Taimalawai v The State [2001] FJHC 56; Haa0021j.2001b (7 August 2001)

Fiji Islands - Taimalawai v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Labasa

Appellate Jurisdiction

CRIMINAL APPEAL NO. 0021 OF 2001

Between:

TEVITA TAIMALAWAI

Appellant

- and -

THE STATE

Respondent

Appellant in Person

Mr. J. Rabuku for the Respondent

JUDGMENT

On 6^th March 2001 the appellant was convicted by the Labasa Magistrates Court after he pleaded guilty to the following offence :

Statement of Offence

House Breaking, Entering with Intent to Commit Felony namely Attempted Rape : Contrary to Section 300(a) of the Penal Code Cap.17

Particulars of Offence

TEVITA TAIMALAWAI, on the 2^nd day of March, 2001 at Virsaratu in the Northern Division, broke and entered the dwelling house of TARUSILA KALELIA with intent to commit felony namely attempted rape to the said TARUSILA KALELIA .

Upon his conviction the appellant was sentenced to five (5) years imprisonment `to show that this sort of offence has to stop and (as) a warning to would-be offenders’. Clearly, no consideration or leniency has been shown for the appellant’s guilty plea nor for the fact that, for all intents and purposes, he was a first offender.

The appellant now appeals against both his conviction and sentence on several grounds which it is unnecessary to detail. The appellant who was unrepresented at the appeal said :

`I am not guilty of committing offence to that lady. Husband of complainant is related to me and was away at the time. Complainant invited another man into their home and I slapped her and since have apologised to her twice. She accepted my apologies. She didn’t report this matter someone else did. I didn’t expect to get such a long sentence. I am apologising to the Court now.’

State Counsel whilst accepting that there were `problems’ with the charge as framed, nevertheless, sought to support the conviction relying upon proviso (a) to Section 319 of the Criminal Procedure Code and highlighting various material facts that were admitted by the appellant before the trial magistrate.

I accept that Section 309 of the Criminal Procedure Code prohibits an appeal `...... in the case of an accused person who has pleaded guilty and has been convicted on such plea by a magistrates court, ......’ but as was pointed out to counsel, such a conviction can only be sustained if the offence charged is one known in law.

As was said by Grant C.J. (as he then was) in Gyan Deo v. R (1976) 22 F.L.R. 1 at p.2 :

`...... it is well established that an appeal against conviction can be entertained on a plea of guilty if it appears that upon the admitted facts the appellant could not in law have been convicted of the offence charged [R. v. Forde (1923) 2 K.B. 400 at 403] ; and it is upon this proposition that the appeal against conviction is founded.’

In the present case the following are the `problems’ with regard to the charge against the appellant :

(1) The Statement of Offence (as amended) refers to Section 300(a) of the Penal Code which is entitled `House Breaking and Committing felony’ and is appropriate where an actual felony has been committed.

In this latter regard, I accept that, by definition, an offence of attempted rape is a `felony’ (see: Section 151 of the Penal Code), but the Particulars of Offence clearly refers `to an intent to commit a felony’ which is akin to the wording of an offence contrary to Section 302(1) of the Penal Code i.e. `Housebreaking with intent to commit felony’.

Quite plainly the reference to Section 300(a) is incorrect and unsupported by the Particulars thereby rendering the charge defective in form. But that is not all.

(2) There is little doubt in my mind that the `felony’ referred to in Sections 300 & 302 of the Penal Code refers to a completed offence and not to an inchoate attempt which, by definition, would never be completed.

In the present charge as laid, the allegation is that the appellant broke and entered the complainant’s house with the specific intent to commit attempted rape. Not to rape her (as should have been charged), but only to attempt it, and therefore, presumably, the accused also had a specific intention, at the time, of desisting or stopping from ever completing the offence even if it were possible to do so.

I confess there is an air of artificiality about such a charge which I hold to be also defective in substance.

I am fortified in my view by the judgment of the Court of Appeal in Karolina Adiralulu v. R. Cr. App. No.11 of 1983 (unreported) where the Court in rejecting the possibility of entering a conviction for an offence of attempted infanticide on a charge of attempted murder said at p.5 :

`With all respect to the view of the learned judge ...... we are of the opinion that there is no such offence in Fiji as attempted infanticide.’

and later after setting out Section 205 and referring to Section 380 of the Penal Code (which defines an `attempt’), the Court said :

`...... it is clear that a person can be deemed to attempt to commit only that offence he was attempting to commit when he began to put that intention into execution. To be deemed to attempt infanticide he must at the outset have had an intention to commit infanticide. But the primary intent in respect of infanticide is to commit murder ......’

and finally at p.6 :

`Accordingly, the initial intent of a person who by wilful act or omission causes the death of her child ...... which may result in her conviction of the offence of infanticide is not to commit infanticide. It is to commit murder. If the attempt fails, then she could be charged with and convicted of attempted murder. But not of attempted infanticide.’

Needless to say there is an inherent inconsistency in an averment of an intention to commit an attempt where the definition of the attempt necessarily presupposes an intention to actually commit the completed offence (see : Section 380 Penal Code).

In other words, the mens rea of an attempted rape is by definition an intention to commit rape, the mens rea charged however, is not an intention to commit a completed offence (which may be uncompleted for want of actus reus and thereby become an `attempt’), rather, what is charged, is an intention to commit an attempt (irrespective of whether or not the actus reus can be completed) which, in my considered view, is an offence unknown to the law.

For the foregoing reasons, the conviction cannot stand and is accordingly quashed and the sentence set aside.

D.V. Fatiaki

JUDGE

At Labasa,

7^TH August, 2001.

HAA0021J.01B