Naidu v The State [2002] FJHC 137; HAA0012J.2002B (23 July 2002)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0012 OF 2002

Between:

NAVIN CHANDRA NAIDU
s/o Ram Chandra Naidu
Appellant

- and -

THE STATE
Respondent

Appellant in Person
Mr. J. Rabuku for the State

JUDGMENT

On the 22^nd of January 2002 the appellant was convicted after a trial in the Labasa Magistrate Court for an offence of Found in Possession of a Dangerous Drug and was sentenced to 12 months imprisonment.

The appellant now appeals against the sentence but some of the grounds advanced in the appellant=s letter raises issues that more appropriately relates to his conviction, such as, a complaint that the trial magistrate '...... did not even bother to find out the facts ......= and his dissatisfaction with '...... the investigation that was carried out by the police=. Accordingly the appellant who appeared throughout in person was permitted to argue his appeal at large.

At the hearing of the appeal the appellant claimed there were 'only 2 rolls of drugs= involved and they in fact belonged to a Fijian man that he was with at the time he was apprehended by the police.

In this regard the court record discloses that at the appellant=s trial the prosecutor called two (2) police officers, the arresting officer and the interviewing officer. The appellant=s caution interview record and the government analyst=s report were also produced as exhibits. In his unsworn statement at the trial the appellant is recorded to have said:

'1^st Constable said there was 1 roll and the 2^nd constable said there were 2 rolls of marijuana. P.C. Dalip must have smoked it because I did not keep any marijuana.=

By this unsworn statement the appellant had plainly challenged the police officers evidence as to the quantity and identity of the drug produced by them at the trial, in particular, the question of whether there was one or two 'rolls= of marijuana seized from him.

This 'discrepancy= is apparent from the police officers evidence with the arresting officer saying he seized one roll and 'another parcel wrapped in a silver foil= from the appellant whereas the interviewing officer testified to receiving '2 rolls wrapped in foil paper= from the arresting officer and delivering the same to the government analyst at Koronivia.

The government analyst in his report, produced under Section 191 of the Criminal Procedure Code, describes the samples he received as: 'Dried leaves wrapped in a foil paper and a roll wrapped in the cigarette paper ......=, which if I may say so tends to confirm the arresting officer=s description of the items he seized from the appellant.

It might be that there was an honest misdescription of the items received by the interviewing officer from the arresting officer when he described them as '2 rolls wrapped in foil paper=, but, the undoubted fact remains, that this 'issue= was never dealt with or resolved by the trial magistrate in his judgment which merely reads:

'I am satisfied by the evidence of the prosecution and I convict the accused.=

With all due respect to the trial magistrate whilst I accept that the Magistrate Court is a court of summary jurisdiction and that the evidence in the case covered a fairly narrow ambit, nevertheless, it has been said on more than one occasion that '...... there is a degree of brevity in a judgment beyond which it ceases to comply with (the provisions of) the Criminal Procedure Code and ceases to show that the magistrate has applied his mind properly to the defence raised= [per Thompson J. in Mano Datt Sharma v. R. (1969) 15 F.L.R. 136].

Needless to say in this instance, one is tempted to ask what aspect of the prosecution=s evidence satisfied the trial magistrate of the appellant=s guilt beyond a reasonable doubt - the fact that the appellant was caught smoking a roll of marijuana? or the fact that '2 rolls (of marijuana) wrapped in foil paper= were handed over by the arresting officer to the interviewing officer? or is it a case that, whatever might be the quantity or description of the marijuana seized, the trial magistrate was satisfied that it came from the appellant?

The appellant has also appealed against the sentence on the ground of its disparity with sentences passed in other cases involving larger quantities of drugs and on the ground that it is: 'harsh and excessive=.

State Counsel iterating the trial magistrate, opposes this aspect of the appeal on the basis that the sentence is not harsh 'because (the appellant) has a similar previous conviction=.

In this latter regard however, the court record clearly records that the appellant when confronted with his record of previous convictions did not admit them. As such, unless the appellant=s record of previous convictions was independently proved by the calling of evidence at a 'Newton hearing= named after the leading case of R. v. Newton (1982) 4 Cr. App. R. (S) 388 it would be impermissible to take it into account in sentencing the appellant [See also: Section 127 of the C.P.C. and Stephen Dui v. R. (1966) 12 F.L.R. 100].

For the foregoing reasons the appeal is allowed the appellant=s conviction is set aside and the sentence quashed. As the appellant has already served an effective sentence of nine (9) months imprisonment, there will be no order for re-trial. The appellant is accordingly ordered to be released from prison forthwith.

(D.V. Fatiaki)
JUDGE

At Labasa,
23^rd July, 2002.