State v Basha [1997] FJHC 43; Haa0009j.97 (2 April 1997)

Fiji Islands - The State v Basha - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 9/97
(LABASA MAGISTRATES COURT 180/96)

BETWEEN:

THE STATE
Appellant

AND:

MUSTAPHA KAMAL BASHA
(f/n Ismail Basha)
1st Respondent

AND:

MUNAF BASHA
(f/n Mustapha Kamal Basha)
2nd Respondent

AND:

RAFI BASHA
(f/n Mustapha Kamal Basha)
3rd Respondent

L. Laveti for the Appellant
A. Kohli for the Respondents

JUDGMENT

This is an appeal brought subject to the proviso to Section 308(1) of the CPC (Cap. 21) against a verdict of acquittal entered in favour of the Respondents by the Labasa Magistrates Court (A. Kuver Esq.) on 1 November 1996.

On the evening of 9 January 1996 the complainant, one Mustapha Sikandar Basha (f/n Ismail Basha) was working at his father's restaurant, the Basha Restaurant. Some time earlier during the day the first Respondent, his brother, had been at the restaurant asking who had scratched his motor car. The complainant told the Court that at about 6pm the first Respondent had come back and accused him of being "the main culprit". The first Respondent had then taken an empty 750ml lemonade bottle, had come up to him and threatened "to tear (his) mouth with it". At this point the second and third Respondents, who are the first Respondent's sons, in other words the complainant's nephews, had come into the restaurant. The third Respondent had held the complainant while the second Respondent had punched him. The first Respondent had struck him on the head with the lemonade bottle. After some further scuffling the complainant had run outside. The next day after attempts to settle the matter amicably had failed he had reported the matter to the Police and also had been medically examined. The medical report was tendered without objection as Exhibit 1; it discloses that the complainant had suffered soft tissue injuries to his head and right hand.

At the close of the prosecution case the three Respondents gave evidence. The first Respondent adopted his cautioned statement which he had given to the Police. Part of the answer to question 9 in his statement reads as follows:-

"(the complainant) told me to fuck off from here. Since medically I am unable to fight I quickly picked up a bottle (lemonade) and held it horizontally and told him that the restaurant belonged to my father and that he had no right to tell me to fuck off. (The complainant) pushed my mother down on the floor. Since my left hand was injured on 31 December 1995 I pushed his head with the bottle and then I saw my sons come from outside and (the third Respondent) held (the complainant) and took him on the side and told him not to fight because father is sick".

The answer to question 10:-

"Did you hit (the Complainant) with the lemonade bottle?"

reads:-

"I didn't hit him, I only pushed him".

The first Respondent also told the Court:-

"All that I did was to push him with the lemonade bottle." "As soon as he pushed (my mother) I picked up the bottle".

The gist of the second Respondent's evidence was that he had entered the restaurant with his brother after hearing noises. He had seen his grandmother on the floor and his father "pushing (the complainant) away with a lemonade bottle". He had then gone to pick up his grandmother whereupon the complainant had begun punching him and eventually he had punched the complainant back. In his cautioned statement to the Police (Exhibit 2) which was not disputed the second Respondent had said:-

"I only punched (the complainant) when he threw the first punch on me."

When asked if the third Respondent had punched and kicked the Complainant he replied "no".

The third Respondent also adopted his cautioned statement to the Police. In that statement he twice denied punching the complainant and also denied holding him "from back". He told the Court that he had intervened between the Complainant and his father who was moving back while the Complainant was trying to hit him. He denied assaulting the Complainant and also denied holding the complainant while the others assaulted him. He did however see his father "pushing (the complainant) with bottle. The bottle was touching his forehead".

The Resident Magistrate's Judgment was relatively brief, two pages in all. He stated that he had "very carefully analysed all the evidence but I do not intend to discuss such analysis here because it will make this Judgment unduly lengthy".

As to the case against the first Respondent the Resident Magistrate found that it was a clear case of self defence. He found as a fact that the Complainant was "noticeably stronger" than the first Respondent who was advancing towards him, that in response the first Respondent had "put (the bottle) against the upper part of (the Complainant's) forehead and pushed him away with some force ..... which was by no means excessive". He completely rejected the "prosecution evidence describing the manner in which (the complainant) said he was hit by the bottle".

As to the second Respondent the Resident Magistrate found "taking the evidence as a whole I believe the account given by (the second Respondent)". "In the garbled state of the evidence on both sides it is impossible to say with any degree of certainty who was attacking and who was defending".

Turning to the third Respondent the Resident Magistrate simply stated "I find (he) has given a true account or a substantially true account of the events. On the totality of the evidence I do not believe that he at any stage assaulted the accused (sic)".

The grounds of appeal lodged and signed by the Director of Public Prosecutions were:-

"(a) that the learned Magistrate erred in law in acquitting the Respondents given the evidence adduced for the (complainant); and

(b) that the evidence for the (complainant) proved beyond reasonable doubt the guilt of the Respondents."

Such vaguely worded grounds of appeal are quite insufficient. They are of no assistance to the Court or to Counsel for the Respondents both of whom are entitled to be properly apprised of the matters complained of.

As long ago as 1953 the Fiji Court of Appeal in Ram Swami Pillay (FCA Reps. 53/11) had this to say:-

"This Court has on numerous occasions had cause to comment adversely on the manner in which grounds of appeal have been formulated. We take this opportunity of again referring to R v Jack Fielding (1938) 26 Cr App. R 211 because it is peculiarly applicable to this present appeal and in order also to place on record some guidance generally to persons who may appeal to this Court. In that case du Parcq J. said "it is most unsatisfactory that grounds of appeal should be drawn with such vagueness as we find in the present case..... It has been said many times in this Court that particulars must be given in the grounds of appeal. If misdirection is complained of, it must be stated whether the alleged misdirection is one of law or fact and its nature must also be stated. If omission is complained of, it must be stated what is alleged to have been omitted. It is not only placing an unnecessary burden on the Court to ask it to search through the summing up and the transcript of evidence to find out what there may be to be complained of, but it is also unfair to the prosecution, who are entitled to know what case they have to meet. We hope that it will not again be necessary to point out a similar inadequacy in grounds of appeal". Those were the remarks of the learned Judge which we wish to commend as strongly as possible, to the attention of those who may wish to appeal to this Court."

As already noted the Resident Magistrate's Judgment was somewhat brief. Now, there is nothing intrinsically wrong with a brief Judgment providing always that it sufficiently complies with the mandatory requirements of Section 155 (1) of the CPC (Cap 21) and accordingly "contains the point or points for determination, the decision thereon and the reasons for the decision ...".

What Ms. Laveti pointed out in her careful oral submissions was that the Resident Magistrate's Judgment contained no reference whatsoever at all to two of the five witnesses called by the Prosecution namely PW2, Jai Chand and PW3 Umesh Prasad both of whom told the Court that they had been present throughout and had witnessed the fight, both of whom corroborated the complainant's evidence and one of whom, PW3 was an entirely independent witness. Unlike the evidence of the three Respondents which, taken as a whole amply justified the Resident Magistrate's use of the word "garbled" the evidence of these two prosecution witnesses was clear, concise and straightforward. It was entirely unshaken in cross examination.

The Resident Magistrate described the trial as "a waste of everyone's time and money". He expressed the view that the Complainant and the Respondents should have acted with a greater sense of maturity, that the injury was minor and that the alleged offence was reconcilable. With all those observations I entirely agree but the fact that a matter should not have come on for trial (and both the Prosecutor and the Court might well, in the circumstances, have had Section 32 of the CPC in mind as an alternative) is no ground for failing adequately and comprehensively to set out the relevant points for determination - in this case clearly and centrally including the effect on the evidence as a whole of these two vital prosecution witnesses PW2 and PW3 but instead effectively ignoring a substantial portion of the prosecution case.

While an appellate Court is slow to reverse findings of fact reached in a lower Court (see Benmax v Austin Motor Corp. [1955] 1 All ER 326) it will intervene when satisfied that incorrect inferences have been drawn from the facts as proved or where there has been a failure to draw proper inferences from them (see Powell v Streatham Manor [1935] AC 243. Although a verdict of acquittal will not lightly be set aside especially as there is no power to order a re-trial (see CPC-Section 319(1)- proviso (b)) I am satisfied that in this case the Resident Magistrate so fundamentally misdirected himself that there is no proper alternative but to set aside the verdict reached.

The appeal succeeds. The verdict of acquittal is quashed. I will hear counsel before deciding what further order or orders should now follow.

M.D. Scott
JUDGE

2 April 1997

Haa0009j.97