Lata v The State [2000] FJHC 108; Haa0078j.2000s (16 October 2000)

Fiji Islands - Lata v The State - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

APPELLATE JURISDICTION

CRIMINAL APPEAL NO: 078 OF 2000

BETWEEN:

MOHINI LATA

d/o Bissun Prasad

Appellant

AND:

THE STATE

Respondent

Mr A.K. Singh for Appellant

Mr J. Waqaivolavola for Respondent

Date of Hearing: 12th October 2000

Date of Judgment: 16th October 2000

JUDGMENT

The Appellant appeals against her conviction and sentence in the Nausori Magistrates Court, for the offence of Assault Occasioning Actual Bodily Harm.

On 16th July 1998 she was convicted of the following offence:

Statement of Offence

ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to Section 245 of the Penal Code, Act 17.

Particulars of Offence

MOHINI LATA d/o Bissun Prasad of Ratu Kadavulevu Road, Wainibokasi, Nausori, Domestic Duties on the 21st day of April 1998 at Wainibokasi at Nausori assaulted Sitla Devi Singh d/o Hanuman Lal occasioning her actual bodily harm.

The charge was laid on 11th August 1998, and after several adjournments, the trial commenced on 1st December 1999. The prosecution called the complainant, Sitla Devi Singh, Dr Mosese Salusalu, Police Constable Mohammed Yunus and Police Constable Rakesh Mani. The accused gave sworn evidence and called one witness, Madhu Lata.

Judgment was delivered on 23rd February 2000. In his judgment the Learned Magistrate rejected the evidence of the accused and her witness, and convicted her. She was then conditionally discharged, the condition being that she must not re-offend in the next twelve months.

The Appellant appeals against conviction and sentence upon the following grounds:

“(a) That the Learned trial Magistrate has erred in law and facts when allowed the Prosecution to tender the Medical report of the Victim despite the Doctor giving the evidence;

(b) That the Learned trial Magistrate erred in law and facts when he convicted the Appellant without taking into consideration that the Appellant was acting in self-defence when she was suddenly attacked by the complainant;

(c) That the Learned trial Magistrate erred in law and facts when he failed to warn himself of the danger of convicting the Appellant without corroboration;

(d) The Learned Magistrate erred in law and facts when he took into consideration the evidence from the previous matter decided by his Worship Mr Jitend Singh;

(e) The Learned Magistrate erred in law and facts when he failed to take into consideration the inconsistent evidence of the complainant and the Investigating Officer;

(f) The Learned Magistrate erred in law and facts when he failed to take into consideration that Constable Yunus admitted telling lies and as such his evidence should have been completely ignored;

(g) The Learned Magistrate erred in law and facts when he failed to take into consideration the evidence of the defence witness even though the complainant admitted that she did speak to the defence witness after the incident.”

The facts of the case as disclosed on the record are that the complainant, Sitla Devi Singh, was on her way to a mother’s club prayer session on Wainibokasi Road when she met the Appellant. They exchanged words, the complainant saying that the Appellant had accused her of spreading rumours about the Appellant having an affair with the complainant’s husband. Sitla Devi said that the Appellant assaulted her on the head, right shoulder, and ribs. She said that she in turn bit the Appellant to protect herself. Her jewellery was broken and fell on the road. She then went to a police constable’s house nearby where she began to wash her hair. The Appellant pursued her there and assaulted her further. Sitla Devi said that she went home and reported the matter to the police.

The medical evidence was that the complainant received two ˝ inch cuts on the head and shoulder, a haematoma (bruise) five centimetres in diameter on the thigh and tenderness to the right side of the chest.

The Appellant was interviewed under caution. Unfortunately the interview is not included in the court record although the Learned Magistrate has referred to it in his judgment. However from the Learned Magistrate’s reference to it, it would seem that

the statement was exculpatory and therefore of limited weight in any event.

Ground a

The Appellant submits that the medical report was wrongly admitted, and refers to the case of Colin Raymond Langford -v- R [1974)] FLR 11.

