State v Dutt [2024] FJHC 390; HAC132.2021 (20 June 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No.: HAC 132 of 2021

STATE

V

SANIL DUTT

Counsel : Mr. J. Nasa for the State.
: Mr. P. Sharma and Mr. N. Chand for the Accused.

Dates of Hearing : 17 June, 2024
Closing Speeches : 19 June, 2024
Date of Judgment : 20 June, 2024

JUDGMENT

1. The Director of Public Prosecutions charged the accused by filing the following information dated 29^th March, 2022:
   

Statement of Offence

ACT INTENDED TO CAUSE GRIEVOUS HARM: Contrary to section 255 (a) of the Crimes Act 2009.

Particulars of Offence

SANIL DUTT on the 8^th day of May, 2021, at Nadi in the Western Division, with intent to cause grievous harm to ASHNEEL DUTT, unlawfully wounded the said ASHNEEL DUTT by punching his face and stabbing his stomach with a knife.

2. In this trial, the prosecution called two witnesses and after the prosecution closed its case, this court ruled that the accused had a case to answer as charged.
   

BURDEN OF PROOF AND STANDARD OF PROOF

3. As a matter of law, the burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no obligation on the accused to prove his innocence. An accused is presumed to be innocent until he or she is proven guilty. The standard of proof is one of proof beyond reasonable doubt.
   

ELEMENTS OF THE OFFENCE

4. To find the accused guilty for the offence of act intended to cause grievous harm the prosecution must prove the following elements beyond reasonable doubt:

a) The accused;

b) with intent to do some grievous harm;

100. unlawfully does grievous harm to the complainant by any means.
     

5. In law grievous harm means any harm which—

(a) amounts to a maim or dangerous harm; or

(b) seriously or permanently injures health or which is likely so to injure health; or

(c) extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense.

6. The term harm has also been defined as any bodily hurt, disease or disorder (including harm to a person’s mental health) whether permanent or temporary, and includes unconsciousness, pain, disfigurement, infection with a disease and physical contact with a person that the person might reasonably object to in the circumstances (whether or not the person was aware of it at the time).

7. The first element of the offence of act intended to cause grievous harm is concerned with the identity of the person who allegedly committed the offence.
   
8. The second element relates to the intention of the accused that he intended to do some grievous harm to the complainant.
   

9. The final element relates to the conduct of the accused that he did some grievous harm to the complainant by any means.

10. The intention of the accused is to be decided by considering what the accused did, by looking at his actions before, at the time of, and after the act. Furthermore, unlawful means without lawful excuse and grievous harm means any dangerous harm to the body of another person.
    
11. If this court is satisfied that the prosecution has proved all the above elements of the offence of act intended to cause grievous harm beyond reasonable doubt, then this court must find the accused guilty of the offence of act intended to cause grievous harm. However, if there is a reasonable doubt with respect to any element of the offence of act intended to cause grievous harm then this court must find the accused not guilty.

ADMITTED FACTS

12. In this trial, the prosecution and the defence have agreed to certain facts titled as admitted facts. These facts are part of the evidence and I have accepted these admitted facts as accurate, truthful and proven beyond reasonable doubt.
    
13. I will now remind myself of the prosecution and defence cases. In doing so, it would not be practical of me to go through all the evidence of every witness in detail. I will summarize the important features for consideration and evaluation in coming to my final judgment in this case.
    

PROSECUTION CASE

14. The complainant informed the court that the accused Sanil Dutt is his cousin brother and they lived not far away from each other. On 8^th May, 2021 the complainant was drinking with his cousin brother Dennis and nephew Nikhil and they were making plans on how to celebrate mother’s day.
    
15. At about 7.30pm the complainant and his nephew Nikhil returned home from the house of Dennis. Nikhil called the accused to come and join them in drinking. The accused came and then all went in the complainant’s car to buy more drinks. The complainant purchased 6 cans of Rum and Cola which they started drinking in the car.
    
16. Upon reaching home the complainant parked his car at his house, the accused went to his house and shortly after the complainant joined Nikhil and the accused at the playground to drink the left over drinks. This playground is at the back of the complainant’s house.
    
