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R v Vaega [2012] TVHC 12; Criminal Referral Case 2.12 (26 November 2012)

IN THE HIGH COURT OF TUVALU
Sitting at FunafutiCriminal Jurisdiction

HC. Crim. Referral case no. 2/12

IN Re SECTION 41 OF THE MAGISTRATES' COURTS ACT

IN THE MATTER OF
A REFERENCE FOR THE OPINION OF THE HIGH COURT

AND IN THE MATTER OF
A QUESTION OF LAW ARISING IN THE CASE.

BETWEEN:

REGINAM

AND

TUKAI VAEGA

BEFORE THE CHIEF JUSTICE

D Gorman for the Crown
I Isala for the defendant

Hearing: 14 November 2012
Opinion: 26 November 2012

Opinion of the Court

[1] In a trial of the above named defendant before the Senior Magistrate a question of law arose which the learned Senior Magistrate, having heard submissions, considered should be referred to this Court for its opinion.

[2] The defendant was charged with simple larceny, contrary to section 254(1) of the Penal Code. The question of law, although not in interrogatory form, was:

"Section 254(1) of the Penal Code provides:

"254 General Punishment of theft

Stealing for which no special punishment is provided under this Code or any other Act for the time being in force is simple larceny and a felony punishable with imprisonment for 5 years."

The court feels that section is not an offence section. It is a punishment section for larceny for which no punishment was provided under this Code or any other Act."

[3] Both counsel addressed the Court on the basis that this clearly creates the offence of simple larceny and that the defendant was properly charged. It is hard to ascertain quite where the court's difficulty arises. Many people have been convicted of simple larceny, stated in the information as contrary to section 254 (1) of the Penal Code and it has not been challenged before.

[4] It is, perhaps, careless drafting of the Penal Code to refer to 'theft' in the heading and 'stealing' in the section. A similar inconsistency is found in section 251 which carries the heading 'Definition of theft' whilst the definition itself which follows only uses the words 'steals' and 'stealing' rather than theft .

[5] The question for the Court appears to suggest that section 254 does not create the offence of simple larceny because it does not state that stealing is an offence. However, the interpretation section of the Penal Code defines 'offence' as an act, attempt or omission punishable by law. The section, in the other hand, makes the form of stealing described there a felony and the definition of "felony" in the Code states that it means an offence which is declared by law to be a felony.

[6] The Interpretation and General Provisions Act is consistent although placing it the other way round by defining "offence" as meaning, inter alia, a felony.

[7] I accept that the heading of the section refers only to punishment but I am satisfied that the meaning and intent of the section is clear in itself.

Opinion

[8] The opinion of the Court is that section 245(1) both creates the offence of simple larceny and prescribes the penalty so that any charge of simple larceny is properly stated as being contrary to section 254 (1) of the Penal Code.

Dated: 26th day of November 2012

___________________
Hon. Sir Gordon Ward
CHIEF JUSTICE