Jeet v Reginam [1979] FJSC 30; Criminal Appeal No. 28 OF 1979 (13 June 1979)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA
Appellate Jurisdiction

Criminal Appeal No. 28 of 1979

BETWEEN

SHYAM JEET s/o Ram Lakhan
Appellant

AND

REGINAM
Respondent

Mr. S.R. Shankar, Counsel for the Appellant
Mr. Dyfed Willams, Counsel for the Respondent

JUDGMENT

The appellant was convicted on 27th March, 1979 of assault occasioning actual bodily harm contrary to Section 877 of the P.C. His wife was the victim of the assault and the hearing before the magistrate revealed a most unhappy domestic background of quarrels and separation and attendance at the police station following disputes.

The learned magistrate bound the appellant over in the sum of $400 to come up for sentence when called upon during the ensuring 18 months.

The alleged assault occurred on 15th August, 1978 and the wife's evidence is that the appellant came home complaining that her father was immoral and always looking for women. She replied that it was his affair and that she was married to the accused. The accused began quarrelling about unwashed dishes. At the time the wife, who is a school teacher was preparing food and tending to her 10 month old child. The quarrel built the appellant attacked her with his fists causing injuries to her lips, ear and face, punched her in the stomach and knocked her to the ground and kicked her in the back.

It appears that this is the appellant's second marriage and he has a daughter of about 16 years who lives with them. According to the wife the daughter appeared on the scene and incited her father to continue the attack.

During cross-examination the wife was questioned about an incident on 21.8.77 when she allegedly assaulted her step-daughter. She denied any such incident but she agreed that about that time the appellant took her back to her parents. They were reconciled about 12.11.77 after several months' separation.

A doctor called by the prosecution said that the wife's injuries could have been caused by a blunt instrument including a fist.

It is common ground that the quarrel attracted neighbours and one of them said he saw the appellant holding the wife's arm and hitting at her with his fist.

The appellant completely denied striking his wife at any time. He said that the trouble was started by the wife and that her language was so persistent and foul that he told his daughter to bring the tape recorder, presumably to drown the noise. When the daughter appeared with the tape recorder he says the wife attacked her with a washing stick and the appellant intervened. He caught the blow on his arm and it glanced on to his head; eventually he gained possession of the stick and managed to push his wife outside. It is not surprising that the appellant's daughter supported his testimony.

They both stated that about 21.8.77 the wife had removed her sandal during one quarrel and had struck the daughter on the head with it. That assault was, they say, particularly unpleasant because the daughter had suffered a head injury in a motor accident.

In view of the wife's denial of that incident the defence wished to call independent evidence in support of the appellant's allegation but the learned magistrate refused on the ground that it simply went to credibility and the defence would have to be content with the answers they had received in cross-examination.

In my view it was not an easy question for the magistrate to rule upon.

It is well established that one might put questions to a witness in order to test his credibility but one is bound by the answers given and cannot call evidence to disprove the witness's reply. If that were not so it would be possible to seize upon a number of unconnected incidents which, if denied, could be supported by independent evidence. It would result in numerous trials all remote from the subject matter of the trial proper with the objects of showing, not that the witness is untruthful but that he is capable of telling lies.

In the 4th Edn. of Cross on Evidence at page 232 the learned author refers to the words of Lawrence J. in Harris v. Tippett 1811 2 Camp. 637 regarding answers to collateral questions:

"but when these questions are irrelevant to the issue on the record you cannot call other witness to contradict his answer."

It is not always easy to determine what is relevant to the issue.

In R v. Phillips (1936), 26 Cr. App. Rep., 17, the accused's daughters gave evidence for the prosecution on a charge of incest. They denied that their mother had taught them what to say. The father denied incest or indecency and sought to adduce evidence that the daughters had told third parties that their mother had schooled them. The Judge refused to hear the third parties and ruled that the cross-examination of the daughters simply went to credit and their denials were final. The Court of Appeal in allowing the father's appeal, pointed out that the defence was that the accusations were fabricated and that evidence showing that the daughters had admitted this to other persons was not simply a collateral issue as to credibility but went to the basis of the father's defence.

In the instant case the appellant's defence was that the injuries his wife received arose when he was obliged to act in defence of his daughter whom the wife attacked with a stick. Evidence that the wife assaulted the daughter a year ago is not proof that she had attacked the daughter on this occasion but it tends to show that the wife was not incapable of violent conduct towards members of the family. Had it been an isolated incident in an otherwise fairly normal married life I think it would have been right to reject evidence of it. However, it was an incident in a domestic background of continuing unhappiness in which the wife alleges that the husband often assaulted her. It shows their attitude to one another. The wife is virtually a party to the proceedings and as such her attitude to the other party on the other occasions is, I think relevant.

Had the appellant been seeking to establish that on a very recent occasion the wife had attacked some third party with a stick that would, in my view, have been inadmissible as being in no way connected with the appellant's alleged assault on his wife.

With regard to the wife's credibility the magistrate said towards the end of his judgment.

"By birth this lady has no fingers or palm on her left hand. I have extreme doubt in my mind that she would be a person to pick up a stick to assault the step-daughter in the presence of the accused who is a healthy and strong person."

Had the magistrate admitted the evidence of the earlier attack upon the daughter. I wonder if he would have made the above remark. His approach would depend upon the weight he gave to such evidence. He would not necessarily have to believe it; it would be sufficient if on the evidence overall he was left in some doubt. The difficulties of deciding what may or may not be relevant is illustrated in an article on "similar facts" by E.C. Mc Hugh in the Australian Law Journal, Vol. 22 p. 502 and at 551-57.

For the reasons I have given, I am inclined to the view that the evidence should have been admitted. The appeal is allowed. The appeal is allowed. The conviction and order are quashed.

I do not think this is a case in which a re-trial should be ordered.

(SGD) (J.T. WILLIAMS),
JUDGE.

LAUTOKA,
13th June, 1979.