17. It was after 11pm the three were standing and drinking at the playground, the accused was on the complainant’s right and Nikhil was on his left. Whilst drinking the complainant asked the accused who had cut the coconut trees in his compound. The accused responded by saying “who reported to the police”, the complainant said he went in the morning to report, the accused further asked “you know who cut the trees”. The complainant replied he had no idea who had cut the trees.
    
18. At this time the accused admitted he had cut the trees after saying this the accused punched the complainant on the right side of the complainant’s face and then on the left side. The complainant said since it was dark he was unable to see the punches until it landed on his face. He wanted to run away but before he could do so, the accused stabbed him on his stomach with a sharp object. This object went inside his stomach. The complainant was shocked and he fainted. When he woke up he was in the hospital. Furthermore, the complainant said he grew up with the accused who was his favourite cousin.
    
19. In cross examination the complainant agreed that it was Nikhil who had called the accused to join them for drinks and it was nearly 9pm the accused came with his wife. All four went to buy liquor at a dairy shop nearby. The accused upon returning home told the complainant to park his car and thereafter the accused, Nikhil and the complainant went to drink in the playground.
    
20. The complainant stated that after the accused had punched his face he shouted he wanted to run away but the accused hit his stomach as a result he fell on the ground.
    
21. The complainant was referred to page 2, line 23 of his police statement dated 10^th May, 2021 which was read as:
    

“I ran about 6 – 9 meters when he came after me and struck a kitchen knife on my stomach.”

22. The complainant agreed the knife had landed on the middle section of his stomach. When it was suggested that he saw what he was hit with, the complainant said it was dark when the accused hit his stomach he thought it was a punch but the object went inside so he shouted, ran and fainted. When questioned that in his police statement he had mentioned he was struck with a kitchen knife the complainant replied it was a sharp object.
    
23. The accused was standing about one meter away from the complainant at the time of the incident. The complainant denied he had fainted on the driveway. Again the complainant was referred to his police statement line 28 which was read as:
    

“I saw blood coming out of stomach and I got fainted on the driveway.”

24. When asked to explain which driveway he had fainted the complainant said he did not run to his house because the accused house is before his house so he ran the other way to his cousin’s driveway. The complainant also stated that it was the accused who had taken the drinks with him to the playground.
    
25. Upon further questioning the complainant said it was the accused who had hit him after the drinks had finished and they were about to go home. According to the complainant when the accused punched him Nikhil ran away and it was only after the punching on both sides of his face that he ran.
    

PREVIOUS INCONSISTENT STATEMENT

26. This court also directs its mind to the fact that the defence counsel during cross examination of the complainant had questioned this witness about two inconsistencies in his police statement which he had given to the police when facts were fresh in his mind with his evidence in court.
    
27. This court is allowed to take into consideration the inconsistencies or omission between what this witness told the court and his police statement when considering whether this witness was believable and credible. However, the police statement is not evidence of the truth of its contents.
    
28. It is obvious that passage of time can affect one’s accuracy of memory. Hence it cannot be expected for every detail to be the same from one account to the next.
    
29. If there is any inconsistency or omission, it is necessary to decide firstly whether it is significant and whether it affects adversely the reliability and credibility of the witness. If it is significant, then it is for this court to consider whether there is an acceptable explanation for it. If there is an acceptable explanation, for the change, then this court may conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for this court to decide to what extent that influences the reliability of the witness evidence.
    
30. The final witness Dr. Shiuma Sanjappa informed the court that she graduated with MBBS degree from Fiji National University in 2018 and currently she is working for Aspen Hospital at Lautoka. On 9^th May, 2021 the witness was based at the Nadi Hospital and she had attended to the complainant. The Fiji Police Medical Examination Form of the complainant was marked and tendered as prosecution exhibit no. 1.
    
31. According to the witness the patient was intoxicated and there was a stab wound noted on his abdomen. The specific medical findings of the doctor were:

(a) There was a superficial laceration (cut or tear on the skin) bilaterally noted on the patients face that was 2cm x 1cm. This injury may have been caused by a sharp object or an impact such as heavy punch;

(b) Penetrating stab wound meaning an open wound on the abdomen, a 3cm laceration was noted on the right lower quadrant which could have been caused by a knife, glass or any kind of sharp object.

