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Bolabiu v State [2024] FJHC 546; HAA40.2023 (30 August 2024)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION


CRIMINAL APPEAL CASE NO. HAA 40 OF 2023
CRIMINAL APPEAL CASE NO. HAA 41 OF 2023
CRIMINAL APPEAL CASE NO. HAA 42 OF 2023


BETWEEN:
1. BENEDITO BOLABIU
2. LAISENIA NAWAU
3. LASARO TURAGADRAU
APPELLANTS


A N D:
THE STATE
RESPONDENT


Counsel: Ms. A. Tuiketei for Appellants
Mr. H. Nofaga for Respondent


Date of Hearing: 12th June 2024, 16 August 2024


Date of Judgment: 30th August 2024


J U D G M E N T


Introduction


  1. The three Appellants were charged in the Magistrate’s Court sitting at Navua with one count of “Assault Causing Actual Bodily Harm”, contrary to Section 275 of the Crimes Act. The first Appellant was separately charged in the same matter with one count of “Act Intended to cause Grievous Harm”, contrary to Section 255 (a) of the Crimes Act and one count of “Conspiracy to Defeat Justice and Interference with Witnesses”, contrary to Section 190 (e) of the Crimes Act. Further, the second and third Appellants were charged with one count of “Aiding and Abetting Act Intended to Cause Grievous Harm”, contrary to Sections 45 and 255 (a) of the Crimes Act. The particulars of offences are;

COUNT 1

Statement of Offence

ASSAULT CAUSING BODILY HARM: Contrary to Section 275 of the Crimes Act 2009.


Particulars of Offence

BENADITO BOLABIU, LAISENIA NAIWAU and LASARO TURAGADRAU on the 5th day of November 2019, at Navua in the Central Division, assaulted MANASA RAYASIDAMU thereby occasioning him actual bodily harm.


COUNT 2 (1st Accused only)

Statement of Offence

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


BENEDITO BOLABIU on the 5th day of November 2019 at the Pacific Harbour Community Police Post, Navua in the Central Division, with intent to do some grievous harm to MANASA RAYASIDAMU, unlawfully wounded MANASA RAYASIDAMU by striking his leg with a concrete block and by pouring hot water on his back.


COUNT 3 (2nd and 3rd Accused only)

Statement of Offence

AIDING AND ABETTING ACTS INTENDED TO CAUSE GRIEVOUS HARM: Contrary to Sections 45 and 255 (a) of the Crimes Act 2009.

LAISENIA NAIWAU and LASARO TURAGADRAU, on the 5th day of November 2019 at the Pacific Harbour Community Police Post, Navua in the Central Division, aided and abetted BENADITO BOLABIU in committing the offence of acts intended to cause grievous harm against MANASA RAYASIDAMU.


COUNT 4 (1st Accused only)

Statement of Offence

CONSPIRACY TO DEFEAT JUSTICE AND INTERFERENCE WITH WITNESSES: Contrary to Section 190 (e) of the Crimes Act 2009.


Particulars of Offence

BENADITO BOLABIU on the 5th day of November 2019, at Navua in the Central Division, attempted to pervert the cause of justice by telling ILAITIA MAKASIALE to lie to the Police when questioned about the case relating to MANASA RAYASIDAMU.


  1. The matter proceeded to the hearing, consequent to the plea of not guilty entered by the three Appellants. The State (The Respondent) had adduced the evidence of thirteen witnesses while the three Appellants opted to exercise their respective right to remain silent. However, they presented evidence from Dr. Semesa Matanaicake Jr. for the Defence. Subsequently, on his judgment dated 24th of February 2023, the learned Magistrate found the three Appellants guilty of all the counts they had been charged with. The three appellants were then sentenced on the 30th of November 2023 as follows;
    1. The first Appellant was sentenced to 40 months imprisonment as an aggregate sentence for Assault Causing Actual Bodily Harm and an Act Intended to Cause Grievous Harm and 12 months imprisonment for Conspiracy to Defeat Justice and Interference with Witnesses. Both sentences will be served concurrently.
    2. The second and third Appellants were sentenced to 40 months imprisonment each as an aggregate sentence for Assault Causing Actual Bodily Harm and Aiding and Abetting Act Intended to Cause Grievous Harm.

