Sami v The State [1999] FJHC 18; Haa0028j.1998b (22 March 1999)

Fiji Islands - Ram Sami v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0028 OF 1998

BETWEEN:

:

RAM SAMI
s/o Raya
Appellant

AND:

THEE
Respondent

. A. Sen for the Appellppellant
Ms. A. Driu for thor the Respondent

JUDGMENT

On the 30th of March 1998 the appellant was charged with an offence of Criminal Trespass in which he is alleged to have 'by night entered the (Complainant's) compound without lawful excuse'. He pleaded 'not guilty' and after a trial in which the prosecution called four (4) witnesses including the complainant and the appellant gave sworn evidence, the trial magistrate convicted the appellant and sentenced him to 6 months imprisonment suspended for 12 months.

The appellant now appeals against his conviction on the following three (3) grounds:

(a) That the Statement of Offence and the Particulars of Offence do not disclose any offence;

(b) that both the Statement of Offence and the Particulars of Offence do not comply with the requirements of Section 122 of the Criminal Procedure Code; and

(c) That the findings of the learned Magistrate are wholly contrary to the evidence tendered and cannot be supported by the weight of the evidence.

As to ground (a) the appellant's counsel states in his short written submission:

'Where the allegation is that the accused has committed an offence under a statute then that statute must be quoted otherwise the charge is bad.'

and later Counsel writes:

'Obviously any charge under Section 197 simpliciter would be bad in law.'

I cannot agree.

If that submission is based on Section 122(a)(ii) of the Criminal Procedure Code (Cap. 21) as it appears to be, then it is plainly wrong. The Section merely requires, in the Statement of Offence, 'a reference to the Section of the enactment creating the offence' which in this case, the charge plainly did in its original form.

There is no statutory requirement that the Statement of Offence should also refer to any particular 'subsection' or 'paragraph' of the Section charged, although it is highly desirable that it do so if relevant.

Then counsel highlights that the manual alteration of the original charge by the insertion of the relevant paragraph '(2)' into the original Statement of Offence amounts to a material alteration or amendment of the charge and the amended charge should have been 'put to the accused' and since it was not, therefore, 'the conviction cannot stand'. No authority has been referred to in counsel's submission nor was the Court's attention expressly drawn to the provisions of Section 214 proviso (a) of the Criminal Procedure Code (Cap. 21) as it should have been.

Be that as it may I have considered the Section and respectfully agree with the majority view expressed by the Fiji Court of Appeal in Sucha Singh v. R. 14 F.L.R. 222 where Marsack J.A. said at p.232:

"Section 204, subsection (1)(a) [now Section 214(a)] makes it clear that the obligation on the Court to call upon the accused person to plead to the altered charge arises only 'where a charge is altered as aforesaid'. That is to say , ... altered by way of amendment ... when 'it appears to the Court that the charge is defective either in substance or in forms'."

and later in rejecting an argument not dissimilar to that put before me by appellant's counsel, his lordship said at p.233:

'... the obligation on the Court to call upon the accused person to plead to the altered charge arises only in the case of an amendment made when it appears to the Court that the original charge is defective.'

In this appeal having earlier held that the charge was not 'defective' by the failure to include the relevant paragraph in the Statement of Offence, I find that there is no merit at all in counsel's submission as to the so-called amendment of the charge which could have been just as easily left out. In any event there can not have been the slightest prejudice caused to the appellant by the amendment, since his defence to the charge was a blanket denial. In the appellant's own words: 'This incident never took place.'

As to ground (b) Counsel writes:

"Particulars here state entered 'the compound' of Mohammed Hassan: There is no offence of entering 'the compound' under the Section."

In other words because the word 'compound' does not appear in the Section creating the offence. Therefore there can be no offence of 'entering the compound'. Again I cannot agree.

Section 122(a)(iii) of the Criminal Procedure Code merely requires 'particulars of such offence (to be) set out in ordinary language, in which the use of technical terms shall not be necessary'.

Furthermore Section 122(f) states that:

'... it shall be sufficient to describe any place ... which it is necessary to refer to in any charge in ordinary language in such a manner as to indicate with reasonable clearness the place ... referred to.'

In my opinion the use of the ordinary English word 'compound' is less technical and foreign, and more readily understood in this country, than the phrase 'land adjacent to or within the curtilage of (the complainant's dwelling house)'.

There is not the slightest merit in this submission which I reject in limine.

I turn finally to ground (c) which in effect complains that the judgment is against the weight of the evidence.

It has been said that in order to succeed upon such a ground the appellant must clearly demonstrate that there was no evidence on which the trial magistrate could have reached the conclusion which he did reach if he had properly directed himself.

In this appeal there has been no suggestion that the trial magistrate misdirected himself in law, only that he failed to properly consider the inconsistencies in the prosecution's evidence as to the appellant's movements on the night in question after being disturbed.

The trial magistrate's judgment is a short one but that was to be expected given that there was only one real issue before him namely, 'the identity of the trespasser'. He was also plainly aware of the presence of 'inconsistencies in the prosecution evidence but they are minor and do not affect the issue to be decided ... (and) ... are to be expected (where) ... witnesses are asked to recall every detail of something that took place nearly three years ago in the middle of the night ...'

Quite plainly this case depended almost entirely on the view the trial magistrate took as to the evidence of the complainant on the one hand and the accused on the other and is based in large measures upon his assessment of their respective credibility.

In such a case an appellate court will not interfere with the magistrate's findings based on an assessment of the credibility of witnesses unless convincing and compelling reasons are shown which would justify an appellate court differing from such findings.

In this appeal after carefully considering counsel's written submission, the evidence in the case and the trial magistrate's clear preference for the complainant's 'account of the events of the night of 2nd October 1994' which was detailed and 'elaborate', I remain unconvinced that the trial magistrate's favourable assessment of the complainant's credibility was insupportable or erroneous.

In the result the appeal is dismissed.

D.V. Fatiaki
JUDGE

At Labasa,
22nd March, 1999.

Haa0028j.98b