32. The witness had discussed the patient’s condition with the surgical doctors at the Lautoka Hospital and a surgical procedure was performed. The stabbing had reached the small bowl and damaged the patient’s appendix which was removed.
    
33. In cross examination the witness stated that the patient had altered level of consciousness. She agreed the patient was facing a serious condition and he was transferred for further surgical evaluation.
    

DIRECTION ON EXPERT EVIDENCE

34. This court has heard the evidence of Dr. Sanjappa who had been called as an expert on behalf of the prosecution. Expert evidence is permitted in a criminal trial to provide the court with information and opinion which is within the witness expertise. It is by no means unusual for evidence of this nature to be called and it is important that this court should see it in its proper perspective. The medical report of the complainant is before this court and what the doctor said in her evidence as a whole is to assist this court.
    
35. An expert witness is entitled to express an opinion in respect of his or her findings and I am entitled and would no doubt wish to have regard to this evidence and to the opinions expressed by the doctor. When coming to my conclusion about this aspect of the case this court should bear in mind that if, having given the matter careful consideration, this court does not accept the evidence of the expert it does not have to act upon it. Indeed, this court does not have to accept even the unchallenged evidence of the doctor.
    
    36. The evidence of the doctor relates only to part of the case, and that whilst it may be of assistance to this court in reaching its decision, this court must reach a decision having considered the whole of the evidence.
        
37. This was the prosecution case.
    

DEFENCE CASE

38. At the end of the prosecution case, the accused was explained his options. He could have remained silent but he chose to give sworn evidence and be subjected to cross examination and also called one witness. This court must also consider the evidence adduced by the defence and give such weight as is appropriate.
    
39. The accused informed the court that the complainant is his cousin brother and Nikhil is his nephew. On 8^th May, 2021 he was invited by the complainant and his nephew to join them in drinking. The complainant and his nephew picked the accused and his wife and they all went to buy some drinks in the complainant’s car. After the accused drank with the complainant and Nikhil, the complainant wanted to drink more but the accused refused so with his wife he went home.
    
40. In cross examination the accused agreed that he has no animosity with the complainant and their relationship was cordial, respectful and lovely since they were cousins. The complainant would spend time with the accused and buy drinks.
    
41. The accused denied that on 8^th May, 2021 at around 9pm he was drinking with the complainant and Nikhil at Navakai. When questioned that it was an admitted fact the accused stated that he had wrongly instructed his counsel in this regard. The accused also denied that he was drinking with the complainant and Nikhil at the playground as alleged. He denied all the allegations put to him he said he has no idea how the complainant got hurt.
    
42. In re-examination the accused stated that he was drinking with the complainant and Nikhil in the car when they were going home from the shop.
    
43. The final defence witness Nikhil Dutt the nephew of the accused informed the court that on 8^th May, 2021 he had been drinking with the complainant and the accused. The wife of the accused was with them as well. After the drinking finished at around 10.30 pm the witness went home and so did the accused.
    
44. In cross examination the witness said that he was not that close to the accused, they did not have any animosity or conflict and his relationship with the accused was good. Despite having a good relationship with the accused the witness will not lie because he has taken an oath.
    
45. The witness agreed that he had called the accused to join the witness and the complainant for drinking. The witness denied there was any drinking at the playground and he was not in court to favour the accused.
    

46. This was the defence case.

ANALYSIS

47. The prosecution states that the complainant and the accused are cousins who were brought up together and they were neighbours as well.
    
48. On 8^th May, 2021 during night time after buying drinks at a nearby shop the complainant, the accused and their nephew Nikhil continued drinking rum and cola behind the house of the accused at the playground. They were there for half an hour telling stories, after the drinks finished and they were about to go home the complainant asked the accused who had cut the coconut trees in his compound. After an exchange of words the accused punched the complainant on both sides of his face and before the complainant could run away the accused stabbed the complainant’s stomach with a sharp object. The complainant tried to ran away but he could not since he fainted.
    
49. The complainant was taken to the Nadi Hospital and he was hospitalized for two weeks. According to the doctor the complainant received injuries on his face and an open stab wound in his abdomen in the lower right quadrant. The penetration of the sharp object had led to the removal of the complainant’s appendix.
    
