Taqanaivalu v Reginam [1977] FJSC 8; Criminal Appeal 014 of 1977 (4 March 1977)

Fiji Islands - Taqanaivalu v Reginam - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 14 OF 1977

BETWEEN:

:

KITIONE TAQANAIVALU

AND:

REGINAM

JNT

This is an appeal against the conviconviction of the appellant by Suva Magistrates Court on the 21st October 1f larceny from the person contrary to section 303 of the Penal Code.

The offence was was alleged to have been committed on the 10th October 1975 and originally the appellant was jointly charged with another (hereinafter called the co-accused). They both appeared before Suva Magistrates Court on the 13th October 1975 to answer the charge, whereupon the co-accused admitted that he had committed the offence whereas the appellant entered a plea of not guilty.

The case was then adjourned to the 28th October 1975 for enquiries to be made regarding the co-accused who was apparently a juvenile, but on the adjourned date the appellant did not appear and the prosecution applied for a warrant of arrest to issue. For some reason the proceedings in respect of the co-accused were adjourned to the 31st October 1975 for hearing in the juvenile court, an incorrect procedure as the co-accused had been jointly charged with and had appeared with an adult. Be that as it may, the accused did not appear on the 31st October end a warrant for his arrest was issued which apparently is still outstanding. On the 23rd December 1975 the appellant again appeared before Suva Magistrates Court although there is nothing to show how his appearance was obtained, and he informed the Court that the reason he had not appeared earlier was that he had been in prison, apparently having been sentenced to three years six months' imprisonment by Lautoka Magistrates Court in September, 1975. On the 5th November 1975 he had also been sentenced to two years six months' imprisonment by Levuka Magistrates Court, and on the 9th December 1975 had been sentenced to ten months' imprisonment by Suva Magistrates Court in respect of unrelated offences. For some unknown reason the hearing of the charge was then adjourned to the 21st October 1976. It may be that Suva Magistrates Court thought that no prejudice would be occasioned to the appellant by this long delay as he was already serving sentences of imprisonment and that by that date the co-accused would have been apprehended; but there are other considerations which militate against a long delay in the hearing of a criminal charge, including the fact that prosecution witnesses may not be available after such a long time and that in any event their memory of the incident will be adversely affected.

On the 21st October 1976, as the co-accused was still at large, the joint charge was withdrawn and the appellant was proceeded against separately. He maintained his plea of not guilty and thereafter the complainant testified that on the 10th October 1975 she was walking along the road when "two Fijian boys came the other way and they suddenly snatched my bag" and she identified the appellant as one of them. It is difficult to envisage two persons physically snatching a bag; usually one person does the snatching while the other or others aid or abet in one way or another. One would have expected this matter to be clarified and the complainant to be asked if she could say which of the two boys did the actual snatching and what the other boy did, but no clarification was sought. Further, although the complainant had run after the two boys, she was not asked which of them was carrying the bag. When the appellant cross-examined the complainant he put it to her that he was not the one who snatched her bag to which she replied that he was one of the men who snatched it - which again left the position vague and unclarified.

The appellant and the co-accused were apprehended by a police constable, were identified by the complainant as the persons who had stolen the bag, and were taken to the police station. The police constable testified that he questioned them and that the appellant stated that he was the one who had snatched the bag, which the appellant denied. At that time the police constable certainly had evidence which afforded reasonable grounds for suspecting that the appellant had committed an offence, and consequently he was obliged to caution him in accordance with Rule II of the Judges' Rules before putting to him any question relating to the offence. On the face of the record the police constable was in breach of the Judges' Rules, but this is another aspect of the matter that was not pursued at the hearing. However the investigating officer properly cautioned the appellant and recorded a full statement from him in which the appellant set out in detail how he had met the co-accused by chance and invited him home for lunch, and that on the way home the complainant passed them whereupon the co-accused turned back, snatched the complainant's bag and told him to run; that he knew the co-accused had stolen something and as he was frightened he ran with the co-accused; and that when they were apprehended by the police constable he told the police constable that it was the co-accused who had snatched the bag.

In his statement to the Court the appellant gave a full account of what had happened which was entirely consistent with the cautioned statement he had made to the investigating officer, and in which he denied being a party to the theft of the bag and reiterated that he had run away with the co-accused as he was frightened that he would be blamed in view of his previous record.

In a very brief judgment the trial Magistrate found that it did not matter whether the bag was actually snatched by the appellant or by the co-accused as the appellant was clearly a principal offender in the terms of section 21 of the Penal Code, and he convicted the appellant.

I might add in parenthesis that at this stage of the trial, in spite of the prison sentences that the appellant was already serving, and the appellant's own references to his previous record, the prosecuting officer informed the trial Magistrate that the appellant had no previous convictions; a somewhat surprising assertion.

The trial Magistrate's reliance on section 21 of the Penal Code must rest on evidence leading irresistibly to the conclusion that the co-accused and the appellant were acting in concert, and that either one of them snatched the bag, the other having counselled or procured him to do so, or doing or omitting to do an act for the purpose of enabling or aiding him to do so, or abetting him in doing so. In the unsatisfactory circumstances of this particular case I do not consider that the admissible evidence against the appellant was sufficient to lead to such an irresistible conclusion of guilt, and the Crown concedes that it would not be safe to allow the conviction to stand.

The conviction is quashed and the sentence set aside.

Clifford H. Grant
CHIEF JUSTICE

Suva,
4th March 1977.