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State v Mamatuki [2013] FJMC 416; Criminal Case 974.2011 (11 December 2013)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case No: - 974/2011

STATE

v

WAISEA MAMATUKI

For Prosecution: Mr. Nath (DPP)
For Accused: Ms. H. Rambuku

JUDGMENT

1. The accused has been charged with the following offences.
   

Statement of Offence

First Count: Assault Causing Actual Bodily Harm: contrary to Section 275 of the Crime Decree No. 44 of 2009.

Particulars of Offence

Waisea Mamatuki, on the 10th day of December 2010 at Samabula in the Southern Division, assaulted Vikash Reddy thereby causing him actual bodily harm.

Statement of Offence

Second Count: Assault Causing Actual Bodily Harm: contrary to Section 275 of the Crime Decree No. 44 of 2009.

Particulars of Offence

Waisea Mamatuki, on the 10th day of December 2010 at Samabula in the Southern Division, assaulted Reshmi Ritika Reddy thereby causing her actual bodily harm.

Statement of Offence

Third Count: Assault Causing Actual Bodily Harm: contrary to Section 275 of the Crime Decree No. 44 of 2009

Particulars of Offence

Waisea Mamatuki, on the 10th day of December 2010 at Samabula in the Southern Division, assaulted Kaliamma Reddy thereby causing her actual bodily harm.

2. The accused pleaded not guilty to all the counts and the trial was taken on 08 May 2013 and 03 October 2013. At the end of the trial both parties opted to file closing submissions.
   
3. For the prosecution's case 5 witnesses were called (03 civil witnesses and 02 police officers) and for the defence the accused gave sworn evidence. The defence also called 02 other witnesses.
   

SUMMARY OF EVIDENCE

Prosecution's case

4. PW1 was Vikash Nand and he said on 10 December 2010 as he was getting ready to go to work somebody banged the wall and asked them to quite. His sister replied that they were having a family conversation and then the other party started swearing at them. After that as he opened the door the accused came and punched him on his chest. Then the accused punched his mother (PW2) and his sister (pW3). After that PW1 with others went to the Samabula Police Station to report and were medically examined in the CWM. (The defence objected to the tendering of the medical reports of the witnesses as they were not properly disclosed and therefore the Court did not allow them to be marked as exhibits)
   
5. In cross examination PW1 denied that when he saw the accused he ran back towards the door and hit his chest on the side of the door. In re- examination PW1 said at that time his mother, sister, brother and sister's daughter were there.
   
6. PW2 was Kalima Reddy the mother of PW1. In her testimony she said on that day as PW1 opened the door wise (the accused) came and punched him three times. Then he punched PW2 on her left jaw, right neck and right shoulder and entered the house. After the incidents his son went to the police station and reported the matter and police took them to CWM.
   
7. In cross examination she said she heard someone banging the wall and her daughter told that was the accused. She also said after the assault she was in pain and denied fabricating the evidence against the accused. In re- examination she said she was taken to the hospital after the incident.
   
8. PW3, Reshmi Reddy is the daughter of PW2 and said on 10 December 2010 around 6am the accused's wife knock the wall and told them not to make noise. Later they started to swear at them. After that his brother (PW1) was about to leave the home when the accused came and assaulted him on his chest. Then he punched her mother (PW2) and came to her. She ran inside and he came and hit her near the shoulder and told her that he was a police officer and they have to respect him. They later reported the matter to the police and went to CWM for examination.
   
9. In cross examination she said she saw the accused assaulting her brother and her mother.
   
10. PW4, Inspector Kant was the I/O and also interviewed the accused on 13 December 2010 and this was tendered as Exhibit -01. PW4 also showed the accused the medial report of PW3 during the interview. In cross examination he admitted that he did not interview the landlord or his mother.
    
11. PW5, Cpl Pita was the charging officer and this was marked as Ex-02.
    
12. The prosecution closed the case after that and the Court found a case against the accused and gave his rights pursuant to section 179 of the Criminal Procedure Decree. The accused opted to give sworn evidence and wanted to call some other witnesses to substantiate his claim.
    

Defence Case

13. The accused in his evidence said his neighbors (complainants) were talking loudly that day and he went there with his wife and told them to respect other tenants also. At that time PW1 was not there. Later PW1 came and as he saw them he ran outside and collided with door. The accused denied assaulting any of the victims that day.
    
14. In cross examination the accused said he told his neighbors to quit that day and denied assaulting Reshma (PW3) or Vikasha (PW1).
    
15. DW2 was Sharmilla Ben, the partner of the accused and she testified that as the neighbors were shouting the accused went there and she followed him. PW1 came also and as soon as he saw them he walked away from there. In cross examination DW2 said that PW1 walked away and bumped on the steps.
    
16. Last witness for the defence was Rohit Reddy, the land lord of the house and in cross examination said that he did not see what happened that day but heard PW2 shouting that she was hit.
    
17. After calling DW3 the defence also closed their case. Both parties opted to file closing submissions but only the State filed their submission in the registry. I have considered that submission also.
    
18. In their submission state submitted that from the evidence they have managed to discharge their burden in this case and therefore the accused should be convicted for all the counts.
    
