Nand v Reginam [1982] FJCA 1; Criminal Appeal No 28 of 1982 (1 January 1982)

Fiji Islands - Nand v Reginam - Pacific Law Materials

IN THE FIJI COURT OF APPEAL

CRIMINAL JURISDICTION

Criminal Appeal No. 28 of 1982

ass=MsoNormal amal align=center style=text-align:center>BETWEEN:

SUNIL MOHAN NAND
s/o Shardna Nand
Appellant

AND:

REGINAM
Respondent

JUDGMENT OF THE COURT

Marsack, JA

This is an appeal against the conviction of the appellant before the Supreme Court at Lautoka on 8 April, 1982 for the offence of obtaining money by false pretences.

Ground 2. There is some conflict between the evidence at the trial, and statements made to the Police by Narendra Kumar and Subhas Chand. In his evidence Kumar said that he was confused in cross-examination and could not concentrate. In the course of his evidence he said,

“I may have said ‘In my presence he (appellant) wrote a receipt from the book ….’ That is not true that the wrote the receipt in my presence.”

He further deposed that in his statement to Police Officer Net Ram he could not say why he had said different things; Net Ram was asking him too many question and too many details. With regard to Subhas Chand such contradictions as there are between previous statements and his evidence in the Court are of a very minor character and in no way affect the fundamental facts as found by the Court. The same comment applies in some measure with the evidence given by Narendra Kumar. The learned trial Judge directed the assessors fully on this issue. In the course of his direction he said:

“Clearly the evidence of Narendra and Subhas whom you may consider to be interested parties must be submitted to the most careful scrutiny, particularly in the light of the defence evidence, in the light of certain clearly unsatisfactory aspects of the evidence, particularly part, at least, of Narendra’s evidence.

Not every inconsistency or contradiction makes a witness unreliable on the main issues, though you do of course have to be satisfied in your own minds that they do not reflect upon his truth on those main issues.

But to avoid any confusion in your minds let me make it absolutely clear to you, I am not saying that you may ignore inconsistencies, that you should not give the most careful consideration to all defence counsel has said, or to the evidence for the defence. On the contrary you must give the most careful consideration to the Prosecution witnesses’ evidence in the light of all the evidence, all the inconsistencies or contradictions brought out and the defence evidence and arguments, and decide for yourselves whether you are left with any reasonable doubt as to any of those points, those elements which go to make up the offence charged against the accused.”

This question has been considered by this Court on a number of occasions, and the principle laid down in Gyan Singh v R 9 FLR 105 has been generally approved; as in Kesty Ta’afia v R 13 FLR 151 and Hari Pal v R 14 FLR 218. This principle is stated in these terms:

“It is the duty of the trial judge to warn the assessors, and to keep in mind himself, that it is dangerous to accept sworn evidence which is in conflict with statements previously made by the same witness; or, at least, that such evidence should be submitted to the closest scrutiny before acceptance.

It is, however, still the duty of the assessors, and of the judgment himself, after full attention has been paid to this warning, to determine whether or not the evidence given before them in court at the trial is worthy of credence and, if so, what weight should be attached to it.”

Applying this principle, it is clear that the learned trial Judge complied fully with his obligations to direct the assessors on this point. Accordingly the second round of appeal also fails.

--------------------------------------------