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Nagera v State [2001] FJLawRp 86; [2001] 2 FLR 352 (5 October 2001)

LIVAI NAGERA v STATE

High Court Criminal Appeal Jurisdiction
28 September, 5 October, 2001 HAA056/01S

Housebreaking entering and larceny – appeal against conviction and sentence –whether juvenile at the time of trial - sufficiency of evidence - whether adequate time to prepare for trial - appeal against sentence - found outdoors without a permit - validity of Emergency Decree 2000 and charge under the Decree – doctrine of necessity – whether reasonably justifiable in free and democratic society – harsh and excessive - activation of sentence - age of the Appellant – first offender – Penal Code ss41 and 300(a); Emergency Decree 2000 (Decree 4/00) ss7(3), 25; Public Safety Act; Juveniles Act; High Court Act s22; 1997 Constitution ss34(3), (7)(a)

The Appellant was convicted and sentenced to 3½ years imprisonment for housebreaking entering and larceny, with an additional 3 months imprisonment activated in respect of a binding over to keep the peace in respect of an offence under the Emergency Decree 2000 bringing the total term to 3 years and 9 months. At the time the offence was committed the Appellant was 17 years old. The Appellant appealed against his conviction and sentence for housebreaking entering and larceny and against his sentence for 'found outdoors without a permit'. In respect of the appeal against conviction for housebreaking entering and larceny, the Court considered whether the Appellant was entitled to special protective measures of the Juveniles Act, whether there was an obligation to provide a closed court hearing or to call the Appellant's parents or a welfare officer, the sufficiency of the evidence, the voluntariness of the caution statement and whether the Appellant had adequate time to prepare for trial. In respect of the activation of the 3 month sentence imposed in default of payment of a $300 fine for a binding over order for the charge of 'Found outdoors without a written permit', the Court considered the validity of the charge and the Emergency Decree 2000, whether the doctrine of necessity applied and whether the Decree was reasonably justifiable in a free and democratic society.

Held–(1) In the absence of an enquiry as to the Appellant's means to pay the $300 fine, it was inappropriate for the Magistrate to impose a three month term consecutive to the 3½ year sentence for the housebreaking offence.

(2) In respect of the 3½ year imprisonment for the housebreaking offence, the sentence was harsh and excessive. Although the length of the sentence was within the tariff for similar offences, the fact that the Appellant was a first offender and was only 17 years old, the sentence was both harsh and excessive in the circumstances.
Mitchell v DPP (1986) LRC (Const) 35, 88 appl.

The Appellant's 3½ years sentence of imprisonment is quashed and substituted with a 12 months term of imprisonment. No activation of the breach of binding over.

Other cases referred to in Judgment
Cons Ah Yick v Lehmer [1905] HCA 22; (1905) 2 CLR 593 at 601
Cons Grahame Bruce Southwick v State (1996) AAU0020/96 14 February 1996
Foll Jokapeci Koroi & Others v Commissioner of Inland Revenue (2001) HBC 179/01L 24 August 2001
Cons R v Whitehouse [1977] EWCA Crim 2; (1977) 1 QB 868
Cons R v Power (1978) 66 Cr. App. R. 15
Foll Republic of Fiji v Chandrika Prasad (No. 2) (2001) ABU 0078/00S 1 March 2001; [2001] 2 LRC 743
Foll State v The Ivory Trumpet Publishing Co. (1984) 5 NCLR 736
Foll State v Makwanyane & Anor (1995) 6 BCLR 665
Cons Tevita Taimalawai v State [2001] HAA 0021/01B Judgment 7 August 2001

Appellant in person
Buphendra Solanki for the Respondent

5 October 2001

JUDGMENT

Shameem, J
The Appellant appeals against his conviction and sentences delivered on 11th May 2001, of 3½ years imprisonment for Housebreaking Entering and Larceny, and an additional 3 months imprisonment activated in respect of a binding over to keep the peace in respect of an offence under the Emergency Decree 2000.

The charge of Housebreaking, read as follows:

Statement of Offence

HOUSE BREAKING ENTERING AND LARCENY: Contrary to Section 300(a) of the Penal Code Act 17.

