Nand v Reginam [1977] FJSC 130; Criminal Appeal 6 of 1977 (23 June 1977)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Labasa Criminal Appeal No. 6 of 1977

BETWEEN

PARMA NAND
s/o Hari Narayan Maharaj
Appellant

v

REGINAM
Respondent

JUDGMENT

The appellant was charged with the following offence before the Magistrate's Court, Labasa:

"Statement of Offence

OBTAINING CREDIT BY FALSE PRETENCE:

Contrary to Section 343(a) of the Penal Code, Cap. 11.

Particulars of the Offence

PARMA NAND s/o HARI NARAYAN MAHARAJ, between the 9th day of December, 1976 and 16th day of December, 1976 at Nasea Labasa in the Northern Division, obtained $122.65 cents credit from the Hotel Takia by false pretence."

The appellant, who was unrepresented pleaded guilty.

The prosecution then outlined the following facts which the appellant admitted:

"Between 9.12.76 and 16.12.76 accused stayed at Hotel Takia and was allocated room 104. He was given meals and accommodation during that time. He left on 16.12.76 without advising any person. He just took his belongings and left. Made no payment. Reported to Police. Accused seen and admitted obtaining credit by False Pretences. Arrested and charged. Money still not paid to the hotel."

The appellant was sentenced to 3 months' imprisonment.

He now appeals against both conviction and sentence on the following grounds:-

"1. THAT the verdict is not safe as neither the particulars of offence nor the evidence adduced disclosed what the false pretence was.

2. THAT the Learned Trial Magistrate erred in law in convicting your Petitioner upon the admitted facts your Petitioner could not in law have been convicted of the offence charged in that there was no evidence of your Petitioner obtaining credit by false pretence.

3. THAT the sentence is harsh and excessive."

Counsel for the respondent contends that section 290(1) of the Criminal Procedure Code does not permit the issue of conviction to be raised on appeal where the appellant pleaded guilty to the charge at the trial. Generally speaking it is undoubtedly so. This Court has, however, often quashed a conviction based on such a plea where the charge, as laid, showed no offence known to the law or where it was fundamentally defective owing to a lack of essential particulars or some other reason. In particular, the proviso to section 323 of the Criminal Procedure Code allows objections to a charge to be raised on appeal where the appellant was unrepresented at the trial.

Archbold (36th Edn. para. 1935) states that "It is essential that the false pretences shall be set out in the indictment ......... and with sufficient certainty." In R. v. Thomas (23 Cr. App. R. 21) Avory L.C.J. said,

"Without going into further matters, it is enough to look at the indictment itself. Nowhere does it say what the false pretences were said to have been. The Crown very properly does not seek to support the conviction, and the appeal is allowed, and the conviction quashed."

In the present case learned counsel for the respondent concedes that the particulars laid in the charge were fundamentally defective. That being so, a conviction based on a plea of guilty cannot, in my view, be allowed to stand. The appellant should not have been asked to plead to the charge without the proper amendment (see Hunter v. Coombs 1962 1 W.L.R. 573). No amendment in this case was sort or ordered.

Learned counsel for the appellant quite correctly points out that even the facts outlined before the Court and admitted by the appellant disclose no specific false pretence. Unless such a pretence is stated with sufficient certainty, a court is not in a position to decide whether the representation allegedly made by the appellant can amount to a "false pretence" in law without which no criminal offence would be disclosed.

The appeal is allowed and the conviction is quashed.

In framing a charge under section 343 (a) of the Penal Code it is generally advisable to have an additional alternative count alleging that the person charged obtained credit by means of fraud other than false pretence.

(Sgd.) G. Mishra
JUDGE

Suva,
23rd June 1977