appeared; they were to inquire into police conduct. I find no merit in the
ground.'

[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.'
[3.15] The caution statement indicates:

'Q43. Where was Mesuiame 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
(woke] 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 Nawaga v State

(15 March 2001, Misc no HBM00142000L, unreported), Fiji HC. 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 State [2002] FJHC 152 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 AND 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.'

(a) Submissions far Mr Volavola

[4.2] For Mr Volavola it is said that he was charged with rape under ss 149-
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.'

[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 s 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.'

(b) Court record—charges put to Mr Volavola

[4.5] 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?'.

[4.6] Mr Volavola's answer is recorded:

 `I would like plea to be taken now. Don't need a lawyer'

[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
magistrates court trial Plead;

1st count – Guilty

2nd count – Guilty

Facts

Summary of facts submitted to court (read out and explained to accused).’

(c) Plea of guilty – rape

[4.8] 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' (my emphasis).

[4.9] This was read and explained to Mr Volavola, the court writing in the
record that he 'understands both charges'.
[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 magistrates 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 Koroiciri v R (Crim App No 43 of 1979, unreported) the Court of

Appeal said:

'[I]n the definition of rape [in s 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 State [1996] FJHC 50 Fatiaki J referred to

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.

[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.

(d) Summary in full

[4.14] 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 Naqeledarnu, 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 grandparents. 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 1 pm, the complainant's mother
beat her for not washing the clothes of her brother. The complainant
then informed her mother that accused a 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.' (My emphasis.)

[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]).' (My emphasis.)

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.

[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.

[5.3] There is the later reference simply to 'sex' (that word being used twice
in the summary). 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'.

[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'. 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 internet 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. (The caution statement shows categorically he was
not. See later.)
[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.

[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). 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 dares.

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 [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.'

[5.13] That an explanation of the summary was provided to Mr Volavola by

the magistrate must also be taken into account.

[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.
[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 State (1988) 34 FLR 114, R v Ramsay (2001) 152 CCC (3d)
84, Question of law reserved on acquittal (No 1 of 1993) (1993) 59 SASR
214, R v Ewanchuk [2000] 3 LRC 88, R v Khan [1991] LRC (Crim) 699,
Banditt v R [2005] HCA 80, (2005) 224 CLR 262; affg [2004] NSWCCA
208, (2004) 151 A Crim R 215, R v Mueller [2005] NSWCCA 47, (2005)
62 NSWLR 476, Brk v R [2001] WASCA 161; contra R v Howard [1965]
3 All ER 684, R v Chadderton (1908) 1 Cr App Rep 229, R v Harling
[1938] 1 All ER 307, R v Lang (1975) 62 Crim App Rep 50 and R v Singh
(18 December 1990, Crim App No 226 of 1990, unreported) (re `consent',
see further later).

[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.
(The provision makes clear that `no consent' is sufficient, through its very
wording and a lack of importation of any requirement as to the need to
exhibit 'no consent' by external means. The provision (which was replicated
in many jurisdictions—for example, the Criminal Code 1899 (WA) had an
identical provision) imports a contradiction, however—how can there be
'consent' if it is vitiated by force, fear, fraud etc—that means there is in fact
¢no consent'. (On this see J A Scutt `Consent versus Submission. The
Question of Force, Fear and Threats in Rape' (1977) 13 University of
Western Australia Law Review 52 and `The Standard of Consent in Rape'
[1976] NZLJ 262.) 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 o£ a
married woman, by personating her husband': s 149

[5.17] In Aotearoa/New Zealand in R v Turner [2007] NZCA 427 the

Court of Appeal said that the following summing up as to consent in rape
was said to be 'entirely orthodox'(at [11]-[14]):

'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 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
b 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.'
[5.18] There, the Court of Appeal said (at [42]):

`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.'

[5.19] As was said by the Supreme Court of Canada in R v Ewanchuk

[2000] 3 LRC 88 at [45]-[49] (as to mistake in consent):

`[45] ... [C]onsent is an integral component of the mens rea, only

this time it is considered from the perspective of the accused ...

[46] 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…

[48] There is a difference in the concept of "consent" as it relates to

the state of mind of the complainant vis-a-vis the actus reus of the
offence and the state of mind of the accused in respect of the mens
rea. For the purposes of the actus reus "consent" means that the
complainant in her mind wanted the sexual touching to take place.
 [49] 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. This
distinction should always be borne in mind and the two parts of the
analysis 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.'
(Note also the authorities and the explanation provided by the magistrate.)

[5.21] That is, Mr Volavola was an adult man in a paternal and parental
relationship, one of authority, his being the stepfather of the complainant
and married to her mother. She was a child born in 1992 and some 11-13 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
summary. (See for example State v Seru [2003] FJHC 189.)

'Q38. It is alleged that you raped your stepdaughter 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
[woke] 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.

Q4F. 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. [See further re adult
techniques for gaining a child's submission.]

Q63. Who removed the clothes of Litia on all occasions you had sex
with Litia Kaufagi?
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.' (My emphasis.)

[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 s 183 of the Penal Code which defines carnal
knowledge as the act of penetration.

[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 State [1996] FJHC 32, 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'.

[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 Shameem J in State v Seru [2003] FJHC 189:

'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.'

[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-
i-vis conviction; and

 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.

[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 ...'