Particulars of Offence

FILIPE DELANA and EPINERI LIVAI NAGERA, on the 11th day of January 2001 at Suva in the Central Division, broke and entered the house of SARVADA NAND SADAL s/o SADAL and stole from therein, assorted jewelleries valued $6,535.00, radio valued $2,115.00, shoes valued $95.00, assorted wrist watches valued $395.00, perfumes valued $255.00, cuff links valued $272.00, torch valued $8.50, cash $195.00 to the total value of $9,870.50 the properties of SARVADA NAND SADAL s/o SADAL.

The charge under the Emergency Decree read as follows:

Statement of Offence

FOUND OUT OF DOORS WITHOUT A WRITTEN PERMIT: Contrary to Section 7(3) and 25 of the Emergency Decree No. 4 of 2000 and of the Public Safety Act 19.

Particulars of Offence

ILAITIA MAVOA and LIVAI NAGERA, on the 17th day of June, 2000 at Nasinu in the Central Division, were found out of doors at Bailey Bridge, Laucala Beach Estate without a written permit between specified hours of 8.00pm on 17/6/00 and 5.00am on 18/6/00.

The Appellant now appeals against his conviction and the total sentence of 3 years and 9 months imprisonment, saying that it is harsh and excessive.

At the outset, I informed State Counsel that I could not consider the appeal against the sentences unless I was satisfied of the validity of the Emergency Decree 2000 and therefore of the validity of the charge under the Decree. To that end, State Counsel sought leave to file the affidavit of Acting Superintendent Waisea Tabakau purporting to show that the Emergency Decree had been necessary to help to contain a serious situation in Fiji, from the 19th of May 2000. Leave was granted to file the affidavit.

Grounds of Appeal
The grounds of appeal filed by the Appellant may be summarised as follows:

1. Inadequate time to prepare for the defence including failure to disclose the prosecution case;
   
2. Insufficiency of evidence;
   
3. He was a juvenile at the time of the trial, and his parents and welfare officer were not present;
   
4. The sentence was harsh and excessive for a first offender.
   

The State opposed the appeal saying that the conviction was correct in law, that the sentence was not excessive and that the conviction and sentence under the Emergency Decree justified under the doctrine of necessity.

The trial
At the time the offence was committed the Appellant was already 17 years old, and no longer entitled to the special protective measures of the Juveniles Act. Further during his interview with the police, he was asked if he wanted to have his relatives present during his interview but he declined. Indeed in court he told me that he had no relatives who visited him in prison, or who showed interest in him while he was remanded pending trial.

Thus, in law, there was no obligation to provide a closed court hearing for the Appellant, nor did the learned Magistrate need to call for his parents and a welfare officer. If he had been under the age of 17 at the time of trial, and had been accorded special protection it is unlikely that his parents would in any event have attended.

As to sufficiency of evidence, the Appellant and his accomplice were identified by Special Constable Tavola of the Muanikau Police Post near the crime scene with a radio and a green bag. The bag contained items stolen in the break-in at Mr Justice Sadal's house. They were apprehended three weeks later because the Constable was unable to catch them at the time. Under caution, the Appellant said that on 11th January 2001, he was sleeping in a cave in Toorak with the accomplice, when they decided to go to Muanikau. His friend broke into the house while he stood outside watching. They then entered the house and took the items in the charge. He admitted committing the offence.

In her judgment the learned Magistrate accepted the evidence of the Special Constable and accepted the voluntariness of the caution statement. She found the Appellant guilty.

There was ample evidence on which she could make this finding and she did not err in convicting the Appellant.

The record also shows that the Appellant applied for legal aid, and that legal aid was only provided for a bail application on 26th March 2001. Although bail was refused on the ground that the Appellant had re-offended during his bound over period, the Appellant had from 22nd January 2001 to 20th April 2001 to prepare for the trial. Indeed a perusal of the record shows that he did a competent job in defending himself, and was able to call a witness in his defence. In the circumstances I consider that the trial was conducted fairly and that the conviction was correct in law. The appeal against conviction is dismissed.

Sentence
The sentence included the activation of a 3 month period of imprisonment imposed in default of a binding over order imposed by the same Magistrate on 11th May 2001. The Appellant did not appeal against the conviction in respect of this offence, but I consider it necessary and just to consider the validity of the charge. This is particularly so because the Appellant is unrepresented.

