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State v Kumar [2001] FJHC 101; Haa0014.2001l (2 February 2001)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 014 OF 2001

BETWEEN:

THE STATE
APPELLATE

-v-

AND

NAND KUMAR
s/o ISHWARI NAND
RESPONDENT

Mr. K Tunidau for the Appellant
Mr. A. K. Singh for the Respondent

Date of Hearing of Appeal: 31 March 2000
Date of Judgment: 2 February 2001

JUDGMENT

On 5th July, 1999 the Respondent was convicted by a Resident Magistrate before the Ba Magistrates Court of a single count of common assault contrary to section 244 of the Penal Code Cap. 17. At the outset of his trial, he had faced a charge of assault occasioning actual bodily harm. The Magistrate instead convicted on the lesser offence, pursuant to Section 169 of the Criminal Procedure Code Cap. 21. The Respondent was given an absolute discharge without conviction under the provisions of section 44 of the Penal Code. The Director of Public Prosecutions gave notice of appeal and filed his Petition. The Respondent cross appealed.

The complainant was the wife of the Respondent. The Respondent was a police officer. The complainant had been separated from the Respondent. She was working at a supermarket as a trainee check-out cashier. At 3.30pm on 24 August 1995 the Respondent bought some items at the supermarket. He paid for them through another cashier. Later he approached the complainant. At the counter, he asked her for money, which she said she did not have. Accordingly he swore at her and went away. He returned 15 minutes later and asked for some ‘jewelleries’ to be returned which he said belonged to the children. He asked her to come out from the counter. She refused. He pulled her. In the process she fell on the footpath and was injured thereby on her right elbow and on the right side of her head. Not surprisingly, there was variance in the two accounts given to the court, between that of the complainant and that of the Respondent.

The grounds of the Appellant’s appeal are as follows:

(i) The Learned Trial Magistrate erred in law and in fact in refusing the Prosecutions application for Doctor R C Dutt to refresh his memory of his Medical Report.
(ii) The Learned Trial Magistrate erred in law and in fact in holding that there was no evidence of the injuries on the complainant.
(iii) The Learned Magistrate erred in law and in fact by misdirecting himself on the decision of Grant J. in Barry Jennions v. R.18 FLR 61.
(iv) That the sentence was too lenient in all circumstances.

Ground I

Dr Dutt was called to give evidence for the Prosecution. He said that on 24/08/95 he was stationed at Ba Mission Hospital. He could not recall whether he was on duty that day as it was so long ago. It was in fact almost 4 years afterwards (8/6/99) that he was giving evidence in the trial. He said he was a medical officer doing general duties – surgery and outpatients. He then went into the procedure in police cases, and into what information he would record on the medical report form.

He was asked:

“Q. If I show you the Medical Report could you identify it?

A. Yes.”

At this, objection was taken by Defence Counsel, saying no foundation was laid. In further questioning the doctor could not remember the date. He was asked if he would like to refresh his memory from the medical report, to which he replied, Yes.

Again objection was taken on the same ground, of lack of foundation being laid. Mr Singh for the Respondent objected to the fact that the Prosecution rather than the witness was applying for leave to allow the witness to refresh his memory, and that there was no link between the doctor and a particular patient. According to the record Mr. Singh said:

“There is no linkage – no foundation – it would have been a different case if the doctor would have produced a folder”.

The Learned Magistrate refused the Prosecution’s application stating that the doctor had made no reference to the act of examining the complainant and therefore “one of the most important pre-conditions has not been satisfied”.

The parties appear to have been at cross-purposes here. The use by a doctor of cotemporaneous hospital notes, or its equivalent in this case, the police medical report form, in order to give accurate viva voca evidence is unobjectionable. The difficulty arose because the doctor could not remember the case itself because of the passage of time. It is not clear if the doctor’s copy of the medical report was missing, whether the doctor was never shown the police docket copy, or perhaps if he had failed to read his notes before giving evidence.

In this case the identity of the patient the doctor saw, was provided by the complainant in her evidence. The court record records that she said that after going before the OC at Ba Police Station:

“that I was taken to Mission Hospital in police va. The doctor attended to me and dressed the wounds and gave me the Medical Report. I took the Medical Report to Ba Police Station. I saw the Report but could not read the doctor’s writing.”

Shown Medical Report.

“I received it from the doctor MFI.” (my underlining)

From this evidence it is clear she did go to the Ba Mission Hospital that same day (earlier in her evidence she recalled it was on 24/05/95). She saw a doctor who treated her, and who contemporaneously with the examination completed the police medical report form, and who handed it back to her. In turn she gave report back to the police, and later identified it in court. Perhaps neither the doctor could remember or identify the complainant, nor she the doctor. At any rate no linkage evidence was adduced by either witness of that. Nor need they have.

