IN THE HIGH COURT OF FIJI

AT LAUTOKA
APPELLATE JURISDICTION
CRIMINAL MISCELLANEOUS CASE NO: HAA 03 OF 2016

BETWEEN : KRISHNEEL DEEPAK KUMAR

Appellant

AND : STATE

Respondent

Counsel : Appellant in Person

Ms. R. Uce for the Respondent

Date of Hearing : 30th March, 2016

Date of Judgment : 02nd May, 2016

JUDGMENT
A. INTRODUCTION

1. The Appellant, Mr. Krishneel Deepak Kumar (‘hereinafter referred to as the Appellant’)
appeals his conviction and sentence recorded by the learned Magistrate at Lautoka in
criminal case No. 103 of 2015.

2. He was charged in the Lautoka Magistrates Court with the following offences:

FIRST COUNT

Statement of Offence (a)

THEFT: Contrary to Section 291 (1) of the Crimes Decree No. 44 of 2009.
 Particulars of Offence (b)

KRISHNEEL DEEPAK KUMAR on the 23rd day of January, 2015 at Lautoka in the
Western Division dishonestly appropriated a motor vehicle registration number CB 990
valued at $1,900.00 the property of MOHAMMED ALFAZ DEAN with the intention to
permanently deprive the said MOHAMMED ALFAZ DEAN.

SECOND COUNT

Statement of Offence (a)

THEFT: Contrary to Section 291 (1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence (b)

KRISHNEEL DEEPAK KUMAR on the 23rd day of January, 2015 at Lautoka in the
Western Division dishonestly appropriated 1 x Dual brand car radio valued at $400.00 the
property of MOHAMMED ALFAZ DEAN with the intention to permanently deprive
the said MOHAMMED ALFAZ DEAN.

3. On the 12th of February, 2015 the Appellant was first produced before the Lautoka
Magistrates Court and was remanded.

4. On the 10th of March, 2015 the Appellant appeared with his counsel from the Legal Aid
Commission and pleaded ‘Not Guilty’ to both counts.

5. On the 24th of March, 2015, Defence Counsel informed Court of the Appellant’s intention
to challenge his caution interview and sought time to file grounds of voir dire. Filing
grounds of voir dire through his Counsel, Appellant requested that he be disclosed three
documents including Namaka Police Station Diary entries from 08-02-2015 to 09-02-
2015.

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6. On the 22nd of June, 2015, the Prosecution served voir dire disclosures on the Defence
Counsel in the presence of the Appellant and the matter was fixed for voir dire hearing on
the 8th of July, 2015.

7. On the 6th of July, 2015, the Court was informed that the Appellant had escaped from
remand custody.

8. On the 8th of July, 2015, Defence Counsel informed Court that no instructions had been
received from the Appellant. The Court, being satisfied that the Appellant was well aware
of the hearing date, proceeded with the voir dire hearing pursuant to Section 171 (1) (a)
of the Criminal Procedure Decree 2009.

9. The voir dire hearing was concluded on the 13th of July, 2015 after the Prosecution called
5 police witnesses for its case.

10. On the 17th of July, 2015, the Court ruled that the Appellant’s caution interview was
admissible and proceeded with the substantive trial on the same date. The Prosecution
called 4 witnesses for its case.

11. On the 20th of July, 2015, the Court delivered its Judgment and convicted the
Appellant on both counts as charged.

12. On the following day, that is on the 21st of July, 2015, the Court was informed that the
Appellant had been arrested. The Court adjourned the case for the Appellant to be
produced to provide mitigation before sentencing.

13. On the 3rd of November, 2015 the Court sentenced the Appellant to 30 months’
imprisonment with a non-parole period of 2 years.

14. The trial Magistrate found the cautioned interview in which the accused confessed to the
crimes admissible after trial within trial held in absentia. He also found the Appellant
guilty on both counts and convicted the accused accordingly. Accused was not
represented by a counsel in either proceeding.

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15. On the 5th of November, 2015 the Appellant submitted his grounds of appeal against
conviction and sentence which were filed through the Lautoka Correctional Service on
the 30th of November, 2015.

B. GROUNDS OF APPEAL

16. Grounds of appeal submitted (in verbatim) by the Appellant are as follows:

I. That the trial for the matter at hand was commenced and approved in the absence
of the appellant whereby it has breached the Constitutional Right of the appellant
to have a fair trial as stipulate under Section 15 (1) of the constitutional as stated
(1) every person charged of an offence has the right to a fair trial before a court
of law. I the appellant believe that the trial in this matter was unfair, biased and
prejudiced due to it being a single sided affair;

II. That the learned Magistrate erred in law and in fact by not giving proper
discount for the period spent in remand custody. The learned Magistrate state in
his sentencing in Para 6, that it appeared to the court that I had appeared in
court on the 12th of February 2015 but that honorable Magistrate failed to give a
proper discount for the period in remand whereby he only back dated the
sentence to the 4th of August 2015 but never has been granted bail in question
neither was any formal bail application ever filed in Court;

III. That the learned Magistrate erred in law and in fact by not properly establishing
all the elements of the offence whereby in paragraph 4 stated I had used a
technique to steal a motor vehicle but no evidence or elaboration was given to
what the technique was thus putting a shadow of doubt over the physical element
of the offence;

IV. That the sentence imposed by the learned Magistrate is manifestly harsh and
excessive considering all the circumstance of the case and also the learned
Magistrate failed in law and in fact whereby the learned Magistrate did not give
even a single thought to Section 14 (2) (n) of the Constitution of Fiji;

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V. That the learned Magistrate erred in law and in fact when released the police
exhibit (evidence) to the complainant before the trial date was even set thus
contravening Section 155 (a) and Section 156 (i) subsection 3 (a) of the Criminal
Procedure Decree No. 43 of 2009. Miscarriage of Justice occurred when the trial
Magistrate on his own discretion returned the items recovered to the complainant
even though the accused had opted for legal counsel and particularly in case as
such theft whereby the only material evidence which the court had brought
forward to close examination to determine the validity of the offence. Neither was
any motion or application filed to the honorable court for the return of the items
that clearly shows that the learned Magistrate exercised his own discretion and
add did not allow to evaluate the whole case and also did not give the appellant a
chance to seek proper counsel from Legal Aid Commission.

VI. The learned Magistrate fell into error when he failed to consider the Namaka cell
diary as that it was also requested by the defence for voir dire, please consider
the Namaka cell diary. Cell diary attached with list of injuries which is sufficient
and neither was any medical report brought forward by the Prison Department
pertaining to the order dated 24/2/2015;

VII. That the learned Magistrate fell into error when he considered the caution
interview as admissible evidence;

VIII. The learned Magistrate erred in law and in fact when he considered the evidence
of the prosecution and stated in his sentencing in paragraph 3 “you stole the car
stereo” but never I believe was the material evidence which is the ‘car stereo’
ever presented in court;

IX. That the learned Magistrate fell into error when he set a 2 years non-parole
period.

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C. ANALYSIS

17. It appears that the grounds (I), (III), (V), (VI), (VII) and (VIII) are in relation to
conviction whilst grounds (II), (IV) and (IX) are in relation to sentence. I begin my
analysis with the grounds challenging conviction.

Appeal against Conviction

Ground I

18. The Appellant submits that the learned Magistrate fell into error when he proceeded with
the voir dire hearing in the absence of the Appellant. He further claims that both the
proceedings were unfair, biased, and prejudicial and breached his constitutional right to a
fair trial guaranteed under Section 15 (1) of the Constitution of the Republic of Fiji.

19. Section 15(1) of the Constitution of the Republic of Fiji guarantees to a person charged
with an offence the right to a fair trial before a court of law. Proviso to Section 14(2) (h)
also allows the Court to proceed with the trial in the absence of the accused.

20. To ensure a fair trial, Constitution further provides for the right of an accused person to
be present during trial:

14 (2) Every person charged with an offence has the right –

(h) to be present when being tried, unless—

(i) the court is satisfied that the person has been served with a
summons or similar process requiring his or her attendance at the
trial, and has chosen not to attend;

21. Even before the promulgation of the present Constitution, Section 171 (1) of the Criminal
Procedure Decree 2009 invested magistrates with discretion to proceed with the hearing
in absentia:

“If at the time or place to which the hearing or further hearing is adjourned
—(a) the accused person does not appear before the court which has made
the order of adjournment, the court may (unless the accused person is

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 charged with an indictable offence) proceed with the hearing or further
hearing as if the accused were present;”

22. The Constitutional provision speaks of a ‘trial’ whereas the Criminal Procedure Decree
speaks of a ‘hearing’. When considered the impact of the finding on voir dire proceedings
on the final outcome of the trial and the rights of an accused person, Constitutional
wording ‘trial’ should be interpreted to include ‘trial within trial’.

23. The Appellant claims that he was not informed of any trial date. However, in page (4) of
the Magistrate’s Minutes, it is clearly stated that the Appellant was present with his
Counsel on the 22nd of June 2015 when the hearing date was fixed. Counsel from Legal
Aid Commission represented the Appellant and received disclosures on his behalf when
served by the Prosecution. The Appellant is now estopped from claiming that he was not
informed of the hearing date. He was present and his interests in Court were looked after
by his Counsel when the hearing date was fixed although she did not defend him at the
hearing.

24. The Appellant submits that the Court should have issued a warrant of arrest to satisfy the
requirement in Section 14(2)(h)(i) of the Constitution before proceeding in absentia. He
further submits that warrant, being a ‘similar process’ within the meaning of the
constitutional provision requiring his attendance, should have been issued in the first
place by the learned Magistrate before he could form an opinion that the accused had
chosen not to attend.

