Naiveli v State [1995] FJSC 5; CAV0001U.1994S (23 November 1995)

IN THE SUPREME COURT OF FIJI
AT SUVA
ON APPEAL FROM THE FIJI COURT OF APPEAL

CRIMINAL APPEAL NO: CAV001 OF 1994
(FCA Criminal Appeal no. 2 & 4 of 1992)
BETWEEN:

BENIAMINO NAIVELI

Appellant
AND

THE STATE

Respondent

Coram: The Hon. Sir Timoci Tuivaga, President
The Rt. Hon.Sir Robin Cooke
The Hon. Sir Anthony Mason

Hearing: 20 November 1995
Counsel: Mr A Gates for the Appellant
Ms N Shameem for the Respondent

Judgment: 23 November 1995

JUDGMENT OF THE COURT

The ground urged in support of this application for special leave to appeal is that the trial judge failed to give the assessors adequate direction with respect to the mental element involved in the offence of abuse of office under S. 111 of the Fiji Penal Code (Cap. 17) of which the Petitioner was convicted.

That section provides:

"Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act pre judicial to the rights of another, is guilty of a misdemeanour.

If the act is done or directed to be done for the purpose of gain, he is guilty of a felony, and is liable to imprisonment for three years."

The offence as charged was that the Petitioner

"being employed in the Public Service as Assistant Commissioner of Police (Crime) in abuse of the authority of his office directed Sgt. 776 Josefa Delailomalorua to do an arbitrary act, that is to effect the eviction of Mrs Vosararawa form Native Land Property known as Wainigasau Veisari in which property the [Petitioner] had a personal interest, which act was prejudicial to the rights of [Mrs Vosararawa].

The Petitioner gave evidence, in cross-examination, that he, believed he was the owner of the premises in that it was a case of owner and trespasser not landlord and tenant. He went on to say

"I thought a criminal remedy was involved .....My intention at that time was to implement the criminal law. I told [Sgt] J to arrest her and take her to court and that I will give evidence."

Section 9(2) and 9 (3) of the Penal Code provide

"(2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial.

(3) Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention is immaterial so far as regards criminal responsibility."

The two sub-sections are cast in specific terms. They are directed to intention to cause a particular result and motive respectively. Sub-section (2) does not exclude from consideration as an ingredient of an offence any mental element other than an intention to cause a particular result and even that exclusion is subject to any express statutory declaration to the contrary. In the context of criminal responsibility, a like comment may be made about sub-section (3) and its exclusion of motive. It follows that neither provision excludes or seeks exclude any mental element in a criminal offence under the Code except intention to cause a particular result. Hence guilty knowledge, belief or some other form of intent, if otherwise an element in an offence, is not affected by S. 9.

Central to the commission of an offence under S. 111 is the doing or directing to be done of an arbitrary act, "in abuse of the authority of" the accused’s "office". What differentiates something done in abuse of office from something not done in abuse of office in many cases will be the state of mind of the accused. An act done or direction given, which is otherwise the within the power or authority of an officer of the public service, will constitute an abuse of office if it is done or given maliciously with the intention of causing loss or harm to another or with the intention of conferring some advantage or benefit on the officer. They are just two instances of abuse of office. No doubt other instances may be given. But it would be unwise for us to attempt an exhaustive definition of what constitutes an abuse of office, to use a shorthand description of the statutory expression "abuse of the authority of his office."

Although the provisions of S.111 do not reflect the language in which the common law offence of misbehaviour in a public office has been expressed, some guidance in the interpretation of the section is provided by the English authorities on the common law offence. In R v. Dytham (1979) 3 All ER 641, Lord Widgery C.J., pointed out (at p.643) that in most of the 18^th and 19^th cases the misconduct asserted involved some corrupt taint but that this was not a necessary incident of the offence. His Lordship went on to say that in some cases the conduct impugned cannot be shown to be misconduct unless it was done with a corrupt or oblique motive.

That was the case in R v Llewellyn Jones (1967) 51 Cr. App. R. 4 where his Lordship expressed the view (at p.6) that,

"if the registrar of a country court when exercising his power to order payment out of court of money held on behalf of a beneficiary were to make an order in expectation of some personal benefit which he hoped to obtain and in circumstances where, had it not been for the personal benefit, he would not have made the order, that would be an example of misconduct in a public duty."

On the other hand, his Lordship was disposed to take a different view of a situation in which the registrar makes a decision affecting his own personal interest, if the decision be made honestly and in a genuine belief that it is a proper exercise of his jurisdiction so far as the beneficiaries and other persons are concerned (see p.7).

In the present case, the trial judge certainly considered that the evidence given by the Petitioner as to his belief was capable, if accepted, of raising a defence to the charge. In his directions to the assessors, his Lordship referred to the Petitioner’s statement that he had become the owner of the property and instructed the assessors that it was for them to consider

"whether he was entitled to entertain such a bona fide opinion."

Subsequently, when referring to S.197 of the Penal Code, the trial judge correctly told the assessors that the section could have been invoked against Mrs Vosararawa. His Lordship then said,

"Of course, what the defence counsel said was that the accused may have been honestly mistaken.

That is a matter for you....................."

Later the trial judge told the assessors

"The burden of his [the accused’s] evidence was that he did everything bona fide."

These passages indicate that the issue thereby presented to the assessors was whether the accused’s conduct was motivated by personal advantage, as on its face it plainly appeared to be, or by an honest belief that he was properly invoking S.197.

Earlier in his summing up the trial judge has informed the assessors that, if the four ingredients of the offence, namely employment in the Public Service, doing or directing an arbitrary act, that act being prejudicial to the rights of another, and that the act was in abuse of authority of office, they should return a verdict of guilty. Although it was submitted that this statement, considered in isolation, might be understood as excluding the relevance of an honest belief on the part of the Petitioner, it is evident that this statement cannot be cannot in isolation.

When the summing-up is read as a whole and attention is given to the passages relating to honest belief to which we have referred, it is reasonably clear that the assessors would have understood that the question whether the Petitioner honestly believed that he was entitled to give the direction complained of was an issue which they were required to determine before coming to a verdict of guilty. That was the conclusion reach by the Court of Appeal was we see no reason to disagree with the learned judges on this point.

No doubt the trial judge might have expressed the position with rather more clarity by stating that the prosecution was required to prove beyond reasonable doubt the requisite mental element – in this case the expectation of obtaining a personal advantage – and to negative the existence of the host belief asserted by the Petitioner, as well as proving beyond reasonable doubt the four element of the offence which he identified. And the learned judge might have explained for the benefit of the assessors how the requisite mental element comes to be an ingredient in the offence.

However, these comments do not detract from the conclusion we have already expressed with respect to the adequacy of the summing-up. In that respect we should mention that, at the conclusion of the summing-up, when counsel wee given opportunity of taking exception to the directions, counsel for the Petitioner offered no objection to the summing-up except on a matter now immaterial. That is an important, consideration because, any inadequacy in the directions identified by counsel could have been made the subject of re-directions.

In the light of what we have of what we have already said, this application for special leave must be refused because, having regard to the way in which the issue of honest belief was dealt with by the trial judge and the absence of any application for re-directions, we consider that it is unnecessary to determine any question of general principle and we are not persuaded that any miscarriage of justice has occurred.

The petition for special leave to appeal is refused.

Sir Timoci Tuivaga
Sir Robin Cooke
Sir Anthony Mason

Solicitors:
Koya and Co., Suva, for the Appellant
Director of Public Prosecutions, Suva, for the Respondent

CAV0001U.94S