Vakatuturagania v The State [1995] FJHC 56; Haa0055j.94s (27 March 1995)

IN THE HIGH COURT OF FIJI
(SUVA)
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. HAA0055 OF 1994

BETWEEN:

SAKARAIA VAKATUTURAGANIA
APPELLANT

AND:

STATE
RESPONDENT

Mr. A. Seru for Appellant
Mr. D. Tuiqereqere for Respondent

JUDGMENT

In this case the Appellant appeals against both conviction and sentence on several grounds which could be conveniently summarised into the following:-

(i) That the learned Magistrate erred in law in stating at page 24 of his Judgment that the burden of proof on a charge under Section 245 imposes a lighter burden of proof on the Prosecution than on Section 227 of the Penal Code, Cap. 17.

(ii) That the Prosecution had a duty to disclose witness statement to the defence and failure to do so was prejudicial to defence case.

3. That the mode of identification of the accused who refused to appear in an identification parade was most unusual and unfair to the defence.
   
4. That the medical evidence of P.W4 and P.W5 cast doubt on evidence of P.W1 and P.W2 that deceased was assaulted by the accused; and
   
5. That the sentence imposed by the Magistrate was harsh and excessive.
   

The Appellant was convicted on 21st October, 1993 at Nausori Magistrate's Court for assaulting Kishore Douglas s/o Hary Prasad. Douglas on 9th November, 1991 thereby occasioning him actual bodily harm contrary to Section 245 of the Penal Code, Cap. 17.
The victim of the assault died at C.W.M. Hospital at 8.15am on 27th November, 1991, some 18 days after the alleged assault. The cause of death being - "Acute purulent peritonitis".

As regards the first ground the Counsel for Appellant submitted that the trial Magistrate was wrong in stating in his Judgment:

"The prosecution have decided to settle on a lighter charge which carries a maximum sentence of five years, and it therefore imposes a lighter burden of proof on the, Prosecution, then Section 227 of the Penal Code."

Counsel for Appellant added that the standard of proof for the prosecution in all criminal cases is "proof beyond all reasonable doubt".

Counsel for the Respondent submitted that the Magistrate's reference to lighter burden on prosecution was merely a reference to the prosecution opting to pursue less serious charge provided by Section 245 rather than more serious and more onerous offence provided by Section 227 i.e. Grievous harm.

It is not disputed that the "standard of proof" in all criminal cases is "proof beyond reasonable doubt".

In Millar v. Minister of Pensions [1947] 2 A.E.R 372 at p.373-374, Denning,J, (as he then was) speaking of the degree of cogency which the evidence on a criminal charge must reach before the accused can be convicted said:

"That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond the shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence "of course it is possible but not in the least probable" the case is proved beyond reasonable doubt, but nothing short of that will suffice."

While I appreciate the argument of the counsel for appellant, the observation of the trial Magistrate must be viewed with in the totality of the evidence in the light of his conclusion in his Judgment at page 24 wherein he stated:

"The Prosecution has therefore proved its case beyond reasonable doubt. I therefore found the accused guilty and convicted as charged."

(my underlining).

It is evident from the above quoted statement that the trial Magistrate had applied the correct standard of proof in finding the accused guilty as charged.

While I view the Magistrate's reference to lighter burden of proof on prosecution as unfortunate and misplaced in the circumstances, I am inclined to agree with the Counsel for respondent that such reference was merely a reference to the prosecution opting to pursue a less serious charge provided by Section 245 rather than the more serious and onerous offence provided by Section 227.

I find no merit on this ground of appeal.

As for the next ground the Counsel for the appellant argued that the prosecution had a duty to supply a copy of the statement of Police Corporal Josefata Boseiwaqa to the defence and their failure to do so was prejudicial to the defence case. In support of his argument he cited the case of Dallison v. Caffery (1964) 2AER 610 at p. 618 (Letters C-E) per Lord Denning:

"The duty of a prosecuting counsel or solicitor, as I have always understood it, is this: If he knows of a credible witness who can speak to material facts which tend to show the prisoner to be innocent, he must either call that witness himself or make his statement available to the defence. It would be highly reprehensible to conceal from the Court the evidence which such witness can give. If the prosecuting counsel or solicitor knows, not of a credible witness, but a witness whom he does not accept as credible, he should tell the defence about him so that they can call him if they wish. Here the solicitor, immediately after the court proceedings, gave the solicitor for the defence the statement of Mr & Mrs Stamp; and thereby he did his duty."