It is likely that following full pre-trial disclosure pursuant to section 191 of the CPC, the same contemporaneous medical notes (the police medical report form) would have been disclosed to the Appellant’s Solicitors. We can assume that disclosure was done, from the Appellant’s refusal to accept the report served on him. Both the name of the patient and of the examining doctor would have been recorded on the medical report form.

The doctor should have been allowed by the court to refer to the medical report form. His writings on the form amounted to his contemporaneous notes of his examination and professional conclusions. He should have been permitted to use it in order to refresh his memory whilst giving evidence. Sufficient linkage had already been provided by the complainant of the date of the examination, of the contemporaneous completion of the form, and of its return to the police the same day.

There were several reasons why this course should be allowed. In a case which comes before a court 4 years after the witness’s part in the matter, it is unlikely that the witness could be expected to remember individual single visit patients. For that witness to attempt to give evidence without his notes would be a recipe for unreliable and inaccurate evidence. Professional witnesses, who for the most part can be regarded by the court as independent witnesses, can be expected to come to assist the court rather than simply to assist one of the parties in a partisan way. The English Court of Appeal in R v. Richardson [1971] 2 QB 484 cited with approval two passages from Lau Pak Ngam v. The Queen [1966] Crim. L. R. 443, and at 489 said:

“Testimony in the witness-box becomes more a test of memory than of truthfulness if witnesses are deprived of the opportunity of checking their recollection beforehand by reference to statements or notes made at a time closer to the events in question.”

The other is:

“Refusal of access to statements would tend to create difficulties for honest witnesses but likely to do little to hamper dishonest witnesses.”

And more generally in regard to statements at 490:

“The courts, however, must take care not to deprive themselves by new, artificial rules of practice of the best chances of learning the truth. The courts are under no compulsion unnecessarily to follow on a matter of practice the lure of the rules of logic in order to produce unreasonable results which would hinder the course of justice. Obviously it would be wrong if several witnesses were handed statements in circumstances which enabled one to compare with another what each had said. But there can be no general rule (which, incidentally, would be unenforceable, unlike the rule as to what can be done in the witness-box) that witnesses may not before trial see the statements which they made at some period reasonably close to the time of the event which is the subject of the trial. Indeed, one can imagine many cases, particularly those of a complex nature, where such a rule would militate very greatly against the interests of justice.”

The medical report form should have been put to the witness who should have been asked if he recognized it as his document. In particular, he should have been asked to identify his signature and whether he completed the form, and in what circumstances it was compiled. It then being clear that the medical report form was compiled by the doctor contemporaneously with the medical examination carried out on the patient, counsel could have applied for leave for the witness to refer to his contemporaneously note of his dealings with the patient, and it is appropriate that counsel makes this application, not the witness (See Archbold 43^rd Edit. 4-284 at page 472). Identification of which patient he examined and about whom he compiled the medical report form was provided by other linking evidence to which I have already made reference. Clearly this application could have been handled more carefully by prosecuting counsel, but it is important for the court to guard against absurdities also (See Da Silva (1990) 90 Cr. App. R 233 at 238). It was said by the Court of Appeal in R v. Tyagi. The Times July 29^th 1986 “It is the proper function of the Judge where the interests of justice demand to interfere in this way .........”

This ground therefore succeeds.

Ground 2

The Learned Magistrate in his judgment said:

“However I am not satisfied that the prosecution has been able to prove the charge of AOABH as there has been no medical evidence before me whatever.” (my underlining)

In order to prove such a charge however, there need not be any medical evidence adduced. It is not essential that there should be. It may be desirable, helpful, and more probative of guilt if it is adduced, but it is not a legal element of the offence.

In Taylor v Granville [1978] Crim. LR 482 the justices found that the Defendant, inter alia, had struck the victim in the face. It was contended by the defendant that the prosecution had failed to prove that actual bodily harm had been suffered. The justices, however, were of the opinion that the attack must have caused bruising and injury to the victim’s face, and they convicted. On an appeal by case stated to the Queens Bench, it was held that the justices were justified in inferring from the blows struck by the defendant that the victim had sustained some bodily harm, however slightly. In R v Reigate JJ (1984) 193; CLY 505; DC the victim had suffered great pain at first and afterwards suffered tenderness and soreness. It was possible for actual bodily harm to be inferred even though there had been no discernible injury.

