Reginam v Fou [1977] FJSC 113; Review 9 of 1977 (16 September 1977)

IN THE SUPREME COURT OF FIJI
REVISIONAL JURISDICTION

REVIEW NO. 9 OF 1977

IN THE MATTER of the Criminal Procedure Code

AND IN THE MATTER of Criminal Case No. 1990 of 1977
before the Magistrates Court at Suva

REGINAM
Complainant

v

MALAKAI FOU
Respondent

ORDER ON REVISION

The respondent with three others was charged with Robbery with Violence and Grievous Harm. At the trial the Robbery with Violence count was withdrawn and the second count was reduced to Assault Occasioning Actual Bodily Harm. The record appears to indicate that the respondent pleaded guilty to the charge of Assault Occasioning Actual Bodily Harm but there is no record that he did in fact plead guilty. There is an indication in the sentence of the trial Magistrate that he had pleaded guilty. The respondent was sentenced to 12 months' imprisonment. One of the persons charged with the respondent was acquitted on both counts.

Jimioni Biumaiwai and Josefa Baleiwasawasa, two others charged with the respondent, appealed to the Supreme Court in Criminal Appeal No. 89 of 1977 and their convictions were quashed and they were discharged on the 16th of September, 1977.

In order to ensure that no injustice is caused to the respondent who has not appealed, the trial Court's record has been perused with a view to exercising the revisional powers of this Court.

The conviction of the respondent on the charge of Assault Occasioning Actual Bodily Harm is quashed and the sentence of 12 months' imprisonment set aside.

In view of the Director of Public Prosecutions' request in Criminal Appeal No. 89 of 1977 that the appellants be discharged and not acquitted in view of the serious injuries sustained by the complainant in this case and the fact that the prosecution had not completed its case when there were apparent pleas of guilty the respondent is not acquitted but he is discharged.

(SGD) R. G. Kermode
JUDGE

Suva,
16th September, 1977.