State v Singh [1996] FJHC 145; Haa0023j.1995s (5 September 1996)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 0023 OF 1995

Between:

STATE
Appellant

v.

1. JITEN SINGH
s/o Bahadur Singh

2. ERONI SOQO
Respondents

Ms. E. Rice for the Appellant
Mr. A. Kohli for the Respondents

JUDGMENT

This is the State's appeal against the acquittal of the Respondents of the offence of assault occasioning actual bodily harm contrary to section 245 of the Penal Code Cap. 17 by the Magistrate's Court at Nausori (V.D. Nadakuitavuki Esq.,) on 12 January 1995.

The Grounds of Appeal are as follows:-

"(a) that the Learned Magistrate erred in law in failing to disclose in his judgement the points for determination as is required pursuant to section 155 of the Criminal Procedure Code.

(b) that the Learned Magistrate erred in law in failing to address the vital issue of credibility.

(c) that the Learned Magistrate erred in law in failing to consider the evidence against both Respondents separately.

(d) that the Learned Magistrate erred in law in holding that the x-ray report prepared by

Dr. Prasad, exhibit 2, was inadmissible evidence.

(e) that the Learned Magistrate erred in fact and in law in dismissing the medical evidence of Dr. Ranjit Singh, PW3.

(f) that the Learned Magistrate erred in law in failing to consider the lesser offence of Common assault.

In this case, on 9 June 1994, the Respondents, who were Police Officers, were charged on separate counts for the offence of assault occasioning actual bodily harm on the complainant Mukesh Chand f/n Jai Ram on 6 February 1993 and they pleaded not guilty.

Ms Rice, the learned State Counsel argued each of the grounds in her appeal along the lines set out in a written submission which she prepared and which she handed to Court. I need not reiterate them but will deal with the grounds raised by her in this judgment.

Mr. Kohli for the Respondents argued that it is clear what the Respondents are charged with so it is not necessary for the Magistrate to put down points for determination as required under s155 CPC. He says that although he ought to have given reasons for acquitting the Respondents, it is not 'fatal'. He said that the learned Magistrate rejected the Medical Report completely which he was entitled to do particularly because of the discrepancies in the dates and evidence adduced. To prove the charge medical report was essential.

I have considered the submissions made by both counsel and I find that there are merits in the Grounds of Appeal filed by the State.

The learned Magistrate's Ruling (which is actually his judgment) in which he acquitted the Respondents is deficient in many respects.

I shall deal with the first two grounds together.

Looking at his Ruling I find that all that he has done is, after outlining at great lengths the evidence in this case, he finds certain material discrepancies in the medical reports, and after making certain other comments such as, inter alia, as to why certain witnesses were not called to testify, he goes ahead and acquits the Respondents.

The following passage from the judgment of GRANT Ag C.J in CHANDAR PAL v REGINAM [1974] 20 FLR 1 at 4 is apt and it should always be borne in mind by Magistrates when writing judgment:

"I would take the opportunity, as the judgment of the lower court in this case is a clear example, of drawing attention to what appears to be a trend on the part of some Magistrates to set out in a judgment a summary of the evidence of the witnesses in the order in which they were called regardless of the fact that this bears no relationship to the sequence of events which is the subject matter of the trial; and a tendency to omit reasons for the decision reached."

(underlining mine)

The learned Magistrate has completely failed in his duty to evaluate and analyze the evidence of witnesses. He makes no analysis of whose evidence he accepts and whose he rejects except that he said Cpl. Sunil Dutt did not see the complainant being assaulted "by any of the Police Officers present at the Police Station at that time". When he said that he completely ignored the alleged incidents which took place outside and away from the Police Station.

