The charge of Housebreaking, read as follows:
nbsp; Statement of Offence
HOUSE BREAKING ENTERING AND LARCENY: Contrary to Section 300(a) of the Pende Act 17.
Particulars of Oe
FILIPE DELANA and EPINEVAI NAGERA, on the 11th day of January 2001 at Suva in the Central Division, broke and ente entered the house
of SARVADA NAND SADAL s/o SADAL and stole from therein, assorted jewelleries valued $6,535.00, radio valued $2,115.00, shoes valued
$95.00, assorted wrist watches valued $395.00, perfumes valued $255.00, cuff links valued $272.00, torch valued $8.50, cash $195.00
to the total value of $9,870.50 the properties of SARVADA NAND SADAL s/o SADAL.
The charge under the Emergency Decree read as follows:
Statement of Offence
: 1">
FOUND OUT OF DOORS WITHOUT A WRITTEN PERMIT lang=EN-GB>: Contrary to Section 7(3) and 25 of the Emergemergency Decree No. 4 of 2000 and of the Public Safety Act 19.
Particulars of Offence
ILAITIA MAVOA and LIVAI NAGERA, on the 17th d June, 2000 at Nasinu in the Central Division, were found out of doors at Bailey Bridge,
Lae, Laucala Beach Estate without a written permit between specified hours of 8.00pm on 17/6/00 and 5.00am on 18/6/00.
The Appellant now appeals against his conviction and the total sentence of 3 years and 9 months imprisonment, saying that it is and
excessive.
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At the outset, I informed State Counsel that I could not cor the appeal against the sentences unless I was satisfied of the validity
of the Emergency ency Decree 2000 and therefore of the validity of the charge under the Decree. To that end, State Counsel sought
leave to file the affidavit of Acting Superintendent Waisea Tabakau purporting to show that the Emergency Decree had been necessary
to help to contain a serious situation in Fiji, from the 19th of May 2000. Leave was granted to file the affidavit.
Grounds of Appeal
The grounds of appeal filed by the Appellant may be summaris follows:
(a) &nbssp; &nsp; &nbbp; &nbssp; Ipan>Inadequadequate time to prepare for the defence including failure to disclose the prosecution case;
: 1">
(b) &nnbsp;; &nbs;&nnbsp;&nbs; &nbs; &nbsspan>Insufncciency of e of evidence;
&nbs> (c) &nnbsp;; &nbs;&nbs; ; &nnsp;& Hpan>He was was a juvenile at the time of the trial,his parents and welfare officer were not present;
(d) & &nnsp;&&nbp;;&nbp; &nbp; ene sce was harsh arsh and excessive for a first offender.
<1"> The State opposed the appeal saying that the conviction was correct in law, that the sentence was not excessive and that the conviction
and sentence under the Emergency Decree justified under the doctrine of necessity.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The trial
At the time the offence was committed the Appellant was already 17 year, and no longer entitled to the special protective measures
of the Juveniles Act. Further dher during his interview with the police, he was asked if he wanted to have his relatives present during his interview
but he declined. Indeed in court he told me that he had no relatives who visited him in prison, or who showed interest in him while
he was remanded pending trial.
Thus, in law, there was no obligation to provide a closed court hearing for the Appellant, id the learned Magistrate need to call
for his parents and and a welfare officer. If he had been under the age of 17 at the time of trial, and had been accorded special
protection it is unlikely that his parents would in any event have attended.
As to sufficiency of evidence, the Appellant and his accomplice were identified by Speciastable Tavola of the Muanikau Police Post
near the crime scme scene with a radio and a green bag. The bag contained items stolen in the break-in at Mr Justice Sadal’s house.
They were apprehended three weeks later because the Constable was unable to catch them at the time. Under caution, the Appellant
said that on 11th January 2001, he was sleeping in a cave in Toorak with the accomplice, when they decided to go to Muanikau. His
friend broke into the house while he stood outside watching. They then entered the house and took the items in the charge. He admitted
committing the offence.
In her judgment the learned Magistrate accepted the evidence of the Special Constable and accepted the voluntariness of the cauttatement.
She found the Appe Appellant guilty.
There was ample evidence on which she could make this finding and she did not err in convicting the Appellant.
The record also shows that the Appellant applied for legal aid, and that legal aid was only provided for a bail application on 26tch
2001. Although bail was was refused on the ground that the Appellant had re-offended during his bound over period, the Appellant
had from 22nd January 2001 to 20th April 2001 to prepare for the trial. Indeed a perusal of the record shows that he did a competent
job in defending himself, and was able to call a witness in his defence. In the circumstances I consider that the trial was conducted
fairly and that the conviction was correct in law. The appeal against conviction is dismissed.