25. There is no need to issue a warrant and await the report for the learned Magistrate to be
satisfied when an accused person had escaped from remand custody. The Magistrate
could have taken the information given by the prison officer for granted and taken
judicial notice of the fact that a prisoner had escaped from remand custody in order to
satisfy himself that he (prisoner) had chosen not to attend. Furthermore, Appellant’s
Counsel on 8th July, 2015 confirmed to Court that his client had escaped from prison.
Therefore, the learned Magistrate was rightly satisfied and formed the opinion that the
Appellant had chosen not to attend court to face his trial.

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26. If the Appellant, whilst he is on bail, had absconded then the learned Magistrate should
have issued a warrant in the first place and awaited a report with some evidentiary value
(affidavit) for him to be satisfied that he had chosen not to attend. The situation is
different when an accused person had escaped from remand prison. Therefore, this
ground has not merit.

Ground III

27. The Appellant submits that the elements of the offence had not been established, in
particular, the physical element of the offence. He claims that there was no evidence led
in relation to the ‘technique’ used to steal the motor vehicle. In his submission, the
Appellant highlights that “there was no single evidence that could collaborate the
allegation that the appellant was anywhere even near the said motor vehicle let alone
any evidence to prove that the said motor vehicle was driven away or taken by the
appellant”.

28. To establish the offence of Theft, prosecution is under no obligation to prove that the
accused used a ‘specific technique’ to appropriate the property stolen, although the using
of such a technique could mount a ground for aggravation at the sentencing stage
[(Ratusili v State Crim . App No. HAA011of 2012)].

29. The learned Magistrate did consider the technique used to commit the offence when he
found the accused guilty of Theft although he considered it as an aggravating factor in his
sentencing ruling.

30. Having described elements of Theft in Paragraph 5, learned Magistrate in paragraph 10 of

the judgment states as follows:

“I have considered whether the elements of the two counts are established by the
prosecution. There was ample evidence to prove that the accused stole the car
belonging to the complainant on the 23rd January 2015 without his consent in
order to deprive him of the said property. Also there was ample evidence adduced
by the Prosecution that it was the accused who sold the car radio to a third

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 person which was later recovered by the police. Further the evidence of the
Prosecution was more buttressed by the voluntary confession of the accused”.

31. Section 291 of the Crimes Decree. Section 291 of the Crimes Decree states that;

"A person commits a summary offence if he or she dishonestly appropriates

property belonging to another with the intention of permanently depriving the
other of the property"

32. Pursuant to Section 291 of the Crimes Decree, the main elements of the offence of Theft
are that;

[a] The Accused,

[b] Dishonestly appropriates,

[c] Property belonging to another,

[e] With the intention of permanently depriving the other of the property.

33. Section 291 of the Crimes Decree replaced the physical element of Theft namely, "takes
and carries away anything capable of being stolen without the consent of the owner"
under Section 259 of the Penal Code with wider and expanded element of "appropriates
property belonging to another". The physical element as defined under Section 259 of the
Penal Code was limited only to taking or carrying away of the property. However,
Section 291 of the Crimes Decree has expanded the scope of the physical act to cover not
only taking and carrying away, but also the assumption of the right of ownership,
possession, or control (appropriation) of any property without the consent of the person to
whom it belongs.

34. It is clear from the proceedings in relation to the substantive trial (page 10-13 of the copy
record) that none of the witnesses for the Prosecution adduced any direct evidence to
establish that Appellant took possession or control of the complainant’s vehicle or the
radio in it. Learned Magistrate relied on the Appellant’s admissions in his caution
interview and the circumstantial evidence to come to the finding that the physical
elements of the offence had been established. Therefore, before expressing any opinion

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 on Ground III, it is necessary for me to come to a definite conclusion on grounds VI and
VII raised on voir dire finding and grounds V and VIII raised on non-production of stolen
property for inspection as exhibits.

Grounds VI and VII

35. By raising grounds of appeal VI and VII, the Appellant challenges the learned
Magistrate’s finding on voir dire. Appellant submits that the learned Magistrate failed to
consider the Namaka Station Diary which he claims lists the injuries that he sustained
whilst in police custody.

36. According to page (4) of the Magistrate’s Minutes, the Prosecution had served
disclosures on 22nd June 2015 before the voir dire hearing date was fixed for 8th July
2015. There is nothing to indicate as to what disclosures were served. The Appellant and
his counsel were both present when they were served. However, it seems that Defence
Counsel had no opportunity to check if all the disclosures, including the Namaka Police
Station Diary, had been served because by the hearing date, accused had escaped forcing
his Counsel to withdraw. Voir dire proceeded in absentia and the accused was
unrepresented right throughout. No issue was raised in Court with regard to Namaka
Police Station Diary. Therefore, the argument of the Respondent that ‘if there were any
issues, then this would have been noted in the Court record and certainly the hearing
date would not have been fixed’ cannot hold water.

37. Upon conclusion of voir dire proceedings, the learned Magistrate, having satisfied
himself that the cautioned interview of the accused was made voluntarily, held it to be
admissible in evidence at the trial.

38. The following two grounds of voir dire were filed on behalf of the Appellant with a
request that he be disclosed certain documents including Namaka Police Station Diary
containing entries of 8th and 9th of February, 2015.

(1). That the will of the accused was overcome by arresting police officers at Nadi
Police Station when they assaulted the accused by punching and assaulting the

10
 accused with use of weapons so as to force the accused to make an involuntary
confession and admit to the offence.

(2). That the interview statements of the accused were fabricated and made up by the
interviewing officer when they charged that accused for 8 offences in 1 day.

39. It is clear that ground (2) above raised by the Appellant does not give rise to a voir dire.
Nevertheless, the learned Magistrate proceeded with both grounds and, having heard
evidence of five police witnesses, held inter alia:

“I am satisfied that the Prosecution has proved beyond reasonable doubt that the
accused made the statement to the police voluntarily and on his own free will.
There was nothing to suggest that the accused was coerced or intimidated to
admit the offence. Further, there is nothing which suggests that that is a
fabricated one”.

40. In coming to his finding, the learned Magistrate failed to give any consideration to
Namaka Police Station Diary entries of 8 th and 9th of February, 2015, the main piece of
evidence relied on by the Appellant to prove police brutality. He also failed to inquire or
follow up his own Order dated 12 th of February, 2015 wherein he stated “Accused to be
produced before a medical doctor for treatment as he complains of injuries”.

41. Namaka Police Station Diary carrying entries of 9 th of February, 2015 clearly indicates
that Appellant had at least five injuries on his body; bruises on the right side of rib,
bruises on the left knee, swollen left arm and left knee, nose swollen, black eye (right). In
view of the magisterial Order that the accused be produced for treatment (not for mere
examination), it can be assumed that the Appellant had some injuries when he was
produced before the learned Magistrate.

42. The Appellant also raised the fact that he was not served with any medical report by the
Prison Department after he was produced before a doctor. There is nothing to indicate
whether he was in fact taken for medical examination or whether he was served with his
medical report.

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43. It is not clear whether the Namaka Police Station Diary containing entries of 8 th and 9th
February, 2015 was available to the learned Magistrate. However, in view of the above
mentioned Order for medical treatment he made and the voir dire grounds filed by the
Appellant requesting Namaka Police Station Diary, the learned Magistrate was duty
bound to give due consideration to this document as a judicial officer trying an
undefended accused in absentia.

44. According to their evidence, neither the Interviewing Officer, PC 3863 Wara nor the
Charging Officer PC Manoa noticed any injury on the Appellant on the 10 th of February
2015. None of the police officers who gave evidence had seen any injury on the accused
despite the entry in the Station Diary to the contrary.

45. Detective CPL Penaia gave evidence on the basis that it was he who arrested the
Appellant in Nadi on the 9th February, 2015, whilst doing an operation to arrest an
accused. Learned Magistrate having noted that the witness had not initially arrested the
Appellant ordered the Prosecution to call the officer who initially arrested him to give
evidence (vide proceedings 9.7.15).

46. On the next hearing day (13.07.15), Prosecution called DC Opeti. He said that it was he
who arrested the Appellant on the 6th of February 2015 when he was with his girlfriend at
the Nadi Bus Station. Evidence of the Police officers not only contradicted each other on
his arrest but also raised serious issues of Constitutional Right violation.

47. Appellant had been arrested on 6th of February, 2015. He was produced before the
Magistrate on the 12th of February, 2015. There was no evidence adduced before the
learned Magistrate to show that the Appellant was produced before a magistrate within 48
hours or within reasonable time as required by the Constitution. He was charged for eight
offences in one day. The learned Magistrate should have looked not only in to the
voluntariness, but also into fairness and prejudice caused to the Appellant by breach of
his Constitutional rights during the course of the cautioned interview. Evidence led at the
voir dire hearing does not support the learned Magistrate’s finding on admissibility of the
cautioned interview. Therefore, Grounds VI and VII succeed.

Grounds V and VIII

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48. Apart from the confession which I have just found not admissible, learned Magistrate
relied on circumstantial evidence to find the accused guilty on the two counts. The
Appellant highlights in his submission on Ground VIII that the recovered items were the
only material evidence and should have been brought forward for close examination to
determine the validity of the offence.

