Nand v State [2008] FJHC 130; HAA029J.2008 (27 June 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

Criminal Appeal No: HAA 029 of 2008

Between:

SATYA NAND s/o Ram Nand
Appellant

And:

THE STATE
Respondent

Hearing: 20th June 2008
Judgment 27th June 2008

Counsel: Mr. M. Raza for Appellant
Ms H. Tabete for State

JUDGMENT

The Appellant is a police officer, who was charged with and convicted of, one count of assault occasioning actual bodily harm. It was alleged that on the 24th of May 2002 he assaulted Linesh Kumar and occasioned him actual bodily harm. He was given a suspended sentence and fined $100. He now appeals against conviction. The State concedes the appeal on one ground, that is that the learned Magistrate shifted the burden of proof to the Appellant.

The grounds of appeal can be summarized in the following way:

1. The trial court failed to analyse or evaluate the evidence.
   
2. The trial magistrate failed to consider corroboration.
   
3. The trial magistrate erred in accepting the medical report as part of the evidence.
   
4. The trial magistrate shifted the burden of proof.
   
5. The trial magistrate misdirected himself on the evidence of PW5 Penioni Tokoni and of DW4 Taniela Vererua.
   
6. The trial magistrate failed to give reasons for his decision.
   
7. The trial magistrate used parts of his "no case to answer" ruling in his judgment showing he had applied the wrong test to convict.
   

The charge was laid on the 30th of January 2006. The trial proceeded on the 19th of October 2006. The evidence of PW1, Linesh Kumar was that he was an IT Manager for a private company. In 2002 he was a student at the University of the South Pacific, in his final year. The police were investigating the matter of a stolen computer. The complainant was taken to the Nasese Police Station on the 24th of May 2002, at about midday. He was then taken to the Central Police Station. He was questioned by the Appellant, then locked in a cell. He was refused access to a telephone. He was then taken to an interrogation room where the Appellant was. He was holding a baseball bat with which he assaulted the complainant. There were about 25 blows. There were 5 or 6 other police officers present. He was later locked up again, then released (when he saw one Anil Reddy assaulted in front of him) then locked in a cell again. At about 11pm a Fijian officer beat his head repeatedly. On the following day the complainant fell on the stairs, and the officer said "you fell didn’t you." He was released at 12 midnight. He later lodged a complaint at the Namaka Police Station. He was medically examined by a "Mr. Ali."

Under cross-examination he said he received injuries as a result of the assault, that he was released by Inspector Sen and that he complained about the assault at Namaka Police Station. He was not asked to identify his medical report.

The doctor’s evidence was that she saw and examined Linesh Kumar on the 25th of May 2002 at 8.55pm. The history related by the patient was that he was beaten with a stick at the Central Police Station. She found an area of bruising on the right buttock, and swelling and tenderness on the head. She found the injuries consistent with being hit by a blunt object with "significant force." The medical report was tendered although counsel for the defence objected to it being tendered.

There was evidence that when the complainant came home from the police station he was limping, injured and distressed. His brother Nimay Kumar took photographs of his injuries and persuaded him to go to the Namaka Police Station. PW5, Corporal Abhay Nand was the charging officer. He saw no injuries on the complainant and the complainant made no complaints to him.

The Appellant was interviewed under caution. He said that he had interviewed Linesh Kumar, that he had been brought in for interview from the cell, that the interview commenced at 1745 hours, and was completed at 1930 hours and that he had not assaulted him at any time.

The defence made a submission that there was no case for the Appellant to answer. The learned Magistrate ruled on the matter on the 21st of November 2006. He applied the test in R v. Jai Chand [1972] 18 FLR 101, and found that there was a prima facie case. The Appellant gave sworn evidence and denied assaulting Linesh Kumar. The defence then called DC Aminiasi Cula, WPC Matelita and another witness (DW4) whose name is not recorded. All defence witnesses said that they were present when the Appellant was at the station and was being interviewed. They said they saw no assault, and the complainant made no complaint to them when he was granted bail. The defence asked to tender the statement of Taniela Vererua "in the interests of justice." This witness was abroad and could not be called. The prosecution objected but the application was allowed and the statement was held to be admissible.

Judgment was delivered on the 18th of April 2007. After setting out the elements of the offence and the evidence, he accepted the evidence of the prosecution "as consistent and credible." He rejected the defence evidence. At page 5 of his judgment, he made the following remarks:

"On the other hand, defence has not exhaust or account for the whole time the complainant was in police custody nor have they tendered a copy of the complainant’s interview or station diary for that purpose. Their witnesses were not present with the complainant and the accused the whole time to qualify their statements that they did not see the accused assaulting the complainant. Although it is for the prosecution to discharge their duty to prove their case beyond reasonable doubt against the accused and not for the accused to prove his innocence, the least the defendant could have done, is to account for all the time the complainant was in his custody as he was the officer in charge of the case against the complainant. In the absence of such accounting of time, there is a likelihood and I find it corroborative of the complainant’s contentions that he was indeed assaulted by the accused whom he positively identified in court."

He then convicted the Appellant.

The appeal

It is this paragraph which gives me some difficulty in upholding the conviction, and it is on the basis of this paragraph that the State accepts that the conviction must be quashed.

It is possible that in suggesting that the Appellant should have tendered the evidence of the interview of Linesh Kumar and of the station diaries, the learned Magistrate was simply referring to the shifting of the evidential burden of proof. However, his choice of words was unfortunate, because the clear impression created is that he thought the Appellant had a duty to lead that evidence to exonerate himself. He had no such legal duty.

Indeed, because the prosecution was conducted by the office of the DPP, we could assume that the prosecution had access to these exhibits and not the defence, certainly after the Appellant had been charged with the offence. Certainly the prosecution could have made them available to the defence. However, the value of those exhibits must be questionable. If they did not record any assault, nor any complaint of assault, then they were unlikely to be probative to either side. After all, the Appellant claimed he was kept in a cell, then assaulted in an interrogation room while waiting to be questioned. If he was assaulted in the interview room, that is unlikely to be part of either the interview record or the station diaries.

I consider that the appeal must be allowed on the ground that it appears that the burden of proof was shifted to the accused.

As to the other grounds of appeal, I find no merit in them. The learned Magistrate did evaluate the evidence, he did not need to consider corroboration as there was no reason to believe that Linesh Kumar had any particular motive to accuse the Appellant, it is too much of a coincidence to think that Doctor Praveena Ali examined some other Linesh Kumar on the 25th of May 2002 and found the same injuries on him that the complainant complained of, and he applied the correct test at no case stage and at the end of the trial. If it were not for the offending paragraph in his final judgment set out in this judgment, I would have found that he did not err at all.

However, this appeal must be allowed on the sole ground of the reversal of the burden of proof.

Result

The conviction is quashed. The allegations are serious and are made in relation to an alleged assault in police custody. I order a retrial despite the delay since the date of the charge. This matter must be tried in 2008 to eliminate any further delay.

Nazhat Shameem
JUDGE

At Suva
27th June 2008