Grounds of Appeal


  1. Aggrieved with the convictions and sentences, all three Appellants filed separate appeals to this Court. With the parties' consent, the Court heard the three appeals together. The learned Counsel for the three Appellants filed an exceptionally extended list of grounds of appeal ( 47 grounds of appeal) covering all four counts and the sentences. For convenience, I wish not to reproduce them in this judgment but include them as an annexure to this judgment.
  2. Having carefully considered the grounds of appeal and the respective submissions made by the learned Counsel of the Appellants and the Respondent, the central plank of the contention is based on two main arguments; the first is that the learned Magistrate had failed to consider the main elements of the first, second and third counts correctly. Thus, his conclusion is wrong in law. The second issue is that the learned Magistrate erroneously failed to take into consideration the materially important evidence presented before him in evaluating the evidence. Therefore, his conclusion cannot be supported by the evidence adduced; hence, the conviction and the subsequent sentences are wrong in law and unsafe. Accordingly, I will determine this appeal based on the above two main grounds while considering other grounds of appeal raised by the learned Counsel for the Appellants insofar as their relevancy to the two main issues.

The approach of the Appellate Court


  1. The Supreme Court of Fiji Wang v State [2023] FJSC 39; CAV0013.2021 (26 October 2023) discussed the cautionary approach of the Appellate Court in dealing with an appeal of this nature, where William Young J citing Sena v Police [2019] NZSC 59; [2022] 1 NZLR 575 at [38] – [40] observed that;

“57 . This was recently discussed by the New Zealand Supreme Court in Sena v Police:[1]


Since it is an appeal, it is for the appellant to show that an error has been made. Further, in assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had. Because of this, where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “‘customary’ caution”. There are two main, overlapping, reasons for this.


The first is that a slow-paced trial, at which the evidence emerges gradually, provides a good opportunity for evaluating the strengths and weaknesses of a case. In assessing the plausibility of what is said by the witnesses, the judge has the advantage of being also able to form a view as to what sort of people they are. This is an appreciable consideration despite the now well-recognised difficulties with demeanour-based credibility assessments.


The second consideration, in effect the other side of the coin to the first, is that appellate judges dealing with a case on the basis of a written record of what happened at trial and the submissions of counsel are unlikely to be as well-placed as a trial judge to determine contested questions of fact based on contested oral evidence. For instance, what a witness means may be conveyed, at least in part, by gesture or intonation, something which will not be apparent on the written record. More generally, the appellate process in which appellate judges are taken, sometimes rather selectively, to the aspects of the evidence on which counsel rely does not replicate the advantages of a trial judge which we have just described.


  1. Accordingly, in an appeal like this, the Court is very reluctant to intervene in the judgment delivered by the lower court. The Appellate Court must recognise and indeed must keep in mind the advantage that the Learned Magistrate had in seeing and hearing the witnesses and all the material exhibits presented before her. This Court had no such advantage of seeing the witnesses and observing their demeanour in giving evidence. Hence, this Court must not lightly intervene unless it has scrutinised the impugned Judgment of the Learned Magistrate so as to determine whether he had erred in fact and law in concluding that the three Appellants were guilty. In doing that, the Appellate Court must not substitute its own view about the evidence presented in the trial in the Magistrate’s Court.