Sentence
The sentence included the activation of a 3 month period of imprisonment imposed in default of a binding over order imposed by the
same Magistrate on 11th May 2001. The Appellant did not appeal against the conviction in respect of this offence, but I consider
it necessary and just to consider the validity of the charge. This is particularly so because the Appellant is unrepresented.
State Counsel urged me to ignore the question of the validity of the charge asking me to confine my judgto the question of sentence
only. I am somewhat surprised ased at this submission. It is encumbant upon every appellate court to consider all issues relevant
to the appeal whether or not they were raised as a ground of appeal. Thus where a charge was laid which was not known in law or was
clearly defective, the sentence is a nullity, and the court can so declare even where the appeal was against sentence only. Thus
in Regina -v- Whitehouse [1977] EWCA Crim 2; (1977) 1 QB 868, the Court of Appeal considered the validity of the charges on an appeal against sentence and found that the offences on the indictment
were unknown to the law. Recently in Tevita Taimalawai -v- The State Criminal Appeal No.0021 of 2001, Fatiaki J quashed a conviction for “House Breaking & Entering with Intent to Commit a Felony”,
on an appeal against sentence, finding that the charge was not known in law.
As Griffith CJ said in Ah Yick -v- Lehmer [1905] HCA 22; (1905) 2 CLR 593 a:
“When there is a general appeal from an inferior to another Court, the Court of Appeal can entertain any many matter, however arising,
which shows that the decision of the Court appealed from is erroneous. The error may consist in a wrong determination of a matter
properly before the court for its decision, or it may consist in an assertion by that Court of a jurisdiction which it does not suggest,
or it may consist in a refusal of the Court to exercise a jurisdiction which it possesses. In all these cases the Court of Appeal
can exercise its appellate jurisdiction in order to set the error right.”
That passage was cited with approval by the Fiji Court of Appeal in Grahame Bruce Southwich -v- The State Crim. App. No. AAU0020 of 1996. The Court of Appeal said that the above passage was a correct statement of the common law, which
is applicable in Fiji by virtue of section 22 of the High Court Act. That section provides that the common law of England prior to
the enactment of the Act, is applicable in Fiji.
In the circumstances not only do I have the jurisdiction tsider the validity of the charge under the Emergency Decree, but I consider
it just to do s do so. To turn a blind eye to the possible invalidity of the charge in an appeal against sentence is neither just
nor proper and I reject the State’s submissions on this point.
The question therefore is whether the charge of “Found out of doorsout a written permit” is valid, and whether the Emergency Decree
2000 is a valid law. StateState Counsel submits, and I agree, that the reference to the Public Safety Act in the Statement of Offence was an error but not one which invalidated the charge. The particulars of the offence were clearly worded
and there was no prejudice or injustice to the Appellant as a result of the error (R -v- Power (1978) 66 Cr. App. R. 15).
The State conceded at the outset that there was no constitutional basis for the Emergency Decree 2000. Under the Constitution, there
is no power given to the military to pass any laws, emergency or otherwise. State Counsel submitted however, that the Decree was
lawful under the doctrine of necessity as an extra-constitutional measure taken by the army commander to maintain public security.
He relied on the affidavit of Acting Superintendent Waisea Tabakau. The affidavit, sworn on 27th September 2001, states that there
was an armed invasion of Parliament on 19th May 2000, and that members of Parliament were taken hostage. It said that there was rioting
in the streets of Suva and rebels moving in and out of Parliament. It states that on the 27th of May 2000, two soldiers and a British
journalist were shot and wounded by rebels, and that on the next day, armed rebels raided the Fiji Television Office causing extensive
damage. It said that as a result of rebel activity a security guard and a police constable died and that on the 30th of May 2000
the President of Fiji and his family were moved to a safe house for their own security.
The affidavit deposes as to a deteriorating law and order situation accompanied by the take-over of Army Barrand Police Stations around
ound the country, and the continued hostage situation in Parliament. On 29th May 2000 Commodore Bainimarama “assumed all executive
authority and established Martial Law.” Finally, the affidavit states that on 2nd June 2000, the Commodore promulgated the Emergency
Decree 2000.
The Decree itself commences with the following statement:
“Whereas given the escalating unrest and political uncertainty in the country with its attendant grave risks to life ande and property,
it is imperative that the emergency situation continues in order to guarantee the safety of the people of Fiji and to maintain law
and order.
