Tusega v Reginam [1966] FJLawRp 16; [1966] 12 FLR 168 (4 November 1966)

[1966] 12 FLR 168

SUPREME COURT OF FIJI

Appellate Jurisdiction

MATEO ROKOVESA TUSEGA

v.

REGINAM

[SUPREME COURT, 1966 (Mills-Owens C.J.) 28th October, 4th November]

Criminal law-causing a threat to be made-threat not communicated to intended recipient-conviction of attempt-Penal Code (Cap. 8) ss.359(a), 359(b)^[∗]-Penal Code (Amendment) Ordinance 1960, s.14-Crimes Act (New Zealand) 1961,-s.306 -Offences Against the Person Act 1861 (24 & 25 Viet., cl00) (Imperial) s.16-Malicious Damage Act 1861 (24 & 25 Viet., c.97) (Imperial) s.50.

Criminal law-evidence and proof-threatening letter-intent of author-subjective test-matter of inference from terms used and surrounding circumstances-Penal Code (Cap. 8) s.359(b).

The appellant was convicted in the Magistrate's Court of attempting to commit the offence of causing a threat to be made contrary to paragraph (b) of section 359 of the Penal Code, as enacted by section 14 of the Penal Code (Amendment) Ordinance 1960. The threat was contained in a letter addressed to a Government department but was never shown to the person threatened; some months later he was shown a Photostat copy of it.

Held: 1. On the question whether an accused person could be convicted of causing a threat to be made under section 359 (b) of the Penal Code in the absence of actual communication of the that to the intended recipient the language of the section is equivocal, but conviction of an attempt to commit the offence may be justified notwithstanding such non-communication.

2. In determining whether an accused person acted "with intent to cause alarm to that person" within the meaning of section 359 (b) the test to be applied is a subjective one. Where the authorship of the threat is denied the intent may be determined by the plain words of and the proper inferences to be drawn from the terms of the threat, with the aid of surrounding circumstances, if any.

Cases referred to: R. v. Williams [1810] EngR 593; (1810) 2 Camp. 506; 170 E.R. 1233: Chinaiya v. R. [1962] 8 FLR 204: Attorney-General v. Asgar Ali [1965] 11 FLR 23.

Appeal against conviction in Magistrate's Court.

N. N. Nawalowalo for the appellant.

J. R. Reddy for the respondent.

MILLS-OWENS C.J.: [4th November, 1966]-

The appellant was charged with threatening a person with bodily injury, contrary to section 359 (a) of the Penal Code; alternatively with causing such a threat to be made, contrary to paragraph (b) of the same section.

The alleged threat was contained in an anonymous hand-written letter (Exhibit A) addressed to a Government Department. The learned magistrate found that the identity of the person threatened was to be inferred from the evidence; as to this there is no appeal, nor in my view any doubt.

The substantial question of fact which arose at the trial was whether the appellant was the author of the letter; the prosecution sought to prove it by the evidence of witnesses familiar with the handwriting of the appellant. Three witnesses were called on the question of authorship. The first witness was able to speak to a considerable body of writing (Exhibit B) admittedly written by the appellant in his own hand. The third witness, an uncle of the appellant, said that he had conducted correspondence with the appellant. He produced one letter (Exhibit C) out of a number of letters which he said he had received from the appellant; there was the evidence of a police officer, evidently accepted by the Magistrate, that the appellant had acknowledged that this letter was written by him. The second witness to the authorship of the threatening missive was one Iliesa; as to his evidence the following ground of appeal is raised-

"That the learned trial Magistrate erred in admitting in evidence the testimony of Iliesa Bogitini in as much as his comparison of the disputed document (Exhibit 'A') with a certain document purported to be written by the accused and not produced in Court was hearsay and upon which he based his expert opinion of the authorship of Exhibit 'A'."

Put in that form I do not think this ground of appeal could meet with any chance of success. It amounts to saying that a witness called to give evidence of his familiarity with the handwriting of the accused, and consequently of his opinion as to the disputed document, cannot be heard unless he produces the writings by reference to which his familiarity with the handwriting of the accused was gained. I know of no such rule nor was counsel able to cite authority directly in point. If such were the rule it would go a long way to destroy the availability of such evidence. There is no authority to the effect argued because, in my view, the argument is unsound. Iliesa was not and was not called as an expert witness. It is apparent on the record, however, that the evidence as to the authorship of the (unproduced) document upon which, as Iliesa said, he gained familiarity with the appellant's handwriting was conflicting, and that there was no definite finding of fact that this document was written by the appellant. It follows that Iliesa's evidence must be excluded in deciding the first ground of appeal, namely that the conviction was against the weight of the evidence. The learned Magistrate referred to this witness as being doubtful, but he clearly had no hesitation in accepting the evidence of the other two witnesses to the handwriting. In my view, on an examination of the record, he was entitled to do so. Accordingly Ground 2 fails.

Ground 3 was in the terms-

"3. That the learned trial Magistrate erred in law in holding that under S.359 (b) Penal Code (Cap.8) as amended by Ordinance No. 16/ 1960 no communication of the threat is necessary to the person threatened."