State Counsel urged me to ignore the question of the validity of the charge asking me to confine my judgment to the question of sentence only. I am somewhat surprised at this submission. It is encumbant upon every appellate court to consider all issues relevant to the appeal whether or not they were raised as a ground of appeal. Thus where a charge was laid which was not known in law or was clearly defective, the sentence is a nullity, and the court can so declare even where the appeal was against sentence only. Thus in Regina v Whitehouse [1977] EWCA Crim 2; (1977) 1 QB 868, the Court of Appeal considered the validity of the charges on an appeal against sentence and found that the offences on the indictment were unknown to the law. Recently in Tevita Taimalawai v The State Criminal Appeal No.0021 of 2001, Fatiaki J quashed a conviction for "House Breaking & Entering with Intent to Commit a Felony", on an appeal against sentence, finding that the charge was not known in law.

As Griffith CJ said in Ah Yick v Lehmer [1905] HCA 22; (1905) 2 CLR 593 at 601:

"When there is a general appeal from an inferior Court to another Court, the Court of Appeal can entertain any matter, however arising, which shows that the decision of the Court appealed from is erroneous. The error may consist in a wrong determination of a matter properly before the court for its decision, or it may consist in an assertion by that Court of a jurisdiction which it does not suggest, or it may consist in a refusal of the Court to exercise a jurisdiction which it possesses. In all these cases the Court of Appeal can exercise its appellate jurisdiction in order to set the error right."

That passage was cited with approval by the Fiji Court of Appeal in Grahame Bruce Southwich v The State Crim. App. No. AAU0020 of 1996. The Court of Appeal said that the above passage was a correct statement of the common law, which is applicable in Fiji by virtue of section 22 of the High Court Act. That section provides that the common law of England prior to the enactment of the Act, is applicable in Fiji.

In the circumstances not only do I have the jurisdiction to consider the validity of the charge under the Emergency Decree, but I consider it just to do so. To turn a blind eye to the possible invalidity of the charge in an appeal against sentence is neither just nor proper and I reject the State's submissions on this point.

The question therefore is whether the charge of "Found out of doors without a written permit" is valid, and whether the Emergency Decree 2000 is a valid law. State Counsel submits, and I agree, that the reference to the Public Safety Act in the Statement of Offence was an error but not one which invalidated the charge. The particulars of the offence were clearly worded and there was no prejudice or injustice to the Appellant as a result of the error (R v Power (1978) 66 Cr. App. R. 15).

The State conceded at the outset that there was no constitutional basis for the Emergency Decree 2000. Under the Constitution, there is no power given to the military to pass any laws, emergency or otherwise. State Counsel submitted however, that the Decree was lawful under the doctrine of necessity as an extra-constitutional measure taken by the army commander to maintain public security. He relied on the affidavit of Acting Superintendent Waisea Tabakau. The affidavit, sworn on 27th September 2001, states that there was an armed invasion of Parliament on 19th May 2000, and that members of Parliament were taken hostage. It said that there was rioting in the streets of Suva and rebels moving in and out of Parliament. It states that on the 27th of May 2000, two soldiers and a British journalist were shot and wounded by rebels, and that on the next day, armed rebels raided the Fiji Television Office causing extensive damage. It said that as a result of rebel activity a security guard and a police constable died and that on the 30th of May 2000 the President of Fiji and his family were moved to a safe house for their own security.

The affidavit deposes as to a deteriorating law and order situation accompanied by the take-over of Army Barracks and Police Stations around the country, and the continued hostage situation in Parliament. On 29th May 2000 Commodore Bainimarama "assumed all executive authority and established Martial Law." Finally, the affidavit states that on 2nd June 2000, the Commodore promulgated the Emergency Decree 2000.

The Decree itself commences with the following statement:

"Whereas given the escalating civil unrest and political uncertainty in the country with its attendant grave risks to life and property, it is imperative that the emergency situation continues in order to guarantee the safety of the people of Fiji and to maintain law and order.