State Counsel concedes that the report was a memory-refreshing document but points out that the examination-in-chief comprised of the tendering of the report, that the doctor was cross-examined on the report by the Appellant’s counsel himself, and that the tendering of the report caused no prejudice to the Appellant.

In Langford (supra) Grant CJ found that a medical report was a memory-refreshing document for a doctor giving evidence and should not ordinarily be produced. However the appeal was allowed on the ground that the Magistrate had decided to give weight to one medical report over another on the basis of a medical text book he had read, and had convicted the Appellant against the weight of the evidence.

That decision was therefore better authority for the issue of what weight ought to be given to expert evidence, than to the question of the effect of improperly admitting a medical report.

Nevertheless, as a matter of evidence, a medical report read by a doctor in the witness-box, is a memory-refreshing document which is not admissible except in the unlikely event that a fabrication is alleged. (See R -v- Sekhon 85 Cr. App. R.19)

The effect of exhibiting a memory-refreshing document is simply to show consistency in the witness producing it. Such a document is not evidence of the truth of the facts stated in it. R -v- Britton (1987) 85 Cr. App. R. 14)

In Langford (supra) Grant CJ said at page 12:

“The doctor was called as a witness by the prosecution and was permitted by the trial Magistrate to put in evidence his written medical report in which he gave as his opinion that the appellant was so affected. This report, if contemporaneous could certainly have been used by the doctor to refresh his memory but it should not have been produced in evidence unless, as a statutory exception to the best evidence rule, section 184A of the Criminal Procedure Code applied, under the provisions of which certain documents may be produced in evidence in lieu of, but not in addition to, the oral evidence of a witness and subject to the requirements of that section being complied with, which is not the case here.”

Section 185A of the Code is now replaced with section 191 which only applies to the use of expert reports when the expert does not give oral evidence.

As a general rule therefore, medical reports are not admissible, if they are used as memory-refreshing documents.

However, they may become admissible if there is an inconsistency between the record and the oral evidence. Once exhibited, it is not evidence of the truth of its contents, only an aid to evaluating the credibility of the evidence of the witness R -v- Sekhon (supra).

Of course in this case, the Defence alleged such an inconsistency. Counsel pointed to the Doctor’s oral evidence of a laceration, which was not recorded. It appears therefore, that the Learned Magistrate had a discretion to allow the report to be exhibited, but only after cross-examination on the alleged inconsistency, and after an application is made in that regard.

It appears from the record, that an incorrect procedure was adopted. Firstly, the doctor did not give evidence of the contents of the report. He simply tendered it. Secondly the report was tendered before any questions were asked about it which might lay the basis for admissibility. Thirdly, no application was made by the prosecution to tender the report, as a memory-refreshing document.

However, as I have found, the report was admissible in any event, on the ground of the alleged inconsistency. That inconsistency was alleged by the Defence and the tendering of the report was therefore in the interests of the Appellant.

I also find that the Learned Magistrate based his decision to convict, largely on the credibility of the civilian witnesses, and that only fleeting reference was made in any event, to the contents of the report.

I find therefore that there was no prejudice to the Appellant in the adoption of an incorrect procedure relating to the tendering of the report, and that this ground of appeal therefore has no merit.

In passing, I note that section 30 of the English Criminal Justice Act 1988, now makes provision for the admissibility of an expert report, whether or not, the expert gives oral evidence, and that the contents of the report are admissible as evidence of the facts and opinions stated in it.

This may be a useful provision for the authorities to consider adopting in Fiji.

Ground b

The Appellant says that the Learned Magistrate failed to consider the defence of self-defence. The evidence that the Appellant was defending herself came from her evidence, and the evidence of Madhu Lata. He rejected that evidence as being unworthy of belief.

There was no other evidence on which the Magistrate could have considered the defence of self-defence. The evidence of the complainant was that she was attacked by the Appellant and that she had to bite the Appellant to defend herself. The cautioned interview appears to have been exculpatory and was therefore of limited weight. In any event, the Magistrate found the interview inconsistent with the Appellant’s sworn evidence which had an inevitable effect on the credibility of both.

The Learned Magistrate having decided that the Appellant’s story was not worthy of belief, was then entitled to settle for the complainant’s version which ruled out self-defence.

