IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 84 OF 1999
(Suva Mag. Ct. Crim. Case No. 1330/95)

Between:

MAHEN CHAND
s/o Sarju Prasad
Appellant

And

STATE
Respondent

Mr. A. K. Singh for Appellant
Mr. Aiyaz Khaiyum for State

JUDGMENT

The appellant, Mahen Chand s/o Sarju Prasad, was after trial on 19 April 1999 found guilty on counts one, three and four by Suva Magistrate’s Court. He was acquitted on Counts 2 and 5 for lack of evidence. Then on 28 May 1999 he was sentenced by being discharged on all counts (1, 3 and 4) on the ‘conditions’ that he does not re-offend within 24 months and pay ‘$300.00 Court costs 4 weeks to pay, 3 months in default’.

Particulars of offence

The appellant was charged on four counts on 31.5.95 and the fifth count of ‘grievous harm’ was added on 30.10.95 as alternative to Count 3 (which is for offence of assault occasioning actual bodily harm).

The particulars of offence on each of the five counts read as follows:

First Count

MAHEN CHAND s/o SARJU PRASAD on the 25th day of December, 1994, at Nasinu in the Central Division assaulted DHARMENDRA NATH s/o NARENDRA NATH occasioning him actual bodily harm.

Second Count

MAHEN CHAND s/o SARJU PRASAD on the 25th day of December, 1994, at Nasinu in the Central Division assaulted SHALINI LATA d/o NARENDRA NATH occasioning her actual bodily harm.

Third Count

MAHEN CHAND s/o SARJU PRASAD on the 25th day of December, 1994 at Nasinu in the Central Division assaulted JIU KUAR d/o BABU SINGH occasioning her actual bodily harm.

Fourth Count

MAHEN CHAND s/o SARJU PRASAD on the 25th day of December, 1994, at Nasinu in the Central Division was drunk and disorderly in a public place namely at Nasinu Police Station. 

Fifth Count

MAHEN CHAND s/o Sarju Prasad on the 25th day of December 1994, at Nasinu in the Central Division, unlawfully and maliciously caused grievous harm to one JIU KUAR d/o Babu Singh

The Grounds of Appeal are (as stated in the skelton submissions):

2.1	That the Learned trial Magistrate has erred in Law and facts when he failed to put the rights of the defendant under section 211 of the Criminal Procedure Code Cap. 21 after ruling that there was a case against the defendant.

2.2.	That the Learned trial Magistrate erred in law and facts when he convicted the Appellant without taking into consideration, that the Appellant was acting in self defence when he was suddently attacked by all the complainants.

2.3	That the Learned trial Magistrate erred in law when he took into consideration 5 counts against the Appellant when in fact the Appellant was charged for 4 counts

2.4	That the Learned trial Magistrate erred in law and facts when he failed to warn himself of the danger of convicting the Appellant without corroboration.

2.5	That the Appellant’s former Counsel failed or neglected to provide the proper or correct advise in respect of the requirements under section 211 of the Criminal Procedure Code Cap 21 and as such the trial was unfair and a nullity.

2.6	The Learned Magistrate erred in Law when he imposed the condition that the Appellant does not commit any offence within 24 months when in fact, section 44 of the Penal Code Cap.17 states that "subject to the condition that he commits no offence during such period not exceeding 12 months from the date of the order.."

I shall now deal with the grounds:

As for grounds 2.1 and 2.5

The appellant was represented by counsel throughout. After the close of the case for the prosecution and after the adjourned hearing on 30March 1998 the learned counsel for the appellant (p.43 of Record) told the Court that the "matter will not take 1 hour. Only the accused is going to call evidence". The matter was thereafter adjourned for hearing on 18.5.98 . After a submission of no case to answer, the Court ruled that there was, and the learned Magistrate then said "I call for defence". Whereupon the learned counsel for the defence said "defence will adduce no evidence" (p43 of Record) and closed his case.

In view of what transpired, as stated above, there was no need for the learned Magistrate to put the options in so many words as stated in s211 of the Criminal Procedure Code. The appellant has not suffered any injustice as a result of counsel informing the court what he proposed to do as far as his defence is concerned. I therefore reject counsel’s argument that it was mandatory for the learned Magistrate to comply with s211 to the letter in these circumstances.

The learned counsel also complains on ground 2.5 that counsel "failed or neglected to provide the proper or correct advise in respect of requirements of s211". In my view if the appellant, who is a policeman, had any complaint in regard to the procedure or if he was dissatisfied with his counsel’s advice he should have drawn the Court’s attention to this. It is abundantly clear that after the learned Magistrate called for defence, the whole conduct of counsel and his advice to his client is sufficient compliance with s211 and that as an ‘officer of the Court’ counsel would not have misled the Court. He is an experienced counsel having been a Magistrate for many years in Fiji until he retired recently.

This was a case of an accused who was represented by counsel, and in such a situation in relation to the applicability of s211, the following passage from Chapter 4 para.392 of Archbold (43rd Ed.) is pertinent:

When a defendant is not defended by Counsel, the judge should inform him of his right to cross-examine the witnesses for the prosecution, and, at the close of the prosecution, of his right to give evidence on his own behalf or to make an unsworn statement and to call witnesses."

