Evans v State [1998] FJHC 8; Haa0053j.97b (26 January 1998)

Fiji Islands - Evans v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Labasa

Appellate Jurisdiction

CRIMINAL APPEAL NO. 0053 OF 1997

Between:an>

JOHN HENRY EVANS
Appellant

and:

THE STATE
Respondent

ass=MsoNormal>Appellant in Person
Ms. A. Driu for the Respondent

JUDGMENT

On the 9th of June 1997 the appellant was charged with the following offence:

" Statement of Offence

BURGLARY: Contrary to Section 299 of the Penal Code Cap. 17.

Particulars of Offence

JOHN HENRY EVANS between 30th to 2nd of June, 1997 at Savusavu in the Northern Division, by night broke and entered into the dwelling house of MRS. MERE FISHER and stole from therein a maroon bag valued at $8.00, a pair of canvas valued at $80.00, a jacket valued at $350.00 and a pair of Hiking boots valued at $38.00 all to the total value of $476.00, the property of the said Mrs. Mere Fisher."

Although the point was not taken on appeal, this is yet another case in which the drafting of the charge reveals a clear disregard for the precedent charge Form 9 provided in the Second Schedule to the CPC and which Section 122(a)(iv) of the CPC mandates: "... shall be used in cases to which they are applicable".

The charge as drafted, suffers from the following elementary defects:

(1) In so far as it purports to be a charge of Burglary, it omits to mention in the particulars the 'mens rea' of the offence i.e. 'with intent to commit a felony' (per Mishra J. in Emori Fotu v. R. Suva Cr. App. No. 54 of 1977);

(2) In so far as it alleges the actual stealing of various items, the Statement of Offence fails to include the offence of 'Larceny contrary to Section 270 of the Penal Code' (per MacDuff C.J. in Surendra Prasad v. R. 9 F.L.R. 22);

and

(3) There appears to be some confusion between the offence of Burglary which is complete on proof of a breaking and entering by night with intent to commit a felony without any need to prove or allege the actual commission of any felony, and, a similar but different, offence of House Breaking and Committing a Felony contrary to Section 300(a) of the Penal Code which need not occur at night nor does it require the averment of any intent, and which is complete upon proof of a breaking and entering and the actual commission of a felony (per Grant C.J. in D.P.P. v. Solomone Tui 21 F.L.R. 4 at p.7).

Indeed, if I may say so, the Particulars of Offence are closer to an offence under Section 300(a) than Burglary as charged.

Be that as it may the appellant pleaded 'not guilty' and the charge had to be proved. In this regard the prosecution called four (4) witnesses including the complainant and the Investigating Officer and produced four (4) exhibits including the appellant's caution interview record (Exhibit 3) at pp.37 to 41 of the Court record.

The appellant for his part elected to make an unsworn statement and is recorded to have said he wished to call two (2) witnesses, Waqa, from whom the bag and hiking boots were later recovered (See: PW3's evidence at p.11), and the complainant's husband. Unfortunately neither witness could be located in the time given the appellant and the trial magistrate 'deemed the defence case to be closed' without any substantive explanation or evidence being given on behalf of the appellant in his defence.

On the 1st of September 1997 the trial magistrate delivered a short judgment convicting the appellant 'of the offence with which he is charged' which the trial magistrate had earlier in his judgment, incorrectly described as 'breaking, entering and larceny'.

The appellant now appeals against his conviction on the ground that there was insufficient evidence to convict him of the alleged offence. In particular, the appellant on appeal, reaffirmed that the complainant was married to his cousin and although he admits to having entered their house in their absence and to helping himself to some food and the various items listed in the charge, he nevertheless maintains that he did not intend to steal any of the items nor did he consider it was stealing to take those items. In the appellant's own words on appeal: "I had no intention to steal. I only borrowed the items and used them and returned them once I was asked."

If I may say so it is unfortunate that the appellant did not say as much in his unsworn statement before the trial magistrate although his last answer in his caution interview to the effect that he had broken into the complainant's house because: 'her husband is my cousin' might, if considered by the trial magistrate, have sounded a warning bell that the appellant was putting forward a defence of an 'honest claim of right'.

In Sam Clayton v. R. (1920) 15 Cr. App. R. 45 the learned Chief Justice Reading L.J. in setting aside a husband's conviction for stealing from his estranged wife, held that a bona fide belief by the accused that he has a legal claim to the property is a good defence to the charge of larceny thereof, and must be submitted to the jury.

In this regard Section 8 of the Penal Code provides (so far as relevant):

"A person is not criminally responsible in respect of an offence relating to property, if the act done ... by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud."

Undoubtedly Burglary and Larceny are 'offences relating to property' in so far as they are both to be found within Division V of the Penal Code entitled: 'Offences relating to Property'.

Furthermore in both offences the prosecution is required to establish, in the case of Burglary, an 'intent to commit a felony' and, in the case of Larceny, a taking and carrying away of an article 'with intent to permanently deprive the owner' and 'without a claim of right made in good faith'.

In this latter regard it was held in Bernhard v. R. (1938) 26 Cr. App. R. 137 that:

"A person has a 'claim of right' if he is honestly asserting what he believes to be a lawful claim, even though it may be unfounded in law or in fact."

Quite plainly therefore, it was encumbent on the trial magistrate to consider the appellant's 'claim of right' in the context of the ingredients of both of the offences with which he was charged and to exclude such a defence before convicting him. This he did not do but that does not necessarily mean that the same might not be considered by this Court on appeal.

Having considered the rather sparse evidence in support of the appellant's 'claim of right' which is solely based upon his blood relationship to the complainant's husband and mindful of the judgments of the Court of Criminal Appeal (U.K.) in Collins v. R. [1972] EWCA Crim 1; (1972) 56 Cr. App. R. 554 and in particular, Smith and Jones v. R. (1976) 63 Cr. App. R. 47 where a son was convicted of the Burglary of his father's house despite having his father's general permission to enter the house, I am satisfied that the appellant's forced entry into the complainant's house in her absence and his removal of the items included in the charge were both in excess of any general permission he might have had to enter and use the complainant's house and accordingly I reject the appellant's 'claim of right'.

Furthermore having carefully considered the contents of the appellant's caution interview record (Exhibit 3) esp: Qn and Ans: 7 to 9 & 18 and Qn and Ans: 21 & 22, and the evidence referred to in the trial magistrate's judgment, in particular, the complainant's evidence and the recovery of the stolen items, I am satisfied that the appellant's conviction was justified and supported by the evidence.

The appeal against conviction is accordingly dismissed.

As for the sentence of 9 months imprisonment there is not the slightest doubt in my mind having regard to the appellant's record of previous convictions and the brazen nature of the offence that a custodial sentence was inevitable.

Indeed I agree with State Counsel that the length of the sentence imposed erred, if anything, on the side of leniency and is neither harsh nor excessive.

The appeal against the sentence is also dismissed.

D.V. Fatiaki
JUDGE

At Labasa,
26th January, 1998.

Haa0053j.97b