Director of Public Prosecutions v Nakanacagi [1993] FJHC 51; Haa0010.1993s (15 June 1993)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: 10 OF 1993

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS
Appellant

&

EPI NAKANACAGI
Respondent

Ms N Shameem for the appellant
Mr J Semisi for the Respondent

JUDGMENT

On 20 November 1992 the Respondent was acquitted by the Suva Maigstrates’ Court
(T Karunairetnam Esq) after having been charge with the following offence:-

Statement of Offence

ABUSE OF OFFICE: contrary to section 111 of the Penal Code, Cap. 17

Particulars of Offence

EPI NAKANACAGI on the 20^th April 1991 at Suva in the Central Division being a person employed in the Public Service to wit Superintendent of Police and Director of Music in the Police Department in abuse of his authority directed the Police Dance Band No 1 to play at a dance held at the Merchants Club Suva organized by him for his own benefit, prejudicing the rights and interests of members of the Police Department.

Pursuant to powers conferred upon him by section 308(1) of the Criminal Procedure Code (Cap.21) the Director of Public Prosecutions now appeals against that acquittal. The Groups of Appeal are set out in the Petition.

Miss Shameem began by submitting that the Resident Magistrate had made his first mistake when he had failed to analyse the ingredients of the offence. She argued that the Magistrate confused the ingredients required to be proved by the Prosecution with the Particulars of the offence charged. The Magistrate had made two principal finds of fact: (i) that the dance had not been organized for the Respondent’s benefit and (ii) that permission had not been received to hold the dance. It was argued that there was overwhelming evidence to show that the Magistrate’s findings of fact on (i) were unreasonable and more importantly that the Magistrate drew the wrong conclusions from his finding. It was pointed out that Section 111 of the Penal Code has two limb and that the question of benefit was only relevant to the felony limb – the Magistrate should have considered whether the misdemeanour limb had been proved. As to (ii) Miss Shameem submitted that even if permission had been granted to held a dance then the evidence was that the dance actually held was not that for which the permission had been granted; therefore the permission granted was irrelevant to the matter complained of.

Miss Shameem took me through the record of the Court proceedings and highlighted a number oddities and inconsistencies in the Defence case. She demonstrated that the Magistrate had made a number of obvious errors in his judgment (e.g. confusing PW6 with PW3 on page 30 of the record) and concluded by submitted that the Respondent should have convicted at the very least of the misdemeanour limb of the Section either by taking the Section on its own or by the use of section 169 of the Penal Code.

In answer Mr Semisi argued that the question of a conviction on a lesser charge did not arise in the Magistrate’s Court and could not arise now. He pointed out the Prosecutor in the Magistrates’ Court (not Miss Shameem) had persisted to the end of his final address to the Magistrate in arguing that the felony limb of the section had been proved. No mention was made of the misdemeanour alterative or of section 169. Mr Semisi submitted that the evidence showed sufficiently clearly that the dance was not organized for the benefit of the Respondent and that there was nothing to contradict the Respondent’s assertion that he had sought permission to hold a dance.

On reviewing the evidence I find myself in agreement with much of Miss Shameem argued: there was certainly something very odd about the way this dance was organized and I am not sure that al the witnesses told the whole truth. But suspicion, oddities and inconsistencies alone are not enough to prove a criminal charge. The Resident Magistrate who saw all the witnesses believe the Respondent who gave evidence on oath. The Magistrate pointed out, correctly in my opinion, that the claim by the Respondent that he had obtained permission to hold a dance was uncontraverted. Although there is logic in Miss Shameem’s submission on this aspect of the case, the fact that some permission was sought tends to undermine the Prosecution’s case that the Respondent’s actions were arbitrary.

The end of the trial the Resident Magistrate found himself uneasy about the Prosecution case. I share that unease. Whether better investigation and more forceful prosecution might have made a difference are not matters that I can now take into account. The Magistrate’s conclusions were in my opinion reasonably open to him.

In the absence of any submission from the Prosecution dealing with either the misdemeanour limb of section 111 or section 169 I do not think he could have been expected to make any findings in relation to those two matter. In the result the Appeal is dismissed.

M D SCOTT
JUDGE

15 June, 1993

HAA0010.93S