IN THE HIGH COURT OF FIJI
AT LAUTOKA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. HAA 03 OF 2020

SARWAN PILLAY

V

THE STATE

Counsel			: 	Mr. I. Khan for the Appellant.
Mr. T. Tuenuku for the Respondent.

Date of Hearing		: 	29 June, 2020
Date of Judgment	: 	13 July, 2020

JUDGMENT

BACKGROUND INFORMATION

1.	The appellant was charged in the Magistrate’s Court at Sigatoka for one count of Grievous Harm contrary to section 258 of the Crimes Act.  It was alleged that the appellant on the 29th July, 2015 unlawfully and maliciously did grievous harm to Sikeli Masibalavu.

2.	In the Magistrate’s Court the appellant who was represented by counsel had pleaded not guilty to the charge and elected a Magistrate’s Court trial.  The prosecution called three witnesses whereas the accused gave evidence for the defence.

3.	After hearing evidence on 29th November, 2019 the learned Magistrate found the appellant guilty and convicted him for one count of grievous harm as charged.  On 13th December, 2019 after hearing mitigation the learned Magistrate sentenced the appellant to 25 months imprisonment with a non-parole period of 19 months.

4.	The counsel for the appellant filed the Petition of Appeal on 13th January, 2020 which was out of time by 5 days the State Counsel does not have any objections to the extension of time being granted. In this regard the appellant is granted extension of time to appeal against his conviction and sentence.

5.	The brief summary of facts is that on 29th July, 2015 the accused had used a stick to hit the victim multiple times resulting in serious injuries.  The victim regained consciousness in the hospital, according to the medical report the victim had suffered highest level of head injury, a fractured right arm and his nasal bone was protruding. The estimated healing time was from 6 to 8 weeks.

AMENDED GROUNDS OF APPEAL
 
6.	The appellant aggrieved by the conviction and sentence relies on the following amended grounds of appeal:

APPEAL AGAINST CONVICTION

1.	That the learned Trial Magistrate erred in law and in fact in not 	adequately directing/misdirecting the previous inconsistent 	statements/evidence made by the Prosecution witnesses and as 	such there has been a substantial miscarriage of justice.

2.	That the learned Trial Magistrate erred in law and in fact in not directing himself [about] the possible defence on evidence presented in Court and as such by his failure there was a substantial miscarriage of justice.

3.	That the learned Trial Magistrate erred in law and in fact in not directing himself adequately and/or taking into consideration the defence case before finding that the prosecution has established each and every elements of the offence and as such a substantial miscarriage of justice.

4.	That the learned Trial Magistrate erred in law and in fact in rejecting the evidence adduced by the Appellant without giving any cogent/adequate reason and thus a substantial miscarriage of justice had occurred.

5.	That the learned Trial Magistrate erred in law and in fact in not taking into consideration based on the evidence before the Court that there were two versions of assault and as such the benefit of doubt should have been given to the Accused and as such the Prosecution did not prove the allegations against the Appellant beyond all reasonable doubt.

APPEAL AGAINST SENTENCE

1.	That the Appellant relies on Grounds 1 to 5 stated hereinabove.

2.	That the Appellant’s appeal against sentence being manifestly harsh 	and excessive and wrong in [principle] in all the circumstances of the 	case.  (Full particulars will be supplied before the Hearing of the 	Appeal).

3.	That the learned Trial Magistrate erred in law and in fact in taking irrelevant matters into consideration when sentencing the Appellant and not taking into relevant consideration.

4.	That the learned Trial Magistrate erred in law and in fact in not taking into consideration adequately the provisions of the Sentencing and Penalties Decree 2009 when he passed the sentence against the Appellant.

7.	On the hearing date the appellant’s counsel withdrew his grounds of appeal against sentence and in respect of appeal against conviction the counsel abandoned grounds one, two and five. In essence the appellant only proceeded with his appeal against conviction in respect of grounds three and four.    

APPEAL AGAINST CONVICTION

	GROUND THREE
That the learned Trial Magistrate erred in law and in fact in not directing himself adequately and/or taking into consideration the defence case  before finding that the prosecution has established each and every elements of the offence and as such a substantial miscarriage of justice.

