Roqica v The State [1996] FJHC 61; Haa0033j.96l (24 October 1996)

Fiji Islands - Roqica v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

<1"> AT LABASA

CRL APPEAL NO. 0033 OF 1996

ROMEO ROQICA Appellant

AND

THE STATE
Respondent

A. Seru for the Appellant
Miss L. Laveti for the Respondentn>

JUDGMENT

On 9 July 1993 the appellant was convicted after trial of one offence of breaking and entering the Nabouwalu Police Station with intend to commit a felony namely larceny contrary to Section 302 of the Penal Code, Cap 17. This is an appeal against conviction brought out of time by leave.

At the trial evidence was given of aioned interview which the appellant gave shortly after the the events complained of (Exhibit 1). Neither the admissibility nor the contents of the interview were challenged. From the interview the following undisputed facts emerge. The accused was a Police Officer stationed at Nabouwalu. On the day in question he went off duty at about 4.00 p.m. He had apparently had some domestic difficulties and he went home and began drinking rum and beer with some friends. It seems that the drinking was heavy. When the drinks had been finished most of the friends left while one went to sleep in the sitting room.

r on that same evening at a time which the appellant did not know because he was drunk he w he went to the Nabouwalu Police Station. There he lifted or removed a loose louvre blade next to the entrance door and obtained entry to the Police Station. He went to a locked cell which was used as an exhibit room and which contained a drum of homebrew which had been seized in connection with a pending case. As he was attempting to extract some of the homebrew he heard the police van drive up outside. Fearing discovery he went into the Police Station toilet and climbed out of the window breaking some louvres in the window as he did so. He ran away home. This was about 11.30 p.m. The same night he was at home when the station officer came to see him and, finding that he had some cuts took him to the hospital. The next day the appellant had gone to the station officer and apologised for breaking the louvres at the police station. Although in the charge statement which was also tendered unchallenged as exhibit 2 the appellant had denied any intention to steal the homebrew he admitted in question 26 of the cautioned interview that "taking homebrew to drink" was his purpose in entering the Police Station. He admitted that the Police Station had been officially closed at the time and that he had had no authority to be there.

At the close of the prosecution the appellant elected to give an unsworn statement. This ihis is what he said:

"my entry to the Police Station was always put into practisinserting hand through the louvres to open the main door. There was no intention whatsoeveroever for me to steal but take the liquor and replace it on the following day as it has been practised at Nabouwalu Police Station. That's all."

The 13 grounds of appeal set out in the petition were divided by Mr. Seru into four groups and advanced and argued on that basis. Mr. Seru submitted:

i)that there were serious discrepa in the prosecution evidencidence;

ii)that the accused's detention was unlawful;

iii)that the identification of the accused on the night of the incident was unsatisfactory; and

iv)that there was an insufficiency of physical evidence.

It wilconvenient to take (iv) first. The corner stone of the Resident Magistrate's judgment was hwas his acceptance of the identification by PW3 Parmanand of the Appellant as the person seen running away from the Police Station after the sound of broken glass had been heard on the night in question. Parmanand was one of the Appellant's colleagues at the Police Station and had known him and worked with him for about 18 months. He knew his physique and recognised the clothes he had seen the appellant wearing earlier in the day. He had shone his torch at the person running away and had been able to pick him out. At the time he had been about 5 or 6 yards away. In my view this identification contained sufficient relevant facts and matters to enable it to comply with the Turnbull criteria. Given the appellant's admission in the interview that he was present at the Police Station on the night in question, the undisputed evidence of PW1 that the appellant had admitted that it was he whom they had chased the previous night outside the Police Station and the contents the appellant's unsworn statement it is clear to me that it is really unarguable that the Resident Magistrate was right in finding that it was indeed the appellant who had broken out of the Police Station that night.

The second matter raised is the alleged unlawfulness of the appellant's arrest. Mr. Seru said that the proper procedures were not followed. He stressed that PW1 had admitted in cross examination that he had locked up the appellant without arresting him and that PW1 had apparently only arrested the appellant because he had received instructions to do so from the Divisional Crime Officer Northern. Mr. Seru, citing Christie v Leachinsky [1947] UKHL 2; [1947] AC 573 submitted that there was nothing to show that the appellant had been told why he was being locked up. He referred to the mandatory requirement contained in the English Police and Criminal Evidence Act 1984, section 28. With respect, I can find no force in any of these submissions. Under Section 21 of the Criminal Procedure Code (Cap 21) any Police Officer may without warrant arrest any persons suspected upon reasonable grounds of having committed an offence. The appellant suspect being a Police Officer it was only reasonable in my opinion for his arrest to be approved by a senior officer. Section 28 of the English Act does not apply in Fiji and the requirement that a person be informed of the reasons for his arrest does not exist at common law if the circumstances are such that the person must have known the general nature of the alleged offence for which he was being detained (see Archbold 36 Edition para 2809). On the evidence I am satisfied that the appellant knew perfectly well why he was being detained and I do not find that his arrest was unlawful.

The third area of complaint is alleged discrepanin the prosecution evidencedence. While I agree with Mr. Seru that there were a number discrepancies: the precise words used to call the appellant when he run away from the Police Station, the appellant's clothing earlier in the day and the location of PC Jukie Fong being 3 examples, I do agree with him that any of these discrepancies were material or central to the prosecution case. In my view they were no more than the usual minor discrepancies which are to be expected in the evidence of witnesses at a criminal trial.

The final matter complained of by Mr. Seru was the lack of physical exhibits. He pointed out that neither the broken lock, nor the broken window louvres nor even the homebrew had been produced. I agree with Mr. Seru that these items were not produced but disagree with his conclusion drawn from their non production. The central issue here was whether the appellant had broken into the Police Station with intention to steal. He did not deny breaking the louvres when he left the building and did not deny attempting to help himself to homebrew, while the broken lock was not the subject of any charge. In my experience the usual fault is for the prosecution to overload its case with unwanted evidence. In this case the prosecution decided that the production of physical exhibits was unnecessary to prove the charge. That in fact turned out to be the case and accordingly there was no need to produce these physical exhibits.

There remain twoers which, although not advanced by Mr. Seru, I feel I shou should deal with. In his unsworn statement and in his charged statement the Appellant raised the defence that he had only intended to borrow the homebrew; it would had been replaced the next day and therefore he had not intended to steal. On his own account the Appellant took the homebrew to drink. Once drunk it could not have been returned. Replacement by an equivalent is no defence to a charge of larceny.

The laster is the method of entry into the Police Station. It was common ground that for some unknounknown reason the manner in which access was ordinarily gained to the Police Station was by removing a louvre blade next to the entrance door, putting the hand inside and opening the door. At the trial it was suggested that the Appellant had done no more than was usual in effecting entry and therefore he could not have been guilty of breaking in. Miss Laveti, somewhat desperately as it seemed to me, suggested that on the evidence it appeared that all the officers stationed at Nabouwalu regularly broke in each morning when they reported for work and removed the louvre blade in order to open the door. She also accepted that the Resident Magistrate did not specifically find that there had been a breaking-in. She suggested however there was ample evidence to show that the Appellant had in fact broken-in on the night in question. In my view the answer lies with Section 297 of the Penal Code. This section is so widely drawn as to include the means used by the Appellant to gain entry and whether or not this was the means used by others for a lawful purpose or not is to my mind not relevant.

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In my opinion none of the arguments advanced on behalfhe Appellant can be sustainstained and accordingly the appeal fails and is dismissed.

M.D. Scott
JUDGE

p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> 24th day of October, 1996.

Ca33j.96l