50. The prosecution is asking this court to consider the fact the incident took place as a result of a continuing event in that the complainant and the accused were together in buying the 6 cans of rum and cola from a nearby shop and drinking it in the complainant’s car on their way home to Navakai. While the complainant was parking his car at his house the accused went to his house and shortly after the complainant, the accused and their nephew Nikhil ended up drinking at the playground.
    
51. The prosecution further submits that the accused and the complainant were standing close to each other telling stories and therefore they cannot be any doubt that it was not the accused with the complainant at the time of the incident. Nikhil ran away after the accused started to punch the complainant. Although it was dark the fact remains the complainant, Nikhil and the accused were together at the playground and it was the accused who had done what is alleged.
    
52. On the other hand, the defence says the allegation does not make sense the accused and the complainant had a good relationship as members of a family. They have had drinks on previous occasions and nothing unusual had happened between the two. Both the accused and the complainant were favourite cousins there was lot of love and affection between the two with no animosity between them so it is beyond common sense to think why the accused would ever want to harm the complainant. The allegation is unfounded and baseless it was not the accused.
    
53. The accused did not do anything to the complainant as alleged. What the complainant narrated in court was not possible and/or probable and therefore he should not be believed. The defence is asking this court to consider the fact that the cutting of coconut trees is a far-fetched and self-manufactured story.
    
54. The defence is also asking this court to consider the fact that the complainant had made a mistake in thinking it was the accused for someone else. After coming from the shop it was in full view of the complainant and Nikhil that the accused and his wife had gone home.
    
55. In respect of the doctor’s evidence the defence says the medical findings are inconclusive since it does not connect the accused to the injuries suffered by the complainant. Moreover, Nikhil was with the accused and the complainant had seen the accused get off the complainant’s car and go towards his house. Nikhil is an independent witness who told the truth about what he had seen.
    
56. The playground was at the back of the complainant’s house when he shouted he did not take the name of the accused because it was not the accused but someone else. The house of the complainant was near to the playground and his shouting the name of the accused would have most certainly alerted his family members.
    
57. Finally, the defence submits that the accused had no idea how the complainant suffered the injuries and who had harmed the complainant. He did not do anything to the complainant as alleged. The accused was not even at the alleged crime scene and he has no clue of what had happened.
    

DETERMINATION

58. I would like to once again remind myself that the burden to prove the accused guilt beyond reasonable doubt lies with the prosecution throughout the trial and it never shifts to the accused. Even if I reject the version of the defence still the prosecution must prove this case beyond reasonable doubt.
    
59. In this case, there are two different versions, one given by the prosecution and the other by the defence. This court must consider all the evidence adduced to decide whether the prosecution has proven beyond reasonable doubt that the accused committed the offence alleged. It is not for this court to decide who is acceptable between the complainant and the accused.
    

60. This court has kept in mind the following factors when determining the credibility and reliability of a witness such as promptness/spontaneity, probability/improbability,consistency/inconsistency,contradictions/omisions, interestedness/disinterestedness/bias, the demeanour and deportment in court [and the evidence of corroboration where it is relevant] see Matasavui v State [2016] FJCA 118; AAU0036.2013 (30 September 2016, State v Solomone Qurai (HC Criminal - HAC 14 of 2022).

61. Brennan J in Liberato and Others v The Queen ((1985) [1985] HCA 66; 159 CLR 507 at 515 has discussed the appropriate approach to be taken where there are conflicting versions of evidence given by the prosecution and the defence witnesses. Brennan J held that:

“When a case turns on a conflict between the evidence of a prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question; who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question ( which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the prosecution has proved beyond reasonable doubt the issue which it bears the onus of proving. The jury must be told that; even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is “a gross simplification.”

62. This court has also taken into account the observations made by the Court of Appeal in Rokocika v The State [2023] FJCA 251; AU0040.2019 (29 November 2023) regarding what the accused told the court. At paragraph 45 the Court of appeal had stated as follows:

The Liberato direction covers three points on the spectrum of belief regarding what the accused has said — positive belief (first aspect), positive disbelief (third aspect), and neither actual belief nor rejection of the accused’s account (second aspect): Park v R [2023] NSWCCA 71 at [102]–[103].