NOW THEREFORE, in exercise of the powers conferred ue as the Commander and the Head of the Interim Military Govy Government of Fiji,
I proclaim the following :”
The Decree allowed for the prohibit of a meeting, procession or assembly, by the district offiche closing of roads, the control of
the movement of personsrsons thought to be involved in acts likely to cause a breach of the peace, the control of arms, ammunition
and explosives, and provided for the use of reasonable force by a member of the armed forces to prevent the imminent threat to life
or property. Section 7 of the Decree provided:
“(1) The Commissioner of Police, Officer Commanding, the officer in charge of a Police Distric by order in the Gazette rete require
every person within a specified area to remain within doors between such hours as may be specified in the order unless in possession
of a written permit in that behalf by a police officer or the officer in charge of a Police District or a district officer or a military
officer to issue such permits.”
Section 7(3) provides:
“Any person who is out ofs without a permit in writing within an area declared under this section and between such huch hours as have
been specified to remain indoors commits an offence.”
It is under section 7(3) that the Appellas convicted.
The Court of Appeal in The Republic of Fiji -v- Chandriksad Civil Appeal No. ABU0078/2000S at p.27 said this of the doctrine of necessity:
“The doctrine of necessity enables those in de facto control, such as the military, to rd to and deal with a suddenudden and stark
crisis in circumstances which had not been provided for in the written Constitution or where the emergency powers machinery in that
Constitution was inadequate for the occasion. The extra-constitutional action authorised by the doctrine is essentially of a temporary
character and it ceases to apply once the crisis has passed.”
At first instance, Gates J said:
“It is obvious therefore that the doctrine of necessity could come to aid Commodore Bainimarama in resolving the hostage crisis, imposing
curfews, maintaining road blocks and ensuing law and order on the streets. Once the hostage crisis was resolved and all other law
and order matters contained, if not entirely eradicated, the Constitution previously temporarily on ice or suspended, would re-emerge
as the supreme law demanding his support and that of the military to uphold it against any other usurpers.”
The Court of Appeal in Chandrika Prasad (supra).26 cited with approval the following passage from the judgment of Haynes P in Mitcheitchell -v- DPP (1986) LRC (Const) 35, 88:
“I would lay down the requisite conditionse that:
(i) &nnsp;&&nsp;&nbp;;&nbpp;&nbp; an>sp impnrative necessary sary must arise because of the existence of exceptional circumstances
not provided for in the Consion, mmediction to be taken to protect or preserve vitaction to the State;tate;
(ii) &nnsp;&&nsp;;&nspp;&nssp;&nsp;  pan>shere must be no o no other course of action reasonably available;
ass=L stylxt-in -34.9pt; margin-left: 70.9pt; margin-top: 1; margimargin-botn-bottom: tom: 1"> <1"> (iii) &nnbsp;;&nspp;&nsp; &nsp; &&nbp;; any such acth action must be reasonably necessary in the interest of peace, order, and good government; but it must not do more than
is necessary or legislate beyond that;p clavel3 ="text-indenindent: -3t: -34.9pt4.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1"> (iv) &nnsp;&&nsp;;&nspp;&nssp;&nsp; it must not imphe jthe just rights of citizens under the Constitution;
(v)(v) &nbssp;&nnsp;&&nsp; &nsp; &nbbp;&nnbsp; it must must not be one the sole effect and intention of which is to consolidate or strengthen evoluas su/span &nbs>
The burden of proving “necessity” is on the party claiming the validity of the unconsional action. As Haynes P said at p.88:
“It is for this court to pronounce on the validity (if so) of any unconstitutional action on the basis of necessity, after determining
as questions of fact, whether or not the above conditions exist. But it is for the party requiring the Court to do so to ensure that
proof of this is on the record. Such validation will not be a once-for-all validation, so to speak, it will be a temporary one, being
effective only during the existence of the necessity.”
More recently, Gates J held in Jokapeci Koroi & Others -v- The Commissioner of Inland Revenue Civil Action No. HBC179/2001L, that a decree imposing Value Added Tax on food items could not be justified under the doctrine of
necessity. He said at page 25:
“There is a danger in allowing the doctrine of sity to degenerate into a doctrine of convenience, a doctrioctrine to avoid awkward
or embarrassing situations. That is not the doctrine of necessity.”
Applying the principles laid down in Mitchell (supra), I am satisfied on the affidavit of ASP Tabakau that the hostage-taking of ParliParliamentarians on May 19th created an exceptional
situation which was not provided for in the Constitution. I also accept that there was no other course of action available than to
allow for the security measures promulgated in the Emergency Decree. I am also satisfied that the promulgation of the Emergency Decree
was reasonably necessary in the interests of peace, order and good government and that it does not make provision for acts that go
beyond national security measures.
