Patesari Maharaj v. The King (PC) BS282984
PRIVY COUNCIL

(From Supreme Court of Fiji)

Before:- Lord Uthwatt, Lord Oaksey And Sir John Beaumont.

Privy Council Appeal No. 94 of 1946, D/d. 4.12.1947.

Patesari Maharaj - Appellant

Versus

The King - Respondent

For the Appellants :- Dingle Foot and Hon. Gavin Simmonds, Advocates.

For the King :- Frank Gahan, Advocate.

For the Appellant :- Solicitors, Barrow Rogers and Nevill, Advocates.

Solicitors for Appellants :- Burchells, Advocate.

JUDGMENT

Sir John Beaumont.-This Is An Appeal, By Special Leave, Against The Judgment and Sentence of The Supreme Court of Fiji D/ - 18.3.1946 whereby the appellant was found guilty of possession of a revolver without a licence contrary to Section 4 of the Arms Ordinance, 1937, and sentenced to nine months' imprisonment with hard labour. The accused was acquitted on a charge of being in possession of explosives contrary to the Defence (Explosives) Order, 1944.

2. At the conclusion of the arguments, their Lordships announced that they would humbly advise His Majesty that the appeal should be allowed, and the conviction and sentence quashed, and they now state their reasons.

3. The charge under the Arms Ordinance, 1937, related to the finding of a revolver in the bure annexed to the appellant's house by the police. The appellant, in his statement, admitted the finding of the revolver in the bure, but said that he did not know who placed it there, and that he knew nothing about the revolver; he suggested that some enemy of his might have planted it upon him. As no attempt was made to prove how the revolver came into the possession of the accused or to show that he was ever seen in possession of it, this denial deserved, their Lordships think, rather more consideration than it received from the learned Judge in his charge to the Assessors. He seems to have relied entirely on Section 37 of the Ordinance, which provides, that the occupier of any house, or premises in which any arms shall be found, shall be deemed, until the contrary is proved, to be the possessor of such arms for the purpose of the Ordinance, without considering whether there was evidence that the burden under that section had been discharged.

4. The trial took place before a Judge of the Supreme Court and two Assessors.

5. The material provisions of the Criminal Procedure Code in force in Fiji are the following:

6. It is plain that, under these provisions, the Judge is required to give judgment, and it is for him to convict or acquit and, in so doing, he is not bound by the opinion of the Assessors At the present trial the learned Judge summed up the case to the Assessors, and there is on the record a short note of his summing up. He appears to have treated the Assessors as a jury and to have left to them the decision on all questions of fact. At the conclusion of the trial, the Assessors both found the accused guilty of the offence under Section 4 of the Arms Ordinance, and thereupon the learned Judge passed sentence without delivering any judgment or even stating whether or not he agreed with the view of the Assessors. The provisions of the Code above referred to were completely ignored, and, in the result, the appellant was convicted by Assessors who had no power to convict him, and sentenced by a Judge who had not convicted him. In the circumstances their Lordships could only advise His Majesty that the conviction and sentence be quashed. .

Sentence quashed.