IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 42 OF 1993

Between:

THE STATE
Appellant

- and -

1. WAISALE VAKALOLOMA
2. BENIAMINO NAIVELI
3. ROMANU TIKOTIKOCA
Respondents

Mr. I. Wickramanayake for the State
Mr. J. Semisi for the Respondents

JUDGMENT

On the 9th of August 1988 Constable Adip Narayan Singh (as he then was) under the authority of a search warrant, seized 3 video decks and 2 television screens from a dwelling house at 25 Bakshi Street. A search list was issued for the items.

After the seizure, the items were taken to the Central Police Station (CPS) where they were left in the registry office adjacent to the office of the Divisional Crime Officer, Southern [DCO(S)]. The following day 2 of the items, a video deck and a television screen (together referred to as 'the exhibits'), were seen on a table in the office of the second accused who at the time held the position of DCO(S).

There is some evidence that whilst 'the exhibits' were in the second accused's office at the CPS they were used to view pornographic videos. How often? On whose authority? and for how long? is unclear but it appears that the exhibits were later taken by the 3rd accused who at the time was the Staff Officer of the then Commissioner of Police out of DCO(S)'s Office at CPS to Police Headquarters at Ratu Sukuna House where they remained for some indefinite period before being taken to the first accused's private residence at Nadera and from where they were eventually recovered on the 21st of June 1991 (i.e. Almost 3 years to the day the exhibits were first seized under a search warrant).

Seven months after the recovery of 'the exhibits' the 3 accused were jointly charged in the Suva Magistrate Court on 2 counts, the first, alleged that they stole the exhibits and the second alternative count, alleged an abuse of the authority vested in their respective offices.

On the 25th of September 1992 after a trial lasting 8 days and in which the prosecution called 11 witnesses, the learned trial Magistrate upheld a defence submission of "no case to answer" and acquitted all 3 accused on both charges.

The learned Director of Public Prosecutions now appeals against the learned trial Magistrate's ruling on the following 5 grounds: 

1.	That the trial was a mistrial, in that the Magistrate's approach and conduct of the case was so biased against the prosecution, that on an objective assessment, grave injustice occurred.

2.	The Trial Magistrate erred in law when he failed to make the proper legal considerations before arriving at his finding that there was no case to answer against all the accused persons in the alternative count of Abuse of Office, Section 111 Penal Code.

3.	The Trial Magistrate erred in law and in fact when he endeavoured to apply Mr. Justice Jesuratnam's ruling in State v. Beniamino Naiveli (Criminal Case No. 12 of 1992).

4.	The Trial Magistrate erred in law in finding that the absence of the words "arbitrary act prejudicial to the rights of another" in the indictment rendered the same defective and 'bad' in law.

5.	The Trial Magistrate erred in law and in fact when he endeavoured to apply the provisions of the Police Standing Order 313(18) and (27)."

At the hearing of the appeal learned counsel for the D.P.P. very properly abandoned the first ground of appeal. He also confined his submissions to the second count of Abuse of Office on which his complaints were that the trial Magistrate had totally misdirected himself on matters of law and secondly, that he had totally failed to have regard to the evidence led in the case.

I propose in this judgment to deal with this appeal in much the same order and manner in which it was argued before the Court i.e. without any specific reference to the grounds of appeal set out above.

At the outset I note that the 'structure' of the learned trial Magistrate's ruling of 23 typed pages is as follows - the first 2 pages set out the charges before the Court, then the next 5 pages are devoted to the law applicable to a consideration of a submission of 'no case to answer'; this is followed by 11 pages dealing with the first count of Larceny and the final 4 1/2 pages deal with the second alternative count of Abuse of Office.

