&nbs> BHARAT DWAJ DUVE
Appellant
AND:
&-GB>
THE STATE
Respondent
Counsel: Mr M. Raza for Appellant
Hearing: 2nd November 2001
Judgment: 9th November 2001
JUDGMENT
On 11th May 2001, the Appellant was found guilty of the following offence:
Statement of Offence
N-GB>
ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(b) of the Penal Code, Cap. 17.
Particulars of Offence
TOMU MASAU, BHARAT DWAJ DUVE s/o DRON ACHith another on the 8th day of April 2000 at Suva in the Central Division robbed RICHARD LEOD
LEONG of $52.00 cash and immediately before such robbery used personal violence on the said RICHARD LEONG.
He was sentenced to one year’s imprisonment, suspended for two years.
He now appeals against his conviction on the following grounds:
a) ;&nspp;&nssp; p; &nbp; &nbp; an>Tpat the leaMned Magistrgistrate erred in law and fact in convicting the accused when
there was no evidence that the lant elledprocured the assailant to commit the rob
b) &nnsp;&&nsp;;&nspp;&nssp;&nsp; &nbp; ;&nbpp; That the leae learned Magistrate erred in law and in fact when there was no evidence that the Appellant committed the offence.
lang=EN-GB>N-GB>  At the hearing of the appeal, counsel for the Appellant submitted that the charge failed to particularise the Appellant’s involvement
in the offence, that the evidence failed to disclose a link between the Appellant and the person who committed the robbery, that
the evidence of the caution interview failed to prove that the person hired by the Appellant was in fact the person who committed
the robbery, and lastly, that even if the Appellant had hired the assailants, he could not have contemplated the commission of the
offence of Robbery with Violence.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> State Counsel submitted that the Appellant, in his e interview had confessed to planning and counselling the commission of the offence,
which hich had already taken place, and that there was enough evidence for the learned Magistrate to draw inferences about his participation
in the offence.
The evidence at the trial was that on the 8th of April 2000, at about 8am, the Assistant Plantger, Richard Leong, opened the Hantex
Apparel Factory at Waat Walu Bay, when two Fijian men came into the office. They asked him for his name and accused him of swearing
at their sister. They then punched him twice on the mouth, causing him injuries. They took his purse which had $52.00 in it. They
then left the office. Richard Leong followed them shouting “robbery.” The men left in a red taxi. Leong gave chase in his van, but
lost them on Foster Road. He was later told that the robbers had been apprehended. He went to the police station and saw one of the
robbers there. He told Richard Leong that the security guard had told him “to do this.”
At the time of the robbery, the taxi driver was seen by Vinay Singh, ver for Hantex Apparel, to be talking to the Appellant outside
the factory. This witness hass had seen the taxi-driver and the Appellant speaking to each other on previous occasions.
The Appellant was interviewed under caution by Detective Constable Nazir Mohammed who alleged that the Appellant had “hired or directed
some people including Tomu Masau of Tacirua Village to punch and rob one Richard Leong ... of $52.00 cash between 0740hrs to 0800hrs
on 8/4/2000 at his office at 22 Freeston Road Walu Bay namely Hantex Style Apparel.”
The allegation was therefore clear and specific. He was asked (at Q16) :- “did anything unusual happen today whilst you were at your
woHis answer was: “Yes, one oone of our production manager Richard was punched and robbed.” He said he was aware of the incident
and at Answer 21 he said: “Our Production Manager Richard’s attitude towards the staffs is too harsh and he is a dictator. He is
also terminating too many people without any genuine excuses. Because of this no one likes him at work so I figured to bring in some
people to teach him a lesson. Because of this I told a Fijian man to punch the manager.”
The Constable then asked him “So that means that what happened today was directed by you?” The answer was “Yes.” H asked at Question
24:”When”When did you tell this Fijian boy to punch and rob the production manager?” His answer was: “On Thursday 6/4/2000 at Walu
Bay.”
The Appellant said that he did not know the name of oy hired, and that he did not give him anything to do the job. At Question 31
he was asked:sked: “That means what happened today was done with your permission and consent since you were the one who had arranged
for this robbery to take place? A: Yes.” These were the significant portions of the police interview.
The learned Magistrate, in her Judgment directed herself correctly on the standard and burden of proof, and on the admissibility of
police confessions. She accepted the contents of the interview, and the evidence of Richard Leong and Vinay Singh and found as a
matter of fact that the Appellant had counselled two Fijian youths to assault the complainant. She found further (at page 5 of her
judgment) that “....... it was foreseeable that given the accused’s knowledge that the assailants were unemployed, the probability
of robbery was imminent and he took that risk when he counselled the two Fijian youths.” She found the Appellant guilty as charged.
