Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO: HAA0004 OF 2004S
Between:
KELEMEDI LAGI
KALIVATI TODUA
SEKOVE TAMANIKAIRA
MOSESE MUA
NAVITALAI NAIVALU
Appellants
And:
THE STATE
Respondent
Hearing: 5th March 2004
Judgment: 12th March 2004
Counsel: Mr. E. Veretawatini for Appellants
Ms. A. Prasad for State
JUDGMENT
The Appellants have appealed against convictions and sentence. They were charged as follows:
FIRST COUNT
Statement of Offence
ARSON: Contrary to Section 317(a) of the Penal Code, Cap 17.
Particulars of Offence
KELEMEDI LAGI on the 19th day of January, 1999 at Kiuva, Bau in the Central Division, wilfully and unlawfully set fire to the dwelling house of BETERO SALABIAU.
SECOND COUNT
Statement of Offence
CRIMINAL INTIMIDATION: Contrary to section 330(a) of the Penal Code, Cap 17.
Particulars of Offence
KALIVATI TODUA, SEKOVE TAMANIKAIRA, AKARIVA KILA, MOSESE MUA, NAVITALAI NAIVALU and MOAPE VU, on the 19th day of January, 1999 at Kiuva, Bau in the Central Division, without lawful excuse, threatened BETERO SALABIAU and his family with the intention to cause alarm to the said BETERO SALABIAU and his family.
The original grounds of appeal were filed in person. The main grounds were that there was insufficient evidence to convict the accused, and that the sentence was too harsh for first offenders. They were later represented by counsel, who filed additional grounds of appeal. They are as follows:
(a) That the learned trial Magistrate erred in law and in fact in not evaluating the evidence of the Appellants, hence there has been a substantial miscarriage of justice;
(b) That the learned trial Magistrate erred in failing to come to the conclusion that the charge against the 2nd to 5th Appellants were defective in that they had only one count against them although the charge sheet read the charge of Criminal Intimidation as Count 2, hence there has been a substantial miscarriage of justice;
(c) That the learned trial Magistrate erred in law and in fact in not properly directing himself on the required standard of proof on each of the charges, hence there has been a substantial miscarriage of justice;
(d) That the learned trial Magistrate erred in law and in fact when he failed to decipher the evidence of Prosecution Witness (2) Salanieta Salabiau when she made mention that two ladies held her as she was very frightened on page 16 of the Court Record, when this was an entirely new piece of evidence and the two ladies mentioned by her could have been independent witnesses for the State, hence there has been a substantial miscarriage of justice;
(e) That the learned trial Magistrate erred in law and in fact when he went ahead and gave a ruling of No Case to Answer on the second count of Criminal Intimidation when there was in fact no application for the same in respect of the second count was made and hence the learned trial magistrate had pre-judged the guilt of the 2nd to 5th Appellants, hence there has been a substantial miscarriage of justice;
(f) That the learned trial Magistrate erred in law and in fact in not taking into account that the mens rea of the first count of Arson was not established, hence the verdict and the subsequent sentence is unsafe;
(g) That the learned trial Magistrate erred in law and in fact when he relied on the hearsay evidence of Prosecution Witness 1 that the Roko Tui Kiuva had said that the Appellants had confessed to him that they had burnt the house, without giving the benefit to the Appellants to cross-examine the said Roko Tui whose evidence is not corroborated, hence there has been a substantial miscarriage of justice;
(h) That the sentence passed by the learned trial Magistrate is harsh and excessive in all the circumstances.
The trial
Although the charges were filed in July 1999, the trial did not commence until September 20th 2000. The Respondents appear to have taken turns to be absent, defence counsel was not instructed until January 2000, there was an attempt at reconciliation, disclosure was delayed and two applications for adjournment by defence counsel.
The trial itself took place over a 3 year period until judgment was delivered on the 19th of August 2003. The learned Magistrate commented in passing judgment that “the delay in disposing of this case was due entirely to the systematic absenteeism of the accused persons.”