49. The Appellant further submits in Ground V that the learned Magistrate erred in law and in
fact when he released the police exhibit to the complainant before the trial date was fixed.
The Appellant relies on Section 155 (a) and Section 156 (1), (3) (a) (b) of the Criminal
Procedure Decree.

50. Section 155 deals with disposal of properties or things produced in evidence or as to
which questions may arise in the proceedings before conclusion of the trial while Section
156 deals with final disposal of stolen properties after conviction of the accused.

51. It is important to note that this provision of Section 155 does allow the Court to dispose
of properties and release them to the person who is entitled to the possession thereof even
before the conclusion of the matter and even in the absence of a formal application.

155. — (1) It shall be lawful for any court in any criminal proceedings to make
orders for—

(a) the preservation or interim custody or detention of any property or thing

produced in evidence or as to which questions may arise in the
proceedings;

(b) the sale, destruction or other disposal of any such property or thing which
may be of a perishable nature or liable to deteriorate, or which may be
dangerous;

(c) the restoration or awarding of possession of any such property or thing to

the person appearing to the court to be entitled to possession of it, without
prejudice to any civil proceedings which may be taken in relation to it;

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52. The learned Magistrate did not err in law and in fact when he released the recovered item,
in this case, the taxi and car radio, to the virtual complainant. It is to be noted from the
proceedings of 12th of February, 2015 that the learned Magistrate had in fact considered
such an application and noted that the “Accused does not claim for the items recovered.
The items to be released to the complainant.” The Appellant was present when the
application was made and raised no objection to the release of the recovered items. The
Appellant had later engaged a Counsel from Legal Aid Commission and therefore, if he
had an issue regarding the release of the items, he could have informed his counsel who
would have raised this issue before the learned Magistrate. This was not done. Therefore,
Ground V fails.

53. Learned Magistrate, no doubt, released the recovered items (by an Order made either on
Section 151(1) (a) or (c) of the Criminal Procedure Decree) on a temporary basis subject
to the final determination of their fate. They formed part of real evidence or ‘property or
thing produced in evidence or as to which questions may arise in the proceedings’.

54. Released items were not produced by the Complainant or the Prosecution at the trial to be
inspected by Court or by the witnesses although they had crucial evidentiary value in the
case. Inspection of recovered items per se does not determine the validity of the offence.
However, in a case where the prosecution relies heavily on circumstantial evidence, those
items form an important part of the chain of circumstances to be established by the
Prosecution. Prosecution must prove that the recovered property is nothing but the stolen
property of the complainant. It must also establish that the stolen property came into the
possession of the person from whose custody it was taken from no one other than the
Accused. Non -production for inspection of those properties when it is claimed that they
had been recovered, will definitely impair the credibility of the Prosecution version. If the
Appellant had been present at the trial, he could have impeached the credibility of the
Prosecution witnesses on these lines.

55. One of the alleged stolen properties (Car Radio) was recovered from a mini bus driver
Krishneel Raj who was called by the Prosecution as a witness. He was not shown the
radio alleged to have been taken from his custody for him to ascertain whether it was the
same item he bought. According to his evidence, the person who sold the radio to him

14
 was not known to him before. He had bought the radio from a Hindi speaking Fijian man
on 10th of February, 2015. At the Police Station, he was informed that the person who
sold the radio is one Krishneel Deepak Kumar. There is no evidence that the accused
confronted the witness at the police Station.

56. Krishneel Raj’s evidence is completely contradictory to the caution interview and other
evidence led in the trial. Appellant was taken into custody on the 6 th of February 2015.
When Raj bought the radio from a Hindi speaking Fijian man on the 10 th of February,
2015, the Appellant had been in police custody. Furthermore, at the police station, Raj
had no opportunity to ascertain the identity of the person who sold the radio to him. The
link between the Appellant and the ‘so called stolen property’ is not established beyond
reasonable doubt.

57. Nevertheless the learned Magistrate disregarded the crucial contradictions and
improbabilities in the Prosecution version. He stated in paragraph 7: “Although the
witness said that it was on 10 th February it seems that there is a disparity in the dates.
However, I decide to disregard the disparity in the date as the accused has admitted
selling of the radio to a mini bus drive”. Therefore, Ground III has merit and succeeds.

58. Before the promulgation of the present Constitution and in the absence of any provision
in the Criminal Procedure Decree, 2009 on trials in absentia (so far as High Court
hearings are concerned), Justice Priyantha Fernando in Fiji Independent Commission
Against Corruption v Nemani [2012] FJHC 1309; HAC37A.10 (3 September 2012)
explored the possibility of conducting a trial in the absence of the accused without
jeopardizing his or her fair trial safeguards. Having looked into the Common Law
position and having cited from English jurisprudence, His Lordship held:

“However her rights have to be safeguarded at the trial in absentia by the

presiding Judge. Assessors shall be clearly warned not to hold the absence of the
accused against her. Further the prosecution should disclose and present in
evidence all relevant material facts that would be advantages to the accused to
the assessors. Judge must also warn the assessors in his summing up that the
absence of the accused is not an admission of guilt and adds nothing to the

15
 prosecution case. Judge must also take steps to expose weaknesses of the
prosecution case in his summing up”.

Magistrates doing trails in the absence of the accused must always be mindful of and
direct themselves to the principles and caution expressed in Nemani.(supra)

59. In the present case in appeal, the learned Magistrate failed to ensure that fair trial
safeguards of an accused person when he is tried in absentia are available to the
Appellant. At one time, Appellant had escaped from custody and that fact had been
referred to in the sentencing Ruling. The learned Magistrate should have manifested that
his judgment was not swayed in anyway by the accused’s absence and his escape from
remand custody. Therefore, Appellant’s conviction on both counts is liable to be quashed.

60. The Appellant also raised in his submission that he was not given a chance to seek proper
counsel from the Legal Aid Commission. However, this is contrary to the Magistrate’s
Minutes as they clearly indicate that the Appellant was represented by a Counsel from the
Legal Aid Commission on more than one occasion. Therefore, this ground has no merit.

Appeal against the Sentence

Ground II

61. This ground deals with the discount given for time spent in remand. As per the
Magistrate’s Minute, the Appellant was first produced in custody on the 12th of February,
2015 and was remanded. There was no bail application made nor was there any noted to
be filed by the Appellant or his counsel from the time he was first produced until he was
convicted.

62. On the 6th of July, 2015, the Court was informed that the Appellant had escaped from
custody. The Appellant was then produced in Court on the 4 th of August, 2015. However,
on the 21st of July 2015, the Prosecution informed the learned Magistrate that the accused
had been arrested in Savusavu.

63. The learned Magistrate had noted that the Appellant was remanded in custody for another
matter and therefore, discount for remand period was counted from the 4 th of August,

16
 2015, the day he was produced before the Magistrate. The Appellant raised the issue that
the sentence is contrary to Section 24 of the Sentencing and Penalties Decree.

Section 24 Sentencing and Penalties Decree No. 42 of 2009 provides:

“If any offender is sentenced to a term of imprisonment any period of time during
which the offender was held in custody prior to the trial of the matter or matters
shall unless the court otherwise orders, be regarded by the court as the period of
imprisonment already served by the offender.

64. It appears that the learned trial Magistrate took into consideration an irrelevant factor
when he considered in paragraph 6.5 of the sentencing Ruling the fact “although you
were in remand custody not especially for this case….” to calculate the remand period.
The fact that he is in remand for other matter has no relevance to the matter in hand. The
learned Magistrate should have directed himself to Section 24 of the Sentencing and
Penalties Decree and given the discount accordingly. Therefore, this ground has merit and
it succeeds.

Ground IV

65. This ground is in relation to the sentence imposed which the Appellant claims is
manifestly harsh and excessive considering all the circumstance of the case. The
Appellant states that the learned Magistrate failed to consider Section 14(2)(n) of the
Constitution of Fiji which reads:

“to the benefit of the least severe of the prescribed punishments if the prescribed
punishment for the offence has been changed between the time the offence was
committed and the time of sentencing.”

66. The above provision is irrelevant to the circumstance of this case as the prescribed
maximum penalty for the offence of Theft is still the same that is 10 years’ imprisonment.
And also, the applicable tariff for the offence of Theft as per the case of Ratusili v State
Criminal Appeal No. HAA 011 of 2012 was applied by the learned Magistrate.

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67. The Appellant raised in his submission that the sentence was harsh and excessive when
the sentences for both counts were made to run consecutively to each other and therefore,
the learned Magistrate failed to consider the totality principle. The Sentencing and
Penalties Decrees allows the Court to order sentence to run consecutively or concurrently
as per Section 22.

68. This provision was discussed by the Fiji Court of Appeal in Vukitoga v State [2013]
FJCA 19; AAU0049.2008 (13 March 2013) which was referred to in Dhirendra Nandan
v State- HAM 162 of 2014. The Court held that a concurrent sentence should be imposed
and that if the Court intends to impose a consecutive sentence, then the Court must give a
justifiable reason to do so. In this case, the learned Magistrate has imposed a consecutive
sentence without any reason noted. Therefore, Appellant’s argument has some merits.

Ground IX

69. The Appellant argued that the learned Magistrate fell into error when he imposed a 2
years’ non-parole period. The Appellant has not made any further submission to clarify
this ground. Non-parole period is not excessive and not in breach of the Sentencing and
Penalties Decree in relation to the sentence the learned Magistrate imposed.

