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Saratibau v The State [1995] FJHC 121; Haa0020r.1995b (17 July 1995)

IN THE HIGH COURT OF FIJI
At Labasa
Appellate Jurisdiction

CRIMINAL APPEAL NO. 0020 OF 1995

Between:

LOLOMA SARATIBAU
Appellant

- and -

THE STATE
Respondent

Appellant in Person
Ms. L. Laveti for Respondent

REASONS FOR DECISION

On the 16th of May 1995 the appeal of the appellant was allowed after this Court quashed his conviction and entered an acquittal on a charge of Damaging Property.

The circumstances surrounding the appellant's conviction may be briefly described.

The appellant who appeared in person in the Savusavu Magistrates Court on the 13th of March 1995 was convicted after he pleaded 'guilty' to an offence of Damaging Property and after he had admitted the brief account of facts outlined by the prosecutor as follows:

"Facts:

On day in question about 10.15 p.m. accused and a friend returned from church. Near National Bank of Fiji argument broke out between them. They exchanged blows. Accused's punches were (sic) missed. He punched the glass."

In sentencing the appellant to 18 months imprisonment the learned trial magistrate said:

"Accused had wantonly destroyed public property and caused damage to the value of $1,500."

On both counts I cannot agree.

In his petition of appeal against sentence the appellant states:

"THAT the incident was a result of a fist fighting (sic) wherein I had accidentally landed my punch on the glass after that particular person had ducked my blow."

and

"THAT there was no premeditated intention to damage that particular glass as whatever happened was far beyond my control realising that the incident took place in the spur of the moment."

It is plainly obvious that the appellant's grounds of appeal raises the question of 'accidental damage' and, although the appeal was directed only to the sentence imposed by the learned trial magistrate, having regard to the fact that the appellant was unrepresented in the lower court and the rather 'equivocal' nature of the facts outlined, I called upon learned State Counsel to address the court on the propriety of the appellant's conviction.

In this latter regard after a short adjournment to enable State Counsel to examine the relevant police docket, she conceded (very properly in my view) that the State was unable to support the appellant's conviction.

In particular counsel referred to the appellant's caution interview record where he was asked and answered the following questions:

"Q: How did it happen?

A: I had an argument with a young man and I punched him, he ducked and my punch missed and hit the show glass.

Q: Did you intend to hit the glass?

A: No."

Based on that counsel accepted: "... the incident was an accident."

This was a material fact which should have been brought to the learned trial magistrate's attention but unfortunately was not.

The materiality of this fact becomes apparent from an examination of the nature of the offence of Damaging Property which is set out in Section 324 of the Penal Code (Cap. 17) which provides:

"Any person who wilfully and unlawfully ... damages any property is guilty of an offence which unless otherwise stated, is a misdemeanour, and he is liable, if no other punishment is provided, to imprisonment for two years."

It is clear from the above provision that before a person can be convicted for an offence of Damaging Property not only must he cause damage to property but further the 'actus reus' must be done BOTH "wilfully and unlawfully". It is not enough that the act causing damage was done "unlawfully", such as where the property belonged to another, in addition the act must be done "wilfully".

In this latter regard it is well to bear in mind the words of Lord Goddard C.J. in Brend v. Wood (1946) 175 L.T. 306 when he said at p.307:

"It should be observed that at English Common law there must always be mens rea to constitute a crime; If a person can show he acted without mens rea, that is a defence to a criminal prosecution ... It is of the utmost importance for the protection of the liberty of the subject that a court should always bear in mind that, unless a statute ... rules out mens rea as a constituent part of a crime, the court should not find a man guilty of an offence against the criminal law unless he has a guilty mind."

A fortiori where the statute prescribes that the prohibited act must be done "unlawfully and wilfully".

In R. v. Sheppard (1981) 72 Cr. App. R. 82 Lord Diplock in dealing with an offence of 'wilfully neglecting a child' said at p.86:

"The presence of the adverb 'wilfully' makes it clear that any offence under (the) section requires mens rea, a state of mind on the part of the offender directed to the particular act ... that constitutes the actus reus and warrants the description 'wilful'."

Almost a century earlier in R. v. Senior [1898] UKLawRpKQB 205; (1899) 1 Q.B. 283, Lord Russell of Killowen C.J. said of the meaning of the word 'wilfully' in the context of positive physical acts at p.290:

"'Wilfully' means that the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it."

Of greater similarity to the factual circumstances of the present case and in my view conclusive of the appellant's innocence are the decisions in R. v. Pembliton (1874) L.R. 2 C.C.R. 119 and R. v. Lockhead (1955) Crim Law Rev. 573.

In Pembliton's case the accused deliberately threw a stone at an opponent in a street fight but the stone missed its target and broke a glass window. In quashing the accused's conviction for unlawfully and maliciously damaging the window the Court of Crown Cases Reserved held that the jury should have been directed that the prisoner must either have intended to break the window or been reckless as to whether it might be broken.

In Lockhead's case the accused was charged with causing malicious damage to a plate glass window in that he had thrown a bottle in the general direction of combatants involved in a street fight in progress and the bottle had broken the window. In a statement to the police Lockhead said that he did not know why he had thrown the bottle. Lynskey J. applying Pembliton's case directed the jury that there was no evidence that Lockhead had formed the necessary intention to commit damage to property, or had shown a recklessness from which such an intention could be inferred. In the result Locklead was found 'not guilty'.

In the light of the foregoing I was firmly of the view that the appellant's conviction could not be sustained and it was accordingly quashed and the appellant ordered to be immediately released.

(D.V. Fatiaki)
JUDGE

At Labasa,
17th July, 1995.

HAA0020R.95B