Lutu v State [2001] FJLawRp 8; [2001] 1 FLR 40 (2 February 2001)

AKUILA MARAIWALU LUTU v STATE

High Court Criminal Appellate Jurisdiction

19 January, 2 February, 2001

HAA 001/01L

Act with intent to cause grievous harm – assault occasioning actual bodily harm – appeal against conviction and against committal to the High Court for sentencing - whether relationship of Appellant and Complainant relevant to conviction –whether Magistrate erred in convicting the Appellant when there was insufficient evidence to support the convictions – whether the prosecution failed to prove mens rea – whether the Magistrate erred by receiving hearsay evidence – whether the Magistrate erred in committing the Appellant to the High Court for sentencing without obtaining information of his character and antecedents – whether retrial justified - Penal Code ss224(a), 245; Criminal Procedure Code ss169, 211(i), 222, 308(8)

Criminal practice and procedure – whether appellate Court can consider appeal against conviction on a committal to the High Court for sentence

The Appellant was arrested for assaulting his uncle and was charged with one count of acting with intent of causing grievous bodily harm, and an alternative count of assault occasioning actual bodily harm. He was found guilty by the Lautoka Magistrates' Court and committed to the High Court for sentencing. He appealed against his conviction and against his committal to the High Court for sentencing under s222 of the Criminal Procedure Code. The appellate Court found various irregularities in the trial: the charge was not explained to the Appellant; reconciliation was not considered; the substance of the charge was not explained to Appellant at the close of trial; evidence of weapon used as contained in the medical report was not disclosed in the record; medical report was not conclusive that the Appellant was responsible for injuries sustained by the complainant; prejudicial police statements tendered without objection; Magistrate did not consider elements of the offence; evidence did not sustain alternate minor offence; in short, the findings of the Magistrate did not accord with the evidence of witnesses. The Magistrate did not consider the elements of the offence in either Count 1 or Count 2 to conclude whether the Appellant was guilty of any of the two offences. Neither the actus rea nor the mens rea on Count 1 were established. The Magistrate erred in looking at aggravating circumstances, rather than characteristics and antecedents of the unrepresented Appellant.

Held-(1) When two offences an accused is charged with are put in the alternative, and it is not clear which offence was being proceeded with, on an accused's plea of 'Not Guilty' it cannot be assumed that the Prosecution is proceeding with the more serious offence.

(2) The Magistrate had misdirected himself in focusing on the aggravating circumstances rather than the character and antecedents of the Appellant in sentencing, resulting in a miscarriage of justice. A retrial would breach Appellant's constitutional right to a fair trial within a reasonable time.

(3) An appellate Court has powers to consider a conviction, being a final order of the Magistrates' Court, under amended s308 CPC, even though an Appellant was not sentenced and was committed to the High Court for sentencing. Notwithstanding that the conviction does not dispose of the matter the High Court has powers to deal with both interlocutory and final orders of the Magistrates' Court.

The Appellant is acquitted on both counts. No retrial ordered.

[Note: Act 13/03 s8 substituted s222 of the Criminal Procedure Code wef 13 October 2003 and alters the procedure for transfer and the effect of sentencing in the High Court.]

Cases referred to in Judgment

Rt Ovini Bokini v State (1999) 45 FLR 273
R v Harris (1969) Cr. App. R. 376
R v Cummerson (1968) 2 All ER 863

Anu Patel for the Appellant
Davendra Prasad for the Respondent.

2 February, 2001

JUDGMENT

Prakash, J

This is an appeal against the conviction of the Appellant by the Lautoka Magistrates' Court and his committal to the High Court for sentencing under Section 222 of the Criminal Procedure Code.

The Appellant appeared for trial for the following offences:

First Count

Act With Intent to Cause Grievous Harm: Contrary to Section 224 (a) of the Penal Code, Cap 17.

AKUILA MARAIVALU LUTU on the 19th day of February, 1996 at Lautoka in the Western Division, with intent to cause grievous harm to PENI KORO NAQASE, unlawfully wounded the said PENI NAQASE by punching and kicking.

