Narayan v Reginam [1977] FJSC 28; Criminal Appeal 042 of 1977 (27 May 1977)

Fiji Islands - Narayan v Reginam - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL No.42 of 1977

BETWEp>:

RAM NARAYAN
s/o RAM BARAN

AND:

REGINAM

JUDG/B>

On the 7th April 1977 the appellant wast was convicted after trial by Nausori Magistrates Court of two offences oawfully wounding with intent to cause grievous harm contrary to section 255(a) of the PenalPenal Code and was sentenced to concurrent sentences of three years' imprisonment.

The appellant has appealed against conviction and sentence on the following grounds:

(i) That the learned trial Magistrate misdirected himself in not directing himself adequately on issue of self defence which was substantially raised on the evidence before him.

(ii) That the learned trial Magistrate did not direct himself on the issue of provocation which was sufficiently raised on the totality of the evidence as a whole.

(iii) That the learned trial Magistrate misdirected himself, after properly rejecting the evidence of the principal prosecution witnesses, in holding that there was evidence beyond reasonable doubt supporting a verdict of guilt of the appellant.

(iv) That the verdict is unreasonable and cannot be supported having regard to the weight of the evidence adduced.

(v) That the sentence is harsh and excessive.

As to the first ground, the trial Magistrate in his judgment fully considered the matter of self defence and properly directed himself thereon in the light of the evidence. On his findings of fact the trial Magistrate was fully justified in being satisfied beyond reasonable doubt that in inflicting the injuries which he did the appellant was not acting in his own defence, and. that in so for as his actions constituted an intervention on behalf of his son who was being assaulted by the two complainants the amount of force used by the appellant was utterly unreasonable, and was accompanied by the requisite mens rea.

As to the second ground, it is well established that provocation, while it is a factor to be taken into account in sentence, is not a defence to a charge of causing grievous harm (R. v. Cunningham (1958) 3 All E.R. 711).

At to the third ground, the trial Magistrate did not reject in its entirety the evidence of the principal prosecution witnesses, but believed part of it and disbelieved the rest, giving his reasons for so doing and making it clear what he accepted and what he rejected. This he was entitled to do (per Denman C.J. in Cleve v. Powel [1832] EngR 896; (1832) 174 E.R. 78), and the evidence which he accepted was sufficient to establish the guilt of the appellant beyond reasonable doubt.

As to the fourth ground, the appellant has failed to show that there was no evidence on which the trial Magistrate could reach the conclusion which he did if he properly directed himself. While there were manifest discrepancies in the evidence of the prosecution witnesses, the trial Magistrate quite did not rely upon those portions of the prosecution evidence which were shown to be unreliable, and the evidence which he did accept was adequate to ground the conviction.

The appeal against conviction is accordingly dismissed.

As to sentence, while the trial Magistrate accepted that there was a measure of provocation, I consider that he did not make sufficient allowance in mitigation for its effect on the appellant, who was 62 years old, and that he failed to take into account in his favour that it was the unjustified violence on the part of the complainants in the first instance that led to the serious injuries which they sustained at the hands of the appellant.

In all the circumstances of this particular case, and having regard to the effect of imprisonment on a man of the appellant's age and character, I have come to the conclusion with which the Crown concurs that the sentences imposed are too severe, and I accordingly quash same and substitute therefor concurrent sentences of imprisonment which will allow of his immediate release.

Clifford H. Grant
Chief Justice

Suva,
27^th May 1977.