PW1 was Petero Salabiau of Delainavesi. In January 1999 he was living in Kiuva Village, where he had lived for 30 years. He lived in a corrugated iron house with his wife and children. On the 19th of January 1999, at 6pm he was at home with his family. They went to bed at 9pm leaving one hurricane lamp on. At about 11pm, he heard the sound of something hitting the wall of his house. He found the windows and doors of his house were smashed. He went out to check what had happened. He saw all seven Respondents outside, armed with sticks. The 3rd and 5th Respondents were holding spear guns. He ran to the Radio Telephone Station to ring the Police Station. The Radio Telephone Station was closed. He ran back home and saw the Respondents smashing all his belongings inside his house. The 1st Respondent was holding a container of benzine. They then set fire to his house. One Akariva pushed PW1’s brushcutter into the burning house. He, his wife and son then walked to Nasilai Village 2½ miles away to telephone the police. The police arrived at 7am. He then left Kiuva Village and is now settled in Delainavesi.
Under cross-examination PW1 said that he was later told that the reason the Respondents had burnt his house was because one of his sons had assaulted someone in the village for indecently assaulting the son’s wife. PW1 himself denied assaulting the villager (one Ulaiasi) and the 1st Respondent. He said he knew each Respondent very well and that he had seen the 1st Respondent holding a 5 litre container of benzine, and burning the house. He said (also under cross-examination) that Roko Tui Kiuva had told him that the Respondents had confessed to him about the arson.
PW2 was PW1’s wife, Salanieta Salabiau. She gave similar evidence to her husband. She said she heard “Akariva” (3rd Respondent) calling out – “Get out, get out, the house will be burnt down.” She ran outside and saw all the Respondents there, holding mangrove poles and the 2nd and 4th Respondents were holding spear guns. She saw one Savenaca, the 1st Respondent and the 3rd Respondent pouring benzine inside the house and she saw the flames going up. The Respondents were using diving torches and she could see each one from 6 yards away.
Under cross-examination she said that a statement she had given to the police on the 20th of January was not correct as she was still in a state of shock. It is not clear from the record, what the inconsistency was that was alleged, and how significant it was. However she said that the 1st Respondent poured the benzine and Savanaca struck the match.
PW3 Cpl. Viliame Caqusau visited the scene on the 20th of January 1999 and found the dwelling house and kitchen of PW1 completely burnt down. He found and seized a burnt down benzine lamp and also interviewed the 2nd and 3rd Respondents.
PW4 Cpl. Aminiasi interviewed the 1st Respondent. PW5 PC Sirilo interviewed Kalivati Todua (the 2nd Respondent), the 5th Respondent and the 6th Respondent. Their interviews were tendered. They are not included in the court record, nor are they on the court file. A letter written to the Divisional Crime Officer Eastern on 21st January 2004 states that all caution interviews are lost. The judgment suggests that all statements were exculpatory.
The defence made a submission that there was no case to answer, on Count 1 although he conceded that there was a case to answer on Count 2. The learned Magistrate found that there was a case to answer on both counts and proceeded to put the Respondents to their defence.
The 1st Respondent gave sworn evidence. He said he met PW1 on the 19th of January 1999 at about 11pm when the 1st Respondent was returning from a grog party. He said he did not go to his house and went home. On his way there he met PW1 again, returning from the Radio Telephone Station. PW1 struck him with a diving torch on the head. The 1st Respondent was injured on his head. He ran to his house and picked up a 4” x 2” timber and went to PW1’s house. He went to hit PW1 but instead hit the benzine light. It fell to the floor and burnt into flames. The 1st Respondent then went home. He was treated by the village nurse. He then said that the 5th and 6th Respondents were with him at the time.
Under cross-examination he said that PW1 was his cousin brother and that they had lived at Kiuva Village for 20 years. He said that there was no enmity between them prior to this incident and that he did not know why PW1 had struck him. He tendered his medical report (which also appears to have been lost after trial).
