Vasu v The State [1990] FJHC 80; Haa0034j.90s (14 December 1990)

IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 34 OF 1990

Between:

KULINIASI VASU
Appellant

v.

THE STATE
Respondent

Appellant in Person
Mr. S. Senaratne for the Respondent

JUDGMENT

The appellant was charged on 2 separate Counts with Assaulting Prison Officers and pleaded not guilty. After a short trial in which both prison officers were called as prosecution witnesses and the appellant called 2 witnesses in his defence, the learned trial magistrate wrote a short judgment acquitting the appellant on the first count and convicting him on the other.

Upon his conviction the appellant was sentenced to 2 years imprisonment. He now appeals against his conviction and sentence and urges several grounds in support of his appeal.

In particular the appellant claims that the assault on the prison officer was committed in self-defence and after he had been provoked by having his shirt collar pulled. He alleges bias on the part of the trial magistrate and complains about the harshness of the sentence imposed on him.

As to the appellant's claim of self-defence it is noteworthy that in his cross-examination of the prison officer other than to establish from the officer that he had spoken to the appellant on the day of the assault there was no suggestion that he was defending himself. Nor for that matter was there any claim in the appellant's unchallenged police interview record that in assaulting Prison Officer Ram Vinod he was acting in self-defence, on the contrary, there is only a claim that the officer had pulled the collar of his shirt.

This position both at trial and in the appellant's police interview contrasts graphically with his defence of the alleged assault on the officer in the first count Prison Officer Edward Douglas on which count the appellant was ultimately acquitted.

Ram Vinod's evidence at the appellant's trial was to the effect that he was punched and kicked by the appellant who was refusing to return to his cell. It is common ground that as a result of the assault on him Ram Vinod sustained serious facial injuries which necessitated his hospitalisation for 6 days. At the time of giving evidence 2 months after the incident he still had some difficulty with his eye sight.

The appellant's own witness Eparama Soqotubu on whom he had relied to establish his defence was of little assistance. He merely witnessed the appellant and Prison Officer Ram Vinod arguing then he heard the officer yell out and he went and told the appellant to stop. He did not actually see any fight or assault on the appellant.

In Palmer v. The Queen [1970] UKPC 2; (1971) A.C. 814 the Privy Council defined the defence of self-defence in the following terms at pp. 831 and 832:

"........... the defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances ...... It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence."

In the circumstances of this present case even accepting that the prison officer had in fact pulled the appellant's shirt collar as claimed by him, that alone cannot possibly raise an issue of self-defence let alone justify or excuse the force necessarily used by the appellant in inflicting the serious injuries sustained by the officer concerned.

Perhaps the matter is most accurately summarised in the appellant's own fifth ground of appeal which reads:

"5. I had acted in self defence to make sure that the complainant would not rise up to attack me, because I was afraid of what he could do to me as I've seen in the past what other Prison Officers have done to prison inmates in the provocation and undue assault on me was so great that I had to knock him senseless to stop it, hence the result of the injuries."

If I may say so knocking a person senseless because of one's fear of what that person might do and not because of what that person was actually doing can never by any permissible stretch of the above definition give rise to a defence of self-defence.

The appellant's appeal against his conviction is completely without merit and is accordingly dismissed.

As for the sentence however the appellant complains that in all the circumstances and facts of the case the sentence is too harsh and excessive and in particular he compares it with a sentence for a similar and parallel assault by prison officers on a recaptured prison escapee which allegedly caused the prisoner's death.

The case was The State v. Isikeli Tamani and 8 Others Cr. Case No. 137/87 in which 9 prison officers originally charged with Murder were convicted of Assault Occasioning Actual Bodily Harm after a trial and each was sentenced to 9 months imprisonment.

There are numerous factual differences between that case and the present that makes any valid comparison in the sentences difficult if not impossible. Having said that however the legislature has provided the same maximum sentence in the Penal Code for an offence contrary to Section 247(e) for which the appellant was convicted and an offence under Section 245 for which the prison officers were convicted. They are also both described as misdemeanours.

It is stating the obvious to say that both offences are viewed with equal seriousness by the legislature and the status of the assailant or the victim should not in either event be decisive of the severity of the sentence imposed.

Prisoners too are entitled to expect and receive equal protection under our laws and there is nothing more destructive of that than seemingly unequal sentences which give rise to feelings of unequal treatment whether justified or not.

Be that as it may the assault of a prison officer is an offence which calls for an immediate custodial sentence both in the public interest and in the interests of prison security and discipline.

In this case whilst upholding the appellant's conviction his sentence does appear to be unduly harsh. The sentence also fails to account for the likelihood of some provocation in the incident as the appellant rhetorically asks: "Would a prisoner assault a prison officer in prison for no reason at all?"

The appellant has already served almost 12 months of this present sentence which would have been the correct sentence in this case. Accordingly the appellant's sentence is reduced to the term that he has already served with effect from the 19th of July 1990.

The effect of this order is that the appellant is to be taken to have already served his sentence in respect of his conviction in this case on the 19th of July and since then has begun to serve any remaining consecutive sentence that he may have received.

(D.V. Fatiaki)
JUDGE

At Suva,
14th December, 1990.

HAA0034J.90S