Fiji Law Reports

I echo those sentiments in this case. The charge is not defective because of the provisions of section 21, but it is advisable in the interests of fairness for the prosecution to particularise the real case against the accused in the Particulars of Offence. In this case, the Appellant was not prejudiced by the lack of particulars, and this is apparent from the way in which the defence case was conducted, and in which the Appellant gave evidence. It is clear that he knew the nature and particulars of the case against him. This submission fails.

The second objection was that there was no factual link between the Appellant and the assailants. The evidence of Richard Leong that the assailant told him that the security guard had hired him to commit the offence, is inadmissible, because it is an out of court statement by an accused against his co-accused. The only exception is a statement made by a co-Defendant in the course of a joint criminal enterprise R v Gunewardene (1951) 35 Cr App R 80.

Nor am I impressed with the evidence that the Appellant was often seen talking to the taxi driver who drove the robbers away after the robbery. There is no evidence that the taxi-driver was charged as an accomplice, and no evidence that he was a party to the robbery. Constable Nazir agreed, in his evidence, that Tomu Masau, the person who committed the robbery, was never identified by the Appellant as being the person he hired to assault Richard Leong. The only real evidence of the "factual link" is therefore derived from the caution interview. In that interview the Appellant said that he told a Fijian boy to punch the manager on the 6th of April 2000 (two days before the robbery) and said that the incident occurred with his "permission and consent."

Of course, in his sworn evidence, the Appellant said that he did not tell the Fijian boy to rob Richard Leong, only to assault him, and he had given those instructions in March 1998. He said he did not know any Tomu Masau, but had asked a Fijian boy (whose name he did not know) who had his employment at Hantex Garments, terminated. He said he had been forced to make a statement at the police station, that his answer at Question 24 was fabricated by the police and that he was shown Tomu Masau at the station, and said that they did not know each other.

However, the learned Magistrate accepted the contents of his police statement (as she was entitled to, having correctly directed herself on its admissibility) and by implication, rejected his sworn evidence.

On the basis of the caution interview, she was entitled to draw the inference that the Appellant organised, and counselled an unknown Fijian man to assault Richard Leong. She was entitled to accept, that such counselling occurred only two days before the robbery, and that therefore the robbery on 8th April 2000, on Richard Leong was more than mere coincidence. She was entitled to accept on the evidence that it was the Appellant who had persuaded a Fijian boy to assault Richard Leong. To that end, she did not err. I do not think that the evidence that the robbers accused Richard Leong of swearing at their sister prevented her from drawing the inference that it was the Appellant who counselled the assault. This submission therefore fails.

However, a far more difficult question is whether, on the basis that the Appellant did counsel an assault, he is also responsible for the robbery.

Section 21 of the Penal Code provides as follows:

"(1) When an offence has been committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say -

(d) any person who counsels or procures any other person to commit the offence.

In the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission."

me="s23_PC_Bharat_Duve_Duve_v_State">Section 23 of the Penal Code provides:

"When a person counsels another to commit an offence, and an offencectually committed after such counsel by the person to whom whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one or whether the offence is committed in the way counselled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel.

In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him.

If the facts constituting the offence actually committed are not a probable consequence of carrying out the counsel, the person who gave the counsel is not deemed to be responsible."
(my underlining)

This test of "probable consequence" is similar to the common law test of "ordinary and natural result." Archbold (2000 Ed) at 18-19 says:

"An offence cannot, however, be said to have been procured unless there is a causal link between what the alleged procurer did and the commission of the offence. Accordingly, when A surreptitiously laces the drink of B with additional alcohol and thereafter B, unaware of what has happened, commits the offence of driving a motor vehicle with an alcohol concentration above the prescribed limit (an absolute offence), A may be convicted of having procured B to commit the offence. The Crown must prove beyond reasonable doubt (i) that A knew that B was going to drive, and (ii) that he knew that the ordinary and natural result of lacing B's drink would be to bring his alcohol concentration above the prescribed limit."

In Attorney-General's Reference (No. 1 of 1975) [1975] EWCA Crim 1; (1975) 61 Cr. App. R. 118, the Court of Appeal was asked to consider this very point. The question for the Court was whether a procurer and the principal offender needed to have a shared intention in respect of the offence committed, before the procurer could be found guilty. The Court said they did not, the question being whether the offence committed was an ordinary and natural consequence of the act of procurement. If it is, then there is a causal link between the procuring and the offence.

