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State v Bano [2011] FJMC 80; CRC 1300.2009 (22 July 2011)

IN THE MAGISTRATE’S COURT OF NASINU

CRIMINAL CASE NO.1300/2009

STATE

VS

SHAMINA BANO

Sergeant Volavola for the State

The accused present and appeared in person

Judgment

[1] The accused is charged with the offence of Assault Occasioning Actual Bodily Harm. The charge read as follows;

CHARGE:
Statement of Offence [a]

[2] ASSAULT OCCASIONING BODILY HARM: Contrary to Section 245 of the Penal Code Act 17.

Particulars of Offence [b]

[3] SHAMINA BANO on the 29th day of October 2009 at Nasinu in the Central Division assaulted Fatima Bibi thereby occasioning her actual bodily harm.

Summary of evidence

[4] The accused pleaded not guilty to the charge. Hearing was done on 06-05-2011, 10-05-2011 and 07-06-2011. At the trial, prosecution called following witnesses to prove their charge.

[5] PW 1-Fatima Bibi; on her evidence, she said that she stayed and shared a room with the Accused. On 29th October 2009 at about 9 am she was getting ready to go to work. Then the accused told her that “you have stolen my ring”. Then she refused and argument arose over that. She said that she asked the accused to leave the place since she is residing under her shelter. She said then accused hit her and she retaliated and hit the accused. She said the accused went to the road and she followed her. Then she started throwing stone at her. People were seeing the incident. After that both went to the police. The Medical Report was tendered as EX-1.

[6] The witness was not cross examined though the accused right to cross examine was given.

[7] PW 2-Coporal 2771 Aminand Prasad; this witness said that he was on duty on 29-10-2009. He said that she interviewed the accused -Shamina Bano. The statement was tendered as EX-2. In that statement the witness said that the accused claimed self defence.

[8] The witness was not cross examined though the accused right to cross examine was given.

[9] PW3- Corporal 847 Ram; He said that he charged the accused on 05-11-2009. The charge Statement was marked as EX-3. The witness was not cross examined though the accused right to cross examine was given.

[10] After that prosecution closed their case, since there was a case to answer, the accused was explained and given her rights to call the defence. Then the accused did give any evidence, and called another witness.

[11] DW1- The Accused: Shamina Bano: The accused said on that particular day the accused and the victim, both were ready to go work. Then she saw her ring in the Fatima’s finger. When she asked the ring there was an argument arose. The accused said that the victim hit her. “She pushed me onto the settee and started assaulting me. And the neighbours came and they stop the fight between us. After assaulting me, Fatima beebe has chased me with a cane knife. I went to the neighbour’s house..... After that she chased me with 4 x 2 size timber on the road. And she hit me with t5he wood; while I was defending myself she also got injured. I got fainted”. She said she was bleeding from head and she was taken to the hospital by Fijian boy in a van.

[12] In cross examination; the witness said that she is very sure Fatima took her 3 piece silver ring. She admitted that she share the room with the victim. She said when she asked the ring the victim refused to give. Then fight took place. However the accused admitted that the victim is much older than her. She said she lodged a complaint to the police regarding assault and theft of her ring. She did not know what had happened to her complaints. She said this ring was sentimental to her as this ring is gifted by her grandmother on her wedding. The prosecution suggested “you assaulted to the victim with anger? But she answered “I did not hit meaningly, I was defending myself”

[13] Then Defence called DW 2-Rosalini Vatuwalewale: She said on 29-10-2009 at about 7am she heard an argument. This witness stayed next to the victim’s house and the victim’s bed room was just opposite to her bedroom and window. Then she saw that victim was chasing the accused –Bano with a cane knife. She went to a neighbour’s place to rescue. She said somebody called the police. Then both went to the landlord. After little moment she said that Fatima again followed Bano with a piece of wood then, she went to the kitchen to see incident properly. She saw that victim assaulted the accused and blood was coming out from her head. Then Fatima disappeared nowhere. Bona was lying at the road and Fijian man took her.

[14] In cross examination the witness said that she stay 10 -15 metres away from victim’s house. She said she has never visited or met the accused or the victim and no specialities for this case. The witness further said “I saw Fatima chased Bano, She picked up piece of wood. Fatima is fat old lady, Bano is thin young lady. When Bano stopped (Bano was tired) and looked back, Fatima hit her, then blood came. Bano did not hit Fatima....After Fatima hit Bano, Bano tried to struggle, but could not as she was bleeding. They were pulled each other’s hair, then Bano fell down to the ground.” Though the prosecution has cross examined the witness, her evidence remained intact. She confirmed the accused version.

