IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.0028 OF 1997

Between:

MOHAMMED IQBAL
SHALESH SINGH
KUAR SINGH
Appellants

And:

THE STATE
Respondent

Counsel: Mr. Karunairetnam for Appellants
Mr. Petaia for Respondent 

Hearing: 2nd September 1997
Decision: 2nd September 1997

ORAL DECISION OF PAIN J

This is an appeal against conviction and sentence. 

On 30th November 1994 the three Appellants were convicted on a joint charge of being drunk and disorderly following a defended hearing. Each was sentence to one month’s imprisonment. 

In arguing the appeal against conviction counsel for the appellant has not followed precisely the grounds contained in the petition. However, in fairness to the appellants I will consider the actual submissions that have been made.

I do not need to review the evidence given in the lower Court at length. Three police officers gave evidence for the prosecution. Two were women who were not in uniform at the time of the incident. They gave evidence of being abused in the street by the three accused. They gave evidence of what each accused said and did and described their condition. The other police officer came to their assistance and gave similar evidence. The three appellants gave evidence. Each denied behaving in the manner described by the prosecution witnesses. 

No submission has been made on behalf of the appellants that the prosecution evidence, if truthful and accepted, does not prove the charge. If what the prosecution witnesses say occurred, did in fact happen, the offence was committed by each of the appellants. The basic thrust of the appellants’ submission is that the prosecution evidence should not have been accepted and the decision of the learned Magistrate is insufficient to show that the charge was proved.

Counsel for the appellant first referred to the evidence of the police officers regarding their observations of the appellants in relation to the appellants’ state of sobriety. They used such phrases as "smelling of liquor", "staggering" and "blood shot eyes". Counsel described this as "typical evidence" and made the point that there was no medical evidence before the Court. 

It is certainly not unusual for the Court to hear such evidence given by police officers. However, if persons are drunk those are the symptoms that will be observed. There is nothing in the evidence or the record itself to indicate that the police officers may have been fabricating this evidence. The only issue is that it is in conflict with the evidence given by the appellants themselves. Further, there is no need for medical evidence and it would be most unusual to find such evidence in a case of this nature. What the matter boils down to is simply a question of credibility. It is for the Court to determine whether the prosecution evidence is credible and to weigh that up against the evidence of the appellants themselves.

Counsel next referred to the comment in the learned Magistrate’s decision in relation to this conflict when he said "who is the Court to believe?" It is submitted that this shows that at the conclusion of the evidence the learned Magistrate was not sure in his mind and a reasonable doubt existed. 

This is a somewhat unfortunate expression to have been used by the learned Magistrate. However, it must be considered in the context of the whole decision. The learned Magistrate had very correctly and properly reminded himself of the onus on the prosecution to prove the appellants’ guilt beyond reasonable doubt. He then summarised the prosecution and defence evidence. It is then that he made the comment "who is the Court to believe". In the particular context this was really a rhetorical question highlighting the conflict between the police and defence evidence. The learned Magistrate then gave reasons for accepting the prosecution evidence and finding the charge proved. 

In doing this he accepted the prosecution evidence and counsel for the appellants has submitted that there is nothing in the record to show that the police evidence should have been accepted in preference to the evidence of the appellants. It is submitted that there is nothing to show why the appellants’ evidence was treated differently.

In a case such as this the learned Magistrate is not expected to deliver a comprehensive fully reasoned decision. It must be remembered that this is a summary trial in a Court exercising summary jurisdiction. Findings must be made and reasons given. These need not be extensive provided they are clear and cogent. 

The learned Magistrate said "I believe PW1, PW2 and PW3. They appear to me as credible witnesses. Their demeanour in Court shows that they were telling the truth. It was otherwise for the three accused". This shows that there was a clear acceptance by the learned Magistrate of the prosecution evidence and a rejection of a testimony given by the appellants. That was a finding on credibility that the learned Magistrate was entitled to make. From his decision it is clear that he took into account the demeanour of the witnesses. He saw them in the witness box. He was in the best position to assess the credibility of the evidence given. He could perhaps have been a little more expansive but his reasoning is clear. It is not a decision that this Court would interfere with.

The final matter mentioned by counsel for the appellant was the fact that the learned Magistrate having found the charge proved then accepted details of previous convictions tendered by the prosecution. It was submitted that this should not be done until after a conviction had been entered.

In my view there is nothing wrong with the procedure adopted by the Magistrate. It is normal practice. It is quite proper to consider previous history and matters of mitigation in a case such as this before a conviction is entered. 

The grounds argued in respect of the appeal against conviction cannot be sustained. 

I turn now to the appeal against the sentence of one month’s imprisonment imposed upon each appellant. I agree with the learned Magistrate that this was not a minor or petty case of its kind. Certainly, this particular offence is low on the scale of offences generally dealt with in the Magistrates Court. Nevertheless, it is an offence carrying a moderately severe maximum penalty. These appellants were very abusive. Their abuse was directed towards two women. I agree that such behaviour should not be tolerated and is likely to create concern and fear in the minds of persons subjected to or observing it. 

The learned Magistrate imposed the maximum sentence provided for this offence. Although the appellants conduct was reprehensible, it is not within the worst category of this type of offending which might be seen as calling for the maximum sentence. One of the appellants was a first offender. The other two each had an earlier Court appearance and had received a conditional discharge. None had any history of offending for drunk or disorderly behaviour. Each should have been treated as a first offender for this type of offending. It is not normally appropriate to sentence first offenders to imprisonment. This may be done for instance if the offences of such gravity that immediate imprisonment is required.

Counsel for the respondent accepts that the sentence of one month’s imprisonment in this case was excessive. 

The appellants served a few days in prison following sentence. They were then released on bail pending the hearing of this appeal. That short period of incarceration is a penalty in itself and no doubt served a good lesson to them. 

There has been a long delay since the appeal was filed. It took two years five months for the file to come from the Magistrates Court to this Court. A return to prison after a period that is now two years nine months would be inequitable. The appellants have had this matter hanging over their heads. They have had the expense of an appeal. 

In all the circumstances I accept that the sentence of imprisonment should not be allowed to stand. A fine is appropriate. Bearing in mind the matters I have mentioned I will moderate that fine despite the nature of the appellants conduct. 

Accordingly, I make the following orders:

1.	The appeals against conviction are dismissed.

2.	The appeals against sentence are allowed.

3.	The sentence of one month’s imprisonment imposed upon each of the appellants is quashed.

4.	In substitution each appellant is fined the sum of $50. Each has twenty-one days to pay, in default one month’s imprisonment.

Justice D.B. Pain