D. CONCLUSION

70. There is substance in grounds raised by the Appellant against his conviction and
Sentence. For the reasons given, I quash the conviction and sentence of the learned
Magistrate at Lautoka. Appellant has already served both in remand and prison for more
than one year. If the sentences imposed on him were to run concurrently, he would have
served almost his full sentence. Therefore, I do not order a retrial.

Aruna Aluthge
Judge

At Lautoka
02nd May, 2016

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Solicitors: Appellant in Person
Office of the Director of Public Prosecution for Respondent
IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA 33 OF 2015

BETWEEN:

PENI TUILASELASE
APPELLANT

AND:

STATE
RESPONDENT

Counsel: Appellant in Person

Ms. J. Fatiaki for Respondent

Date of Judgment: 25th November, 2015

JUDGMENT

1. The Appellant has filed this appeal against the sentence imposed on him by the
Magistrates Court of Fiji at Lautoka on 22ndof July 2015.

2. On the 2nd of June 2015, the Appellant tendered an unequivocal plea of guilty to one
count of Theft contrary to Section 291(1) of the Crimes Decree No. 44 of 2009 and was
convicted.

3. He was sentenced to an imprisonment of 18 months with non-parole period of 12 months.

4. Appellant's grounds of appeal can be summarised as follows:

I. THAT the Learned Magistrate had erred in law and in fact

in that he failed to give adequate and proper discount for the
early guilty plea.

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 II. THAT the Learned Magistrate had erred in law and fact in
that he picked a higher starting point of the tariff for simple
theft.

III. THAT the sentence imposed is manifestly harsh and

excessive in all the circumstances of the case.

IV. THAT the Learned Magistrate erred in law that he

considered the offence itself as aggravating factor.

5. On the 2ndof June, 2015, the Learned Magistrate had read out the charge and explained it
to the Appellant. Having understood the charge, Appellant had pleaded guilty. Then the summary
of facts had been read out and explained. The Learned Magistrate had convicted the Accused
upon being satisfied that he understood the facts.

6. The Learned Magistrate, in his sentencing ruling, had clearly stated that the conviction is
entered upon his guilty plea. In his sentencing order the Learned Magistrate had not narrated the
full summary of facts. However, as per the copy record of the Magistrates Court, the Learned
Magistrate had read the summary of facts. Summary of facts in Appendix 'A'upon which
conviction was entered are as follows:

"On Saturday the 18th day of April, 2015 at about 1100 hrs one Peni Tuilaselase, 39
years [B-1] of Nailaga Village, Ba stole a handbag containing a gold nose stud valued
$200.00 and some loose coins $4.00 from inside a vehicle Registration No. ED 493 the
property of one Birja Wati, 51 years [A-1] of Kashmir, Lautoka whilst she was driving
along Tukani Street, Lautoka.

Briefly [A-1] was going for shopping in town and whilst stopping for traffic along Tukani
Street [B-1] with another approached [A-1]'s vehicle and whilst one distracted [A-1]
from her side the other picked her hand bag from the front passenger's seat and both fled
towards the bus stand area.

One Daniel Naidu, 28 years [A-2] Enforcement Officer for Lautoka City Council whilst
patrolling in their vehicle clearly saw what [B-1] and his partner had done and followed
them towards the bus stand area where he was able to arrest [B-1] who was still in
possession of [A-1]'s hand bag. [A-2] then brought [B-1] to the Market Police Post
where he handed him over the Police Officer on duty there.

[B-1] was then escorted to the Lautoka Police Station under arrest whereby he was
interviewed under caution by DC Wara and was subsequently charged for one count of
Theft; Contrary to Section 291 of the Crimes Decree No. 44 of 2009. [B-1] is appearing
20
 in custody"

Discount for the early guilty plea

7. The Appellant contends that the Learned Magistrate fell into error when he failed to give
adequate and proper discount for his remorse and the early guilty plea.

8. In his sentencing remarks, the Learned Magistrate has in fact considered the early guilty
plea as a mitigating circumstance and has given a discount of six months on that account.

9. Section 4 (2) (f) of the Sentencing and Penalties Decree No. 44 of 2009 does provide for
a reduction of sentence in recognition of offender's guilty plea.

10. In Rokini v State [2013] FJHC 680 (12 December 2013) the Court has noted as follows:

"Section 4(2) of the Sentencing and Penalties Decree provides that the Court must have
regard to an offender's guilty plea in sentencing. This section has incorporated the long
standing practice of the Courts to reduce a sentence where the accused has pleaded
guilty".

10. Degree or proportion of discount to be given to an early guilty plea has been discussed in
number of cases and it is now settled in Fiji that 1/3rd discount of the total sentence of
imprisonment is desirable as a matter of practice.

11. In Ratubalavu v State [2009] FJHC 199; (10 September 2009) the Court noted:

"It has been the practice of the Courts in Fiji to give a reduction of one third in the
sentence for an early plea of guilty by an accused".

12. In the case of Mahendra Singh v The State; Criminal Appeal No.AAU0036.2008 (1st April
2009) their Lordships of the Court of Appeal held that:

"A reduction of sentence by one third is the standard for a plea of guilty: Vilimone v.
State [2008] FJHC 12; HAA 131-133.2007 (8 February 2008); Veretariki Vetaukulav.
The State(FJCA Crim App Case No. HAA057/07); Hem Dutt v. The State (FJCA Crim
App Case No. AAU0066 of 2005); Tuibua v. State (2005) FJHC 188 HAA 0677 (15 July
2005)".

13. In Suresh Lal v State HAA 020 OF 2013 [2013 November 12] it was stated that:

"It is now widely accepted that an accused person who pleads guilty to the allegations
21
 levelled against him at the 1st available opportunity will be entitled up to a reduction of a
third of his or her final sentence".

14. Case law discussed above advocates that a discount of 1/3rd of the total sentence of
imprisonment should be given in Fiji in cases where the accused has tendered an early guilty
plea.

15. It was held in Naikelekelevesi v State [2008] FJCA 11; AAU 0061.2007 (27 June 2008) that
'Where there is a guilty plea, this should be discounted for separately from the mitigating factor
in a case.' The Learned Magistrate has correctly applied this principle.

16. Having adjusted the sentence for aggravating and mitigating circumstances, the Learned
Magistrate had reached a sentence of 24 months imprisonment. However, he had given only 6
months discount for early guilty plea. According to the widely accepted practice in Fiji,
discussed above, a discount of 1/3rd,(equivalent to eight months) should have been given.

17. The Learned Magistrate has not stated any reason why he deviated from the existing practice
and considered discount of 1/3rdis not appropriate in the circumstances of the case.

18. To meet the legitimate expectation of the Accused and in order to maintain uniformity of
sentencing policy, I am of the opinion that the Appellant is justly entitled to 1/3rddiscount of his
sentence. To that extent, the Appellant succeeds in his appeal.

Starting Point

19. The Appellant's contention is that the trial judge erred in selecting a starting point of 18
months imprisonment.

20. Their Lordships of the Court of Appeal in Koroivuki v State [2013] FJCA15;
AAU0018.2010 (5th March 2013), made the following remarks in paragraph 27.

"In selecting a starting point, the court must have regard to an objective seriousness of
the offence. No reference should be made to the mitigating and aggravating factors at
this stage. As a matter of good practice, the starting point should be picked from the
lower or middle range of the tariff. After adjusting for the mitigating and aggravating
factors, the final term should fall within the tariff. If the final term falls either below or
higher than the tariff, then the sentencing court should provide reasons why the sentence
is outside the range"

21. Maximum sentence for Theft is ten years imprisonment. In Ratusili v State [2012] FJHC
1249 (1st August 2012) Justice Madigan having considered various existing decisions formulated
22
the tariff for Theft as follows:

(i) for a first offence of simple theft the sentencing range should be between 2 and 9
months.

(ii) any subsequent offence should attract a penalty of at least 9 months.

(iii) theft of large sums of money and thefts in breach of trust, whether first offence or not
can attract sentences of up to three years.

(iv) regard should be had to the nature of the relationship between offender and victim.

(v) planned thefts will attract greater sentences than opportunistic thefts.

22. The State has cited Apimeleki Rairobo Waqa v State HAA 017 of 2015 (5 October 2015) as
the guideline judgment that has settled the tariff for Theft. However the Learned Magistrate has
sentenced the Appellant on 22nd July 2015and hence Waqa is not applicable to the present
appeal.

23. Since the Appellant had previous convictions, the tariff for theft in the present case should be
between 9 months and 3years' imprisonment as per the guidelines in Ratusil.The Learned
Magistrate had picked a starting point of 18 months imprisonment at the middle range of the
tariff band.

24. The Learned Magistrate's selection of starting point at 18 months is not obnoxious to the
principles enunciated in Koroivuki. He has considered the objective seriousness of theft
committed in broad daylight in a public street. Although the Learned Magistrate did not refer to
the tariff for the offence of Theft or any other applicable guideline judgment, he did however
pick a starting point which is within the prescribed tariff for Theft. He has not applied wrong
principles. I endorse the starting point picked by the Learned Magistrate. Hence second ground
of appeal fails.

Sentence is harsh and excessive.

25. Having picked the starting point of 18 months, the Learned Magistrate, had added 9 months
considering the aggravating circumstances, and deducted 3 months for mitigating circumstances.

26. He has identified the following aggravating circumstances:

a. Theft was committed in an organised manner in the company of another

person.
23
 b. Theft was committed in broad daylight on a busy street.

c. These kinds of offences are prevalent in society.

