Hereniko v The State [1996] FJHC 42; Haa0044.1996 (28 August 1996)

Fiji Islands - Hereniko v State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0044 OF 1996

BETWEEN:

:

ELIESA HERENIKO
Appellant

AND:

p ALIGN=CENTER>THE STATE
Respondent

TIFY>Appellant in Person
Mr. D. McNaughtan for the State

REASONS FOR DECISION

On the 2nd of August 1996 this Court allohe appellant's appeal against conviction, acquitted him andm and ordered his immediate release from prison. On that occasion the Court said it would give detailed reasons later and this I now do.

The appellant appeared before the Nausori Magistrates Court on 13th May 1996 charged with an offence of Harbouring an Escaped Prisoner namely, Pita Nainoka. He is recorded as having pleaded 'guilty' to the offence and upon his conviction was sentenced to 9 months imprisonment.

The appellant appealed against his conviction on the principal ground that he was not aware that the person in question was in fact an 'escaped prisoner'.

Section 79 of the Prisons Act (Cap. 86) under which the appellant was charged reads (so far as relevant):

"Any person who knowingly harbours in or about his house ... any prisoner illegally at large ... shall be guilty of an offence and shall be liable to imprisonment for any period not exceeding one year or to a fine not exceeding $200 or to both such fine and imprisonment."

Quite plainly the offence requires a quite specific ' mens rea' on the part of an offender before he can be convicted of an offence of Harbouring. In this regard, the knowledge required on the offender's part must not only relate to the 'actus reus' of the offence i.e. the harbouring, but, in addition, the offender must be aware of the 'status' of the person being harboured i.e. he is 'a prisoner illegally at large'.

In Hallam (1957) 41 Cr.App.R.111 the Court of Criminal Appeal (U.K,) in considering an offence of being "knowingly in possession of an explosive substance", said at p.115:

"We think that the clear meaning of the section is that the accused must not only knowingly have in his possession the substance, but must also know that it is an explosive substance. The section says he must knowingly have in his possession an explosive substance; therefore, it does seem that it is an ingredient in the offence that he knew it was an explosive substance. If evidence is given that the accused had the substance in his possession, and some evidence is given of circumstances which give rise to a reasonable suspicion that he had not got it for a lawful purpose, the jury are then entitled to infer that he knew it was an explosive substance."

The question that thus arose at the hearing of the present appeal was, whether there was "some evidence given of circumstances which give rise to a reasonable suspicion" on the part of the appellant, that the person being harboured by him, was an 'escaped prisoner'.

In this regard the brief facts outlined by the prosecutor and admitted by the appellant reads:

"On 9th day of May 1996, the accused was in Suva met the escaped prisoner Pita Nainoka. They drank beer at a Suva hotel and took the escaped prisoner at Dilkusha. He kept the prisoner there until 12th May 1996. At about 12. 50 p.m. on 12th May 1996, police were informed about this and a police party went to investigate and found the prisoner at the Accused's house. The Accused was interviewed and subsequently charged."

Nowhere in the facts was it stated that the appellant knew that Pita Nainoka was an 'escaped prisoner' or had admitted such knowledge nor are there any "circumstances given" in the facts outlined from which it might be reasonably inferred that the appellant did in fact have the necessary knowledge or at the very least, 'a reasonable suspicion'.

Indeed, the appellant stated (without contradiction) at the hearing of the appeal, that he had denied any such knowledge during the course of his police interview and had maintained the same before the Magistrates Court.

I am grateful to State Counsel who very fairly and properly confirmed the appellant's denial in his police interview, but not withstanding that, counsel sought to support the conviction on the basis that the appellant's knowledge could be inferred from the facts outlined. I cannot agree.

The facts outlined by the prosecutor merely states as a fact, that Pita Nainoka was 'an escaped prisoner' without any reference whatsoever to the state of the appellant's knowledge of that fact. Indeed this essential ingredient appears to have been improperly assumed by both the prosecutor and the trial Magistrate and State Counsel was constrained to concede as much upon being pressed to indicate which of the facts outlined raised or supported such an inference.

The facts outlined are, in my view, a non-sequitur which is equally consistent with a complete absence of any knowledge on the appellant's part as to the 'status' of the person being sheltered.

The appeal was accordingly allowed and the appellant acquitted.

D.V. Fatiaki
JUDGE

At Suva,
28th August, 1996.