63. I have also kept in mind the observations made by Prematilaka RJA sitting as a single judge of the Court of Appeal in Josaia Naikalivou vs. The State, AAU 017 of 2022 (26^th March, 2024) at paragraph 9 as follows:

In Murray v The Queen [2002] HCA 26; (2002) 211 CLR 193 at 213 [57] Gummow and Hayne JJ, in the High Court of Australia made it clear that it is never appropriate for a trial judge to frame the issue for the jury's determination as involving a choice between conflicting prosecution and defence evidence: in a criminal trial the issue is always whether the prosecution has proved the elements of the offence beyond reasonable doubt. In R v Li (2003) 140 A Criminal R at 288 at 301 it was again held that the issue can never be which of the cases is correct or who of the complainant and the accused is telling the truth. This seems to be what exactly the trial judge had done in the judgment.

64. There is no dispute that the accused is the cousin brother of the complainant and both were neighbours in a good relationship.
    

TURNBULL DIRECTIONS

65. Although this is a case of recognition as opposed to identification the defence has taken the position that the complainant made a mistake in thinking that it was the accused who had assaulted him for someone else so he had identified the wrong person in court.
    
66. The defence contention is that the case against the accused in some respect depends on the correctness of the identification of the accused which the defence alleges to be mistaken. I have therefore taken special care on the evidence of identification because it is possible that an honest witness can make a mistaken identification. An apparently convincing witness can be mistaken and so can a number of such witnesses. I wish to also remind myself that mistakes in recognition, even of close friends and relatives, are sometimes made.
    
67. I have carefully looked at the following circumstances in which the complainant had identified the accused in the playground:
    
    1. How long did he have the person the complainant says was the accused under observation?

The complainant said they were drinking together in the car from the shop where they purchased 6 cans of Rum and Cola to their house at Navakai. Shortly after, the complainant met the accused at the playground and they were drinking at the playground for about half an hour. The complainant was able to see the accused and Nikhil although it was dark.

2. At what distance?

According to the complainant they were standing and drinking at very close proximity about a meter apart.

100. In what light?

According to the complainant the alleged incident happened at the playground in the dark.

(d) Did anything interfere with that observation?

The complainant did not say there was any obstruction or interference he was sure it was the accused who had assaulted him that night.

(e) Had the witness ever seen the accused before?

The complainant and the accused are cousins and they grew up together.

68. I must remind myself of the following specific weaknesses which appeared in the identification/recognition evidence of the complainant. The complainant did not say if there was light from his house or from any other surrounding.
69. I have given the above directions as a matter of caution after the defence counsel raised the issue of identification of the accused at the playground by the complainant.
    
70. Based on the above guidelines I would like to state that the complainant did not make a mistake in recognizing the accused. On that day he had been with the accused for a few hours buying liquor and drinking in the car before going home. After the complainant parked his car at his home both the complainant, the accused and Nikhil met at the playground where the drinking continued and they continued telling stories. The accused and the complainant have grown up together and on previous occasions they have been drinking together hence they are familiar with each other.
    
71. In view of the above, this court accepts that it was the accused and no one else and there was no mistake made by the complainant in the recognition of the accused.
    
72. After carefully considering the evidence adduced by the prosecution and the defence, I believe the evidence of the complainant as truthful and reliable he gave a comprehensive account of what the accused had done to him that night. He was also able to withstand cross examination and was not discredited as to the main version of his allegation.
    
73. The complainant was able to coherently recall and relate what he had encountered and I have no doubt in my mind that he told the truth in court. Dr. Sanjappa also gave a narration about the extent of the injuries suffered by the complainant and her findings were consistent with the history given to her at the time the complainant was brought to the hospital.
    
74. Experience has shown that individuals differ in terms of how they react towards what is happening to him or her. Some display obvious signs of distress and some not. The fact that the complainant did not take the name of the accused to shout or raise an alarm does not mean that the assailant was not the accused.
    
75. The complainant stated that he never expected such a response from the accused. It was dark and he did not see the punch until it landed on his face and before he could run the accused penetrated a sharp object into his stomach. The complainant at the time thought the accused had punched his stomach it was when he was in the hospital the doctor told him that a sharp object had penetrated his stomach.
    
