State v Wakaniyasi [2005] FJHC 83; HAA0141J.2004S (18 February 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA0141 OF 2004S

Between:

THE STATE
Appellant

And:

ETIKA WAKANIYASI
Respondent

Hearing: 11th February 2005
Judgment: 18th February 2005

Counsel: Ms L. Chandra for State
Respondent in Person

JUDGMENT

The Respondent was charged with drunk and disorderly conduct in a public place, on 26th December 2003. He was given an absolute discharge under section 44 of the Penal Code on the 18th of October 2004. The Director of Public Prosecutions appeals against that discharge.

The charge was laid on the 19th of January 2004, and the charge was read to the Respondent in the Suva Magistrates’ Court on the same day. The Respondent pleaded guilty. The court record reads that “1st phase” disclosure was served to the Respondent on the 19th of January. On the 17th of February 2004, the prosecution told the Magistrate that there was no “2nd phase” disclosure and the learned Magistrate adjourned the matter again.

On the 10th of August, the prosecution asked for an adjournment, saying that the Respondent had not been interviewed under caution. On the 7th of September, the prosecution did not appear to understand whether there were any legal implications of the police failure to caution interview. The learned Magistrate noted:

“There is no interview statement till now. This accused has told this Court that up to today, he has not been interviewed by Police. The charge against this accused is one-sided and therefore unfair. In the interest of justice, I shall await the legal opinion of Prosecution.”

On the 18th of October, the prosecutor said:

“Accused should have been interviewed as in the Judges Rules. Nothing in our file to say that he had been interviewed. Leave it to the Court.”

The learned Magistrate then said that the only way to deal with the situation was under section 44 of the Penal Code. He ordered that the Respondent be discharged without convictions, under section 44 of the Penal Code.

The Director of Public Prosecutions appeals against this finding on the sole ground that:

“the learned trial Magistrate erred in law and in fact when he discharged the Respondent under section 44 of the Penal Code before a finding of guilt.”

State counsel, at the hearing of the appeal, in both written and oral submissions said that the learned Magistrate erred in that he misunderstood the purpose and nature of the police caution interviews. She said that it was a matter for the police to decide whether or not they would conduct an interview at all, and that the purpose of the interview was to gather information for the purpose of police investigations. Nor is it necessary to formally charge the suspect under the Judges’ Rules, where the suspect is bailed to attend court. She said that the learned Magistrate also erred in discharging the Accused under section 44 of the Penal Code when there had been no “finding of guilt” under that section.

The Respondent, who was unrepresented, understandably had nothing to say about these matters of law and procedure. He did say, however, that he had been charged in error and that he would welcome an opportunity to give his side of the story to the court, if tried.

I am in agreement with State counsel, that it is entirely a matter for the investigator, whether or not to interview a suspect under caution. The Judges’ Rules are rules intended for the guidance of police officers conducting investigations. Non-compliance with the Rules may render a caution statement inadmissible, but if the prosecution chooses not to tender a caution statement, any breaches of the Judges’ Rules become entirely irrelevant to the criminal trial. In other words, breaches of Judges’ Rules are only relevant if the police seek to use caution statements or other evidence obtained from the suspect, in evidence. Breaches are relevant to the admissibility of evidence which the prosecution wishes to tender.

Further, there is no obligation, statutory or otherwise, on the police to interview anyone. Rule 1, states that a police officer has the right to question anyone at all, in relation to police investigations. If he chooses not to so question, it is entirely his prerogative. The failure to question does not preclude a trial. All the magistrate or judge must do, is consider guilt on the basis of all the other evidence led.

Clearly therefore the learned Magistrate erred in concluding that the failure to interview meant the aborting of the trial. His next step was also erroneous.

Section 44 of the Penal Code provides as follows:

(1) “Where a court by or before which a person is found guilty of an offence, not being an offence for which a fixed sentence is prescribed by law, is of opinion, having regard to the circumstances including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and that a probation order under the Probation of Offenders Act is not appropriate, the court may, with or without proceeding to conviction, make an order discharging him absolutely, or, if the court thinks fit, discharging him subject to the condition that he commits no offence during such period, not exceeding twelve months from the date of the order, and subject to such other conditions, if any, including the payment of costs or compensation, or the restitution of goods or the payment of money in lieu of goods, as may be specified in such order.”

Section 44 is a sentencing option. It is not available to the court before a finding of guilt. It was therefore an error of law to discharge the Respondent without conviction. Indeed there was no reason to discharge the Respondent at all.

For these reasons, the State’s appeal must succeed. The discharge order is quashed. I remit the matter to the Magistrates’ Court for a trial date to be set.

Nazhat Shameem
JUDGE

At Suva
18th February 2005