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Basa v State [2007] FJHC 48; HAA18.2007 (6 August 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA 18 OF 2007

BETWEEN:

SAKIUSA BASA
Appellant

AND:

THE STATE
Respondent

Counsel: Appellant – In Person
Ms. P. Madanavosa - for Respondent/State

Date of Hearing: Friday 27th July 2007
Date of Decision: Monday 6th August 2007

DECISION

Introduction

[1] The accused was charged with one count of criminal intimidation contrary to section 30(a) of the Penal Code Cap 17. After a defended trial he was convicted and sentenced on 18th December 2006 to an 8 month consecutive term of imprisonment. He appeals against both conviction and sentence.

The Appeal

[2] The appellant presented two very helpful and well prepared written submissions dated 29th March 2007 and 13th of April 2007. In these he detailed his case in respect of both his conviction and sentence appeal. It is convenient to dispose of this appeal by reference to his significant submissions.

Conviction Appeal

[3] The appellant primarily relied on his view that the charge was laid outside the time limitation period. That submission is wrong in law. The maximum available penalty for criminal intimidation is 2 years imprisonment. Accordingly apart from the constitutional and common law restraints for abuse of process by delay there is no time limit for the laying of a charge under Section 30(a) of the Penal Code.

[4] The appellant then submitted that while the charge named its victim as Esala Matou in fact the central evidence about presentation of a screw driver mostly came from another constable Viliame Kuruleba. He inferred the charge was therefore not proved.

[5] In that regard the appellant had unfortunately overlooked his own cross-examination of the victim detailed at page 5 of the record where constable Matou said: "You threatened me with a screw driver. He was holding and wielding a screw driver at us. That is a threat to me. You are a violent prisoner. I knew accused to be an escaped prisoner. He was holding a screw driver. He was waiving the screw driver around. He wanted to strike us with it. There was a lot of shouting between the police and the accused. I felt threatened by the accused’s behaviour. You waived a screw driver at us."

[6] In my view that is clear evidence from the complainant that he was confronted by the appellant in an intimidating manner.

[7] Accordingly, I am unable to uphold that ground of appeal.

[8] Based on this same ground the appellant submitted there was no evidence to confirm any criminal intent associated with the charge.

[9] I am unable to accept that submission from him. There is ample evidence from the passage to which I have referred in paragraph [5] that the appellant had the necessary intent to intimidate or frighten the complainant.

[10] The appellant further submits that an amendment of the proceedings was wrong and an incorrect procedure was adopted. The record does not support that submission. This ground is not made out.

[11] The appellant also submits that the learned Magistrate pre-judged him by saying in his credibility finding: "how can I hold your evidence credible when you are already breaking the law by escaping from prison".

[12] That was not a pre-judgment. It formed part of the body of the judgment itself and in particular that passage where the learned Magistrate was analyzing the appellant’s credibility.

[13] It was quite appropriate for the learned Magistrate in my view to take into account the circumstances of these events where the appellant had escaped from prison.

[14] I infer that the learned Magistrate was accordingly more impressed by the evidence of the police officers than the evidence of a person on the run who may have been prepared to protect his unlawful liberty by any means at his disposal. I reject this ground of appeal.

[15] Finally the appellant submits that he was not given an opportunity to make a no case submission.

[16] The record at page 5 notes that the court determined on the basis of PW1, PW2 and PW3 that there was a prima facie case against the accused before providing him with a s211 warning. Thereafter the accused chose to give sworn evidence which was disbelieved by the learned Magistrate. That ground cannot succeed.

[17] In an unassailable finding the learned Magistrate preferred the evidence of the police officers finding them to be credible as distinct from the appellant accused who he found unbelievable. The judgment is well reasoned and cannot be criticized. I dismiss the conviction appeal.

Appeal against sentence

[18] The appeal against sentence was poorly supported. A separate sentence of 18 months imprisonment for criminal intimidation in these circumstances is unremarkable and certainly could not be characterized as being manifestly excessive. The sentence appeal is dismissed.

Conclusion

[19] The appeals against conviction and sentence are dismissed.

Gerard Winter
JUDGE

At Suva
Monday 6th August 2007

Solicitors

Appellant – In Person
Office of the Director of Public Prosecutions, Suva – for the State