IN THE HIGH COURT OF FIJI
At Labasa
Appellate Jurisdiction

CRIMINAL APPEAL NO. 9 OF 1990

Between:

TANIELA YAVITA
Appellant

v.

STATE
Respondent

Appellant in Person
Mr. R. Perera for the Respondent

JUDGMENT

On the 19th of February, 1990 the appellant was convicted on his guilty pleas to 2 counts of Act with Intent to Cause Grievous Harm. Upon his conviction the learned trial magistrate sentenced the appellant to prison terms of 12 months and 9 months respectively on each count and ordered that the sentences be served concurrently.

The appellant now appeals against the harshness of the sentences urging several grounds in support.

The facts outlined by the prosecution told of how the appellant after an argument left and returned with an empty broken beer bottle which he used to inflict injuries on both victims.

The court record however without disclosing any details merely records: "facts partly admitted" immediately prior to the appellant's conviction.

Then in mitigation the appellant is recorded as having said:

"I was punched by 2 persons and later 5 persons tried to assault (me) and in the course of the fight (I) had to use a broken bottle."

This was not disputed by the prosecution.

In arguing his appeal the appellant expanded on his mitigation asserting that the complainant's injuries were caused in self-defence and were inflicted on the spur of the moment when he was being attacked by 5 people. he too received injuries in the "attack" as evidenced by his medical report which was placed before the learned trial magistrate.

These assertions were not disputed by learned State Counsel who sought to support the appellant's conviction on the "assumption" that the learned trial magistrate must have formed the view that the appellant's actions exceeded the right to self-defence. That is mere speculation.

In sentencing the appellant the learned trial magistrate accepted that: 

"The attack had occurred during a fight in which the accused too had sustained injuries."

With respect to the learned trial magistrate in the absence of any contradiction of the appellant's mitigation the use of a broken beer bottle in the face of an attack by 5 men, albeit unarmed, does not objectively (on the face of the record) appear to be so excessive as to exclude self-defence.

The former Chief Justice pointedly observed in R. v. Jai Chand 18 FLR 101 at 110 when dealing with excessive force in self-defence:

"In a country where a large proportion of the population are men of extremely powerful physique capable with one blow of a fist of fracturing a person's jaw or of felling him to the ground with such brute force as to fracture his skull, and capable with a bare foot of delivering a kick of such power as to cause a person's death, a proposition that, in defending himself from such an attack a person must confine himself to "fisticuffs" and that if he goes further and uses a deadly weapon resulting in the death of his assailant it is not open to convict of manslaughter in lieu of murder, does not commend itself to me; and I am not persuaded that it is the law in this country."

Additionally it is noteworthy that the appellant in relating the incident to the doctor the following morning stated that he was "...... punched up by 5 men, hit with sticks, (and) kicked. "

In all the circumstances the appellant's conviction cannot be sustained and is accordingly quashed. I have considered whether it would be proper to enter a 'not guilty' plea and order that this matter proceed to trial, but seeing as the appellant has already served 2 months of his sentence, I have reluctantly come to the conclusion that it would be unfair and contrary to the interests of justice to do so.

The appellant is accordingly ordered to be immediately released.

(D.V. Fatiaki)
JUDGE

At Labasa,
4th May, 1990
HAA0009J.90B