It was said by Shaw L.J. in R –v- Bradfoot (1976) 64 Cr. App. R. 7, that the word procure was not a legal term of art, but one that a jury should be able to understand and that "procure" meant to "procure by endeavour". In R v Bullock (1955) 1 WLR 1, the Court of Criminal Appellant held that knowledge of the fact that a tool (in that case a car) was to be used for an unlawful purpose was sufficient to prove the procurement. It said however:

"It is no doubt true that if an accused person merely suspects that if he lends something it may be used for a general criminal purpose, that may not be enough to make him an accessory before the fact; If an accused person lends a man a revolver believing that it may be used to commit a crime of violence but with nothing specific in mind, it may not be enough ...."

In Thambiah v R (1966) AC 37, the Appellant was charged with abetting (which was held to include counselling and procuring) another man, for whom he opened a bank account under a false name, with dishonesty and fraudulently using forged cheques. He was convicted, and on appeal, the Privy Council held that the judge was entitled to conclude that the Appellant must have known that the account would be used for paying in forged cheques. At page 45, the Court said:

"The intention of the Appellant falls to be decided on a consideration of all the possible inferences which might reasonably be drawn from his acts. Clearly his persistent, fraudulent and successful efforts to open an account for the first accused under a false name and description might have been intended, as the learned judge found, to provide a vehicle for realising the proceeds of forged cheques. Such an intention would be consistent with and would explain all the actions of the Appellant."

Finally Archbold states, on the basis of old English commentaries (2000 Ed 18.23) that the counsellor and procurer is liable for all acts which result from the unlawful act commanded. It says:

"If A commands B to beat C, and he beats him so he dies, A is liable for the murder: 4B1. Com.37; 1 Hale 617."

Thus in Saunders and Archer (1573) Plowden 473, the accused gave his wife a poisoned apple intending to kill her, but she gave it to a child who ate it and died. He was held to be guilty of Murder. Dyer CJ at the Warwick Asizes holding:

"And therefore it is every man's business to foresee what wrong or mischief may happen from that which he does with an evil intention, and it shall be no excuse for him to say that he intended to kill another, and not the person killed."

It does not therefore appear that the learned Magistrate erred in deciding, on the contents of the confession, that the robbery was foreseeable. Although I do not agree that the robbery was foreseeable because the assailants were unemployed, on the facts of the case, the Appellant counselled the commission of an assault, and it is clearly foreseeable that a robbery in the course of the assault might also be committed. He would have been liable, on the authorities I have referred to, if Richard Leong had been seriously injured, or if he had died, as a result of the offence he had counselled and procured. The robbery would not have taken place if the Appellant had not counselled the assault and he must be held liable for the offence of robbery.

Therefore, there was sufficient evidence for the learned Magistrate to have decided that the completed offence was a probable consequence of the counselled offence. Although the way in which the Appellant was questioned, was unsatisfactory because often two questions were asked in one sentence rendering the answer ambiguous, the Appellant clearly agreed that he had planned the offence which was committed. Further he never told the police that he did not expect the Fijian boys to commit the robbery. On the evidence, the learned Magistrate was entitled to draw the factual conclusion that she did.

In the case of DPP for Northern Ireland v Maxwell (1978) 3 All ER 1140, the Appellant who was a member of an illegal organisation in Northern Ireland, and who was ordered to act as a guide for another car which held explosives argued that he did not know the target or the weapon to be used. It was held that he must have contemplated that the bombing of a public-house was an obvious possibility among the offences likely to be committed and must have contemplated the commission of the offence.

Thus in this case, the learned Magistrate was entitled to find (having correctly directed herself to consider what were foreseeable consequences) that the Appellant must have contemplated that the person he procured to commit an assault, might also commit a robbery. Further the short time frame between the counselling, and the offence leads to the inescapable conclusion (to which he himself agreed under caution) that the offence committed was the one counselled.

For these reasons the appeal against conviction fails, and is dismissed.

Appeal fails.

Ashika Bali and Marie Chan.