Director of Public Prosecutions v Tui [1975] FJLawRp 2; [1975] 21 FLR 4 (24 January 1975)

[1975] 21 FLR 4

SUPREME COURT

Appellate Jurisdiction

DIRECTOR OF PUBLIC PROSECUTIONS

v

SOLOMONE TUI

Grant C.J.

24th January, 1975

Criminal law — practice and procedure — statement of offence and particulars of offence to conform as closely as possible to the forms set out in second schedule of Criminal Procedure Code—Criminal Procedure Code (Cap. 14) s.123 (a) (iv).

Criminal law — burglary — necessary to prove not only the breaking and entering but also the intent to commit a felony-Penal Code (Cap. 11) ss. 302, 332(a).

Criminal law — practice and procedure — whether substitution of a conviction for a minor or kindred offence exercisable by appellate court when original charge bad in law—Criminal Procedure Code (Cap. 14) ss.163(2), 174.

Criminal law — practice and procedure — whether fundamental error in charge can be validated by Criminal Procedure Code (Cap. 14) 88.80(2), 323 — Magistrates' Courts Act 1952 (15 & 16 Geo. 6 & 1 Eliz. 2, e. 55) (Imp) s.100.

The defendant was charged with entering a house by night and stealing goods contrary to Penal Code s.332 (b) (ii), an offence not known in law.

Held: If a summons or information discloses no offence it is void ab initio, and cannot be cured by application of Criminal Procedure Code 18.80(2) or s.323; nor can a conviction for a lesser or kindred offence be substituted or the proviso to Criminal Procedure Code $.300(1) be applied.

Cases referred to:

Jeru Din v R 18 FLR 222.

Simione Tokona v R Criminal Appeal 111 of 1973—unreported.

Atterton v Browne [1945] KB 122; 61 TLR 70.

Edwards v Jones [1947] KB 659; [1947]1 All ER 830.

R v Nottingham Justices ex parte Brown [1960] 3 All ER 625; [1960] 1 WLR 1315.

Garman v Plaice [1969] 1 All ER 62; [1969] 1 WLR 19.

Garfield v Maddocks (1973) 57 Cr. App. R. 372; [1972] 2 All ER 303.

R v West (1948) 64 TLR 241; [1948] 1 All ER 718.

Robertson v Rosenberg [1951] 1 TLR 417; 115 JP 128.

Stephenson v Johnson [1954] 1 All ER 369; [1954] 1 WLR 375.

R v Nicholls (1960) 44 Cr. App. It 188; [1960] 2 All ER 449.

R v Richardson 9 FLR 129.

Appeal by the Director of Public Prosecutions against the sentence imposed in the Magistrate's Court for burglary and assault.

GRANT C.J.: [24th January 1975]—

On the 19th December 1974 at Suva Magistrates Court the respondent was convicted of two connected offences, namely burglary under Count 1 and assault occasioning actual bodily harm under Count 2, and was sentenced in respect of the first offence to twelve months' imprisonment and to undergo six strokes of corporal punishment, the latter being subject to confirmation by the Supreme Court, and in respect of the second offence to a concurrent term of six months' imprisonment.

The Crown appealed against the sentences imposed on the grounds that they are wrong in principle and/or manifestly lenient having regard to the nature and circumstances of the offence.

On the hearing of the appeal it was obvious that the charge under Count 1 contains serious defects. The prosecution's objective was to charge respondent within the night breaking and entering the dwelling house of another with intent to commit therein the felony of larceny and of having committed therein the felony of larceny by the theft of various items worth not less than $10; and the manner in which this charge should be framed is prescribed. Section 123(a) (iv) of the Criminal Procedure Code provides that " the forms set out in the Second Schedule to this Code or forms conforming thereto as nearly as may be shall be used in cases to which they are applicable; and in other cases forms to the like effect or conforming thereto as nearly as may be shall be used, the statement of offence and the particulars of offence being varied according to the circumstances of each case; "; and Form No. 9 in the Second Schedule to the Criminal Procedure Code is in the following terms:

"Statement of Offence

Burglary, contrary to section 332(a), and larceny, contrary to section 302 of the Penal Code.

Particulars of Offence

A.B., in the night of the day of , 19 , in the did break and enter the dwellinghouse of C.D. with intent to steal therein, and did steal therein, one watch, the property of S.T., the said watch being of the value of £10. "
Instead of the respondent being charged in the manner thus provided for, he was charged as follows:
FIRST COUNT

Statement of Offence

BURGLARY: Contrary to section 332(b) (ii) of Penal Code Cap. 11.

