| Fiji Islands - Rokotuiwai v The State - Pacific Law Materials |
IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF FIJI
CRIMINAL APPEAL NO. AAU0038 of 1998S
(High Court Criminal Appeal No. HAC 0009 of 1995/S)
BETWEEN:
:
WAISALE ROKOTUIWAI
Appellant
AND:
THE STATE
Respondent
Coram: The Hon. Sir Moti Moti Tikaram, President
The Rt. Hon. Sir Maurice Casey, Justice of Appeal
The Hon. Justice Kenneth R. Handley, Justice of Appeal
Hearing: Tuesday, 10 Au1999, Suva
Date of Judg Judgment: Friday, 13 August 1999
Counsel: Dr. J. Cameron for the Appellant
Ms. R. Olutimayin and Ms A. Prasad for the Respondent
JUDGMENT OF THE COURT
The appellant was charged with the murder of Manasa Lewatoro at Bau Road Nausori on 16 May 1995 contrary to s.199 of the Penal Code. He stood trial before Pathik J. and assessors on 4 November 1996 and on 27 November the assessors were discharged before verdict
and a re-trial was ordered. On 2 November 1998 the re-trial commenced before Sadal J. and assessors. The appellant pleaded not guilty
to the charge of murder but guilty to grievous harm contrary to s.227 of the Penal Code. The Prosecution did not accept this plea of guilty and the trial commenced. After two witnesses had given evidence the prosecution
was given leave to amend the information to charge grievous harm.
The appellant who was represented by experienced counsel objected to the amendment, but when leave to amend was granted and the amended
information was filed he pleaded guilty. An agreed summary of facts was then tendered. On 6 November the appellant was convicted
as charged and sentenced to 18 months imprisonment. The Judge took into account the period of 18 months pre-trial custody the appellant
had already served.
The appellant has appealed against his sentence pursuant to leave granted by the President on 8 December. The amended grounds of appeal
challenged the amendment to the information and the severity of the sentence.
The first point taken by Dr. Cameron, for the appellant, was that in the circumstances of this case there was no power under the Criminal
Procedure Code (the Code) to amend the information in the manner permitted by the Judge. A power of amendment is conferred by s.274
(2) of the Code for the purpose of curing defects in the information but it was common ground that this power did not authorise the
amendment. Section 214 of the Code which conferred a wider power of amendment only applies to a trial in the Magistrates’ Court.
It seems therefore that there is no clear authority in the Code for amending an information when the Director wishes to substitute
a lesser charge. However the practice of the High Court is to allow such amendments. State counsel referred us to The State v. Qoli (11/8/97 unreported), a decision of Pain J. where His Lordship said:
"This filing of a second information by the Director of Public Prosecutions is not unique. It is frequently done, usually as
in this case, alleging a lesser offence than the original charge. There is no express statutory authorisation for this procedure
but it is a common practice that has been regularly permitted in this Court. Furthermore in my view it is a procedure that is authorised
by the Common Law."
It is not strictly necessary to express a view on this question because the appellant, on the advice of his counsel, pleaded guilty
to the amended information, and in doing so waived any procedural irregularities that may have occurred. Moreover he had, when arraigned
on the charge of murder, pleaded guilty to grievous harm contrary to s.227. This was permitted by s.278 of the Code where the accused
"can lawfully be convicted on such information of some other offence not charged in such information". This is provided
for in s.169(2) of the Code which states:-
"When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the
minor offence although he was not charged with it."
On a trial of the original information charging murder this section authorised a conviction for causing grievous harm on a plea of
guilty or otherwise without any amendment to the information. This is clear on the language of the two sections, and the contrary
was not argued. A substantially similar provision appears as section 222 of the Indian Code of Criminal Procedure 1973 which corresponds
to s. 238 of the Indian Code of 1898. Mitra "Code of Criminal Procedure" 16th ed. 1987 states (pp 1374 - 5) that a minor
offence is not defined in the 1973 Code and should be understood in its ordinary sense as meaning an offence deserving a lesser degree
of punishment. However it must be cognate with the offence charged in the information. These conditions were satisfied in the present
case. It is clear therefore that when the prosecution changed its mind about pressing the charge of murder the appellant could have
pleaded guilty to grievous harm, and this plea could have been accepted without any amendment to the information.
In any event it seems that the Director of Public Prosecutions may validly file a second information based on the same committal proceedings
against the accused. Section 248 (1) of the Code provides that "after receipt of the authenticated copy of the depositions"
of the committal proceedings the Director may form the opinion that the case should be tried upon information in the High Court,
and if so the information shall be drawn up, signed and filed in the Court. Subsection (2) provides:-
There is nothing to indicate that this power once exercised, in relation to given committal proceedings, must be treated as exhausted.
There is therefore nothing to exclude the application of s.35 of the Interpretation Act (cap 7) which provides:-
