State v Narayan [2013] FJMC 65; Nasinu M.C. Criminal Case 671.2011 (5 February 2013)

IN THE MAGISTRATES COURT AT NASINU
(Under Extended Jurisdiction of High Court of Suva)
High Court Case No: 199/2011

Nasinu M.C. Criminal Case No. 671/2011

STATE

-v-

DEO NARAYAN

Police Constable Mr. Ravi Narayan for the prosecution
Mr. Avinesh Reddy for the Accused

Judgment

01] The accused is charge with an indictable offence. The High Court transferred this matter to this court under extended jurisdiction. The Charge is as follows;

CHARGE:

Statement of Offence [a]

ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary to Section 255 (b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

DEO NARAYAN on the 8th day of May 2011, at Nasinu in the Central Division unlawfully striked a wheel brace on the said Krishna.

2] The accused pleaded not guilty to the charge and the hearing was done on 12th November 2012. The prosecution closed 3 witnesses to prove their case.

Summary of evidence

3] PW1 Krishna: In his evidence he said that he was a sign writer and he had a work in Rb Patel, centre point on that particular day, 08th May 2011. He finished it around11am. Then he returned to his home. He said that when he returned there was taxi in his drive way blocking the entrance. Then, the taxi driver moved the vehicle and called him. The witness went left side of the taxi and asked “What’s wrong”. The Victim said he knew the driver; he was Deo Narayan and also kkown as “Zulfi”. When the victim reached the taxi, the accused was sitting at the driver’s seat. The accused then took out the wheel brace. The victim ran to save his life. The victim ran towards 7 metres then the accused called him again. When he turned the accused hit his forehead with the wheel brace. The victim told to the court” “as soon as I turned he assaulted me on my forehead with the wheel brace, It hold onto my forehead, I fainted. There was also blackout. He also assaulted on my ribs 3 times. When I shouted neighbor Joe came running towards me”. The victim was taken to hospital by his son and the victim reported this matter to the Police. The medical was tendered as Ex-1.

4] In cross examination the PW1 said he knew the accused prior to this incident. They did not have any confrontation and the accused was one of his customers. The witness said it was not a common drive way only victim and his customers were using it. The victim said when he tried to turn then he was hit. He did not grab the wheel brace but he tried to grab it, but it was unsuccessful as he was in the slope. This was happened face to face. The defence suggested there was nothing mentioned regarding rib injuries but the witness said that he mentioned it to the doctor. The witness admitted he was ex police officer but he is not a heavy drinker and he was not drunk. The defence suggested that the witness were drunk and ordered him to move the vehicle. When he moved the witness grabbed a water bottle and hit the accused twice and, punched him, resulting to act self defence. The witness denied this suggestion. The witness statement was tendered as DEX-1 to show contradictions. The court notes there are minor in nature.

5] PW2 Joave Kunadreu was called by the prosecution. He said that he was in the house on that day. Then, he heard someone shouting asking help. He came out and saw two Indian men were fighting outside. One was Kris and other one was Zulfi. When he ran towards them, he saw the Kris was sitting down and Zulfi was standing in front of him holding the wheel brace. They were speaking in Hindi. He saw blood was coming out from Kris forehead. The accused identified the accused as Zulfi in the open court. He further said that he told Kris to go to the hospital as he was injured and he saw the accused, Zulfi went with wheel brace by his car after the incident.

6] In cross examination the witness said that they were fighting each other. But he said the PW1 Did not attack the accused and he was sitting down. He did not see any attack by the victim. He said he knew both the complainant and the victim and the victim is not a violent person when he gets drunk. Answering to the court the witness said that the meaning of the fighting is that he saw Kris was sitting down and trying to stop Zulfi, Zulfi was standing and holding a wheel brace.

7] PW3 Detective Corporal 2561- Vinod Chand: He said on 08th May 2011 he received a report of assault. He was the investigating officer. He recorded the victim’s and the accused’s statements. Caution Interview tendered as Ex-2.

8] In the cross examination the witness said that he wrote everything that victim told to him. Though he searched he could not find the wheel brace from the accused.

9] Then, the prosecution closed the case since there is case to answer the right of the accused were explained. The accused opted to give sworn evidence.

10] The accused said on that day he was about to go for a shopping and Kris van was parked roadside. Then, Kris stopped his vehicle. He stopped the vehicle thinking that Kris would give him some job. He was sitting down in the taxi; Kris opened the front left door. He swore at him saying mother fucker. The picked up the water bottle beside the hand break and hit him at the back. He then come from driver’s seat side opened the door and hit him chest. The wheel brace was on the side of the pane of door. Then he took the wheel brace and he hit him forehead. Then another Fijian man came and asks not to fight. He said that “I was doing in self defence”.

11] In cross examination the accused said Kris hit with by his water bottle. He hit me above the arm pit. He came around and pulled him out. As soon as he snatched his collar he took the wheel brace and hit Kris. The accused admitted the victim came with empty hand and there was immediate threat for him.

