Ali v Reginam [1972] FJLawRp 24; [1972] 18 FLR 129 (24 August 1972)

[1972] 18 FLR 129

SUPREME COURT OF FIJI

JAN BARKAT ALI

v

REGINAM

Appellate Jurisdiction

Criminal law – judgment- whether magistrate’s judgment sufficient to comply with section 154 of the Criminal Procedure Code (Cap. 14) –no necessity to state reasons for acceptance or rejection of evidence of any particular witness – Minor Offences Act 1971, ss. 2, 4- Penal Code (Cap. 11) s.98 (b).

Criminal law-evidence and proof- whether offence proved to have taken place in a “public place”- court entitled to use general information and knowledge of common affairs- inquiry office at police at police station-Minor Offences Act, 1971, ss. 2, 4 – Penal Code (Cap. 11) s. 98(b) –Penal Code (Cap. 8 -19550 s. 4:

A magistrate is not obliged to give reasons in his judgment for his acceptance or rejection of the evidence of any particular witness, and so long as the evidence to which he has referred and which he accepts is sufficient to establish the ingredients of the offence, there has been no failure to comply with the requirements of section 154 of the Criminal Procedure Code.

A court is fully entitled to take notice of the fact that the inquiry office of a police station, to common knowledge, is of its very nature a place to which the public have recourse for aid or assistance and to which they are permitted to have access, and thus is within the definition of “public place” in section 2 of the Minor Offences Act 1971.

Cases referred to:

Hiralal Prasad v The Police Fiji Cr. Ap. No. 23 of 1956 – (unreported).
Clarke v Edinburgh Tramways Co. [1919] UKHL 303; [1919] S.C. (H.L.) 35.
Powell v Streatham Manor Nursing Home [1935] A.C. 243; 152 L.T. 563
Ng Pui Fong v R. Hong Kong Cr. App No. 354 of 1963 (unreported)
Shiu Charan v The Police (1955) 4 F.L.R. 165
Clift v Long [1961] Crim. L.R. 121
Melsor v The Police [1967] N.Z.L.R. 437

Appeal against conviction and sentence in the Magistrate’s Court for the offence of being drunk and disorderly in a private place.

K.C. Ramrakha for the appellant.
C. Trafford-Walker for the respondent.

The facts sufficiently appear from the judgement.

24^th August 1972

GRANT J.:

This is an appeal against the conviction of the appellant on the 29th day of June 1972 of being drunk and disorderly in the inquiry office of Central Police Station contrary to Section 4 of the Minor Offences Act, 1971, and against the sentence imposed, the grounds of appeal being:-

1. The learned trial Magistrate erred in not complying with the mandatory provisions of section 154 of the Criminal Procedure Code.

2. The verdict is unreasonable, and cannot be supported having regard to the whole of the evidence.

3. The prosecution failed to prove that the "inquiry office" was a public place within the meaning of the Minor Offences Act.

4. The sentence is harsh, and excessive having regard to all the circumstances of this case.

With regard to Ground 1, counsel for the appellant referred the Court to Hiralal Prasad v. The Police Fiji Crim. App. No. 23 of 1956 which held that a judgment which said no more than "I believe the evidence of the prosecution witnesses and I do not believe the evidence of the accused" did not comply with the provisions of Section 157 (now Section 154) of the Criminal Procedure Code. Under the provisions of that section the Magistrate should record the point or points for determination, the decision thereon and the reasons for the decision, and in the case of a conviction the offence of which and the law under which the accused person is convicted. Clearly the judgment described in Criminal Appeal No. 23 of 1956 falls far short of this, but in my view the judgment herein complies with the necessary requirements. The trial Magistrate records the points for determination in the first paragraph, then sets out the evidence including that on which the prosecution relied to establish the points for determination, gives his decision thereon in the final paragraph specifying (partially by reference to the first paragraph) the offence of which and the law under which the accused is convicted and in the penultimate paragraph gives the reasons for his decision, namely that having reviewed the evidence he accepts that of the prosecution witnesses and rejects that of the accused. No more is necessary. A magistrate is not obliged to give reasons for his acceptance or rejection of the evidence of any particular witness and so long as the evidence to which he has referred and which he accepts is sufficient to establish the ingredients of the offence there has been no failure to comply with the statutory requirements of Section 154 of the Criminal Procedure Code. As was stated in Clarke v. Edinburgh Tramways Co. [1919] UKHL 303; (1919) S.C. (H.L.) 35 per Lord Shaw cited with approval by Viscount Sankey L.C. in Powell and Anor. v. Streatham Manor Nursing Home (1935) A.C. 243 at 250 "When a judge hears and sees witness and makes a conclusion or inference with regards to what is the weight on balance of their evidence, that judgement is entitled to great respect, and that quite irrespective of whether the judge makes an observation with regard to credibility or not.” The same point was emphasised by Blair-Kerr J. in Ng Pui Fong & Ors. v. R Hong Kong Crim. App. No. 354 of 1963 where he said “In making his findings of fact, a magistrate is not required to write what amounts to a series of character studies of the witnesses who have testified before him. If he chooses to give reasons, such reasons when taken in conjunction with the written record of the evidence may enhance the value of the magistrate’s judgement. But it frequently happens that it is the general impression which a witness gives to the magistrate which convinces him that the witness is truthful or otherwise. It may be quite impossible to put it into words. .... True, magistrates have to give reasons for their decisions, but this does not mean, whenever there is a ‘head-on collision’ as regards the evidence of two witnesses, one of whom is undoubtedly telling the truth and the other is undoubtedly lying, and neither of the two witnesses shifts his grounds or contradicts himself, but the magistrate nevertheless is convinced beyond reasonable doubt that one man is telling the truth and the other is lying, that the magistrate's findings must necessarily be discounted because he is unable to express by way of a detailed character sketch his reasons for saying he believes A and disbelieves B.” In the circumstances of this case it would have been preferable for the trial Magistrate to have stated his rejection of the evidence of the accused was limited to so much of his evidence as conflicted with the evidence of the prosecution witnesses on the salient issues and did not extend to previous events on which the accused's evidence was unchallenged, but it is quite clear that this is what the Magistrate intended. In all other respects his judgment unobjectionable.