 `woke her up and took her to his bedroom where accused forcefully
had sex without her consent ...

 '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

[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.'
(a) Submissions and extract from caution statement

[6.1] 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—Q44-Q45, Q48, Q62.

[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 are 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
[woke] 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 tines 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 [did] 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.' (My 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
[woke] 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 stepdaughter and committed these heinous crimes on
her.'

[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 stepfather for protection, yet in his
sexual lust, he raped and defiled this young girl ...'

[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 ..?' 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?
A. No.

[6.10] In R v Ramsay (2001) 152 CCC (3d) 84 at [3], [5]-[7] 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, a member 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 then 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.'

[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 Ramsay 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 (at [16]-[19]) R v Lock (1872) LR 2 CRR 10, R v Nichol (1807)
Russ & Ry 131 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 law. 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 739-740:
"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 just 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 (12th edn, 1964), vol 1, p 678 by J W Cecil
Turner). Thus in R v March (1844) 1 Car & Kir 496 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 CRR 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 a 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 law, 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).'

[6.13] In Ramsay (2001) 152 CCC (3d) 84 at [20]-[23] the court went on to
observe:

'[20] [I]f there is any doubt left, the Supreme Court again touched
on the same issue in R v Audet [1996] 2 SCR 171. La Forest J said
at 185-186 as follows: "The relative positions of the parties have
always been relevant to the validity of consent under Canadian
criminal law. 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 A W Bryant `The Issue of Consent in the Crime
of Sexual Assault' (1989) 68 Canadian Bar Review 94 at 127-131;
R v Jobidon [1991] 2 SCR 714 at 740; and ... Norberg v Wynrib
[1993] 2 LRC 408 ..."

[21] 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.

[22] 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.

[23] 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 co-operation amounted to consent is the
equivalent of saying submission amounts to consent. Authorities
from R v Day (1841) 9 C & P 722 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.'
[6.14] As was said in R v Khan [1991] L.RC (Crim) 699 at 701:

'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 (Approved on appeal per Russell,
LJ.)'

[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 stepfather, 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 knew
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 stepdaughter; 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 [lick] 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 contact he had brought
the child to a state of (in his mind – and here, see R v Ewanchuk [2000] 3
LRC 88) sexual interest or excitement, then that is defilement. However,
this cannot be attributed to the first episode where Mr Volavola
acknowledge 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

[7.0] In Vakaciwa v State [1996] FJHC 32 Pathik J 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' (my emphasis).

[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). 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
State [1996] FJHC 32 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 State

[1996] FJHC 32. As Pathik J said:

'It is true that s 206(2) should be complied with (Jennions v R

[1972] 18 FLR 61) and in certain situations non-compliance with it
could lead to the setting aside of the sentence as in Naivalarua v R
(Crim App No 46 of 1987, unreported) where "change of election"
was not recorded by the magistrate and the magistrate proceeded to
trial and convicted and sentenced the accused. There Sheehan J said
that the magistrates 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
knew what he was answering to.

[7.4] There was no 'I admit the facts ...' statement here. However, the record
is clear. There is no equivocation. As in DPP v Ram Sam Naidu (1984,
Crim App No 34 / 84, unreported), Fiji CA (cited in Vakaciwa v State
[1996] FJHC 32), 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 said 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.'

[7.5] His Lordship cited R v Golathon (1915) 84 LJKB 788 and referred to
Iro v R (1966) 12 FLR 104, where it was said:

`[I]t 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 ... 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.

[7.6] In this regard, State v Seru [2003] FJHC 189 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.'

(a) Basis of appeal on sentence

[8.l] The matters raised in respect of this ground are:

 `[T]he 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 co-operation
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 here because it appears from the summary of facts
that the complainant may have been a willing partner throughout.'

(b) Basis of magistrate's sentence

[8.2] 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
stepdaughter and committed these heinous crimes on her. The
victim looked up to him as her stepfather 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 ten 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—eight years' imprisonment

2nd count—three years' imprisonment—concurrent to 1st count

Right to appeal 28 days

(Sgd) MK
Resident Magistrate'

(c) Authorities

[8.3] The authorities confirm the starting point in the offence of rape of an
adult at seven years: Kasim v State [1994] FJCA 25 and of a young person
as ten years. As Shameem said in Poese v State [2005] FJHC 9, after
undertaking a thorough review of the statutory provisions for sentence in
the 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 (Crim App 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 (Crim App 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.'

[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 eleven years old, one count of rape
when she was eleven or twelve 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.

[8.5] The magistrate's sentence of 15 years was made up of consecutive

sentences of three -and-a-half 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'.

[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 eleven 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 three years' imprisonment,
each to be served concurrently. The violence additional to the rapes
themselves, including the tying 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, stepdaughter); 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 Mataitoga J
substituted 14 years for a sentence, when the Director of Public
Prosecutions ('the DPP') appealed against the magistrate's sentence (six
years each to be served concurrently), on the basis that (at [32]):

'i. The learned magistrate erred in law and fact in failing to consider
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.'

[8.9] The circumstances put forward by the DPP were five-fold.

• 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 four counts of rape—the victim was a stepdaughter;

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

• The fact that the victim is now pregnant at 15 years of age.