The First Count


  1. The learned Counsel for the Respondent submitted in Court that the State presented the first Count against the three Appellants on the basis of joint enterprise as stipulated under Section 46 of the Crimes Act. Neither the statement of the offence nor the particulars of the offence of count one mention section 46 of the Crimes Act or the basis of joint enterprise. However, it is apparent from the closing written submissions filed by the State in the Magistrate’s Court that they presented their allegation against the three Appellants under the first count based on joint enterprise. ( vide page 147 of the Copy Record).
  2. In view of the evidence given by Manasa Rayasidamu ( hereinafter referred to as the victim) and Ilaitia Makasiale ( hereinafter referred to as Ilaitia), the three Appellants had come to the location where the victim was sleeping on the night of 5th of November 2019, to execute the bench warrant issued against the victim. Ilaitia gave information on the whereabouts of the victim to the Appellants on the promise of rewards. By the time the three Appellants arrived, the victim was asleep. According to the evidence given by the victim and Ilaitia, the first and second Appellants assaulted the victim while the third Appellant was standing near the door. There is no evidence presented against the third Appellant alleging that he assaulted the victim.
  3. Considering this evidence and the closing submissions of the State, it could be appraised that the State had alleged that the third Appellant was a party to a common unlawful purpose of assaulting the victim; hence, he was also criminally liable for the assault by the first and second Appellants.
  4. The learned Magistrate did not consider the evidence pertaining to the first count within the legal context of a joint enterprise. The learned Magistrate intimated in paragraph 59 of the judgment that the third Appellant was standing at the door and made no attempt to stop the first and second Appellants assaulting the victim. On that basis, the learned Magistrate found that the third Appellant was guilty of the first count. The learned Magistrate had not given sufficient reasons explaining whether he found the third Appellant guilty of the first count based on joint enterprise.
  5. Under such circumstances, it is prudent to briefly examine the scope and the boundaries of the principle of joint enterprise as stipulated under Section 46 of the Crimes Act.
  6. Section 46 of the Crimes Act states that:

“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”


  1. Accordingly, if two or more persons formed a common intention to carry out an unlawful purpose and in prosecuting that unlawful purpose if a crime was committed, each is in pari delicto irrespective of who did what.
  2. The Supreme Court of Fiji in Rasaku v State [2013] FJSC 4; CAV0009, 0013.2009 (24 April 2013) adopted the definition of the boundaries of joint enterprise outlined by Lord Lane CJ in R v Hyde (1991) 1 QB 134. Lord Lane CJ adverted in R v Hyde ( supra) that:

“There are, broadly speaking, two main types of joint enterprise cases where death results to the victim. The first is where the primary object of the participants is to do some kind of physical injury to the victim. The second is where the primary object is not to cause physical injury to any victim but, for example, to commit burglary. The victim is assaulted and killed as a (possibly unwelcome) incident of the burglary. The latter type of case may pose more complicated questions than the former, but the principle in each is the same. A must be proved to have intended to kill or to do serious bodily harm at the time he killed. As was pointed out in R v Slack, (1989) 3 All ER 90 at 94, [1989] QB 775 at 781, B, to be guilty, must be proved to have lent himself to a criminal enterprise involving the infliction of serious harm or death, or to have had an express or tacit understanding with A that such harm or death should, if necessary, be inflicted.”


  1. Though Lord Lane CJ's above dictum concerned a crime committed in joint enterprise resulting in death, it could be equally applicable to any other crime committed in the execution of joint enterprise.
  2. The Supreme Court of New Zealand in Ahsin v R ( [2014] NZSC 153; 2015) 1 NZLR 493 ( Elias CJ, McGrath, William Young, Glazebrook, and Tipping JJ) discussed the scope and boundaries of the principle of joint enterprise as stated under Section 66 (2) of the Crimes Act of New Zealand. I find the guidelines outlined in Ahsin v R (supra) persuasive in comprehending the boundaries of Section 46 of the Crimes Act.
  3. McGrath J in Ahsin v R (supra) set forth the scope of the joint enterprise, stating that:

“An issue that arose in this Court was whether s 66(2) applies where the offence that occurs is an intended offence, such as one which was the very object of the common purpose, or only to offences that were not intended by the party but that were known to be a probable consequence of the joint enterprise. We are satisfied that s 66(2) applies in either context.”


