Sereka v The State [2001] FJHC 79; Haa0057j.2001s (11 October 2001)

Fiji Islands - Sereka v The State - Pacific Law Materials

ass=MsoNormal align=cenn=center style="text-align: center; margin-top: 1; margin-bottom: 1"> IN THE HIGH COU FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0057 OF 2001S

(Suva MC Criminal Case No. 2458 of 2000)

BETWEEN:

JONETANI SEREKA

JONE CALEVU

JEREMAIA DONU

NOA TUBAKA

VILIAME TAUFA

LIVAI RAVONOKULA

SITIVENI NAQIRI

Appellants

AND:

THE STATE

Respondent

1st, 3rd, 4th and 6th Appellants in Person

Ms M. Waqavonovono for 2nd, 5th and 7th Appellants

Mr P. Bulamainaivalu for Respondent

Hearing: 21st September 2001

Judgment: 11th October 2001

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JUDGMENT

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On 15th March 2001 the seven Appellants were convicted on their own guilty pleas of the following offences:

FIRST COUNT

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Statement of Offence

WRONGFUL CONFINEMENT: Contrary to Section 253he Penal Code, Cap. 17.

Particulars of Offence

SEMESA ROKO, JONETANI SEREKA, JONE CALEVU, JEREMAIA DONU, MARIKA VAKATUBUKAWA, ISIRELI RAMATAU, NOA TUBAKA, VILIAME TAUFA, PENI MURIVATU, TOMASI NAWAILULU, VILIAME NAITUKU, EPI CAMA, SAMISONI BALEIYAROI, LIVAI RAVONOKULA, SITIVENI NAQIRI and TAISAKE BALE between the 12th day of July 2000 and the 13th day of July 2000, at the Medium Security Prison, Naboro in the Central Division, knowingly and wilfully confined ASP KORESI RAYAWA, PPO TEVITA KOROITAMANA, ACTING PPO SOLOMONE TUINASAU, SGT. 764 INOSI TOGA, SGT. 775 VENAISI BULI, POC 745 NEORI RACULE, POC 943 JOSAIA QEREQERETABUA, POC 933 JONE WAQALEVU, POC 1029 TANIELA RARARUA, POC 950 SHALENDRA SHARMA s/o Mahen Prasad, POC 890 JAGDISH SINGH s/o Prem Singh and POC 1110 SAULA SAUMAKA.

SECOND COUNT

1"> p class=MsoNormaNormal style="margin-left: 35.45pt; margin-top: 1; margin-bottom: 1"> Statement of Offence

CRIMINAL INTIMIDATIONContrary to section 330(b) of ) of the Penal Code, Cap. 17.

Particulars of Offence

> SEMESA ROKO, JONETANI SEREKA, VILIAME TAUFA, PENI MURIVATU, AMA and LIVAI RAVONOKULA between the 12th day of July 2000 2000 and the 13th day of July 2000, at the Medium Security Prison, Naboro in the Central Division, without lawful excuse, threatened to use cane knives, digging forks and iron rods on Prison Officers namely ASP KORESI RAYAWA, PPO TEVITA KOROITAMANA, ACTING PPO SOLOMONE TUINASAU, SGT. 764 INOSI TOGA, SGT. 775 VENAISI BULI, POC 745 NEORI RACULE, POC 943 JOSAIA QEREQERETABUA, POC 933 JONE WAQALEVU, POC 029 TANIELA RARARUA, POC 950 SHALENDRA SHARMA s/o Mahen Prasad, POC 890 JAGDISH SINGH s/o Prem Singh and POC 1110 SAULA SAUMAKA.

THIRD COUNT

Statement of Offence

ASSAULTING PRISON OFFICERS IN THE DUE EXECUTION OF HIS DUTY: Contrary to Section 247(e) of the Penal Code, Cap. 17.

Particulars of Offence

JEREMAIA DONU on the 12th day of July 2000 at the MeSecurity Prison, Naboro in the Central Division, assaulted lted Acting PPO SOLOMONE TUINASAU, a Prison Officer engaged in execution of his duty imposed on him by law.

FOURTH COUNT

Statement of Offence

p class=MsoNormaNormal style="margin-left: 35.45pt; margin-top: 1; margin-bottom: 1"> DAMAGING PROPERTY: Contrary to Section 324 of the Penal Code, Cap. 17.

Particularsffence

LIVAI RAVONOKULA between the 12th day of July 2000 and the 13th day of July 2000 at the Medium Security Prison, Naboro in the Central Division, wilfully and unlawfully caused $60.00 damage to the Joinery and Tailors gate, the property of the Fiji Prisons Department.

They agreed to the facts outlined by the prosecution and were sentenced to thrars each on Count 1 and nine months imprisonment each on Coon Count 2. The three year term was to be served concurrently with the nine month term, but consecutively to the prison terms each was then facing.

All Appellants appealed against sentence, and the second and seventh Appellants appealed against conviction as well.

At the hearing of the appeal, counsel appeared for the 2nd, 5th and 7th Appellants. It was ant from her submissions that if the convictions on Count 1 nt 1 were held to be wrong in law, then the sentences would also be held to be wrong in principle. This is because counsel submitted that the Appellants should have been convicted of a lesser offence carrying a lesser penalty. She also submitted that if the appeals against conviction were upheld, she would make further submissions on sentence.

In the circumstances it seemed to be sensible to deal with ction first in this judgment before hearing her submissions on sentence.

The Charge

The Appellants were charged with “Wrongful Confinement: cry to section 253 of the Penal Code.” Section 253 reads as follows:

“Any person who, knowing that any person has been kidnapped or has been abducted, wrongfully conceals or confinch person, is guilty of a ff a felony, and shall be punished in the same manner as if he had kidnapped or abducted such person with the same intention or knowledge, or for the same purpose, as that with or for which he conceals or detains such person in confinement.”