In Fiji s211 which is as follows, applies to Magistrates’ Court trials:

"At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence, the court shall ..... inform him that he has a right to give evidence on oath from the witness box; ..... or to make a statement not on oath from the dock, .... and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence ....."

The applicability of s211 has been the subject of discussion by Fatiaki J in Kepueli Jitoko v The State (37 FLR 14) when he referred in his judgment to Cullinan J’s views as expressed in BRIJA NAND v R (Lautoka Cr. App. No. 3 of 1984). That was a case of an unrepresented accused and the Magistrate failed to comply with the provisions of s211. In that case Cullinan J said:

"I am in no doubt that the provisions of Sections 210 and 211 clearly place upon a magistrate a duty to inform the accused personally whether or not a case has been made out against him ....., and thereafter, under Section 211 to explain the charge to the accused once again, to explain the options open to him and to ask him whether he has any witnesses to examine or other evidence to adduce in his defence. That duty lies upon the magistrate whether or not the accused is represented by counsel." 

In the above passage his Lordship, as obiter, stated "that duty lies upon the magistrate whether or not the accused is represented by counsel". I agree that it would be a desirable practice to adopt but in my view failure to apply s211 in its exact terms is not fatal to the case to render it a nullity. In this regard one has to see what is stated in the record as stated hereabove by me. This case is distinguishable from Brija Nand (supra) for there s211 was not complied with at all. Here I find there was sufficient compliance with the requirements of s211 although indirectly.

For the above reasons grounds 2.1 and 2.5 fail.

As for ground 2.6

The State concedes this ground of appeal.

This error is curable. In R v Hollywood (Vol. 154 J.P 705, C.A.) it was held that although the sentence was unlawful (here under s.44), "that unlawfulness could be put right, by the Court of Appeal. The court could decide on appeal to change the sentence.....". This ‘condition’ in this case is therefore varied by being set aside and substituted by one of 12 months so as to comply with s44 of the Penal Code from the date of the Order.

As for grounds 2.2, 2.3 and 2.4

I shall now consider grounds 2.2, 2.3 and 2.4 bearing in mind the submissions of both counsel.

The learned State counsel opposes these grounds.

Although originally charged on four counts, a 5th count of causing ‘grievous harm’ (as alternative of Count 3 of assault occasioning actual bodily harm) was added on the day of hearing. The learned counsel had no objection.

The learned Magistrate found the appellant guilty on count one (assault occasioning actual bodily harm (AOABH) on Dharmendra Nath, the brother-in-law of the appellant, count three (AOABH) on Jiu Kuar, mother-in-law of the appellant, and count four (drunk and disorderly).

On count one, according to the judgment (p50 of Record) the complainant was ‘hit’ by the appellant and ‘he fell in the drain’. He then said his mother (mother-in-law of appellant) and his sister attacked the appellant but he does not know why they attacked him. 

As for ground 2.2 on ‘self-defence’ I agree with the learned Magistrate’s treatment of the subject in his judgment. On the facts and circumstances of this case no question of self-defence arose as the Magistrate found as fact that the appellant assaulted Dharmendra (in Count 1) first and hence he could ‘not see the relevance of self-defence in respect of count one’. 

In considering the findings of fact by the learned Magistrate I have borne in mind the following well-known principle stated in the headnote to WATT OR THOMAS and THOMAS [(1947) A.C. 484-485 H.L.]

"When a question of fact has been tried by a judge without a jury and it is not suggested that he has misdirected himself in law, an appellate court in reviewing the record of the evidence should attach the greatest weight to his opinion, because he saw and heard the witnesses, and should not disturb his judgment unless it is plainly unsound. The appellate court is, however, free to reverse his conclusions if the grounds given by him therefor are unsatisfactory by reason of material inconsistencies or inaccuracies or if it appears unmistakable from the evidence that in reaching them he has not taken proper advantage of having seen and heard the witnesses or has failed to appreciate the weight and bearing of circumstances admitted or proved.

The learned Magistrate had the opportunity of hearing the witnesses and watching their demeanour which the appellate Court does not have. Subject to what I say hereafter on Count 4, the appellate Court will be loathe to interfere with his findings of fact on counts 1 and 3. Two doctors testified as to injuries found on Dharmendra and Jiu Kuar. The Magistrate accepted their evidence and he was justified in accepting them and connecting them to the evidence on the incidents in question.

As for Count 4, on the evidence before the Court, on which he has been found guilty, in my view the proper charge against him would have been disorderly conduct in the Police Station and not drunk and disorderly.

I would therefore set aside his conviction on Count 4 and order his acquittal on that Count.

As for ground 2.3, the learned counsel did not object to count 5 being added and presumably was able to continue to defend without seeking an adjournment. In any case he was acquitted on that Count.

As for ground 2.4, it is quite clear from the evidence and the judgment that the learned Magistrate did warn himself of the danger of convicting on uncorrborated evidence of independent witnesses.

For the above reasons I find that there are no merits in any of the grounds 2.2, 2.3 and 2.4. These therefore fail.

In the outcome, for the above reasons the appellant’s appeal is dismissed except that I order that he be acquitted on Count 4 as the charge is misconceived.

D. Pathik
Judge

At Suva
8 February 2000