NOW THEREFORE, in exercise of the powers conferred upon me as the Commander and the Head of the Interim Military Government of Fiji, I proclaim the following:"

The Decree allowed for the prohibit of a meeting, procession or assembly, by the district officer, the closing of roads, the control of the movement of persons thought to be involved in acts likely to cause a breach of the peace, the control of arms, ammunition and explosives, and provided for the use of reasonable force by a member of the armed forces to prevent the imminent threat to life or property. Section 7 of the Decree provided:

"(1) The Commissioner of Police, Officer Commanding, the officer in charge of a Police District may by order in the Gazette require every person within a specified area to remain within doors between such hours as may be specified in the order unless in possession of a written permit in that behalf by a police officer or the officer in charge of a Police District or a district officer or a military officer to issue such permits."

Section 7(3) provides:

"Any person who is out of doors without a permit in writing within an area declared under this section and between such hours as have been specified to remain indoors commits an offence."

It is under section 7(3) that the Appellant was convicted.

The Court of Appeal in The Republic of Fiji v Chandrika Prasad Civil Appeal No. ABU0078/2000S at p.27 said this of the doctrine of necessity:

"The doctrine of necessity enables those in de facto control, such as the military, to respond to and deal with a sudden and stark crisis in circumstances which had not been provided for in the written Constitution or where the emergency powers machinery in that Constitution was inadequate for the occasion. The extra-constitutional action authorised by the doctrine is essentially of a temporary character and it ceases to apply once the crisis has passed."

At first instance, Gates J said:

"It is obvious therefore that the doctrine of necessity could come to aid Commodore Bainimarama in resolving the hostage crisis, imposing curfews, maintaining road blocks and ensuing law and order on the streets. Once the hostage crisis was resolved and all other law and order matters contained, if not entirely eradicated, the Constitution previously temporarily on ice or suspended, would re-emerge as the supreme law demanding his support and that of the military to uphold it against any other usurpers."

The Court of Appeal in Chandrika Prasad (supra) at p.26 cited with approval the following passage from the judgment of Haynes P in Mitchell v DPP (1986) LRC (Const) 35, 88:

"I would lay down the requisite conditions to be that:

i. an imperative necessity must arise because of the existence of exceptional circumstances not provided for in the Constitution, for immediate action to be taken to protect or preserve some vital function to the State;

ii. there must be no other course of action reasonably available;

iii. any such action must be reasonably necessary in the interest of peace, order, and good government; but it must not do more than is necessary or legislate beyond that;

iv. it must not impair the just rights of citizens under the Constitution;

v. it must not be one the sole effect and intention of which is to consolidate or strengthen the revolution as such."

The burden of proving "necessity" is on the party claiming the validity of the unconstitutional action. As Haynes P said at p.88:

"It is for this court to pronounce on the validity (if so) of any unconstitutional action on the basis of necessity, after determining as questions of fact, whether or not the above conditions exist. But it is for the party requiring the Court to do so to ensure that proof of this is on the record. Such validation will not be a once-for-all validation, so to speak, it will be a temporary one, being effective only during the existence of the necessity."

More recently, Gates J held in Jokapeci Koroi & Others v The Commissioner of Inland Revenue Civil Action No. HBC179/2001L, that a decree imposing Value Added Tax on food items could not be justified under the doctrine of necessity. He said at page 25:

"There is a danger in allowing the doctrine of necessity to degenerate into a doctrine of convenience, a doctrine to avoid awkward or embarrassing situations. That is not the doctrine of necessity."

Applying the principles laid down in Mitchell (supra), I am satisfied on the affidavit of ASP Tabakau that the hostage-taking of Parliamentarians on May 19th created an exceptional situation which was not provided for in the Constitution. I also accept that there was no other course of action available than to allow for the security measures promulgated in the Emergency Decree. I am also satisfied that the promulgation of the Emergency Decree was reasonably necessary in the interests of peace, order and good government and that it does not make provision for acts that go beyond national security measures.

As to the condition that the Decree must not impair the just rights of citizens, there can be no doubt that it severely limits the rights of citizens to freely move around Fiji. However the freedom of movement provision under section 34(3) of the Constitution is limited by section 34(7) which provides:

"A law may limit or may authorise the limitation of, the right of a person to freedom of movement:

(a) in the interests of national security, public safety, public order, public morality or public health."

