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Sami v State [1999] FJLawRp 22; [1999] 45 FLR 70 (22 March 1999)

[1999] 45 FLR 70

HIGH COURT OF FIJI ISLANDS


RAM SAMI


v


THE STATE


[HIGH COURT, 1999 (Fatiaki J) 22 March]


Appellate Jurisdiction


Crime: procedure- amended charge- whether to be put to accused- statement of offence- whether subsection or paragraph of Section charged must be referred to- Criminal Procedure Code (Cap 21) Sections(a) (ii), ii), 122 (f) and 214 (a).


The Appellant argued that the Statementffence did not fully particarticularise the section charged and that the wording of the charge did not precisely follow the Section. The High Court dismissed the appeal and HELD: (i) that although desirable it was not necessary to specify the subsection or paragraph of a section in the statement of offence and (ii) providing the particulars of the offence are readily understood it is not necessary precisely to follow the wording of the charging section.

Case cited:
&#16>

Sucha Singh v. R 14 F.L.R. 222
;ppeal against conviction entered in the Magistratstrates’ Court.

A. S>A. SenMs. A. Driu for the Responden
;
Fatiaki J:

On the 30th of March 1998 the appellant was cd with an offence of Criminal Trespass in which he is allegalleged to have ‘by night entered the (Complainant’s) compound withawfulse’.&#16> He pleade guilty and afnd afterafter a trial in which the prosecution called four witnesses including the complainant and the appellant gave sworn evidence, the trial magistrate convicted the appellant and sentenced him to 6 months imprisonment suspended for 12 months.

The appellant now as agls against his conviction on the following three grounds:

(a) the Statement ff Offence ance and the Particulars of Offence do not disclose any offe/p>

(b)&#1b)&  that both the Stat oentffe Offence and the Particulars of Offence do not comply with the requirements ofion 122 of the Criminal Pral Procedure Code; and

(c) ـ The find findings of the lthe learned Magistrate are wholly contrary to the evidence tendered and cannot be supported b weig the nce.

As to ground (a) thellapellant’s counsel statestates in h in his shis short written submission:

&;Where the allegatlegation is that the accused has committed an offence under a statute then that statute must be quoted otherwie charge is bad.’

ater counsel writes: ‘Obvi;Obviously anly any charge under Section 197 siiter would be bad in d in law.’

I cannot agree.
Criminal Procedure Code Codee (Cap.21) appears to be, tte, tt is ly wrong. The Sece Section tion merely requires, in the Statement of Offence, ‘a reference to the Section of the enactment creathe offence’ which in this case, the charge plainly dnly did in its original form.

Ther>Then couhighlightsights that the manual alteration of the original charge by the insertion of the relevant paragraph ‘(2)’ into the original Statement of Offence amounts to a material alten or amendment of the chargcharge and the amended charge should have been put to the accused and since it was not, therefore, the conviction cannot stand. No authority has been referred to in counsel’s submission nor was the Court’s attention expressly drawn to the provisions of Section 214 proviso (a) of the Criminal Procedure Code (Cap.s it should have been.been.

Be that as it may I have considered the Section anpectfully agree with the majority view expressed by the Fije Fiji Court of Appeal in Sucha Singh v. R 14 F.L.R. 222 whereack J.A. said at p.232p.232

#8220;Section 204, subs subsection (1)(a) [now Seow Section 214(a)] makes it clear that the obligation on the Court to&#160&#160 the accused person to plead to the altered chargcharge arises only `where a charge is alte altered as aforesaid’. That is to say , ... altered by way of amendment ... when `it appears to the Court that the charge is defective either in substance or in form’.”

ater in rejecting an aran argument not dissimilar to that put before me by appellant’s counsel, his lordship said at p.233:

‘... the obligation on the Court to call upon the accused person to plead to the altered charge arises only in the case of an amendment when it appearppears to the Court that the original charge fective.’
In this appeaing eing earlier held that the charge was not defective by the failure to include the ant paph in the Statemtatement oent of Offence, I find that there is no merit at all in counsel’s submission as to the so-called amendment of the charge which could have been just as easily left out. In any event there can not have been the slightest prejudice caused to the appellant by the amendment, since his defence to the charge was a blanket denial. In the appellant’s own words: ‘This incident never took place.’

As tond (b) Counsel wril writes:

“Particulars here state entered `the compound’ of Mohammed Hassan: There is no offence of entering `the compound’ under the Secti8221;#160;
In otherother words because the word ‘compound’ does not appear in then the Section creating the offence, therefore there can be no offence of ‘entering the compound’. Again I cannot agree.

Section 122(a)(iii) of the Criminal Procedure Code merelyires ‘partis ofis of such offence (to be) set out in ordinary language, in which the use of technical termsterms shall not be necessary’.

&#82>‘... it shall be sufficient to describe any place ... which it is nary to refer to in any charge in ordinary language in such a manner as to indicate with reah reasonable clearness the place ... refero.’

In m>In my opithe use ouse of the ordinary English word ‘compound’ is less technical and foreign, and more readily understood in this country, than the phrase ‘land adjacent to or within the curtilage of (the complainant’s dwelling house)’.

There is not the slightest merit in this submission which I reject in limine.I
I turn finally to ground (c) which in effect complains that the judgment is against the weight of the evidence.<160;< has been said thid that in order to succeed upon such a ground the appellant must clearly arly demonstrate that there was no evidence on which the trial magistrate could have reached the conclusion which he did reach if he had properly directed himself.

In this appeal there has been no suggestion that the trial magistrate misdirected himself in law, only that he failed to properly consider the inconsistencies in the prosecution’s evidence as to the appellant’s movements on the night in question after being disturbed.

The trial magistrate’s judgment is a short one but that was to be expected given that there was only one real issue before him namely, the identity of the trespasser. He was also plainly aware of the presence o216;inconsistencies in the the prosecution evidence but they are minor and do not affect the issue to be decided ... (and) ... are to be expected (where) ... witnesses are asked to recall every detail of something that took place nearly three years ago in the middle of the night ...’

Quite plainly this cepe depended almost entirely on the view the trial magistrate took as to the evidence of the complainant on the one hand and the accused on the other and is based in large measure upon his assnt of their respective cred credibility.

In such a case pellate late court will not interfere with the magistrate’s findings based on an assessment of the credibility of witnesses unless convincing and compelling reasons are shown which wouldify an appellate court diff differing from such findings.

In the result the a is l is dismissed.

(Appeal dismissed.)


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