76. The defence did not suggest any motivation by the complainant to falsely implicate the accused. In any event the relationship between the complainant and the accused was good hence it is difficult to accept why the complainant would falsely implicate the accused.
    
77. Furthermore, there were two inconsistencies brought up by the defence counsel during the cross examination of the complainant between her evidence and her police statement. However, the inconsistencies between the complainant’s evidence in court and his police statement were not significant to adversely affect the complainant’s credibility. In any event the inconsistencies do not go to the root of the complainant’s evidence.
    
78. The Court of Appeal in Mohammed Nadim and another vs. State [2015] FJCA 130; AAU0080.20 (2 October 2015) had made the following pertinent observations about the above at paragraph 16 as follows:

[16] The Indian Supreme Court in an enlightening judgment arising from a conviction for rape held in Bharwada Bhoginbhai Hirjibhai v State of Gujarat (supra):

“Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses therefore cannot be annexed with undue importance. More so when the all-important "probabilities-factor" echoes in favour of the version narrated by the witnesses. The reasons are: (1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen; ... (3) The powers of observation differ from person to person. What one may notice, another may not. ...... It is unrealistic to expect a witness to be a human tape recorder;”

79. Another pertinent observation was also made by the Court of Appeal in Joseph Abourizk vs. The State, AAU 0054 of 2016 (7 June, 2019) at paragraph 107 in the following manner about deficiencies, drawbacks and other infirmities in evidence by taking into account the comments made by the Indian Supreme Court in State of UP v. M K Anthony (1985) 1 SCC 505:

‘While appreciating the evidence of a witness the approach must be to ascertain whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, then the court should scrutinise the evidence more particularly to find out whether deficiencies, drawbacks and other infirmities pointed out in the evidence is against the general tenor of the evidence. Minor discrepancies on trivial matters not touching the core of the case should not be given undue importance. Even truthful witnesses may differ is some details unrelated to main incident because power of observation, retention and reproduction differ with individuals...’

DEFENCE OF ALIBI

80. It is also noted that the accused is relying on the defence of alibi. He took the position that at the time of the alleged incident he was at his home with his wife. It was after the complainant had driven to his home that the accused and his wife had gone home. This was also seen by Nikhil and therefore he was not at the place of incident as alleged.
    
81. In view of the above defence I have reminded myself of the following:
    
    1. Firstly, the prosecution has to prove the guilt of the accused so that this court is sure of it, he does not have to prove he was elsewhere at the time. On the contrary, the prosecution must disprove the defence of alibi. Even if this court concludes that the alibi was false, that does not by itself entitle this court to find the accused guilty;
       
    2. Secondly, it is borne in mind that an alibi is sometimes invented to bolster a genuine defence;
       
    100. Even if this court concludes that the defence put forward by the accused has not been made out that does not of itself entitle this court to find the accused guilty? The prosecution must still satisfy this court beyond reasonable doubt of his guilt.
         
82. The accused has denied any wrong doing, his defence is he did not commit the offence as alleged since he was not at the alleged crime scene but at home with his wife.
    
83. From the above, there are three possibilities that arise which are open for consideration:
    1. If the alibi is accepted, then this court is obliged to find the accused not guilty;
       
    2. If this court rejects the alibi then this court would not necessarily find the accused guilty but must assess the evidence as a whole; and
       
    100. If this court does not accept the alibi, and also does not reject it in the sense that this court regards it as something which could reasonably be true then in such a case this court must find the accused not guilty.
         
84. Prematilaka, JA sitting as a single judge in Court of Appeal in Pauliasi Raisele v State [2020] FJCA 49; AAU088.2018 (1 May 2020) made a pertinent observation in respect of the above from paragraphs 20 to 28 as follows:

[20] The learned trial judge had in paragraphs 103 and 125 directed the assessors and himself on the lines suggested in Ram and Mateni. He cannot be faulted in that respect.

[21] A slightly different approach, however, had been taken in some other jurisdictions such as Australia, Sri Lanka and New Zealand. Section 150(8) of the Criminal Procedure Act 1986 (NSW) states that

“evidence in support of an alibi means evidence tending to show that, by reason of the presence of the accused person at a particular place or in a particular area at a particular time, the accused person was not, or was unlikely to have been, at the place where the offence is alleged to have been committed at the time of its alleged commission.”

