IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA0060 OF 1994S

BETWEEN:

ANTHONY GERARD PRIDGEON
APPELLANT

AND:

STATE
RESPONDENT

Mr. V. Maharaj for the Appellant
Mr. D. McNaughton for the State

JUDGMENT

The Appellant was convicted in the Suva Magistrate Court of the offence of Common Assault contrary to Section 244 of the Penal Act 17. On conviction he was fined $50.00 in default 50 days imprisonment and he was also ordered to pay $25.00 to the Complainant as compensation.

He now appeals against both conviction and sentence on the following grounds:

1)	That the learned Magistrate erred in law and in fact in rejecting Appellant's Submission of no case to answer.

2)	That the learned Magistrate failed to properly consider whether your Petitioner ought to have been charged at all in light of the fact that the Complainant in entering Petitioner's premises, not only committed offence of trespass but was also in breach of the non molestation Order obtained by the Complainant from the Domestic Court at Suva.

3)	That the learned Magistrate failed to consider and evaluate at all the evidence of witnesses called by your Appellant whereby substantial miscarriage of justice has occurred.

4)	The sentence imposed by the learned Magistrate on your Appellant was harsh and excessive in all the circumstances of the case.

5)	That the learned Magistrate erred in law in his failure to comply with provisions of s.211 of the Criminal Procedure Code whereby the trial has been rendered a nullity.

6)	The learned Magistrate erred in law and in fact in that he failed to properly, or at all, analyse and evaluate the evidence of either the Prosecution or Defence witnesses and further failed to make any findings of fact on which to base his conviction of the Appellant whereby grave miscarriage of justice has occurred to your Appellant.

At the hearing of the appeal Counsel for Appellant argued grounds (1) and (2) and (3) together and also argued grounds (5) and (6) together. Although neither Counsel touched on ground 4 in relation to the sentence being harsh, I will also give my decision regarding the sentence for reasons I will deal with later towards the end of this judgment.

In support of grounds 1, 2 and 3 Mr Maharaj argued that the Magistrate was wrong in not analysing certain legal issues which he ought to have done. He cited the Non-molestation order entered into by consent by both parties on 31-10-90 which reads:-

"Parties at liberty to communicate on business & other private matters by consent and in consultation with each other."

He argued that the Complainant was aware and should not have trespassed onto the compound and into the Appellant's house. She had taken the law into her own hands and ought to be charged with Criminal Trespass. The Magistrate was wrong in his decision that the Court would not have any discussion on any other domestic matter but to confine itself on the charge of Common Assault as the twins, the subject matter of Non-molestation Order, ought to have been returned to the Complainant as their return was long overdue.

Mr Maharaj further argued as the Complainant was in the wrong the Appellant ought not to have been charged and a "Submission of No Case to Answer" should have been upheld and the Appellant acquitted.

Mr McNaughton in reply supported the Ruling of the Magistrate "that there was a case to answer" on the evidence adduced by the prosecution and cited the case of R v. Galbraith (1981) 73 Cr. App. R.124, C.A. as reported in Archbold (1992) Vol. 1 at p.567:-

"Magistrates' Courts

(1) In their summary jurisdiction magistrates are judges both of facts and law. It is therefore submitted that even where at the close of the prosecution case, or later, there is some evidence which, if accepted, would entitle a reasonable tribunal to convict, they nevertheless have the same right as a jury to acquit if they do not accept the evidence, whether because it is conflicting, or has been contradicted or for any other reason. It is submitted that the Practice Note reported in [1962] 1 All E.R. 448 must be read in this light. In any event we know of no authority as to the issue of practice directions in criminal matters relating to questions of law as opposed to practice."

He submitted that the Magistrate was also correct in deciding that the issue of Non-molestation order was not an issue at the trial of the Appellant who was charged with a Criminal offence.

While I could see some merit in the argument of Mr Maharaj. I do not agree with assault on the Complainant by the Appellant.

