Chandasami & Ors ats Police [1943] FJLawRp 8; [1875-1946] 3 FLR 360 (17 November 1943)

[1875-1946] 3 FLR 360

SUPREME COURT OF FIJI

Appellate Jurisdiction

CHANDASAMI AND ORS

ats

POLICE

Corrie, C.J.

November 17, 1943

Prosecution for assault - summary procedure - complaint made by police officer - Police officer appears for prosecution.

An information for assault was laid by a police officer and the prosecution was conducted by him. No evidence was called that this action had been authorised by the injured party.

HELD –

(1) The fact that the aggrieved party did give evidence for the prosecution was sufficient evidence that he had authorised the respondent to lay the information.

(2) Police officers have express authority under s.22 of the Police Ordinance 1939^[1] to prosecute before the Courts.

[EDITORIAL NOTE - The grounds of appeal in this case are apparently derived from the wording of the repealed Summary Conviction Offences Ordinance, 1876, ss.3 and 4. There is no similar provision as to complaints of assault in the Penal Code. See generally Criminal Procedure Code Cap. 4 ss.2, 78 and 79.]

Cases referred to:-

Nickolson v Booth and Naylor [1888] 16 Cox CC. 373; 57 LJMC 43; 58 LT 187; 4 TLR 346; 14 Dig. 169.

Webb v Catchlove [1886] 3 TLR 159; 33 Dig. 338.

APPEAL against conviction. The facts appear from the judgment.

L. Davidson, for the appellant.

A. G. Forbes, for the respondent.

CORRIE, C.J. - The appellants were charged under an information with having, on the 19th September, 1942, unlawfully assaulted and beaten one Maradia, contrary to s.3 of Ordinance 5 of 1876, the Summary Conviction Offences Ordinance.^[2]

That section provides that,

"Every person who shall assault or beat any other person shall upon complaint by or on behalf of the party aggrieved and on conviction thereof either be imprisoned with or without hard labour for any term not exceeding two months or shall pay a fine not exceeding the sum of five pounds "

S.4 of the same Ordinance provides,

"When any person shall be charged before any District Commissioner with an assault or battery upon any other person either upon complaint of the party aggrieved or otherwise the said District Commissioner may if the assault or battery is of such an aggravated nature either by reason of the youth condition or sex of the person upon whom or by reason of the nature of the weapon or the violence with which such assault or battery shall have been committed that it cannot in his opinion be sufficiently punished under the provisions proceed to hear and determine the same... "

The information was laid by the respondent and the case for the prosecution was conducted by him. Maradia, the person aggrieved, gave evidence; and the Magistrate, after hearing his evidence and that of other witnesses for the prosecution and the appellant Chandasami in his own defence, found both the appellants "guilty under s. 4/5/76" and sentenced them to one month's imprisonment with hard labour.

The conviction under s.4 is clearly in error, as the information was laid under s.3 and the sentences imposed are within the Court's jurisdiction under that section. It is clear, therefore, that the conditions which would justify the Magistrate in proceeding under s.4 were not fulfilled.

The first ground of appeal is that the respondent had no right or authority to lay the information on behalf of Maradia. In support, the appellants rely upon the judgment in Nickolson v Booth and Naylor, 16 Cox, page 373. That was an appeal against a conviction under 24 and 25 Vict. c. 100, s.42, the material part of which reads,

"Where any person shall unlawfully assault or beat any other person, two justices of the peace upon complaint by or on behalf of the party aggrieved, may hear and determine such offence."

The facts were that Nickolson, the appellant in that case, was apprehended by the police and taken to the police office and there charged by the respondent, Naylor, with an assault. On the day fixed for the hearing, the respondent, Naylor, did not appear before the justices. A complaint was then made as to the charge of assault by the respondent, Booth, the sergeant of police to whom such charge had been made by Naylor previously, and the justices thereupon issued a summons against the appellant for such assault. No evidence was given that Naylor requested Booth to lay the complaint. It was contended on behalf of the appellant that there was no evidence to show that Naylor intended to prosecute that there was no party aggrieved, and that the party supposed to be aggrieved did not authorize the issuing of the summons. The justices overruled these objections and found the appellant guilty. On appeal the conviction was quashed. Hawkins, J. said,

"Without the Act of Parliament, the Justices have no power to convict summarily of an assault; whereas by virtue of the Act they can do so, but there is a condition precedent to their jurisdiction, namely complaint by or on behalf of the person aggrieved. In the present case there was no complaint by the person aggrieved except at the police station; and the police constable had no authority to proffer the charge on the following day in the absence of the complainant."

Grantham J. said,

"I am of the same opinion. I think the meaning of the Statute is that the complainant is to appear before the Justices and make his complaint, or delegate some person on his behalf to do so. When the party does not so appear, the Justices should treat the matter as though there was no evidence to support the charge, and dismiss it."

It is to be noted, however, that in the case now under appeal the person aggrieved, Maradia, did appear in Court and give evidence in support of the information, and I hold that it must be inferred that he had authorized the respondent to lay the information. The second ground of appeal is that the respondent acted as advocate for Maradia. The appellant relies upon the observation made in Webb v Catchlove [1886] 3 TLR 159, at page 160, by Denman J. who said he thought it a most unfortunate practice for police officers to be allowed to act the part of advocates in courts of justice, and Hawkins J., who, in concurring, said that he thought it a very bad practice to allow a policeman to act as an advocate before any tribunal.

The question, however, is not whether it is a desirable practice that police officers should prosecute before the courts: the question is whether they have authority to do so, and this is expressly conferred upon them by s.22 of the Police Ordinance 1939.

The appeal upon these two grounds therefore fails.

The only other question raised is that of sentence. As to this, the learned Magistrate has stated his reasons, and I see no grounds for interfering with the sentence which has been imposed.

The appeal is dismissed.

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^[1] Cap. 47.
^[2] Repealed. Vide Penal Code Cap. 5 (Revised Edition Vol. 1 page 300) s.265.