Nimacere v The State [1990] FJHC 35; Haa0022j.1989s (16 March 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 22 OF 1989

Between:

ALIFERETI NIMACERE
Appellant

v.

STATE
Respondent

Appellant in Person
Mr. S. Seneratne for the State

JUDGMENT

On the 29th of March 1988 the appellant was charged before the Suva Magistrate Court with the following 8 offences:

Ct 1: Factory Breaking, Entering and Larceny in that he and 2 others broke and entered the Island Bottlers Ltd. factory in Lami and stole $40 cash, 4 cassette tapes and 1 radio.

Ct 2: Factory Breaking, Entering and Larceny. This time the factory belonged to the Foods Pacific Limited at Lami and $310 cash was stolen.

Both of the above offences are alleged to have occurred during the night of the 15th of October, 1986 (i.e. 1 1/2 years before the charges were laid).

Cts 3 & 4: Escaping from Lawful Custody and Assaulting a Police Officer both offences relate to the appellant's escape from Lami Police Station whilst he was being escorted to the toilet from the police cell by P.C. 1328 Jimi Nakai.

The next 4 counts relate to offences the appellant is alleged to have committed after his escape, in particular:

Ct 5: Charges an Assault with Intent to Commit a Felony in which the night watchman of D. Narayan Industries Ltd. was threatened with a knife and assaulted with a pinch bar.

The remaining 3 counts (6, 7 & 8) charge offences of Burglary and Larceny from Dwelling House in which 3 houses in the Lami area are alleged to have been broken into on 3 different nights in November, 1986 and from which a hifi set, a radio cassette, jewellery, liquor and clothings worth a total of $1,420 were stolen.

The appellant pleaded not guilty to all the offences and the prosecution called 6 witnesses (2 civilians and 4 police officers) and produced 2 medical reports (Exs. 1 and 2); 5 witness statements (Exs. 3, 4, 5, 6 and 7B) and the appellant's caution interview (Ex. 7) and charge statement (Ex. 7C) at the trial.

It appears from the appellant's petition of appeal and the court record itself that differences arose between the appellant and the trial magistrate in the course of the trial causing the appellant to adopt an "uncooperative" attitude (to use a neutral term) towards the court. In the result the appellant refused to elect after the close of the prosecution's case and no evidence was given by him or called on his behalf.

The learned trial magistrate in a closely-typed judgment of 5 pages considered the evidence on each count in turn and "found the case against the (appellant) proved beyond reasonable doubt on all 8 counts" and convicted him.

Upon his conviction the appellant was sentenced as follows:

Ct 1: 2 years imprisonment

Ct 2: 2 years imprisonment consecutive

Ct 3: 6 months " concurrent

Ct 4: 2 years " consecutive

Ct 5: 1 year " "

Ct 6: 1 " " concurrent with 3 strokes of corporal punishment;

Ct 7: 3 months imprisonment concurrent with 3 strokes of corporal punishment; and

Ct 8: 6 months imprisonment concurrent with 2 strokes of corporal punishment.

The total effective sentence thus imposed was 7 years imprisonment and 8 strokes of corporal punishment.

In addition the learned trial magistrate summarily charged and convicted the appellant with an offence relating to his alleged disrespectful behaviour in the face of the court on a previous occasion and sentenced him to the maximum penalty of 3 months imprisonment provided for an offence under Section 136(1) of the Penal Code Cap. 17.

With respect to the learned trial magistrate and whilst sympathising with the predicament with which he was faced, he had no power to act as he did.

The Magistrates Court is a creature of statute and has no inherent jurisdiction vested in it to punish for contempt unlike the High Court. It is sometimes referred to as an inferior court and any jurisdiction it has to deal with contempt must be referable to a statutory provision. (See: R. v. Davies [1905] UKLawRpKQB 174; [1906] 1 KB 32 at 42.)

Needless to say the High Court exercises revisional superintendence over the Magistrate Courts by confining them to their proper powers and duties and where necessary "...... extends to the upholding of the authority of magistrates' courts". (See: Sections 323 of the Criminal Procedure Code and Section 6 of the Magistrate Court Act Cap. 14.)

That is not to say that Magistrates' Courts are completely without power to restrain contempts 'in the face of the court', on the contrary, such power exists in Section 136(2) of the Penal Code Cap. 17 which provides inter alia:

"When an offence against paragraphs (a), (b), (c), (d), (e), (g), (h) or (m) of Subsection (1) is committed in view of the court, .........., the court may cause the offender to be detained in custody, and at any time before the rising of the court on the same day may take cognizance of the offence and sentence the offender to a fine not exceeding $40 or in default of payment to imprisonment for a term not exceeding one month." (my underlining)

In this case there can be no doubt at all that the appellant's recorded behaviour and language in court towards the learned trial magistrate was aggressive, abusive and contemptible and richly deserved summary punishment.

