Kele v The State [1993] FJHC 112; Haa0072j.93s (30 November 1993)

IN THE HIGH COURT OF FIJI
(AT SUVA)
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 72 OF 1993

BETWEEN:

MIKEA KELE
APPELLANT

AND:

STATE
RESPONDENT

Mr. S. Sharma for Appellant
Mr. J. Hook for Respondent

JUDGMENT

These two criminal appeals from the Magistrate's Court of Nausori relate to the same appellant. They are Criminal Appeals 71 & 72 of 1993. I therefore consolidate both appeals, hear them together and deliver one judgment.

The offences concerned are throwing object and office breaking entering and larceny. In Criminal Appeal 71/93 the appellant was convicted on his own plea of guilty and was fined $1500 in default (i/d) 6 months imprisonment. Appellant could not pay his fine and was hauled into prison for 6 months.
He appeals against the sentence of $1500 fine on the ground that it was unlawful as the learned Magistrate had gone beyond his jurisdiction when he imposed such a fine.

A fine which a Resident Magistrate may pass is spelt out in Section 7(b) of Criminal Procedure Code Cap 21 which reads:-

Section 7 - A resident Magistrate may, in the cases in which such sentences are authorised by law, pass the following sentences namely:-

(b) fine not exceeding one thousand dollars.

Clearly the Magistrate had imposed a fine on appellant which is unlawful, as he had acted beyond his jurisdiction, and cannot be sustained.

Quite properly the learned Counsel for Respondent did not oppose this appeal.

I therefore allow this appeal and quash the conviction and set aside the sentence.

In Criminal Appeal 72/93 the accused broke and entered the office of B.P's Service Station between 8th of May, 1992 and 9th May 1992 at Nausori and stole therein cash amounting to $4,600. He pleaded not guilty and after hearing the evidence the learned Magistrate found accused guilty and convicted him and imposed a prison term of 2 years.

He now appeals against conviction only on the grounds which could be summarised into the following:-

(1) That the Trial Magistrate erred in law and in fact in admitting evidence of confession that was not given voluntarily, hence there has been a substantial miscarriage of justice.

(2) That the identification of the appellant was totally unreliable, hence there has been a substantial miscarriage of justice.

(3) That the finding of the trial Magistrate was against the weight of evidence, hence there has been a substantial miscarriage of justice.

As for ground 1 it would be useful to peruse the record of the trial in the court below in order to assess the substance of the appellant's submission.

The appellant was interviewed in the Fijian language by Detective/Constable Serupepeli Soqe on 27/2/93 when he admitted breaking and entering the office of B.P"s Service Station at Nausori and stealing therein 1 gross of B&H cigarettes in packets of 10's and 20's and two bags of coins containing $400. He even took Constable Soqe to the scene and showed him where he gained entry into the B.P's office.

When Constable Soqe gave evidence and tendered appellant's original interview statement and its' English translation as Exhibits, accused did not challenge the admissibility of such statements.

The trial Magistrate took pain to remind the appellant to question Constable Soqe, regarding the statement he gave him, but accused failed to do so, and told the Magistrate that he had no question to ask. This appellant is not a first offender as he had been to court on several previous occasions and therefore should have known the importance of challenging the admissibility of his confession to the Police. This he did not do thus leaving his confession unchallenged and the learned trial Magistrate quite properly admitted it in evidence.

Although this appellant in his unsworn Statement in Court stated that he admitted committing the offence to the Police "just to escape being assaulted by the Police", yet when Constable Soqe gave evidence accused did not accuse him or any other police officer assaulting him while he was in their custody, nor did he allege that his confession was given under fear or duress, favour or promise. This ground of appeal has no merit it is therefore dismissed.

For ground 2 the evidence of Mere Marama Bakani (P.W.2) points towards the identification of the appellant.

She recalled that on 9/5/92 she was at home in Nausori when her mother woke her up to check the boys who were standing on the main road, if her brother was among them. Her brother was not with these boys who were sharing money. She asked them where they got the money from but was told it was none of her business. She recognised one of them similar to the accused.

When cross-examined by accused P.W.2 said that she saw one boy just like the accused and when she returned from work that day she saw the accused again standing on the road.

I would agree with the appellant that the identification of himself by P.W2 is not very reliable and therefore an identification parade should have been held. This point has been adequately dealt with by the Trial Magistrate in his judgment and I do hope that the Police would take heed of such very useful directions. It may also be useful here if I were to remind Magistrates and Police alike of the importance of the guide lines in relation to "visual identification" in criminal cases outlined in the leading case of R. v Turnbull [1977] 1 QB 228.

This ground on its own does have some merit but such merit has been negated by the confession of the appellant which was given voluntarily. This ground therefore must fail and is accordingly dismissed.

As for the final ground the Trial Magistrate had observed the demeanour of all witnesses including the appellant when they testified in court below and was in a better position than this court to determine, in the exercise of his discretion, what weight to be given to the evidence of each witness. Even if the identification of the appellant was not as solid as it ought to be, and that appellant admitted only stealing $400 and not $4600 the fact that appellant had confessed his guilt to the Police lends justification to the finding of the Trial Magistrate. I can see no merit on this ground it is therefore dismissed.

Finally this appeal is dismissed and the sentence of 2 years imprisonment is confirmed.

S W Kepa
JUDGE

30th November, 1993.

HAA0072J.93S