Tuidaviko v Reginam [1977] FJSC 52; Criminal Appeal 074 of 1977 (9 September 1977)

Fiji Islands - Tuidaviko v Reginam - Pacific Law Materials

IN THE SUPREME COURT OF FIJI

APPELLATE JURISDICTION

CRIMINAL APPEAL No. 74 of 1977

Appellant

v

REGINAM
Respondent

ENT

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The appellantllant, with three others, was charged with with disorderly behaviour in a public place contrary to section 4 of the Offences Act, 1971 and with assaulting a police officer iner in due execution of his duty contrary to section 279(b) of the Penal Code. After a lengthy trial they were all convicted of these two offences and sentenced to one months' imprisonment on the first count and 12 months' imprisonment on the second count, the sentences to be served concurrently. The appellant alone appeals against these convictions.

On the night of 8^th-9th October 1976 Sgt. Pillay and Constable Vilitate were on patrol duty in Raiwaqa area. At about 3.30 a.m. they saw four grown men pursuing some boys and tried to stop them. The men turned upon the policemen and started punching them. Vilitate fell and was kicked. His jaw was broken. Pillay received serious injuries to his arms and ribs. Both required medical treatment for several weeks before they were able to resume duty. According to the prosecution evidence, Vilitate tried to ward off the assault on him by swinging his truncheon and caught the appellant on the face. The appellant was later admitted to the Suva Hospital where one of his eyes had to be removed.

The appellant at the trial denied that he had taken any part in any assault. He admitted he and the other accused had chased some youths but said that a crowd of people near a bus stop had started throwing stones at them and he had run away home. It was outside his flat, according to him that the police had caught up with him and started beating him up. One of them struck him in the face with a truncheon and he lost consciousness.

The learned Magistrate had no hesitation in rejecting the appellant's evidence.

With regard to the prosecution evidence, he said:

" So far as the second charge is concerned there is no material difference between the evidence of any of the 3 prosecution witnesses who were present at the scene.

1 PW said that he saw 2 PW apprehend one of the fleeing youths. Then when the 4 accused reached him, instead of helping with the apprehension of the fleeing youth, they immediately set upon 2 PW knocking him to the ground punching and kicking him.

2 PW confirmed how he apprehended the youth and said that he was initially knocked to the ground by the Accused 1 and then kicked by him fracturing his jaw. Then whilst he was on the ground he was kicked by Accused 2, 3 and 4. He admitted that in self defence he hit Accused 1 very hard on the head with his truncheon.

3 PW corroborated the evidence of the previous two witnesses. So far I have only dealt with the evidence, so far as it relates to the alleged assault upon the 2 PW on the foot path.

If I accept that these 3 prosecution witnesses are. telling the truth then I next have to be satisfied that the circumstances, in which the alleged assault took place are conducive to accurate identification. These witnesses all said that the street lights were on, 1 PW and 3 PW were nearby the scene, of the alleged assault, 2 PW was the one assaulted and in immediate contact with the persons, whom it is alleged assaulted him and according to these witnesses the night was not dark. I have no hesitation in finding that, at this particular point in time, the conditions for accurate identification existed and the 3 Prosecution witnesses were telling the unembellished truth. Accordingly, bearing in mind the earlier finding of fact, I find that the prosecution have proved count 2 beyond reasonable doubt and the 4 accused will all be convicted as charged."

I can find nothing in this assessment of the prosecution evidence which will justify interfering with the learned Magistrate’s finding.

The appeal against conviction is dismissed.

The appellant does not appeal against sentences which, in any case, are anything but excessive in view of the circumstances of the case. The learned Magistrate treated the appellant as the leading participant in the assault on the Police officers, and he did take into account the injury suffered by him during the assault.

G. Mishra
ACTING CHIEF JUSTICE

Suva,
9th September, 1977