  1. Considering McGrath J’s observation, it is clear that Section 46 covers the offence that was the apparent objective of the unlawful purpose as well as the offences that were not intended by the parties to the enterprise but known to them as probable consequences of carrying out their unlawful purpose.
  2. In recapitulating, McGrath J in Ahsin v R (supra) outlined the main elements of the principle of joint enterprise as follows:

[102] To summarise, in order to establish party liability under s 66(2), the Crown must prove beyond reasonable doubt that:


(i) the offence to which the defendant is alleged to be a party was committed by a principal offender;
(ii) there was a shared understanding or agreement to carry out something that was unlawful;
(iii) the person(s) accused of being parties to that agreement had all agreed to help each other and participate to achieve their common unlawful goal;
(iv) the offence was committed by the principal in the course of pursuing the common purpose; and
(v) the defendant intended that the offence that eventuated be committed or knew that the offence was a probable consequence of carrying out the common purpose. This requires foresight of both the physical and mental elements of the essential facts of the offence.
  1. In applying the above-discussed legal principles mutatis mutandis with the facts of this matter, I could recapitulate the main elements that the State were required to establish for the first count are;
    1. The three Appellants formed a common intention to prosecute an unlawful purpose of assaulting the victim,
    2. In the prosecution of that unlawful purpose, the first and second Appellants assaulted the victim, committing the offence of Assault Causing Actual Bodily Harm,
    3. The third Appellant contemplated or foresaw that said offence was a probable consequence of carrying out the common unlawful purpose. This requires contemplation/foresight of both the physical and mental elements of the offence.
  2. I shall now consider whether it was opened to the learned Magistrate to find the third Appellant guilty of the first count if he had considered correctly the above-discussed scope and boundaries of joint enterprise with the evidence presented before him.
  3. The Court is acutely conscious that so as to form a common intention, it is not necessarily required to have a verbal or formal agreement, and a wink or nod would sometimes be sufficient to form such a common intention.
  4. It was undisputedly established that three Appellants had gone to the location where the victim was sleeping on the night of the 5th of November 2019 to execute a bench warrant issued against the victim. They had entered the small room where the victim was sleeping, and then the first and second Appellants assaulted him while the third Appellant was standing near the door. Moreover, Ilaitia had testified that the victim managed to escape from the Police when the Police attempted to execute the same bench warrant on an earlier occasion.
  5. Under such circumstances, there was a reasonable doubt whether the third Appellant stood beside the door while executing his lawful duty as a Police officer so as to prevent the victim from escaping as he did before or as an accomplice of the unlawful common purpose of assaulting the victim.
  6. Be it as it may, the learned Counsel for the Appellants vehemently submitted that the learned Magistrate had failed to consider the defence raised by the Appellants, claiming that the victim sustained injuries when he tried to escape from the arrest and not due to the alleged assault by the first and second Appellants.
  7. There is no legal burden on the Accused to prove his innocence. The archaic but highly distinguished passage of Lord Reading C.J. in Abramovitch (1914) 84 L.J.K.B. 397) adverted that:

"If an explanation has been given by the accused, then it is for the jury to say whether on the whole of the evidence they are satisfied that the accused is guilty. If the jury think that the explanation given may reasonably be true, although they are not convinced that it is true, the prisoner is entitled to be acquitted, inasmuch as the crown would then have failed to discharge the burden impose upon it by our law of satisfying the jury beyond reasonable doubt of the guilt of the accused. The onus of proof is never shifted in these cases; it always remains on the prosecution.”


  1. The effect of Lord Readings CJ’s passage in Abramovitch (supra) was emphasised by the New Zealand Court of Appeal in The Queen v Strawbridge — [1970] NZLR 909, where North P discussing the scope of Woolmington guideline adopted the passage from Rex v. Greenacre [1837] EngR 613; 8 C. & P. 35, highlighting the effect of Abramovitch (supra), where it observed that:

“.........In our opinion the true ratio of Woolmington's case emerges in the following passage from the opinion of the Lord Chancellor when he was discussing Rex v. Greenacre [1837] EngR 613; 8 C. & P. 35. He said:


". . . But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence, This is the real result of the perplexing case of Rex v Abramovitch.