DW2 was the 6th Respondent. He said that he had gone to PW1’s house on the 19th of January 1999 “to help Kelemedi Lagi.” He saw the 1st Respondent strike at the benzine light. He said he was not in the group that damaged PW1’s house.
The learned Magistrate delivered judgment on 19th August 2003. He found that the police had proven beyond reasonable doubt that the 1st Respondent had forcefully entered the house of Betero Salabiau and had wilfully struck the benzene light which was hanging inside the latter’s house, knowingly, “that the result of his unruly behaviour, would cause a fire to explode inside Betero’s house.” He convicted the 1st Respondent on Count 1. In respect of Count 2, he found all Respondents guilty of criminal intimidation and convicted them.
The grounds of appeal
Ground (a) is that there was no proper evaluation of the evidence. The learned Magistrate appears to have accepted that at some time during the night of the 19th of January, PW1 had assaulted the 1st Respondent, causing him to burn down PW1’s house. He said that this assault was supported by the medical evidence. The learned Magistrate appears therefore to have decided that the truth lay somewhere between the version given in evidence by PW1 and PW2, and the evidence of the 1st Respondent. The 1st Respondent’s evidence was that the arson was an accident and that he did not hit the light wilfully. There was therefore no dispute that the 1st Respondent caused the fire and that he did so unlawfully. The only matter in dispute was whether he had done so “wilfully.” The word “wilfully” was defined by the House of Lords in R –v- Shepphard (1981) AC 394 as either deliberately doing an act or doing an act not caring about the consequences. The majority opinion was that “wilfully” meant either intentionally or recklessly. In R -v- Giffins (1982) RTR 363 the same definition was adopted on a charge of the wilful obstruction of a railway, and also in Willmot -v- Attack (1977) QB 496 63 Cr. App. R. 207, where the defendant was charged with the wilful obstruction of a police officer.
The learned Magistrate in this case correctly considered the possibility of recklessness, when he found that when the 1st Respondent hit the benzine light he did so “knowingly that the result of his unruly behaviour would cause a fire to explode inside Betero’s house.” He did not mention the fact that the 6th Respondent, in his sworn evidence also said he saw the 1st Respondent strike at the light. The 6th Respondent did not say that the 1st Respondent had aimed at PW1 and hit the light instead. Indeed, the evidence suggests that PW1 was not in the house at all.
In the circumstances there was ample evidence of at least a reckless lighting of the fire, even on the defence version of the facts. The learned Magistrate made a finding of fact which was open to him on the evidence and in law. I do not consider that he erred.
In respect of Count 2, the evidence was (and the learned Magistrate appears to have accepted it) that the Respondents (excluding the 1st Respondent) gathered outside the house of PW1, armed with sticks and spear guns at 11pm. They banged on the walls of the house and one of them said “Get out! The house shall be burnt out.” The evidence was that this was a joint enterprise and that all were armed.
Section 330(a) of the Penal Code reads:
“Any person who without lawful excuse –
(a) threatens another person or other persons whether individually or collectively, with any injury to his or their person or persons, reputation or property, or to the person, reputation or property of anyone in whom that person is or those persons are interested, with intent to cause alarm to that person or those persons, or to cause that person or those persons to do any act which that person is or those persons are not legally bound to do, or to omit to do any act which that person is or those persons are legally entitled to do, as the means of avoiding the execution of such threat;
is guilty of a misdemeanour.
If the threat be to cause death or grievous hurt, or to cause the destruction of any property by fire, or to cause an offence punishable with death or with imprisonment for a term which may extend to seven years or more, or impute unchastity to a woman, he is guilty of a felony, and is liable to imprisonment for ten years.”
