IN THE HIGH COURT OF FIJI
At Suva
Appellate Jurisdiction

CRIMINAL APPEAL NO. 50 OF 1992

Between:

SHIU WILLIAM CHETTY
s/o Vengtesh Chetty
Appellant

- and -

THE STATE
Respondent

Mr. V. Maharaj for the Appellant
Ms. L. Laveti for the Respondent

JUDGMENT

On the 13th of March 1992 the appellant was convicted after trial in the Magistrate Court, Nausori for an offence of Act with Intent to Cause Grievous Harm.

The prosecution's case was that on the day in question whilst the victim was working in his garden, the appellant attacked him with a caneknife completely severing his right index finger. The defence case on the other hand was that the appellant never went anywhere near the victim on the day in question and the allegation against the appellant was falsely made owing to long-standing enmity between them.

At the trial the prosecution called the victim and his son to prove it's case and the appellant made an unsworn statement denying the charge. He also called a witness in his defence.

In his judgment the learned trial magistrate based his decision on the following "findings".

"1.	The nature of the injury which this Court found it practically impossible, that neither the Complainant nor his son was responsible; 

2.	The case history of this case, where both the Complainant and the Accused were involved in a long drawn dispute which ended up in Court on several occasions; and 

3.	The evidence given in Court by the Complainant and supported by his son which this Court is inclined to believe."

The appellant now appeals against his conviction on the following grounds: 

"1.	That the learned Magistrate erred in law and in fact in convicting your petitioner against the weight of the evidence whereby grave miscarriage of justice has occurred to the Appellant; 

2.	That the learned Magistrate erred in law and acted in contravention of Section 136 of the C.P.C. Cap.21 and also Oaths Act Cap.42 owing to non availability of the Holy Bible in Court at the material time whereby not only the whole proceedings was a nullity but a grave miscarriage of justice has occurred to your Appellant; 

3.	That the learned Magistrate erred in law and acted in contravention of Section 211 of the C.P.C. in his failure at the close of the prosecution case to call upon the appellant personally to make his election in terms of S.211 of the C.P.C.;

4.	That the learned Magistrate erred in law and in fact in his failure to either analyse or to give any weight to the unsworn statement of your Appellant; 

5.	That the Learned Magistrate erred in law and in fact, in that, he misconstrued the evidence of the Defence witness; and 

6.	That the Learned Magistrate erred in law and in fact in holding or inferring that because of a long drawn out dispute between the Appellant and the Complainant your appellant committed the offence when such an inference was not the only inference that could have been drawn thereby grave miscarriage of justice has been caused to your Appellant."

At the hearing of the appeal learned counsel for the appellant argued grounds 2 and 3 separately and the remaining grounds together. I propose in this judgment to do likewise.

Ground 2 arises from the fact that the appellant's witness at the trial was not sworn but instead was affirmed ostensibly because a bible was not available at the time.

Counsel referred to the provisions of Section 137 of the C.P.C. and Section 2 of the Oaths Act and in particular Counsel read from the decision of Hammett Acting C.J. in Ram Prakash v. R. 9 F.L.R. 165 in which it was 

"Held - (1)	The combined effect of Section 137 of the C.P.C. and Section 2 of the Oaths Ordinance is that the only witnesses who may be affirmed instead of taking the oath are those who (a) have no religious belief (b) declare that the taking of the oath is contrary to their religious belief, or (c) are incapable of comprehending the nature of an oath by reason of defect of religious knowledge or belief."

That decision however was based upon a differently worded provision in the Oaths Act which was subsequently amended in 1964 to include a further 'category' when the Court could permit a witness to make a solemn affirmation and that is where: 

"(b)	it is impossible or impracticable for any person to take an oath."

Learned counsel for the appellant however on having this matter pointed out to him then submitted that the additional 'category' referred to the witness and not to the circumstances of the Court. I cannot agree that this additional 'category' should be so-limited in its scope. 

In my view the fact that the "impossibility" arises from a physical impairment on the part of the witness for example in the case of a deaf mute or that it arises from the more mundane occurrence of the non-availability in Court of a suitable holy book does not alter the position.