As to the condition that the Decree must not impair the just rights of citizens, there can be no doubt that it severely limits the
rights of citizens to freely move around Fiji. However the freedom of movement provision under section 34(3) of the Constitution
is limited by section 34(7) which provides:
“A law may limit or may aise the limitation of, the right of a person to freedom of movement:
(e) p; &nsp; &nbbssp; in the ithe interesterests of national security, public safety, public order, public morality or public health.” &nbs>
Section 34(7)(a) is subject to a further restriction, that a law may limit the right “but only to the extent that the limitation is
reasonable and justifiable in a free and democratic society.” The Nigerian High Court in State -v- The Ivory Trumpet Publishing Co. (1984) 5 NCLR 736, 750, said (per Araka CJ):
“For a restriction ..... to be reasonably justifiable in a democratic society the restriction itself must be reasonable. But it is
not all restrictions that are reasonable that must of necessity be justifiable in a democratic society.”
The Constitutional Court of South Africa said in State -v- Makwanyane & A/u> (1995) 6 BCLR 665, that what is required of the coue courts, is a balancing of the benefits to a democratic society resulting from
the restriction with the detriment caused to a democratic society by the specific restriction. At p.104 the Court said (per Chaskalson
P):
“In the balancing process, relevansiderations will include the nature of the right that is limited, and its importance to an o an
open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that
purpose to such a society; the extent of the limitation, its efficacy, and particularly where the limitation has to be necessary,
whether the desired ends could reasonably be achieved through other means less damaging to the right in question.”
In respect of the Emergency Decree, it is clear that the extraordinary measures (including the involvement of the armeces in maintaining
law and and order) were passed to meet an extraordinary situation. Indeed the measures were introduced to deal with persons responsible
for the removal of democracy, and those who might take advantage of the situation which arises when democratic institutions are destroyed,
or fail to operate. The freedom of movement provision in the Constitution is undoubtedly important in a free and democratic society,
but even more important is the protection of democracy itself. Further, the emergency powers procedures laid down in the Constitution,
were frustrated because of the inability of the Cabinet to function. In these circumstances insofar as the Emergency Decree was in
breach of Section 34 of the Constitution, it was reasonably justifiable in a free and democratic society when it was passed by Commodore
Bainimarama on 2nd June 2000. Whether it continues to be justifiable, is a matter which the State must prove to the satisfaction
of the courts, on each occasion it seeks to rely upon its provisions.
The last condition is that the Decree must not have the effect and intenti consolidating or strengthening the revolution. I am satisfatisfied
on the affidavit evidence before me, that the intention was solely to restore law and order in Fiji.
The Emergency Decree, when promulgated, therefore passes the Mitchell test. Further, because the Appellant was found to be in breach of the Decree when the hostage crisis was continuing, I am satisfied
that the doctrine of necessity applied at the time he committed the offence. The charge is therefore valid.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> That is, of course, not to say that the Emergency D continues to be valid under the doctrine of necessity.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> State Counsel conceded that once the hostages were released, and the arms returned to the Army, the Emergency Decree was no longer
necessary. Although this issue calls for full argument when a party seeks to rely upon the Decree after the release of the hostages,
I doubt that the principles in Mitchell would be satisfied in respect of the Emergency Decree once the hostage crisis was resolved, and the rebels detained by the police.
Turning therefore to sentence, the learned Magistrate was right to bind over the Appellant for being in breach of the curfew on the
11th of June 2000, under section 41 of the Penal Code. Section 41 allows the Magistrates Court to bind over a person to keep the peace and to be of good behaviour for a period not exceeding
two years. The Appellant was a first offender, and this sentence was well suited to both offence and offender. However, the condition
imposed was that he should pay $300 if he failed to keep the peace. Such a recognizance would be meaningless for an unemployed youth
with no family to support him. His inability to pay the $300 when and if he re-offended, should have been predictable. And, in ordering
him to be imprisoned for failure to pay the $300 the learned Magistrate should have enquired as to the Appellant’s means and as to
his ability to pay. In the absence of such an enquiry the imposition of the three month term consecutive to the 3½ years is inappropriate
and I quash it accordingly.
I now turn to the 3½ years imprisonment for the House-breaking offence. The length imposed was certainly within the f for similar
offences, and, and the Appellant was entitled to no discount for a guilty plea. However, apart from the breach of curfew offence,
the Appellant was a first offender. Further, he was only 17 years old. In the circumstances the sentence imposed was both harsh and
excessive. The fact that his was not the principal role in the offending should also have been taken into account.
In all the circumstances I consider a term of 12 months imprisonment to bappropriate sentence. The Appellant’s sentence is thereforeefore
quashed and substituted with a term of imprisonment for 12 months. There is no activation of the breach of binding over.
Nazhat Shameem
JUDGE
At Suva
5th October 2001
Haa0056j.01s
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