Section 34(7)(a) is subject to a further restriction, that a law may limit the right "but only to the extent that the limitation is reasonable and justifiable in a free and democratic society." The Nigerian High Court in State v The Ivory Trumpet Publishing Co. (1984) 5 NCLR 736, 750, said (per Araka CJ):

"For a restriction ... to be reasonably justifiable in a democratic society the restriction itself must be reasonable. But it is not all restrictions that are reasonable that must of necessity be justifiable in a democratic society."

The Constitutional Court of South Africa said in State v Makwanyane & Anor. (1995) 6 BCLR 665, that what is required of the courts, is a balancing of the benefits to a democratic society resulting from the restriction with the detriment caused to a democratic society by the specific restriction. At p.104 the Court said (per Chaskalson P):

"In the balancing process, relevant considerations will include the nature of the right that is limited, and its importance to an open and democratic society based on freedom and equality; the purpose for which the right is limited and the importance of that purpose to such a society; the extent of the limitation, its efficacy, and particularly where the limitation has to be necessary, whether the desired ends could reasonably be achieved through other means less damaging to the right in question."

In respect of the Emergency Decree, it is clear that the extraordinary measures (including the involvement of the armed forces in maintaining law and order) were passed to meet an extraordinary situation. Indeed the measures were introduced to deal with persons responsible for the removal of democracy, and those who might take advantage of the situation which arises when democratic institutions are destroyed, or fail to operate. The freedom of movement provision in the Constitution is undoubtedly important in a free and democratic society, but even more important is the protection of democracy itself. Further, the emergency powers procedures laid down in the Constitution, were frustrated because of the inability of the Cabinet to function. In these circumstances insofar as the Emergency Decree was in breach of Section 34 of the Constitution, it was reasonably justifiable in a free and democratic society when it was passed by Commodore Bainimarama on 2nd June 2000. Whether it continues to be justifiable, is a matter which the State must prove to the satisfaction of the courts, on each occasion it seeks to rely upon its provisions.

The last condition is that the Decree must not have the effect and intention of consolidating or strengthening the revolution. I am satisfied on the affidavit evidence before me, that the intention was solely to restore law and order in Fiji.

The Emergency Decree, when promulgated, therefore passes the Mitchell test. Further, because the Appellant was found to be in breach of the Decree when the hostage crisis was continuing, I am satisfied that the doctrine of necessity applied at the time he committed the offence. The charge is therefore valid.

That is, of course, not to say that the Emergency Decree continues to be valid under the doctrine of necessity.

State Counsel conceded that once the hostages were released, and the arms returned to the Army, the Emergency Decree was no longer necessary. Although this issue calls for full argument when a party seeks to rely upon the Decree after the release of the hostages, I doubt that the principles in Mitchell would be satisfied in respect of the Emergency Decree once the hostage crisis was resolved, and the rebels detained by the police.

Turning therefore to sentence, the learned Magistrate was right to bind over the Appellant for being in breach of the curfew on the 11th of June 2000, under section 41 of the Penal Code. Section 41 allows the Magistrates' Court to bind over a person to keep the peace and to be of good behaviour for a period not exceeding two years. The Appellant was a first offender, and this sentence was well suited to both offence and offender. However, the condition imposed was that he should pay $300 if he failed to keep the peace. Such a recognizance would be meaningless for an unemployed youth with no family to support him. His inability to pay the $300 when and if he re-offended, should have been predictable. And, in ordering him to be imprisoned for failure to pay the $300 the learned Magistrate should have enquired as to the Appellant's means and as to his ability to pay. In the absence of such an enquiry the imposition of the three month term consecutive to the 3½ years is inappropriate and I quash it accordingly.

I now turn to the 3½ years imprisonment for the House-breaking offence. The length imposed was certainly within the tariff for similar offences, and the Appellant was entitled to no discount for a guilty plea. However, apart from the breach of curfew offence, the Appellant was a first offender. Further, he was only 17 years old. In the circumstances the sentence imposed was both harsh and excessive. The fact that his was not the principal role in the offending should also have been taken into account.

In all the circumstances I consider a term of 12 months imprisonment to be an appropriate sentence. The Appellant's sentence is therefore quashed and substituted with a term of imprisonment for 12 months. There is no activation of the breach of binding over.

Appeal allowed.

Shayne Sorby