Yavita v The State [1997] FJHC 37; HAA0003d.1997b (17 March 1997)

Fiji Islands - Yavita v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0003 OF 1997

BETWEEN:

TANIELA YAVITA
Appellant

AND:

THE STATE
Respondent

Appellant in Person
Ms. L. Tabuya and Mr. N. Bhindi for the State

REASONS FOR DECISION

On the 24th of February after hearing the appeal this Court set aside the appellant's conviction and sentence for reasons which I now deliver.

On the 4th of November 1996, the appellant was charged before the Taveuni Magistrate Court with the following offence:

STATEMENT OF OFFENCE

DEMANDING WITH MENACES: Contrary to Section 295 of the Penal Code Cap. 17.

PARTICULARS OF OFFENCE

TANIELA YAVITA, on the 22nd day of October, 1996 at Waimaqera, Taveuni in the Northern Division with menaces demanded two packets of BH cigarettes from ROSHNI DEVI KANAIYA d/o JAMES SHANKARAN.

Upon his plea of 'guilty' the police prosecutor outlined the following facts in support of the charge:

"About 4.00 p.m. on 22.10.96 accused approached the Complainant's shop. Complainant was alone at the shop. Accused was under the influence of liquor. He had a bottle of stubby in his hand. He bought 2 packets of B&H. He then demanded another 2 packets of B&H on credit. Complainant refused saying that husband was away and she could not give credit. He got angry and raised the hand which had the bottle of stubby trying to strike her. Complainant insisted in her refusal. Accused then left."

The appellant was convicted on his plea and sentenced to 6 months imprisonment to be served consecutive to a sentence that the appellant had previously been sentenced to earlier that same day.

Though the appellant's appeal was restricted to the sentence imposed, since he was unrepresented at his trial this Court considered it prudent to raise the appropriateness of the appellant's conviction in the light of the serious defect in the Particulars provided in the charge.

In somewhat similar circumstances Mishra J. (as he then was) in Emori Fotu v. R. (1977) 23 F.L.R. 113 set aside the conviction in that case of an unrepresented appellant who had pleaded guilty in the Magistrate Court to a charge of School Breaking with Intent where the Particulars of Offence failed to specify any felony and in which the appellant had said (on appeal) that he had broken into the school because he wanted a place to sleep.

The learned judge in quashing the appellant's conviction said at p.116:

"A plea of guilty under such circumstances cannot be treated as unequivocal for the purposes of Section 290(1) of the Criminal Procedure Code which prevents the quashing of a conviction in the case of a plea of guilty." [now Section 309(1)]

and later

"In the present case the outline of facts before the Court did not disclose any intention on the part of the appellant to commit any felony inside the school-house."

Section 295 of the Penal Code under which the present appellant was charged reads:

"Any person who with menaces or by force demands of any person, anything capable of being stolen with intent to steal the same is guilty of a felony and is liable to imprisonment for five years."

(my underlining)

Quite plainly the 'mens reus' of the offence is an 'intent to steal' the thing demanded and equally clearly, the Particulars of Offence provided in the charge was 'defective' insofar as it wholly and completely omitted any reference to this necessary and essential ingredient.

In Ravindra Chandra v. R. 14 F.L.R. 55 in which a similar omission occurred in a charge of Act With Intent To Cause Grievous Harm Moti Tikaram J. (as he then was) said at p.59:

"... there is no doubt that the Particulars of Offence are incomplete in that no reference is made to the ingredient of intent.

The question is whether this omission makes the Charge incurably bad or the charge is so defective that it does not disclose any offence known to law. If the Charge is merely defective and no one is misled, deceased or prejudiced by reason of inadequate particulars then it cannot be suggested that any substantial miscarriage of justice has occurred, and this Court would be entitled in its discretion to apply the proviso to Section 325(1) of the Criminal Procedure Code [now Section 319(1)]."

Adopting a similar approach in this case there was not the slightest doubt in my mind that the charge in the present case was not rendered incurably bad, but merely defective by the omission to include the relevant 'mens reus' in the Particulars of Offence.

I turn next to consider the question whether there was clear evidence in the case before the trial Magistrate from which he might have inferred or concluded that the appellant had the necessary 'intent to steal' when he demanded the cigarettes from the complainant?

In my considered opinion having regard to the appellant's undisputed assertion (on appeal) that the complainant's husband used to give him credit and, supported by State Counsel's concession, I am firmly of the view that the facts outlined by the prosecutor did not disclose any such intention on the appellant's part nor could the same be furnished by the appellant's plea of guilty to 'Particulars' that omitted any mention of such an intent.

Indeed the facts outlined amounted to an intoxicated customer who had demanded cigarettes 'on credit' and when refused, left the shop.

For the above reasons this Court considered it was unsafe to allow the appellant's conviction to stand and it was accordingly quashed.

D.V. Fatiaki
JUDGE

At Labasa,
17th March, 1997.

Haa0003d.97b