Naosara v State [2007] FJHC 71; HAA047J.07S (2 November 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 047 of 2007

Between:

PAULIASI NAOSARA
Appellant

And:

THE STATE
Respondent

Hearing: 26th October 2007
Judgment: 2nd November 2007

Counsel: Ms A. Lekenaua for Appellant
Ms J. Shah for State

JUDGMENT

The Appellant was charged with act with intent to cause grievous bodily harm. It was alleged, that on the 3rd of June 2006 at Nasinu, with intent to do grievous harm to Acting Corporal Esala Matou, he unlawfully wounded him with a kitchen knife.

The case was called on the 20th of June 2006. The Appellant pleaded not guilty after waiving his right to counsel. The trial commenced on the 27th of December 2006. Corporal Esala Matou gave evidence that he was a member of the Police Tactical Unit, and on the 3rd of June, had been instructed to capture escaped prisoners from Naboro prison. During the operation the Appellant fled from a house and struck Corporal Matou with a kitchen knife causing his injuries. He swore at the Corporal and threatened to kill him. A tendered medical report showed that he had a 1-2cm cut on his chin and abrasions on the neck and jaw.

The trial was adjourned, and continued on the 23rd January 2007. Prison Officer Tana Bosevou said that he witnessed the incident and helped to arrest the Appellant. Under cross-examination he says he did not see how PW1 had been injured but had seen a kitchen knife outside the bathroom door.

The Appellant gave sworn evidence and said that he had been in the bathroom when PW1 came to arrest him in a rough way. He wrestled with the officer and he ran down a creek. One of the officers threw a stone at him and they then pushed his head under water. He was then taken to hospital. Under cross-examination, he agreed that he had been an escaped prisoner. He called Sakiusa Basa as his witness. He said that on the 3rd of June 2006 he was in a house at Newtown with the Appellant, when the police arrived. He saw a police officer go into the bathroom and he saw them struggling and the Appellant running out of the house. He did not see a knife.

Under cross-examination, he agreed that he had also been an escaped prisoner at the time. Judgment was delivered on the 28th of February 2007. After reviewing the evidence, the learned Magistrate correctly identified the main issue as being whether the Appellant had struck Corporal Matou with a knife, intending to cause him grievous bodily harm. He said he accepted Corporal Matou’s evidence and found that the Appellant had intended grievous harm. He convicted him.

The Appellant admitted 10 previous convictions and said he was single, unemployed and 26 years old. He was a serving prisoner due to be released in September 2011. The learned Magistrate said that the tariff was between 9 months to 5 years imprisonment and he picked 3 years as his starting point. After taking into account all mitigating and aggravating factors, he sentenced the Appellant to 2 years imprisonment to be served consecutive to the prison term he was then serving. In effect, his date of release is now 2013.

The Appellant’s appeal is against conviction and sentence. His grounds are that there was no supporting evidence for PW1, that the evidence of Sakiusa Basa should not have been disregarded, that the learned Magistrate failed to properly assess the evidence and that the Appellant was prejudiced by lack of representation.

The Appellant was represented at the appeal by counsel for the Legal Aid Commission. She pointed to the failure of the prosecution to tender the kitchen knife, the failure of the learned Magistrate to properly analyse the evidence, and the failure to give any weight to the defence witness.

State counsel submitted that the Appellant had waived his right to counsel, had cross-examined all the witnesses and had called a witness on his own behalf. She said that he had been in no way prejudiced by lack of representation. She said that the evidence of Cpl. Matou was clear and the learned Magistrate was entitled to rely on it because it was supported by the evidence of PW2 and PW3 both of whom were officers engaged in the same operation. Further PW1 had a cut on his chin which was consistent with his evidence. State counsel also submitted that the learned Magistrate was entitled to reject the evidence of the defence witness.

There were inconsistencies in the evidence of PW1, PW2 and PW3 and the only direct evidence of the Appellant using the knife on PW1 to inflict the injury was PW1 himself. However, that there was a knife during the incident was agreed to by the prosecution witnesses. It appears that PW2 and PW3 arrived at the scene to see the Appellant wrestling with PW1 and saw a knife lying outside the kitchen door. Nevertheless it was open to the learned Magistrate to accept the evidence of PW1 and of the medical report. Although greater analysis was called for after the review of the evidence, the issue was essentially a simple one. Did the Appellant strike at Cpl. Matou with a knife causing an injury and did he intend serious harm? Anyone who uses a knife on another in an aggressive way must be assumed to intend serious harm. That is the consequence of using potentially lethal weapons.

The learned Magistrate was entitled to accept the evidence of PW1 over that of the Appellant and the defence witness. Although as I have said, greater analysis was desirable, I do not consider that the learned Magistrate erred in either law or fact.

For these reasons this appeal is dismissed. There is no appeal against sentence.

Nazhat Shameem
JUDGE

At Suva
2nd November 2007