  1. Accordingly, it is sufficient for the Defence to adduce or point out evidence that suggests a reasonable possibility that the matter exists. ( vide; Section 59 (7) of the Crimes Act). It is the onus of the Prosecution to disprove any matter that the Defence had suggested as a reasonable possibility ( vide; Section 57 (2) of the Crimes Act).
  2. In this matter, the victim admitted during the cross-examination by the learned Counsel of the Appellants in the Magistrate’s Court that he was charged in the Magistrate's Court with Resisting Arrest regarding this same incident, thus suggesting the possibility of the Defence’s contention that the victim tried to escape and sustained injuries during that attempted escape on the night of 5th of November 2019. (vide; page 26 of the trial record). The State had not adduced any evidence to disprove the possibility suggested by the Defence. Had the learned Magistrate considered the said evidence of the victim adequately, it would have created a reasonable doubt in his mind whether the first and second Appellants had assaulted the victim on that night, committing the first count as alleged, or the victim sustained injuries due to the attempted escape from the Appellants.
  3. Drawing all the issues discussed above together, it is my opinion that it was not open to the learned Magistrate to find the three Appellants guilty of the first count based on the evidence adduced in the Magistrate’s Court.

Third Count


  1. For convenience, I shall now move to the third Count instead of the second count. The second and third Appellants were charged under count three on the allegation that they had aided and abetted the first Appellant to commit the offence of Act Intended to Cause Grievous Harm.
  2. Section 45 of the Crimes Act stipulates that;
    1. A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
    2. For the person to be guilty—
      1. the person's conduct must have in fact aided, abetted, counselled or procured the commission of an offence by the other person; and
      2. the offence must have been committed by the other person.
    3. Subject to subsection (6), for the person to be guilty, the person must have intended that—
      1. his or her conduct would aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type the other person committed; or
      2. his or her conduct would aid, abet, counsel or procure the commission of an offence and have been reckless about the commission of the offence (including its fault elements) that the other person in fact committed.
    4. A person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person—
      1. terminated his or her involvement; and
      2. took all reasonable steps to prevent the commission of the offence.
  3. Instead of applying section 45 of the Crimes Act as charged under count three, the learned Magistrate applied the principle of joint enterprise as stipulated under section 46 of the Crimes Act in his analysis and determination of count three. ( vide; paragraphs 7,8,9,59 and 60 of the judgment) ; thus, it fundamentally deviated from the foundation of count three as charged and presented by the State in the hearing.
  4. It is practically difficult to mix and blend the principle of aiding and abetting with the principle of joint enterprise. Elias CJ in Ahsin v R ( supra) outlined the difference between these two principles, focusing on Section 66 (1) (b)-(d) and 66 (2) of the Crimes Act of New Zealand, where Elias CJ set forth that;

“[17] Section 66(1)(b) to (d) and s 66(2) describe accessory liability (an expression that has no legal significance given the terms of s 66 but which it is convenient to use). Whereas under s 66(1), such liability depends on intention to assist in the commission of the offence charged, liability under s 66(2) depends on a common intention to prosecute and assist in any unlawful purpose in which the commission of the offence charged was known to be a probable consequence. Intention to assist, abet, or incite the commission of the offence charged is the state of mind that must be proved for guilt under s 66(1). For guilt under s 66(2), the two states of mind that must be proved are an intention in common with others to prosecute and assist in an unlawful purpose, and knowledge that the crime charged is a probable consequence (in the sense that it was known to be something that might well happen in the prosecution of the common unlawful purpose). The acts giving rise to the liability are either the forms of assistance contained in s 66(1)(b) to (d) or the acts evidencing adherence to a common unlawful purpose with the knowledge that the crime charged is a probable consequence (which in effect is treated by s 66(2) as itself being assistance in the commission of the offence).