Unfortunately however the learned trial magistrate did not deal with the appellant strictly within the terms of his powers provided by Section 136(2) (op. cit.), but instead, purported to exercise an inherent power to deal summarily with contempt of court which he did not have, and imposed a penalty far in excess of that provided by the law.

Reluctantly therefore on this technical ground the appellant's conviction and sentence for the alleged offence relating to the judicial proceedings in the Magistrates Court must be and is hereby quashed.

Additionally, learned State Counsel concedes after making the necessary enquiries requested by order of Jesuratnam. J, that the appellant's convictions on the first and second counts cannot stand or be supported as the offences are alleged to have been committed on the 15th of October 1986 at a time when the appellant was still a confirmed inmate at the Naboro Prison Complex.

It is noteworthy that the appellant appealed against his conviction on these 2 counts on the ground that:

"........ when these two offences were committed on the 15th of October, I was still in prison. I escaped from prison on the 16th of October which can be confirmed by the prison authorities."

In the circumstances in spite of the appellant's alleged confession to the police his convictions on Counts 1 and 2 must be regarded as unsafe and are accordingly quashed and the sentences set aside.

As for the appellant's appeal against his conviction and the sentence imposed by the learned trial magistrate on count 3, the Magistrate Court record reveals that the appellant pleaded guilty to Count 3. He is therefore statute-barred from appealing against his conviction on that count which is accordingly dismissed as incompetent.

His grounds of appeal against the remaining counts 4 to 8 does not point to any specific weaknesses in the evidence nor does it raise a defence on his part, rather they amount to a series of complaints against the trial magistrate and the manner in which he conducted the trial.

I do not propose to dwell on each ground of complaint save to say that they are entirely without merit. The learned trial magistrate kept a detailed record of the proceedings in his court. The appellant's cross-examination of the witnesses was recorded in question and answer form and there is nothing on the face of the court record to support the appellant's wild allegation of bias or prejudice on the part of the learned trial magistrate.

In particular, the record reveals that the appellant was warned on the 30th of May to get all his witnesses and although the case was adjourned thereafter on 3 separate occasions the appellant did not bring his witnesses. He has only himself to blame for that.

Furthermore, the appellant himself refused to say anything in his defence at the trial and the learned trial magistrate cannot be faulted for convicting him in the absence of any evidence to contradict the prosecution's evidence on counts 4 to 8.

Needless to say on Counts 4 and 5, the victims themselves were called to give evidence and their medical reports were produced to confirm the extent and nature of their injuries. In addition an eye-witness was called in Count 5.

As for Counts 6, 7 and 8 the police officers who attended the various breakings testified to seeing evidence of forced entry into the various premises. The original police statements of the complainants in counts 6, 7 and 8 were also tendered in court as prosecution exhibits under Section 192 of the Criminal Procedure Code Cap. 21.

Of this latter matter I make the observation that although the appellant does not appear to have given notice that he required the complainants to appear and testify in person, nevertheless the magistrate could have required their attendance "...... of his own motion". (See: Subsection 4(b) of Section 192) and in the particular circumstances of the case coupled with the fact that the appellant was unrepresented such a course should have been adopted in fairness to the appellant.

Nevertheless, in view of the appellant's clear confession to the 3 breakings, all of which occurred during a period when the appellant was at-large as an escapee, the learned trial magistrate was quite entitled to find the charges against the appellant proved beyond a reasonable doubt.

Accordingly, the appellant's appeal against his convictions on counts 4 to 8 is dismissed.

The appellant's appeal against the sentences on counts 3 to 8 as earlier enumerated is also dismissed as being entirely without merit. It should be noted that the appellant's sentence has already been reduced by a term of 4 years 3 months and the remaining sentences were lenient in all the circumstances so graphically described by the learned trial magistrate when he sentenced the appellant.

However, the sentences of corporal punishment are now statute-barred by virtue of the provisions of Section 34(3)(f)(ii) of the Penal Code Cap. 17 and are formally quashed.

Save for the reduction of 4 years and 3 months in the appellant's total sentence his appeal against conviction and sentence is dismissed.

(D.V. Fatiaki)
JUDGE

At Suva,
16th March, 1990.

HAA0022J.89S