Kumar (alias Pilla) v State [1996] FJMC 3; Criminal Appeal No 0002 of 1996 (22 May 1996)

IN THE MAGISTRATE COURT OF FIJI
AT LABASA
Appellate Jurisdiction

CRIMINAL APPEAL NO: 0002 OF 1996
BETWEEN:

ASHOK KUMAR alias PILLA

s/o Ram Deo
Appellant
&

THE STATE

Respondent

Mr A Kohli for Mr. A.Sen for Appellant
Ms L Laveti for the Respondent

JUDGMENT

On the 31^st of October, 1995 the appellant was tried and convicted in the Labasa Magistrate Court for an offence of Assault Occasioning Actual Bodily Harm and was sentenced to pay a fine of $50.00 together with $25.00 costs.

He now appeals against his conviction on 3 grounds listed in his Petition of Appeal but only two were argued on appeal, firstly that the verdict is unreasonable and cannot be supported by the evidence and secondly, that the trial magistrate erred in allowing the prosecution to adduce the doctor's evidence when the medical report was already tendered in Court.

In this latter regard the Magistrate Court record quite clearly discloses that the complainant during the course of his evidence was permitted (without objection) to produce a medical report of his injuries prepared by a Dr. Robert Bancod who was subsequently called (again without objection) and gave oral evidence.

I propose to deal firstly with Counsel's submission on the second ground in which he sought to contrast the procedure adopted by the learned trial magistrate with that envisaged in Section 191 of the Criminal Procedure Code (Cap 21) where provision is made for the admission in evidence of the reports of certain types of witnesses without having to call them to testify orally provided certain pre-conditions as to service of their reports haves been met by the prosecution.

If I may say so the comparison is somewhat misconceived. Quite simply the complainant was permitted to tender his medical report on the basis that he was the patient named therein and moreso because there was no objection from defence counsel. He did not however speak to the report nor was he cross-examined upon it.

Indeed even when Dr Bancode was called as a prosecution witness, the Court record does not disclose whether or not he was examined or cross-examined upon the medical report tendered by the complainant of which he was the author. On the contrary, the magistrate's record reveals that at the conclusion of the doctor's evidence-in-chief he was permitted to tender his handwritten hospital notes as a further exhibit.

There is not the slightest doubt in my mind that what occurred in both instances was quite irregular and should not have been permitted by the trial magistrate despite there being no objection.

In Colin Raymond Langford v. R 20 F.L.R. 11 Grant Ag. C.J. (as he then was) described such a procedure as "wrong" when he said at p.12:

"....(the doctor was called as a witness by the prosecution and was permitted by the Trial Magistrate to put in evidence his written medical report in which he gave his opinion....This report if contemporaneous could certainly have been used by the doctor to refresh his memory but it should not have been produced in evidence unless, as a statutory exception to the best evidence rule (e.g. S.191 C.P.C) applied, under the provision of which certain documents may be produced in evidence in lieu of, but not in addition to, the oral evidence of a witness and subject to the requirement of that section being complied with, which was not the case here."

However unlike in Langford's case where the trial magistrate "indiscriminatively" adopted the doctor's opinion which "was patently against the weight of evident" the trial magistrate in this case appears to have relied on the doctor's oral testimony which was not seriously disputed as to the nature and location of the complainant's injuries.

In this latter regard the doctor's cross-examination appears to have been principally devoted to excluding the complainant's injuries being caused by direct punching to the back of the complainant's heard which was the particular assault alleged against the appellant.

In the circumstances despite the irregularities that occurred with regard to the exhibited reports, I am satisfied that no prejudice at all was caused to the appellant by such irregularity, and accordingly, this ground is dismissed as being without merit.

I turn next to deal with the first ground of appeal which at the hearing of the appeal amounted to a submission that the appellant had not caused any "actual bodily harm" to the complainant.

In particular, counsel submitted that since this was a case of multiple assailants it was incumbent on the trial magistrate to isolate the assault(s) which caused the injuries to the appellant's face, especially, since it was the prosecution's case that the appellant had punched or hit the complainant only on the back of the head and the complainant had sustained injuries only to the face.

With all due regard to the submission I cannot agree. In Roberts (1971) 56 Cr. App. R 95 the Court of Appeal (UK) in upholding the appellant's conviction for an offence of Assault Occasioning Actual Bodily Harm where the complainant jumped out of a moving car injuring herself, Stephenson L.J. delivering the judgment of the Court said at p.102:

"The test is: Was it the natural result of what the alleged assailant said and did, in the sense that it was something that could reasonably have been foreseen as the consequence of what he was saying or doing?

It is common ground that on the day in question the complainant and the appellant and several others had drunk a bottle of rum and a bottle of homebrew before attending a Ram Leela festival being held in a ground nearby. It was also common ground that the complainant was in a fairly advanced state of intoxication and was unsteady on his feet when the group left for the festival grounds.

On the way the complainant state he was attacked by the appellant and 2 others. He was punched on the left cheek, kicked in the testicles and the appellant"......Pilla hit him at the back of his head several times with his fist...." And he fell down unconscious.

The complainant was taken to hospital where he was examined and admitted for a month. On admission he was unconscious and had bodily injuries comprised of"....a swelling on the left eye lid and an abrasion in the left temporal area..." which the doctor opined at the trial, could not have been caused by a blow from a fist but was ..." consistent with a fall."

The trial magistrate in his judgment satisfied himself that the appellant did assault the complainant. He was also clearly conscious of the nature of the doctor's evidence as to the cause of the complainant's injuries and the inebriated state that the complainant was in when he was assaulted.

Counsel complains however, that the trial magistrate misdirected himself when he said: "The injuries sustained by the complainant are immaterial..." I am satisfied however that the sentence was uttered in the context of the magistrate's consideration of the evidence regarding where or not an "assault" had occurred and, in that regard, does not amount to a misdirection.

Of greater concern however is the trial magistrate's unfortunate predilection for generalizations, an example of which, is to be found in the third last paragraph of his judgment where he says:

"The amount (?) assaulted by the accused may not have left any visible injury but it has caused bodily harm - as any assault would."

That was a wholly improper assumption to make in the context of the charge being considered and on its own would have been a serous misdirection

In the very next paragraph of his judgment however the trial magistrate ameliorates the effect of that statement when he says:

"The accused may or may not be responsible for all the injuries sustained by the complainant but the evidence before the court (i.e. that the complainant fell down onto the ground as a direct result of being assaulted by the appellant) proves that he assaulted the complainant and caused him actual bodily harm (consistent with a fall)."

In my view there was evidence which if accepted by the trial magistrate (as it was) would have been sufficient to sustain the inference that the appellant falling and injuring himself..."was something that could reasonably have been foreseen as the consequence of ..." striking him on the back of the head.

This final ground accordingly fails and the appeal against conviction is dismissed. The appeal against the sentence is also formally dismissed as it was not pursued.

(D.V. Fatiaki)

JUDGE

At Labasa
22^nd May, 1996