It is convenient at this stage to set out the provision of Section 111 of the Penal Code (Cap.17) and the alternative count with which all 3 accused were jointly charged. The Section provides (so far as relevant):

"Any person who, being employed in the Public Service does or directs to be done in abuse of the authority of his office, an arbitrary act prejudicial to the rights of another is guilty of misdemeanour."

and the second alternative count which is based on the above Section reads: 

"Statement of Office

ABUSE OF OFFICE: Contrary to section 111 of the Penal Code, Cap. 17.

Particulars of Offence

WAISALE VAKALOLOMA, BENIAMINO NAIVELI and ROMANU TIKOTIKOCA between the 9th day of August 1988 and the 31st day of June 1991, being persons employed in the Public Service, appropriated a Panasonic Video Deck No. C8 KL01111 and a Phillips Television No. SV 008709 - 101264 valued at $1,680.00, such appropriation being an abuse of authority vested in their office, thus prejudicing the interest of Police Corporal 2 Adip Narayan Singh the Police Officer who seized the said Video Deck and Television pursuant to the authority of a Search Warrant."

It will be immediately obvious on a comparison of the Section and the offence charged that the 'Particulars of Offence', as laid, did not follow exactly the wording of the Section. In particular, there is no averment of an "arbitrary act" as would appear to be required by the Section.

The learned trial Magistrate in dealing with this "omission" said at p.21 of his ruling: 

"One of the defence submissions pertaining to the alternative count of abuse of office is that the count is defective because the words 'arbitrary act prejudicial to the rights of another' are missing. The charge says 'prejudicing the interest of Police Corporal 2 Adip Narayan Singh ...'. There is no allegation that it was an arbitrary act. Mr. Koya submitted that the act is not arbitrary and furthermore that the 'arbitrary act' should have been pleaded but was not and consequently the count is defective.

In State v. Beniamino Naiveli (supra) Justice Jesuratnam referred to the issue of 'arbitrary act' as one of the elements of Section 111. His Honour also in that case made it clear that if one of the four elements is absent, the defendant should be acquitted. If this reasoning of Justice Jesuratnam is applied to the present case, clearly the count is defective. Therefore I uphold Mr. Koya's submission that the charge pertaining to the alternative count of abuse of office is defective."

In this regard learned counsel for the D.P.P. referred to the provisions of Section 119 of the Criminal Procedure Code (Cap. 21)(CPC) and submitted that there is no legal requirement to adopt the precise wording of a statutory provision which establishes a criminal offence, so long as the charge contains (to adopt the wording of Section 119 of the CPC):

"a statement of the specific offence - with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged."

and, on this latter aspect, the 'Particulars of Offence' given in this case alleges that the accused persons "appropriated" a video deck and television "such appropriation being an abuse of authority vested in their office" which counsel submits was sufficient to identify the nature of the offence charged. I agree.

As to the reference in the second paragraph (above) to the case of State v. Beniamino Naiveli High Court Cr. Case No. 12 of 1992, counsel submitted that the learned trial Magistrate misread and misapplied the directions of Jesuratnam J. in his summing-up of the case to the assessors.

In particular, counsel complains that nowhere in the summing-up does the learned Judge mention that such an averment must be included in the charge, rather, his lordship on this aspect, took great pains to advise the assessors that an 'arbitrary act' was an essential ingredient or element in the offence of Abuse of Office and that they were to look at the evidence to determine whether or not the same had been established or could reasonably be inferred.

Having myself carefully read and re-read the relevant summing-up I entirely concur with the submissions of learned counsel for the D.P.P. on this aspect.

In my view on a charge of Abuse of Office so long as the 'offending' act(s) alleged to have been committed or directed by the accused is sufficiently described in non-technical language so as to identity what it is, that would be sufficient for the purposes of framing the charge. To further describe the 'act(s)' as an 'arbitrary' one, adds little if anything to the description of the act(s) alleged.

I am fortified in my view by the remarks of the Fiji Court of Appeal in Tomasi Kubunavanua v. State Cr. App. No. 8(B) of 1992 in which a senior police took to his home, a video deck and television screen seized under a search warrant, and used them there for his personal entertainment for 5 months before returning them to the Police Station Exhibit room. The inspector was charged and convicted for an offence of Abuse of Office.

