IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Crim. App. No: HAA0086 of 2005S

Between:

PETER COSTA
Appellant

And:

THE STATE
Respondent

Hearing: 2nd September 2005
Judgment: 16th September 2005

Counsel: Appellant in Person
Mr. D. Prasad for State

JUDGMENT

The Appellant appeals against conviction and sentence on the following charges:

First Count

Statement of Offence

LARCENY: Contrary to Sections 259(1) and 262(2) of the Penal Code Act 17.

Particulars of Offence

PETER COSTA, on the 1st day of March 2003 at Suva in the Central Division, stole a taxi meter valued at $700.00, the property of RAVINDRA KUMAR s/o Tula Ram.

Second Count

Statement of Offence

RESISTING ARREST BY A POLICE OFFICER IN THE DUE EXECUTION OF HIS DUTIES: Contrary to Section 247(b) of the Penal Code Act 17.

Particulars of Offence

PETER COSTA, on the 1st day of March, 2003 at Suva in the Central Division, after being lawfully arrested by Special Constable Number 888 APISAI NAKOSO, in the due execution of his duties, resisted the said arrest.

Third Count

Statement of Offence

ASSAULTING POLICE OFFICER IN THE DUE EXECUTION OF HIS DUTY: Contrary to Section 247(b) of the Penal Code Act 17.

Particulars of Offence

PETER COSTA, on the 1st day of March, 2003 at Suva in the Central Division, assaulted Special Constable Number 888 APISAI NAKOSO whilst in the due execution of his duty.

The case was first called on the 3rd of March 2003. There were numerous adjournments for undisclosed reasons until the 12th of May 2005, when the Appellant was discharged on Count 1. The prosecution proceeded to trial on the remaining two counts. The evidence was that on the 1st of March 2003, PC 3014 Apisai Naikoso was based at the Market Police Post. At some time after 3pm, he was standing on the driveway to the fish market when he saw the Appellant running from Village Six Cinemas towards Nabukalou Creek. Whilst running he gave something to a man standing near the fish market. The police officer was suspicious and questioned the man. The man said that it was a taxi meter and showed it to the police officer. He seized the taxi meter. The Appellant was heading towards Renwick Road. The police officer followed him, called out his name three times, and then tapped him. He questioned the Appellant about the taxi meter. The Appellant punched the officer and on further questioning pushed him. Two other police officers approached and they overpowered the Appellant together.

The police officer received injuries as a result of the Appellant’s assault. There was tenderness around the jaw and mouth consistent with blunt trauma.

PW2, Police Constable 2138 Filise was inside the Traffic Office at Central Police Station on the 1st of March 2003 when he was informed that there was a robbery at Renwick Road and that a taxi meter had been stolen. He went to the fish market and saw a few police officers trying to arrest the Appellant. He was resisting arrest and was drunk. He was then taken to the Central Police Station. Under cross-examination, the witness denied assaulting the Appellant.

PW3, PC 2642 Vishal interviewed the Appellant under caution. He said that he did not steal the taxi meter but that he was assaulted and harassed by a police officer. He denied resisting arrest and denied assaulting any police officer.

The Appellant gave sworn evidence, saying that he did resist arrest but that he did so because the police officer wanted to take items out of his pocket. He said he was assaulted by the police at the Central Police Station. Under cross-examination he admitted assaulting Police Constable Apisai.

The learned Magistrate delivered a very short judgment in which he discharged the Appellant on Count 1, dismissed the charge on Count 2 saying that he did so on the ground of duplicity, but convicted him on Count 3, of assaulting a police officer in the due execution of his duty.

The Appellant admitted 28 previous convictions and said that he was a married man with 3 children. He was sentenced to 9 months imprisonment to be served consecutive to the prison term he was then serving.

The Appellant appeals against conviction and sentence. His grounds are as follows:

Against Conviction

1.	That the learned Magistrate misdirected himself as to the ingredients of the offence on that an offence under section 246(b) of the Penal Code only applies to a Police Officer not a Special Constable as held in Fiji Court of Appeal case (Parshu Ram v Regina 29 FLR 65).

2.	That the learned Magistrate erred in law and in fact in holding that a Special Constable is a Police Officer.

3.	That the learned Magistrate erred in court in failing to properly assess the evidence and misdirected himself on the evidence presented by the accused that he was initially assaulted by the Special Constable and only retaliated in self defence.

4.	That the learned Magistrate erred in law and in fact in that he misdirected himself as to the standard of proof and that the prosecution failed to prove its case beyond all reasonable doubt.

5.	That the learned Magistrate erred in law and in fact in failing to properly consider the accused defence of self defence in light of the evidence.

6.	That the learned Magistrate erred in law and in fact in failing to properly consider the issue of corroboration given the only evidence available is that of the complaint and the accused.

7.	That the learned Magistrate erred in law and in fact in wrongly stopping the accused from completing his sworn testimony and ordering him not to call any further defence witness.

Appeal against sentence (alternative)

1.	That the sentence is harsh and excessive in the circumstances of the case and the most appropriate sentence should be in the range of one to three months given that the appellant was also beaten up by the Police and he only reacted to the unlawful assault by the Police.

2.	That the learned Magistrate should have ordered a concurrent sentence given that the appellant is already serving a prison term and a consecutive sentence makes the whole sentence disproportionate to the minor offence.

3.	That I seek the mercy of the court to order a non custodial sentence as the prisons are inhumane and degrading.

The State concedes the appeal on the first ground, saying that a Special Constable was not a police officer for the purposes of section 247(b) of the Penal Code. However, counsel submits that I should instead substitute a conviction for common assault.

In Parshu Ram v. Regina 29 FLR 65, the Fiji Court of Appeal said that for the purposes of section 247(b) of the Penal Code, a Special Constable was not a police officer. In that case, the appellant had assaulted a Special Constable. The Court said that because the Police Act dealt separately with the Special Constabulary, the definition of a “police officer” precluded Special Constables. The charge was therefore a nullity. If the charge is a nullity, then the proceedings are also a nullity and there can be no question of the substituting of a lesser charge. On the basis of the decision in Parshu Ram therefore this appeal must be allowed.

There is, strictly speaking, no need for me to canvass the other grounds of appeal. However, it is enough to say that if I had not allowed this appeal on Ground 1, I would have allowed it on the ground that there was no proper evaluation of the evidence in the judgment. Indeed there are no reasons given for the conviction in the judgment. The Appellant’s defence was self-defence and there is nothing on the record to show that it was considered at all.

On the ground that the charge on Count 3 was a nullity, the conviction and sentence are quashed. Because the reasons for the arrest are unclear, the original larceny charge having been withdrawn, I do not order a retrial.

This appeal is allowed.

Nazhat Shameem
JUDGE

At Suva
16th September 2005