Buimaiwai v Reginam [1977] FJSC 84; Criminal Appeal 089 of 1977 (29 September 1977)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 89 OF 1977

1. JIMIONE BUIMAIWAI
2. JOSEFA BALEIWASAWASA
Appellants

v.

REGINAM
Respondent

JUDGMENT

At the hearing of the appeals by the two appellants on the 16th September, 1977 their convictions for Assault Occasioning Actual Bodily Harm were quashed and their sentences of 12 months' imprisonment set aside.

The appellants with two others Emosi Dugunu and Malakai Fou were originally charged with Robbery with Violence contrary to section 326(1)(a) of the Penal Code and Grievous Harm contrary to section 258 of the Penal Code. All accused pleaded not guilty to the two counts.

After calling four witnesses the prosecutor advised the Court he wished be withdraw the first count and to reduce the second count to Assault Occasioning Actual Bodily Harm against accused 1 and 3, the two appellants, and accused 4, Malakai Fou.

The record indicates that Defence Counsel agreed to the prosecutor's request.

The record indicates that the trial Magistrate then dismissed the two counts against the second accused and acquitted him.

The record does not indicate that the reduced charge was read to the remaining three accused or that they were asked to plead to the amended charge. The record indicates the prosecutor then stated the facts and the Defence Counsel admitted the facts.

The trial Magistrate then convicted the appellants and Malakai Fou of Assault Occasioning Actual Bodily Ham and stated he would make no finding on the first count which would remain on file. Defence Counsel then all addressed the Count in mitigation.

In his sentence the trial Magistrate stated the accused had pleaded guilty but did not specify the count which from the record can only have been the count on which they were convicted.

The two appellants were not represented at the hearing of the appeal. When questioned by the Court about their apparent change of plea in the Magistrates Court it was apparent they were not clear what had happened.

One of the appellants stated that their Counsel had a discussion with the prosecutor and one accused was acquitted and he and the other accused were convicted.

The Acting Director of Public Prosecutions who appeared for the Crown conceded that the trial Magistrate had not complied with Criminal Procedure Code section 204(1) which he queried as being applicable or with Criminal Procedure Code section 197 and agreed it was a fatal defect.

In my view the reduction of the second court to a charge of Assault Occasioning Actual Bodily Harm was an amendment of the charge and section 204 should have been complied with.

In Hari Pratap v. Reginam 14 F.L.R. 93 the Court of Appeal held that failure to comply with section 204 (1) of the Criminal Procedure Code where a charge was amended rendered the proceedings null and void. While the Court of Appeal judgement was reversed by the Privy Council in the Privy Council Appeal No. 10 of 1969 (unreported) this reversal did not affect the law stated by the Court of Appeal that failure to take a plea where a charge was amended was a fundamental defect rendering the proceedings null are void. The Court of Appeal in Hari Pratap's case considered that the proviso to section 300(1) of the Criminal Procedure Code could not cure the defeat.

Even if section 204 has no application section 197 of the Criminal Procedure Code would apply.

The record does not indicate the reduced charge was read to the accused or that they personally pleaded to it. The reference in the trial Magistrate's sentence that the accused had pleaded guilty does not dispel from my mind a doubt that neither section 204 or 197 of the Criminal Procedure Code was complied with.

I would miss comment on the withdrawal of the first count before the accused were called upon to make their defence which count was left on file with no order made thereon by the trial Magistrate. The Acting Director of Public Prosecutions advised the Court that this proceeding is followed in England. That may be the position in England but section 192(2) of the Criminal Procedure Code makes it mandatory for the Court either to acquit on discharge an accused where a charge is withdrawn.

In Review No. 9 of 1977 the conviction of Malakai Pea one of the persons convicted with the appellants did not appeal was quashed.

I confirm that the convictions of the appellants were quashed on the 16th September, 1977 and the sentences set aside.

R G Kermode
JUDGE

Suva,
29th September, 1977.