[22] In what would be the appropriate direction on alibi in NSW Roden J at 5-6 (Street CJ, Slattery CJ at CL concurring said in R v Amyouni NSWCCA 18/2/88 unrep. BC8802201:

“It seems to me that in every case where that situation is met, there are three possibilities, all three of which should be explained to the jury.” “One is that they accept the alibi, in which event they would be obliged to acquit The second is that they reject the alibi, in which case they would not necessarily convict but must assess the evidence as a whole. The third possibility is that although they do not accept the alibi, the also do not reject it in the sense that they regard it as something which could reasonably be true. In that event also, in such a case, they must acquit.”

[23] Again in R v Kanaan (2005) 157 A Crim R 238; [2005] NSWCCA 385 Hunt AJA (Adams and Latham JJ concurring) said

“[134] It was common ground that the Crown had to establish beyond reasonable doubt that the appellant was present at the crime scene. The appellant complains, however, that at no time did the judge ever in terms direct the jury that, in order to convict the appellant, they had to reject the evidence of alibi beyond reasonable doubt.”

“[135].... An alibi asserts that, at the relevant time, the accused was not at X (the scene of the crime) but at Y (somewhere else, according to the alibi evidence). The issue which it raises is whether there is a reasonable possibility that the accused was at Y, rather than X, at that time. To prove beyond reasonable doubt that the accused was at X, the Crown must remove or eliminate that reasonable possibility: Regina v Youssef (1990) 50 A Crim R 1 at 2-3. An appropriate direction to the jury would be:

The Crown must establish beyond reasonable doubt that the accused was at X at the relevant time. The Crown cannot do so if there is any reasonable possibility that he was at Y at that time, as asserted by the alibi evidence. The Crown must therefore remove or eliminate any reasonable possibility that the accused was at Y at the relevant time, and also persuade you, on the evidence on which the Crown relies, that beyond reasonable doubt he was at X at that time.”

[24] In Sri Lanka in Yahonis Singho v. The Queen (1964) 67 NLR 8 at 9- T. S. Fernando J. said

‘If the evidence of an alibi is accepted, such acceptance not only throws doubt on the case for the prosecution but, indeed, it does mere, it destroys the prosecution case and establishes its falsity. As the jury convicted the appellant, it must be assumed that they did not accept the evidence of Sirimane. The learned judge directed the jury, if we may say so with respect, correctly as to what course they should follow if they rejected the evidence of Sirimane. He, however, omitted altogether at both stages of his charge referred to above to give them any direction as to what they were to do if they neither accepted Sirimane’s evidence as true nor rejected it as untrue. Jurors may well be in that position in regard to the evidence of any witness. There was in this case no question of a shifting of the burden of proof which throughout lay on the prosecution. If Sirimane’s evidence was neither accepted nor was capable of rejection, the resulting position would have been that a reasonable doubt existed as to the truth of the prosecution evidence. We think the omission to direct the jury on what may be called this intermediate position where there was neither an acceptance nor a rejection of the alibi was a non-direction of the jury on a necessary point and thus constituted a misdirection.’

[25] Yahonis Singho was quoted with approval in Mannar Mannan v Republic (1987) 2 SLR 94 where, however, the proviso under section 334(1) of the Code of Criminal Procedure Act was applied and the conviction was upheld which was affirmed by the Supreme Court in Mannar Mannan v Republic (1990) 1 SLR 280.

[26] Blackstone’s Criminal Practice 1993 at page 1773 states

‘Although there is no general rule of law that in every case where alibi is raised the judge must specifically direct the jury that it is for the prosecution to negative the alibi, it is the clear duty of the judge to give such a direction, if there is danger of the jury thinking that an alibi, because it is called a defence, raises some burden on the defense to establish it (Wood (No.2) (1967) 52 Cr App R 74 per Lord Parker CJ). See also Johnson [1961] 1 WLR 1478 and Denney [1963] Crim LR 191.’

