Mr Haroon Alon Ali Shah for the Appellant
Mr I. Wikramanayake for the Respondent
Date of Hearing: 11th May, 1993
Date of Delivery of Judgment: 21st May, 1993
JUDGMENT OF THE COURT
On 21 October 1992 the Appellant was convicted of unlawfully wounding one Shalendra Kumar on 23 March 1992 and was sentenced to 12
months imprisonment. He appeals against that conviction and sentence.
In sentencing the appellant the learned trial Judge, Honourable Mr Justice S.N. Sadal summarised the facts as follows:-
"There is no doubt there was bitter animosity between the accused and the complainant. The complainant was the driver of the
bus and he was attacked when he stopped his bus to pick passengers. The attack was in full view of the passengers. A cane knife was
used. Accused was angered because complainant had sworn at his wife and made obscene gestures to her."
At the trial the accused was indicted under s.224 of the Penal Code 17. on a charge that "with intent to do some grievous harm, unlawfully wounded Kumar."
Some of the unusual factors occasioned by this incident and change are these:-
(a) When first interviewed by the police officer he gave some details of the insult to him and his wife by Kumar, and admitted that
he "hit" Kumar with a knife and according to the interviewing officer, also used the expressed that the "chopped"
Kumar's hand. No further elucidation of the "chop" or "hit" (if these were the expressions he used) was attempted.
(b) Medical evidence at the trial was to the effect that Kumar suffered a cut between the thumb and index finger involving some bone
injury and also a cut to the wrist, all of which could have been caused by Kumar holding the blade of the knife. He was discharged
from hospital on the following day.
(c) Although the "attack was in full view of the bus passengers" no other witnesses to the incident, other than the injured
man gave evidence for the prosecution.
(d) The injured man admitted in evidence that he "held the blade" at one stage.
(e) The accused gave evidence of "bad blood" between him and Kumar and that just prior to the incident Kumar made obscene
insulting and provoking gestures and statements to him; that Kumar "held the Knife" - "we both pulled" "Kumar
got the cut." The accused further swore that he did not strike Kumar with the knife and that after the incident, he (the accused)
reported to the police.
(f) The only questions in cross examination of the accused elicited this response "I took cane knife for harvesting. I took knife
to frighten him."
On that evidence one would not have been surprised if a jury or assessors or a judge properly directing himself on the appropriate
law and particularly the criminal standard of proof, had found the accused not guilty of the offence charge (s 224) and of the so
called alternative offence of unlawful wounding (s 230).
Counsel for the defence addressed on both possible offences (in accordance with the learned judge's summing up) and argued strongly
for verdicts of not guilty.
Counsel for the prosecution did not address.
After a short retirement the record shows that the assessors unanimously gave their opinion that the accused was not guilty of the
offence charged, namely with intent to do some grievous harm, unlawfully wounding Kumar but was guilty of unlawful wounding.
The learned judge "entirely concurred" with the verdict as recorded, convicted the accused and sentence him to 12 months
imprisonment.
The appellant's notice of appeal against conviction raised the question whether an accused on a charge such as the present may be
found guilty of the lesser or "minor" offence of unlawful wounding, are of the necessary constituents of the offence charged,
when that lesser charge was not formally made in the indictment or by calling upon the accused at the trial to answer the charge.
In view we take of this case it is unnecessary for us to decide this question. Which could well be covered by S 169 of the Criminal Procedure Code. It should be observed that counsel for the defence and the learned judge both proceeded upon the basis that s 230 governed this
issue. What is the appropriate nature of the directions to the assessors and the method of seeking their opinions. In such a case
can if necessary be left for another time. It seems to us that there is a quite simple logical course.
It is necessary however to advert to additional material which came before this Court by agreement between the State and the accused.
It now appears that on their return the assessors gave their opinion that the accused was not guilty. There was then an exchange
between them and the trial judge as to the accused's guilt or otherwise of the "alternative" charge of unlawful wounding.
It is suggested to us that the judge was quite forceful in seeking a view from the assessors who may well have been overborne into
thinking that he expected a verdict of guilty of unlawful wounding. If so, he achieved that result, the assessors concurring.
The conclusion above rightly or wrongly, inferred concerning the learned trial judge's opinion, accords with his summing up on the
alternative charge. After fairly summarising the evidence given in the trial he said "All you must be satisfied with is that
the attack with the cane knife was unlawful and injuries resulting amounted to wounds. I suspect that there can't be much room for
doubt on either score."
A reading of the summing up does not leave one with the feeling that the trial judge, sufficiently or at all "put" the defence
case to the assessors on the question of the unlawfulness of the accused's actions and of the wounding.
It seems to use that a possible conclusion is that he was satisfied the accused was guilty of "unlawful wounding" and prevailed
on the assessors to agree.
In the circumstances of an other wise weak case for the prosecution, we are of the opinion that it would be unsafe to allow the verdict
of guilty to stand.
The appeal is allowed. The accused is discharged. There should be no new trial.
Mr Justice Michael M. Helsham
President, Fiji Court of Appeal
Sir Mari Kapi
Justice of Appeal
Sir Edward Williams
Justice of Appeal
Aau0009j.92s
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