Janif v Reginam [1962] FJLawRp 47; [1962] 8 FLR 145 (22 June 1962)

(1962) 8 FLR 145

SUPREME COURT OF FIJI

APPELLATE JURISDICTION

V.

REGINAM

[SUPREME COURT, 1962 ( MacDuff C.J.) 8th, 22nd June]

Criminal law-grievous harm-harm that seriously or permanently injures health or is likely so to do-finding of serious interference with health and comfort insufficient-Penal Code (Cap. 8) ss. 4, 253, 271.

A finding by a magistrate that a wound could fairly and reasonably be said to have seriously interfered with the health and comfort of the person wounded, is not a sufficient finding that the wound, beyond any reasonable doubt, had seriously injured the health of the person wounded or was likely to do so, within the definition of "grievous harm" in section 4 of the Penal Code.

Appeal against conviction by the Magistrate's Court. Reported only as to the meaning of "grievous harm."

K. C. Ramrakha for the appellbr>B. A. P A. Palmer for espondent.

The fThe facts sufficiently appear from the judgment of the Chief Justice

MACDUFF C.J.: [22nd June, -

The Aphe Appellant was convicted by the the Magistrate, First Class, at Suva, of the following offence:

Statement of Offence

Grievous Harm Contrary to Section 253 of the p align="center">ParticularOffence

MOHAMMED JANIF alias TIGER of Ruve Street, Samabula, on the 25th day of y of December, 1961, at Suva in the Centraision, unlawfully did grievous harm to Setereki Volakoro anro and was sentenced to nine months' imprisonment.

The Appellant preferred some six grounds of appeal, of which the sixth was not a ground of appeal against conviction and was withdrawn. The remainder I propose to deal with not in the order in which they appear but in their logical order.

That order appears to me to be as follows:

"(c) That the verdict is unreasonable and cannot be supported having regard to the evidence.

(b) That in view of the acquittal of the co-accused, the learned trial Magistrate was not entitled either in law or in fact to find the case proved against Your Petitioner when the evidence against Your Petitioner was substantially the same as that alleged against the co-accused.

(d) That having regard to the doubt expressed by the learned trial Magistrate on all other aspects of the case relating to the number of persons present, and as to how the other prosecution witnesses had received their injuries, the learned trial Magistrate was not entitled in law to accept only one aspect of the case namely that relating to the incident as alleged by Setereki Volakoro himself.

(e) The learned trial Magistrate erred in law in not having regard to the whole of the evidence in finding the case proved against Your Petitioner",

grounds (b), (d) and (e) being in amplification of ground (c).

As to ground (b) Counsel for the Appellant was constrained to admit that he could quote no authority in support of his contention, and that he was incorrect in alleging that the evidence against the Appellant was substantially the same as that given against his two co-accused.

As to ground (d) again Counsel for the Appellant could refer me to no authority in support of his proposition in law. Nor do I think he could find one.

As to ground (e) there is, in my view, no basis in fact in this allegation. It is clear from the judgment of the learned trial Magistrate that he gave the most careful consideration to all the evidence, including that of the Appellant and his co-accused.

Dealing now with the general ground (c) it appears to me that there was evidence, which if it were accepted as true by the learned trial Magistrate, would amply justify his finding of guilt. Despite certain discrepancies he accepted as true, and beyond any doubt, the prosecution witnesses' evidence of the first part of the fracas, in the course of which Setereki Volakoro received a stab wound. He was not prepared to do this to the same extent in respect of the evidence concerning events later in the fracas. Having carefully considered the evidence I think he was justified in so doing. Having accepted the evidence of the prosecution witnesses as to the first part of this incident, and having rejected, and rightly so, the Appellant's evidence, the Appellant's conviction was inevitable. There is no merit in any of these grounds.

There remains then the first ground which is:

"(a) There was no proper evidence before the learned Magistrate that Setereki Volakoro has suffered grievous harm, and the learned trial Magistrate erred in law and in fact in so finding beyond all reasonable doubt."

"Grievous harm" is defined in Section 4 of the Penal Code to mean-

any harm which hich amounts to a maim or dangerous harm (wheans harm endangering life), or seriously or permanently injures health, or which is likelyikely so to injure health, or which extendpermanent disfigurement, ort, or to any permanent or serious injury to any external or internal organ, membrane or sense."

The medical evidence as to the serious nature of the wound was rather brief. The Assistant Medical Officer said:

"He had a cut on the right side of chest between the first and second ribs, one inch long and one inch away from the midline. This was a serious injury. I would say it was injurious to his life."

In cross-examination, however, the same witness said:

"I did not make any attempt to find out the depth of the wound on Setereki. Only way to ascertain that was to carry out a surgical operation. The result of the injury itself was serious as was disclosed later by the X-ray. The side of the right lung had collapsed. I can read simple X-rays. Could not tell the depth of the wound from an X-ray. Lung could have collapsed for some other reason. If lung collapsed for other reasons could not say if the wound was serious or not. Dangerous to conduct the proper examination. I agree that the only person competent to say the full danger and seriousness of the injury would be a surgeon. The materials at my disposal then were not sufficient to carry out the examination required. I could say from his condition that his wound was serious."

To come within the requirements necessary to constitute "grievous harm" the wound inflicted had in this instance to be such as to seriously injure health, or be likely so to do. Once the witness had failed to attribute Setereki's collapsed lung necessarily to the knife wound, and had failed to ascertain the depth of the wound, then the question as to whether the wound had seriously injured his health, or was likely to do so, was at large and the witness was not asked to resolve it. In those circumstances the finding by the learned trial Magistrate that "It (the wound) can be fairly and reasonably said to have seriously interfered with Volakoro's health and comfort" is not a sufficient finding that the wound, beyond any reasonable doubt, had seriously injured Volakoro's health, or was likely to do so. Accordingly a conviction of "Grievous harm contrary to Section 253 of the Penal Code" cannot be supported. It is reduced to a conviction of "Assault causing actual bodily harm contrary to Section 271 of thePenal Code."

I invited Counsel for the Appellant to argue whether the Court should not, in all the circumstances, consider enhancing the Appellant's sentence. The carrying of sheath knives by youths in a town, and the facility with which they use them, if there is any sign of such habits becoming prevalent, requires stamping out before such practices lead to those of the youthful gangs in London and elsewhere, with their knives and bicycle chains, and their gang warfare. If there was any suggestion that the Appellant was such a person I would take the view that, despite his youth, the infliction of a knife wound merited a term of imprisonment much in excess of nine months. However Counsel for the Crown was unable to assist the Court with any relevant facts and I have, somewhat reluctantly, come to the conclusion that the sentence should be allowed to stand.

Appeal is dismissed.

Conviction under section 271 of the Penal Code substituted
for conviction under section 253.