Ram v Reginam [1977] FJSC 179; Criminal Appeal 34 of 1977 (4 August 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
APPELLATE JURISDICTION

Criminal Appeal No. 34 of 1977

BETWEEN:

1. SHANI RAM
s/o Ram Pal
2. ARUN KUMAR
s/o Ram Pal
3. ARJI RAM
s/o Ram Pal
Appellants

AND:

REGINAM
Respondent

Dr. M.S. Sahu Khan for the first and second Appellants
Mr. G.P. Shankar for the third Appellant
Mr. D. Williams for the Respondent

JUDGMENT

This is an appeal against conviction by three men who were charge at Ba Magistrates' Court with cattle stealing. One of the accused was a boy of fifteen years and he was placed on probation, and the other two accused were each sentenced to eighteen months imprisonment. In the Magistrates' Court all the accused were represented by counsel but in this court they were represented by different counsel. There are seven grounds of appeal, and they all relate to the evidence given by Jagannath f/n Ladhu Ram, who said that he knew the three accused and that there was no enmity between him and the accused. He said that on 11th October 1975 he saw the three accused take two bullocks from near a truck which was loading cattle two or three chains distant from their house and lead them to an isolated place some distance away. He turned binoculars on them and later took the police to where he had seen the bullocks taken. He identified the three accused as the persons he had seen taking the cattle away.

One of the points which arose from Jagannath's evidence was that in the course of it he stated that there was no enmity between himself and the accused. He said the accused were the sons of his brother-in-law, and although he appears to have been cross-examined on this subject no suggestion was made that he had on a previous occasion given evidence against one of the accused, Arji Ram, in a horse stealing case some years previously. The hearing extended over two days and Jagannath gave evidence on the first day. The second day's hearing was two days later, and at that stage, the two accused of full age and their father all gave evidence that Jagannath gave evidence against Arji Ram. On the part of Shani Ram it was hearsay because he admitted that he was not there, but Arji Ram and his father both swore that Jagannath had given evidence against Arji Ram. Now, that sort of evidence is very little value and if he had wanted to clear the matter up, the accused's solicitor could have produced the record. What he did do was to allow the Magistrate to read from the record of the previous proceedings and the Magistrate found that Jagannath had not been called and told the accused's solicitor and the accused's solicitor accepted that fact. Of course that does not entitle the Magistrate to accept evidence in this way, and evidence which is clearly hearsay and there is no legislative authority in Fiji enabling such evidence to be admitted even with the consent of counsel. So that the trial must be accounted unsatisfactory in that respect.

The next point arises directly from that when the learnt Magistrate came to write his judgment he said, in dealing with the question of the previous evidence Jagannath is said to have given, "I have heard no evidence that would satisfy me that Jagannath might deliberately perjure himself to have Ram Pal's sons (the accused) imprisoned". It is said that this placed a burden of proof upon the accused. I do not think that it does. It is another - perhaps a more emphatic way of saying that the Magistrate has heard nothing to show him that Jagannath's evidence was other than reliable. I would also mention that the form in which this particular ground of appeal was coached does not give the prosecution or the Court see any idea at all of the real ground of appeal.

Then Dr. Sahu Khan submits that the prosecution should have recalled Jagannath when it was suggested that he had not been fully cross-examined because the defence solicitor had not been adequately instructed on the previous case against Arji Ram. I would add that the petition of appeal put this rather differently. There it was stated that the Court should have acceded to the defence offer that the prosecution recall Jagannath. There was no such offer. There may have been a request on the part of the defence and if there was, and there is nothing in the record as Dr. Sahu Khan indeed concedes, then it was properly rejected. Once a witness has been examined and cross-examined, it must be rare that he should be recalled at a further hearing for further cross-examination.

