IN THE HIGH COURT OF FIJI
At Labasa
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 9 OF 1993

Between:

HARISH CHAND
s/o Sukh Deo
Appellant

- and -

THE STATE
Respondent

Mr. M. Sadiq for the Appellant
Mr. Ian Wikramanayake for the State

Reasons for Decision

On the 24th of September, 1993 this Court quashed the conviction of the appellant and I said that I would give my reasons later which I now do.

The appellant was charged with the offence of indecent exposure contrary to section 154(4) of the Penal Code.

The Particulars of Offence in the charge reads as follows:-

HARISH CHAND s/o SUKH DEO on the 8th day of December, 1991 at Lagalaga, Labasa in the Northern Division with intent to insult the modesty of ROSHNI ACHAL d/o HAR PAL exhibited his penis intending that such object shall be seen by the said ROSHNI ACHAL d/o HAR PAL.

On the 1st March, 1993 the appellant was after trial convicted of the above offence and was sentenced to imprisonment for six months which was suspended for one year and he was also fined the sum of sixty dollars in default two months' imprisonment to be paid within two months.

Appellant appeals against conviction and sentence.

There are seven grounds of appeal filed but for convenience the learned defence counsel said that he will deal with them all together. In short, the grounds can be summed up as in ground (f) which reads:- 

"That the verdict and finding of the Learned Magistrate is unreasonable and cannot be supported having regard to the evidence as a whole."

The learned State Counsel conceded that on the evidence before the lower Court it would be unsafe to let the conviction stand.

The facts as stated by the prosecution, briefly are that on 8th December, 1991 at about 9.00 a.m. when the complainant was standing outside her kitchen while cooking, she saw her neighbour the accused about four chains away from her at the creek where he went for a bath, opening his sulu towards her. This was seen by her mother.

These simple facts gave rise to the charge against the appellant.

In this case there was only the evidence of two civilian witnesses (the complainant (PW1) and her mother (PW2) and two police officers). In fact it is essentially on the evidence of PW1 and PW2 that the decision by the learned magistrate is based.

There are no independent witnesses to the alleged incident.

As stated in headnote to BENMAX v AUSTIN MOTOR CO., LTD. (1955 1 AER p.326):

"an appellate Court .... should not lightly differ from a finding of the trial judge on a question of fact, but a distinction in this respect must be drawn between the perception of facts and the evaluation of facts. Where there is no question of the credibility of witnesses, but the sole question is the proper inference to be drawn from specific facts, the appellate court is in as good a position to evaluate the evidence as the trial judge, and should form its own independent opinion, though it will give weight to the opinion of the trial judge."

Bearing in mind the above-quoted passage and the submissions made by both counsel with the learned State Counsel conceding the appeal particularly on matters to which I make reference hereunder, this Court has evaluated the evidence and has arrived at a decision for the reasons it gives.

On the evidence recorded by the learned magistrate, he could not possibly have come to the conclusion to which he did when he said that the accused exhibited his penis to the complainant. This cannot be supported having regard to the evidence. The learned State counsel is fully in agreement with the appellant's counsel in this regard. The complainant (PW1) said at p.9 of record:

"He was opening his sulu towards me. I went away." (underlining mine) ... "As soon as he opened up his sulu I went away". On the other hand PW1's mother the PW2 said at p.11: "My daughter was behind me. Accused was going for a bath. I was standing about 2 chains away from my house. 

My complainant daughter was near the house. Accused dropped the bowl and soap and opened up his sulu three times. He was three chains away. He had nothing inside. I saw everything. Seeing my younger daughter he quickly departed. I did not report to his mother." (underlining mine).

On such evidence, it appears that if there was indecent exposure from such a great distance, it was meant for PW2 and could not possibly have been directed at PW1 for on her own admission she (PW1) turned her face away when he was opening the sulu. The PW2 did not complain to police.

In his Judgment at p.23, the learned magistrate makes no specific finding of fact and beyond all reasonable doubt in this regard. All he said is as follows, presumably meant to be a finding of fact and a comment:

"The girl had seen him opening the sulu towards her and seeing that she had turned away. Her mother had seen him doing it thrice. The elderly lady would have been curious to know what the accused was trying to do. It is natural for a young girl to look aside and turn away when she is confronted with such an act."

The learned magistrate then goes on to say "there is no discrepancy between the evidence of the complainant and her mother".

With the greatest of respect the evidence of PW1 and PW2 are so much at variance to establish the essential ingredient of the offence, particularly the intent, that it would be unsafe to convict the accused on such evidence. It is essential that in a criminal case a magistrate should evaluate the evidence and categorically state his findings of fact in so many words so as not to leave any doubt as to what his actual findings are and this will also assist the appellate court.

The learned magistrate at p.23 talks of the accused's intentions whilst he was at the creek, but all his comments are not borne out by the evidence before him and to which I had adverted to hereabove, viz. the evidence of PW1 and PW2. There is no evidence to give rise to the comment at p.23 that "it is natural for a young girl to brush aside and turn away when she is confronted with such an act". The learned magistrate has read more into the evidence than is actually before him; the Court should only go by evidence before it and nothing else.

From what appears at p.23 it could well be argued, and with which the learned state counsel agrees, that the learned magistrate had left the burden of proof on the accused (when he gave an unsworn statement, which is also evidence) in his defence when he said:

"The defence has not been able to cast any reasonable doubt as the prosecution story. In the circumstances I hold that the prosecution has found this charge against the accused beyond reasonable doubt ...."

With respect, needless to say, the burden of proof rests upon the prosecution throughout and it is not for the accused to prove anything.

The learned Magistrate has not given due consideration to the accused's unsworn statement in which he raised the matter of animosity between the parties and a previous complaint of a different nature by the PW1. Thus giving rise to the fact that she has an axe to grind with the accused.

The other very important factor which could give rise to a doubt in one's mind is that with shrubs, trees and foiliage dividing the two properties it would be difficult to prove beyond all reasonable doubt that the accused's whole body was clearly visible to enable the PW1 or PW2 to see what they alleged they saw and from a distance of a few chains. 

The learned magistrate has neither commented on this and other matters nor has he made any findings of fact based on these factors.

Taking all the above factors into account I had come to the conclusion that it is unsafe for the conviction to stand. It was accordingly quashed and the sentence set aside and the fine if paid was to be refunded to the appellant.

D. Pathik
Acting Puisne Judge

At Labasa
28th October, 1993
HAA0009D.93B