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Devi v The State [2005] FJHC 429; HAM0076.2005 (21 November 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO.: HAM0076 OF 2005

BETWEEN:

SARITA DEVI
f/n Ambika Prasad
Applicant

AND:

STATE
Respondent

Counsel: Mr. R. Singh – for Applicant
Ms V. Lidise – for the State

Date of Hearing/Judgment: 21st November, 2005

EXTEMPORÉ JUDGMENT

Background

The appellant was charged with larceny from the person in circumstances where it was alleged that she and two others took their complainant taxi driver to Suva Point gave him yagona and then took his property. The appellant pleaded guilty. She was sentenced to 2 years imprisonment. This is an appeal against both conviction and sentence. The State concedes the appeal.

When the appellant first appeared before the learned Magistrate not guilty pleas were entered. These eventually dissolved to a guilty plea and that was entered before the learned Magistrate on the 28th of September last year. The record then indicates that the learned Magistrate, upon some jurisdictional basis, had the matter recalled in the presence of the Prosecutor and the accused where he conducted a hearing, of sorts.

I see no statutory power for the learned Magistrate to act in the way that he did in conducting this informal enquiry. There was no rejection of the guilty plea. There were no constitutional warnings. After that enquiry certain findings were made. The charges were not reput and rather a conviction was entered.

I find that to be an abuse of the learned Magistrate’s jurisdiction.

However, further when the learned Magistrate came to sentence the accused the offence was in effect if not in substance elevated from one of larceny to a Section 223 offence of stupefying in order to commit a felony. This carries a maximum sentence of life imprisonment.

The learned Magistrate does comment that that was only an aggravating feature but the sentence was overborne by this. Without the benefit of proper scientific evidence an inference was made that the yagona given to the complainant was doped and caused him to collapse and that after his collapse he was robbed.

I accept the concession that the State has made. In those circumstances it is quite proper. I quash the conviction and sentence imposed by the learned Magistrate and I remit the matter back for hearing before a different judicial officer. The matter is to receive a first call in the Suva Magistrates Court on Monday the 28th of November, 2005 at 9.00am. Until then the appellant is to be placed on bail.

Ms Devi I am going to grant your appeal. I am going to remit the matter back for hearing. I am going to have your counsel explain to you the terms of the bail which I intend to give you pending your appearance in the Suva Magistrates Court on the 28th of November, 2005 next at 9.00am.

1. You are bound in your own recognizance with a non-cash surety of $200.00.
2. You are to have an additional surety non-cash of $200.00.
3. You are to reside where you described.
4. You are to report to the Raiwaqa Police Station five times a week between the hours of 6.00am and 6.00pm. I will reduce the number of days of reporting when you provide the Court with a proper address so I will also grant you leave to come back and vary bail on 24 hours notice.
5. You are not to leave the greater Suva area.
6. You are to surrender any passports or other travel documents that you may have.
7. The usual standard conditions will apply concerning your non contact with any known state witness.

I am going to say this to you Ms Devi. If you breach any of these bail terms you are liable to arrest and you will be brought back before the Court. The underlying cause of your bail application today had much to do with the fact that you have a young infant child. I expect that you will ensure as a mother that you take good care of that child whilst you are on bail. If you breach any of the bail terms it will be your responsibility for what happens with that child.

Gerard Winter
JUDGE

At Suva
21st November, 2005