Particulars of Offence
JO SETAREKI BALEIKASAVU and SIMON MOW, on the 2nd day of March 1998, at Suva in the Central Division, stole cash of $3,302.05 and
cheque of $30.00, to the total amount of $3,332.05 from the person of APPU MADHAWAN s/o MADHAWAN, the property of the said HOT BREAD
KITCHEN.
After hearing the evidence of five prosecution witnesses and the rn evidence of the Appellant the Learned Chief Magistrate convicted
the Appellant saying thng that he accepted the evidence of the prosecution witnesses and was satisfied of the guilt of the Appellant
beyond reasonable doubt. The Appellant was sentenced to two years imprisonment suspended for three years.
The Appellant now appeals on the following ground (which I have summarised for the sake of clarity):
(b) &nbssp; &&nbbsp; &nsp; that thenlearned Chief Magistrate erred in law and fact in that he failed to consider that the Aant ht plan actole i crimpan>
(c) &nnsp;&&nsp;;&nspp;&nssp;&nsp;   thatevid nce withouithout the cautioned statement was merely suspicious;
(d) ;&nbssp; &bsp; &nbbp;
(e) (f) ;&nbssp; &nsp; &nsp; p; &nnsp;&&nsp; that thr leaChed Chief Magistrate failed to adequately consider the evidence of assault in police cu; N-GB>
(g) ;&nbssp; &nsp;&nbbsp;&bsp; &nbssp&nbbsp;&nbp; &nbp; tha learned Chief Mief Magistrate failed to consider a denial of the appels contionaht towyer section 27(1)(c) o(c) of thef the 1997
Constitution;
(h) &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;;&nsp; tpan>that the leaChed Chief Magistrate failed to consider the fact that the Appellant was not re-arrested by the powhen ppellas taken
to thece st from the Hot BreadBread Kitc Kitchen;
(i) &nbbsp;&&nsp;;&nsp; &nsp; &nnbp;& &nthat that the lear learned Chief Magistrate failed to consider whether the confession was unlawfully obtained. At the hearing of the appeal, counsel for the Appellant confined his submissions, in the main, to grounds (b), (d), (f), (g) and (h).
He submitted that the evidence of unlawful detention, oppressive conduct and unfairness, was derived from the testimony of the prosecution
witnesses, who were believed by the learned Magistrate. He said that the learned Chief Magistrate failed to adequately consider the
effect of police conduct on the admissibility of the confession. He further submitted that there was insufficient evidence to convict
the Appellant in the absence of the confession, and asked that the conviction and sentence be quashed.
In response counsel for the Respondent submitted that there was no need for tlice to arrest the Appellant before he was taken to the
stae station, because at that stage, the Appellant was a volunteer. She said that at that stage the police did not have reasonable
grounds to believe that the Appellant was a suspect, and therefore there was no duty to arrest him. She said the learned Chief Magistrate
had considered all the evidence before convicting the Appellant, but conceded that he could have given more thought to the question
of oppression caused by 10 hours of detention. She urged the court to dismiss the appeal.
The facts of this case were led in evidence b prosecution. On 2nd March 1998, the manageress of the Hot Bread Kitchen in Raiwaqa,
gave $ave $3,332.05 to Appu Madhavan, the driver, for banking. As he left the shop to go to his van, a boy snatched the bag containing
the money from his hands and ran away. Shortly before the theft, at about 7.00am one Vincent Fanua Andrea saw two Fijian boys standing
outside the old Raiwaqa Cinema, facing the Hot Bread Kitchen. He saw one boy cross the road to the shop and the other (the Appellant)
gesture to the other with one finger. The boy who had crossed the road ran towards the Hot Bread Kitchen and he heard women call
out “butako” (thief). Mr Fanua caught the Appellant and took him to the Hot Bread Kitchen where he was kept until the police arrived.
The police took the Appellant to the Raiwaqa Police Station where he was locked in a cell until hen he was interviewed. The confession
shows that questionitioning continued until 6.55pm when the Appellant reconstructed the scene, and had lunch. The interview resumed
at 7.30pm and concluded at 8.05pm when the Appellant was arrested and charged. During the interview the Appellant confessed that
he had taken part in the theft with his friend “Dice” and that his job was to watch the shop from the opposite side of the road,
and signal when the coast was clear.