27. The Learned Magistrate correctly identified the first two aggravating factors but not the third.
I agree with the Learned Magistrate when he concluded that the theft had committed in an
organised manner. Summary of facts reveals that the Appellant had committed this offence in an
organised manner with another person.

28. The Appellant had not shown any regard or respect for public tranquillity, rights of others and
law enforcement of the country when he committed the theft in broad daylight on a busy street
and his conduct aggravates the offending.

29. However, the fact that these kinds of offences are prevalent in society cannot be regarded as a
matter for aggravation and the Learned Magistrate had fallen into error there.

30. The Learned Magistrate took into consideration the following mitigating factors:

a. He is married and his wife is expecting.

b. Sole breadwinner of the family.

c. He has asked for forgiveness.

31. In Raj v. State [2014 FJHC 12 (10 August 2014) Hon. Chief Justice held that the Accused's
responsibility towards his family has little migratory value.

32. The Learned Magistrate has correctly rejected the second mitigating circumstance as his wife
had earlier tendered an affidavit stating that she earns $ 500- $1000 per month.

33. The Learned Magistrate correctly identified the mitigating circumstances and had given a
proper discount accordingly.

Offence itself as an Aggravating Factor:

34. The Appellant in his written submission has taken up the position that the Learned Magistrate
erred in law and in fact by taking into account as an aggravating factor the offence itself.

35. Sentencing judge or magistrate should not take into account an element of the offence as an
aggravating factor. This Court is of the view that the Learned Magistrate has not taken into
24
account any element of the offence as an aggravating factor.

36. The Appellant was charged with one count of Theft. The elements of the offence of Theft are
as follows:

a. The Accused;

b. Dishonestly;

c. Appropriated;

d. The property belonging to another;

e. With the intention of permanently depriving the other of that property.

37. The aggravating factors the Learned Magistrate took into consideration are as follows:

a. Theft was committed in an organised manner in the company of another person.

b. Theft was committed in broad daylight on a busy street.

c. These kinds of offences are prevalent in society.

38. The Appellant was not charged with Aggravated Robbery. Therefore, commission of Theft in
the company of another is not an element of the offence with which he was charged.

39. The Learned Magistrate has not fallen into error when he identified commission of Theft in
the company of another as an aggravating circumstance. Therefore this ground of appeal fails.

Fixing of Non Parole Period

40. In his final written submission Appellant has taken up a new ground and contended that the
non-parole period imposed by the Learned Magistrate is obnoxious to sentencing principles.

41. The Sentencing and Penalties Decree 2009 provides for non-parole period in Section 18 as
follows:

18.- (1) Subject to sub-section (2), when a court sentences an offender to be imprisoned
for life or for a term of 2 years or more the court must fix a period during which the
offender is not eligible to be released on parole.

25
 (2) If a court considers that the nature of the offence, or the past history of the offender,
make the fixing of a non-parole period inappropriate, the court may decline to fix a non-
parole period under sub-section (1).

(3) If a court sentences an offender to be imprisoned for a term of less than 2 years but
not less than one year, the court may fix a period during which the offender is not eligible
to be released on parole.

(4) Any non-parole period fixed under this section must be at least 6 months less than the
term of the sentence.

42. The sentence imposed by the Learned Magistrate is less than two years but not less than one
year. So, under Section 18(1) it is not mandatory to fix a non-parole period. The Learned
Magistrate has fixed a non-parole period of 12 months when he imposed a sentence of eighteen
months imprisonment; that is six months less than the term of the sentence.

43. Sections 18(3) and 18(4) are the relevant sections applicable to the case in hand. Under
Section 18(3) the Learned Magistrate had discretion to fix a non-parole period without violating
the mandatory provision in Section 18(4). Having considered the nature of the offence, the past
history of the Appellant and also the term of imprisonment, the Learned Magistrate has exercised
his discretion judicially and lawfully when he fixed the non- parole period at 12 months for the
sentence 18 months imprisonment.

44. The Learned Magistrate is correct when he decided not to suspend the sentence as the
Appellant had previous convictions.

45. To give effect to my findings, I now proceed to sentence the Appellant afresh. I select the
same starting point as the Learned Magistrate did at 18 months. I identify following aggravating
factors and add 6 months to the starting point bringing the interim sentence to 24 months
imprisonment.

a. Theft was committed in an organised manner in the company of another person

b. Theft was committed in broad daylight on a busy street.

46. I deduct three months in recognition of following mitigating circumstances, as was identified
by the Learned Magistrate, bringing the interim sentence to 21 months imprisonment.

a. He is married and his wife is expecting.

b. He has asked for forgiveness.

26
47. I further deduct 8 months to give full effect to his early guilty plea bringing the final sentence
to 13 months imprisonment. Having considered Section 18 (4) of the Sentencing and Penalties
Decree 2009, I fix the non-parole period at7 months.

48. The sentence imposed by the Learned Magistrate is set aside. The Appellant is sentenced to
13months imprisonment with non-parole period of 7 months.

Aruna Aluthge
Judge

At Lautoka
25th November, 2015

Counsel: - Appellant in Person

Office of the Director of Public Prosecution for Respondent

27
 IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAA 30 OF 2015

BETWEEN:

KESHWAN
APPELLANT

AND:

THE STATE
RESPONDENT

Counsel : Mr. Samuel K Ram for the Appellant

Mr. A. Dutt for the Respondent

Date of Hearing : 24th of September 2015

Date of Judgment : 23rd of October 2015

JUDGMENT

Introduction

1. The appellant files this appeal against the conviction and the sentence of the learned
Resident Magistrate of Rakiraki dated 3rd of June 2015 and 1st of July 2015 respectively. The
grounds of appeal against the conviction and the sentence are that;

i. The learned trial Magistrate erred in law in convicting and sentencing the
accused of an offence which did not exist under Section 291 of the Crimes Decree and
when the charge did not state all the elements of the offence under the said Section,

ii. The Learned trail magistrate erred in law in identifying the elements of the
offence under Section 291 of the Crimes Decree 2009, when he said that the elements
included " without consent of owner", Fraudulently" " without claim of right made in

28
 good faith" and "took or carried away anything capable of being stolen" and the said
provision provided that the elements as;

a. The accused,

b. Dishonestly appropriates property,

c. which belongs to another persons and

d. appropriates the property with the intention of permanently depriving the

other person of the property.

iii. The learned Magistrate erred in convicting the accused when he found as a fact
following;

a. That an arrangement was made for the items which were subject of the
charge and belongings to the prosecution witness to be kept with the Appellant
and the complainant was aware of this arrangement,

b. The goods were taken to the place of the accused for safekeeping,

c. The Appellant was returning the goods, but the complainant did not take it,

d. As the above clearly establishes that there was no dishonest appropriation

of property or that the Appellant had taken the property with the intention to
permanently deprive the owner of the property,

iv. The Learned Magistrate erred in sentencing in not properly applying the tariff for
the offence of theft and in not properly identifying and applying all the aggravating and
mitigating factors and the said sentence was harsh in the circumstances,

2. Upon being served with this petition of appeal, the Respondent appeared in court. Both
parties were then directed to file their respective submissions, which they filed accordingly.
Subsequently, the matter was set down for hearing on the 24th of September 2015. On that day,
the counsel for the Applicant and the Respondent consented and agreed to conduct the hearing by
way of further written submissions. I accordingly directed them to file their further written
submissions, which they filed as per the direction. Having carefully considered the petition of
appeal, and the respective submissions of the parties, I now proceed to pronounce my judgment
as follows.

Background
29
3. The Appellant was charged for one count of theft contrary to Section 291 of the Crimes
Decree in the Magistrate's court at Rakiraki. Subsequent to the hearing of the charge, the learned
Magistrate found the Appellant guilty for the offence and convicted accordingly. The learned
Magistrate then sentenced the Appellant for 18 months with 9 months to be served as immediate
prison term and the remaining period was suspended for a period of 2 years. The Appellant has
now appealed against the said conviction and the sentence.

First Ground of Appeal

4. Having considered the background, I now turn onto the first ground of appeal. The
Appellant contended that the learned Magistrate convicted and sentenced the accused on a non
existing offence under the Crimes Decree.

5. The learned counsel for the Appellant submitted that the particulars of offence does not
state the mental element of the offence, that is "dishonestly appropriate the property" as defined
under Section 291 of the Crimes Decree. Instead, the particulars of offence states that the
accused stole the property, which is not used in Section 291 of the Crimes Decree.

6. Sections 58 and 61 of the Criminal Procedure Decree stipulate what should contain in the
charge or information. It states that;

"Every charge or information shall contain—

a. A statement of the specific offence or offences with which the accused

person is charged; and

b. Such particulars as are necessary for giving reasonable information as to

the nature of the offence charged".

7. Section 61 of Criminal Procedure Code states that;

i. A count of a charge or information shall commence with a statement of the offence

charged, and this shall be called the statement of offence.

ii. Each statement of offence shall describe the offence shortly in ordinary language,
avoiding as far as possible the use of technical terms, and without necessarily stating all
the essential elements of the offence.

iii. The charge shall contain a reference to the section of the law creating the offence.

30
 iv. After the statement of the offence, particulars of the offence shall be set out in
ordinary language, and the use of technical terms shall not be necessary.

8. Accordingly, the statement of offence and the particulars of offence are the
two main components in instituting an action. The statement of offence describes the offence and
the particulars of offence explains the nature of the charge. It is not required to use the language
of legal parlance in the statement of offence and particulars of offence. It should be in ordinary
language, avoiding as far as possible the use of technical terms. Moreover, it is not necessary to
state all the essential elements of the offence in the statement of offence.