[8.10] Further, the DPP said (at [7]):

'[I]f the learned magistrate had correctly applied the sentencing

guidelines for rape cases against a child given by the Court of
Appeal in Kasim v State [1994] FJCA 25 and how the High Court
has applied those principles in State v Marawa the proper sentence
for each count should be eleven years' imprisonment and not six
years.'

[8.11] For Mr Toy it was said that the sentence of six years' imprisonment
for each count 'is harsh and excessive', reference being made to 'seven
Magistrate Court cases where the sentence for rape ranges from two-and-a-
half years to five years'. Mataitoga J pointed out (at [8]) 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. two-and-a-half years to
five years': his Lordship demurred from this approach.

[8.12] Mataitoga J considered that:

•'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'; and

• The `likely social and psychological consequences of such

depraved acts' of Mr Toy

—ten 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 years.

[8.14] Turning then to the nine aggravating factors considered, his Lordship
noted that they had resulted in an increase of three years, and taking them
into account, his Lordship agreed with the magistrate's evaluation. This
then came to twelve years. The plea of guilty 'requires... a discount of three
years'. Hence, a sentence of nine 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 Toys] age ...'
The totality principle resulted in the 14-year outcome: at [14]-[20].
[8.15] In coming to this conclusion, Mataitoga J took into consideration (at
[19]-[20]):

• 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'; and

• 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.

[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 two-and-
a-half to five years would be completely outside all principles 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, ten
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. (This is addressed later.)
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,

where Gates J set down clear guidelines for sentencing in sexual offences
against children, citing Roberts and Roberts (1982) 4 Cr App R (S) 8,
Kasim v State (1994) FJCA 25, State v Turagabeci [1996] FJHC 173 and
Koroi v State [20021 FJHC 152, saying (at [10]-[11]):

'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 ...'

(On appeal, the Court of Appeal reduced the sentence on the basis that
more 'discount' should have been given by his Lordship for the accused's
'weak knees' and 'old age' (54 years): Marawa v State [2006] FJCA 48.) 9.

[8.19] Gates J set out (at [12]-[15)) 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' — was
disregarded.

[8.20] His Lordship then observed that in Turagabeci [1996] FJHC 173 at
[17] Pain J 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.'

[8.21] Mitigating factors listed by Gates J (although not present — except

'clean record') for Mr Marawa) include:

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

• Time spent in custody waiting trial;

• Previous good character: State v Seru [2003] FJHC 190

(Shameem J);

• Being hardworking and struggling to raise another child single-

handed: State v Senikarawa [2403] FJHC 195 (Shameem J) (Note -
appeal allowed on conviction: [2006] FJCA 25;

• First offender, raising his family 'without help from his wife who
was ill' - 11-year sentence upheld on appeal: State v Tamani [2003]
FJHC 168, Tamani v State [2005] FJCA 4; and

• Force appearing to be minimal — l2-year sentence with appeal to

Supreme Court refused as 'no arguable case': Buli v State [2001 ]
 FJCA 13; leave to appeal out of time refused [2002] FJCA 53.

[8-22] Aggravating factors listed by Gates J (at [24]-[29]) which were

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.'

[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 years (now ten years:
State v Fong Toy [2008] FJHC 223 and Poese v State [2005] FJHC 9).
This was arrived at by taking into account (at [30] —

'[t]hough 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.'

[8.24] A further year was added for each of the six aggravating factors (at
[30]).

(d) Mr Volavola's sentence - analysis

[8.25] 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 ten 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 ten 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
factor's. 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 State
[2005] FJHC 9 and State v Fong Tay [2008] FJHC 223.

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
stepfather 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 stepfather 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--ten 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 stepdaughter;

C. That the crimes are heinous;

 D. That she 'looked up to him' as her stepfather 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 co-operation with police.

[8.29] Mr Volavola’s immediate co-operation 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 co-
operation 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 State [1990] FJHC 1 Fatiaki J took police co-operation
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 twenty-first birthday. Winters J has set the
benchmark in this regard. For example, in State v Racule [2007] FJHC 15
at [13]-[14] his Lordship said:

'In mitigation, I accept that a significant discount must be given for

your co-operation 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.'

[8.31] See also Cokanisiga v State [2005] FJCA 57 and Naciri v State
[2004] FJHC 323.

(e) Sentence within appropriate range

[8.32] 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 ten 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.

IN THE HIGH COURT OF FIJI

AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 161 OF 2014

 STATE

1. Eroni Nabitu
2. Taniela Naiseru

Counsel: Ms. L. Latu for the State

Ms. Vulimainadave for Defence

Date of Summing Up: 07th July, 2017

Date of Judgment: 12th July, 2017

JUDGMENT

1. The Accused persons were charged with following offences

and tried before three assessors.
 FIRST COUNT
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes
Decree No. 44 of 2009.

Particulars of Offence

ERONI NABITU, on the 25th day of October, 2013 at Nailaga,

Ba in the Western Division, had carnal knowledge of
VETINIA DIKUILA, without her consent.

SECOND COUNT
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (b) of the Crimes
Decree No. 44 of 2009.
 Particulars of Offence

ERONI NABITU, on the 08th day of November, 2013 at

Nailaga, Ba in the Western Division, penetrated the vagina of
VETINIA DIKUILA, with his finger, without her consent.

THIRD COUNT
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes
Decree No. 44 of 2009.

