IN THE MAGISTRATES’ COURT
AT BA
CRIMINAL JURISDICTION

Criminal Case No. 529/2020

BETWEEN:	
STATE
PROSECUTION

AND:		
SHOFEED ALI
ACCUSED

Counsel:		WCPL 3443 Vaciseva Marawa for Police Prosecution
			Mr. Sahu Khan for the Accused

Date of Hearing:	8 August & 5 December 2023
Date of NCTA Ruling:	26 April 2024
Date of Judgment:	18 June 2024

JUDGMENT
Introduction

1.	Mr. Shofeed Ali (“the Accused”) is charged with 1 count of Assault Causing Actual Bodily Harm contrary to section 275 of the Crimes Act 2009.  The particulars of the offence are:

Statement of Offence

Assault Causing Actual Bodily Harm: Contrary to Section 275 of the Crimes Act 2009.

Particulars of Offence

Shofeed Ali on the 21st day of September, 2020 at Ba Mission Hospital, Ba in the Western Division assaulted Haider Ali Malik thereby causing her actual bodily harm. 

2.	The Accused entered a plea of Not Guilty on 4 November 2020 with the matter then proceeding to Trial on 8 August and 5 December 2023. Prosecution called 3 witnesses and thereafter concluded its case. The Learned Counsel for the Accused then made an application pursuant to section 178 of the Criminal Procedure Act stating that a case was not sufficiently made out against the Accused to require him to make a defence. Submissions were then filed by the Learned Counsel for the Accused 21 December 2023.

3.	It is imperative to highlight that the recording of Prosecution evidence on 8 August and 5 December 2023 was conducted by this Court’s predecessor. Upon commencing these proceedings on 2 April 2024, this Court informed the Accused of his right under section 139(2) of the Criminal Procedure Act 2009, which allowed the Accused to demand that the witnesses or any of them in this matter be re-summoned and re-heard. After informing the Accused of this right, the Accused informed that he did not wish to exercise the said right. In turn, considering section 139(1) of the Criminal Procedure Act, the Court decided to act on the evidence recorded by its predecessor.

4.	On 26 April 2024, this Court found that a case was made out against the Accused to sufficiently require him to make a defence in respect of the charge. Subsequently on 22 May 2024, the Learned counsel for the Accused informed the Court that the Accused would not be giving evidence and would not be calling any witnesses. The Learned counsel for the Accused also informed that they would rely on the submissions filed at the time the No Case to Answer application had been made.

Burden of Proof

5.	It is imperative to highlight that as a matter of law, the onus or burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no burden on an accused to prove his or her innocence as an accused is presumed to be innocent until proven guilty.

6.	It is for the prosecution to prove the accused’s guilt beyond a reasonable doubt. If there is doubt, so that the court is not sure of the accused’s guilt, or if there be any hesitation in the court’s mind on any of the ingredients or on the evidence led by prosecution, the accused must be found not guilty of the charges and accordingly acquitted.

Elements of the Charge

7.	For a proper analysis of the evidence, it is imperative for the Court to turn its mind to the elements for assault causing actual bodily harm, which are:

i.	the accused
ii.	commits an assault causing actual bodily harm
iii.	to another.

Summary of Evidence

8.	Prosecution called 3 witnesses to prove its case. The Complainant, Haider Ali Malik in his evidence stated that he was doing night shift from 8pm to 8am on 21 September 2020. He attended to a patient, who was presented at Emergency Care and at 7:40am as he was writing his observation notes, Nurse Karshal came and informed that a patient had come in with abdominal pain. As the patient’s vitals were stable, he informed the nurse to place the patient in observation and advise that he was coming.

9.	When the Complainant completed his notes and was going to emergency, the person who assaulted him came out of the observation room and questioned him where he was. This person approached the Complainant and was aggressive and said “you’re not doing your job”. The assault happened outside the Emergency Department. The person grabbed the Complainant’s hand and tried to pull him. The Complainant resisted but this person pulled with such force that the Complainant fell to the ground. 

10.	The Complainant landed on his knees and hands with his face up against the wall and his glasses fell. While the Complainant was on the floor, the person kicked him from the back. The nurse Karshal approached the person to stop him. He sustained injury to both his knees and a bruise on his left arm. The incident was fast probably a few seconds and once the Complainant got up from the floor, he faced the person and said “if your father is very sick, I could see him right now” which he did. 

11.	The Complainant stated that the Accused had the same beard and that his hair was long with the same built and was aggressive. The Complainant was subsequently examined by a doctor and the Medical Report was filled by Doctor Jason with the Complainant’s and the doctor’s signature.

12.	During cross-examination of the Complainant stated that he saw the individual for a few seconds and that the Accused is not the only individual in Ba town with a beard. 

13.	Krishal Kumar (‘Mr. Kumar’) was Prosecution’s second witness. His evidence was that on 21 September 2020 at 7:20am a Naushad Ali came to the Ba Aspen Hospital with a complaint of abdominal pain. Mr. Kumar then stated that he heard an unusual noise at 7:45am about 6-7 meters from him and when he rushed out, he saw the Complainant on the floor and he saw the patient’s relative kicking the Complainant. Mr. Kumar stated that he had seen injuries on the Complainant.