This overlooks the fact that the conviction was for an attempt to commit the offence of causing a threat to be made (contrary to paragraph (b) of section 359). It had been argued at the trial that communication of the threat to the intended recipient was a fact essential to be established and that this had not been proved. On the evidence it was a fair inference that the threat had not been communicated, as a threat, to the person threatened. He was never shown the original letter by the Government department to which it was addressed, and it was not until many months later that he was shown a photostat copy of it. The learned magistrate, in his judgment, referred to R. v. Williams [1810] EngR 593; (2 Camp. 506) a case on the common law offence of "challenging to fight", in which it was held immaterial whether a challenge sent was in fact received. I do not think this to be an adequate authority for the interpretation of a statutory phrase such as "causes a threat to be made", which is the phrase used in section 359 (b). In the result the learned magistrate, while saying that different views might be held on the point whether communication of the threat was essential, decided to convict of an attempt. It is relevant to consider other statutes dealing with such offences. The New Zealand Crimes Act, 1961, section 306, uses the phrase "Sends or causes to be received" (see Adams Criminal Law p.455). Both the English statutes, the Offences against the Person Act, 1861 (section 16) and the Malicious Damage Act, 1861 (section 50) use similar language; language which is unequivocal. By comparison, the phrase "causes a threat to be made" is equivocal. On the one hand it might be said that the offence in this case was one of attempting to threaten contrary to paragraph (a) of section 359, that is to say by attempting to convey a threat through an innocent agent. On the other hand, it might be said that a threat is not caused to be 'made', contrary to paragraph (b), unless it is in fact communicated; the Crown accepts this view on the appeal. In the circumstances of the case I am not persuaded that the learned Magistrate came to a wrong conclusion as a matter of law on the point raised in Ground 3.

Ground 4 was as follows-

"4. That the learned Magistrate erred in law in holding that the type of injury threatened need not be specified."

This relates to the words of the section which refer to injury to the person, reputation or property of the person threatened. The charge in question specified "injury to the person". As counsel for the appellant presented his argument, his complaint was not that the charge was defective in failing to give sufficient particulars, but that the evidence fell short of proof of the precise type of bodily injury which was threatened. In my view, as the appellant was denying the authorship of the letter, the question what type of injury was threatened, if that was material, fell to be determined by the terms of the letter, and the surrounding circumstances, if any. Counsel argued that not only must the prosecution prove that it was personal injury which was threatened but also the type of injury. He based this argument on the terms of the proviso to the section which allots a more severe (maximum) sentence if the threat is "to cause death or grievous hurt". The argument is, I think, entirely misconceived. The proviso relates only to enhanced sentence, which does not come into question; the provisions of the section defining the substantive elements of the crime refer only to "injury" to the person, reputation or property. Quite apart from this, the letter clearly, on its face, contained a threat of at least serious bodily hurt.

Ground 5 was as follows-

"5. That the learned Magistrate erred in holding from the facts that the natural and probable consequences of the receipt of the letter Exhibit 'A' was to cause alarm to the person threatened..."

This relates to the expression used in the section "with intent to cause alarm to that person..." Counsel for the appellant pointed out that the person alleged to have been threatened had said in evidence that he experienced no fear, on becoming aware of the terms of the letter, but, he said, he would have taken precautions had he known of it earlier. The learned magistrate was referred to the cases, in the Supreme Court of Fiji, of Chinaiya v. R. [1962] 8 FLR 204 and Attorney-General v. Asgar Ali (1965) 11 F.L.R. 23. He adopted, and agreed with, the judgment of Knox-Mawer J. in the latter case, to the effect that a man is presumed to intend the natural and probable consequences of his act, in the absence of rebutting evidence. In the earlier case cited above (Chinaiya v. R.) the late Chief Justice, MacDuff C.J., said: "In my view the intent to cause alarm may be inferred from the type of threat itself and any other relevant facts and circumstances". I respectfully agree. The test to be applied is clearly the subjective one: what intent had the accused. And if, as in this case, the authorship of the threat was denied, how else could the intent be determined than by the plain words of, or the proper inferences to be drawn from the terms of. the threat; with the aid of the surrounding circumstances, if any, bearing always in mind that proof of a specific intent is required. If it had been so intended in the Penal Code it would have been easy to say: "so as to cause alarm" or "whereby alarm is caused". In this present case the letter Exhibit A referred to the use of a spear and a golden bullet and to "his head being awarded to me". An intent to cause, at least, serious bodily harm was obviously to be inferred.

Ground 6 of the grounds of appeal was in the following terms-

"6. That the learned Magistrate erred in convicting the accused of attempting to commit the offence under S.359 (b) and S.408 of the Penal Code (Cap. 8) as no intention can be imputed to the accused because of the reasonable doubt given by the learned Magistrate in respect 'Of the offence charged."

Here counsel argued that by convicting of an attempt the magistrate had impliedly acquitted of the full offence and had therefore negatived an intention to cause alarm; equally the attempt required intention (see section 408) and therefore the conviction for an attempt could not be supported. This, in my view, ignores the terms of the judgment of the learned magistrate. He made it abundantly clear that he did not convict of the full crime solely because of his doubt as to whether the words "causes to be made" extend to a case where the threat is not communicated. He said he gave the appellant the benefit of the doubt on the point and for that reason convicted of an attempt. There is no merit in this ground.

Ground 1 was the general ground that the conviction was against the weight of the evidence. In my view the guilt of the appellant was clearly established.

The appeal against conviction is accordingly dismissed. The appeal against the sentence of 7 months' imprisonment is also dismissed, such a sentence cannot possibly be regarded as harsh or excessive having regard to the terms of the threat.

Appeal dismissed.

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^[∗] Penal Code s.359: "Any person who without lawful excuse-(a) threatens another person or persons, whether individually or collectively, with any injury to his or their person or persons reputation or property...with intent to cause alarm to that person or to do any act which that person is...not legally bound to do, or to omit to do any act which that person is...legally entitled to do, as the means of avoiding the execution of such threat; or (b) directly or indirectly, knowingly causes a threat to be made to another person or other persons, whether individually or collectively, of any injury to his or their person or persons, reputation or property ... 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."