Sattar v State [2000] FJHC 150; Criminal Appeal 83 of 1999 (10 January 2000)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 83 OF 1999
(Labasa Mag. Ct. Crim. Case No. 610/97)

Between:

MOHAMMED SATTAR s/o Saizad
VINOD LAL s/o Tagavelu
Appellants

And

STATE
Respondent

Mr. A. Sen for Appellants
Mr. J. Rabuku for State

JUDGMENT

The appellants, Mohammed Sattar s/o Saizad and Vinod Lal s/o Tagavelu were charged in the Labasa Magistrate’s Court with the offences: in Count 1, the first appellant for disobedience of a lawful order contrary to section 144 of the Penal Code; in Count 2 the first appellant for resisting arrest contrary to section 247(a) of the Penal Code and in the third Count, the second appellant, for obstructing a police officer in the execution of his duty contrary to section 247(b) of the Penal Code.

Upon their conviction the first appellant was fined $200 on the first Count in default six months and $25 on the second count in default 25 days and the second appellant was fined the sum of $100 in default 3 months and $25 costs.

Grounds of Appeal

The appellants have appealed on the following 4 grounds:

The Learned Magistrate erred in Law and in failing to decide as to whether the orders given by PC 140 Tam Gill on the 7th day of March 1996 at Labasa in the Northern Division were lawful orders. (Ground 1)

That the learned Magistrate erred in law and in fact in convicting the accused on the basis that they had given unsworn evidence, which could not be tested under cross-examination. (Ground 2)

The learned Magistrate erred in law and in fact in failing to decide on various inconsistencies in the prosecution evidence which created doubts in the veracity of the prosecution witnesses. (Ground 3)

The conviction of both the appellants is against the weight of the evidence. (Ground 4)

Consideration of grounds of appeal

Ground 1

This ground relates to the first Count. The particulars of the offence are that on 7 March 1996 at Labasa in the Northern Division the first appellant disobeyed order of PC 140 Tam Gill in due execution of his duty.

The facts are that on the day in question at about 2.00 p.m. when PC Gill was patrolling on Naseakula Road, he "came across a hired car of the first appellant. It was parked opposite R.B. Patel & Company. The driver was inside the car. The driver came out and stood outside the door". PC Gill said: ‘I told him to remove his car as it was a hired car and he was not supposed to operate from there’. (Page 21 of Record).

The appellant refused to remove his car whereupon after warning he was arrested for disobedience of lawful order. He resisted arrest. The second appellant came and "pulled and pushed" the constable whereupon he was also arrested for obstructing a police officer in the due execution of his duty.

Section 144 of the Penal Code under which the first appellant is charged provides:

144. Everyone who disobeys any order, warrant or command duly made, issued or given by any court, officer or person acting in any public capacity and duly authorized in that behalf, is guilty of a misdemeanor, and is liable, unless any other penalty or mode of proceeding is expressly prescribed in respect of such disobedience, to imprisonment for two years (emphasis mine).

It is Mr. Sen’s submission that the ‘learned Magistrate took no heed of the submission that he had to decide if the order given was lawful or the fact that P.W.I (Tam Gill) had lawfully parked his car along Naseakula road’.

From the line of argument put forward by the appellant he appears to think that since he had the right to park where he was, there was no need for him to move from there when ordered to do so by PC Gill. Constable Gill told him to move and it is this order that the appellant disobeyed which offends the said section 144 which talks of "disobeys any order ..... authorized in that behalf?". The word ‘lawful’ is not used in that section at all. Mr. Sen’s submission is that the learned Magistrate must decide: if the order given was ‘lawful’ or "the fact that the appellant had lawfully parked his car". In my view no question of deciding on these matters arose at the stage the orders were given by the constable or at any other stage .

Under s144 a Constable is authorized to give ‘orders’ and his orders should be obeyed. I agree with the learned state Counsel that under section 23 of Police Act Cap.144 police are empowered to make an order to any driver of any vehicle to remove their vehicle for the purposes of regulating and controlling traffic, to keep order on public roads and streets etc ..... and to also prevent obstructions on the occasions of assemblies and processions on the public roads etc.

The order by Constable Gill to remove the vehicle is a lawful order under s23 of the Police Act and this power is given to the Constable by the appropriate authority.

In these circumstances no question of the Magistrate having to specifically consider whether the order was lawful or not arose; in any case the Constable’s evidence and other witnesses’ evidence were sufficient to show that the order was lawful.

This ground of appeal therefore fails.

Ground 2 relates to comment by the learned Magistrate on the unsworn evidence of the second appellant. The first appellant had given sworn evidence.

I agree with the learned State Counsel that there is nothing in the record to show that the Magistrate convicted the second appellant on the basis of the unsworn evidence. I see nothing wrong in his statement in relation to the unsworn statement. He considered the whole of the evidence and his approach to unsworn statement was proper. In this regard he did not err in either law or fact.

The second ground also fails.

As for Ground 3, which pertains to alleged inconsistencies in the evidence adduced by the prosecution, the learned Magistrate acknowledges them, but they were not material contradictions. The Magistrate found the charges proved against the appellants.

This ground therefore fails.

I see no merit in Ground 4 namely, that the conviction of the appellants is against the weight of evidence. It therefore fails.

In the outcome, for the above reasons the appeal is dismissed.

D. Pathik
Judge

At Labasa
10 January 2000