Particulars of Offence

ERONI NABITU, on the 08th day of November, 2013 at

Nailaga, Ba in the Western Division, had carnal knowledge of
VETINIA DIKUILA, without her consent.

FOURTH COUNT
Statement of Offence
RAPE: Contrary to Section 207 (1) and (2) (b) of the Crimes
Decree No. 44 of 2009.

Particulars of Offence

ERONI NABITU, on the 08th day of November, 2013 at

Nailaga, Ba in the Western Division, penetrated the anus of
VETINIA DIKUILA, with his finger, without her consent.

FIFTH COUNT
Statement of Offence

RAPE: Contrary to Section 207 (1) and (2) (a) of the Crimes
Decree No. 44 of 2009.
Particulars of Offence

TANIELA NAICERU, on the 08th day of November, 2013 at

Nailaga, Ba in the Western Division, had carnal knowledge of
VETINIA DIKUILA, without her consent.
2. At the close of the Prosecution case, Court found the 1 st
Accused not guilty on the fourth count as there was no
evidence to maintain that charge any further. 1 st Accused was
acquitted of the fourth count accordingly.

3. Assessors unanimously found the 1 st Accused not guilty on

counts 1, 2 and 3. They also found the 2nd Accused not guilty
on count 5.

4. I direct myself in accordance with my own Summing Up and

review evidence led in the trial. Having concurred with the
opinion of Assessors, I pronounce my judgment as follows.

5. Prosecution called three witnesses, the Complainant, her

grandmother, Litiana, and doctor Sharma. Prosecution based
its case substantially on the evidence of the Complainant. At
the close of the prosecution case, both Accused presented
evidence under oath.

6. 1st Accused who was 17 years old at that time admitted that
he penetrated Complainant’s vagina on the 25 th of October,
2013 and that he was with her on the 8th November 2013 at
 the crucial time. 2nd Accused who was 14 years old at the time
of the incident is the first cousin of the Complainant. There is
no dispute in this case with regard to the identity of Accused
persons.

7. Prosecution says that 1stAccused penetrated Complainant on

the 25th October 2013 without her consent. 1st Accused, having
admitted that he penetrated the Complainant on the 25 th
October, 2013, denies that he did so without her consent. He
also denies penetrating Complainant at all on the 8 th
November 2013 either with his penis or finger. 2 nd Accused
denies penetrating her at all.

8. The Credibility of Complainant’s evidence was called into

question in this case. Complainant did not make any
complaint about the 1st alleged incident occurred on 25th
October, 2013 to her grandmother. She said that her
grandmother is very close to her and shared secrets with her.
When Complainant was asked why she did not complain to
her grandmother, she said that she was scared. She also said
that she did not inform anybody, even her family members,
because she suspected that they will spread rumours about
 her in the village. However, soon after the first incident, and
also soon after the 2nd incident she had met Monika.
Complainant said that she informed Monika of what had
happened.

9. Prosecution failed to call Monika as a witness to support

Complainant’s version. There is no requirement for
corroboration of Complainant’s version. However, in the
circumstances of this case, Monika’s presence as a witness
could have boosted the consistency and credibility of the
version of the Prosecution.

10. The 2nd alleged incident occurred approximately 10 days after

the 1st alleged incident. During the period between the first
and the second incidents, there was no complaint from
Complainant to anybody. The second alleged incident came
to light not because of her complaint but because she was
‘caught’.

11. Complainant’s grandmother Litinia in her evidence described

how the alleged 2nd incident came to light. On that day (5 th
November, 2013) Complainant had not returned home till at
 least 10 p.m. Latinia was awaiting Complainant to return
home after the prayer meeting. In the meantime, Litinia’s
brother’s two grandchildren Taniela Rokobaleni and Pony
(Romoluse) came and inquired about the Complainant. They
informed that the prayer meeting had already finished long
time ago. Then Litinia sent those grandchildren to search for
Complainant.

12. According to Litinia’s evidence, Complainant was brought

home by Taniela Rokobaleni and Pony whom she had sent
out to search Complainant.

13. Complainant in her evidence endeavoured to conceal this

fact. She in her evidence-in-chief said that, after she was
raped, Accused just left the scene giving her a warning and,
after that, she came towards the road and came straight
home. However, under cross examination, Complainant
admitted that while they were having sex under the guava
tree, another Taniela approached them with a search light
and, upon their arrival, Accused fled the scene leaving her
behind.
14. This is how the Complainant finally admitted what she was
earlier denying:

Q: While Dan was on top of you, Taniela, one Taniela

another Taniela came, is that correct?
A: No Ma’am.

Q: I put it to you, when this Taniela, this Dan was on

top of you, another Dan or another Taniela, came?
A: No Ma’am.

Q: This Taniela was the son of Mere and Leone’s

brother is that correct?
A: No Ma’am.

Q: I put it to you that according to Eroni, one Taniela,

the son of Mere and who is also Leone’s brother
came?
A: No Ma’am.

Q: According to Eroni, he was holding to a flash light?

A: No Ma’am.
Q: And when all of you saw him, you all ran away from
there?
A: No Ma’am.

Q: I put it to you that according to Eroni when this

Taniela, the son of Mere and Sailasa came, when you
people saw him, you all ran away?
A: They ran away.

Q: Who ran away?

