Buliruarua v State [1997] FJHC 284; HAA0119.1997 (21 November 1997)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.HAA0119 OF 1997

Between

ATUNAISA BULIRUARUA
Appellant

And

THE STATE
Respondent

Counsel: Mr Samusamuvodres for Appellant
Mr Naigulevu for Respondent

Hearing: 21st November 1997

Decision: 21st November 1997

ORAL DECISION OF PAIN J ON APPLICATIONS
TO SUPPLEMENT RECORD AND CALL EVIDENCE

The Appellant has filed two applications which must be determined before the hearing of the appeal.

The first is an application to supplement the record of the hearing in the Magistrates Court.

The procedure for doing this is contained in the Chief Justice’s Practice Direction No.2 of 1982. Unfortunately the Appellant’s counsel did not serve copies of the motion and affidavit on the officer in charge of Magistrates Court. Accordingly, the comments of the learned Magistrate have not been sought as required by the Practice Direction. Counsel for the Appellant has therefore abandoned this application to save further delay.

The second application is for an order permitting the Appellant to adduce evidence at the hearing of this appeal. It is purported to be made pursuant to S.320 of the Criminal Procedure Code.

The Appellant has filed affidavits from himself and 4 other proposed witnesses. These have only been accepted as an indication of the evidence that the proposed witnesses would give. The substance of the proposed evidence is that, in the incident giving rise to the prosecution, the Appellant did not strike the victim with a wheel brace and, at the hearing in the Magistrate Court he denied having done so.

Such evidence would be quite contrary to the comprehensive notes of the hearing made by the learned Magistrate. The record of the hearing shows that the use of a wheel brace by the Appellant was mentioned on several occasions and the Appellant himself concurred with that. The record shows the following:

1. The use of a wheel brace is mentioned in the charge itself. It is alleged that the Appellant unlawfully wounded the victim with a wheel brace.

2. The record shows that this charge was read to and explained to the Appellant.

3. The record shows that the Appellant acknowledged that he understood the charge.

4. The Appellant pleaded guilty to this charge which had been read and explained to him.

5. In the summary of facts given by the prosecutor it was stated that the Appellant hit the complainant with a wheel brace which was made of iron.

6. The record shows that after the summary of facts were read those facts were "admitted by the Accused in full".

7. The record shows that in his plea in mitigation the Appellant said "I know I punched him and hit him with the wheel brace".

8. This is confirmed by the learned Magistrate in the questions he addressed to the Appellant after his plea in mitigation. He took the Appellant up on his comments that "he had used the wheel brace and thought it fun to hit". According to the record the learned Magistrate questioned the Accused about the both those matters.

9. In sentencing the Appellant the learned Magistrate made it quite clear that he sentenced him on the basis of an attack with a weapon.

I say immediately that it would really be incomprehensible for the learned Magistrate to have acted in this way and sentenced the Accused on the basis that he did if the Accused had denied any use of the wheel brace. It is also clear that the calling of this evidence would be a different method of amending the record in the Magistrates Court or attempting to do. It is not just a supplementation of that record but a challenge to the ability and honesty of the learned Magistrate.

For the purposes of an appeal this Court accepts and acts upon record of the trial Magistrate. It is often accepted that in the course of a hearing a Magistrate may omit to record some matters. That is just human nature. It is not possible to keep a verbatim record. Indeed the obligation of the Magistrate is to keep a record of the substance of the evidence, submissions etc. If something has inadvertently been omitted it can be added to the record with the approval of the Magistrate or agreement of counsel.

However, in this case the Appellant is wishing to present a total contradiction of the record on vital issues. That is not appropriate and is totally inconsistent with the whole record of the proceedings, the remarks of the Magistrate and the sentence imposed.

In my view it would be wrong for this Court to accept the proposed evidence for this purpose.

The learned Magistrate has kept an excellent record in this case. He has followed his statutory duties. There is nothing in the record and nothing I have heard which gives foundation for a suggestion that the learned Magistrate has been derelict in the performance of his duties. I accept it as a proper record of what occurred at the hearing. In this case it is a record that speaks for itself with clarity. The Appellant is effectively seeking a full rehearing in this Court which is quite inappropriate. He had a regular hearing in the Magistrates Court.

In considering this application I have had regard to the Court of Appeal decision in the Director of Public Prosecutions v Naidu Crim. Appeal No.34 of 1984. That decision will have greater relevance to the hearing of the appeal proper.

To conclude I say that I have some doubts whether Section 320 is referrable to present situation. The use of the words "additional evidence" seems to imply evidence that is additional to that given in the Magistrates Court on a defended hearing. Nevertheless, this Court, in appropriate circumstances does accept information or evidence on appeal after a guilty plea. An instance of this would be to show a significant change of circumstances since the sentence was imposed. However, evidence cannot be admitted merely to contradict the record. The proper procedure should be followed to have the record corrected or supplemented. Nor can the evidence be admitted to give the Appellant a new hearing in this Court.

For all these reasons both the application to supplement the record and the application to adduce evidence at the hearing of this appeal is refused.

Justice D.B. Pain