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Magistrates Court of Fiji |
IN THE MAGISTRATE’S COURT OF NASINU
CRIMINAL CASE NO.1242/2010
STATE
Vs.
PENIAME DROVA
Police Constable Ravi Narayan for the State
The accused is absent at the hearing date
Judgment in absentia and Sentence
[1] The accused is charged with the offence of Assault Occasioning Actual Bodily Harm. The charge read as follows;
CHARGE:
Statement of Offence [a]
First Count
[2] ASSAULT OCCASIONING ACTUAL BODILY HARM – Contrary to Section 275 of the Crimes Decree No. 44 of 2009.
Particulars of Offence [b]
[3] PENIAME DROVA on the 21st day of October, 2010 at Nasinu in the Central Division unlawfully assaulted MOHAMMED AKTAR thereby occasioning him actual bodily harm.
Summary of evidence
[4] The accused pleaded not guilty to the charge on 03rd May 2011. He was given full disclosures and hearing date was allocated. That is 19-03-2012. On the Hearing date the accused was absent. He did not inform any reasons for his absence. The all witnesses for the prosecution were present. The prosecution applied trial in absentia.
[5] The Pertinent section is section 171 of the Criminal Procedure Decree. I reproduced it for clarity.
“171. — (1) If at the time or place to which the hearing or further hearing is adjourned —
(a) the accused person does not appear before the court which has made the order of adjournment, the court may (unless the accused person is charged with an indictable offence) proceed with the hearing or further hearing as if the accused were present; and
(b) if the complainant does not appear the court may dismiss the charge with or without costs.
(2) If the accused person who has not appeared is charged with an indictable offence, or if the court refrains from convicting the accused person in his or her absence, the court shall issue a warrant for the apprehension of the accused person and cause him or her to be brought before the court.”
[6] Since this charge is a not an indictable offence, I allowed the application of trial in absentia. The court should not wait for the accused and the accused has a responsibility to come to court as he was on police bail. Then trial commenced. At the trial, prosecution called following witnesses to prove their charge.
[7] PW 1-Mohammed Aktar; in his evidence, he said that he stays in Salim street, Nakasi for 3 years. This premise comprises 5 flats. He is residing in the top flat. The others were occupying by “Rewa” soccer players. They stay in bottom flats. There were two flats on the top and two of the ground and one is beside the ground flat. He further said “I was the caretaker of the Rewa Soccer team, so all of the players know me very well. That was camping time, during camping time the players were coming to stay there”. He said four of them have come. They were Mr and Mrs James Naka from Solomon Islands and Mr and Mrs Peniame Drova. The witness said the relationship between players and him, was very good and cordial. On 21-10-2010 at about 3pm this incident happened. He received a call from his wife and she told that players are having beer. The witness said it was not allowed. He then came home and informed the accused that drinking beer is not allowed in the premises. Then, he called his boss and informed the incident. The witness said the accused got frustrated and assaulted him. The witness went on saying “When he punched me I received injuries. I was knocked down on the floor. I had bruises and it was swollen. I was unconscious for 10 to 15 minutes. Mrs Naka poured some water then I regained the consciousness. I could not realise what had happened”. He said he reported matter to the police and he was medically examined. The Medical Report was tendered as Ex-1. The Court questioned the witness since this is a reconcilable offence did the accused attempt any reconciliation. But answer was negative.
[8] PW2- Vika Fli WPC 3265. The witness said she conducted the cautioned interview. It was conducted in Fijian language in questions and answers form. Before that was conducted she gave rights to the accused to consult a solicitor and/or call relation of him (family member). The witness said the caution interview was explained and read out to the accused and he signed and the witness counter signed it. This caution interview was shown and identified by the witness and it was marked as EX-2. The witness referred questions 6, 7, 8 and answers to those questions as an admission of the offence.
[9] PW3- Lavenia Qiodrau WPC 3747: the witness said she charged the accused. Charge statement was read to the accused in Fijian. All rights were given. This charge statement was translated by PW2 Vika. Then Charge Statement was marked as EX-3 Then prosecution closed their case.
The Law
[10] The Section 275 of the Crimes Decree 2009 provides that;
“A person commits a summary offence if he or she commits an assault occasioning actual bodily harm.
Penalty — Imprisonment for 5 years.”