In my view it is clear on the evidence that both parties have taken the law into their own hands. The Complainant, if she found that Appellant had breached conditions of the Non-molestation order she should have come back to Court to seek redress and refrain from entering the compound. The Appellant on the other hand should not have kept his two children back but returned them to the Complainant in accordance with the order of 26th November 1991. If the Complainant had trespassed into his compound he should have got in touch with the police to take the Complainant away but not to assault her. On the evidence in relation to these 4 grounds I am satisfied that the trial Magistrate who had the benefit to observe the demeanour of all witnesses who testified was in a better position than this Court to decide who to believe and whether prosecution had proved its case beyond all doubt.

In James Baghwan Raman v. R Cr. App. No. 31 of 1983 at page 3 Rooney J had this to say:-

"I have been referred to the recent case of Robert Nicol v. Reginam 1971 (Criminal Appeal 24/83, unreported) which was decided by the learned Chief Justice. That decision reaffirms the well established rule of practice that an appellate court will not interfere with the findings of fact if a trial court based solely or mainly on an assessment of the credibility or reliability of witnesses."

I also do not dissent from that view in this case.

Having carefully considered the evidence I conclude that this is not an appropriate case in which this court should interfere. I therefore dismiss these grounds of appeal.

I now proceed to deal with grounds 5 and 6 and I will discuss ground 4 last.

Section 211 of the C.P.C gives an accused person three options to choose from in order to make his defence, after a case is made against him. While I appreciate the failure of the Magistrate to record, that S.211 CPC had been explained to the Appellant, in my view there has not been any substantial miscarriage of justice had actually occurred as the Appellant was represented at the trial by a very senior Counsel and experienced in Criminal law and Criminal Procedures and I have no doubt that he would have advised his client on how to give evidence, and indeed the Appellant gave evidence on oath. I have no doubt too that Counsel, who is also representing Appellant in this appeal would not have advised Appellant to give evidence on oath sensing the risk of cross-examination. I would have taken the opposite view if the Appellant was not represented by Counsel.

In his Ruling the Magistrate said at page 17 of the record:-

"......the Court rules there is a prima facie case for the accused to answer and he is given the chance to defend him."

Thereafter the accused chose to give evidence on oath in the presence of Counsel.

As I have said time and again in the past that trial Magistrates must always try to record what transpires at the trials. However as I said above I do not consider any substantial miscarriage of justice has actually occurred.

The record shows that in his judgment the Magistrate in the second paragraph of his judgment had discussed the evidence of the prosecution witnesses who were eyewitnesses to the assault. He also discussed in his assessment of facts that the evidence of the accused corroborates that of the prosecution in that he held on to the Complaint's hair for about 4 to 5 minutes, but did not bang Complainant's head on the floor. At page 25 of the record he discussed the Medical Report on the Complainant and also discussed the evidence of the accused. At page 26 of record the Magistrate said:-

"Pulling of the Complainant's hair by the accused was therefore an assault in this case. Even without banging it on the floor."

In my view the Magistrate was satisfied that an assault on Complainant had been proved and he was entitled to reach such finding on the evidence presented.

It must also be noted that the Magistrate in his judgment had preferred evidence of the prosecution to that of the defence after carefully assessing the evidence presented by both parties (page 26 of record).

I find no merit on these grounds.

I now deal with the ground 4 as I had indicated. Although this ground was not argued by Counsel at the hearing of appeal I am moved to deal with it in the light of the evidence and the history of this case which had been long running. It is most unfortunate that it had come thus far. The Appellant is a first offender and both parties had been at fault and in my view having regards to the facts and circumstances surrounding this case the appeal against sentence should be allowed.

It is unfortunate that the Magistrate had not given sufficient thought to the background of the parties domestic problems and the fact in this case as I have found both parties to be blamed as regards the assault on the Complainant.

The appeal against conviction is dismissed and the appeal against sentence succeeds.

The sentence of $50 imposed by the Magistrate is set aside and in substitution therefor an order for an Absolute Discharge under section 44 of the Penal Code and the fine if paid be refunded to the Appellant. I do not wish to disturb the order of $25.00 compensation.

To this extent the appeal against sentence succeeds.

S. W. Kepa
Judge
20th December, 1995
HAA0060J.94S