Second Count

(Alternative)

Assault Occasioning Actual Bodily Harm: Contrary to Section 245 of the Penal Code, Cap. 17.

AKUILA MARAIVALU LUTU: on the 19th day of February, 1996 at Lautoka in the Western Division, assaulted PENI NAQASE and thereby occasioning him actual bodily harm.

He pleaded Not Guilty to both the counts put to him. He was tried and convicted for what offence is not clear.

The Petition of Appeal states as follows (excluding the charges)

1. That on the 1st day of December, 2000 your Petitioner was convicted by the Magistrate's Court at Lautoka of the following offences:-
   
2. That upon his conviction for the said offence your Petitioner was committed to the High Court for sentencing pursuant to Section 222 of the Criminal Procedure Code:
   
3. That your Petitioner desires to appeal against the said conviction and committed to the High Court for sentencing upon the following grounds:
   

1. The Learned Magistrate erred in law and in fact in convicting the Appellant when there was insufficient evidence to support convictions on either of the said two offences.
   
2. The prosecution failed to prove the mental element of intent to cause grievous bodily harm.
   

100. The Learned Magistrate erred in law and in fact in receiving hearsay evidence.
     

4. The Learned Magistrate erred in law and in fact in committing the Appellant to the High Court for sentencing without obtaining information of his character and antecedents.
   
5. The Appellant will seek leave to apply for this Honourable Court to add to the above grounds of appeal upon receipt of the Court records in this matter."
   

The Magistrates' Court record does not state what offence the Appellant has been committed for sentencing by the High Court. However it is obvious that the learned Magistrate has apparently committed Appellant for Count 1 – Act With Intent to Cause Grievous Bodily Harm. This is the type of offence for which a Magistrate, having obtained information as to an accused character and antecedents, and is of the opinion that they are such that greater punishment should be inflicted in respect of the offence than the Magistrate has power to inflict. In committing the Appellant to the High Court the learned Magistrate stated as follows:

"Because of the nature of the injuries and the seriousness of the charge given the aggravating circumstances of this case, I am of the view that I will commit the Accused for sentencing to the High Court under Section 222 of the Criminal Procedure Code.

The aggravating circumstances are stated in the following terms:

That you being a Police Officer entrusted with duty to protect members of the public. You betrayed that trust. Assaulted, wounded a member of the public supposedly in your care.

Further the victim is your uncle. And further more, a Police officer obtained liquor illegally, consumed the same, after which you committed the offence (see page 12 of the record).

It is clear that the learned Magistrate misdirected himself in focusing on the aggravating circumstances rather than the character and antecedents of the Appellant. The relationship of the complainant to the Appellant and the fact that Appellant was a Police Officer are not in themselves relevant to character and antecedents. In any case was the complainant in the care of the Appellant? The issue of Appellant being a Police Officer "obtaining liquor at illegally" is not based on facts in the record. In any case this Court does not need to dwell on the Section 222 committal at this stage since the Appellant has appealed against the conviction on either of the two offences that were before the Magistrates' Court.

The Court has powers to consider the conviction since that is a final order of the Magistrates' Court. Even if that conviction does not dispose of the matter since Appellant was not sentenced the High Court has powers to deal with both interlocutory and final orders of the Magistrates' Court under the amended Section 308 of the Criminal Procedure Code (see case of Ratu Ovini Bokini v State, FCA Cr. App. Nos AAU0001 of 1999S and AAU0003 of 1999S).

Archbold also suggests that a superior court could deal with the conviction on a committal for sentencing (see Archbold 38th Edition, paras 754-756).