A: Eroni, Dan and Leone

Q: Somebody….
A: Sir, after they did this thing to me and I like I shout
and those two boys heard my voice and that time too
they were looking for me. When they came these
three boys ran away.

Q: According to Eroni, you also ran with them?

A: No Ma’am.
 Q: I put it to you, that according to Eroni, you also ran
away with them?
A: No Ma’am.

Q: And the reason why you..

Crt: You were shouting and two boys came?
A: Yes, Sir. That’s both Dan, another Dan. When they
came these three boys ran.

15. When the Complainant entered the house after the second
alleged incident, she started crying. Litiana told her -‘don’t
cry; tell me what happened to you?’ Complainant in reply
informed that Eroni and Leone dragged her and covered her
mouth with a cloth. Litiana then asked her- ‘did they do
something to you?’ She said ‘Yes’. Complainant had not said
anything about sexual acts done to her. (Litinia vehemently
denies that Complainant had told her that Leone pulled
down her under pants). Complainant had not told Litiana
that Taniela (2nd Accused) was also involved in the incident.

16. According to the summation I gave to assessors, the court

can’t draw a negative inference as to the truthfulness of the
 complainant’s version merely because it lacked recent
complaint evidence. However, in the absence of any plausible
explanation from the Complainant, lack of recent complaint
evidence in this case greatly affected the consistency of the
Complainant’s version.

17. Defence Counsel argued that Complainant did not shout or

scream and had no external injuries to indicate that she had
struggled in protest. It should be acknowledged that no such
evidence is required to prove a rape case. Indeed, in the
summing up, I directed that there is no classic or typical
response to an unwelcome aggression for sex. Despite this
direction, assessors found Complainant’s conduct
questionable. Their finding in my opinion is not stubborn.

18. There is no dispute that, on 25th October 2013, Complainant

and 1st Accused were engaged in a romantic talk near the
church wooden bell. In that talk, the offer extended to her by
the Accused to be his girlfriend was readily accepted.
According to Complainant’s evidence, after having a short
chat, Accused had invited her for a walk but she had refused.
The first alleged incident had occurred 7-8 meters away from
 the church under a tamarind tree. She did not explain how
she ended up under a tamarind tree although she said that
she was pulled to the guava tree before the 2nd incident. The
only inference that the Court could draw from this evidence
is that she had voluntarily gone to the tamarind tree.

19. When Complainant was asked whether she shouted in

protest, she said that she called out to Dan and said ‘see,
what Eroni is doing to me?’ Dan had in reply told -‘just
relax’. The words uttered by the Complainant do not
manifest that she was protesting.

20. During cross examination, Complainant was denying a series

of suggestions put by the Defence Counsel and one such
denial was that she did not kiss the Accused. However, when
she was asked the same question again, she admitted that she
was kissing the Accused after telling stories.

Q: You and Eroni then started kissing?

A: No maam.
 Q: I put it to you that you and Eroni started kissing
after telling stories, yes or no?
A: Yes maam.

21. Complainant admitted that when Eroni came on top of her

during the first alleged incident, she did not push 1 st Accused
away or struggle. To explain her passivity she said that she
couldn’t free herself as he was lying on top of her. She also
said that Leone had covered her mouth with a cloth and Dan
was holding on to her hand. Complainant also said that she
was scared. This type of passive behaviour is not unexpected
from a rape victim. However, there is no evidence that
Complainant froze or completely incapacitated.
Complainant’s evidence about intervention and use of force
by two other people to facilitate Eroni’s attack suggest that
she had offered some kind of resistance. Quite surprisingly
though, doctor Sharma who had examined her within hours
had not observed any physical injury, not even a scratch
mark on her body to indicate that she was subjected to such
an onslaught.
22. According to Litinia’s evidence, 2 nd Accused had slept over at
her place and after the incident was reported to her, he had
run away from her kitchen where he had been hiding.
Complainant had been living with Litiana in the same house.
Complainant had not implicated the 2 nd Accused when she
reported the matter to Litiana. It is highly improbable that 2 nd
Accused would come to the Complainant’s house if he had
raped the Complainant a few hours ago.

23. There can be no doubt that the Director of Public Prosecution

had framed the 4th charge on the basis of the information
provided by the Complainant. 4th count alleges that, on the 5 th
November 2013, 1st Accused penetrated the Complainant’s
anus with his finger. Complainant in her evidence never said
that her anus was penetrated. As a result, at the no case stage,
the 1st Accused was acquitted on the 4th count. The
consistency of the Complainant was called into question.

24. I observed the demeanour of the Complainant carefully. She

was evasive and not straightforward. The part of her
evidence reproduced at paragraph 20 shows how unreliable
a witness she is.
25. The credibility of the Defence’s version was not successfully
challenged. Both Accused corroborated each other’s evidence.
2nd Accused had told police that when he approached the
scene on 5th November 2013, he saw 1st Accused having sex
with the Complainant. In his evidence, 2nd Accused said that
he could not properly see what was really going on due to
the blackout. 1st Accused admitted that he was about to have
sexual intercourse with the Complainant with her consent
but could not do so because his penis was not erected.
Complainant also confirmed that the incident happened in
the dark. There is no material contradiction there. Even if the
Court were to reject the Defence’s version, Prosecution still
had to prove the charges beyond reasonable doubt.

