By Linny Folau

Andy Fukofuka is serving six-months in prison for abetment to the theft of a boat engine, after losing his appeal to the Supreme Court.

His appeal included claims that he did not receive justice because he had no legal advice before trial at the lower court, before the then Principal Magistrate. He also claimed that he was convicted and sentenced on something he believed that he was innocent of.

Acting Justice Langi in a ruling on 7 March stated that: “the appellant has failed to demonstrate by a considerable margin that the findings of the Magistrate were plainly wrong and there is therefore no reason for this court to interfere with them. The result is that the appeal is dismissed.”

Offending

The case before the Magistrate had concluded that the appellant accepted that he was in Ma'ufanga at the wharf when the boat engine was put inside his vehicle; he knew it was Manu's engine and he was in control of the taking of the engine.

Appeal

The Acting Justice stated that all the facts found by the Magistrate were disputed by the appellant who claimed that the vehicle in which the stolen boat engine was put in did not belong to him but to Taufa; he did not know that the boat engine did not belong to Manu and was not aware that it had been stolen. He also claimed that he was not in charge of removing of the boat engine from the wharf because it was Manu who asked for the vehicle. He also did not get off the vehicle when the boat engine was being put inside the vehicle.

Meanwhile, the Director of Public Prosecutions, James Lutui, submitted that the grounds of appeal put forward were on facts only and the Magistrate had already dealt with those facts in his judgment.

“An appeal court should not take an appeal on facts lightly and should only interfere in extreme and exceptional cases and it is the duty of the appellant to prove that the Learned Magistrate had erred in law and he has failed to do so,” he submitted.

The judge stated there is a general right of appeal from a judgment of the Magistrate's Court in both civil and criminal matters under section 74 (1) Magistrates Courts Act.

“It is evident from the grounds of appeal that the appellant challenges the Learned Magistrate's findings of fact and the procedure in the lower courts. I caution myself that an appellate court should be slow to differ from a finding of fact which was made by the judge of first instance who had the opportunity to see and hear the witnesses,” she stated.

“In relation to the first ground of appeal, I do not accept that the accused was an innocent and naive young person to have not considered the importance of getting himself legal representation. For him to now claim that he did not receive justice because he was unrepresented.

“He was first arrested and charged in September 2022 and the matter was not heard until May 2023. He had more than sufficient time to find himself a lawyer and was unrepresented as a matter of choice.”

The Acting Justice agreed with the prosecution that the Magistrate had heard all of the evidence called by the prosecution and the evidence of the accused and chose to believe the prosecution's version of events.

“I cannot see any shortcomings in the trial judge's analysis of the evidence. In my opinion, his findings were consistent with the evidence placed before him and the law,” said the Acting Justice in dismissing the appeal.

There was no appeal on the sentence imposed at the lower court, which was 12-months imprisonment with the last six months suspended, so the appellant was ordered to immediately serve it.

The appellant, Fukofuka, was represented on this appeal by Sunia Fili.