The learned Magistrate's approach to the issue before him left much to be desired and therefore the trial was most unsatisfactory. This has offended the provisions of section 155(1) of the Criminal Procedure Code which provides, inter alia:

"155 - (1) Every such judgement shall, except as otherwise expressly provided by this code, be written by the presiding officer of the court in English, and shall contain the point or points for determination, the decision thereon, and the reasons for the decision....." (my underlining)

The need to review the evidence is required to be done. GRANT J (as he then was) in JAN BARKAT ALI v REGINAM [1972] 18 FLR 129 at 130 said:

"The trial Magistrate records the points for determination in the first paragraph, then sets out the evidence including that on which the prosecution relied to establish the points for determination, gives his decision thereon in the final paragraph specifying (partially by reference to the first paragraph) the offence of which and the law under which the accused is convicted and in the penultimate paragraph gives the reasons for his decision, namely that having reviewed the evidence he accepts that of the prosecution witnesses and rejects that of the accused. No more is necessary. A magistrate is not obliged to give reasons 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 has been no failure to comply with the statutory requirements of Section 154 of the Criminal Procedure Code." (underlining mine for emphasis)

Then again in CHANDAR PAL v R (supra) at 4 GRANT C.J. sets out in the following passage what the contents of a judgment should be and this is quite pertinent to this case:

"As a general rule the judgement should commence with a description of the charge, followed by the relevant events and the material evidence set out in correct sequence in narrative form, the identifying number of each pertinent witness being incorporated at the appropriate places, after which the Magistrate should state what witnesses he believes and whose evidence he accepts or rejects, and should proceed to make his findings of fact, apply the appropriate law to those facts and give his reasoned decision; bearing in mind throughout the provisions of section 154(1) of the Criminal Procedure Code. [Now S.155(1)]". (underlining mine for emphasis)

This case depended essentially on the credibility of witnesses and findings of fact connected therewith. The learned Magistrate made no such findings. As a result the appellate court has received no guidance as he gave no indication of what impression the witnesses have created on his mind because he is the one who saw and heard witnesses. This Court cannot make its own evaluation of the printed evidence.

Towards the end of his Ruling he said that "the burden of proof therefore, has not been shifted away from the prosecution in so far as this case is concerned". It is difficult to understand what it means. The burden of proof never shifts in a criminal case for it is throughout on the prosecution to prove its case beyond reasonable doubt.

For the above reasons the State succeeds on the first two grounds and this alone should be sufficient to dispose of the appeal. However, since other grounds have been raised I shall briefly touch on them.

On ground 3 I entirely agree with the learned State counsel that the learned Magistrate ought to have considered the evidence against both accuseds separately. Ms Rice referred to the following passage in support from ANTHONY STEVEN v REG [1971] 17 FLR 48 where RICHMOND JA said:

"We do not question for one moment that in a joint trial of several accused persons, a magistrate should proceed in the same way as a jury or assessor would be directed to proceed. He must consider the case against each accused separately, being careful to distinguish the evidence admissible against one accused from that admissible against another. He must resist any temptation to bolster up a weak case against one accused by reference to evidence properly admissible only against some other accused."

Since he did not evaluate the evidence consideration of this aspect was not in his mind at all. Hence he did not touch on this aspect which he should have done.

For the detailed reasons given by Ms Rice in her written submission which I accept, this third ground of appeal also succeeds.

In view of what I propose to do with this appeal I do not consider it necessary to deal with grounds 4 and 5.

As for ground 6, it was certainly within the learned Magistrate's powers to consider whether after proper evaluation of the evidence before him he could convict the Respondents of the lesser offence of common assault for there is ample provision under section 169(1) of the Criminal Procedure Code for him to do so. The section reads:

"169 - (1) When a person is charged with an offence consisting of several particulars, a combination of some only which constitutes a complete minor offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence although he was not charged with it." (underlining mine)

Again, because the learned Magistrate failed to completely analyze the evidence as he is required to do, this aspect of the matter could not have crossed his mind.

This sixth ground of appeal also succeeds.

To conclude, for the above reasons the learned Magistrate has not performed his function in accordance with the requirements of the law; he has abruptly ended his Ruling without any evaluation and analysis of the evidence before him nor did he give any proper reasons for coming to his decision resulting in the Respondents' acquittal.

The appeal is therefore allowed.

The Order acquitting the Respondents is set aside. The case is remitted to the Magistrate's Court at Nausori for a continuation of hearing before another Magistrate according to law.

D. Pathik
Judge

At Suva
5 September 1996

HAA0023J.95S