However, the particulars of the offence do not reflect the provi of section 253 of the Penal Code. The charge reads that the Appellants “knowingly and wilf wilfully confined” the prison officers concerned. It says nothing about kidnapping or abducting. Section 256 of the Penal Code provides:

“Whoever wrongfully confines any person is guilty of a misdemeanour, and is liable prisonment for one year or r or to a fine of four hundred dollars.”

The particulars of the charge are far more consistent with a charge under section 256. Section 256 of the Penal Code however, creates a meanour with a maximum pena penalty of 12 months imprisonment. Section 253 carries a maximum penalty of 10 years imprisonment. There is considerable difference between the two sections.

Counsel for the Appellants invites me to substitute the convictions under section 256, on the basis that the Appellants were actually pleading to the lesser offence.

State Counsel disagrees. He said that although the charge on Coudid not mention all the ingredients of the offence under section 253, the Appellants would ould have known what they were pleading to, when the facts were read. He invites me to uphold the convictions. Both counsel appear to agree that the charge is defective.

The charge is indeed defective. It does not particularise all the ingredien the offence, and at the time of pleading guilty< the Appellants were probably under the impression that they were pleading guilty to Wrongful Confinement under section 256 of the Penal Code.

The facts disclosed both offences. The prosecution said that (inter alia):

“On 12/7/00 at about 1pm Medium Security Prison was illegally taken over by ................ who were at thme serving prisoners of thef the Naboro Medium Prison ................

On 12/7/00 at about 1pm Duty Officer PPO Solomone Tuinasau opened the cell to allisoners out for recreation,tion, volleyball and video. POC Jone Waqalevu a gate keeper opened the gate to the volleyball court. Some of the prisoners crowded the gate keeper and Semesa Roko threatened PO Jone Waqalevu with a kitchen knife and demanded the keys. POC Waqalevu then handed over the keys to the prisoners.”

The prisoners then locked other prison officers in the complex and locked them up in “D” Dormitory. Semesa Roko and the 1st Appellant were apparently the “ringleaders”. In the course of the crisis, PPO Solomone Tuinasau was punched by the 3rd Appellant.

They were kept hostage until 13/7/00 when the Prison Emergency Unit and Police Mobile stormed rison and rescued the twelve prison officers.

These were the facts outlined by the prosecution. They were capable of supporting a section 253 charge because the prison officers were taken from one place of the prison to another against their will and the Appellants knew that. Section 248 of the Penal Code defines kidnapping and abduction thus:

“For the purposes of this Chapter -

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(a) ;&nbssp;&nbs;&nbs; &nbp; ;&nbpp; &nnsp;& any pery person who conveys any person beyond the limits of Fiji without the consent of that person, or of some person legally authorised to consent on behalf at pe is so kidnap that pert person; son; and

(b) &nnbsp;; &nsp; &nsp; &&nbp;; spanperson whon who by f by force compels, or by any deceitful means induces, any person to om ance, id to t thason.”n>

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This provision does little more than provide by enactment, the commondefinitions of kidnapping. In R -v- D (1984) AC 778 the House of Lords held teld that the prosecution, on a charge of kidnapping had to prove -

2) &nbssp; &nsp; p;&nbs; &nbs; &&nbp;; ahe taking or carrycarrying away of one person by another;

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4) &nnbsp; &nsp; &nbbp;&nnbp;&&nbp;; &nsp; an>spthoui the consent of t of the victim;

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In respect of the first ingredient, it was held in R -v- Wellard 67 Cr. App. R. 364 that the kidnapper has to be shown to have deprived the victim of liberty and carried him/her away from the place where the victim wished to be. Thus where the victim was “carried” by the defendant’s fraud 100 yards and put into a stationary car, that was held to be a kidnapping.

Thus the facts were capable of sustaining a section 253 charge. However, that is not an issue when dering whether the plea to a charge was an equivocal plea. lea. The issue is whether the accused pleaded guilty without understanding the nature of the charge, or without intending to admit that he was guilty of what was alleged. (R -v- Forde (1923) 2 KB 400).

It is clear on a reading of the charge on Count 1, that the Aants would have thought that they were pleading guilty to a charge of Wrongful Confinement.ment. This is because the Statement of Offence reads “Wrongful Confinement” and the Particulars of the Offence make no mention of abduction or kidnapping. For these reasons I find that the pleas were equivocal in the sense that they were to the lesser charge of Wrongful Confinement under section 256 of the Penal Code.

What could the learned Magistrate have done? He could asked the prosecution to choose the charge it wished to proceed with and to amend it accoraccordingly, or he could have convicted of the lesser offence under section 256, as he was entitled to do pursuant to section 169 of the Criminal Procedure Code. However the defect was not noticed until it was raised by counsel at the hearing of this appeal. And in fairness to the learned Magistrate, I did not notice the defect myself in Serupepeli Cerevakawalu & Anr. Crim. App. No. HAA042 of 2001S.

Having discovered the defect, this court can either declare the entire proceedinnullity and remit the case to the Magistrates Court for a rr a rehearing, or it can substitute a conviction on the lesser charge and proceed to hear mitigation. In the interests of efficiency, I consider the second option to be preferable. Section 319 of the Criminal Procedure Code allows the High Court to “exercise any power which the Magistrates Court might have exercised.”

The convictions of all Appellants on Count 1 are substituted with convictions under sn 256 of the Penal Code. I will now proceed to hear mitigattigation.

Nazhat Shameem

JUDGE

At Suva

11th October 2001

Haa0057j.01s