Particulars of Offence

SOLOMONE TUI and VILEKENA TIKO on the 12th day of December 1974 at Deuba, Navua in the Central Division, by night broke and entered the dwelling house of William James Errich and stole therein assorted clothing value $60:00, two radios valued $150:00 a whale tooth (Tabua) valued $30:00, and a set of eating utensils valued $220:00 to the total value of $1,000:00, the property of William James Errich. "

In the first place, section 332(b) (ii) of the Penal Code under which the respondent was charged has nothing to do with breaking and entering a dwelling house with intent to commit a felony therein. It relates to a person who in the night breaks out of the dwelling house of another having committed any felony in the said dwelling house, and has no relevance to the facts of this case. It is intended to cover the special circumstances of a member of the occupier's household, his lodgers, guests or employees, who may in the night steal property from his house in which they are lawfully present and break out of the house by, for example, opening the front door and leaving. In the second place, a vital ingredient of the offence in question, namely an intent to commit the felony of larceny, has been entirely omitted from the charge. And in the third place, although the particulars of the offence allege that the respondent stole various items from the dwelling house, he has not been charged with committing the offence of larceny in a dwelling house contrary to section 302 of the Penal Code to which these particulars relate.

The charge passed through the hands of the police, two experienced police prosecuting officers of the rank of Inspector, and two experienced Magistrates; and it is inconceivable that the glaring defects in this charge were overlooked by all concerned. It is no secret that there is a temporary shortage of Magistrates in Fiji; and perhaps the Royal Fiji Police Force is undergoing similar difficulties. In such circumstances persons may well have to wait longer for their cases to be dealt with, but there is no excuse for sheer carelessness. Justice demands the highest standards and nothing less will do.

I might add that this is not the first occasion, although hopefully it may be the last, on which this Court has been obliged to pass similar strictures. Jeru Din s/o Kali Din v Reginam (18 FLR 222) contains the following comment: ....this is yet another instance which demonstrates the need for greater care to be exercised by those responsible for the preparation of charges and for the Magistrates to pay closer regard to their duty of ensuring that charges preferred against accused persons in their courts are properly framed. "; and in Sintione Tokona v Reginam (Criminal Appeal No. 111 of 1973) it was stated: " This is yet another example of rampant carelessness in the framing of charges and of the need for the Magistrates to carefully check all charges preferred. ".

The learned Director of Public Prosecutions who was, as always, most helpful, made various suggestions with a view to salvaging something out of the wreck of the first count. However I have come to the conclusion, albeit with reluctance, that it is beyond repair.

Section 80(2) of the Criminal Procedure Code provides that:

" The validity of any proceedings taken in pursuance of a complaint or charge shall not be affected either by any defect in the complaint or charge or by the fact that a summons or warrant was issued without complaint or charge. ";

and section 323 of the Criminal Procedure Code provides that:

" No finding, sentence or order passed by a magistrates' court of competent jurisdiction shall be reserved or altered on appeal or revision on account of any objection to any information, complaint, summons or warrant for any alleged defect therein in matter of substance or form or for any variance between such information, complaint, summons or warrant and the evidence adduced in support thereof, unless it be found that such objection was raised before the magistrates' court whose decision is appealed from, nor unless it be found that, notwithstanding it was shown to the magistrates' court that by such variance the appellant had been deceived or misled, such magistrates' court refused to adjourn the hearing of the ease to a future day:
Provided that if the appellant was not at the hearing before the magistrates' court represented by a barrister and solicitor, the Supreme Court may allow any such objection to be raised. "

In the case the subject matter of this appeal the accused was not represented by a barrister and solicitor at the hearing before the Magistrate's Court and no question of estoppel arises. The sections above cited are very similar to section 1 of the English Summary Jurisdiction Act, 1848, replaced by section 100 of the English Magistrates' Courts Act, 1952 in the following terms:

" (1) No objection shall he allowed to any information or complaint, or to any summons or warrant to procure the presence of the defendant, for any defect in it in substance or in form, or for any variance between it and the evidence adduced on behalf of the prosecutor or complainant at the hearing of the information or complaint.
(2) If it appears to a magistrates' court that any variance between a summons or warrant and the evidence adduced on behalf of the prosecutor or complainant is such that the defendant has been misled by the variance, the court shall, on the application of the defendant, adjourn the hearing. "

