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Bulewa v The State [2002] FJHC 204; HAM0022.2002S (10 July 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL No.: HAM0022 OF 2002

BETWEEN:

WAISAKE BULEWA
APPELLANT

AND:

THE STATE
RESPONDENT

Appellant - In Person
Respondent - Mr. N Nand

Hearing: 2nd July 2002
Judgment: 10th July 2002

JUDGMENT

BACKGROUND:

The appellant was charged with two others of the offence of ROBBERY WITH VIOLENCE Contrary to Section 293(1)(b) of the Penal Code Cap 17 and convicted for the lesser offence of Receiving Stolen Property and sentenced to three years imprisonment by Suva Magistrates’ Court.

The details of charge are as follows:

Particulars of Offence

EMASI SOMUMU, JOJI VEIQUWA and WAISAKE BULEWA and another on the 11^th day of December 2000 at Suva in the Central Division robbed SAMSON SUSAU GARISAU of cash $20,862.75 and cheques valued $1,618.75 to the total value of $22,481.50 the property of FIJI CENTER (USP) and immediately after such robbery used personal violence on the said SAMSON SUSAU GARISAU.

The appellant was not represented in the Magistrates’ Court and remained unrepresented in the appeal. The lack of legal representation did not appear to embarrass him or cause him prejudice in any way as he cross-examined those witnesses who implicated him quite thoroughly. He prepared his own grounds of appeal and which are quite lengthy and repetitive but essentially they say –

(1) that conviction for receiving stolen property is erroneous because the prosecution failed to prove that the appellant knew that the property was stolen.

(2) that evidence against him was circumstantial only.

(3) that the learned Magistrate erred in law and in fact in convicting him of receiving stolen property.

When the hearing commenced in Magistrates’ Court the second accused pleaded guilty after evidence of first prosecution witness was heard. He was convicted and sentenced to four years imprisonment. The trial proceeded in respect of first accused and the third accused who is the appellant.

FACTS:

On 11^th December 2000 a robbery occurred at USP Fiji Centre. The offenders took away a money box containing cash and cheques.

The appellant had denied participating in the robbery in his interview notes. None of the prosecution witness identified him as the person who actually robbed.

The evidence against the appellant was given from two sources PW5 Fulori Buli who was at the material time appellant’s girlfriend. Her testimony was the appellant brought a cash box covered by a cloth. Others came and money was shared. She saw appellant touching the money and taking his share of money. That cash box was left in her house and a day later the appellant told her to throw the box away. The moneybox was retrieved by the police.

The appellant’s own witness JOJI VEIQUWA also placed the appellant at the place where money was shared and said appellant received money. The amount appellant received is not disclosed.

The accused had brought an alibi witness. He himself elected to remain silent.

The issue therefore was mainly of credibility.

FINDINGS OF MAGISTRATE:

The learned Magistrate having looked at the evidence quite rightly found the appellant not guilty of robbery. He believed the prosecution witness PW5 and having looked at the evidence found that the appellant shared the money that was stolen and that the appellant knew when taking the money that it was stolen.

The learned Magistrate was quite entitled to make these findings and there is no reason why I should disturb those findings of fact. There was direct evidence here not circumstantial.

CONVICTION FOR LESSER OFFENCE:

The real issue before this court is whether on a charge of Robbery with Violence, a person can be convicted for Receiving Stolen Property.

The learned Magistrate applied Section 169(2) of the Criminal Procedure Code (CPC) in taking this course of action.

Section 162(2) of the CPC reads as follows:

"When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it."

The court is given discretion to convict for the minor offence. The key words are MAY BE CONVICTED not shall be convicted. The court would before convicting consider whether the accused was in any way prejudiced or disadvantaged in the conduct of his trial or failed to direct his mind to the consideration of the minor offence.

Accused persons come to court to contest the charge which is on the indictment and they may be disadvantaged if they find that they have to meet an allegation that they have committed another offence. Judges must protect accused person in such circumstances – R. v. Lillis 1972 2 All E. R. 1209 where the issue was whether on a charge of burglary the accused could be convicted of theft outside the building.

Unless there is some prejudice caused or an accused disadvantaged in any way in the conduct of his trial, the conviction for minor offence would be upheld.

Robbery with violence involves taking away a person’s property without his consent by intimidating a person by using force. The two elements of robbery with violence are theft and assault. So a person charged with Robbery with Violence can either be convicted for larceny if no force or intimidation is proved or assault if no property is taken as in Pio Nawaqabuli v. Reginam 23 FLR 165.

Section 181 of the Criminal Procedure Code is a further enabling section which provides that when a person is charged with stealing and facts are proved that he received the item knowing it to be stolen he may be convicted for receiving stolen property.

The appellant had cross-examined the prosecution witness PW5 FULORI BULI at length about circumstances in which he came to receive the money. He was not disadvantaged in any way. No prejudice was caused to the appellant by the learned Magistrate convicting him of receiving stolen property.

In Hari Prasad and Bhawar Singh v. Reginam 1981 27 FLR 80 the Fiji Court of Appeal discussed Section 169(2) then Section 163(2) of CPC albeit briefly and concluded that –

"Section 163(2) makes it clear that there is no necessity to file an alternative charge alleging some factor which does not apply to the original charge if the facts proved definitely establish that some lesser offence has been committed."

SENTENCE:

Next I come to sentence. The co-accused who was convicted for robbery with violence was sentenced to five years imprisonment. The appellant was convicted for a lesser offence as found by the learned Magistrate. However in his sentencing remarks he said "I was thinking of a five years prison sentence" which is same length of sentence for the co-accused who was convicted for a more serious offence. The starting point therefore cannot be sustained. At the same time the learned Magistrate has given a very generous discount of two years for simple reason that the appellant wished to raise his family. As the starting point cannot be sustained, I consider some adjustment in length of sentence is inevitable. The accused’s sentence is reduced to two and half years.

{Jiten Singh}
JUDGE

AT SUVA
10TH JULY 2002