Law and analysis

12] The Penal Section 255 of the crime decree says;

“255. A person commits an indictable offence if he or she, with intent to maim, disfigure or disable any person, or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person—

(a) unlawfully wounds or does any grievous harm to any person by any means; or

(b) unlawfully attempts in any manner to strike any person with any kind of projectile or with a spear, sword, knife, or other dangerous or offensive weapon; or

(c) unlawfully causes any explosive substance to explode; or

(d) sends or delivers any explosive substance or other dangerous or noxious thing to any person; or

(e) causes any such substance or thing to be taken or received by any person; or

(f) puts any corrosive fluid or any destructive or explosive substance in any place; or

(g) unlawfully casts or throws any such fluid or substance at or upon any person, or otherwise applies any such fluid or substance to the person of any person.

Penalty — Imprisonment for life.”

13] The accused was charged under 255(b) and ingredients of the charge are as follows;

a) A person

b) To do some grievous harm

c) To any person

d) Unlawfully attempts in any manner to strike any person with any kind of projectile or with a spear, sword, knife, or other dangerous or offensive weapon

14] The burden of proof is always lies on the prosecution in a criminal case. In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

15] In Miller v Minister of Pensions [1947] 2 All ER 372 Lord Denning stressed:

“That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it permitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence “Of course it is possible but not in the least probable”, the case is proved beyond reasonable doubt; nothing short will suffice.”

16] In this case the accused admitted the assaulting and wounding of the victim. But he claims that he acted upon self defence. The self defence is complete defence in our criminal law. It exonerates the criminal responsibility under section 42 of the Crimes Decree 2009. It says;

42.—(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self defence.

(2) A person carries out conduct in self defence if and only if he or she believes the conduct is necessary:

(a) to defend himself or herself or another person; or

(b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or

(c) to protect property from unlawful appropriation, destruction, damage or interference; or

(d) to prevent criminal trespass to any land or premises; or

(e) to remove from any land or premises a person who is committing criminal trespass —

and the conduct is a reasonable response in the circumstances as he or she perceives them.

17] The general common law principle for self defence is stated in Beckford v R [1987] UKPC 1; (1988) 1 AC 130:

"A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. It must be reasonable."

18] In R v Owino [2002] UKHL 5; (1996) 2 Cr. App. R. 128 at 134:

"A person may use such force as is [objectively] reasonable in the circumstances as he [subjectively] believes them to be."

19] In Palmer v The Queen [1970] UKPC 2; [1971] AC 814, in 831-832:

"The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable grounds that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal."

20] Lord Morris in Palmer v. R. (supra), articulated;

""The defense of self-defense is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. ...Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. ...It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have [to] avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defense... If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."

21] In Zecevic v Director of Public Prosecutions [1987] HCA 26; (1987) 162 CLR 645. The Court described;

"A killing which is done in self-defence is done with justification or excuse and is not unlawful, though it be done with intent to kill or do grievous bodily harm. However, a person who kills with the intention of killing or of doing serious bodily harm can hardly believe on reasonable grounds that it is necessary to do so in order to defend himself unless he perceives a threat which calls for that response. A threat does not ordinarily call for that response unless it causes a reasonable apprehension on the part of that person of death or serious bodily harm. If the response of an accused goes beyond what he believed to be necessary to defend himself or if there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself, then the occasion will not have been one which would support a plea of self-defence" (at 661-662)( Emphasis added]

22] In R v Conlon (1993) 69 A Crim R 92, at 99, the Court Held;

"where self-defence is an issue, account must be taken of the personal characteristics of the accused which might affect his appreciation of the gravity of the threat which he faced and as to the reasonableness of his or her response to the threat"

23] In line with the above principle I consider the evidence of instant case. The Accused admits the incident. The Ex-1 is the medical. It says "open laceration parietal scalp rewiring 7 stitches, painful backache". It is seen the blow was heavy and hard .It caused grievous harm to the victim. The question is whether the act of the accused can be covered by the self defence. The accused said that there was a fight. The independent witness Joave said the fight that he meant was as follows;

The Court: Question: What do you mean by fighting each other? Answer: I saw Krish was sitting down and trying to stop Zulfi; Zulfi was standing with holding wheel brace".

24] The victim was not sitting down near to the accused vehicle. The accused said that when his collar was snatched he hit the victim. The accused was sitting on the driver's seat. If that is the case the victim would have been fallen close to the accused's vehicle. But this was not transpired in the evidence. The wheel brace was readily available for this assault and it shows the assault was premeditated. The accused in the cross examination said that the victim swore at him and assaulted him by plastic water bottle. After that the victim came around and grabbed his collar. The accused was waiting him to be hit. If this story was true yet this act was not serious and cannot be treated as on the part of the accused person's death or serious bodily harm. The response of the accused for this grab had gone beyond what he believed to be necessary to defend himself and there were no reasonable grounds for a belief on his part that the response was necessary in defence of himself. Therefore plea of self defence is not avail for this incident. Ex-2 is the accused's caution interview and it had given after 3 weeks from the incident. There was chance for concoction. It has no value. The victim version was given promptly and the court held that is reliable than the accused's story.

25] I therefore reject the accused's evidence and accept the prosecution version. The prosecution has proved its case beyond reasonable doubt. I convict the accused as charged.

26] I now call mitigation from the accused (if any) before sentencing.

On 05th February 2013, at Nasinu, Fiji Islands,

Sumudu Premachandra
Resident Magistrate-Nasinu