IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAA 14 OF 2015

BETWEEN:

RAJESHWAR PRAHLAD
APPELLANT

AND:

THE STATE
RESPONDENT

Counsel : Mr. Iqbal Khan for the Appellant 
 Mr. J. Niudamu for the Respondent 

Date of Hearing : 28th of October 2015
Date of Judgment : 5th of November 2015

JUDGMENT

Introduction
1.	 The Appellant files this Petition of Appeal against the judgment delivered by the learned Resident Magistrate in Lautoka on 20th of January 2015, seeking an order to quash the conviction entered against the Appellant. The Petition of Appeal is founded on the following grounds inter alia;

i.	The Judgment and Sentence passed by the learned Trial Magistrate is not consistent with the evidence adduced in trial therefore wrong in principle,

ii.	Alternatively, the overall conviction was harsh and biased considering the circumstance of the case, 

iii.	The Learned Magistrate erred and failed to take into consideration the collusion of witnesses in the prosecution's case. Furthermore, the learned Magistrate also erred and failed to take into consideration that the prosecution's witnesses colluded and interfered with the defence witnesses. 

2.	 This Petition of Appeal was mentioned in court on the 10th of March 2015, where the Appellant and the Respondent were directed to file their respective written submissions. The Respondent filed their written submissions as per the direction. Instead of filing the written submissions as per the direction, the learned Counsel for the Appellant sought further time to obtain the copy of the case record of the Magistrate court proceedings and to file his written submissions. Unfortunately, the learned counsel for the Appellant failed to file written submissions within the time given for that purpose. After several adjournments for written submissions, the Appellant changed his solicitor. The new solicitor also showed the same lacklustre attitude shown by the previous counsel of the Appellant. The learned counsel for the Appellant sough number of adjournments, firstly to consider the appeal and then to obtain instructions. The Appellant finally filed a notice of additional grounds of appeal on 29th of September 2015. The additional grounds of appeal are that;

i.	The Learned Magistrate erred in law and in fact in not taking into consideration the Appellant's submission on No Case to Answer at the end of the prosecution case. Furthermore the Learned Magistrate did not apply the relevant laws to the facts that were presented by the state, 

ii.	The Learned Magistrate erred in law and in fact in not adequately directing/ misdirecting that the prosecution evidence before the court proceed beyond reasonable doubt that there were serious doubts in the prosecution case and as such the benefit of doubt ought to have been given to the Appellant, 

iii.	The Learned Magistrate misdirected and / or wrongly directed himself on the question of burden of proof and by such failure there was a substantial miscarriage of justice, 

iv.	The Learned Magistrate erred in law and in fact in not properly analysing all the facts before him on each count separately before he made a decision that the Appellant was guilty as charged on 3 counts, 

v.	The Learned Magistrate erred in law and in fact in not directing himself to the possible defence on evidence and as such by his failure that was a substantial miscarriage of justice, 

3. The learned counsel for the Appellant, did not seek leave of the court to file this additional grounds of appeal as required under Section 249 (4) of the Criminal Procedure Decree. He just filed a notice of additional grounds of appeal. On the 2nd of October 2015, Learned counsel of the both parties informed the court that they would prefer to have the hearing by way of written submissions. I accordingly directed the parties to file their respective written submissions. The learned counsel for the Respondent stated that he will rely on the written submissions which have already been filled on 24th of March 2015. The learned counsel for the Appellant once again failed to file written submission as per the direction, leaving all the grounds of appeal advanced by the Appellant unsupported with any oral or written submissions. However, in the interest of justice, I consider it is prudent to consider the grounds of appeal and proceed with my judgment. 

Background 

4. The Appellant was charged in the Magistrate court for one count of Indecently Insulting or Annoying any Person contrary to Section 213(1) of the Crimes Decree, one count of Assault Causing Actual Bodily Harm contrary to Section 275 of the Crimes Decree, and one count of Breach of Domestic Violence Restraining Order, contrary to Section 77(1) of the Domestic Violence Decree of 2009. The Appellant pleaded not guilty for these three counts; hence the matter was set down for hearing before the learned Magistrate. The Prosecution has called six witnesses and has tendered 4 documents as exhibits of the prosecution. Subsequent to the prosecution case, the Appellant has given evidence on oaths and called three more witnesses for the defence. At the conclusion of the hearing, the learned Magistrate delivered her judgment, finding the Appellant guilty for all the counts as charged on 20th of January 2015. 