9. The Fiji Court of Appeal in Shekar & Shankar v State ( Criminal Appeal No
AAU0056 of 2004) discussed the purpose of a charge, where it held that;

"The purpose of the charge is to ensure that the accused person knows the offence with
which he is being charged. Whilst the particulars should be as informative as it
reasonably practicable, it is not necessary slavishly to follow the section in the Act"

10. In State v Singh ( Criminal Appeal No AAU0097 of 2005S) the Fiji Court of Appeal
expounded the purpose of the particulars of offence, where it observed that;

"The purpose of the particulars of offence is to indicate to the person accused of the
offence the nature of the case the state intends to present. It does not need to set out the
whole evidence and it is sufficient if it indicates how the case will be presented. What is
important is the evidence the prosecution adduces"

11. In view of the submissions made by the learned counsel for the Appellant, it
appears that his main contention is focused on the particulars of the offence. He argues that the
omission of the mental element of the offence as defined under Section 291 of the Crimes
Decree, which is "dishonestly appropriate property" in the particulars of offence, made the
charge defective and not known to the law.

12. Justice Goundar in Tavurunaqiwa v State (2009) FJHC 198; HAA022.2009 (10
September 2009),having cited R v McVitie ( 1960) 44 Cr.Ap. R 201), has discussed the
applicable approach to determine the defective charge in an elaborative and inclusive manner,
where his lordship held that;

A more relevant authority on the point of law is the decision of the English Court of
Criminal Appeal in McVitie (1960) 44 Cr. Ap. R. 201. McVitie was followed by the Court
of Appeal in Skipper. In McVitie the indictment charging the accused with possession of
explosives omitted the word "knowingly" from the particulars of offence, which was an
essential ingredient of the offence in the statute creating the offence. On appeal the Court
31
of Criminal Appeal said:

"It is conceded that the appellant was in no way embarrassed by the omission in
question. He admitted that he new he had explosives in his possession, and he certainly
did not prove, even on a balance of probabilities, that he had them for any lawful
purpose. But he says that he was tried on an indictment which was not merely defective
but bad, since it disclosed no offence, and this must be a substantial miscarriage of
justice precluding the application of the proviso.

Section 3 of the Indictments Act, 1915, provides as follows:

Every indictment shall contain, and shall be sufficient if it contains, a statement

of the specific offence or offences with which the accused person is charged,
together with such particulars as may be necessary for giving reasonable
information as to the nature of the charge.

Rule 4(3) of the rules contained in the First Schedule to the Act provides that "The
statement of offence shall describe the offence shortly in ordinary language, avoiding as
far as possible the use of technical terms, and without necessarily stating all the essential
elements of the offence, and if the offence charged is one created by statute, shall contain
a reference to the section of the statute creating the offence" and rule 4(4) of the same
rules provides: "After the statement of the offence, particulars of such offence shall be set
out in ordinary language, in which the use of technical terms shall not be necessary."

The indictment in the present case conformed to these provisions, save only in one
respect. If the words in section 3, "necessary for giving reasonable information," import
an objective test (which we think they do) then the word "knowingly" should have been
included in the particulars. In our opinion this did not make the indictment a bad
indictment, but simply a defective or imperfect one. A bad indictment would be one
disclosing no offence known to the law, for example, where it was laid under a statute
which had been repealed and not re-enacted. In the present case the indictment described
the offence with complete accuracy in the "Statement of Offence." Only the particulars,
which merely elaborate the "Statement of Offence" were incomplete. The question of
applying the proviso is to be considered, therefore, not upon the basis that the indictment
disclosed no known offence but that it described a known offence with incomplete
particulars."

Later in the judgment, the Court of Criminal Appeal said:

"In the present case it is clear that no embarrassment or prejudice was caused to
the appellant by the omission of the word "knowingly" from the particulars, or
32
 from the arraignment. He had been properly charged in the first place, and
properly committed for trial, and the Attorney-General's fiat was in proper form"

13. According to the principles enunciated in McVitie (supra) the court is first required to
determine whether the charge is bad or defective. If the court is satisfied that the charge is
defective, but not bad, then it requires to determine whether the accused was embarrassed or
prejudiced by the defect.

14. I now draw my attention to the statement of offence and particulars of offence of this
instant case, where it states that;

Statement of Offence,
Theft:- Contrary to Section 291 of the Crimes Decree No 44 of 2009

Particulars of Offence
Keshwan between 1st day of February and 30th day June 2011 at Volivoli, Rakiraki in
the Western Division, stole 1 compressor valued at $ 665.00, 1 welding plant valued at $
685, 1 grinding machine valued at $85, 4 spray guns valued at $360, 4 lead wire with
tool box with tools $ 180 and 2 nanny goats valued $300 all to the total value of $ 2275,
the property of Shiu Prasad.

15. In view of the statement of offence and particulars of offence, I find that the statement of
offence has been accurately described the offence with reference to the relevant Section in the
Crimes Decree. The only omission in the particulars of offence is the mental element as defined
in Section 291 of the Crimes Decree. The learned counsel for the Appellant further contented that
the word "stole" as stated in the particulars of offence is not stated under Section 291. Therefore
the charge is not known under Section 291 of the Crimes Decree.

16. Having considered the first ground of appeal and the submissions made by the learned
counsel of the parties, I find that the statement of offence and particulars of offence disclose a
known offence but with incomplete particulars. Therefore, I find that the charge is not bad or
unknown to the law.

17. The accused was represented by a lawyer during the hearing in the Magistrate Court. He
has not taken any objection on the ground of such defectiveness of the charge. The accused
defended himself in the Magistrate court against the charge of Theft. Accordingly, it appears that
the accused was neither misled with the nature of the charge, nor with his defence. Thus, I find
that such omission as discussed above, and the insertion of the word " stole" has not embarrassed
and prejudiced the accused. Accordingly, the first ground of appeal fails.

Second Ground of Appeal

33
18. I now turn onto the second ground of appeal, which is founded on the contention that the
learned Magistrate erroneously considered the elements of the offence of theft in his judgment.
The learned counsel for the Appellant submitted that the learned Magistrate has considered the
definition given in Section 259 of the repealed Penal Code in his judgment instead of Section
291 of the Crimes Decree.

19. The learned Magistrate in paragraph 17 of his judgment has considered the following
items as the elements of the offence of theft;

i. Accused,
ii. Without consent of owner,
iii. Fraudulently, and
iv. Without claim of right made in good faith,
v. Took and carried away anything capable of being stolen ( items mentioned in the
charge)
vi. With intent at the time of taking to permanently deprive the owner off the said
items.

20. I do concur with the learned counsel's contention to the extent that the learned Magistrate
has considered the elements of offence as defined under Section 259 of the repealed Penal Code.
Section 259 of the Penal Code States that;

"A person steals who, without the consent of the owner, fraudulently and without a claim
of right made in good faith, takes and carries away anything capable of being stolen with
intent, at the time of such taking, permanently to deprive the owner thereof:"

21. In fact, the learned Magistrate was required to consider Section 291 of the Crimes
Decree. Section 291 of the Crimes Decree states that;

"A person commits a summary offence if he or she dishonestly appropriates property

belonging to another with the intention of permanently depriving the other of the
property"

22. According to Section 291 of the Crimes Decree, the main elements of the offence of
Theft are that;

i. The Accused,
ii. Dishonestly appropriates,
iii. Property belonging to another,
iv. With the intention of permanently depriving the other of the property.
34
23. At this point, it is my opinion that it is prudent to consider the principles stipulated under
Section 259 of the Penal Code and Section 291 of the Crimes Decree. If the court satisfies that
both sections are founded on the same principles, then it is necessary to consider the judgment in
its entirety in order to determine whether the learned Magistrate has formed his conclusion of the
guilt of the accused based on those principles.

24. Section 291 of the Crimes Decree has introduced far reaching changes to the scope of
definition of the offence of theft. It has reconstructed the main elements of the offence of theft
from its existed definition under Section 259 of the Penal Code.

25. Section 291 introduces a new definition of mental element for the offence of theft,
expanding the scope of its application. Under the previous regime of the Penal code, the mental
element had been defined as "fraudulently and without a claim of right made in good faith".
Section 291 of the Crimes Decree has replaced the existing mental element by the term of
"dishonestly" with a more wider notion.

26. Section 291 of the Crimes Decree has also replaced the physical element of the offence of
theft . It replaces the element of "takes and carries away anything capable of being stolen without
the consent of the owner" with more wider and expanded element of "appropriates property
belonging to another". The physical element as defined under Section 259 of the Penal Code was
limited only to taking of the property. However, Section 291 of the Crimes Decree has expanded
the physical act and it now covers not only of taking, but also to the assumption of the right of
ownership, possession, or control of any property without the consent of the person to whom it
belongs. Thus expanding the notion of "taking" to certain cases of obtaining possession without
actually taking it.

27. Another notable change brought in by the Section 291 of the Crimes Decree is that,
unlike Section 259 of the Penal Code, it has not limited the existence of the intention of
permanently depriving the other of the property. Under the previous regime of Penal Code, such
intention was required to be exist at the time of taking the property. However, Section 291 does
not require such intention at the time of appropriation. Thus extending the criminal responsibility
to an innocent acquisition followed by dishonest decision of keeping or disposing of the property
without the consent of the owner.( Section 293(2) of the Crimes Decree).