Ground (a)
This ground of appeal can be disposed of quickly. If ontents of the confession are accepted, then there was ample evidence together
with the evie evidence of Vincent Fanua that the Appellant was an aider and abetter of the offence.
Section 21(1)(c) of the Penal Code provides that “all persons who aid and abet the principal offender are deemed to have taken part in committing the offence and to
be guilty of the offence and may be charged with actually committing it.” Furthermore section 22 of the Penal Code provides that when two or more persons form a common intention to commit an offence and an offence is committed which is a probable
consequence of the intention, then each of them is deemed to have committed the offence.
The evidence led during the trial pointed to the Appellant’s participation in the offence, and sections 21 and 22 of thel Code allowed
the learned rned Chief Magistrate to treat his participation as an active one.
Ground (a) is dismissed.
&n/span>
(b) &nnbsp; The Appellant submits that that the evidence against him without the confession was tenuous. This appears to be conceded
by Respondent’s Counsel who said that the evidence of a conversation, and a gesture to the person who committed the theft, was insufficient
to raise reasonable grounds for arrest.
However the conviction was based not only on the evidence of Vincent Fanua who gave evidence of the Appellant’s conduct, but also
on the evidence of the confession. With the confession, there was ample evidence of the Appellant’s involvement in the theft.
Ground (b) is dismissed.
(c) &nnbsp; &nsp; The Appt laniedennvolvemenvement in the crime when he was apprehended by PW4 Vincent Fanua. At page 16 of the
record, Mr Fanua said that when he grabbed the Appellant, the Appellant said, “I donow ang.”
This statement is of limited weight. In R -v- Pearce (1979) 69App. R. 365, the English Court of Appeal said at page 369:<369:
“A statement that is not an admission is admissible to show the attitude of the accused at the time he made it.”
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The statement is not evidence of the truth of the statement. It is only admissible ow the accused’s reaction when taxed with the offence.
It i It is merely evidence of the general picture for the court to consider.
In the circumstances, given the restricted weight that could have been put o Appellant’s exculpatory statement to Mr Fanua, I do not
coot consider that the learned Chief Magistrate erred in failing to refer to it in his judgment.
This ground of appeal is dismissed.
(d) ; Tpe Aps wareheprehended bded by Mr Fanua at the Hot Bread Kitchen. Alth Although counsel suggested that there was no citizen’s
arrest, the circumes ine thare wa Fanud tha“grabbed”bbed” the the AppelAppellant,lant, and and held held him until the police arrived.
When the police arrived, there was no re-arrest. No reasons were given at the trial for the failure to re-arrest. However State Counsel
submitted that the police did not have reasonable grounds to arrest the Appellant until after the interview was completed. She said
that the Appellant was a volunteer.
If that were so, the decision to remand the Appellant in a cell fo hours before his interview, is difficult to comprehend. It seems
clear from the evidence once of Detective Constable Malakai that the Appellant was not free to leave the station. If he was not free
to leave, he was in custody.
The preamble to the Judges Rules Cap. 13, provides, inter alia:
“These Rules do not affect the principles -
...................
(j) p;&nbbsp;&nsp; &nsp; p; &n&ssp;;&bsp; span>that>that poofce officers, otherwise than by arrest, cannot compel any person against his will to come to or r in alice on.”
ass=Mmal style="margin-tgin-top: 1op: 1; mar; margin-bgin-bottom: 1"> Unfortunately, Rule 1 of the Judges Rules appears to contradict the above princin that it provides:
“1. When a police officer is trto discover whether or by whom, an offence has been committed he is entitled to question anon any person,
whether suspected or not, from whom he thinks that useful information may be obtained. This is so whether or not the person in question has been taken into custody so long as he has not been charged with the offence or informed that he may be prosecuted for it.”
(My underlining)
Rule 1 presupposes a power to question persons in custody before charges are laid. The nation of principle (b) of the Rules and Rule
1, suggests tsts that a suspect can be arrested and detained for questioning until the police have “enough evidence to prefer a charge.”
It was a lack of clarity in the police power to detain for questioning, and in the status of volunteers, that led to the passing
of the 1984 Police and Criminal Evidence Act in England.
However, whatever the legal status of the Appellant was when he was remanded by the police for ioning on 2nd March 1998, the circumstances
of his detentioention were clearly relevant to the question of the voluntariness of his confession.
