Kumar v The State [2004] FJHC 485; HAA0098.2004L (15 October 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0098 OF 2004L

HEMANT KUMAR
f/n Dukhi Prasad
Appellant

v.

THE STATE
Respondent

Appellant in person
Mr. K. Tunidau for the respondent.

Hearing & Ruling: 15 October 2004

RULING ON BAIL PENDING APPEAL

The appellant was on the 16^th June 2004 convicted of the offence of act with intent to cause grievous harm and was sentenced to imprisonment for 3 years and appeals against the conviction and sentence.

Statement of Offence

ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary to section 224(a) of the Penal Code, Cap. 17.

Particulars of Offence

HERMANT KUMAR s/o Dukhi Prasad on the 13^th day of January 2002 at Lautoka in the Western Division, with intent to do some grievous harm to MANI RAM s/o Ram Pal unlawfully wounded the said MANI RAM s/o Ram Pal with a cane knife.

The facts as found by the Learned Magistrate are that the appellant on the 14^th January 2002 went to the compound of Mani Ram to see Padma Wati, with whom he was having an affair.

The appellant was interrupted by Mani Ram and ran away. As he did, a stone was thrown which hit the appellant. A fist fight then ensued between Mani Ram and the appellant. The appellant had a cane knife with which he hit the vehicle of Mani Ram and Mani Ram inflicting injuries to him, which required a number of stitches.

The appellant challenged the caution interview unsuccessfully on the basis of it having been obtained under duress.

The Learned Magistrate accepted the evidence of Mani Ram and Padma Wati and did not accept the appellant’s version of events.

The grounds of appeal against conviction are:

(a) That the Learned Magistrate erred in law in convicting the appellant when the prosecution failed to prove the intent of the appellant that he intended to cause grievous bodily harm.

(b) That the Learned Trial Magistrate erred in law and in fact by denying the appellant his constitutional rights to a fair trial as a result of His Worship’s refusal to allow the appellant access to a competent interpreter.

(c) That the Learned Trial Magistrate erred in law and in fact when he took irrelevant matters into consideration in his ruling relating to the interpreter when there was apparent conflict of interest.

(d) That the Learned Trial Magistrate erred in law and in fact when he admitted the appellant’s confessional statement obtained in breach of Fiji Constitution and which statement was not voluntary.

(e) That the Learned Trial Magistrate erred in law by denying the appellant the opportunity to challenge the doctor’s evidence, contrary to his constitutional right (28)(1)(f) to challenge evidence.

Dealing with these grounds of appeals seriatim, it is submitted the prosecution did not prove “intent” and that to act with reckless indifference is insufficient.

For this submission, the appellant relies on R v Belfon [1976] 3 All ER 46. That case deals with an offence pursuant to section 18 of the English Offences Against the Person Act [1861], which might be described as the offence of wounding with intent to do grievous bodily harm. The appellant was charged under section 224(a) of the Penal Code, which appears to be in similar terms. The Court of Appeal held it was necessary to prove that the accused had done the act with intent to cause grievous bodily harm. The fact that the accused had foreseen that such harm was likely to result from his acts or that he had been reckless, whether such harm would result did not constitute the necessary intent.

The Learned Magistrate found that the appellant:

“Picked up the cane knife from PW-1, Mani Ram, at his compound at 9.15pm. From that time to the time of the incident, you had time to form the intent and later used the same to injure the complainant.”

The Learned Magistrate rejected the appellant’s version of events and said:

“From the evidence before the court, you had a cane knife with you and you used the same to injure PW-1, Mani Ram.

From these facts, the court is of the respectful view that all the elements of the offence are proven.”

The Learned Magistrate when considering “intent” referred to R v Purcell 83 Cr. App. R 45 and said and I quote:

“It was held, you must feel sure the defendant intended to cause serious bodily harm, considering the relevance circumstances, in particular, what he did and what he said about it. The accused showed he intended his action.”

The Learned Magistrate has properly directed himself and he has the opportunity of it of observing the witnesses. I see no merit in this ground of appeal.

Grounds of appeal (b) and (c) might conveniently dealt with together.

The court record shows that shortly after the commencement of the evidence of Mani Ram, the following exchange took place and I quote:

Prosecution: The counsel is misleading the court. The witness said, if you come here, I would demonstrate it on you.

S. Shah: I ask that the interpreter be changed. He is a son of the prosecutor and not translating properly.

Prosecution: That is for the court. The counsel could have objected from the beginning. I don’t know what has not been translated properly.

S. Shah: He did not use the word “marega”, not demonstrate.

Prosecution: As soon as the witness said those words, the counsel said what he saw to the court. He did not give a chance to the interpreter to do his work.

S. Shah: We will proceed.”

The Learned Magistrate then unnecessarily ruled that the interpreter not be changed. There is no evidence or submission of any lack of a fair trial flowing from a single alleged translation error and in any event, counsel withdrew the objection before the Learned Magistrate make his ruling.

It is submitted on behalf of the appellant, that he should not suffered due to incompetent counsel. In support of his submission, the appellant refers the court to Litigation Evidence and Procedures (6^th ed.) – Aronson and Hunter p. 619.

There is nothing in the facts or submission to support a proposition that the actions of counsel caused or contributed to an actual miscarriage of justice – R v Birks [1990] NSWLR 677. There is absolutely nothing before the court to suggest the trial was in anyway unfair due to the interpreter and as I have said, the ruling of the Learned Magistrate was unnecessary, as the objection had been withdrawn.

There is not merit in these grounds of appeal.

The record shows that there is evidence sufficient to have convicted the appellant, even if, the confessional statement had not been admitted into evidence. There is no merit in this ground of appeal.

Lastly, the appellant submits that the Learned Magistrate erred in law in not allowing the appellant to challenge the doctor’s evidence. There is nothing in the record to suggest that this is so. The record indicates that after the trial had commenced and months after disclosure had been given, the appellant sought to cause the prosecution to call the doctor. The appellant did not comply with section 191 of the Criminal Procedure Code and could have called the doctor to give evidence on his behalf. This ground of appeal has not merit.

The appeal against conviction is therefore dismissed.

Counsel for the appellant submits that the appellant has served 4 months in jail and is therefore entitled to a suspended sentence. He is a cane farmer, his family are suffering due to him being in prison. He should have thought of the impact of his behaviour on his family much earlier in time.

In State v Mokubula – HAA0052 of 2003S, Madam Justice Shameem said when considering the tariff for this offence that:

“The starting point should range from 2 years imprisonment to 5 years depending on the nature of a weapon.”

Relevant aggravating factors were there identified as:

(a) serious injuries

(b) premeditation

Mitigating factors were relevantly identified as:

(a) prior good character

(b) provocation

The Learned Magistrate imposed a term of 3 years imprisonment. If one takes as a starting point 3 years imprisonment, the aggravating and mitigating factors in this matter would in my opinion balance each other and therefore have not resultant impact, such as to make the sentence imposed by the Learned Magistrate, manifestly excessive and accordingly the appeal is dismissed.

JOHN CONNORS
JUDGE

At Lautoka
15 October 2004