State v Roravudi [2005] FJHC 488; HAA0055J.2005S (16 September 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0055 of 2005S

Between:

THE STATE
Appellant

And:

MESULAME RORAVUDI;
LEVANI NAKAINAILEGA;
ISIKELI BAULEKALEKA;
MAIKELI NAIYALA; and
ISAIA WAIROGA
Respondents

Hearing: 5th August 2005
Judgment: 16th September 2005

Counsel: Ms V. Lidise for State
All Respondents in person

JUDGMENT

This is an appeal by the Director of Public Prosecutions against an order of stay of proceedings by the Nausori Magistrates’ Court on the 29^th of October 2004.

The Respondents were charged as follows:

First Count

Statement of Offence

Criminal Trespass: Contrary to section 197(2) of the Penal Code, Cap. 17.

Particulars of Offence

MESULAME RORAVUDI, LEVANI NAKAINAILEGA, ISIKELI BAULEKALEKA, MAIKELI NAIYALA and ISAIA WAIROGA, on the 21^st day of May 2004, at Naitauvoli, Naitasiri in the Central Division, entered by night the dwelling house of NIKO KARABALE without lawful excuse.

Second Count

Statement of Offence

Assault Occasioning Actual Bodily Harm: Contrary to section 245 of the Penal Code, Cap. 17.

Particulars of Offence

MESULAME RORAVUDI, LEVANI NAKAINAILEGA, ISIKELI BAULEKALEKA, MAIKELI NAIYALA and ISAIA WAIROGA, on the 21^st day of May 2004, at Naitauvoli, Naitasiri in the Central Division, assaulted NIKO KARABALE thereby occasioning him actual bodily harm.

Third Count

Statement of Offence

Assault Occasioning Actual Bodily Harm: Contrary to Sction 245 of the Penal Code, Cap. 17.

Particulars of Offence

MESULAME RORAVUDI, LEVANI NAKAINAILEGA and SIKELI BAUBAULEKA on the 21^st day of May, 2004 at Naitauvoli, Naitasiri in the Central Division, assaulted ALISI CALO thereby occasioning her actual bodily harm.

All Respondents pleaded guilty on both counts on the 24^th of September 2004. The facts were never read, but the Respondents asked for time to reconcile with the two complainants. On the 29^th of October 2004, the Respondents told the court that they had attempted reconciliation with the complainants but that the complainants had refused to accept it. The prosecution tendered the medical certificates of the complainants. The first, of Niko Karabale shows that the complainant was fearful and shocked as a result of assault on him by villagers. There was gross swelling of his face, causing his eyes to close. He had bloodstains of his clothing and the diagnosis reads:

“injury is gross of face and body and lacerations of back of head and all consistent with the injury noted.”

The injuries were treated by drugs and sutures and the complainant was admitted to the hospital for 5 days.

The medical report of Alisi Karabale shows that she was distressed and fearful at the time of examination. She had a deep coronal laceration of the scalp. Her clothing was bloodstained. She also required drugs, medication and suture. She was hospitalised for 38 days as a result of a depressed skull fracture and infection of the laceration. She is left with a permanent scar on the scalp.

Having received the medical reports, the learned Magistrate recorded:

“Proceedings stayed for 12 months.”

No reasons are given for that order.

The State appeals against the stay order on the grounds that the order was unlawful and manifestly lenient, and that the learned Magistrate erred in law when he made the said order. State counsel made comprehensive submissions at the hearing of this appeal. The hearing of the appeal itself had to be adjourned to effect service on each Respondent. The 1^st and 2^nd Respondent chose not to appear at the hearing.

She submitted that the record made it clear that there was, in effect, no reconciliation. Therefore, she said, section 163 of the Criminal Procedure Code had no application to the case. Even if there had been reconciliation in fact, this was a serious case of assault and should not have led to stay of proceedings.

In response the 3^rd Respondent said, on behalf of all Respondents, that they continued to live in the village but that the victims of the assault had never forgiven them.

The most obvious defect in these proceedings, was that the prosecution was never asked to outline the facts of this case. The court had no information about the nature and background of the assaults. The second defect, is that the learned Magistrate applied section 163 of the Criminal Procedure Code without any such information. The third defect is that on the basis of the medical reports alone, this was obviously not a case for a stay of proceedings.

Section 163 of the Criminal Procedure Code provides as follows:

“In the case of any charge or charges brought under any of the provisions of subsection (1) of section 197 or of section 244 or of section 245 or of subsection (1) of section 324 of the Penal Code, the court may, in such cases which are substantially of a person or private nature ... and which are not aggravated in degree, promote reconciliation and encourage and facilitate the settlement in an amicable way of the proceedings, on terms of payment of compensation or on other terms approved by the court, and may thereupon order the proceedings to be stayed or terminated.”

Because no facts were outlined, we do not know if this was a case of a personal or private nature. If it was a village dispute, it was not a case of a personal or private nature. We do know however, that the assaults were aggravated. The serious nature of the injuries, the hospitalisation, the infliction of assaults (it appears with weapons) on the head, indicate, prima facie, the non-applicability of section 163 of the Criminal Procedure Code.

In any event, it is abundantly clear that there was no reconciliation, settlement or compensation. The victims never agreed to any settlement with the offenders. Section 163 was not available, in law, to the learned Magistrate. In the circumstances the order for stay must be quashed. The pleas of guilty are valid however, and the court must now proceed to hear facts and mitigation. It must then impose sentence on each accused.

This appeal is allowed. The case is remitted to the Suva Magistrates’ Court for the sentencing hearing.

Nazhat Shameem
JUDGE

At Suva
16th September 2005