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State v Qalivere [2007] FJMC 14; Criminal Case No 1399 of 2006 (1 June 2007)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 1399 of 2006

STATE

V

EMORI QALIVERE

Before Ajmal Gulab Khan Esq

Date of Hearing: 23/05/07
Date of Judgment: 01/06/07

Prosecution Insp. Suruj
Accused: Mr T Fa.

JUDGMENT

The accused has been charged with Harbouring prisoner Contrary to Sect 79 of the Prison Act Cap 86.

Particulars are: Emori Qalivere between 1st and 30th June 2006 at Lami knowingly harboured prisoners namely Sakiusa Basa and Mesake Sinu illegally at large.

The prosecution facts are not in dispute. The accused elected at the end of prosecution case to remain silent and didn’t call any witnesses. Mr Tevita Fa on behalf of accused submitted the only issue is whether the facts amount to harbouring by accused.

The two prisoners Basa and Sinu were escapees during June 2006. The prosecution witness, special constable Bulawalu knew both prisoners personally. He was on foot walking from Delainavesi towards the main Highway around 12 midday. He noticed a private white Station Wagan Registration EU 295 being driven by the accused. He also noticed the two prisoners Basa and Sinu were sitting in the back seat. He recognized the accused and the two escapees from about 1½ meters away.

A voluntary interview was given to the police by accused. He talked to his lawyer Mr Fa and gave answers during the interview. He was a lay preacher. He admitted transporting the two well known escapees in his vehicle. He conveyed them to a house in Sukainivalu Road to the house of ‘Boss’.

He admitted knowing them to be escaped prisoners at the time he transported them. The issue is whether transporting of escaped prisoners from point A to B in your vehicle amounts to harbouring prisoners under the Act?

Section 79 of Prison Act states:

"Any person who knowingly harbours in or about his house, grounds or otherwise, or who knowingly employs, or knowingly and without lawful excuse assists any prisoner illegally at large, other than his or her spouse, shall be guilty of an offence and shall be liable to imprisonment for any period not exceeding one year or to a fine not exceeding two hundred dollars or to both such fine and imprisonment."

Accused did not keep them in his house, grounds or otherwise! The word otherwise is general but it could be argued it is restricted to places of abode as house or ground but not transportation.

However, would transportation be covered by the limb "or who knowingly and without lawful excuse assists any prisoner unlawfully at large."

The accused knew them to be escapees at the time he transported them. Providing transport to escaped prisoners and dropping them from point A to B is assisting prisoner.

There is no lawful excuse given in evidence and none put forward by the defence. The mischief which this section prevents certainly encompasses assisting escapees in any form or manner. The word ‘harbouring’ would include providing transportation to escaped prisoners and dropping them from point ‘A’ to point ‘B’. It helps the prisoners in enhancing their purpose and assists them to remain escapees.

It is not disputed that the accused did it knowingly and without any lawful excuse.

I am satisfied beyond reasonable doubt that the accused is guilty as per the charge.

Dated this 1st day of June 2007.

Ajmal Gulab Khan
RESIDENT MAGISTRATE