5. The case of the prosecution was founded on the allegation that the accused came to his house and asked his son, the victim of this action, to move away from the dinning table, while he was studying at that time. The accused had wanted to put a bed into the living room, removing the dinning table and the sofa. The victim asked the accused where would he study. An argument had erupted over that issue and the accused shouted at the victim and then assaulted him causing injuries to the victim. 

6.	 The Appellant has denied the allegations and presented evidence before the learned Magistrate that he did not shout at or assault the victim on that day. However, the accused has alleged that the victim came out while he was walking out from the house and assaulted him on his head, back and forehead. 

Law and Analyses 

7.	 In view of the grounds of appeal advanced by the Appellant, it is my opinion that all of them are founded on the ground that the learned Magistrate has erroneously failed to consider the reliability of the witnesses and the credibility of their evidence in her judgment. In the absence of any submissions in support of those grounds of appeal, I prefer that it would be more convenient to consider them together in my analyses. 

8.	 Having carefully considered the evidence presented by the parties before the learned Magistrate and the judgment of the learned Magistrate, I find that this case essentially depends on the reliability and credibility of the witnesses and their respective evidence. Under such circumstances, the trial judge who eventually determines whether the accused is guilty or not, has the advantage of hearing the evidence with its vocal sound and physical demeanours. In contrast, the appellate court does not enjoy such an advantage. 

9.	 The duty of the appellate court in respect of a decision made by a judge without a jury was considered in Watt v Thomas ( 1947) 1 All ER 582 at 587, where Lord Thankerton held that; 

i.	Where the question of fact has been tried by a judge without a jury and there is no question of misdirection of himself by the judge, an appellate court which is disposed to come to a different conclusion on the printed evidence should not do so unless it is satisfied that any advantage enjoyed by the trial judge be reason of having seen and heard the witnesses could not be sufficient to explain or justify the trial judge's conclusion,

ii.	The Appellate court may take the view that, without having seen or heard the witnesses, it is not in a position to come to any satisfactory conclusion on the printed evidence,
 
iii.	The Appellate court, either because the reason given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that 

10. Lord Thankerton in Watt ( supra) further expounded that; 

"It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question. It will hardly be disputed that consistorial cases form a class in which it is generally most important to see and hear the witnesses, and particularly the spouses themselves, and, further, within that class, cases of alleged cruelty will afford an even stronger example of such an advantage. Normally, the cruelty is alleged to have occurred within the family establishment, and the physique, temperament, standard of culture, habits of verbal expression and of action, and the interaction between the spouses in their daily life, cannot be adequately judged except by seeing and hearing them in the witness box".

11. Having acknowledged the observation made in Watt ( supra), the Fiji Court of Appeal in Shinodra v The State ( 1988) 34 FLR 135 held that; 

"Before leaving this appeal we feel we ought to draw attention to an important point of practice concerning the exercise by the High Court of its appellate jurisdiction. An appellate court is primary concerned to satisfied itself that the conclusion reached by the trial court can reasonable be supported on the evidence adduced and upon the applicable law, 

Where a case depends essentially, as the present case does, on the credibility of witnesses and findings of fact connected therewith, an appellate court ought to be guided by the impression made on the Magistrate who saw and heard the witnesses and no by its own evaluation of the printed evidence which can be misleading". 

12. In view of the above discussed judicial precedents, it appears that the High Court in the exercise of its appellate jurisdiction is first required to determine that whether the trial Magistrate has misdirected himself in reaching his conclusion on the evidence in his judgment. The Appellate court should not reach to its own conclusion only on the evidence presented to them in the form of printed transcript, unless the appellate court is satisfied that the conclusion of the trial Magistrate cannot be sufficiently explained from the evidence adduced before him. 