26. Complainant was 14 years old at the time of the alleged

incident. 1st Accused admitted that he had carnal knowledge
of the Complainant with her consent. Therefore, I considered
whether the 1st Accused could be convicted for the lesser
offence of Defilement in terms of Section 162(1) (f) of the
Criminal Procedure Act.
27. My finding in that regard is as follows: There is no reasonable
basis to find the 1st Accused guilty of Defilement in this case
due to two reasons. Firstly, there was no opportunity given to
the 1st Accused to defend the charge of Defilement.

28. It is true that the law, (Section 162 (1) (f) of the Criminal
Procedure Act), says that where a person is charged with
Rape, but evidence supports only a conviction of a lesser
sexual offence, he can be convicted for the lesser offence,
Defilement being one. However, it should only be done after
due process has been followed.

29. A statutory defence is created by law for a person charged

with Defilement. According to Section 215 (2) of the Crimes
Act, it shall be a sufficient defence if it shall be made to
appear to the court that the person charged had reasonable
cause to believe, and did in fact believe, that the complainant
was of or above the age of 16 years.

30. When a statutory defence is created for a particular offence

by law, a reasonable opportunity should be afforded to the
person charged with that offence to avail himself of the
 statutory defence. The court at the summing up stage has to
consider evidence in the context of the statutory defence and,
if evidence before the court provided a basis for the statutory
defence, an obligation lay upon the judge to direct the
assessors, that the defence existed and what it meant or its
application.

31. The 1st Accused in this case was not formally charged with
Defilement. There can be no doubt that when an accused is
formally charged with Defilement, it is the trial judge's
obligation to raise the statutory defence of mistake as to the
age of a victim in the summing up, if at least some facts
existed in the accused's case that gave rise to the possibility
that the defence might be open to the accused. Court in this
case did not direct the assessors as to the availability of the
statutory defence because 1st Accused was not formally
charged with Defilement and no notice whatsoever was given
to that effect.

32. It should be acknowledged that it is not possible to lay a

foundation for a defence without a formal charge. The charge
is the basis upon which the defence is argued. The
 fundamental requirement of a charge in a criminal case was
vividly explained by Grant CJ in DPP v Solomone Tui [1975]
21 FLR 4 where His Lordship observed:

" It is an essential feature of the criminal law that an

accused person should be able to tell from the indictment the
precise nature of the charge or charges against him so as to
be in a position to put forward his defence and to direct his
evidence to meet them".

33. At the outset, the accused must be notified that he had to

defend a Defilement charge because the nature of the
statutory defence requires court to take both subjective and
objective assessments of accused’s belief into account. (the
court ought to be satisfied that accused had reasonable cause
to believe, and did in fact believe, that the complainant was of
or above the age of 16 years).

34. Before the commencement of a High Court trial, the trial

judge is not supposed to evaluate evidence available to the
Prosecution for the purpose of framing the charge or
information and the framing the information or charge is the
 obligation of the Director of Public Prosecution. Therefore, it
is the obligation of the Prosecution, either through the
information or the opening address, to clearly state and
disseminate the charge or charges upon which the
prosecution case is run, especially when a statutory defence is
available to the Defence.

35. In a High Court trial, unlike in a Magistrates Court trial,

when a prima face case is made out at the end of the
prosecution case, the trial judge is not supposed to read out
the charge or charges to the accused [see Section 231(2) of the
Criminal Procedure Act] and the trial should proceed on the
original information. When only the consent is in dispute, the
decision turns on the credibility of conflicting versions and, at
that stage, the opinion of assessors must be sought. The trial
judge therefore does not get an opportunity to frame a lesser
charge (Defilement) when the prosecution still relies on the
rape count on which some evidence is available on each
element of the offence.

36. At the summing up stage, the court can of course direct

assessors on the law as set down by Section 162 of the
 Criminal Procedure Act, and the possibility of them forming
a guilty opinion in respect of lesser offence of Defilement.
However, giving that direction at that stage without
affording the Accused an opportunity to defend the
Defilement charge, in my opinion, is obnoxious to basic
principles of criminal law.

37. In Ali v State [2008] FJCA 30; AAU0014.2008 (11 July 2008)
the Court of Appeal considered the legality of a conviction
recorded on appeal by High Court for a kindred offence to
Rape. In that case, in the High Court, on appeal, without any
notice as to the nature of the charge, the appellant was
convicted of Defilement which is considered a kindred
offence to rape. The question was whether the High Court in
its appellate jurisdiction could convict of the kindred offence
of Defilement contrary to section 156 of the Penal
Code without giving the accused an opportunity to raise the
statutory defence provided by that section.

38. The charge in Ali (supra) in the Magistrates Court was Rape.
Before the commencement of the trial, the Magistrate who
had the responsibility of framing the charge had enquired
 from the prosecution whether they were relying on an
alternative charge of defilement to which the prosecution
replied in negative. At trial the appellant raised the defence of
consent which was an available defence on the charge of
rape. The appellant succeeded in his defence and he was
acquitted of rape.

39. The Court of Appeal concluded that the High Court had the
power to convict of the kindred offence of Defilement on
appeal against acquittal on a charge of rape, pursuant to
section 176 of the Criminal Procedure Code, provided no
injustice is caused to the accused by such order. The Court
held that the conviction recorded for Defilement on appeal
against appellant who was led to believe by the prosecution
at trial that he only had a rape charge to defend caused
injustice to the appellant because he was not notified of the
available statutory defence.