  1. The second and third Appellants were charged under count three on the basis that they assisted the first Accused in the commission of the offence of Act Intended to Cause Grievous Harm. Whereas the learned Magistrate had considered the evidence adduced before him on the premise that they had a common intention to prosecute and assist in an unlawful purpose of assaulting the victim, in which the commission of the offence of Act Intended to Cause Grievous Harm was known to be a probable consequence. Accordingly, the learned Magistrate had converted the criminal liability of the second and third Appellants in his judgment as opposed to the foundation of the criminal liability as charged. The two Appellants did not conduct their defence based on the joint enterprise. The above error made by the learned Magistrate is unfair and unjust to the interest of the two Appellants; thus, it amounts to a miscarriage of justice. ( vide Yang Xieng Jiong v State [2019] FJCA 17; AAU0077.2015 (7 March 2019 para 67)
  2. In his further written submissions, the learned counsel for the Respondent made a valiant attempt to reconcile the erroneous approach adopted by the learned Magistrate, urging that the learned Magistrate could still find the two Appellants guilty of count three if he had properly applied the elements of aiding and abetting as stated under section 45 of the Crimes Act. Hence, I am inclined to consider whether the evidence presented before the learned Magistrate was sufficient to reach the same guilty conclusion if he considered section 45 of the Crimes Act.
  3. The alleged offence of the principal offender, the first Appellant, encompasses two main distinct acts that took place successively. The first one was the assault of the victim on his ankle with a concrete slab. The second act was the pouring of hot water on the victim’s back while he was kneeling on the floor. No evidence was presented before the learned Magistrate stating that the two Appellants had done something to aid or abet the First Appellant. The victim testified, noting that the first Appellant went and picked a concrete stone and then threw it at him on his ankle several times. Iliatia and Temo Tuirabe, in their respective evidence, stated a similar narrative of events regarding the assault of the victim with this concrete stone by the first Appellant. In unison, all three witnesses, including the victim, said that neither the second nor third Appellant did anything to assist the first.
  4. Regarding the incident of pouring hot water, the victim testified that the first Appellant boiled the water in a kettle and then poured it into a basin. He then came and poured the hot water on the victim’s back while he was kneeling on the floor. According to the victim, the second Appellant asked questions when the first Appellant poured hot water on him. The third Appellant was standing beside the table. Ilatia said in his evidence that the second Appellant held the victim when the first Appellant poured hot water on him. The victim had asked the second and third Appellant to intervene and stop the first Appellant from torturing him after he poured the hot water, to which both the Appellants responded negatively by walking away from the scene.
  5. In view of this evidence, the two Appellants had done no positive act in aiding and abetting the first Appellant. The learned Counsel for the Respondent argued that the presence of the two Appellants doing nothing to stop the first Appellant could amount to aiding and abetting the first Appellant to commit the offence of Act Intended to Cause Grievous Harm.
  6. Premethilaka JA in Araibulu v State [2017] FJCA 120; AAU0102.2013 (14 September 2017) observed that mere voluntary presence does not itself constitute aiding or abetting. Premethilaka JA said that;

“[27] Mere continued voluntary presence at the scene of a crime, even though it was not accidental, does not of itself necessarily amount to encouragement; but the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition, though he might reasonably be expected to prevent and had the power to do so, or at least express his dissent, might in some circumstances afford cogent evidence upon which a jury would be justified in finding that he willfully encouraged and so aided and abetted, but it would be purely a question of fact for the jury whether he did so or not (vide Archbold Criminal Pleading, Evidence & Practice 39th Edition page 1707).


