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Buke v The State [1990] FJHC 4; Haa0056j.89s (2 January 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 56 OF 1989

Between:

NETAVA BUKE
Appellant

v.

STATE
Respondent

Appellant in Person
Ms. A. Prasad for the Respondent

JUDGMENT

The appellant appeals against his conviction by the Suva Magistrate Court for an offence of Hotel Breaking, Entering and Larceny, the particulars of which reads as follows:

"Particulars of Offence

NETAVA BUKE on the 9th day of July 1988 at Lami in the Central Division broke and entered the Tradewinds Convention Centre and stole therein one keg of beer valued at $600 the property of the said Rex Basil Hollows. "

The appellant pleaded not guilty at his trial and the prosecution called 4 witnesses, the managing director of the Tradewinds Convention Centre, 2 security officers who were on duty on the particular night and the investigating officer who interviewed the appellant.

The prosecution's case was that in the early hours of the morning of the day in question the appellant was confronted by a security officer whilst in the process of rolling out a keg of beer from the Tradewinds Convention Centre through an open back door.

The Security Officer in fear at having seen an accomplice of the appellant armed with a knife failed to prevent the removal of the keg of beer but instead and in an effort to "cut his losses" told the appellant to take the beer and return the keg.

The keg was never returned and the next morning the theft was reported to the Lami Police Station.

When questioned by the investigating officer the appellant is recorded to have said:

"A security by the name of Rocky opened the door for me and I entered inside and stole the keg of beer."

This version was varied slightly by the appellant at his trial when he said in an unsworn statement:

"The door was opened by (by one of the Security Officers) and I went in and saw 5 kegs of beer. He told me to take only 1 when I came outside with another security officer. He told me to take the beer and return the keg."

At the hearing of this appeal the appellant maintained that the door was opened to him by one of the hotel security officers who had also told him to take the keg.

It is noteworthy that both security officers were called at the trial and gave sworn evidence. To neither was it suggested by the appellant that they had voluntarily opened the door to him and told him to take the keg of beer. Indeed neither was cross-examined at all by the appellant.

The learned trial magistrate who saw and heard the witnesses was satisfied that the case was proven beyond reasonable doubt and although he could have questioned the security officer who admitted telling the appellant (in fear) to take the beer and return the keg, he did not presumably because he believed that the officer was genuinely fearful of the appellant's armed accomplice.

Additionally the appellant had admitted in his caution interview to "stealing the keg". In the circumstances, this appeal against conviction must be and is hereby dismissed.

The appellant also sought belatedly to appeal against his sentence of 2 years imprisonment but as the learned trial magistrate correctly pointed out this appellant has a previous conviction for Larceny and this offence was categorised as a "very high-handed act". With both observations I agree.

The appeal against sentence is accordingly dismissed.

(D.V. Fatiaki)
JUDGE

At Suva,
1st February, 1990.

HAA0056J.89S