Diplock, L.J. (as he then was) said at page 622:

"Furthermore, the prosecuting solicitor acted with more than necessary propriety in that not only the relevant witnesses also their statements were made available to the Plaintiff's solicitor immediately on the plaintiff's committal."

Counsel for the respondent submitted in reply that although the prosecutor has a duty to make available to the defence a witness whom the prosecution know can, if called, give material evidence, it is not under a duty to supply a copy of the witnesses statement which they have taken to the defence. In support of his argument he cited R v. Bryant & Dickson [1946] 31 Cr. App. R. 146 pages 151 & 152. For reason of completeness the whole paragraph is here repeated.

"Another point taken is that Campbell was not called at the trial. It is said that it was the duty of the prosecution to have supplied the defence with a statement which Campbell had admittedly made to the prosecution. The prosecution for reasons which one can well understand, did not call Campbell. Is there a duty in such circumstances on the prosecution to supply a copy of the statement which they have taken to the defence ?. In the opinion of the Court there is no such duty, nor has there ever been. In the first place, if they had supplied a copy of the statement of Campbell, that would not have enabled the defence to put the statement in. The statement which Campbell made could have become evidence only if he had been called as a witness. But it is said that it was the duty of the prosecution to put that statement at the disposal of the defence. In the opinion of the Court, the duty of the prosecution in such a case is to make available to the defence a witness whom the prosecution know can, if he is called, give material evidence. That they did in this case, because, when a letter was sent by the defence to the Director of Public Prosecutions, the reply of the Director of Public Prosecutions showed quite clearly that the prosecution did not intend to call him, but he added: 'There is no objection to your taking a statement from Campbell if you wish to do so. That was said well before the trial. It was said after the close of the police court proceedings, when the defence knew that Campbell was not being called by the prosecution, and therefore could quite well themselves have gone to Campbell and taken a statement from him. Campbell was at the Court. Who brought him to the Court I do not know, nor is it material to inquire, but the defence could have called him if they had liked. No doubt Mr Scott Henderson would not have been so unwise as to call him without having a statement from him, but if the defence did not choose to take a statement and find out what he was prepared to say, that is not a matter with which the prosecution are concerned. In the opinion of the Court it is quite wrong to say that it was the duty of the prosecution in these circumstances having made Campbell available to the defence as a witness if they wished to call him, to go further and produce the statement which he had made.' " (my underlining).

In the present case the prosecutor supplied the name and address of Police Corporal Josefata Boseiwaqa to the defence but did not provide a statement as well relying on the authority of Bryant and Dickson (supra).

In my view the decision in Dallison v. Caffery (supra) supports the decision of R v. Bryant and Dickson but further clarifies the duty of a prosecuting officer.

In R v. Lawson [1990] Cr. App. R. 107 the English Court of Appeal sought to provide some flexibility to duty stated in Bryant and Dickson; but it is unclear how far the Court wished to extend the duty, as it did not make a ruling to that effect. In that case the Court cited with approval the last paragraph of the numbered paragraph 4-178 at page 413 of Archbold (43rd edition) which reads as follows:

" Where the prosecution have taken a statement from a person whom they know can give material evidence but decide not to call him as a witness, they are under a duty to make the person available as a witness for the defence and should supply the defence with the witness's name and address. The prosecution are not under the further duty of supplying the defence with a copy of the statement which they have taken: Bryant and Dickson...Certain prosecuting authorities and prosecutors not infrequently use this authority as a justification for never supplying the defence with the statement in such circumstances. It should be borne in mind however, that an inflexible approach to these circumstances can work an injustice. For example the witness's memory may have faded when the defence eventually seek to interview him, or he may refuse to make any further statement. The better practice is to allow the defence to see such statements unless there is good reason for not doing so. Furthermore, it would be observed that the ruling in Bryant and Dickson, ante, cannot be reconciled with the observations of Lord Denning M.R. in Dallison v. Caffery [1965] 1 Q.B. 348, 369: 'The duty of a prosecuting counsel or solicitor, as I have always understood it, is this: if he knows of a credible witness who can speak to material facts which then show the prisoner to be innocent, he must either call that witness himself or make his statement available to the defence.' " (my underlining).

It may be prudent for the Respondent to give some serious thought to the above underlined recommended practice for the future. However, the Respondent has complied with the requirements of Bryant & Dickson and in my view the Appellant has no further cause for complaint as the Police Officer in question Corporal Josefata Boseiwaqa was actually called by them as their witness.