The defence also complained that Jagannath's identification was insufficient and that his evidence should not have been accepted without corroboration. The learned magistrate bore in mind all that was said against Jagannath but he accepted that Jagannath did see and recognize the three accused driving the bullocks away from near Ram Pal's house towards the Vatukoula Airstrip. It is true that Jagannath saw them only through binoculars, but the Magistrate nevertheless accepted his evidence. On the question of corroboration there is the evidence of Netram and Raghubar Singh both of whom testified that they met the three accused returning on horseback about five or six chains before the place from where the stolen bullocks were seen. I think that the Magistrate properly regards that evidence as corroboration of Jagannath's evidence. Then it is said that Jagannath exaggerated his evidence. That may be, but it is a matter primarily for the learnt magistrate and here he took into account all that was said against Jagannath's evidence and decided that it was evidence which should be accepted. I think that I should mention here the affidavit sworn by Mr. Sapt Rishi Shankar and Inspector Krishna Gounder the prosecuting officer. Mr. Shankar defended the accused in the Magistrate's court and he has sworn an affidavit to the effect that the magistrate made a comment after the completion of Jagannath's evidence that he would not act on Jagannath's evidence without corroboration. The Prosecuting Officer's recollection is that the Magistrate expressed the view that Jagannath's evidence required some supporting evidence. While I think it would perhaps have been better if the learnt Magistrate HAD refrained from expressing any opinion at all at that stage of the evidence, I cannot see that the defence was in any way prejudiced, for after Jagannath's evidence, there was the corroboration evidence of Netram and Mr. Shankar apparently felt it necessary to call two of the accused and their father. It may very well be that the defence evidence led the Magistrate to place much greater reliance on Jagannath's evidence then he would otherwise have done.

Finally the appellants say that the learned Magistrate attached too much importance to what he regarded as the accused's lies. Counsel referred me on this point to R v Gibbons (1973) 1 NZLR 376. The decision in that case of course, is based upon Broadhurst v The Queen (1964) 1 AER 111, a decision of the Privy Council, where Lord Delvin pointed out that even when an accused person tells lies, the burden still remains upon the prosecution to prove the guilt of the accused. He then goes on:

"But if upon the proved facts, two inferences may be drawn about the accused's conduct or state of mind, his untruthfulness is a facto which a jury can properly take into account as strengthening the inference of guilt."

Dr. Sahu Khan submitted that the learnt Magistrate must resolve the inconsistency between the stories told by the two accused to the police and to the court. I think he has done so by stating that he is satisfied that Netram and Raghubar Singh met the three accused coming towards them on horseback 5 or 6 chains before the place where the stolen bullocks were. The learned Magistrate was not impressed by the two accused who gave evidence, and in my view he properly took into account their untruthfulness to strengthen the inference of guilt.

The question then is, what is to be the result of the admission of hearsay evidence concerning Jagannath's evidence in the previous trial. I think that in this connection I must take note of two conclusions drawn by the learnt magistrate from the allegations of enmity made against Jagannath by the accused and their father. The first is his statement that the dispute was not so serious as to prevent each party harvesting the other's cane in 1975. Shani Ram in evidence said that the gang cut cane on both their farms, that he as his father's representative cut cane in Jagannath's land and Jagannath's representative cut cane in Rampal's land. The evidence assumes knowledge that the gang contains representatives of a number of growers, each interested in getting all the cane cut. I do not think that the inference that each harvested the other's land is a fair inference. The cane of each was cut by the gang of which both were members. Then the learned Magistrate said that Rampal admitted that prior to the cattle theft case he did discuss business matters with Jagannath. I think that also is incorrect. The only evidence given by Rampal is that Jagannath did sometimes talk at gang meetings but did not talk to Rampal's children. I do not think that it can properly be said that the two of them were able to discuss business matters. These two factual mistakes leave me in some doubt as to whether the learned Magistrate in weighing Jagannath's evidence was not influence by the hearsay evidence which he allowed to be introduced, and that being so I think that this appeal must succeed and the accused must be acquitted.

(SGD.) K.A. STUART
JUDGE

LAUTOKA,
4th August, 1977.