Despite its apparent scope, it has been held that the provisions of this section cannot validate a fundamental error going to the root of the matter; such as the failure to include in the charge a necessary ingredient of the offence in question, duplicity in a charge, want of jurisdiction, or a charge which discloses no offence known to law (vide Atterton v Browne (1945) LR (KBD) 122 Edwards v Jones (1947) LR (KBD) 659; R v Nottingham Justices Ex parte Brown (1960) 3 All ER 625; and Garman v Plaice (1969) 1 All ER 62); and an appellant court has no power to amend the original charge (Garfield v Maddocks (1973) 57 Cr. App. R. 372). As was stated by Humphreys J. in the English Court of Criminal Appeal in R v West (1948) 64 TLR 241 at 243: " It is an essential feature of the criminal law that an accused person should be able to tell from the indictment the precise nature of the charge or charges against him so as to be in a position to put forward his defence and to direct his evidence to meet them. " (see also Robertson v Rosenberg (1951) 1 TLR 417; and Stephenson v Johnson (1954) 1 All ER 369).

The crime of burglary like all crimes other than those of strict liability 1.1 requires the two elements of actus reus and mens rea. The actus reus is breaking and entering a dwelling house in the night ' but so far as mens rea is concerned, it is necessary to go further and to prove what is described in Smith and Hogan's Criminal Law, 1st Edition at page 38, as an " ulterior intent ", which is that the accused had the intention of committing a felony in the dwelling house. Once this is proved the crime is complete, and the actual commission of that felony forms no part of the offence of burglary. Its actual commission may afford strong evidence, indeed the best evidence, that the accused entered with the requisite intent, but an inference drawn from evidence cannot remedy the omission from a charge of an essential ingredient.

It is clear that breaking and entering with intent to steal is a quite different and distinct offence from breaking end entering and stealing (R v Nicholls (1960) 44 Cr. App. R. 188); and that so far as burglary is concerned there is no such offence as " in the night breaking and entering the dwelling house of another and committing a felony therein " (Archbold's Criminal Pleading, Evidence and Practice, 35th Edition, para. 1826 at page 726). Thus the position is akin to that stated by Ashworth J. in Garman v Plaice (supra) at page 64 para. G: " It is sought by counsel for the appellant to rescue the appeal by reliance on s.100 of the Magistrates' Courts Act, 1952, but the rescue operation can have no success at all if, as I believe to be the fact, the summons or information is void ab initio, by not disclosing any offence at all. ".

The powers conferred by section 163(2) of the Criminal Procedure Code (and in the case of burglary section 174 of the Criminal Procedure Code) of substituting a conviction for a minor or kindred offence cannot be exercised by an appellate court when the original charge is bad in law, as this charge is, nor can an appellate court apply the proviso to section 300(1) of the Criminal Procedure Code. In Regina v Richardson 9 FLR 129, to which the Director of Public Prosecutions referred and in which the appellate court substituted a conviction for a minor offence, the original charge was in no way defective. And Jeru Din s/o Kali Din v Reginam (supra) and Simione Tokona v Reginam (supra), in which it was possible to uphold the convictions despite defects, are clearly distinguishable from the case now before me, the former because the particulars of offence contained all the necessary ingredients and the latter because the particulars of offence charged the requisite intent.

The defects in the charge under Count 1 are fundamental and cannot be cured. The conviction in respect thereof is accordingly quashed and the sentence set aside.

In regard to the offence charged under Count 2, which is properly framed, the sentence of six months' imprisonment imposed in respect thereof (and indeed the overall sentence which was originally imposed) is in the circumstances manifestly inadequate. The respondent, a powerfully built man of twenty seven years, who has a previous conviction for indecent assault for which he was sentenced to twelve months' imprisonment, with an accomplice forced his way at night into the house in which was sleeping the complainant, a fifty six year old woman whom he assaulted and gagged, as a result of which she sustained injuries to her right eye, her right ear, her upper lip, her jaw and her chest. The injuries required treatment at hospital where she was detained for some days.

That the people of Fiji can no longer walk the streets in safety is cause enough for concern, but when it comes to their being attacked in their homes then it is time for the Magistrates' Courts to give serious consideration to the exercise of their full powers. The sentence of six months' imprisonment is quashed and in substitution therefor, after taking into account the respondent's plea of guilty, the respondent is sentenced to three years' imprisonment with effect from the 19th December 1974, and to six strokes of corporal punishment.

Appeal in respect of count 1 dismissed, but conviction quashed and sentence set aside. Appeal in respect of count 2 allowed and sentence increased to 3 years imprisonment.