Pardon Bodzo v The State

The appellant, aged 33, was charged with rape under s 65(1) of the Criminal Law (Codification and Reform) Act. The trial court convicted him of the competent verdict of having extra-marital intercourse with a young person under s 70(1)(a). The appellant and the complainant, aged 15 at the time, were in a sexual relationship spanning several months. They met at a school sports event. In October 2016, they had sexual intercourse. The complainant told the appellant she was 15 years old and attending school in Form 3. According to her birth certificate produced as an exhibit, she was indeed 15 years old at the time of the sexual intercourse. The appellant claimed the complainant told him she was 19 years old and that they met at a bar in Waterfalls. The trial court sentenced him to 2½ years imprisonment, with 1 year suspended on conditions of good behaviour.

• Whether the appellant had reasonable cause to believe that the complainant was 16 years or older at the time of sexual intercourse as provided for in the defence under s 70(3) of the Criminal Law (Codification and Reform) Act
• Whether the trial magistrate erred in finding that the appellant knew or realized the real risk or possibility that the complainant was below 16 years

The appeal was dismissed in its entirety. The conviction for having extra-marital intercourse with a young person under s 70(1)(a) and the sentence of 2½ years imprisonment (with 1 year suspended) were upheld.

Where an accused is charged with having extra-marital intercourse with a young person under s 70(1)(a) of the Criminal Law (Codification and Reform) Act, the defence under s 70(3) requires the accused to satisfy the court that he had reasonable cause to believe the complainant was 16 years or older. Where the complainant informs the accused of her actual age (15 years) and that she is attending school in Form 3, and where the accused met the complainant at a school sports event, the accused cannot establish reasonable cause to believe she was over 16 years of age. The statutory defence fails in such circumstances.

The court observed that the fact that a complainant lied about being raped does not mean that all of her other testimony should be disbelieved. The court noted that the complainant may have lied about the rape allegation out of shame and/or family pressure, but this did not undermine her credibility regarding other aspects of her testimony, particularly regarding her age and the fact that she was still attending school. The court also made observations about the obviously fabricated nature of the defence evidence, noting that the appellant's witness went beyond even the appellant's own testimony in attempting to support the defence case.

This case clarifies the application of the statutory defence under s 70(3) of the Criminal Law (Codification and Reform) Act for charges of extra-marital intercourse with a young person. It demonstrates that courts will scrutinize claims of 'reasonable cause to believe' the complainant was over 16 years old, particularly where there are objective indicators of the complainant's age (such as being in Form 3 at school). The case also confirms that apparent physical maturity alone cannot constitute reasonable cause, and that courts will reject embellished or contradictory defence evidence designed to portray the complainant in a negative light.