Misioka v State [2007] FJCA 17; AAU0052, AAU0053.2006S (23 March 2007)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU0052/53 OF 2006S
(High Court Criminal Action No.HAA71 of 2006S)

BETWEEN:

ALIFERETI MISIOKA
JOSUA NASIYAGA
Appellants

AND:

THE STATE
Respondent

Coram: Ward, President
McPherson, JA
Ford, JA

Hearing: Wednesday, 21st March 2007, Suva

Counsel: Appellants in Person
A. Prasad for the Respondent

Date of Judgment: Friday, 23rd March 2007, Suva

JUDGMENT OF THE COURT

The Background Facts

[1] The two appellants have a long list of convictions. On 12 March 2006 they, along with two other prisoners, escaped from Naboro Prison. They were all recaptured the following day and charged in the Magistrates' Court with escaping from lawful custody.

[2] On 15 March 2006 the appellants appeared in the Magistrates' Court at Suva and pleaded guilty. They were each convicted and sentenced to six months imprisonment to be served consecutively to their existing sentences.

[3] Some five weeks later, on 19 April 2006, the appellants were charged with a prison offence arising out of the same escape. The charge laid under regulation 123 of the Prisons Regulations was described as "loss of government property".

[4] Misioka pleaded guilty and was given seven days loss of remission. Nasigaya pleaded not guilty but was found guilty and sentenced to 10 days loss of remission. Neither appellant requested a review of their punishment which is a procedure provided for in section 86 of the Prisons Act Cap.86.

The Appeals

[5] The appellants then appealed to the High Court. Their ground of appeal was described by Shameem J. in these terms:

"The main ground of appeal is that the appellants have been punished for the offence by the Prisons Tribunal and that the six-month term imposed by the courts is in effect, double punishment."

[6] The Judge dismissed the appeals stating:

"The learned Magistrate imposed six-month consecutive terms on all appellants. He was not told of any disciplinary measures taken by the Naboro Prison. This is possibly because such disciplinary action had not been taken when they were sentenced on the 15th day of March 2006, just two days after their recapture. Indeed, it is very likely that the Prisons Tribunal considered the six-month terms imposed by the Suva Magistrates' Court when the disciplinary sentences were imposed."

[7] Subsequently, the appellants were given leave to appeal to this Court on a point of law, namely, whether they had been punished twice for the same offence. The ground of appeal has been summarised by the respondent's counsel in these terms:

"That the learned Judge erred in law in punishing them for the offence of escaping from lawful custody, as they had been punished by the Prison Tribunal as well in relation to the same offence, and that this is double punishment."

Submissions

[8] Counsel for the respondent quite properly highlighted the appellants' rights under section 28 (1) (k) of the Constitution which provides:

"28. - "Every person charged with an offence has the right: . . .

(k) not to be tried again for an offence of which he or she has previously been convicted or acquitted."

[9] Counsel's principal submission, however, was that there was no double punishment in this case because the Magistrates' Court and the Prisons Tribunal were dealing with different offences. As counsel expressed it, "the loss of government property was an internal disciplinary offence and the escaping was a criminal offence."

The Law

[10] Coincidentally, this Court is today issuing a judgment in a case heard on 7 March 2007 where all the relevant legal principles relating to the issues involved in the present case were reviewed and discussed - Joeli Tawatatau v The State Cr App No. AAU002 of 2007. We will not repeat the review of the authorities and relevant legislation which is set out in that judgment.

[11] In Joeli Tawatatau the appellant had been charged under regulation 123 (3) of the Prisons Regulations with escape from lawful custody and sentenced by a prison tribunal on 29 December 2005 to one months loss of remission. The appellant was also charged in the Magistrates' Court with escape from lawful custody under section 138 of the Penal Code and he was convicted and sentenced in relation to that offence on 14 August 2006 to six months imprisonment.

[12] The Court focused on the three statutory provisions it identified as providing protection to an offender against double punishment, namely section 20 of the Penal Code, section 59 of the Interpretation Act (Cap 7) and section 82 of the Prisons Act (Cap 86). We confirm the conclusion reached that they all provide for the avoidance of double punishment for the same offence.

[13] Having so determined, the Court stated:

"Thus we must consider whether the charging of the offences of escape under section 138 of the Penal Code and under regulation 123(2), when they are based on identical facts, amount to the same offence . . .

The punishment imposed by the Magistrates' Court was imposed for the same offence, albeit under section 138, as that ordered by the prison tribunal. It was therefore in breach of section 20 of the Penal Code and must be quashed."

[14] In the present case, the appellants were convicted first in the Magistrates' Court and then punished by a prisons tribunal. In relation to that situation, the Court in Joeli Tawatatau said:

"In future, once an escaper is charged in the Magistrates' Court under section 138 of the Penal Code, no charge of escape under the Prisons Regulations should be brought until the result of the Magistrates' Court hearing is known. If the prisoner is punished by the Magistrate, no further charge of escape should be brought under the Regulations."

Application of Principles to Present Case

[15] The principal distinguishing feature between Joeli Tawatatau and the present case, is that here the appellants were not charged with the same offence by the prisons tribunal as they had been convicted of in the Magistrates' Court. Whilst the offence in the Magistrates' Court was escape from lawful custody under section 138 of the Penal Code, the offence dealt with before the prisons tribunal was "loss of government property" under regulation 123 (11) of the Prisons Regulations.

[16] Regulation 123 (11) provides:

"123. Any prisoner who commits any of the following offences shall be guilty of a prison offence for the purposes of section 82 of the Act: . . .

(11) omits or refuses to wear the clothing issued to him or exchanges, loses, discards, damages, alters or defaces any part of it; . . "

[17] As the punishment imposed in each case was for a different offence, we are satisfied that there has been no double punishment and the appeal on that ground is dismissed.

Further Finding

[18] There is another unsatisfactory aspect of the case before us which was not referred to in argument but needs to be addressed. The items alleged to have been lost in the charge of "loss of government property" under regulation 123 (11) were identified in the Charge Sheet for each appellant as:

"1 blanket, 1 towel, 1 cup and 1 razor."

We cannot see how any of those items can be categorised as "clothing" within the meaning of regulation 123 (11).

[19] Although each appellant was given an opportunity to have the prison tribunal proceedings reviewed by the Controller of Prisons and this point, if the appellants were aware of it, could have been taken, no review application was made. It may well be, of course, that the appellants were unaware of the precise wording of the regulation creating the charge. Whatever the explanation, we cannot overlook an obvious injustice and we hereby quash the tribunal's decision dated 19 April 2006 and order the reinstatement of the remission period forfeited in respect of each appellant.

Ward, President
McPherson, JA
Ford, JA

Solicitors:
Appellants in Person
Office of the Director of Public Prosecutions, Suva for the Respondent

AAU0053/52.06S