Rattan v Reginam [1970] FijiLawRp 17; [1970] 16 FLR 109 (27 July 1970)

[1970] 16 FLR 109

COURT OF APPEAL

Criminal Jurisdiction

SHIU RATTAN

v

REGINAM

Gould V.P., Narsack J.A., Tompkins J.A.

21st, 27th July, 1970

Criminal law — evidence and proof — need for close scrutiny of the evidence of the depending almost entirely upon assessment of credibility — position of Court of Appeal.

Appeal — criminal appeal — conviction based almost entirely upon Supreme Court's assessment of credibility of main witnesses — assessors properly directed — no interference by Court of Appeal.

One of the two main witnesses against the appellant at his trial in the Supreme Court on a charge of arson had been sentenced to six years' imprisonment for manslaughter and there was a long history of personal antagonism between him and the appellant. The second main witness was related to the first and was his partner in business. Both Counsel in their addresses, and the trial Judge in summing up, dealt with the need for close scrutiny of the evidence of these two witnesses arising from these factors. The assessors were unanimously of opinion that the appellant was guilty, and he was convicted.

Held: Though there were some unsatisfactory features about the evidence for the prosecution, the findings of fact in the Supreme Court depended almost entirely upon the credibility of the witnesses, and, the assessors having been properly directed, the Court of Appeal was not entitle to come to a different conclusion.

Case referred to:

Benmax v Austin Motor Co. Ltd. [1955] AC 370; [1955] 1 All ER 326.

Appeal against conviction and sentence by the Supreme Court.

M. S. Sahu Khan for the appellant.

J. R. Reddy for the respondent.

The facts sufficiently appear from the judgment of the Court.

Judgment of the Court: (read by MARSACK J.A.) [27th July, 1970]

This is an appeal against conviction of the offence of arson entered at the Supreme Court sitting at Lautoka on the 25th March, 1970, and also against sentence of 3 year 'imprisonment imposed upon that conviction. The trial took place before a Judge and three assessors. The assessors were unanimously of opinion the appellant was guilty of arson as charged. The learned trial Judge agreed with this opinion and entered a conviction accordingly.

Lengthy grounds of appeal were set out in the notice of appeal, but at the hearing Counsel for appellant indicated that he proposed to argue two grounds only. These were expressed in the following terms:—

"5. That the verdict and findings of the learned trial Judge and the assessors are unreasonable and cannot be supported having regard to the evidence.
6. That the evidence of the prosecution witnesses were so unreliable that they should have been disregarded."

These were argued together.

The evidence for the prosecution consisted largely of that given by two witnesses, Ram Lal and Ram Sundar; and it is the evidence of these two witnesses which Counsel contends was so unreliable that no conviction should have been founded on it. It was established that there was a long history of personal antagonism between Ram Lal and appellant; and Ram Lal's character was attacked at the trial in that he had been convicted of manslaughter and sentenced to 6 years' imprisonment for that offence. Ram Sundar is related to Ram Lal and is also his partner in business.

Counsel contended very strongly that the background of these two witnesses was such that their evidence would be strongly biased against appellant; and he pointed out a number of inconsistencies, and of what he submitted were inconsistencies, in their evidence. For these reasons he submitted that the learned trial Judge erred in accepting their evidence and basing a conviction upon it.

It is clear that the appeal turns solely upon the credibility of these two witnesses. In view of their personal history it was essentia that their evidence should be submitted to the closest scrutiny and should not be accepted unless, after all those factors had been taken into consideration, the learned trial Judge and the assessors found that it was worthy of belief.

At the trial Counsel for the accused emphasised the necessity for the assessors to take fully into consideration the past history of the two witnesses and their relations with the accused. Counsel for the prosecution very fairly stated to the assessors that the evidence in this case called for the closest scrutiny and critical examination. In the course of his summing up the learned trial Judge said:—

"It is absolutely essential that you should keep in mind at all times the following matters:—

• (1) the history of between the complainant and the accused,
• (2) the complainant's own character and background,
• (3) the relationship of Ram Sundar and the complainant who are not only related but who were operating a vegetable business in partnership,"

and further:—

• "For these reasons it is your duty to subject the evidence of these two prosecution witnesses namely, Rain Lal and Ram Sundar, to the closest scrutiny. You must critically examine the prosecution's evidence bearing in mind the fallibility of human observations and the propensity of persons who have enmity or ill-will to exaggerate and even to fabricate."

No exception was taken to the summing up by the learned trial Judge, and we are satisfied that his directions were as fair to appellant as they could have been. He also directed himself to the same effect.

It cannot then be said that either the learned trial Judge or the assessors were left in any doubt as to the tests they should apply to the evidence of Rani Lal and Ram Sundar. After the most careful direction they found that the evidence of these two witnesses was to be believed, and the Court held accordingly.

Although it appears to this Court that there are some unsatisfactory features about the evidence for the prosecution—and these were strongly emphasised by Counsel for appellant at the hearing of the appeal—that fact in itself would not in our opinion be sufficient to justify us in coming to a different conclusion on the facts from that in the Court below. As was said by Viscount Simonds in Benmax v Austin Motor Co. Ltd. [1955] 1 All ER 326 at p. 327 after referring to the power of the Court of Appeal to draw inferences of fact:—