  1. So as to establish the mere presence of the two Appellants at the scene while the first Appellant committed the offence amounts to aiding and abetting, there must be further evidence to establish that their presence had encouraged or assisted the first Appellant to commit the said offence. In addition, the State must prove that the two Appellants intended to aid or abet the first Appellant by their presence at the scene. Having carefully perused the evidence presented in the Magistrate’s Court, I find no discernible evidence proving that the two Appellants intended to aid or abet the first Appellant to commit the said offence by their presence at the scene and also their presence had aided or abetted the first Appellant in committing the said offence.
  2. Considering the reasons discussed above, it was not opened to the learned Magistrate to find the second and third Appellants guilty of the third count based on the evidence presented and the legal principle enunciated under section 45 of the Crimes Act.

Second Count.


  1. The main elements of the offence, as stated under Section 255 (a) of the Crimes Act, are:
    1. The Accused,
    2. With intent to maim, disfigure, or disable any person or to do some grievous harm to any person,
    3. Unlawfully wound or does any grievous harm to any person,
    4. By any means.
  2. The defining element of this offence is the intention of the Accused rather than the result of the said intention. Therefore, the nature or extent of the wound or injury is not materially significant as long as it is established that the Accused, by his alleged conduct performed with the relevant intention defined under section 255 of the Crimes Act, caused any unlawful wound or grievous harm. The Court of Appeal of England in R v Frank Purcell (1986) 83 Cr App R outlined the applicable approach in determining the intention to grievous bodily harm, where the Lord Chief Justice held:

“The direction which the judge would have given on intend had he had the opportunity (which the judge in this case did not) would have been as follow: “You must feel sure that the defendant intended to cause serious bodily harm to the victim. You can only decide what his intention was by considering all the relevant circumstances and in particular what he did and what he said about it”. ....


  1. As I mentioned above, the alleged offence of Acts Intended to Cause Grievous Harm as charged encompasses two main distinct acts that took place successively. The first one was the assault of the victim on his ankle with a concrete stone. The second act was the pouring of hot water on the victim’s back while he was kneeling on the floor.
  2. The learned Counsel for the Appellants submitted vigorously, emphasising certain inconsistencies observed between the evidence of the victim and Ilaitia, Temo, and Doctor Mani regarding the assault on the victim’s ankle with a concrete stone and urged that the learned Magistrate had not considered those inconsistencies in his judgment adequately.
  3. As evidence unfolded at the hearing in the Magistrate’s Court, this alleged incident of hitting the victim with a concrete stone occurred inside the Pacific Harbour Police Post. Ilatia said that he was in shock after witnessing the assault on the victim, and Temo was sitting at the desk of the station orderly.
  4. The two witnesses witnessed this incident from different locations under two different circumstances. It is not unusual to observe inconsistencies in the evidence such eyewitnesses give, recalling a rapid and sudden event they observed from different locations and directions. The Court must consider whether, irrespective of those inconsistencies, witnesses of the Prosecution are, in substance, telling the same story. (vide; Lord Pearson in Mohan and Another v Regina ( [1966] UKPC 3; 1967) 2 All ER 58,)
  5. Irrespective of the inconsistencies in relation to the number of times the first Appellant threw the concrete stone at the victim, both Ilaitia and Temo in substance testified that they saw the first Appellant hit the victim on his ankle with a concrete stone.
  6. In his evidence, Doctor Kapil Swamy explained the X-ray examination's finding of a hairline fracture on the victim's ankle. He further explained that Doctor Mani could not have observed this fracture due to its tininess. This sufficiently explained the reasons for Doctor Mani's omission in her medical examination report regarding the injuries sustained by the victim on his ankle.
  7. Furthermore, P. C. Sereli Saialevu and P. C. Thomes Reedev at the Navua Police Station witnessed the victim limping when he was escorted to the Station early in the morning of the 5th of November 2019.
  8. Considering the evidence of Ilaitia and Temo within the legal context observed by Lord Pearson in Mohan v Regina ( supra) with the evidence given by Doctor Swamy, Doctor Mani, P. C. Sereli Saialevu and P. C. Thomes Reedev, I find the contradictions emphasised by the learned Counsel for the Appellants between the evidence of these witnesses has a diminished relevance. Hence, the conclusion of the learned Magistrate, finding that the first Appellant had assaulted the victim on his ankle with a concrete stone, is tenable based on the evidence presented in the Magistrate’s Court.
  9. The defence’s proposition that the kettle containing hot water fell on the victim when he tried to escape was categorically denied by the Prosecution’s witnesses. The victim explained that the first Appellant poured hot water on his back while kneeling on the floor. The water poured over his back and hands. Doctor Mani’s findings recorded in the medical examination report, including the appendix, regarding the burn injuries corroborate the evidence of the victim. The evidence of the Defence’s witness focused on the nature and seriousness of the burn injuries. As I explained above, the injuries sustained by the victim are sufficient to establish that the first Appellant had caused the unlawful wound to the victim by assaulting him on his ankle with a concrete stone and then pouring hot water on his back. Appraising the first Appellant's conduct, the learned Magistrate's finding that the first Appellant is guilty of the second count was not untenable.

