Ligairi v State [2001] FJLawRp 32; [2001] 1 FLR 172 (1 May 2001)

EPELI LIGAIRI v STATE

High Court Appellate Jurisdiction

20, 27 April, 1 May, 2001

HAA 091/00S

Damaging property – appeal against conviction – whether Appellant acted recklessly in knocking off a video camera

During a march in Suva on 19 May, 2000, the Appellant knocked off a video camera from a police constable taking pictures from the back of a police van. He was charged, convicted, and fined $500, in default 2 months imprisonment, of which $400 was to be paid to the Police for repair of the camera. He appealed on the grounds that the Magistrate erred in finding that the prosecution proved the offence of "Damaging Property" and erred in interpreting the word "wilful" as including the word "reckless." The appellate Court discussed the common law definition of 'wilful' in absence of a statutory definition. The Court found the Appellant reckless as to the consequences of his actions.

Held –the Appellant acted deliberately in slapping the camera away from a police officer. Even if the Appellant did not intend to damage it, he must have known that damage to the camera was a likely consequence of his act. The Appellant's built, his background as champion weight-lifter, his aggression towards the police officer, and his expressed anger at being the subject of a video shoot all suggest recklessness on the Appellant's part, as to the consequences of his action.

R v Sheppard (1981) AC 394 appl.

Appeal dismissed. Conviction upheld. There being no appeal against Sentence, it remains.

Other cases referred to in Judgment

R v Giffins (1982) RTR 363
R v Lockwood ex parte A-G (1981) Qd R 209
Walker v Crawshaw [1923] NZPoliceLawRp 10; (1924) NZLR 93

Naipote Vere for the Appellant
Koila Siqila for the Respondents

1 May, 2001

JUDGMENT

Shameem, J

This is an appeal against the conviction and sentence of the Appellant, on 26th October 2000 of the following offence:

Statement of Offence

DAMAGING PROPERTY: Contrary to Section 324(1) of the Penal Code, Cap.17.

Particulars of Offence

EPELI LIGAIRI, on the 19th day of May 2000 at Suva in the Central Division, wilfully and unlawfully damaged a Panasonic video recorder valued at $2,300.00, the property of the Fiji Police Force.

The evidence led in the Magistrates' Court, from both prosecution and defence, disclosed that the Appellant was marching in front of a march which proceeded through Suva, on the 19th of May 2000. As the Appellant marched through Victoria Parade, a police officer, Police Constable 25 Margaret Marshall, of the Central Police Station was taking video shots of the march from the back of a police vehicle. The Appellant, who objected to the video shooting, assaulted her and "tapped the camera" off her. As a result of the incident the video camera was damaged and could not be used again. At the time the Appellant tapped/pushed/slapped the camera, he said "why are you taking my pictures?"

The incident was witnessed by Romanu Tikotikoca, Acting Senior Superintendent of Police, who decided not to arrest the Appellant because of the volatile situation.

The Appellant was arrested and charged on 31st July 2000. In court, as in his interview, the Appellant denied damaging the camera deliberately. The learned Magistrate found him guilty on the basis that he had acted recklessly. He was fined $500, in default 2 months imprisonment, with $400 of the fine to be paid to the Police Force for repair of the camera.

The Appellant filed seventeen grounds of appeal. However at the hearing of appeal, counsel confined himself to two grounds. They were:

1. That the learned Magistrate erred in law and fact in finding that the offence of "Damaging Property" was proved by the prosecution;
   
2. That the learned Magistrate erred in interpreting the word "wilful" as including the word "reckless."
   

There is no dispute that the Appellant said he never intended to damage the camera. The prosecution at the trial, and at the hearing of this appeal, submitted that the Appellant had however acted recklessly, and that given his size, his training as a champion weight-lifter, and the force he used to push the camera, he knew there was a risk of damage to the camera but continued to use such force.

The Counsel for the Appellant says that the word wilful only means intentional, and that the learned Magistrate had misdirected herself in considering recklessness as part of the mens rea for Criminal Damage.

Section 324(1) of the Penal Code provides:

"Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, which unless otherwise stated, is a misdemeanour, and he is liable, if no other punishment is provided, to imprisonment for two years."

The word wilful is not defined in the Penal Code. However section 3 of the Code states:

"This Code shall be interpreted in accordance with the principles of legal interpretation obtaining in England and expressions used in it shall be presumed, as far as is consistent with their context, and, except as may be otherwise expressly provided, to be used with the meaning attaching to them in English common law and shall be construed in accordance therewith."