There can be no doubt that all the elements of the offence were proved on PW2’s evidence of the threat to burn the house down. Of course the 1st and 6th Respondents said they were not part of the group but the learned Magistrate was entitled to reject this evidence in relation to the 6th Respondent’s involvement. Further although there was only one benzene light on at the time, the Respondents and the witnesses have known each other for many years and the identification took place over a significant period of time at close quarters. Further the identification of the 1st, 5th and 6th Respondents was corroborated as to presence at the scene by the evidence of the 1st and 6th Respondents.
There was sufficient evidence to convict each Respondent on Count 2.
The second ground of appeal is that the charges were defective in that they should not have been on one charge sheet. The facts in respect of both counts were obviously closely linked.
Section 120(1) of the Criminal Procedure Code provides:
“Any offences, whether felonies or misdemeanours, may be charged together in the same charge or information if the offences charged are founded on the same facts or form, or are part of, a series of offences of the same or a similar character.”
There was no prejudice to any of the Respondents in the joint trial, and to separate the charges when the source of the evidence was identical would not have been in the best interests of justice. This ground of appeal fails.
Similarly ground (c) must also fail. The learned magistrate specifically referred to the burden and standard of proof in convicting the Respondents.
Ground (d) is that the prosecution did not call the other villagers who had come to help PW2 at the time of the fire. It is entirely the prosecution’s prerogative as to which and how many witnesses to call to prove the prosecution case. This discretion is of course subject to the general duty of the prosecutor to disclose all relevant evidence to the defence. The court’s duty is to assess the evidence called and to decide whether or not the case is proved beyond reasonable doubt. In this case the prosecution had no duty to call any additional witnesses, particularly when they called two witnesses who appeared to have given their evidence in a straight forward and clear manner. There is no legal requirement for corroboration in a prosecution for arson or criminal intimidation, nor for identification in circumstances such as those of this case.
Ground (e) has no merit. Simply ruling on a no case to answer submission, or at the end of the prosecution case even when no submission is made, does not lead to an assumption of pre-judgment. The test at the end of the prosecution case is an objective one and does not require an assessment of credibility.
I have dealt with ground (f) under ground (a). As for ground (g), there is nothing in the judgment to suggest that the learned Magistrate placed any weight at all on the evidence that there had been confessions made to the Roko Tui Kiuva. Indeed, he correctly pointed out that the evidence was hearsay.
Sentence
In Donato Vakabale v. The State Crim. App. No. HAA0051 of 2002, I considered sentences for arson. In that case the appellant had been given 4 years imprisonment partly because the appellant had threatened to kill anyone who helped the occupants of the house that had burnt, escape. I upheld that sentence.
In Amina Koya v. The State CAV0002.1997, the Court of Appeal and Supreme Court upheld a 2 year term of imprisonment for arson motivated by financial gain. There was no danger to any person because the building was unoccupied.
In this case the Respondent appears to have ensured that the house was empty when he lit the fire. However the fact that he accompanied a group of men who threatened the occupants, the fact that the arson was motivated by revenge and the serious consequences of the arson on the victims who were forced to leave the village they called home, called for a sentence within the 2-4 year range. With a starting point of 3 years imprisonment, reduction for the previous good character and other mitigation, and increase for the aggravating factors I have outlined, I see nothing wrong in principle, with a 3 year term. Arson is a most serious offence with a maximum sentence of life imprisonment. A family’s home and belongings were destroyed in the fire. The children of the family may never recover for the trauma of what they saw on the night of the 19th of January 1999.
Similarly, in respect of the offence of criminal intimidation, the maximum sentence is 10 years imprisonment because the “threat” was to burn the house. The Respondents acted as a group to put fear into the occupants of the house. The occupants included men, women and children. Committed in the middle of the night, and involving the use of dangerous weapons, the offence called for a deterrent sentence. Although I have been unable to establish a tariff for criminal intimidation in respect of threats to burn property, a two year term of imprisonment does not appear excessively long, even for first offenders. I decline to reduce the sentences.
Result
The appeal against convictions and sentence fail.
Nazhat Shameem
JUDGE
At Suva
12th March 2004
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2004/69.html