Singh v Reginam [1978] FJSC 9; Criminal Appeal 136 of 1977 (10 March 1978)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 136 OF 1977

HARBANS SINGH
s/o Ganga Singh
Appellant

v.

REGINAM
Respondent

JUDGMENT

The appellant was on the 12th October, 1977 convicted of an act intended to cause grievous harm contrary to section 255(a) of the Penal Code. He was sentenced to 12 months' imprisonment and appeals against conviction and sentence.

Counsel for the Crown advised the Court that on the instructions of the Director of Public Prosecutions the Crown could not support the conviction and requested that the appellant be discharged.

I acceded to this request as on my perusal of the record a new trial would have been ordered in any event. The conviction and sentence was set aside and the appellant was discharged. I intimated I would give written reasons for so doing.

At the trial in the Magistrates Court the prosecution under section 184A of the Criminal Procedure Code tendered a medical report. The medical report is a most unsatisfactory report virtually unreadable. In particular the portion of the report which expresses the opinion of the medical officer as to the cause of the stated injuries contains one handwritten word which is quite illegible. On the file is what purports to be a copy of the original report which is clearly a copy of a copy of the report. In that copy the word appears as "blunt".

As the complainant was alleged to have been struck several times with a cane knife, the report which states the injuries were "caused by ‘blunt’" is of no assistance whatsoever. The prosecution should have noticed the unsatisfactory condition of the report and ensured that the medical officer was called to give evidence. Quite clearly the prosecution in preparing the case paid little if any attention to the contents of the report.

The prosecution's failure was however compounded by the learned trial Magistrate who would appear not to have properly considered the medical report although he states his judgment "P.W.1 received injuries as stated in the medical report". He found as a fact that "First blow struck P.W.1 on the palm. Next blow struck P.W.1 on the upper arm and the third one over his shoulder".

Had the trial Magistrate perused the medical report he would have found that the appellant when examined by the medical officer had the following injuries:

"Lacerated wound left hand ring finger 2 cm. long cm. ¼ cm. deep.

small finger 1 cm. x 1cm. length.

abrasion 5 cm. long skin deep."

The complainant when giving evidence displayed a scar on his left palm, a scar on his upper left arm and a 5" long scar near his left shoulder all allegedly caused by the appellant striking him several blows with a cane knife. None of the injuries which resulted in the scars are referred to in the medical report.

The medical officer was careless in the preparation of his report but this did not excuse the lack of proper preparation of the case by the prosecution.

Had the trial Magistrate properly considered the evidence before him he could not have failed to notice that the medical report which indicated only very minor injuries did not support the testimony of the complainant who complained of receiving much more serious injuries one leaving a 5" scar near his shoulder.

In the instant case the trial Magistrate clearly did not properly and carefully scrutinise the evidence before him and this was inconsistent with his duty as a trial Magistrate. Had the Director of Public Prosecutions not indicated that the Crown did not support the conviction I would in any event have had no option but to order a new trial.

R.G. Kermode
JUDGE

Suva,
10th March, 1978.