There were many irregularities in the proceedings in the Magistrates' Court. The Appellant was unrepresented. The two offences he was charged with were put in the alternative. It is not clear which offence was being proceeded with. There is no authority submitted nor can the Court find, that when two offences are put in the alternative and the accused pleads "not guilty" to both then it is assumed that the Prosecution is proceeding with the more serious offence. As was stated by Lord Justice Edmund Davies in R v Harris (1969) Cr. App. R.376 at 379: "It does not seem to this Court right or desirable that one and the same incident should be made the subject matter of the distinct charges so that hereafter it may appear to those not familiar with the circumstances that two entirely separate offences were committed. Were this permitted generally, a single offence could frequently given rise to a multiplicity of charges and great unfairness could ensue." In this case there was no opening address by the Prosecution in terms of Section 213 of the Criminal Procedure Code. As such the Appellant did not know what charge was being proceeded with.

It is clear that any accused person, especially an unrepresented accused, should been clear as to what charge he is defending. In this case the charge in Court 2 was a less serious charge. It was also a reconcilable offence as per section 163 of the Criminal Procedure Code. As such it was incumbent upon the Court to consider reconciliation. This was raised according to the Court records. When the Appellant being his cross-examination of the Complainant (PW 1) the following is recorded:

"Cross Examination:

Accused: Complainant does not wish to proceed.

Witness: Before the case, accused came to me with a soro for reconciliation. I accepted it.

Prosecution: I do not know about the reconciliation.

Accused: I meant to do the soro, as reconciliation to mend our relationship, but not admitting what I have been charged with.

Prosecution: May be we need time to talk with the accused.

Accused: Wish to cross examine."

It is clear that the Court did not direct its mind to the issue of reconciliation. At that stage not much evidence was led. In the absence of any reconciliation the Prosecution should have indicated that they were proceeding with the more serious count.

It is also noted at the end of the Prosecution case the Court ruled that "there is a prime facie case". For what offence it is not clear. What was the Appellant defending himself against? There was a breach of s.211(i) of the Criminal Procedure Code. This states: "At the close of the evidence in support of the charge, it appears to the Court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall again explain the substance of the charge to the Accused...." (emphasis added). There is no record that this was done at the end of the Prosecution case. As such the Prosecution case was not evident to the Appellant who was unrepresented. He did not know what charge he was defending himself against.

The Court will now consider the evidence on Count 1. It is clear from the Court records that only two persons (PW2) and (PW6) witnessed the incident that led to the charges against the Appellant. According to PW2 he saw "one Fijian man badly assaulted another Fijian man. He was kicking as well. Both were standing after the assault the other fell down. The person who assaulted the other went away when he dell down. The man who fell down crossed the road to public toilet." PW2 stated that he did not recognize "who those two people were." According to PW2 the person who assaulted was arrested near the public toilet at Narara Parade. He could not identify the person who assaulted the victim. PW6 was doing his regular morning exercise on the morning on 19/02/96. He saw "two men, one fisting the other. He identified the Appellant as the man fisting. "He is a police". PW6 knew the Appellant from before.

The Medical Report on the complainant was tendered apparently without objection. The report has some surprising information given the evidence of the Complainant (PW1) in Court. According to the Medical Report the history related by patient states: "He was involved in a drunken brawl with a friend when he was punched and stabbed with a broken bottle." The diagnosis states: 'Consistent with being stabbed with a sharp object with jagged edge,' Other injuries if any are not noted.

It is clear from the evidence in the records that no one witnessed any use of a beer bottle or any other weapon/instrument in the incident. No such items were found near the scene. It is clear from the evidence of (PW1) the Complainant, that he had completely blacked out, he was completely drunk. As he state "I could not recall whether I went out of the Police barrack." It is, therefore, not clear and not in evidence where and when the complainant was stabbed with a broken beer bottle or any sharp object. According to PW2 the person, who fell down, apparently the complainant, crossed the road to the public toilet. He did not notice any bleeding. Given the medical report there was considerable loss of blood since the complainant, had blood transfusion. He did not notice any bleeding. Given the medical report there was considerable loss of blood since the complainant had blood transfusion. There was no evident that the Appellant was responsible for the injuries described in the Medical Report. The stabbing could have happened before or after the incident described by PW2 and PW6. There could have been a possibility that the Complainant (PW1) who does not remember anything, could have fallen on a broken beer bottle after the incident in from of J.R White shop. It is also relevant to note the evidence of PW3, a Police Officer, who first went to the scene. He states: "On 19/02/96 I attended a report at Churchill Park." A Fijian man was lying in a pool of blood near public toilet in Churchill Park." He further states that he saw Constable Akuila the Appellant "coming out from Verona Street to Yawini Street" It is clear that the Appellant was quite a distance from the scene where the complainant was found in a pool of blood. While Appellant had fresh blood stains on his clothes and was drunk these do not link him to any injuries records in the Medical report on the complainant.