The grounds of appeal
The Appellant’s first objection is to the charge. Section 21(1) of the Penal Code allows the prosecution to charge an accused either with committing the offence, or with procuring its commission. Thus, the charge
is not defective in principle. However, where the prosecution alleges aiding and abetting or counselling or procuring, it is in most
cases desirable that the particulars of offence should reflect the nature of the allegation. In DPP for Northern Ireland -v- Maxwell (1978) 3 ALL ER 1140, the prosecution charged Maxwell with the principal offence although the case against him was that he had aided and abetted the principal
offenders. The House of Lords held (per Lords Dilhorne, Hailsham and Edmund Davies at pp 1142, 1146 and 1148) that the particulars
of offence should have disclosed with greater clarity the real nature of the case against the appellant. However because the framing
of the charge on the basis that the appellant was a principal offender was permitted by statute in England (the Accessories and Abettors
Act 1861) no objection could be taken to it.
I echo those sentiments in this case. The charge is not defective because of the provisions of section 21, but it is advisable in
the interests of fairness for the prosecution to particularise the real case against the accused in the Particulars of Offence. In
this case, the Appellant was not prejudiced by the lack of particulars, and this is apparent from the way in which the defence case
was conducted, and in which the Appellant gave evidence. It is clear that he knew the nature and particulars of the case against
him. This submission fails.
The second objection was that there was no factual letween the Appellant and the assailants. The evidence of Richard Leong that the
assailant tant told him that the security guard had hired him to commit the offence, is inadmissible, because it is an out of court
statement by an accused against his co-accused. The only exception is a statement made by a co-defendant in the course of a joint
criminal enterprise R -v- Gunewardene (1951) 35 Cr. App. R. 80.
Nor am I impressed with the evidence that thellant was often seen talking to the taxi driver who drove the robbers away after the
robberobbery. There is no evidence that the taxi-driver was charged as an accomplice, and no evidence that he was a party to the
robbery. Constable Nazir agreed, in his evidence, that Tomu Masau, the person who committed the robbery, was never identified by
the Appellant as being the person he hired to assault Richard Leong. The only real evidence of the “factual link” is therefore derived
from the caution interview. In that interview the Appellant said that he told a Fijian boy to punch the manager on the 6th of April
2000 (two days before the robbery) and said that the incident occurred with his “permission and consent.”
Of course, in his sworn evidence, the Appellant said that he did not tell the Fijian boy to rob Richard Leong, only to assault him,he
had given those instructtructions in March 1998. He said he did not know any Tomu Masau, but had asked a Fijian boy (whose name he
did not know) who had his employment at Hantex Garments, terminated. He said he had been forced to make a statement at the police
station, that his answer at Question 24 was fabricated by the police and that he was shown Tomu Masau at the station, and said that
they did not know each other.
However, the learned Magistrate accepted the contents of his police statement (as she was entitled to, having correctly directed herself
on its admissibility) and by implication, rejected his sworn evidence.
On the basis of the caution interview, she was entitled to draw the inference that the Appellant organised, and counselled an unknown
Fijian man to assault Richard Leong. She was entitled to accept, that such counselling occurred only two days before the robbery,
and that therefore the robbery on 8th April 2000, on Richard Leong was more than mere coincidence. She was entitled to accept on
the evidence that it was the Appellant who had persuaded a Fijian boy to assault Richard Leong. To that end, she did not err. I do
not think that the evidence that the robbers accused Richard Leong of swearing at their sister prevented her from drawing the inference
that it was the appellant who counselled the assault. This submission therefore fails.
However, a far more difficult question is whether, on the basis that the Appellant did counsel an assault, he is also responsible
for the robbery.
Section 21 of the Penal Code provides as follows:
“(1) p; When annoffence hase has committed, each of the fole following persons is deemed to have taken part in committing the
offence and to be guilty of the offence may arged actually committing it, that is to sayo say -
(d) &nnbsp; asp; any person whnscou orls or pro any other person to commitommit the offence.
In the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission.”
Section 23 of the Penal Code provides:
“When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom
it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one or whether the offence is committed in the way counselled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.
In either case the person who gave thnsel is deemed to have counselled the other person to commit the offence actually committeditted
by him.
If the facts constituting the offence actually tted are not a probable consequence of carrying out the coue counsel, the person who
gave the counsel is not deemed to be responsible.”
(my underlining)
This test of “probable consequence” is similar to the common law of “ordinary and natural result.” Archbold (2000 Ed) at 18-19 says:
“An offence cannot, however, be said to have been procured unless there is a causal link between what the allerocurer did and the
commissmmission of the offence. Accordingly, when A surreptiously laces the drink of B with additional alcohol and thereafter B,
unaware of what has happened, commits the offence of driving a motor vehicle with an alcohol concentration above the prescribed limit
(an absolute offence), A may be convicted of having procured B to commit the offence. The Crown must prove beyond reasonable doubt
(i) that A knew that B was going to drive, and (ii) that he knew that the ordinary and natural result of lacing B’s drink would be
to bring his alcohol concentration above the prescribed limit.”