For these reasons I find that the Learned Magistrate did not err in law in failing to refer to the law relating to self-defence and I dismiss Ground (b) accordingly.

Ground c

Ground (c) is clearly devoid of merit. No rule of law or practice requires a corroboration warning in “domestic” cases. Fiji has not adopted legislation yet that gives a judge or magistrate the discretion to give a general warning in cases where witnesses might be considered unreliable for some reason.

As such, corroboration warnings are required in sexual offences, in cases when children give sworn evidence and in the case of accomplices. There are some cases in which a person cannot be convicted without corroboration in any circumstances, the notable examples being perjury and the unsworn evidence of children of tender years.

There being no requirement for a corroboration warning in this case, this ground of appeal is dismissed.

Ground d

In his judgment, the Learned Magistrate wrote that he had read the judgment in Case No. 660/98 in which his brother Magistrate had acquitted the complainant of a charge related to the same incident.

Counsel for the Appellant submitted that this was improper and that the Learned Magistrate had thereby created a perception of bias against the Appellant. He said that this was an irregularity which tainted his decision, and that the conviction should thereby be quashed.

The test for bias is whether a reasonably informed observer in the courtroom, knowing all the relevant circumstances would have a reasonable suspicion or consider that there was a real danger of bias (Amina Begun Koya -v- State Cr.App.No.CAV0002/97).

The court record shows that the issue of the previous proceedings in which the complainant was charged, was first raised by the Appellant’s counsel in his cross-examination of the complainant. It is unfortunate that the prosecutor did not then re-examine on the result of the case which had been disposed of. However the judgment does not suggest that the Learned Magistrate did anything other than read the judgment of Case No. 660/98. Further his remarks were as follows:

“Since counsel for the defence had cross-examined PW1 whether she was also charged on a cross-summons of this same offence, it is only appropriate that this court should highlight the case in question.

In Case No. 660/98 PW1 in this case was the accused in that case. In his judgment delivered on 25/5/99 Brother Magistrate Mr Jitend Singh had acquitted Sitla Devi Singh d/o Hanuman Lal, for lack of material evidence.

The full text of the learned magistrate’s judgment may be made available to the defence upon request.

However, this court shall base this judgment not on Case 660/98, but from the facts as presented in this court by the prosecution.”

It would appear to the informed observer in the courtroom, that the issue of the previous case was raised by the Defence itself. It would appear that the Magistrate looked at the judgment (and not the evidence) to discover the outcome of the case. It would further appear that the Learned Magistrate decided the case not on the previous trial, but strictly on the evidence before him. Indeed on a reading of the entire judgment, he made no reference at all to the earlier proceedings.

In these circumstances, the reasonably informed observer at the back of the courtroom would not have a suspicion of bias, or consider that there was a real danger of bias.

This ground is dismissed.

Grounds e, f and g

These grounds are essentially about the Learned Magistrate’s analysis of the evidence, and his findings on the credibility of the witnesses.

The inconsistencies referred to in the evidence of the complainant and Police Constable Yunus are not crucial to the case. The discrepancies recorded as to whether the road was a gravel one or tarsealed, are not surprising given the lapse of time since the date of the offence. Moreover, in considering the evidence the discrepancies must have been considered by the Learned Magistrate, who is not obliged to record every inconsistency in his judgment.

On all the evidence the Magistrate accepted the prosecution version of the facts. It is not correct to say that he did not explain why he rejected the Defence version, nor provide an analysis of the evidence. Pages 5 and 6 contain several reasons for rejecting the Defence version - the inconsistency between the Appellant’s charge statement, caution statement and sworn

evidence, the absence of proof of injuries, and the different version provided by Madhu Lata.

At the end of the day, the question of credibility of witnesses is for the trial Magistrate. It is a discretion rarely interfered with on appeal. These grounds also fail.

Conclusion

For the reasons given in this judgment the appeal by the Appellant against her conviction and sentence, is dismissed.

Nazhat Shameem

JUDGE

At Suva

16th October 2000

HAA0078j.00s