The findings by the learned Magistrate in his judgment does not accord with the evidence of the witnesses. It is not clear how the learned Magistrate found that "The two men fought across Vitogo Parade to the public toilet by Narara" (p11). Other matters noted do not link the accused to the offence in Count 1. The learned Magistrate notes the injuries as per the Medical Report. As he notes: "these are consistent with being stabbed with a sharp object with rugged edge". However, the next few paragraphs of the judgment do not deal with relevant facts material to the offence. It is not clear what is the relevance of the complainant stating that the Accused/Appellant is a relative, his nephew and that he is a Police Officer. It is further stated that "As serving policemen then the Accused gave his uncle $20.00 to buy beer. Later, after sometimes they got more liquor, obviously from illegal sources at the instigation of a serving policeman." The Learned Magistrate did acknowledge that the complainant "was completely drunk in his words he blacked out. He became conscious when he awoke at Lautoka Hospital Recovery Ward. He lost consciousness as he said in his statement to the police which he read in Court".

The tendering of PW1's police statement was highly irregular. No foundation was laid by the Prosecution for tendering it. It was highly prejudicial to the Appellant. It was apparently from this statement that the learned Magistrate formed an opinion that liquor was obtained from illegal sources. In any case PW1's plain statement did not shed any light on the offences the Appellant was charge with.

Given the evidence before the Magistrates' Court this Court cannot understand how the learned Magistrate found that "There is overwhelming evidence that the accused did commit the offence as charged." It is still not clear what offence the accused committed. The learned Magistrate did not consider the elements of the offence in either Count 1 or alternative Count 2 to conclude whether the Appellant was guilty of any of the two offences. Neither the actus reus nor the mens rea on Count 1 were established. Count 1 states in the particulars that the Appellant "...Unlawfully wounded the complainant (Peni Naqase) punching and kicking." The medical report did not establish that the serious injuries noted were the consequences of any punching and kicking. The conviction on Count 1 is unsafe. It is set aside and the Appellant acquitted.

What then does the Court do with Count 2? Under Section 169 of the Criminal Procedure Code the Appellant could have been convicted of a complete minor offence if the particulars were proved. However, in this case he was charged with the minor offence in the alternative. In my view the evidence on the record does not make out the alternative count. Further, given the substantial irregularities in the proceedings in the Magistrates' Court it will be unjust to uphold any conviction entered against the Appellant, nor to order a retrial on the alternative Count. Any retrial on count 2 would breach the Appellant's Constitutional right to a fair trial within a reasonable time. The charges in this case arose out of incidents in February 1996, almost 5 years ago. According to the records (p7) the Appellant was discharged on the charges earlier due to the non-appearance of the complainant witness. He was recharged in April 2000.

The Court further considers that the lesser offence on Count 2 merged with that on Count 1 (see R v Harris supra, and Archbold (43rd edition) para 7-43). Even if the Appellant was convicted on both Counts the Court will quash the conviction on the lesser. There was a substantial miscarriage of justice against the Appellant who was unrepresented in the Magistrates' Court.

The end result is that the Appellant is acquitted on both Courts. As such the Court does not need to deal with the issue of committal under Section 222 of the Criminal Procedure Code.

Appeal allowed.

Alesi Macedru and Marie Chan