[27] It is well established that it is for the prosecution to negative an alibi as in the case of self-defence or provocation [See Killick v The Queen (1981) 147 CLR565; [1981] HCA 63; 37 ALR 407, R v Johnson (1961) 46 Cr App R 55; 3 ALL ER 969 and R v Taylor [1968] NZLR 981 at 985-6] because by raising an alibi , the accused was not undertaking to prove anything, and that onus remained on the Crown to remove or eliminate any reasonable doubt which may have been created by the alibi claim or any reasonable possibility that the alibi was true [ see R v. Small (1994) 33 NSWLR 575; 72A Crim R 462 (CCA)]. If the alibi evidence is so cogent as to engender in any reasonable mind a doubt of the accused’s guilt, the conviction must be quashed and a verdict of an acquittal entered, however cogent the prosecution evidence would otherwise be [see Palmer v R (1998) 193 CLR1; [1998] HCA 2; 151 ALR 16]

[28] I think that it is in the light of these decisions that one should reconsider as to what the appropriate direction particularly on the intermediate position on alibi defence should be in Fiji. However, it is within the domain of the Full Court of the Court of Appeal to make a pronouncement, if considered appropriate, at least for future guidance.

85. I reject the defence assertion that the complainant mistook the accused for someone else. I accept that it was the accused who was with the complainant and Nikhil at the playground and it was the accused who had assaulted the complainant as alleged.
    

LESSER OFFENCE

86. I have also directed my mind to the lesser offence of assault causing actual bodily harm. The law provides that when a person is charged with an offence and the court is of the opinion that he is not guilty of that offence but guilty of a lesser offence, the court may find the accused guilty of that lesser offence. In this regard, I direct myself that if this court finds the accused not guilty of act intended to cause grievous harm then it should consider the lesser offence of assault causing actual bodily harm.
    
87. I have once again carefully examined the evidence in totality and I am satisfied that the evidence adduced satisfies all the elements of the offence of act intended to cause grievous bodily harm.
    
88. Moreover, I reject the defence of denial and alibi by the accused as not plausible on the totality of the evidence. The defence assertion that the accused had not done anything to the complainant is unworthy of belief.
89. The accused did not tell the truth he gave a version of events which is not believable. The accused also did not tell the truth when he denied that on 8^th May, 2021 at around 9pm he was drinking with the complainant at Navakai, Nadi in the company of Nikhil Dutt. This was part of the admitted facts signed by the accused and his counsel. The accused further lied when he told the court that he had wrongly instructed his counsel by admitting to the above fact.
    
90. It was also noted that the accused was not forthcoming in his evidence he was basically diverting attention to unrelated issues in respect of the complainant’s drinking that day at different places. In cross examination the accused showed an arrogant attitude towards the state counsel in not answering the questions asked but in turn wanted to question the counsel.
    
91. The defence witness Nikhil Dutt also did not tell the truth when he said he got off the complainant’s car and left for his home and he saw the accused do the same.
    
92. Both the accused and Nikhil were giving a narration which appeared to be a thought out story to sway the truth by a concocted and rehearsed set of facts. I do not give any weight to the evidence of the accused and Nikhil.
    
93. On the same vein Nikhil was leaning towards the accused despite his denial of this by not revealing the truth of what had happened that night. It became obvious to me that Nikhil had made up his mind not to tell the court the truth about what had actually happened.
    
94. Finally, on a holistic review of the evidence before this court particularly the defence of alibi raised and the evidence of the accused and his defence witness Nikhil I rule that the prosecution which has the burden to disprove the defence of alibi raised has been able to rebut the defence of alibi beyond reasonable doubt.
    
95. The defence has not been able to create a reasonable doubt in the prosecution case in respect of one count of act intended to cause grievous harm as charged.
    

CONCLUSION

96. This court is satisfied beyond reasonable doubt that the accused on 8^th May, 2021 with intent to cause grievous harm to Ashneel Dutt had unlawfully wounded the said Ashneel Dutt by punching his face and stabbing his stomach with a sharp object believed to be a knife. The accused intended to cause grievous harm to the complainant which is supported by the medical report and the evidence of the doctor.
    
97. In view of the above, I find the accused guilty of one count of act intended to cause grievous harm and he is convicted accordingly.
    
98. This is the judgment of the court.
    

Sunil Sharma
Judge

At Lautoka
20 June, 2024

Solicitors
Office of the Director of Public Prosecutions for the State.
Messrs Law Parmendra, Rakiraki for the Accused.