I find no merit on this ground of appeal.

For the next ground of appeal the Appellant's Counsel argued that the identification of the accused by P.W1 and P.W2 was most unfair and in a manner unacceptable to standard practice.

In this case no identification parade was held as accused himself refused to attend an identification parade.

Both P.W1 and P.W2 were eyewitnesses to the alleged assault of the deceased by the accused in the early morning of 9th November, 1991 at Nausori. Both said that there was one light outside, above the backdoor and there was light coming from inside the grog shop through the back window and they were able to see the accused assaulting deceased.

P.W1 at pages 5 & 6 of the record said:

"No sooner when Rocky reached the area he held the door edge, one of the police officers pulled him, when Rocky fell down the same police officer came towards me and wanted to punch me. The same police officer who wanted to punch me went back to Rocky and kicked his stomach. The police officer stamped Rocky by lifting his leg and aimed at his stomach.----- When he was stamped in that manner, I saw Rocky folded both of his arms and legs together. I saw that officer myself when he accompanied another officer to the scene. I had seen him before, prior to the incident. He is present in court. He is the accused in the dock. The accused stamped Rocky on his stomach, the same officer threw punches on me------."

At bottom of page 6 and top of page 7 of the record P.W1 said this:

"At the Police Station, I was then told to identify the person who had assaulted Rocky. I then identify the officer, he was the accused at the counter at the Police Station. Sgt.Waqa and Cpl.Filipe when they brought me to the Police Station they took me to 1st floor of the Police Station. When I was brought back to the ground floor I was asked to identify the Police Officer, then I told Sgt.Waqa and Cpl.Filipe the fellow who had assaulted Rocky, who was the accused. "

P.W2 on page 14 of the record said:

"At that time I was standing in front of the door. Rocky was then brought, he was dragged. Rocky wanted to enter the grog shop, but the officer dragged him. I heard Rocky told the Police Officers "I did not do anything. "- - - - After that one of the police officers entered the grog shop and threatened P.W1 then went out again. Rocky and the police officers were dragging each other at the back door. Another police officer came, the one who threatened P.W1, dragged Rocky and punched his stomach, Rocky fell and he stepped on his stomach. He was the accused in the dock. The same officer who stepped on Rocky's stomach. At that stage, Rocky was lying on the ground unconscious. This was after he was kicked. Before that he was fisted and he fell. Rocky was lying on the ground before he was stamped."

On page 15 of the record she said:

"On 27/11/91, I went to the Police Station and I was asked to identify the accused. I saw him on that day inside the Police Station at the counter. I then told the Sergeant that he was the person. "

The evidence of both P.W1 and P.W2 clearly indicates that they saw the accused assaulting deceased and identified him at the Police Station at Nausori and their evidence has been believed and accepted by the trial Magistrate.

There is no dispute that appellant was one of the police officers at the scene during the alleged assault. He himself said in evidence that he carried the deceased to the police vehicle.

What is in dispute is the alleged assault on the deceased by the appellant. The two eyewitnesses P.W1 (Feroz Ali) and P.W2 (Sereana Tubailagi) have stated in evidence that the appellant was the assailant of the deceased and no one else. This is made manifest in the judgment where the trial Magistrate stated:

"-----the Court however found that P.W1 Feroz Ali and P.W2 Sereana Tubailagi as witnesses, who were telling the truth in Court. The Prosecution has therefore proved its case beyond reasonable doubt. "

The trial Magistrate in believing P.W1 and P.W2 as truthful witnesses had taken into account all the evidence in its totality. He is a very learned and experienced Magistrate and his findings has convinced me that he had taken into account the rules on "visual identification" as outlined in the leading case of R v. Turnbull [1977] 1 Q.B. 228.

I turn now to the identification of the appellant at the Nausori Police Station by both P.W1 and P.W2. They each identified him as the officer at the counter at the Police Station, after appellant had refused to attend an identification parade leaving the police with very few alternatives.

The appellant's counsel complained that such identification was unfair and ought not to be admitted by the trial Magistrate.

In R v. Sang [1979] UKHL 3; [1979] 3 WLR 263, The House of Lords held, dismissing the appeal,

"(1) That a judge in a criminal trial always had a discretion to refuse to admit evidence if in his opinion, its prejudicial effect outweighed its probative value.