[11] Elements of the charge of assault occasioning actual bodily harm are (1) assault (2) occasioning actual bodily harm
[12] In State v Tugalala [2008] FJHC 387; HAC0025.2008 (28 April 2008) Her Ladyship Justice Nazhat Shameem observed similar offence under the repealed penal code said; “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
[13] 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.
[14] 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 reasonable doubt. mhis means that you must be satisfied so that you feel sure of the guilt of the accused persons before you expresopinion that they are guilty. If you have any reasonable doubt as to whether the accused peed 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 reble doubt about the the guilt o accu accused."
[15] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen ( 1970 AC 618) also reported in 72 New Law Reports(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.
[16] 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
[17] In line with the above guiding principles, I now evaluate the evidence adduced before me. The PW1 said he was punched by the accused. To prove this charge as I noted to elements are to be proved. The first one is committing an assault, and the second is occasioning actual bodily harm."
[18] He (PW1) was examined by a doctor on the same day and he noted 1 minor injury. Doctor noted in Medical report item D12 "Bruised on left ear, no other findings of abuse, claims he has a headache". On that examination the victim said to that doctor that he was assaulted by the accused. "Alleged that he was assaulted by one Peniame Drova this afternoon"- Section A (4)". This statement was made by the victim on the same day and his complaint of assault is proved and corroborated by the Ex-1 Medical Report.
[19] When I draw my attention to the accused interview statement which was tendered as Ex-2 he denied that he punched the victim.
"Question 6: Did you know the reason of you being here? Yes
Question 7: Why? Because I punched Mohammed Aktar
Question 8: What can you say about this allegation? I did not punch him, I just pushed him
Question 9: When you pushed him what happened? He then fell down
Question 10: After that, what else happened? He fell down and was unconscious.
Question 11: This means you must have pushed him too hard? What can you say? Yes, I hold is neck and pushed him down
Question 12: After how long did Mohammed then gain consciousness? About 5-10 minutes."
[20] This statement was done one day after the assault and the accused version is tally with the victim's version. It is common thing that very one would understand by pushing one cannot get unconsciousness. The victim says he was punched and it hit on his cheek. The doctor examined one bruised in left ear. The victim claimed headache. This proves that the accused punched the victim.
[21] I hold that the prosecution had discharged its burden beyond reasonable doubt. The accused did not appear and did not impeach any evidence. There is no doubt create in this evidence and it further strengthened by the accused cautioned interview. This was fixed for trial and till that date the accused did not dispute that is statement was taken under duress or force. I hold this statement was taken fairly and it is admissible as evidence.
[22] I therefore convict the accused as charged.
[23] I now consider sentence. The accused did not come and was convicted just now. The Court cannot see when he would be arrested. I therefore consider to give sentence now itself.
[24] Maximum penalty could be imposed for this offence is five years imprisonment.
[25] It was held in State v Tugalala [[2008] FJHC 78; HAC025S.2008S (29 April 2008), the tariff for this offence appears to range from an absolute or conditional discharge to 12 months imprisonment. As cited in earlier case, in Elizabeth Joseph v. The State [2004] HAA 030/04S and State v. TeAlafi [2004] HAA073/A073/04S, th t it is the extent of the injury which determines sentence. The use of a pen knife for instance, justifies a higher starting point. Where there has been aberatault, causing hosg hospitalization and with no reconciliatiliation, a discharge is not appropriate. In domestic violence cases, sentences of 18 months imprisonment have been upheld in Amasai Korovata v. The State [2006] HAA 115/06S.
[26] There are no aggravating or mitigating factors in this case. I therefore select 6 months imprisonment. The victim was unconscious by this assault and this should be real traumatic experience. This case went to trial and resource of court was utilized. In CRIMINAL CASE NO. HAC 098 OF 2009S THE FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION[FICAC]vs ASHWIN KUMAR JOGIA and PENISENIASI TAGIKIMATUKU, His Lordship Justice Temo indicated if court's resources were used custodial sentence is inevitable.
[27] I therefore reluctant to suspend the sentence without any strong ground. The 6 months imprisonment is to be started after the apprehension of the accused.
[28] 28 days to appeal from today. If the accused was arrested after the 28 days, there is no appeal right since 28 days have been lapsed.
On 20th March 2012, at Nasinu, Fiji Islands
Sumudu Premachandra [Mr.]
Resident Magistrate
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