28. Understanding of the purpose of introducing the Theft Act of 1968, replacing the Larceny
Act of 1916 in UK, in my view, would assist in comprehending the purpose of the changes
brought in to the legal domain by Section 291 of the Crimes Decree.

29. Section 1 (1) of the Larceny Act of 1916 has defined the offence of theft as;

35
 "A person steals who, without the consent of the owner, fraudulently and without a claim
of right made in good faith, takes and carries away anything capable of being stolen with
intent, at the time of such taking, permanently to deprive the owner thereof"

30. It appears that the definition of the theft, given by Section 1(1) of the Larceny Act is
apparently similar to the definition of Section 259 of the repealed Penal Code.

31. Theft Act of 1968 then repealed the Larceny Act introducing wider changes to the regime
of theft and other related offences. Section 1 (1) of the Theft Act 1968 defines the offence of
theft as;

"A person is guilty of theft if he dishonestly appropriates property belonging to another

with the intention of permanently depriving the other of it; and "thief" and "steal" shall
be construed accordingly"

32. Eight Report of the Criminal Law Revision Committee on Theft and Related
Offences has explained the purpose of the changes brought in by the Theft Act in relation to the
offence of theft, where it states that;

"The committee generally are strongly on opinion that larceny, embezzelment and
fraudulent conversion should be replaced by a single new offence of theft. The important
element of them all is undoubtedly the dishonest appropriation of another person's
property and we think it not only logical, but right in principle to make this the central
element of the offence. In doing so the law would concentrate on what the accused
dishonestly achieved or attempted to achieve and not on the means, taking or otherwise,
which he used in order to do so. This would avoid multiplicity of offences"

33. Lord Stonham while moving the Bill of Theft Act in the House of Lords, explained the
purpose of the introduction of Theft Act of 1968 in a succinct manner. Lord Stonham stated that;

We hope and believe that in dealing with an infinite variety of theft the Bill provides a
simple, efficient, and satisfactory code.

In the hope of avoiding what would otherwise be an intolerably long speech, I propose to
deal only with the more important provisions of the Bill and explain the thinking and
policy behind them. Clauses 1 to 7 deal with the new offence of theft, which will replace
the existing offences of embezzlement, fraudulent conversion, and the twenty or so
different varieties of larceny. The law of larceny at present is difficult and complex. It
calls for a great deal of interpretation by the courts, yet fails to deal with certain kinds of
dishonesty which should certainly be punishable. To me as a layman, with memories of
Bleak House, the deepest complexities of the law are in the field of Chancery: but I was
36
 interested to see that in a recent case—it was one which raised the fascinating question
whether mussels are wild animals—a distinguished counsel said As one who normally
practices in the Chancery Division I am left wondering at the legal complications that
may arise in the more sophisticated forms of larceny. The Bill will reduce that wonder,
but I am not sufficiently acquainted with the wilder habits of mussels to answer that legal
poser…………

The Committee's solution was a single offence of theft. This is Clause 1 of the Bill, and
under it a person will be guilty of theft if he dishonestly appropriates property belonging
to another with the intention of permanently depriving the other of it". Clauses 2 to 6
interpret the expressions used in this basic definition, and Clause 7 provides for a single
maximum penalty. The law will thus concentrate on what the accused dishonestly
achieved or attempted to achieve and not, as under the present law, on the means which
he used in order to do so. In this way we avoid the need for a number of different offences
which are all in the same family of theft". (HL Deb 15 February 1968 vol 289 cc212-23)

34. Lawton LJ in R v Feely (1973) 1 All ER 341, at 344) has summarised the changes
brought in by the Theft Act, where his lordship observed that;

"The long title of the Act states with these words; "An Act to revise the law of England
and Wales as to theft and similar or associated offences" The draftsman seems to have
searched the statute book for all the statutes dealing with offences of dishonesty and it is
probable that all the old enactments have been repealed so as to enable the Theft Act
1968 to deal comprehensively with this branch of the law. The design of the new Act is
clear; nearly all the old legal terms to describe offences of dishonesty have been left
behind; larceny, embezzlement and fraudulent conversion have become theft; receiving
stolen goods has become handling stolen goods; obtaining by false pretences has become
obtaining pecuniary advantage by deception. Words in everyday use have replaced legal
jargon in many part of the Act. This is particularly noticeable in the series of section
defining theft".

35. Having understood the purpose and the changes brought in by the Theft Act of 1968 in to
the jurisdiction of UK, it is my opinion that Section 291 of the Crimes Decree has also brought in
similar changes into the legal domain of Fiji Islands. Section 291 of the Decree has not changed
the fundamental principles of the offence of theft. Actually, it has codified the various categories
of offence of larceny found in the then Penal Code into a one single offence of Theft. While
doing that, Section 291 has expanded the scope of the definition of Theft without changing the
definition fundamentally. Accordingly, I find the offence of theft as defined under previous penal
code and under Section 291 of the Crimes Decree are founded on the same fundamental elements
and principles.

37
36. I now draw my attention to determine whether the learned Magistrate has properly and
correctly considered those fundamental elements as discussed above in his judgment in order to
reach his conclusion of the guilt of the accused.

37. The brief summary of this alleged incident is that while the complainant was in prison,
the accused has taken to his house the items belonging to the complainant without his consent.

38. The learned Magistrate has considered the evidence given by the complainant, the partner
of the complainant and the sister of the complainant and then held that the items were removed
to the house of the accused without the consent of the complainant.

39. The learned Magistrate has then considered the evidence of the partner of the
complainant, where she has stated that the accused told her that he will use the items and will
return them once the complainant comes from the prison. The complainant in his evidence has
stated that the accused has told him that he will return the items in two weeks, but never did so.
The learned Magistrate having discussed the evidence given by the accused and the defence
witness together with their demeanour, found the accused's version of the event unacceptable.
Having considered these evidence, the learned Magistrate has then found that the accused has
dishonestly appropriated the items belonging to the complainant.

40. Accordingly, I am satisfied that the learned Magistrate has correctly considered the
relevant elements of the offence of Theft in his judgment, though he has mentioned the elements
of the theft as defined by the previous regime of the Penal Code in paragraph 17 of his judgment.
Hence, I find the second ground of appeal has no merit and it fails.

Third Ground of Appeal

41. I now draw my attention to the third ground of appeal, which is founded on the
contention that there were no evidence of dishonesty. The learned counsel for the Appellant
submitted that the learned Magistrate has erroneously convicted the accused when he found that
there was an arrangement made to keep the items safely at the accused's place. The learned
counsel further submitted that the learned Magistrate has further found that complainant refused
to take the items, when it was returned by the accused.

42. Section 290 of the Crimes Decree stipulates the meaning of dishonest, where it states
that;

dishonest means —

i. dishonest according to the standards of ordinary people; and

38
 ii. known by the defendant to be dishonest according to the standards of
ordinary people.

43. Lawton LJ in R v Feely 9 (1973) 1 ALL ER 341) held that;

"The word "dishonesty" can only relate to the state of mind of the person who does the
act with amounts to appropriation. Whether an accused person has a particular state of
ind is a question of fact, which has to be decided by the jury where there is a trial on
indictment and by the justices when there are summery proceedings".

44. Lord Lane CJ in R v Ghosh ( 1982) 2 ALL ER 689, 696) has discussed the applicable
approach of determining whether the accused person acted dishonestly, where his Lordship held
that;

"In determining whether the prosecution has proved that the defendant was acting
dishonestly, a jury must first of all decide whether according to the ordinary standards of
reasonable and honest people what was done was dishonest. If it was not dishonest by
those standards, that it the end of the matter and the prosecution fails. If it was dishonest
by those standards, then the jury must consider whether the defendant himself must have
realised that what he was doing was by those standards dishonest".

45. In view of the aforementioned judicial precedents, it appears that the determination of the
element of dishonest is a question of fact. The learned Magistrate is first required to decide the
conduct of the accused is dishonest according to the standard of ordinary people. If he satisfies,
he then needs to determine whether the accused had realised that what he was doing was
dishonest according to those standards of ordinary people.

46. In this instant case, the learned Magistrate has refused to accept the evidence of the
defence as credible, reliable and worthy of belief. He has then found in paragraph 30 of his
judgment, that the accused fraudulently misrepresented to the sister of the complainant that the
items could be kept at his place until the complainant comes from the prison. The accused then
took the items and disposed them for his own use and benefit. The learned Magistrate has
accepted and considered the evidence given by the complainant, the partner of the complainant,
the sister of the complainant and the taxi driver in order to reach such a conclusion of his
findings.

47. In view of the reasons discussed above, I am satisfied that the learned Magistrate has
properly given his consideration to the evidence adduced before him in order to reach his
conclusion that the accused has dishonestly appropriated the items belonging to the complainant,
without his consent. I accordingly find that the third ground of appeal has no merit.

39
Fourth Ground of Appeal.

48. The fourth ground of appeal is founded on the ground that the learned Magistrate has not
properly considered the applicable tariff and has failed to properly identify the aggravating and
mitigating factors in his sentencing.