(2) That save with regard to admissions and confessions and generally with regard to evidence obtained from the accused after commission of the offence, the judge had no discretion to refuse to admit relevant admissible evidence on the ground that it was obtained by improper or unfair means, the court not being concerned with how it was obtained-------."

Lord Diplock in the course of his judgment in R v. Sang had this to say:

"I referred in R v. Selvey [1970] A.C. 304 to the overriding duty of the judge to ensure that a trial is fair. His discretion to control the use of relevant admissible evidence is exercised in the discharge of this duty. It is the use of the evidence, not, save in relation to confessions and admissions by the accused, the manner in which it has been obtained with which he is concerned.

Support for this conclusion is to be found in the judgment of Lord Goddard in Kuruma v. The Queen [1955] A.C. 197 where it was contended that evidence illegally obtained was inadmissible. He rejected this contention, saying, at p.203:

"...the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained " (my emphasis.)

He went on to say, at p.204:

"No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused".

In the court below the trial Magistrate had exercised his discretion in favour of admitting the identification of appellant by P.W1 and P.W2 at the Police Station as its probative value far outweighs its prejudicial effect and in my view he correctly exercised his discretion in the light of the totality of the evidence adduced at the trial.

I also find no merit on this ground.

For this next ground the appellant's submission is essentially, that the prosecution did not prove the harm suffered by the deceased was caused by the appellant.

Both P.W1 & P.W2 stated in evidence that they saw the accused forcibly stamp his foot on the deceased's stomach. None of the other police officers assaulted him.

There is no evidence to show that accused complained of any police assault. There may be some reasons for that, but it would be mere speculation to determine why, as Roy Douglas did not give evidence due to his death.

Dr. Myint Oe P.W4 examined the deceased at about midday on 9/11/91 when he was complaining of abdominal pain. He examined him again on 6pm when deceased then had a high temperature and his abdomen had hardened.

P.W5 Dr. Etika Vudiniabola, saw the deceased on the evening of 9/11/91 at C.W.M. Hospital. The deceased was "severely shocked and severe pain on his abdomen". He performed an operation on deceased and found a breach of the continuity of the intestine - a gap in between the duodenum which "in his opinion could have been caused by force to his abdomen and such force would be quite substantial in order to sustain that type of injury."

Although Dr. Etika was surprised at the absence of external injuries, he was nonetheless of the opinion that the injury to the deceased's duodenum was caused by a blunt injury.

The medical evidence proved not only that deceased suffered injury but it was sustained as a result of substantial force. Such evidence when taken with other proved circumstances of the case based on credibility of witnesses clearly justified, in my view, the learned trial Magistrate's finding that the deceased was assaulted by the appellant.

The counsel for the appellant at the hearing of this appeal had submitted that the trial Magistrate had failed to consider the Defence evidence.

In Jan Barkat Ali v. R [1972] 18 FLR 129 an appeal heard by Grant. J in the then Supreme Court, the headnote reads:

"A Magistrate is not obliged to give reasons in his judgment for his acceptance or rejection of the evidence of any particular witness, and so long as the evidence to which he has referred and which he accepts is sufficient to establish the ingredients of the offence, there is no failure to comply with the requirements of Section 154 (now 155) of the Criminal Procedure Code."

It is obvious that the trial Magistrate had considered both the evidence adduced by the Defence and that by the prosecution as indicated in his judgment at page 24.

"Having considered the whole of the evidence before me, including all the police officers who gave evidence for and against the prosecution, and for obvious reasons certain inconsistent statements were given during the trial by these officers, the Court however found that P.W1 Feroz Ali and P.W2 Sereana Tubailagi as witnesses, who were telling the truth in the Court. The Prosecution has therefore proved its case beyond reasonable doubt. I have therefore found the Accused guilty and convicted as charged."

In my view the Magistrate had made a careful evaluation of the evidence and the finding he arrived at, I am satisfied also that there is no merit on this ground.

For reasons given the appeal against conviction is dismissed.

As for the appeal against the sentence of 9 months imprisonment suspended for 2 years. It is quite clear that the sentence could not in any sense be regarded as harsh and excessive. On the contrary it is very much on the lenient side. The maximum sentence is 5 years, and in view of the injury suffered by the deceased the appellant is very fortunate not to have been ordered to serve an immediate custodial sentence. I may go on, further to say that the accused ought to have been charged with a much more serious offence. The appeal against sentence is also dismissed.

S W Kepa
JUDGE

27th March, 1995

HAA0055J.94S