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Turagacaca v The State [2003] FJHC 81; HAA0094J.2003S (27 January 2003)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL APPEAL NO. HAA0094J OF 2002S

BETWEEN:

TEVITA TURAGACACA
APPELLANT

AND:

THE STATE
RESPONDENT

For Appellant: In Person
For Respondent: D.P.P.

JUDGMENT

On 24th January 2003, having heard from the Appellant and State counsel, I quashed the Appellant’s conviction and sentence and remitted the case back to the Nausori Magistrates Court for rehearing on a not guilty plea. I said that I would give reasons for my decision on the 27th of January. These are the reasons.

The Appellant was charged with the following offence:

Statement of Offence (a)

LARCENY OF CATTLE: Contrary to Section 275 of the Penal Code Act 17.

Particulars of Offence (b)

TEVITA TURAGACAVA on the 3rd day of June, 2001 at Naitasiri in the Central Division, stole a cow valued at $500.00 the property of RAM JEET s/o RAM BHAJAN.

The case was called on 29th June 2001 and the Appellant pleaded guilty to the charge.

The facts were outlined. They were that the Appellant on the 3rd of June 2001, stole a cow belonging to one Ram Jeet from a dairy farm in Nabaitavo. The Appellant admitted the facts. In mitigation he said:-

“Sorry for what I did. Promise that this will not be repeated. Had taken 5 cows for the work already done but came to take another one when the owner not there.

I was working for the complainant and an agreement to pay me 6 cows. Have already received 5 and left with one. Farm unattended on the day in question.”

The Appellant clearly disputed that he had stolen the cow. However, instead of setting aside the guilty plea and substituting it with a not guilty plea, the learned Magistrate said that the complainant was to confirm that he had an agreement with the accused prior to sentencing.

The Appellant then failed to appear on three dates set for hearing. On 21st December 2001, the record reads:-

“The accused said that he could not bring the complainant to Court to confirm that the cow he took was payment for his work done. The complainant Ram Jeet is now in Australia and shall be back for Christmas.”

On 22nd February the record reads:

“Same story as last told by the accused on 21/12/01. Accused given another time to get the complainant.”

He was finally sentenced on 30th August 2002. The sentence includes the following paragraph:

“The Court has given enough time to the accused to confirm from the complainant that the one cow as in charge is also payment of the cost of labour. He has failed to confirm despite being given time to do this.”

He was sentenced to 9 months imprisonment and a suspended sentence of 12 months imprisonment was activated, to run consecutive to the 9 months term.

The Appellant appealed against sentence. However on perusal of the Court record, it became apparent that the conviction itself was unsafe. State counsel agreed.

The Appellant, with all accused persons was presumed innocent until proven guilty. Once he disputed the facts, the guilty plea ought to have been set aside, and the prosecution (not the accused) should have been called upon to prove the accused’s guilt.

Section 8 of the Penal Code provides:

“A person is not criminally responsible in respect of an offence relating to property, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.”

Clearly the Appellant says he had an honest claim of right over the cow. He was raising a legitimate defence which ought to be aired and decided upon at a trial.

For these reasons, his conviction and sentences are quashed. I order that the case be heard in the Magistrates Court on the basis of a not guilty plea. The Appellant has been bailed with a surety of $200 to appear in Court today. He is further bailed to attend Court on the next date scheduled for the Vunidawa Court - the 31st of January 2003.

Nazhat Shammem
JUDGE

At Suva
27th January 2003