| Fiji Islands - Mudunavosa v The State - Pacific Law Materials |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 39 OF 1996
BETWEEN:
SANAILA MUDUNAVOSA
Appellant
AND:
STATE
Respondent
The Appellant in person
Mr. W.W. Clarke for the State
JUDGMENT
The appellant was on 8 March 1996 convicted and sentenced to imprisonment for 12 months by the Magistrate's Court at Suva for the
offence of Burglary contrary to s.299(a) and larceny contrary to s.270 of the Penal Code.
He appeals against conviction and sentence which he says is harsh and excessive.
Before the hearing commenced the Appellant handed in to Court his written grounds and submissions incorporating his earlier grounds
filed in Court.
The appellant's submission is, that as far as the sentence is concerned it is "too heavy". On conviction, he submits, inter alia, that he should not have been charged at all because he said that "PW2 had based his allegation on presumption and therefore it was not necessary for the accused to ask questions..... He PW2
stated, he saw the accused lying on bed and the bag was lying near him." (as per appellant's written submission page 1, 2nd paragraph). From the record it is revealed that his wife who also testified on
his behalf said in cross-examination that "I do not remember the date. Nor the day. Bag was brought during night time. It was around 1 a.m. or 2 a.m. Two Fijian boys bought
the bag. I did not know them. .... I did not tell the Police that two Fijian boys brought the bag ..." It is pertinent to note that the appellant did not cross-examine the prosecution witnesses at all on the version given by his wife
in Court.
The State says that there is little merit in the appeal. Mr. Clarke submits that the learned Magistrate had the opportunity of seeing
and hearing the witnesses and observing their demeanour in the witness box. He says that after listening to their evidence about
how the bag came to be in the appellant's house and which was found beside his bed where he was asleep, when the Police came to arrest
him with a search warrant and arrested him, the learned Magistrate gave due weight to all the evidence before him. These are matters
of fact and after analyzing all the evidence he held that the prosecution had proved its case beyond all reasonable doubt.
On sentence the learned counsel for the State submits that it is neither harsh nor excessive bearing in mind that the crime is on
the increase.
The learned Magistrate has carefully analyzed the evidence before him and he came to certain findings of fact. The onus is upon the
prosecution to prove its case. The learned Magistrate found that in the interview there was an admission that the appellant broke
into the house of the complainant; neither the Appellant nor his wife told the police how they or either of them came by the bag
in question. He found that there is variance between the evidence of the appellant and his wife.
On a finding that an accused person was in possession of property recently stolen, in the absence of any explanation by the accused
to account for his possession, a presumption of fact arises that he was either the thief or a receiver (R v HASSAN s/o Mohammed 1948 15 EACA 121).
In these circumstances the approach adopted by the Magistrate, the Appellate Court would be loathe to interfere with his findings
of fact. In this regard I refer to the judgment of the Fiji Court of Appeal in SHINODRA f/n Enkanna and STATE (Criminal App. No. 7/88) where it is stated:
"... we ought to draw attention to an important point of practice concerning the exercise by the High Court of its appellate
jurisdiction. An appellate Court is primarily concerned to satisfy itself that the conclusion reached by the trial Court can reasonably
be supported on the evidence adduced and upon the applicable law."
And further in a case which depends on credibility of witnesses it is stated in SHINODRA (supra):
"Where a case depends essentially, as the present case does, on the credibility of witnesses and findings of fact connected therewith,
an appellate Court ought to be guided by the impression made on the Magistrate who saw and heard the witnesses and not by its own
evaluation of the printed evidence which can be misleading."
Before the appellant can succeed he has to show that there was no evidence on which the trial Magistrate could reach the conclusion
which he did reach if he properly directed himself (KAMCHAN SINGH v THE POLICE (1953) 4 F.L.R. 69); and as was said by WIDGERY L.J. in R v COOPER (1968) 53 Cr. App. R. 82 at pp 85-86 the circumstances in which the Court will interfere with the findings are as follows:
"However, now our powers are somewhat different, and we are indeed charged to allow an appeal against conviction if we think
that the verdict of the jury should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory.
That means that in cases of this kind the Court must in the end ask itself a subjective question, whether we are content to let the
matter stand as it is, or whether there is not some lurking doubt in our minds which makes us wonder whether an injustice has been
done. This is a reaction which may not be based strictly on the evidence as such: it is a reaction which can be produced by the general
feel of the case as the Court experiences it".
Here the learned Magistrate was led to the conclusion for the reason he has given after analyzing the evidence that the appellant
committed the offence with which he is charged and I am also of the view that any other finding would have been perverse.
Now, as for sentence, before this Court can interfere with this, or indeed any other sentence, it must be satisfied that the sentence
is wrong in principle or that it is manifestly excessive.
I agree with Mr. Clarke that the sentence is not wrong in principle. This was a serious offence particularly when the house that was
broken into is "occupied" (as opposed to "unoccupied". It has been held in England that for such burglary on a plea of guilty a sentence of three years is apt (REGINA v EDWARDS, REGINA v BRANDY, The Times, 1 July 1996 p. 44).
I reject the appellant's grounds of appeal altogether and uphold the submissions made by the learned State counsel.
In the outcome upon a careful consideration of the appellant's submissions, the Respondent's arguments and upon reading the record
of the case before the Magistrate's Court I find that the appeal is devoid of any merit both as to conviction and sentence.
Having regard to the authorities I find that the sentence was not a day too long. It was neither wrong in principle nor one which
is manifestly excessive. The Magistrate has actually erred on the side of leniency.
For the above reasons, this appeal against conviction and sentence must therefore be dismissed.
D. Pathik
JUDGE
At Suva
6th August, 1996
Haa0039j.96s
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