In dismissing the officer's appeal the Court of Appeal observed of the use of the word "arbitrary" in the particulars of the offence charged at p.3 of its judgment:

"We think the word 'arbitrary' indicated nothing more than the exercise of one's own free will, ..."

Needless to say the "arbitrary" nature of the offending act(s) is a question of fact and inference and is undoubtedly coloured by its close association with the alleged 'abuse of authority' by the accused. If I may say so, it is difficult to envisage an act which is undoubtedly an 'abuse of authority' and yet is not 'arbitrary' in the sense in which Jesuratnam J. correctly directed the assessors in State v. Beniamino Naiveli (op.cit) when he said in the course of his summing-up at p.8:

"An arbitrary act is an autocratic act, a despotic act, an unreasonable act, an act which is not guided by principles, rules and regulations but an act guided by the whims and fancies of the doer. That is what the prosecution says the acts of the accused amounted to. But the defence says that it is not an arbitrary act but was a lawful act which he was entitled to do."

Similarly in this case the learned trial Magistrate had before him at the 'no case to answer' stage, a submission that whatever the accused persons did was done lawfully and further that if there was an infringement of procedure, it was a matter for disciplinary action departmentally and not a matter for a charge under the Penal Code.

It is necessary at this stage to dispel any possible misconception that may have arisen from any discussion as to the 'criminality' of the actions of the accused persons and in doing so I would respectfully adopt the observations of Jesuratnam J. again in his summing-up in State v. Beniamino Naiveli (op.cit) when he said at p.14:

"Your duty is to see whether the evidence led in this case fits the section under which he is charged. It may be a technical breach of departmental regulations but if the same act comes within the four corners of the section of the Penal Code (III) under which the accused has been charged, you will find him guilty."

I digress briefly here to say in relation to the third accused that I cannot accept the suggestion implicit in the submission of state counsel that once the third accused became acquainted with the "special nature" of 'the exhibits' his failure thereafter to secure and ensure the return of 'the exhibits' constituted an Abuse of Office. Indeed if such was the case then several of the prosecution's own witnesses might possibly fall within the same category.

Needless to say even if there were direct proof of the third accused's "appropriation" of 'the exhibits' that 'act' alone, without knowledge of their 'special character', would be insufficient to support the charge nor would the subsequent acquisition of the requisite knowledge retrospectively render the 'act' unlawful.

In my view the offence of Abuse of Office requires some 'positive act' on the part of the accused whether personally or through an intermediary, and no amount of non-cooperation or failure to act on the part of the accused can give rise to the offence.

That is not to say that a person cannot be charged with 'aiding and abetting' the commission of the offence by his inactivity as was suggested by state counsel, but that was never the prosecution's case before the trial Magistrate and certainly the charge did not support such a view.

Be that as it may, in the absence of any evidence to support an inference that the third accused knew of the 'special nature' of 'the exhibits' when he allegedly "appropriated" them to Police Headquarters, the learned trial Magistrate was perfectly entitled to form the view that he did on the defence submission of "no case to answer" in so far as the case was premised on the third accused's 'inactivity'.

Having said that, in order to properly consider the "no-case" submissions it was encumbent on the learned trial Magistrate to carefully and objectively consider the evidence led by the prosecution at that stage of the trial. This, learned counsel for the D.P.P. complains was never done.

I cannot agree. The learned trial Magistrate's ruling very fully and accurately deals with the prosecution's evidence in the context of the first count of Larceny and, in respect of the count of Abuse of Office, after correctly identifying the essential elements in the offence and setting out the provisions of the Police Force Standing Order Nos: 313(18) and (27), the learned trial Magistrate relates the evidence of 3 principal prosecution witnesses and defence counsel's submissions on it and concludes in the penultimate paragraph by saying:

"In my view the prosecution has not made out a case against the three accused sufficient to require them to make a defence."

