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Bali v Reginam [1960] FijiLawRp 17; [1960-1961] 7 FLR 80 (23 December 1960)

[1960-61] 7 FLR 80

FIJI COURT OF APPEAL
AT SUVA

APPEAL No. 7 OF 1960

RAM BALI

v

REGINAM

Sir Francis Adams, Acting President, Trainor and Knox-Mawer, J J/A

23rd December, 1960

(Appeal from H.M. Supreme Court of Fiji—Hammett, J.)

Assessors — judge rejecting unanimous opinion of — misdirection in summing up — whether substantial miscarriage of justice.
The appellant was tried (with another man who was acquitted) before a Judge sitting with three assessors upon three charges of attempted murder. In his defence the appellant put forward an alibi. In his summing up the Judge asked the assessors, in the first place, whether they accepted the alibi, and secondly whether they considered the appellant guilty or otherwise of the offences charged. The first assessor said he did, the other two said they did not accept the alibi. All three assessors considered the appellant not guilty of the offences charged. In his judgment the trial Judge rejected the alibi, and convicted the appellant, on the first two charges, of attempted murder, and on the third charge, of wounding.

Two principle grounds of appeal were advanced against conviction. Firstly, citing the judgment of the Fiji Court of Appeal in Ram Lal v The Queen (Criminal Appeal No. 3 of 1958), that there were no very good reasons reflected in the evidence to justify the trial Judge in differing from the unanimous opinion of the assessors. Secondly that there were misdirections in the summing up as to the onus of proof in respect of the alibi put forward by the appellant. The Judge had stated:

"As I have already told you, the onus of proof rests on the prosecution, but if the defence set up proves conclusively to your satisfaction that the accused were elsewhere at the actual time the offence was committed, the accused are entitled to be acquitted and there would be no need for you to consider further the evidence of the actual shooting."

It was argued that while it was correct to say that conclusive proof of an alibi necessarily leads to an acquittal, this statement, standing alone, was likely to be interpreted by laymen as meaning that an alibi requires to be proved conclusively by the defence. It was also pointed out by the appellant that when the Judge came to the consideration of the alibi he said "If after considering that evidence as a whole you do accept the alibi", thereby suggesting that actual acceptance of the alibi was necessary for an acquittal, a contention supported, said the appellant, by the fact that the Judge had intimated to the assessors that, aside from their general opinion upon whether or not the charge had been proved, he wished to know specifically whether or not they accepted the alibi.

Held.