13. In this instant case, the learned Magistrate has correctly discussed the applicable approach in her judgment. In paragraph 8.4 of the judgment, the learned Magistrate has clearly stated that the court is required to evaluate the evidence presented by the prosecution and the defence with care in order to determine which party is telling the truth. She has further stated that the endeavour of determining the truth of the evidence must be conducted, while paying attention whether the prosecution has proved all the elements of the charges beyond reasonable doubt. The learned Magistrate has correctly identified and directed herself that the accused person has no burden of proving his innocence, as it is presumed by law. 

14. The learned Magistrate has found that the evidence presented by the Defence is unreliable, less worthy of credit, inconsistence and improbable. She has extensively discussed and analysed the evidence of the defence in order to reach her conclusion. 

15. The learned Magistrate has found that the explanation of the existence of an unhealthy relationship with his family is unreliable. The prosecution presented evidence that the accused had a very unhealthy relationship with his family due to the fact that he was found in having an extra marital relationship. However, in his evidence the accused had stated that the reason for such an unhealthy relationship was due to his disapproval of his daughter's relationship with her boy friend. The learned Magistrate has refused to accept the accused's version on the ground that the accused has never put such a proposition to his daughter, when she gave evidence as the second witness of the prosecution. 

16. Moreover, the learned Magistrate has refused to consider the evidence of the second witness of the defence on the issue that he received many phone calls from the wife of the accused and she threatened him not to give evidence. The learned Magistrate has found that those allegations have never put to the wife of the accused when she gave evidence as the third witness of the prosecution. Accordingly, it appears that the learned Magistrate has directed her mind to the evidential rules known as Brown v Dunn (1893) in refusing this evidence of the defence.
17. The Fiji Court of Appeal in Patel v Fiji Independent Commission Against Corruption [2011] FJCA 56; AAU0040.2011 (28 October 2011) has discussed the rule in Brown v Dunn, where it held that;

"It is called the rule in Browne v. Dunn [1893] 6R 67. It concerns a failure by counsel on behalf of a party to cross-examine an opposing party and his witnesses when they give their evidence. If counsel fails to put to the opposing party or his witnesses that the evidence is untrue or unbelievable, he must not address the jury that the uncross-examined evidence is not to be accepted as true…………

At pages 70 – 71 Lord Herschell LC then stated:

"Now, my Lords, I cannot help saying that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross-examination showing that the imputation is intended to be made, and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but is essential to fair play and fair dealing with witnesses."

18. Accordingly, it is my opinion that the learned Magistrate has refused to accept the accused's explanation for an unhealthy relationship with his family and also the allegation that the wife of the accused interfered with the witness of the defence on a correct and applicable legal principle. 

19. The learned Magistrate has then found the inconsistent nature of the evidence of the defence. She has specially considered the inconsistent nature of the evidence of the accused and the evidence of his mother. The accused stated in his evidence that the wife tried to hold the victim when he approached the accused to assault. However, the learned counsel of the accused put to the wife of the accused, that she shouted at the accused and told the victim to go and assault the accused, which she denied in her evidence. The mother of the accused in her evidence has told that the wife told the victim to go and assault the accused. Moreover, the second witness of the accused has stated in his evidence that the wife shouted at the accused when the victim came after him and assaulted. 

20. Having considered the printed version of the evidence, where I obviously have no privilege to evaluate the vocal sound and physical demeanour as the learned Magistrate had, I find the learned Magistrate's findings are in consistent and could sufficiently explain with the evidence adduced in the trial. Hence, I do not find any compelling reason to form a different conclusion on the evidence presented during the course of the hearing. 

21. Having concluded that the evidence of the defence is less worthy of credit and improbable, the learned Magistrate has found that the evidence presented by the prosecution is consistent and trustworthy. She has then concluded that the prosecution has satisfied beyond reasonable doubt that the accused is guilty for these three counts. In doing so, she has considered the evidence of the victim, his sister, his mother and the medical opinion of the doctor. Accordingly, I do not find that the Learned Magistrate has misdirected herself in concluding her findings in the judgment. 

22. In the conclusion, I find the grounds of appeal advanced by the Appellant in this appeal have no merit. I accordingly refuse and dismiss this appeal. 

23. The Deputy Registrar is hereby ordered to serve a copy of this Judgment to the learned Magistrate of Lautoka forthwith. 

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
05th of November 2015

Solicitors : Office of the Director of Public Prosecutions 
 Iqbal Khan & Associates