40. In view of this judgment, it is my considered opinion that an

accused charged with raping a person in the age group of 13-
16 should be convicted of Defilement by a High Court sitting
with assessors only if he had had notice firstly of Defilement
 charge at the beginning of trial and secondly of statutory
defence of mistake, if that defence is available in evidence.

41. Sharma J in State v Tulevu [2016] FJHC 561 (7 June 2016) had
taken a different view on this issue. In that case, only charge
in the Information was Rape. At the end of the prosecution
case, there was no evidence to prosecute the rape charge.
Defence counsel in his ‘no case’ application submitted that
the prosecution should have charged the accused with an
alternative count of defilement if accused were to be put to
his defence. Prosecution relied on Section 162 of the Criminal
Procedure Act and argued that there was no need to add an
alternative count in the Information filed by the State when
section 162 (1) (f) of the Criminal Procedure Decree gives the
Court powers to convict a person of lesser charge.

42. The court held with the Prosecution. Sharma J observed: at

para 9 and 10:

“A careful reading of section 162 above will show that a

court can convict upon been satisfied with the evidence
adduced in the trial for either a lesser or alternative offence.
In this situation it does not matter if the office of the
Director of Public Prosecutions decided not to charge the
accused with an alternative count. If there is evidence in
respect of lesser count and the court is satisfied with the
evidence adduced the matter should proceed further.

In my view the due process that needs to be satisfied

considering the evidence adduced by the complainant is one
which points to a lesser count of Defilement. Accordingly it
is only proper that the accused be put to his defence. I am
satisfied there are some admissible and relevant evidence in
respect of the lesser charge of Defilement for the Assessors to
deliberate upon and decide what weight they would give to
the evidence after assessing the credibility of the witnesses.
In situations where section 162 would apply in absence of
any alternative count preferred by the Director of Public
Prosecutions and there is evidence of the essential elements
of the lesser charge before the court, I don’t see any reason
why section 162 of the Criminal Procedure Decree cannot
be read in addition to section 231 (1) of the Criminal
Procedure Decree”.
43. Although this decision is not in agreement with my
argument, it advocates the notion that, before a conviction on
Defilement could be entered on a rape charge, the Accused
must be given an opportunity to defend the charge of
Defilement at least before he starts his case. Thanks to this
decision, Accused can testify about his mistaken belief as to
the age of the Complainant. However, considering the nature
of the defence that involves both subjective and objective
assessment of accused’s belief, it is prudent and just to notify
the alternative charge of Defilement at the outset so 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.

44. It should be acknowledged that the factual background in

Tulevu (supra) case is different from that of the present case.
In Tulevu, there was no evidence at the end of the
prosecution case to prosecute the rape charge. Therefore, no
case application made by the defence counsel for an acquittal
prompted the prosecution to make an application for the
 court to consider the lesser charge of Defilement. Court
having been satisfied that there was some admissible and
relevant evidence in respect of the lesser charge of Defilement
put the Accused to his defence. Under these circumstances,
some room was available albeit belatedly to the accused to
avail himself of the statutory defence. Furthermore, in cross-
examination of the complainant the defence counsel had
cross examined the complainant in accordance with the
statutory defence.

45. In this case, Prosecution did not make such an application as

there was some relevant and admissible evidence on each
element of the 1st count and continued to rely on the original
information. Therefore, Court in any event did not have an
opportunity to raise the charge of Defilement. The Accused
would have been taken by surprise if the charge of
Defilement and its statutory defence were raised in the
summing up.

46. There can be no doubt that when an accused is formally

charged with Defilement, it is the trial judge's obligation to
raise the statutory defence of mistake as to the age of a victim
 under s 215 (2) of the Crimes Act in the summing up, if at
least some facts existed in the accused's case that gave rise to
the possibility that the defence might be open to the accused.
Court in this case did not direct the assessors as to the
availability of the statutory defence because 1st Accused was
not formally charged with Defilement and no notice
whatsoever was given by the Prosecution at the beginning of
the trial that Accused had to defend such a charge.

47. I have come across instances where the Defilement charge

had been included in the Information as an alternatively
lesser count when a person is charged for raping a person
aged between 13-16 years. In my opinion, such a formality is
part of due process expected to be followed within the
meaning of Section 162 of the Criminal Procedure Act.

48. The 1st Accused was formally charged with Rape and Rape
alone. There was no indication form the Prosecution that they
rely on Defilement charge in the event the rape charge failed.
Therefore, it is not reasonable or proper to convict the 1 st
Accused for Defilement.
49. Secondly, even if Defilement charge is alive in the present
case, Prosecution still failed to discharge the burden of proof
beyond reasonable doubt.

50. In the course of cross examination, Counsel for Prosecution

asked the 1st Accused whether he was aware that the
Complainant was 14 years old. Accused replied in the
negative. Counsel for Defence asked the Accused whether the
Complainant had told him that she was 14 years old, again he
said ‘no’. In light of these answerers given by the 1 st Accused,
he has discharged the evidential burden to place himself
within the statutory defence. Once that was established, then
it was for the prosecution to negative such defence.

51. Kaw Teh v R [1986] LRC (Crim) 553 Dawson J pointed out:

"[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 is
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."