19. Before analyzing the evidence I will briefly consider the law that would be applicable in this case.
    

The LAW

20. The accused has been charged with 03 counts of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree.
    
21. Section 275 states that:
    

"A person commits a summary offence if he or she commits an assault occasioning actual bodily harm."

22. The element the prosecution has to prove are:
    
    1. The accused
    2. Commits an assault
    100. Occasioning actual bodily harm.
         
23. In landmark case of Woolmington v DPP (1935) AC 462 Viscount Sankey LC observed 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".
    

24. In State v RODNEY AUGUSTINE FONG HAC 300 OF 2011S His Lordship Justice Temo in his summing up defined the burden of proof and standard of proof in criminal trial as follows :-

"As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.

The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty."

25. In Miller V Minister Of Pension [1947] 2 AER Lord Denning explained the 'proof beyond reasonable doubt' as 'That degree is well settled It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of the doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favor, which can be dismissed with the sentence "of course it is possible but not in the least probable", the case is proved beyond reasonable doubt, but nothing short of that will suffice.'

Analysis of the Evidence

26. Main witnesses for the prosecution (PW1, PW2 and PW3) in their testimonies stated that the accused assaulted them on that day. On the other hand the accused denied these assaults.
    
27. The learned counsel for the defence cross examined all these prosecution witnesses but failed to raise any significant doubt about their evidence. They were consistent with each other. Also I am satisfied with the way they gave evidence in the Court.
    
28. From the prosecution's evidence I decide that only disputed element in this case is 'causing actual bodily harm'. This happened because the prosecution failed to disclose the medical reports of the victims to the defence and therefore was not allowed to tender them as exhibits.
    
29. The purpose of tendering the medical reports would be to corroborate the victim's evidence and to show the extent of the injuries. Since in this case this was not allowed I have to rely on the evidence of PW1, PW2 and PW3 to see about this element.
    
30. The learned state counsel in his closing submission has drawn the Court attention to definition of "harm" in Crimes Decree which sates:
    

"harm" means any bodily hurt, disease or disorder (including harm to a person's mental health) whether permanent or temporary, and includes unconsciousness, pain, disfigurement, infection with a disease and physical contact with a person that the person might reasonably object to in the circumstances (whether or not the person was aware of it at the time);

31. 'Actual Bodily Harm ' has been defined as any injury which is calculated to interfere with the health or comfort of the victim ( Miller [1954] 2QB 282, per Lynskey J at p.292).

32. In State v Chand [2008] FJHC 342; HAC71.2007 Justice Sherry said :

"Bodily harm should ve a wide interpretapretation and not be restricted to harm&#160he skin, flesh andh and bones of Navineshwar Nand. It may include organs, nervous system anin."

33. In R (T) v DPP [2003] EWHC 266; [2003] CRim LR 622, it was held that a momentary loss of consciousness by V, following a kick to the head, could properly be regarded as actual bodily harm even where there was no other discernible evidence of injury. (Blackstone's Criminal Practice B2.27).
    
34. Therefore I decide that even without any physical injuries the State can prove this element if they can prove that the victim's suffered any disorder (unconsciousness, pain, disfigurement ).
    
35. According to the State all the victims testified that because of the assaults they were in pain and therefore this is sufficient to prove this element.
    
36. Whilst perusing the evidence from the court record I find that only PW2 stated that she was in pain because of the assault. PW1 and PW3 only mentioned that they were assaulted and they did not mention about any injuries or pain.
    
37. Therefore I do not think there is any evidence to prove this element with regard to PW1 and PW3 (1st and 3rd count).
    
38. For the 2nd count I am satisfied about evidence presented by the prosecution. As mentioned above the accused denied this. He called two other witnesses on behalf of him.
    
39. DW3 (Landlord) evidence would not help the accused in this case. He said that he did not see the incident. But he heard PW2 shouting that she was hit which would support the prosecution's version.
    
40. DW2 said that PW1 walked and hit on stairs which is contradictory to the accused's version. Therefore I am not prepared to accept the defence's version.
    
41. I have already discussed about the PW1's and PW3's evidence. Their evidence does not support the 1st and 3rd count.
    
42. Now I would draw my attention to section 160(2) of the Criminal Procedure Decree which would be applicable in this kind of situation. Section 160 provides:
    

"When a person is charged with an offence and facts are proved which reduce it to a minor offence, the person may be convicted of the minor offence althougor she was not chargcharged with it."

43. The accused is charged with the two counts As Occasioning Actual Bodily dily Harm contrary to section 275 of the Crimes Decree against PW1 and PW3. The prosecution has failed to prove the element of 'causing bodily harm' in these two counts. But I am satisfied with the other two elements in this charge.
    
44. Section 274 of the Crimes Decree defines the Common Assault as follows:
    

"A person commits a summary offence if he or she unlawfully assaults another person."

45. From the available evidence I am satisfied that the accused can be convicted for the above offence with regard to PW1 and PW3.
    
46. Therefore I find the accused guilty to two counts of Common Assault contrary to section 274 of the Crimes Decree against PW1 and PW3 and convict him accordingly.
    
47. Also I find the accused guilty for one count of Assault Occasioning Actual Bodily Harm against PW2 and convict him.
    
48. 28 days to appeal.
    

11 December 2013

H.S.P.Somaratne
Resident Magistrate, Suva