IN THE RESIDENT MAGISTRATE’S COURT OF FIJI ISLANDS
AT SUVA

Traffic Case No. 1785/2010

STATE

v

IOSEFO MATANAWA

Prosecution: Cpl Reddy, Police Prosecutor.
Accused: Ms Rigsby T. (Qoro Legal).

Dates of Hearing: 29th and 31st May 2012. 

JUDGMENT

1. The Accused of this case has been charged with ‘Unlawful Wounding’ contrary to Section 261 of the Crimes Decree No 44 of 2009.

2. The charge arose from an accident which occurred on 16th of September 2010 at the Main bus depot, Suva. The accused is an employee of Suva City Council. He worked as a booking officer in the bus stand. The complainant victim is a bus driver. It was alleged that the accused unlawfully wounded the victim by throwing a bunch of tickets in to his eye.

3. During this trial the prosecution called two witnesses and the accused testified on oath. Both parties tendered the caution interview statement and the charging statement by consent.

Following Exhibits were marked by the prosecution

Exhibit # 1 - The Caution Interview of the Accused 
Exhibit # 2 - Charging statement
Exhibit # 3 - Bunch of cards
Exhibit # 4 - Medical Examination Form of the Victim

Summary of the Prosecution Case

4. The complainant victim drove his bus to the Suva-Nasori bus bay on the day of the incident at around 4 pm. He was intending to pick passengers to Nasori. He could not properly park his bus as there was another bus in front of him. He started to reverse it. At this point the accused came to him. They were known to each other in their regular routine capacity. The accused asked the victim to make a turn around the bus depot and come back to park. But the victim did not adhere to the instructions. At this point the accused threw a bundle of cards/tickets at victim’s eye.

5. The victim further stated that he threw it from a distance of 2 meters. It struck on his left eye and later he reported this matter to the police. He stated that the bunch of cards was wrapped in two rubber bands and one of the bands got broken when it threw. These cards were scattered and he collected it later.

6. During his cross-examination the victim stated that the bunch of tickets was rolled in a rubber band.

Q: How do you know that it was rolled in a rubber band?
A: I saw it when it was thrown at me.

7. The counsel of the accused suggested to the victim that the injury was caused due to rubbing of eyes. He specifically dined the position and stated that initially there were bleeding from the eye.

8. Further he stated that the accused came after him to the police station. He dined any demand for compensation although it was stated in his police statement. 27 tickets were marked as an exhibit. 
 
9. Medical officer who prepared the Medical Examination Form testified as the second and final witness of the prosecution. Her expertises were not contested by the defence. She identified the report prepared after examining the victim which was marked as Ex-04.

10. The doctor has examined the victim on the following day (17.06.2010) at 8.30 am. She has observed two scratch marks on the left upper eye lid and a haemorrhage on the left eye. Further she stated that the injuries are compatible with the incident. 

11. During her cross examination the defence counsel questioned her on the probable time of causing the injury. These questions were based on the opinion that she stated under D 14 of the report. The doctor has stated that the injuries were caused 10 hours before her examination. The victim was examined at 8.30 am on 17.06.2010. If that position is correct the injuries would have caused at around 10.30 pm on the 16th.

12. She explained this position during cross examination and stated,

Q: If I ask you is it possible that the injuries were caused 14, 17 hours ago?
A: It is possible. It was within 48 hours. I told 10 hours because of the history. From the injury I can say it is less than 20 hours. 

13. With this prosecution closed their case. The Court was of the view that there is a case for the accused to answer. The defence called the accused himself to testify.

Summary of the Defence Case

14. The accused stated that he was on duty as a booking officer when the incident happened. He had asked the victim to get his bus towards the Nosori bus bay which he agreed. But he could not stop the bus as it was crowded at the time. He had asked him to take a turn around the bus stand. The victim has opposed as he could miss the next turn. Instead he started to reverse the bus. At this point the accused states that he threw 7 lose tickets which were in his possession.

15. The accused stated that he did this act without any intention as a joke. Later he said in fact he flicked the tickets. After he took few steps away, the victim has screamed. Later he has seen that the victim rubbing his eye. Then victim has gone to the market police post but they refused to take the report as there was no medical report. Then the victim has informed that he has to take his passengers and left the police post. Accused states that he did not see any injury on the victim but he was rubbing his eyes.

16. In cross examination the accused said that he was annoyed by the attitude of the victim. The accused insisted that the victim committed an offence in that afternoon. When he was questioned whether he booked him for any offence that day, the accused dined. 

17. The accused had taken the same position in his caution interview. When he questioned on the number of tickets, he stated that the other 20 tickets fell from his front pocket when he tried to collect the seven tickets.

Burden and Standard of Proof

18. The burden of proof is vested on the prosecution to prove these elements of the charge beyond reasonable doubt. Section 57 and 58 of the Crimes Decree 2009 stipulate provisions for this.

19. In State v Seniloli [2004 FJHC 48]; HAC0028.2003S (5 August 2004) Her Ladyship Justice Shameem addressed the assessors in her summing up;

"The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether 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 counsels asked you if you had the slightest doubt about the guilt of the accused. That is not the correct test. The correct test is whether you have any reasonable doubt about the guilt of the accused."