As to Ground 2, the trial Magistrate was perfectly entitled on the evidence to reach the conclusions that he did, the testimony of prosecution witnesses which he accepted as true being ample to sustain a finding of guilt.

With regard to Ground 3, "public place" for the purpose of this offence is statutorily defined by Section 2 of the Minor Offences Act, 1971, as meaning, inter alia, any place or building of public resort to which for the time being the public are permitted to have access. Certainly no one went into the witness box to state specifically that the inquiry office of a police station falls within that definition, but had they done so it would not have affected the position as it is a conclusion which has to be arrived at by the Court and not by a witness. Counsel for the appellant relied on the decision in Shiu Charan v. The Police [1955] 4 FLR 165 which held that on a charge of Official Corruption contrary to Section 91(b) (now Section 98(b) ) of the Penal Code it must be strictly proved that the person corrupted is in the public service. However it is clear that the decision is confined to its particular facts and is not of general application. In that case the evidence was that the accused handed a bribe to a police constable, but there was no evidence before the Court nor any statutory definition from which the Court could conclude that a police constable was a person employed in the public service. Section 4 of the Penal Code then in force defined a person employed in the public service as meaning a person falling within one or other of twelve particular categories and although, for instance, one of these categories was “all persons belonging to the military forces of the Colony”, there was no reference to persons belonging to the police force. Had members of the police force been specifically named the Court would doubtless have taken judicial notice of the fact, but as it was it was necessary for the prosecution to lead evidence in order to establish that a member of the police force fell within one or other of the twelve categories, which it failed to do. In the case before me the circumstances are quite different. In the first place, there was sufficient evidence in my view, to justify a finding that the inquiry office of the police station is a public place within the definition in that the appellant freely entered the inquiry office, went up to the counter or "inquiry desk" behind which was the station orderly who asked the appellant what he could do for him, subsequently went behind the Counter by rushing through swing doors and, although he was then ordered by the station sergeant to return to the other side of the counter he was not in spite of his misbehaviour, ordered to leave the inquiry office; from which it is clear that he was permitted to have access to that portion of the inquiry office on the, public side of the counter. In the second place, had this evidence not been forthcoming, a Judge or Magistrate may, in arriving at his decision, use his general information and that knowledge of the common affairs of life which men of ordinary intelligence possess (Phipson on Evidence 11th Edition para. 48) and indeed may even make use of his general "local" knowledge (Cliff v. Long (1961) Crim. L.R. 121.), although he may not act on his own private knowledge or belief regarding the facts of the particular case. In Melsor v. Police [1967] N.Z.L.R. 437 the president of the New Zealand Court of Appeal field that the Court was fully entitled to take notice of the fact that Parliament grounds, to common knowledge, was a place which was open to, and commonly used, by the public; and I am fully satisfied that the Court is fully entitled to take notice of the fact that that the inquiry office of a police station, to common knowledge, is of its very nature a place to which the public have recourse for aid or assistance and to which they are permitted to have access.

As to Ground 4, while the fine imposed of $20 is by no means excessive it was urged by counsel for the appellant, that the conviction recorded against the appellant could prejudice his future career and that in view of the circumstances of the offence and his history a more lenient course would be justified. The previous conduct of the appellant certainly appears to be exemplary. He is a well educated young man holding a responsible position in the civil service who should be able to contribute meaningfully to the welfare of Fiji and it may well be that the adverse effect on his career of a conviction would be out of all proportion to the incident, which was not of a serious nature. While his behaviour does not reflect to his credit it would. appear to be out of character and to have arisen from the combined effect of his inebriated condition and his excited state at having been the victim of an assault, there being no reason to disbelieve his version of this previous incident or that it was for the legitimate purpose of reporting it and seeking immediate assistance that he proceeded to the police station where, in the event, he underwent the salutary experience of spending some hours in a cell.

While the trial Magistrate's finding of guilt will stand and the appeal is dismissed in so far as it relates thereto, the conviction and sentence are quashed and in substitution therefor, having regard to the circumstances including the nature of the offence and the character of the offender, the appellant is discharged absolutely. Appeal allowed in part; appellant discharged.

GRANT, J.