Buka v Nakorotubu [1957] FJLawRp 2; [1956-1957] 5 FLR 26 (22 February 1957)

[1956-1957] 5 FLR 26

IN THE SUPREME COURT OF FIJI

Appellate Jurisdiction

Criminal Appeal No. 1 of 1957

Between:

SAMU BUKA
Appellant

AND

BULI NAKOROTUBU
Respondent

Fijian Regulation No. 10 of 1948-section 19-witchcraft.

The appellant was convicted before a Provincial Court of an offence contrary to Fijian Regulation No. 10 of 1948, section 19. The prosecution did not contend that the appellant had practised any of the specific rites prohibited by section 19, namely, draunikau, kalourere, sorosoro, or luveniwai.

Held.-Since there was no evidence that the rite which the appellant had practised was similar to the specific rites referred to in section 19, the conviction must be quashed.

Appeal allowed.

M. Tikaram for the appellant.

J. Falvey for the respondent.

HAMMETT, J. [22nd February, 1957]-

Judgment:

This is an appeal against the decision of the Provincial Court sitting at Ra dated 7th December, 1956, whereby the appellant was convicted of an offence against Fijian Regulation No. 10 of 1948, section 19, and sentenced to 3 months I.H.L.

Learned counsel appearing for the Fijian Affairs Board on behalf of the respondent has stated that he is unable to support the conviction for a number of reasons.

The charge on which the appellant was convicted reads as follows:-

"That the accused on the 14th September, 1956, at Soa, practised the rites known as ' Draunikau', 'Kalourere', 'Sorosoro', 'Luveniwai' or any other similar rite as prohibited by Fijian Regulation No. 10 of 1948, section 19."

In the judgment it was stated that the appellant was not guilty of a specific rite of "draunikau", "kalourere", "sorosoro" or "luveniwai" but of a similar rite involving the invocation of spirits or devils and resort to magical practices for clairvoyance. The charge did not indicate to the appellant with reasonable clarity the offence with which he was being charged or of which he was later convicted.

It is not every rite to which the administration may have objection that is forbidden by section 19 of Regulation No. 10 of 1948. The only rites which are prohibited thereby and made punishable are-

1. Draunikau

2. Kalourere

3. Sorosoro

4. Luveniwai

5. Any other similar rite with whatsoever object.

Unless therefore there is evidence that an accused has practised Draunikau, Kalourere, Sorosoro or Luveniwai, it is necessary to prove both the nature of the rite performed by the accused and also the rite to which it is similar.

There was no evidence before the Provincial Court that the rite which it was satisfied the appellant practised had any similarity with any of the other rites referred to in section 19.

Furthermore, on perusing the record of the proceedings in this case, I observe that during the course of the trial a great deal of hearsay evidence was admitted against the appellant. Again, it is stated in the judgment that the court was influenced against the appellant by the evidence of one of the witnesses for the prosecution that he did not want to know what was going on because he was of the opinion that the law was going to be broken. Such opinions should not be admitted in evidence. If by some mischance they are admitted, they should be completely ignored and no weight should be attached to them.

In these circumstances the appeal must be allowed and the conviction and sentence passed in the court below are quashed.