Law on ‘Unlawful Wounding’

20. Section which creates unlawful wounding an offence states,

S .261 – A person commits a summery offence if he or she unlawfully wounds another person.

21. An offence is generally a combination of physical elements and fault elements. However section 13(2) of the Crimes Decree states ‘the law that creates the offence may provide that there is no fault element for one or more physical elements’. In other words some offences exist only with physical elements. In such cases, proving the existence of such physical elements is sufficient to establish the guilt of an accused person.
 
22. Following elements can be extracted from section 261,

I.	A person (accused),
II.	Wounds,
III.	Another person (victim),
IV.	Unlawfully.

23. The categorization of criminal offences is found in the Australian High Court Case of He Kaw Te v R [1985] HCA 43; [1985] 157 CLR 523. He Kaw Te recognizes three categories of offences, namely: mens rea (fault lelmemt) offences, strict liability offences and absolute liability offences. The categorization of offences in New Zealand has developed along the same lines. [Millar v Ministry of Transport][1986] 1 NZLR 660 .New Zealand Court of Appeal stated that there were 4 categories of mens rea offences where the statute does not state what, if any, mens rea element is required:

(a) Implied Mens Rea: The prosecution has both a persuasive and an evidential burden to prove mens rea. Once the prosecution has proved mens rea, then in the absence of evidence to contrary (ie. a defence is raised or the defence raises a reasonable doubt) mens rea is presumed.

(b) The Strawbridge Approach: "Requires, in addition to some evidence that the accused had an honest belief in facts which would make his act lawful, some evidence or basis for thinking that it was on reasonable grounds; in which event the onus falls on the prosecution to disprove honest belief on reasonable grounds," per Cooke P at 665.

(c)  Strict Liability: The prosecution is required to prove the actus reus (physical element), but in relation to one or more elements of the actus reus, there is no mens rea (fault element) to prove. However, the defendant can prove absence of fault in his part in order to exculpate themselves.

(d) Absolute Liability: The offence is complete upon proof of the actus reus. There is no requirement to prove mens rea; neither can the defendant claim an absence of fault in his or her own defence.

24. In my view 'Unlawful Wounding' can be categorized in strict liability category. The section does not specifically require a fault element to fulfil the offence. As stated in Millar the accused can prove absence of fault in his part. In other words the available defence for an accused person is that he acted in a lawful manner.
 
25. It is judicious to state that the burden on the prosecution is to prove that the accused inflicted a 'wound' on the victim, 'unlawfully'. 

26. Section 4(1) of the Crimes Decree clarifies the term 'wound'. 

"Wound" means any incision or puncture which divides or pierces any exterior membrane of the body, and 
Any membrane is "exterior" for the purpose of this definition which can be touched without dividing or piercing any other membrane. 

27. The legislature has given a broad interpretation to the term 'Wound' which even covers a superficial injuries of a person. Although the defence did not contest on this issue, I note that the scratch marks and the haemorrhage on the eye can be considered within the limitation of this interpretation.

Analysis of Prosecution Evidence

28. The contention of the defence of this case was on two main grounds. The line of cross examination was to support these two grounds. They are that, 

I.	The injuries were self inflicted and it was not caused from the throwing of tickets;
II.	The act of the accused was not intentional.

29. The counsel questioned from the victim whether he demanded compensation from the accused. She posed a portion of the victim's police statement to that effect. The victim stated that he did not say it to the police officer. It is an unproved contradiction on the victim's statement although it is not on a material point. But that does not sufficient to create a doubt on the victim's testimony. The defence has to prove that the victim in fact made such a statement. The person who recorded that statement would have testified in to this issue. In the absence of this proof the Court cannot infer that the victim has given an inconsistent prior statement and therefore he is an unreliable witness. 

30. Unproved contradiction or a mere suggestion of 'untruthful witness' in my view cannot consider as reasonable doubts. Thus the Court has no difficulty to act on the victim's testimony. The Court notes that the accused could not create any reasonable doubt on the victim's testimony at the end of cross examination.

31. The counsel of the accused questioned the victim on the delay that was caused before the medical examination. The injury was cased at around 4 pm on 16th and the examination took place at 8.30 am on 17th. But the victim clearly stated that he had to take the passengers to Nasori during that afternoon but he suffered the pain soon after the ticket bundle hit on his left eye. Further he stated that initially there were bleeding. Although the accused suggested that the injuries were self inflicted victim dined it. It appears that the delay on medical examination has been caused due to a remote reason to the victim. He was burdened on that afternoon with a responsibility to take the passengers back to Nasori. 

32. The prosecution version is that the injuries are compatible with the given history of assault from a ticket bundle. The accused version is that the accused did not note any visible injuries on the victim's eye. He raised and continuously questioned the doctor on the 'time of injury', in order to create a doubt to the 'cause of injury'.