I accept that the learned trial Magistrate did not in the context of the offence of Abuse of Office specifically refer to the alleged 'misuse' of 'the exhibits' by the second accused in viewing pornographic video's in his office or to the third accused's failure to ensure that 'the exhibits' were returned once enquiries were made of him as to their whereabouts or indeed, to the fact of the recovery of 'the exhibits' from the house of the first accused in Nadera.

This latter fact and others state counsel submits "cries out for an answer", but any answer was prematurely and improperly pre-empted by the learned trial Magistrate's ruling. Similarly with the second accused who should have been required to explain the use of 'the exhibits' in his office and the third accused who should have been required to explain his failure.

Again I cannot agree. The learned trial Magistrate in dealing with the Larceny count comprehensively reviewed all of the prosecution's evidence in relation to the ingredients of the offence and against each accused person separately and formed the view that no reasonable tribunal directing its mind to the law and evidence could convict any of the accused persons. Those acquittals on the charge of Larceny based on the prosecution's evidence have not been challenged by the D.P.P. nor in my view could they have been.

With all due regard to the submissions of counsel for the D.P.P. I cannot accept the proposition that, where a person is charged with 2 separate offences that allegedly arise out of the same evidence, a trial Court dealing with the case must repeat the evidence when considering each count separately.

No such duty is cast upon a trial Court. So long as its judgment or ruling indicates that it has fully and properly considered all of the relevant evidence and applied the law correctly nothing more needs to be done.

The position would be different where the evidence on each count or offence was significantly different but certainly not in the present case where the prosecution's evidence on both counts was the same and covered a very narrow ambit.

Certainly no complaint was made of the learned trial Magistrate's summary of the prosecution's case on the count of Abuse of Office when he said at p.19 of his ruling:

"The prosecution case is that there are three elements to this offence and that the act of the three accused is within the section. This is, they are public servants, they acted arbitrarily and that their act was prejudicial to the rights of some other person.

In respect of the first element, there is no question that they are public servants.

In respect of the arbitrary nature of the conduct, the learned counsel for prosecution stated that in view of the special character of the items and in light of the officers' respective positions in the police force, their conduct was inconsistent with the known and accepted rules of practice of the police force. The learned counsel also submitted that the items were used for purposes other than those for relevant investigation and were removed from official police premises to a private home.

Regarding the third element, Mr. Naigulevu said that the word "interest" may be properly used with reference to the word "right" and that P.W.2 Adip Narayan Singh was the primary custodian of the exhibits as he was responsible for any loss or damage that may occur to them. I suppose what the learned counsel was saying was that the interest of P.W.2 was prejudiced when the accused removed the exhibits.

In short, Mr. Naigulevu submitted that the conduct of the accused amounted to an abuse of office because they had no lawful excuse to have done what they did. He said that P.W.3 Santa Prasad's evidence showed that if movies had to be seen then not on sets belonging to the complainant but brought from other sources."

In that summary I am satisfied that the learned trial Magistrate appreciated the prosecution's case on the alternative count of Abuse of Office.

He would also have been fully aware of the evidence that the prosecution relied upon in support of the charge as it had been fully canvassed before him in the submissions of prosecuting counsel in responding to the "no case" submission. (as recorded at pp. 107 and 108 of the record).

The learned trial Magistrate's failure to itemise the prosecution's evidence on the alternative count of Abuse of Office when viewed in that context is wholly understandable and with respect beyond reproach.

Equally the learned trial Magistrate would have been aware, from the comprehensive written submissions of learned defence counsel (which are incorporated as pp. 113 to 131 of the record), of the defence(s) of each of the accused persons on both charges which they jointly faced.

In the circumstances and for the foregoing reasons I uphold the learned trial Magistrate's ruling and dismiss the appeal.

(D.V. Fatiaki)
JUDGE
At Suva,
15th October, 1993.
HAA0042J.93S