IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.0040 OF 1997

Between:

HARI NARAYAN SINGH
Appellant

And:

THE STATE
Respondent

Counsel: Appellant in person
Ms R. Olutimayin & Mr. K.Tunidau for Respondent 

Hearing: 5th September 1997

Decision: 5th September 1997

ORAL DECISION OF PAIN J

This is an appeal against conviction and sentence in the Magistrates Court on a charge of annoying a female contrary to section 154(4) of the Penal Code.

At the outset counsel for the Respondent advised the Court that the Respondent concedes the appeal. The reasons for this are a failure on the part of the learned Magistrate to warn himself on the issue of corroboration, a finding of credibility adverse to the appellant without any explanation as to whether or why the evidence of the complainant was believed and the learned Magistrate had taken into account another charge pending in Court against the appellant. Having carefully read the record of the Magistrates Court, I am satisfied that this is a very proper concession to have been made by the Respondent. 

In coming to a decision in this case it was necessary for the learned Magistrate to assess and evaluate all the evidence. To find the charge proved it would be necessary for him to accept the complainant as a completely truthful witness to reject the evidence of the appellant and his wife and to find that the complainant’s evidence proved every element of the charge beyond reasonable doubt.

Unfortunately, the decision of the learned Magistrate does not show that he addressed these essential issues in this way. The very short decision of the learned Magistrate is quite unsatisfactory. He first referred to a dispute between the parties over a piece of land. That in itself could be considered equivocal. It would give both the appellant and the complainant reason to be hostile towards the other. He then said "there is something about the accused that the Court does not wish to believe". This tends to indicate a reversal of onus. It was not necessary for the appellant to show that he was to be believed. It was necessary that the evidence of the complainant should be accepted as truthful. The learned Magistrate made no reference to her evidence.

The learned Magistrate then said in reference to the appellant "his demeanour in Court shows that he is a trouble maker". In the absence of any evidence in the record or description of this demeanour this is a rather extraordinary finding. Such a prejudicial finding of character against the appellant is without foundation. At best it shows only propensity which is not relevant evidence for proof of the charge. The learned Magistrate then said "he has a case still pending in this Court for damaging property". This is a completely irrelevant and prejudicial observation. It is quite wrong for such a matter to be taken into account against the appellant. Character was never put in issue and this comment on its own is sufficient to make the conviction unsafe. 

The learned Magistrate finally said "this Court does not believe his story". There was no onus on the appellant to establish his credibility. His evidence may be rejected but the Court must still consider the credibility of the prosecution witness to see if the charge is proved. In short the Magistrate said he disbelieved the appellant but did not give any assessment of the complainant’s credibility. He failed to deal with her evidence at all and say why he believed her or how her evidence established the charge. 

Further, the Magistrate failed to consider and address the weight to be given to the evidence of the appellant’s wife. 

Whether or not this is a sexual offence requiring corroboration of the complainant’s evidence, the nature of the allegation was such that the learned Magistrate ought to have exercised care before convicting on the complainant’s evidence alone. The animosity between the complainant and the appellant made such caution all the more necessary. It may be that the complainant would not be likely to make a false allegation of this nature and something did occur. However, the exceedingly brief decision and reasoning of the learned Magistrate is insufficient to support a finding of guilt. Moreover, it contains irrelevant and prejudicial observations on matters that ought not to have been taken into account. 

In view of all these matters, the conviction is both unsatisfactory and unsafe and cannot be allowed to stand.

The case could be remitted back to the Magistrates Court for re-hearing but a second trial for the appellant on this charge and evidence is unwarranted.

Accordingly, the appeal against conviction and sentence is allowed. The conviction of the appellant on the charge of annoying a female is quashed and likewise the sentence of nine months imprisonment suspended for two years is also quashed.

Justice D.B. Pain