52. The 1st Accused did not give evidence of his honest belief.
However, the Prosecution must dispel the doubt created by
the 1st Accused as to his mistaken belief in Complainant’s age.
Prosecution failed to do so. No evidence was placed by the
Prosecution to prove that there was no reasonable basis for 1 st
Accused to believe that Complainant was less than 16 years
of age. No question about the alleged conversation or any
communication she may have had with Accused as to her age
was directed to her in her evidence. The offence of Defilement
is not made out.
53. Version of the Prosecution is not credible and believable. I
reject the version of the Prosecution. Prosecution failed to
prove the charges beyond reasonable doubt.

54. I accept the unanimous opinion of assessors.

55. Accused persons are acquitted and discharged accordingly.

56. That is the judgment of this Court.

Aruna Aluthge
Judge
At Lautoka
12th July, 2017

Solicitors: Office of the Director of Public Prosecution for State

Legal Aid Commission for Accused

DEFILEMENT
E. Munshya, LLB (Hons), M.Div.
Several judges of the High Court of Zambia have been quite consistent and
clear with regard to the evidence the prosecution needs to provide when
proving the age of a minor in defilement cases. In following the 1973 legal
precedent of the case of Phiri (Macheka) v. The People most judges have
gone to hold that “age should be proven by one of the parents or by
whatever other best evidence is available.” This case has formed an integral
part of Zambia’s evidence law. In a criminal case, the State has the burden
of proving, beyond reasonable doubt, all the elements of a case. Main
elements of most criminal cases hinge on at least two components: the
prohibited act (called actus reus) and the required mental element (called
mens rea) that goes with it. In the case of child defilement, the prosecution
must prove that an accused had sexual intercourse (the act) with a child and
did this intentionally (the mental element). As mentioned earlier, the
prosecution must prove that (1) sex took place, (2) it was with a minor, and
(3) the accused did this intentionally (s.138 of the Zambia Penal Code). It
would be beyond the scope of this article to analyse each of these elements
in detail. I should leave that to a university course in Criminal Law or
Evidence Law. However, I just wish to deal with one element involved in
this section: proof as to age of a victim.
The Law of Evidence deals with how a party can prove its case before an
impartial tribunal. There are several sources of Zambian evidence law. I
will mention only those relevant to this article. The first one is statute law.
For example, CAP 43 of the Laws of Zambia (The Evidence Law Act)
contains some guidelines with regard to evidence law. Second, most of the
penal code provisions do come with some guidelines of how a particular
offence can be proven. The third source of Zambian evidence law is the
common law. By this we mean the law that has come to us through the
history of precedents as interpreted by the judges. In fact, a bulk of what
constitutes evidence law today comes from these sources. It comes from
what judges have ruled about what can be admitted and what cannot be
admitted in court. The fourth source of evidence law is the trial judge or
magistrate who is expected to use discretion to admit or reject some
evidence if they will be prejudicial, or if the evidence will put the
administration of justice into disrepute. With specific reference to
defilement cases, it is settled law, through the 1973 precedent that in
proving the age of a victim, the testimony given by a parent in court “is
conclusive unless evidence to the contrary is adduced” (Justice Siavwapa in
Tembo v. The People [2011]). It cannot help an accused to simply dispute
the testimony given by a parent of a victim while failing to adduce contrary
evidence. When a parent to a victim of defilement testifies in an open court
that a child is indeed a minor, any one wanting to challenge this testimony
must, through cross-examination, discredit this testimony, or should
provide contrary evidence. Failure to do so, unfortunately, could lead to a
conviction.
While I cannot deal with the specific issue regarding the conviction and
appeal of Mr. C. Dimba, who has been slapped with 18 years for
defilement, it would be interesting to see how the judges will handle this
appeal. As widely reported in the press, the convict is appealing on the
basis that the prosecution did not provide sufficient evidence with regard to
the age of the alleged victim. At the centre of this appeal is the denial, by
the appellant that the victim is actually not a minor. The convict does not
seem to deny that sex took place. Second, he does not deny that he did it
intentionally. What he denies concerns the exact age of the victim.
Without doubt, age is an essential ingredient of the offence of defilement
(Mulonda v. The People, 2004). As such, what is at issue in this appeal is
what weight if any, the trial court should have given to the testimony
rendered by the parents of the victim in an open court. Again, this issue
could hinge on how the Supreme Court will relate facts of this case with
precedent already in place. Basing this appeal only on the reliability of a
parent’s testimony is a very difficult proposition. There have been
comments about how that, in order to convict Dimba, the court must have
been provided with “documentary” evidence about the age of a victim.
Some are even suggesting that a medical or scientific proof should be
provided to substantiate the age of a victim. This is where we need to
differentiate reality from the fiction we find in Hollywood dramas such as
“Criminal Minds” and stuff like that. In my opinion, all this obsession with
scientific evidence is not as reliable as that provided by a parent of a
victim. The viva voce (word of mouth) testimony given in a court of law,
subject to cross-examination, is the golden standard of evidence. The word
of mouth testimony given by a witness (the parent) in open court about
what they observed with their senses is very difficult to dislodge. In this
case, the parents had testified before the trial magistrate that this child was
below the age of sixteen at the time this offence took place. You have to
have a very strong case to be successful on appeal.