Niqara v The State [1998] FJHC 5; Haa0057d.97b (26 January 1998)

Fiji Islands - Niqara v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Labasa

Appellate Jurisdiction

CRIMINAL APPEAL NO. 0057 OF 1997

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TERETI NIQARA
Appellant

and:

THE STATE
Respondent

Mr. A. Koor the Appellant
Ms. A. Driu for the Respondent

REASONS FOR DECISION

The appellant a former employee of the Fiji Posts and Telecommunications Ltd. was charged on 9th May 1997 with the following offence:

"Statement of Offence

OBTAINING CREDIT BY FALSE PRETENCE: Contrary to Section 310(a) of Penal Code, Cap. 17.

Particulars of Offence

TERETI NIQARA, between 22nd December, 1995 and 22nd January, 1996 at Savusavu in the Northern Division, in incurring a debt or liability to Hot Spring Hotel obtained credit to the amount of $1,344.30 from the said Hot Spring Hotel, that he was authorised by Fiji Posts and Telecommunications Limited."

On 17th June 1997 the appellant in the Savusavu Magistrate Court and pleaded 'guilty' to the charge. He was convicted and upon his plea in mitigation that he could pay back the money if given time, the trial magistrate quite improperly adjourned the case for sentencing on the 25th of September 1997 and released the appellant on bail. (See: Josefa Nemani v. The State Labasa Criminal Appeal No. 47 of 1997.)

On the 25th of September 1997 the trial magistrate observed that despite having been given 3 months to repay the outstanding debt incurred, the appellant 'has not paid a cent'. The appellant was then sentenced to 9 months imprisonment.

He now appeals against both his conviction and sentence on the following four (4) grounds:

"1. THAT the Learned Trial Magistrate erred in law and in fact in convicting the accused of a charge which was defective.

2. THAT the Learned Trial Magistrate erred in law and in fact in convicting the accused when in fact the particulars of offence did not disclose an offence known to law.

3. THAT the Learned Trial Magistrate erred in law and in fact in convicting the accused when the facts outlined by the Prosecution did not disclose any offence.

4. THAT the sentence is harsh and excessive and wrong in principal."

It will be seen at once that the first three (3) grounds of appeal directly relate to the appellant's conviction. Section 309(1) of the CPC however, prevents the allowance of an appeal against conviction of 'an accused person who has pleaded guilty and has been convicted on such plea by a magistrate court'.

This is precisely the appellant's position and his appeal against conviction is prima facie incompetent.

Mr. Kohli for the appellant was permitted however, to challenge the appellant's conviction on the general basis that the charge to which he pleaded 'guilty', was incurably defective in so far as it failed to aver in the 'Particulars', the falsity of the alleged pretence.

In Parma Nand v. R. Labasa Cr. App. No. 6 of 1977 a not dissimilar case to the present, Mishra J. (as he then was) quashed the appellant's conviction for an offence of Obtaining Credit by False Pretences on a guilty plea where both the facts outlined and the 'Particulars' of the charge, completely failed to set out or describe the alleged 'false pretence' and in that case, the charge was considered 'fundamentally defective'.

Ms. Driu quite properly conceded that the 'Particulars' provided in the charge were incomplete but that, counsel submits, does not necessarily make the charge per se nor does it render the appellant's conviction, a nullity. The incompleteness counsel urges, merely rendered the charge defective and, in the absence of any serious suggestion that the appellant could have been or was misled, the Court should apply the 'proviso' to Section 319(1) of the CPC.

In somesimilar vein vein in Ravindra Chandra v. R. 14 F.L.R. 55 where a charge of Act Intended to Cause Grievous Harm made no reference at all to the ingredient of intent, Motaram J. (as he then then was) in upholding the charge said at p.59:

"The question is whether this omission makes the charge incurably bad or that the charge is so defective that it does not disclose any offence known to law. If the charge is merely defective and no one was misled, deceived, 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) (now Section 319) of the Criminal Procedure Code ..."

The prosecution facts clearly described how the appellant after completing his assigned duties in Labasa, of his own accord went to Savusavu to conduct an unauthorised survey on behalf of his employer and, whilst there, had received his termination letter. Despite that, the appellant continued to stay at the complainant hotel running up a total bill of $4,240.20 the largest item of which, was for 'Liquor' worth $1,344.30. To his employers credit, all but the liquor was subsequently paid for.

There can be no doubting that a charge under the first limb of Section 310(a) of the Penal Code which omits to set out any 'false pretence' is bad, but in the particular circumstances of this case having regards to the nature of the omission in the charge and the facts outlined and admitted by the appellant, there is not the slightest doubt in my mind that the omission in the 'Particulars' of the charge, did not occasion any miscarriage of justice and I uphold State Counsel's submissions concerning the appeal against conviction.

In Ravindra's case (op. cit.) the omitted words were 'with intent to do some grievous harm' whereas in the present case the omitted words are: 'by falsely pretending'. Such an omission in my view and, in the words of Moti Tikaram J. (at p.57 ibid):

"... does not make the charge a bad charge in the sense of disclosing no offence known to the law, but merely a defective or imperfect one in that it described a known offence with incomplete particulars, in other words, it described the offence with complete accuracy in the 'Statement of Offence', only the particulars which merely elaborate the 'Statement of Offence' were incomplete."

Needless to say having regards to the particular amount charged (i.e. $1,344) which related solely to the 'Liquor' component in the appellant's unauthorised hotel bill, and bearing in mind the appellant's own admission in mitigation that " (he) continued to work against (his) boss's order", no possible prejudice or embarrassment was or could have been caused to the appellant by the prosecution's failure to include the words: 'by falsely pretending' in the particulars of the charge immediately before the sentence beginning "... that he was authorised by Fiji Posts and Telecommunications Limited".

The appeal against conviction was accordingly dismissed.

As for sentence, at the hearing of the appeal, counsel for the appellant advised the Court that the appellant was then in a position to repay the amount outstanding on his hotel bill and, although an offender ought not to be allowed to 'buy his way out' of an appropriate custodial sentence, nevertheless, given the rather special treatment afforded the appellant, and the apparent failure of the trial magistrate to refer to the appellant's guilty plea; and bearing in mind the fact that the appellant is for all intents and purposes a first offender who had already served 2 months imprisonment, I was able to show the appellant some degree of leniency.

The sentence was accordingly quashed and in substitution therefor the appellant was fined a total of $1,344 (payable forthwith) and, in addition, a sentence of 9 months imprisonment suspended for 18 months was imposed on the appellant with effect from the 24th of November, 1997.

The fine, if paid, was also ordered to be paid by way of compensation to the complainant hotel.

D.V. Fatiaki
JUDGE

At Labasa,
26th January, 1998.

Haa0057d.97b