The Magistrate in the instant case said he accepted the evidence of the prosecution witness (the complainant) and rejected the evidence of the Appellant. He rejected also the suggestion that only reasonable force was used. He said the evidence was sufficiently to prove the charge of common assault. He appears to have forgotten, when he came to review the totality of the evidence, that the complainant had given evidence of injuries she suffered as a result of the assault to her “right elbow and right side of head”. She referred also to the doctor dressing the wound. Again in cross-examination she said she had injuries on her head, and added, “I was very disturbed because I had head injuries”. She also said, “I was crying and crying. I did not fall down on the floor myself.”

There was therefore ample evidence, from the complainant who remained unshaken after cross-examination, that she had sustained injuries from the assault sufficient to amount to “actual bodily harm”. This ground succeeds also.

Ground 3

In view of my finding on Ground 2 this ground has little relevance now. The Learned Magistrate had cited a passage from Barry Jennions v. R 18 FLR 61 at 63. Suffice to say this dealt with the undesirability of accused persons pleading guilty where the admission of guilt is relied on to prove matters, the true quality of which the Accused cannot be expected to have the necessary knowledge to assess e.g. knowledge that the substance was indeed Indian Hemp. In the instant appeal the Accused pleaded not guilty which called for full proof by the prosecuting of the legal elements of the charge, which is what they were called upon to provide. I have already indicated that ‘actual bodily harm’ can be proved by testimony other than that of a medical practitioner.

In the result therefore the Director’s appeal acquittal of assault occasioning actual bodily harm and the conviction instead of common assault, is allowed. A conviction for assault occasioning actual bodily harm contrary to section 245 of the Penal Code is substituted.

Ground 4.

In view of the result on conviction, the appeal against sentence, the leniency of an absolute discharge, is no longer relevant. The court, in its sentencing remarks, said rightly, it was faced with “a very awkward situation” for this accused was facing dismissal from his employment if a conviction were to be entered. Nonetheless, a discharge without conviction being entered, was not an appropriate sentence here. Absolute discharges are appropriate only in a limited number of circumstances, such as where no moral blame attaches (R v O’Toole (1971) 55 Cr. App. R. 206) or where a mere technical breach of the law has occurred, perhaps by imprudence without dishonesty [R v Kavanagh (unreported) may 16^th 1972 CA.]

In his favour it was urged correctly that he was a first offender, a police officer, who for nearly 3 years had suffered interdiction without pay. The two children were with him and he was trying to act both as mother and father to them. I shall hear any further mitigation, an account of his means, and counsel’s address on sentence, before proceeding to pass sentence.

In the cross appeal it is contended that the Magistrate should have acceded to the submission of no case to answer. It is enough to say that the Magistrate found there was a case made out against the Accused person sufficient to require him to make a defence [Section 211 of the CPC]. This decision was well founded and accordingly that ground fails. The other grounds lacked merit, and I do not propose to go through them.

Additional Grounds of Appeal

The Petition of the Appellant referred to “the right to file additional grounds of appeal on receipts of the court record.” Similarly the Respondent in his cross appeal referred to his reserving “the rights to file additional or amended grounds of appeal on receiving or perusing the courts records.”

Section 311(4) of the CPC provides:

“Additional grounds of appeal may be filed by leave of the High Court at any time not later than three days before the date fixed for the hearing of the appeal in accordance with section 314.”

Whereupon the Chief Registrar of the High Court (or the Deputy Registrar at Lautoka and Labasa on his behalf) serves a notice of hearing and by virtue of section 314(e).

“where additional grounds of appeal are filed by the appellant under the provisions of subsection (4) of section 311, serve notice on the respondent of such filing and supply the respondent with a copy of the document containing such additional grounds of appeal.”

At the hearing leave will have to be applied for in order to be able to argue the additional or amended grounds. Provided the other party is not unfairly taken aback by the late amendment, an appellant court will usually grant the necessary leave.

However it should be appreciated, the right so frequently referred to and set out in petitions of appeal, is more properly and accurately described as a “right to apply for leave to file additional or amended grounds of appeal”, and not a “right to file”. If such imprecisions are avoided, counsel is more likely to retain the confidence of the court when coming to make the leave application.

In the result:

1. The appellant’s appeal on conviction succeeds. The conviction for common assault is quashed, and in its place is submitted a conviction for assault occasioning actual bodily harm.
2. The Respondent’s cross-appeal is dismissed.
3. I shall now hear counsel on sentence.
   

Anthony Gates
Judge

At Lautoka
2 February 2001

Solicitors for the Appellant: Officer of the Director of Public Prosecutions
Solicitors for the Respondent: A.K. Singh