In both instances the trial Court has a discretion to permit the witness to make a solemn affirmation and although this Court may interfere if clearly satisfied that the trial Court's discretion has been incorrectly exercised, in the circumstances of this case such a course would be inappropriate. This ground of appeal fails and is dismissed.

Then counsel complains that the appellant was not required personally to elect what course he would adopt in his defence as required by Section 211 of the Criminal Procedure Code. True there is no entry in the Court record to the effect that the provisions of Section 211 of the Criminal Procedure Code had been complied with but the fact remains that the appellant was represented throughout the proceedings by senior counsel and would undoubtedly have been advised of his rights.

Indeed the record reveals that at the appropriate time counsel advised the Court that the appellant would give "unsworn evidence" which he proceeded to do. The record also reveals that the appellant called a witness in his defence and further in addressing the Court at the close of the prosecution's case learned counsel for the appellant is recorded as having correctly identified the "3 options" which a trial Court ought to give an accused under Section 211 and later in his closing address. Counsel is recorded as having said: 

"The defence was given liberty to give evidence, and he gave unsworn evidence."

In the circumstances this ground of appeal is based on nothing more than the absence of an appropriate entry in the trial record. Such an irregularity (if it did occur in fact) could not in my view vitiate the trial nor would it give rise to any miscarriage of justice in the prevailing circumstances. This ground of appeal also fails and is dismissed.

The final ground of appeal however relates to what may be loosely described as the 'merits of the case' and on this aspect of the appeal the appellant in my view is on firmer ground.

I am mindful that the conviction of the appellant was based almost solely upon an assessment of the credibility of the complainant on the one hand and the appellant on the other and that in such circumstances an appellate Court is normally reluctant to interfere with the trial Court's assessment.

That is not to say however that this Court would never interfere with a trial Court's finding of credibility and indeed Lord Thankerton in Watt v. Thomas (1947) A.C. 484 identified such an instance when he said: 

"The Appellate Court either because the reasons given by the trial judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witness, and the matter will then become at large for the appellate Court."

In this regard learned counsel for the appellant raises several deficiencies in the magistrate's judgment including his failure to refer to the appellant's prior consistent police interviews, his failure to analyse the evidence, misconstruing the evidence of the defence witness and drawing the wrong inferences from the evidence as a whole.

In particular counsel argues that having misconstrued the evidence of the defence witness the trial magistrate failed to realise its significance in that if anything unusual had occurred in the complainant's compound or a loud scream was uttered the witness was so-placed in the appellant's compound that he would have both seen and heard it.

In other words the witness said he did not see or hear anything not because at the time he was in the appellant's house watching video (as the trial magistrate states) but rather because nothing actually happened in the complaint's compound.

Then there was the absence of any blood stains at the alleged scene of the offence as might be expected having regard to the nature and extent of the complainant's injury. It certainly bled profusely in the car of the neighbour who took the complainant to hospital and although the appellant's knife had a 'red stain' on its handle nothing is known about what? it is or how? it came to be there.

Learned State Counsel in a somewhat broad-based submission argued that the trial magistrate had reached the correct decision. Counsel's argued that the issue before the trial Court was simply one of credibility and the magistrate saw and heard the witnesses and believed the prosecution. Reference was also made to the "grounds" upon which the trial magistrate purported to base his decision.

In this latter regard with all due respect to the learned trial magistrate his "grounds" do not stand up to scrutiny. The first, in my considered view does not go far enough. It merely rules out the possibility that the complainant's injury was self-inflicted and fails to discount the possibility that it may have been 'accidental'. The second, without more is 'immaterial' (see: Section 9(3) of the Penal Code Cap.17) and in any event is equally consistent with the appellant's version which was, that the complainant had a 'motive' to falsely accuse him and the third and final 'ground' fails to give sufficient weight to the startling inconsistencies in the son's evidence during his examination-in-chief and cross-examination.

In all the circumstances I have reluctantly come to the conclusion that the prosecution's case has not been established to the high standard of proof required to sustain a conviction on a criminal charge and must be considered unsafe.

The appeal is accordingly allowed and the appellant's conviction is quashed and the sentence set aside.

(D.V. Fatiaki)
JUDGE

At Suva,
1st March, 1993.
HAA0050J.92S