[15] Then the accused closed his case.

The Law

[16] The Section 245 of the Penal Code provides that;

"Any person who commits an assault occasioning actual bodily harm is guilty of a misdemeanour, and is liable to imprisonment for five years, with or without corporal punishment."

[17] Elements of the charge of assault occasioning actual bodily harm are (1) assault (2) occasioning actual bodily harm

[18] State v Tugalala [2008] FJHC 387; HAC0025.2008 (28 April 2008) her ladyship Nazhat Shameem observed “Section 245 of the Penal Code creates the offence of assault occasioning actual bodily harm. I consider that it is a lesser offence in relation to section 224 of the Penal Code. It has two elements, one is committing an assault, and the second is occasioning actual bodily harm.”

Burden of proof

[19] In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[20] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

“The standard of proof in a criminal case is one of proof beyond reasonablbt. This mhis means that you must be satisfied so that you feel sure of the guilt of the accused persons b you express an opinion that they are guilty. If you have any reasonable doubt as to whethehether the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused’s guilt. That is not the correct test. The correct test is whether you have any reasonable d#160;about the the guilt of the accused.”

[21] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen ( 1970 AC 618) reported in 72 Nw Reports 313 (Sri Lanka),

“A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[22] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and “one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim “Ex qui affirmat non ei qui negat incumbit probatio”. On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim “In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur” have to be noted.

Analysis of the evidence

[23] In line with the above guiding principles, I now evaluate the evidence adduced before me. The PW1 said she was hit by the accused. The Medical Report was marked as Ex-1 and in that there are four minor injuries. Natures of injuries are tenderness and scratch marks. It is to be noted that elements of charge are patent according to the victim’s evidence. But the accused claims the injuries were caused when acting self defence.

[24] In section 17 of the Penal Code said “Subject to any express provisions in this Code or any other law in operation in Fiji, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law.”

[25] It is to be noted that Self-defence is part of private defence, the doctrine in English law that one can act to prevent injury to oneself or others or to prevent crime more generally – one has the same right to act to protect others as to protect oneself. This defence arises both from common law and the Criminal Law Act 1967. Self defence in English law is using reasonable force against an unjust threat. Self-defence is a justification rather than an excuse that is the defence is asserting that the actions were not a crime at all.

[26] The general common law principle for self defence is stated in Beckford v R [1987] UKPC 1; (1988) 1 AC 130:

"A defendant is entitled to use reasonable force to protect himself, others for whom he is responsible and his property. It must be reasonable."

[27] In R v Owino [2002] UKHL 5; (1996) 2 Cr. App. R. 128 at 134:

"A person may use such force as is [objectively] reasonable in the circumstances as he [subjectively] believes them to be."

[28] To gain an acquittal, the defendant must fulfill a number of conditions. The defendant must believe, rightly or wrongly, that the attack is imminent. Lord Griffith said in Beckford v R: (Supra)

"A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike."

[29] Lord Morris in Palmer v. R. [1970] UKPC 2; [1971] AC 814, a case from Jamaica articulated;

""The defense of self-defense is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. ...Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. ...It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have [to] avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defense... If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken."

[30] In R. G. W. APPUHAMY v THE REPUBLIC OF SRI LANKA, 78 New Law Reports 25, Sirimane, J. Held;

"It must be remembered that the 1st accused in this case admitted the shooting and pleaded self-defence. The version given by the 1st accused was placed before the Jury and it was for the 1st accused to satisfy the Jury on a balance of probability that his version was the more probable."

[31] In the light above legal principles for self defence, I now deal with this matter. The accused accepted that she hit her and she was attacked by the victim. The defence witness proved that accused was hit by the victim and blood was coming out. The injuries sustained to the victim are minimal according to the Medical Report and cannot be taken as excessive right of private defence. The accused statement was marked as EX-2 and in that also the accused claimed self defence and it was made soon after the incident and there were no time to concoct a story of self defence at that time. The accused story also was proved by the prosecution witnesses. Even the victim in her evidence in chief stated she hit the accused. The police officer stated that the accused claimed self defence in her caution interview. The burden is lying on the accused to prove self defence and it should be on balance of probabilities and not on beyond reasonable doubt. On evidence, I hold that the accused has proved her plea of self defence on balance of probabilities.

[32] In above English common law principle for self defence is meant "Nothing is an offence which is done in the exercise of the right of private defence." I therefore hold that the accused has not committed any offence and she has the shelter of self (Private) defence.

[33] Therefore, the accused is acquitted and discharged.

[34] 28 days to appeal

On 22nd July 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate