Roko v Reginam [1978] FJSC 122; Criminal Appeal No. 87 of 1978 (10 November 1978)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

Criminal Appeal No. 87 of 1978

BETWEEN

TEVITA ROKO

AND

REGINAM

JUDGMENT

This is an appeal against the conviction of the appellant by Suva Magistrates Court on the 25th August 1978 of demanding with menaces contrary to section 328 of the Penal Code.

The facts are that on the evening of the 30th June 1978 the complainant with his family was walking to his home when he came across three men drinking liquor under a tree, one of whom was the appellant. The other two men stood up and came towards the complainant, and while one of them warned his family not to call out the other one demanded fifty cents from him. During the whole of the incident the appellant remained seated on the ground with a bottle of beer and a glass and took no part in the affair. The appellant and the complainant had known each other since they were children and the complainant was quite specific that the appellant was in no way involved and did nothing. When interviewed by the police the appellant frankly admitted what had occurred. He stated that he knew his companions were breaking the law but did not stop them as he was very drunk, that he took no part in the incident, and that subsequently he went and bought beer with the money which the other two had unlawfully obtained from the complainant.

The trial Magistrate accepted that the appellant had taken no part in the incident and that he had not stopped the other two from committing the offence because he was very drunk, but found that his presence at the scene, doing nothing, added to the atmosphere of fear and intimidation required to persuade the complainant to part with his money and convicted him on that basis.

By virtue of section 21 and section 22 of the Penal Code, if a person commits an offence, and another person is present, that is to say near enough to give assistance even though he is some considerable distance from the actual scene of the crime, and does give assistance or encouragement; or is present in pursuance of an agreement that the offence should be committed, he is equally guilty of the offence. However a person is not guilty merely because he is present at the scene of a crime, without any agreement that the crime should be committed and without any active assistance or encouragement on his part. Further, the fact that a person witnesses an offence being committed and takes no steps to prevent it does not, per se, make him a party to that offence, although if the offence committed is a felony he may be charged with the misdemeanour of neglecting to prevent a felony contrary to section 419 of the Penal Code.

On the facts of this case the trial Magistrate made no finding that the appellant was present in pursuance of an agreement that the offence should be committed and it is quite clear that the appellant did nothing to aid and abet the commission of the offence.

Consequently, while he could have been charged with neglecting to prevent a felony, his conviction for demanding with menaces cannot stand.

The conviction is quashed and the sentence set aside.

Chief Justice

Suva,
10th November 1978.