33. It is to be noted that the doctor has seen small scratch marks on his eye lid and an internal haemorrhage. The doctor further mentioned that the victim preferred to close his eye during the examination due to the pain.

34. The medical opinion is comprehensible that the injury was caused due to an impact of a ticket bundle. In the light I am of the view that the time of injury or the age is immaterial. Further following answer of the doctor clears the uncertainty on the issue.

'According to history it had happened 14 hours ago. But my calculation is that it is 10 hours, but it can happened even within 14 hours'

35. The age of the injury does not create a reasonable doubt on the cause of injury when the defence has not posed any questions as to how it happened. The only question to the doctor on this issue was 'whether it is possible that the scratch mark is not from tickets?' And the doctor's answer was 'possible'. In my view this answer does not create a 'reasonable' doubt to the findings of the doctor which is compatible to the history.

36. The defence counsel mainly focused on the small scratch marks of the eye lid. She did not pose any questions whether it can be self inflicted. Also she did not question on the haemorrhage which was on the eye. The expert's opinion of this case has contributed the Court to arrive at a conclusion that the injuries were caused by an impact of a ticket bundle. 
 
Analysis of Defence Evidence

37. It is important to note following positions when analysing the evidence of an accused person.

1. If the defence evidence is believed it must be acted upon.

2. If the defence evidence creates a reasonable doubt in the prosecution
case, defence taken up by the accused must succeed.

3. If the defence evidence cannot be accepted and cannot be rejected the defence taken up by the accused must succeed.

38. I will not repeat on the first argument of the accused person that the injuries were self inflicted as it discussed during the evaluation of medical evidence.

'Intention' as a Defence

39. Although I am of the view that this offence is in the category of 'strict liability offences' I will address the second argument of the accused in the interest of justice.

40. He states that this was not an intentional act. The victim has strongly denied the fact that the accused is a friend of him. He has admitted that the accused was known to him in daily routine work as a bus driver. A person will not become a friend merely they meet or see each other on a daily basis.

41. The accused stated in his evidence that he only threw 7 tickets to the victim and the other 20 tickets fell when he tried to comfort the victim after the incident. This position was not proposed to the victim during his cross examination. Hence it will not create a doubt on the actual number of tickets the accused threw.

42. The victim in his examination in chief stated that the 27 tickets were rolled with two rubber bands and one broke when the accused threw at him. He further stated that the accused threw this bunch from a distance of two meters. He demonstrated the way accused threw it. Court notes that the accused threw it with force. It is obvious that when it was thrown, the victim had looked at the accused and the impact on the eye was direct. Further he stated that this happened when he was on the driver's seat and the engine of the bus was switched on. 

43. The circumstances demonstrate that the victim had no opportunity to resist the action of the accused. Court observed the bunch of 27 tickets that was marked as an exhibit. It has some weight with four pointed edges of hard cover. A forceful throw form a short distance of 2 meters could create pain for a person even if he resists it. Any prudent person will bear this knowledge. Therefore if a person throws it in to an eye of another person, the intention of that person is clear and it is to create something more than simple pain. 

44. It is to be noted that the accused has taken the same position in his caution interview. But the statement was made 3 ½ months after the incident. Thus accused had ample opportunity to prepare his defence. But the accused has not mentioned any breach of law by the victim in his interview statement. Instead he stated that he was playing with the victim. Having considered these discrepancies the Court totally rejects the testimony of the accused person. Therefore the Court refuses the accused person's stance of that it was 'unintentional'. 

The act of the accused, is it 'lawful'?

45. As mentioned in a scope of 'strict liability' offences, the possible defences are limited. The accused can prove that the act is not unlawful. It is worth at this stage to consider the meaning of 'Unlawful'. In the case of State v Tegu 2010 FJHC 489 Hon. Justice Temo during his summing up to the assessors explained the meaning of 'Unlawful'.

'An "unlawful act", is simply an act not justified in law. For example, during a drinking party, if A and B had a dispute, and A punched and kicked B in the head, or body, without any justification, that punching and kicking would be "unlawful acts". They are "unlawful acts" because they are assaults in law, that is, they are an unlawful application of force to the person of another, and therefore unlawful. Likewise, if A later stomped on B's head, after punching him to the ground, that "stomping" would also be an "unlawful act", because it is an unlawful application of force to the person of another, and thus an assault, in law.

46. On the other hand if an accused person has acted in his self defence, his act to wound another person would be lawful. The prosecution questioned the accused whether he charged the victim on that day for any offence. He said he did not because of his friendship towards the victim. This reasoning of the accused is unacceptable. The Court considers this answer as a late explanation to cover his unjustifiable action. The only conclusion that can be arrived is the victim did not commit any wrong on that day. Hence the accused cannot provoked by a lawful act of another.

47. Thus the act of the accused person to throw the bunch of tickets in to victim's eye cannot justify and indeed it is an unlawful act.

48. For the foregoing reasons this Court conclude that the prosecution has proved their case beyond reasonable doubt.

49. The accused convicted as charged.

50. Now the Court will proceed to hear you in mitigation.

51. 28 days to appeal.

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

12th July 2012