Tabuatolo v The State [1998] FJHC 56; Haa0015j.1998b (27 April 1998)

Fiji Islands - Tabuatolo v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT LABASA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 15 OF 1998

BETWEEN:

ASENACA TABUATOLO
Appellant

AND:

STATE
Respondp>

Mr. A. Kohli for the Appellant
Ms. Laisa Laveti for the State

>

JUDGMENT

On 12 February, 1998 the appellant was convicted on his own plea of the offence of act with intent to cause grievous harm contrary to section 224(a) of the Penal Code Cap. 17 by S.M. Shah Esq., at Magistrate's Court, Labasa and sentenced to imprisonment for 12 months.

He appeals against severity of sentence.

At the commencement of the hearing Mr. Kohli who now represents the appellant stated that the appellant filed the grounds in person and he would like to add a further ground.

The Court noticed from the Record that in mitigation the appellant said that 'he wanted to hit me so I got him first .....'. That in my view raised the defence of self-defence.

Both counsel agreed with this view. The learned State Counsel said that a plea of not guilty should have been entered after that statement was made by the appellant.

With the appellant's said statement the learned Magistrate could not have done justice to the case. There definitely was the need to adduce evidence, in other words there was need for him to enter a plea of not guilty and give a date for hearing of the case. Evidently, the learned Magistrate overlooked the principles governing the defence of self-defence as stated by LORD MORRIS of BORTH-y-GEST in the Privy Council case of PALMER v REGINAM [1970] UKPC 2; (1971) 1 All. E.R. 1077 at p.1088 which is the high water mark on the subject of self-defence and provocation.

For ease of reference I quote hereunder what LORD MORRIS stated on the subject of self-defence and this could become pertinent and to be borne in mind when considering the defence that has been raised:

"In their Lordships' view the defence of self defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation.

No formula need be employed in reference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend on the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence. Of all these matters the good sense of a jury will be arbiter. There are no prescribed words which must be employed in or adopted in a summing-up. All that is needed is a clear exposition, in relation to the particular facts of the case, of the conception of necessary self-defence. If there has been no attack then clearly there will have been no need for defence. If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken. A jury will be told that the defence of self- defence, where the evidence makes it raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence. But their Lordships consider in agreement with the approach in De Freitas v R (1960) 2 W.L.R. 523 that if the prosecution have shown that what was done was not done in self-defence then that issue is eliminated from the case. If the jury consider that an accused acted in self-defence or if the jury are in doubt as to this then they will acquit. The defence of self-defence either succeeds so as to result in an acquittal or it is disproved in which case as a defence it is rejected."

For these reasons upon reading the Record and after hearing both Counsel I find that a plea of not guilty should have been entered by the learned Magistrate as the defence of self-defence, which is a good defence, was raised by the appellant. I set aside the conviction and sentence which is quashed and I order that this action be remitted to the Magistrate's Court for retrial after the charge is put to the appellant again and a fresh plea taken before another Magistrate. The appellant is released from Prison forthwith and is bailed in her own recognisance in the sum of $200 to appear at the Magistrate's Court, Labasa on 8 June, 1998 at 9.15 a.m.

D. Pathik
JUDGE

At Labasa
27 April 1998

Haa0015j.98b