14.	During cross-examination, Mr. Kumar stated that he saw the relative kick the Complainant and told the person to get out of the Hospital premises or he would call the Police.

15.	Doctor Jason Jend (‘Dr. Jason’) testified that he had examined the Complainant on 21 September 2020 due to an allegation that he was assaulted by ‘one male Fiji’ and gave evidence as to his specific medical findings and that the injury was consistent with blunt force to the Complainant’s body. Dr. Jason then tendered the Complainant’s Medical Report which was exhibited as “PEX1”.

Evaluation of Evidence

16.	In evaluating the evidence, the Court must determine the testimonial trustworthiness of the evidence given by the witnesses based on the credibility and reliability of their evidence. In doing that, the Court should consider the promptness/spontaneity, probability/improbability, consistency/inconsistency, contradictions/omissions, interestedness/disinterestedness/bias, the demeanour and deportment in Court and the evidence of corroboration where it is relevant. (vide State v Moroci Criminal Case No. HAC 161 of 2023 (26 April 2024)).

17.	It is also important to note that once this Court found that there was a case made out against the Accused sufficiently requiring him to make a defence, the procedure under section 179 of the Criminal Procedure Act was explained to the Accused. It was also explained to the Accused that he had a right to remain silent. Considering that the Accused chose to remain silent and not call any witnesses, this Court is mindful that no adverse inference can be made against the Accused in this regard.

18.	Turning to the evidence, from the outset, there is evidence from the Complainant that on 21 September 2020, an assault was perpetrated against him in the form of being held by his left arm and then shoved to the ground and being kicked on his back. 

19.	Mr. Kumar’s and the Doctor’s evidence as well as the Medical Report tendered as ‘PEX1’ confirms that due to the said assault, there was a 2cmx2cm bruise noted on the medial aspect of the right knee with there being tenderness on palpitation of the right knee with decreased range of motion at the right knee. There was also a 1cmx1cm abrasion on the anterior aspect of the left knee with there being tenderness on palpitation of the left knee with decreased range of motion. Also, noted was a 2cmx1cm bruise on the digital, medial aspect of the left arm with there being tenderness to palpitation. 

20.	Moreover, the Doctor’s professional opinion is that the patient’s physical findings are consistent with blunt force trauma to the left forearm and bilateral knew of a few hours old.

21.	Thus, the Complainant’s evidence regarding being assaulted as well as Mr. Kumar’s evidence that the Complainant had been assaulted is credible and reliable especially with the evidence of the Doctor who confirmed the same.

22.	The issue that the Court must consider is that of identity. It is the duty of Prosecution to establish the identity of an Accused. In this matter, Prosecution did not lead evidence of identification through the Complainant and Mr. Kumar, the second Prosecution witness. 

23.	The evidence of the Complainant is that someone approached him and was aggressive. This person then grabbed the Complainant’s hand and tried to pull the Complainant. The Complainant resisted but this person pulled with such force that the Complainant fell to the ground. The Complainant even testified that this incident was fast and probably occurred within a few seconds

24.	It is apparent from the above evidence that the observation is one of identification and not recognition. As the observation is one of identification, the guidelines from R v Turnbull [1977] QB 224, most commonly known as the Turnbull Guidelines, are relevant in this instance. The following questions would have better assisted the Court when dealing with identification in such a manner as in this case:

i.	The length of time the accused was observed by the witness;
ii.	The distance the witness was from the accused;
iii.	The state of the light at the time of the observation;
iv.	Was the observation impeded in any way?
v.	Had the witness seen the accused before? If so, how often? If only occasionally, had the witness any special reason for remembering the accused?
vi.	The length of time that elapsed between the original observation and the subsequent identification to the police;
vii.	Was there any material discrepancy between the description given by the witness and the actual appearance of the accused?

25.	There was no relevant evidence before the Court regarding the length of time the Complainant had observed the Accused or from what distance or the nature of lighting the observation (if any) was made by the witness. The assault took place at the Hospital and there was no evidence elicited whether at the time of the assault, if there were many people present or if the room was empty. Further, Prosecution failed to elicit from the Complainant whether his observation of the Accused had been hindered in anyway.

26.	Further, no questions were asked to confirm whether the Complainant had seen the Accused previously and the length of time that had elapsed from observation at the time of the assault to the time to the time the matter was reported and the Accused arrested.

27.	Furthermore, the second Prosecution witness, Mr. Kumar was never asked any of the above questions to allow Prosecution to elicit such relevant evidence.

28.	In assessing the Complainant’s and Mr. Kumar’s evidence, regarding the identity of the Accused, it is apparent that they were being truthful with respect to their observation of the Accused, however, Prosecution failed to elicit the necessary and required evidence to allow the Court to consider the same.

29.	Thus, little weight is given by the Court regarding the identification of the Accused which is, therefore, insufficient evidence that it was the Accused who assaulted and committed bodily harm to the Complainant.

Determination

30.	I find that Prosecution has not discharged its burden in proving all the elements of the offence of Assault causing Actual Bodily Harm beyond reasonable doubt.

31.	I, therefore, find the Accused, Shofeed Ali, not guilty as charged and hereby acquit him forthwith.

32.	Any party aggrieved with the Court’s decision has 28 days to appeal.

N. Mishra
Resident Magistrate