In Attorney-General’s Reference (No. 1 of 1975) [1975] EWCA Crim 1; (1975) 61 Cr. App. R. 118, the Court of Appea asked to consider this vers very point. The question for the Court was whether a procurer and the principal offender
needed to have a shared intention in respect of the offence committed, before the procurer could be found guilty. The Court said
they did not, the question being whether the offence committed was an ordinary and natural consequence of the act of procurement.
If it is, then there is a causal link between the procuring and the offence.
It was said by Shaw L.J. in R -v Bradfoot (1976) 64 Cr. App. R. 7, that the word procure was not a legal term of art, but one that a jury should be able to understand and that “procure” meant to
“procure by endeavour”.. In R -v- Bullock (1955) 1 WLR 1, the Court of Criminal Appellant held that knowledge of the fact that a tool (in that case a car) was to be used for an unlawful
purpose was sufficient to prove the procurement. It said however:
“It is no doubt true that if an accused person merely suspects that if he lends something it may be used for a general criminalose,
that may not be enoughnough to make him an accessory before the fact; If an accused person lends a man a revolver believing that
it may be used to commit a crime of violence but with nothing specific in mind, it may not be enough ......”
In Thambiah -v- R (1966) AC 37, the appellant was charged with abetting (which eld to include counselling and procuring) another man, for for whom he opened a
bank account under a false name, with dishonesty and fraudulently using forged cheques. He was convicted, and on appeal, the Privy
Council held that the judge was entitled to conclude that the appellant must have known that the account would be used for paying
in forged cheques. At page 45, the Court said:
“The intention of the appellant falls to be decided consideration of all the possible inferences which might rght reasonably be drawn
from his acts. Clearly his persistent, fraudulent and successful efforts to open an account for the first accused under a false name
and description might have been intended, as the learned judge found, to provide a vehicle for realising the proceeds of forged cheques.
Such an intention would be consistent with and would explain all the actions of the appellant.”
Finally Archbold states, on the basis of old English commentaries (2000 Ed 18.23) that the counsellor and procurer is liable for all
acts which result from the unlawful act commanded. It says:
“If A commands B to beat C, and he beats him so he dies, A is liable for the murder: 4B1. Com.37; 1 Hale 617.”
Thus in Saunders and Archer (1573) Plowden 473, the accused gave his wife a poisopple intending to kill her, but she gave it to a child who who ate it and died.
He was held to be guilty of Murder. Dyer CJ at the Warwick Asizes holding:
“And therefore it is every mbusiness to foresee what wrong or mischief may happen from that which he does with an evil evil intention,
and it shall be no excuse for him to say that he intended to kill another, and not the person killed.”
It does not therefore appear that the learned Magistrate erred in deciding, on the contents of the confession, that the ro was foreseeable.
Although ough I do not agree that the robbery was foreseeable because the assailants were unemployed, on the facts of the case, the
Appellant counselled the commission of an assault, and it is clearly foreseeable that a robbery in the course of the assault might
also be committed. He would have been liable, on the authorities I have referred to, if Richard Leong had been seriously injured,
or if he had died, as a result of the offence he had counselled and procured. The robbery would not have taken place if the Appellant
had not counselled the assault and he must be held liable for the offence of robbery.
Therefore, there was sufficient evidence for the learned Magistrate to have decided that ompleted offence was a probable consequence
of the counsellnselled offence. Although the way in which the Appellant was questioned, was unsatisfactory because often two questions
were asked in one sentence rendering the answer ambiguous, the Appellant clearly agreed that he had planned the offence which was
committed. Further he never told the police that he did not expect the Fijian boys to commit the robbery. On the evidence, the learned
Magistrate was entitled to draw the factual conclusion that she did.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> In the case of DPP for Northern Ireland -v- Maxwell (1978) 3 ALL 40, the appellant who was a member of an illegal organisatiisation in Northern Ireland, and who was ordered to act as
a guide for another car which held explosives argued that he did not know the target or the weapon to be used. It was held that he
must have contemplated that the bombing of a public-house was an obvious possibility among the offences likely to be committed and
must have contemplated the commission of the offence.
Thus in this case, the learned Magistrate was entitled to find (having correctly directed herself to consider what were foreseeable
consequences) that the Appellant must have contemplated that the person he procured to commit an assault, might also commit a robbery.
Further the short time frame between the counselling, and the offence leads to the inescapable conclusion (to which he himself agreed
under caution) that the offence committed was the one counselled.
For these reasons the appeal against conviction fails, and is dismissed.
Nazhat Shameem
JUDGE
At Suva
9th November 2001
Haa0049j.01s
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