49. The learned Magistrate has stated in his sentence that the tariff for theft ranges from 2 to
9 months for first conviction and between 9 and 24 months for the second convictions depending
on the value of the goods and circumstances of the stealing. In fact, the tariff identified by the
learned Magistrate is not in conformity with the acceptable tariff limit enunciated in Ratusili v
State [2012] FJHC 1249; HAA011.2012 (1 August 2012)

50. Justice Madigan in Ratusili v State (supra) set the following tariff limits for the offence
of theft, where his lordship held that;

"From the cases then the following sentencing principles are established:

i) For a first offence of simple theft the sentencing range should be between 2
and 9 months.

ii) Any subsequent offence should attract a penalty of at least 9 months.

iii) Theft of large sums of money and thefts in breach of trust, whether first
offence or not can attract sentences of up to three years.

iv) Regard should be had to the nature of the relationship between offender and
victim.

v) Planned thefts will attract greater sentence than opportunistic thefts"

51. In this instant case, the learned Magistrate has considered as aggravating factors the value
and the nature of the stolen items, the benefit obtained by the accused from the stolen items,
deceitful and calculated plan of the offence, and the breach of trust.

52. In respect of the mitigating factors, the learned Magistrate has taken into consideration
the facts that the accused is married and having 4 children, and that he is the sole bread winner of
the family. He has further considered that the accused is a first offender and has been remorseful.

53. The learned Magistrate has selected 18 months as the starting point.

54. This is a case involved with properties of substantive value and breach of trust. The
40
learned magistrate has considered the fact that the accused and the complainant are known to
each other and the accused has breached that trust by committing this offence. Accordingly, this
case falls within the third category as expounded by Justice Madigan in Ratusili (supra). Hence,
I find that the learned Magistrate has correctly selected 18 months as a starting point. However, I
find the learned Magistrate has then fallen in error by again considering the value of the stolen
items and breach of trust as aggravating factors. Nevertheless, I find no error of increasing 4
months for the other aggravating factors identified by the learned Magistrate in his sentencing.
The learned Magistrate having considered the mitigating factors, has then reduced 4 months to
reach the final sentence of 18 months.

55. Having reached to 18 months imprisonment, the learned Magistrate has then partly
suspended the sentence in order to accommodate the rehabilitation. He found no exceptional or
compelling circumstances to suspend the sentence wholly. Hence, I do not find any reason to
interfere with the learned Magistrate's finding and conclusion in his sentence. Accordingly, I find
the fourth ground of appeal has no merit.

56. In conclusion, I refuse and dismiss this Appeal and uphold the conviction and the
sentence imposed by the learned Magistrate on 3rd of June 2015 and 1st of July 2015
respectively.

57. 30 days to appeal to the Fiji Court of Appeal.

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
23rd of October 2015

Solicitors : Office of the Director of Public Prosecutions

Samuel K Ram, Barrister and Solicitor,

41
Elements Of The Theft Act
Theft act 1968 (TA) Section 1(1) defined as “A person is guilty of theft if he dishonestly
appropriates, property, belonging to another with the intention of permanently depriving the
other of it; and ‘thief’ and ‘steal’ shall be construed accordingly"1. Maximum penalty of Theft is
for seven years imprisonment on conviction and on indictment. To commit a theft Act 1968 (TA)
it must be proved both Actus Rea and Mens Rea. There are five elements under the Theft act
(1968), Appropriation, Property and Belonging to another and for Mens Rea dishonestly, and
with the intention of permanently depriving.

Appropriation is the first element of theft Act (1968). Section 3(1) defined as “any assumption by
a person of the rights of an owner amount to an appropriation, and this, includes, where he has
come by the property (innocently or not) without stealing it, any later assumption of a right to it

42
by keeping or dealing with it as owner"2. Section 1(2) of the theft act 1968 act provides that “it
is immaterial whether the appropriation is made with a view or gain, or is made for the thief’s
own benefit"2. Appropriation is a wide in its operation in which it all includes like taking, and
destroying. In recent years courts presented two major issues which relates to meaning of
appropriation which are ‘ whether the defendant must assume all of the rights of an owner, or
whether it is sufficient that s/he assumes one of the rights of an owner,’ and ‘ whether
appropriation must be a non-consensual (unauthorised) act’3.

DPP v Gomez [1993]4, The Defendant Edwin Gomez, was employed as an assistant manager in
a trading shop, for retailing in electrical goods as; he was approached by a customer and wanted
to acquire goods in exchange of two stolen cheques. For exchange of cheques he deceived the
shop manager and authorizes the sales of goods while knew that the cheques were stolen. The
defendant was charged for the theft contrary section 1(1) of the (TA) theft act (1968). It was held
by judge that the goods had been sold between shop keeper and customer so for that reason there
had been no appropriation of property to belonging to another. Therefore he pleaded guilty and
was convicted, he appealed in court of appeal (criminal division) they allowed his appeal against
conviction5.

1. Theft act 1968

http://books.google.co.uk/books?
id=DDRzO7o14jEC&printsec=frontcover&dq=allen+criminal&cd=1#v=onepage&q=theft&f=fa
lse

2.Appropriation

http://books.google.co.uk/books?
id=xikQkJgzvTIC&printsec=frontcover&source=gbs_v2_summary_r&cad=0#v=snippet&q=app
ropriation&f=false

3.Www. Spa-law.com, Semple Piggot Rochez Ltd, 2001

4. A.C. 442

5.http://www.lexisnexis.com/uk/legal/search/runRemoteLink.do?langcountry=GB&linkInfo=F
%23GB%23AC%23year%251993%25page
%25442%25sel1%251993%25&risb=21_T8855401515&bct=A&service=citation&A=0.307883
3277947467

In R v Morris [1984] 6 defendants dishonestly switched the price tags of goods and put lower
price into supermarket trolley. The defendant was arrested before paid lower price and charged
with theft act (1968). It is sufficient that defendant was assumes the rights of an owner, and can
43
only happen without the consent of the owner. However, there are different types of
appropriation which includes moving, touching, taking using disposing, selling, and destroying.7

However according to courts that in DPP v Gomez [1993] there could be restriction, where the
case obtained by deception rather than general. The area of law is an unsatisfactory, where it
combined the ratio, which effect in Morris and Gomez that the appropriation has a wider in a
range8. The most difficult issues of appropriation are that whether an act is unauthorized /
nonconsensual or authorized consensual act. According to Lord Roskill that authorization
destroys an appropriation9. In earlier case R v Lawrence (1972)10 it was approved by House of
Lord that consent did not destroy an appropriation11.

Section 3(2) theft Act (1968) “where property or a right or interest in property is or purports to be
transferred for value to a person acting in good faith, no later assumption by him of rights which
he believed himself to be acquiring shall, by reason of any defect on the transferor’s title, amount
to theft of the property"12.

The statutory definition of second element of theft act (1968) is defined under s.4 (1) is “property
includes money and all other property, real or personal, including things in action and other
intangible property"12. Section 4 covers both tangible and intangible objects, and in addition to
expressly covers the money.

6. AC 320

7. Www. Spa-law.com, Semple Piggot Rochez Ltd, 2001

8. http://www.leeds.ac.uk/law/hamlyn/rvgomez.htm

9. Www. Spa-law.com, Semple Piggot Rochez Ltd, 2001

10. AC 62

11. Www. Spa-law.com, Semple Piggot Rochez Ltd,

According to s.4 (1) theft act 1968, that currency is the property and kind of money which it
refers, however cheques is not a money but it is a property, because it is a piece of a paper in the
form of cheque (personal property)9. It is represented by things in action for right to sue in a
form of intangible property. Money in a bank account in credits or within an overdraft facility is
a “thing in action", capable of being stolen10. R. v. Kohn (1979)11defendant drew various
cheques on different bank company accounts, the processed is for his own personal benefit 12.
There are three types of categories in which theft fell on; the first situation is where when the
Bank Company was in credits12. In this instance the drawing of cheques on the company bank
amounted to be theft and was identified as the owed by the bank, the second point is where the

44
balance of the company bank was in overdraft, the amount dishonestly drawn and did not exceed
the agreed limit12. Thirdly, there were occasions where overdrafts exceed the limit12. However,
here there would be no action relationship between debtors/ creditor was arisen and the bank has
no obligation to make cheques draws on these accounts12. So if the bank account is in credit or
overdraft within the facility limit then there is capable property to be stolen12.

The third element of (Actus Reus) of theft act (1968) is Belonging to another, which is defined
under section 5 (1) that ‘property shall be regarded as belonging to any person having possession
or control of it, or having in it proprietary right or interest (not being an equitable interest arising
only from an agreement to transfer or grant an interest) 13’.

In Waverley borough council v Fletcher [1995]14defendant used mental detector in a park and
discovered an object below the surface. Defendant dug the surface and found valuable medieval
gold brooch. Local authority issued proceedings against defendant, claiming a declaration that
the brooch is the property of local authority. It was held by the court that local authority was
entitled and has a right of the finder to things which found in the ground of that open space but it
should be the rightful owner.

9. All England Law Reports

10.Www. Spa-law.com, Semple Piggot Rochez Ltd,

11. 69 Cr. App.R.395 12.http://books.google.co.uk/books?

id=YHDEf_0FF9cC&pg=PR36&dq=R+v+Kohn+1979&cd=1#v=onepage&q=R.%20v.
%20Kohn%20%281979&f=false

13.http://books.google.co.uk/books?
id=DDRzO7o14jEC&printsec=frontcover&dq=allen+criminal&cd=1#v=onepage&q=belonging
%20to%20another&f=false

14. 4 All ER 756

http://www.lexisnexis.com/uk/legal/search/runRemoteLink.do?langcountry=GB&linkInfo=F
%23GB%23ALLER%23sel2%254%25year%251995%25page%25756%25sel1%251995%25vol
%254%25&risb=21_T8854441708&bct=A&service=citation&A=0.4758703237719327

In Parker v. British Airways Board [1982] @ Q.B. 1004

45