8.	The appellant’s counsel argued that the learned Magistrate did not take into account the defence case before finding that the prosecution has established all the elements of the offence.  Counsel takes issue from paragraphs 44 to 52 of the judgment he submits that the learned Magistrate had discussed the prosecution case in detail and did not give any consideration to the defence case causing substantial miscarriage of justice.  Counsel relied on the cases of Chandra Shekar and Another vs. The State, criminal appeal no. HAA 52 of 2004 (3rd September, 2004) and Mano Datt Sharma vs. R. [1969] 15 FLR 136 to support his argument.

9.	The counsel’s submission is misconceived a perusal of the judgment from  paragraphs 31 to 35  shows that the learned Magistrate had taken into account the defence case as follows:  

	Paragraph 31
	In his evidence the accused stated that on the day in question he had 	gone to the home of Muttu Sami (PW2) with the accused.

	Paragraph 32
	At PW2’s residence the accused and PW1 had an argument as PW1 did 	not wish to return the motor vehicle keys to the accused.

	Paragraph 33
	As a result PW1 tried to assault the accused which led the accused 	running out of the home of Muttu Sami making a few rounds around the 	motor vehicle before finally escaping to his home.

	Paragraph 34
	The accused stated that PW1 was drunk and was chasing him in order to 	assault him.  He denied assaulting PW1 and also denied the version of 	PW2.

	Paragraph 35
	That brought to an end the case for the accused.

10.	The learned Magistrate had taken into consideration the defence case before coming to the conclusion that the prosecution had proven its case. There is no error made by the learned Magistrate. This ground of appeal is dismissed due to lack of merits. 

	GROUND FOUR

That the learned Trial Magistrate erred in law and in fact in rejecting the evidence adduced by the Appellant without giving any cogent/adequate reason and thus a substantial miscarriage of justice had occurred.

11.	The learned counsel for the appellant argued that the learned Magistrate did not give any cogent reasons when he rejected the accused’s evidence.   A perusal of the judgment shows that the learned Magistrate had considered the evidence of all the prosecution witnesses and the accused. Unfortunately, for the appellant the learned Magistrate believed the evidence of the prosecution witnesses who were not discredited in cross examination.

12.	On the totality of the evidence the learned Magistrate had correctly reasoned that the weight of the evidence was against the appellant.  Although the learned Magistrate did not go into the details of his reasons to reject the evidence of the accused he did so after taking into account both sides of the story. 

13.	It would have been helpful if the learned Magistrate had given a narration as to why he did not believe the accused, however, despite this the learned Magistrate had given his reasons for accepting the evidence of the prosecution witnesses which was sufficient indication that the prosecution had satisfied the court beyond reasonable doubt about the guilt of the appellant. There is no substantial miscarriage of justice caused to the appellant.  

14.	The evidence before the court was glaringly obvious against the appellant which the learned Magistrate was aware of, hence at paragraph 51 he had stated “unfortunately the weight of evidence is against him in this matter as discussed above herein.”  

15.	Whilst evaluating the evidence the learned Magistrate accepted the evidence of the prosecution witnesses over that of the accused.  

16.	In Ajendra Kumar Singh vs. R (1980) 26 FLR 1 the Court of Appeal said at page 9:

"...It is also set out in [Director of Public Prosecutions- v- Ping Lin [1975] 3 All ER 175] as has frequently been said that an appellate Court should not disturb a judge's findings unless it is satisfied that a completely wrong assessment of the evidence has been made, or the correct principles have not been applied".

17.	I have perused the copy record to satisfy myself whether the learned Magistrate had correctly assessed the evidence for the prosecution and the defence in deciding the credibility of the witnesses. 

18.	The learned Magistrate had observed the witnesses give evidence and in his judgment he had accepted the prosecution witnesses as credible and reliable. The learned Magistrate also accepted the medical findings of the doctor who had examined the victim which corroborated the fact that the victim had received the injuries as narrated by the prosecution witnesses 
	and that it was not plausible for the victim to be injured in the manner expressed by the appellant in his evidence.  Furthermore, the learned Magistrate also accepted the evidence of Muttu Sami (PW2).  There was no suggestion by the defence that this witness had any motivation to implicate the accused who was known to both the victim and the accused.  There is no compelling reason why this court should interfere with the fact finder’s decision in this regard.  

19.	There is no substantial miscarriage of justice caused to the appellant and this ground of appeal is also dismissed due to lack of merits.

	ORDERS

	1.	The appeal against conviction is dismissed.

	2.	30 days to appeal to the Court of Appeal.

	
Sunil Sharma
Judge

Solicitors
Messrs. Iqbal Khan & Associates for the Appellant.
Office of the Director of Public Prosecutions for the Respondent.