The word "wilfully" is used in respect of a number of criminal statutes, both here and in England. In England, it is famously used in the offence of the wilful neglect of children under the age of 16 years under the UK Children and Young Persons Act 1933. The House of Lords held by majority in R v Sheppard (1981) AC 394 that a man "wilfully" fails to provide adequate medical attention for a child if he either (a) deliberately does so, knowing that there is some risk that the child's health may suffer unless he receives such attention or (b) does so because he does not care whether the child may be in need of medical treatment or not.

Lord Keith said at p.418:

"The primary meaning of 'wilful' is 'deliberate'. So a parent who knows that his child needs medical care and deliberately, that is by conscious decision, refrains from calling a doctor, is guilty under the subsection. As a matter of general principle, recklessness is to be equiperated with deliberation. A parent who fails to provide medical care which his child needs because he does not care whether it is needed or not is reckless of his child's welfare. He too is guilty of an offence. But a parent who has genuinely failed to appreciate that his child needs medical care, through personal inadequacy or stupidity or both, is not guilty."

Sheppard has subsequently been applied with approval in cases in England which require proof of 'wilful' or 'wilfully' (see R v Giffins (1982) RTR 363).

Archbold (Criminal Pleading Evidence & Practice Ed. 2000) states at 17-47:

"In the absence of a specific decision on a specific statutory provision to the contrary, it is submitted that any provision containing the word "wilfully" in the definition of a crime should be construed in accordance with the approach in Sheppard."

Counsel for the Appellant correctly submitted that the UK Criminal Damage Act 1971 specifically imports the word "reckless" and therefore cannot be compared with section 324 of the Fiji Penal Code. Section 1(1) of the 1971 UK Act provides:

"A person who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence." (My underlining.)

A comparison between that statutory definition and our section 324, would therefore be unhelpful in respect of the requisite mens rea.

However the common law definition of the word "wilful" developed in Sheppard (supra) is not confined to cases of wilful neglect. It applies as Archbold submits, to all cases where the word "wilful" is a component of the offence. It applies where the relevant statute provides no definition of the word.

The law in Australia and New Zealand, on the meaning of the word "wilful" has developed along similar lines to the English common law. In Walker v Crawshaw [1923] NZPoliceLawRp 10; (1924) NZLR 93, on a charge of "wilfully" doing an indecent act in public, where the accused was alleged to have committed intercourse in his taxi at night in a back street, Sim J decided that it was enough that the accused had appreciated a reasonable probability of detection and had deliberately and intentionally accepted that risk.

In Queensland in R v Lockwood ex parte A-G (1981) Qd R 209, the court held that the word "wilfully" requires proof that the accused person either (1) had an actual intention to do the particular kind of harm that in fact was done or (2) deliberately did an act (which was voluntary) knowing at the time he did it that the result charged in the indictment was a likely consequence of his act and that he recklessly did the act regardless of the risk.

The learned Magistrate in her judgment, said at page 5:

"'Wilful' as defined by Blackstone's Criminal Practice 1996, states that wilful is not limited to deliberate or voluntary acts but includes also recklessness. On the evidence, the accused had admitted that prior to the act, he had been offended by what he termed the "manner" of PW1's video-shooting. It was not made quite clear to the court as to what he actually found offensive but it appeared to me that he had thought that PW1 was focussing the camera too much on him.

Further the accused did not deny that he had uttered the words "why are you taking my pictures" to PW1 prior to slapping the camera. These words uttered prior to his actions displayed his intention and though he may have never intended to "destroy" the camera, indeed his words and actions resulted in the damage to the camera.

I also find that in admitting that he is a strong and powerful man, the accused was reckless and therefore wilful in acting the way he did. On an objective standard it was relatively foreseeable that given his strength, the act of slapping the camera, would cause the damage as it did."

Given the common law definition of the word "wilful", it is difficult to find fault in the learned Magistrate's findings. She found that the Appellant acted deliberately in slapping the camera, and that even if he did not intend to damage it, he must have known that damage to the camera was a likely consequence of his act. There was clearly enough evidence, on the Appellant's own evidence, to warrant such a finding. The evidence of the Appellant's build, his background as champion weight-lifter, his aggression towards PW1, a policewoman, and his expressed anger at being the subject of a video shoot, all suggest recklessness on the Appellant's part, as to the consequences of his action.

For these reasons, the grounds of appeal are unsuccessful. There is no appeal against sentence. This appeal is dismissed.

Appeal fails.

Marie Chan