Principle (e) of the Preamble of the Judges Rules provides: span>
“That it is a fundamental condition of the admissibility in nce against any person, equally of any oral answer given byen by that
person to a question put by a police officer and of any statement made by that person, that it shall have been voluntary, in the
sense that it has not been obtained from him by fear of prejudice or hope of advantage, exercised or held out by a person in authority,
or by oppression.”
The question for the court was whether the circumstances of the Appellant’s detention, including the lengttime he was in the cell,
anl, any meals he may have been given and any opportunities he may have been given to contact family, friends or a solicitor, suggested
that the Appellant gave his statement in oppressive conditions. I note that the Appellant gave an unsworn statement, and that he
did not mention his detention at all, except for alleged assaults. However the burden of proving voluntariness, is on the prosecution.
The burden of leading evidence to eliminate the suggestion of an oppressive detention, was on the prosecution. The evidence of that
detention was sparse. It is not clear for instance whether the Appellant received any meals at all on the 2nd of March until he was
given “lunch” at 7pm, half-way through his interview.
In his judgment, the learned Chief Magistrate referred to voluntariness and admissibility thus:
“In my view, I accept PW3, PW4 and PW5's evidence. I find them cre as witnesses. I reject the accused’s assertion that he wahe was
assaulted. In my view he gave his confession voluntarily. There was no credible evidence available to suggest that the confessions
were unfairly obtained.”
The learned Magistrate was entitled to reject the evidence of assault. However on the evidence of PW5 (which hepted) the Appellant
was deas detained without arrest for about ten hours, and it appears without food. He was interviewed in the evening and remanded
in custody after an arrest and charge. It is not clear whether he was able to contact his family.
In failing to consider breaches of the Judges Rules, and conduct that might be considerpressive, I find that the learned Chief Magistrate
erred ined in law, and that the error is fatal to the conviction which depended heavily on the evidence of the confession.
On this ground, the appeal is allowed.
(e) p; Grounds(e) stggehat the Chhe Chief Magistrate erre erred in rejecting the evidence of assault. This ground was not
pursued a hearf thieal.
ass=MsoNormal style="margin-top: 1; margin-bottom: tom: 1"> <1">
However, the only evidence of assault came from the accused who made aworn statement, and who called no evidence. Although it is his
right to make an unsworn stan statement, such evidence has not been tested by cross-examination and is given less weight than sworn
evidence.
A rejection of his evidence was a finding of fact and of credibility which the learned Chief Magistrate was perfectly entitled to
m/span>
This ground is dismissed.
(f) ; Nd evi wnceled led as to s to whether or notAppellant was given an oppo opportunity to consult a lawyer whilst in custody.
Although counsel argued that a h of section 27(1)(c) of the 1997 Constitution was fatal to the conviction, I find that on t on the
2nd of March 1998, the Constitution had not come into effect. As such, the police were governed by the Judges Rules which provides
in the Preamble, that every person at any stage of the investigation should be able to consult with a lawyer unless “unreasonable
delay or hindrance is caused to the processes of investigation.”
I consider that this is a matter which ought to have been taken into account by the learned Chief Magistrate, when he considered the
voluntariness of the interview, and the circumstances in which it had been obtained.
However I note that Constable Malakai was not questioned about the affording of this right to the Appellant, and it is therefore not
at all clear whether an opportunity to consult was given at all.
This ground is successful to the extent that I find that the learned Chief Magistrate ought to have considered consultation with a
solicitor (especially when it was raised by the Defence in submissions) in considering voluntariness of the confession.
I have dealt with grounds (g) and (h), in allowing the appeal on ground (d).
For the reasons I have given in this judgment this appeal is allowed. The conviction and sentence are quashed.
Section 319(1) of the Criminal Procedure Code allows the court to order a re-trial. In deciding whether or not to order a re-trial, the court must consider the length of time
since the commission of the offence. In R -v- Saunders (1973) 58 Cr. App. R.248, the English Court of Appeal refused to order a re-trial when there was a three-and-a-half years delay since
the date of the offence, and the appellant had served a substantial portion of his term of imprisonment.
In this case, the offence was committed 2 years and 8 months ago. The principal offender, it appears, was never apprehended. Although
the Appellant was given a non-custodial sentence, I consider it unjust to order a re-trial.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The appeal is allowed. No re-trial is ordered.
Nazhat Shameem
JUDGE
At Suva
13th October 2000
Haa0060j.00s
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