Fourth Count


  1. Ilaitia testified, explaining how he met the first Appellant when the first Appellant requested him to tell the Police if questioned, that the kettle accidentally fell on the victim with hot water. This evidence was not challenged during the cross-examination nor suggested or pointed out otherwise. Hence, it was correct to conclude in the judgment that the State proved the fourth count as charged beyond a reasonable doubt.

Appeal against the Sentence


  1. Considering the finding concerning the first and third counts, I shall now proceed to decide the appeal against the sentence of the first Appellant insofar as it is relevant to the second and fourth counts.
  2. The learned Magistrate had accurately considered the applicable sentencing tariff range for the offence of Act Intended to Cause Grievous Harm and Conspiracy to Defeat Justice and Interference with Witnesses. (vide; paragraphs 5 and 6 of the Sentence). Undoubtedly, this was a reprehensible and disgraceful crime, where the first Appellant had poured hot water on a suspect under his detention. He then tried to influence the one of the eye witnesses of this crime. Hence, I do not wish to interfere with the sentence of twelve-month imprisonment imposed by the learned Magistrate with respect to the fourth count.
  3. Considering the serious nature of the assault and the fact that this court set aside the conviction in respect of the offence of Assault Causing Actual Bodily Harm, I find a sentence of twenty-four months imprisonment for the second count is sufficient. I further order that the first Appelant is not eligible for parole for 12 months.
  4. In conclusion, I make the following orders that;

HAA 040 of 2024 (First Appellant)


  1. The appeal is partly allowed,
  2. The conviction in respect of the first count of Assault Causing Actual Bodily Harm is set aside,
  1. The sentence imposed by the learned Magistrate on the 30th of November 2023 is replaced with a sentence of twenty-four (24)months imprisonment for the offence of Act Intended to Cause Grievous Harm, with a non-parole period of twelve months.
  1. The twelve-month sentence imposed by the learned Magistrate for the offence of Conspiracy to Defeat Justice and Interference with Witnesses was upheld. Both sentences will be served concurrently, commencing on the 30th of November, 2023.

HAA 041 of 2024 (Second Appellant)


  1. The Appeal is allowed,
  2. The conviction entered against the second Appellant in respect of the first count of Assault Actual Bodily Harm and the third count of Aiding and Abetting an Act Intended to Cause Grievous Harm is set aside, and the sentence in respect of these counts is quashed.

HAA 042 of 2024 (Third Appellant)


  1. The Appeal is allowed,
  2. The conviction entered against the second Appellant in respect of the first count of Assault Actual Bodily Harm and the third count of Aiding and Abetting an Act Intended to Cause Grievous Harm is set aside, and the sentence in respect of these counts is quashed.
  1. Thirty (30) days to appeal to the Fiji Court of Appeal.

...................................................

Hon. Mr. Justice R. D. R. T. Rajasinghe


At Suva
30th August 2024


Solicitors.

  1. P. Legal for Appellants

Office of the Director of Public Prosecutions for the Respondent.


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