Naikurekure v Reginam [1977] FJSC 39; Criminal Appeal 058 of 1977 (8 July 1977)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL No. 58 of 1977

MANUELI NELI NAIKUREKURE
Appellant

v

REGINAM
Respondent

JUDGMEN

The appellant was, with three others, char charged with burglary and escaping from lawful custody. He pleaded guilty was sentenced by the Magistrate's Court Suva to 9 months' imprisonment on each count, the the two sentences to be served consecutively. He appeals against these sentences on the ground that they are excessive.

With regard to the offence of burglary, however, one of his grounds is:

"1. I did not commit the said offence as the police has charged me for."

The appellant is unrepresented here as he also was at the trial.

Learned Counsel for the Director of Public Prosecutions has drawn my attention to this Court's judgment in D.P.P. v. Solomone Tui (No. 2 of 1975) and states that he cannot support the appellant's conviction on the burglary count, despite the appellant's plea of guilty.

The charge was framed as follows:

Statement of Offence

BURGLARY: Contrary to Section 332(a) of the Penal Go do Cap. 11.

Particulars of Offence

JOSUA RALULU, JOSAIA RALULU, MANUELI NAIKUREKURE and MIKEA TUBUNA, on the 6th day of May, 1977 at Lami Suva in the Central Division, broke and entered by night the Dwelling house of INOKE BULA and stole four trousers valued at $14.00, one belt valued at $2.00, 2 tin of fish valued at 88 cants and 2 onion valued at 12 cants to the total value of $17.00 the property of said Inoke Bula. "

As in the case of Solomone Tui (supra) the appellant was charged only with burglary, not with larceny. The learned Chief Justice in the case of Solomone Tui, said:

"In the second place, a vital ingredient of the offence in question, namely an intent to commit the felony of larceny, has bean entirely omitted from the charge. And in the third place, although the particulars of the offence allege that the respondent stole various item 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 in that case was regarded as fundamentally defective and the conviction was quashed.

Learned counsel submits that the law as stated in Solomone Tui is binding on the Magistrates' Courts and to cannot, therefore, support the conviction. I accept his submission. The conviction on count 1 is quashed and the sentence of 9 months' imprisonment set aside.

The appellant's appeal against sentence on count 4 is dismissed.

G. Mishra
ACTING CHIEF JUSTICE

Suva,
8th July, 1977