IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

APPEAL NO.HAA0072 OF 1994

Between

MOHAMMED RAFIQ
Appellant

And

STATE
Respondent

Counsel: Appellant in person
Mr. McNaughtan for Respondent

Hearing: 9th May 1995
Decision: 9th May 1995

ORAL DECISION OF PAIN J.

The Appellant appeals against his conviction and sentence in the Magistrates Court. He pleaded not guilty to a charge of striking his wife with a knife with intent to cause grievous harm to her. In a discursive letter of appeal the Appellant challenges the conviction on grounds that include the conviction being based on hearsay evidence and the complainant's police statement rather than the evidence given on oath.

At the hearing in the Magistrates Court on the 18th May 1994, the Appellant's wife was called to give evidence against him. There is nothing in the record to indicate that she was advised about her rights in relation to giving evidence against her husband. In any event her evidence was that on the day in question she fell over a cliff and hurt her head.

She said that her husband did not assault her and did not strike her with a knife. The Magistrate was shown her earlier statement to the police and declared her to be a hostile witness. She agreed in cross examination by the prosecutor that she had told by police that she was assaulted by her husband with a knife but that was only in anger. She was angry because her husband was having an affair with another woman.

The only other prosecution witness was Police Constable Kumar. He was permitted to give evidence of the wife's complaint and produce a copy of her statement. He produced a knife and was permitted to say that the complainant identified it as the knife used by the Appellant. He also produced a medical report which stated that the complainant had a lacerated wound to the scalp which was consistent with stabbing. He also produced a statement made by the Appellant in which the Appellant denied stabbing his wife.

On this evidence the Magistrate ruled a prima facie case.

The Appellant then gave evidence. He said that he did not assault his wife. She was angry and arguing with him, so he left.

In his decision the Magistrate rejected the sworn testimony of both the complainant and the Appellant. He said that he believed what the complainant said to the police in her statement. He found the policeman to be a credible witness whose evidence was consistent with what the wife said in her statement. He also said that the medical report proved that the complainant had been assaulted with a knife. For these reasons he found the charge proved.

The case was adjourned for sentence. At a subsequent hearing, the Magistrate convicted the Appellant and sentenced him to 18 months imprisonment. He also activated an earlier 6 months suspended sentence, both terms to be served concurrently.

This appeal raises several issues which are very important in criminal trials where a heavy onus rests on the prosecution.

The first relates to the status of the Appellant's wife as a witness against him. Section 138 of the Criminal Procedure Code abrogates the old common law rule that a wife could not give evidence against her husband. In terms of the Section, a wife is a competent witness for the prosecution when her husband is charged in respect of an act affecting her person. However, although rendered competent by statute, she is not a compellable witness. (See for instance Leach v R 1912 AC 305 decided on similar legislation). The leading authority on this issue is the House of Lords case of Hoskyn v Metropolitan Police Commissioner 1979 AC 474. In that case a wife was unwillingly required to give evidence against her husband. As she was not a compellable witness, the conviction of the husband was quashed.

In this case the complainant was not advised that she was not obliged to give evidence. It is desirable that in such circumstances, the court should explain to a defendant's wife, before she takes the oath, that she has a right to refuse to give evidence. It is apparent from the record in this case, that if the complainant had been given this advice, she would have refused to give evidence against the Appellant.

The next point to be mentioned is that the guilt of a defendant can only be decided upon the evidence adduced in Court. The evidence given by the complainant in this case exonerated the Appellant. She was cross examined as a hostile witness on the basis of the statement that she had made to the police. This merely goes to the credibility of the witness and the earlier statement is introduced to show that the testimony given by the witness in court is unreliable. In this case the Magistrate found that the complainant was totally discredited. This means that her sworn testimony is rejected and it is as if she had not given any evidence at all. However the previous statement does not constitute evidence upon which the Court can act. As a general rule statements made out of court are not admissible in evidence.

They infringe the hearsay rule. There are notable exceptions, such as oral statements forming part of the res gestae, complaints in sexual cases and confessions. No exception applies in this case. The previous statement of a hostile prosecution witness would only become evidence if it was unequivocally adopted as true by the witness when cross examined. That did not occur in this case. The complainant repudiated that statement. Authority for these various principles can be found in the cases of Lote Ratu v R Cr. Appeal 24 of 1986; R v Golder & ors. 1960 3 All ER 457; R v White 1922 17 Cr App. R 60; R v Driscoll (1977) 51 ALJR 731 and R v Carrington 1969 NZLR 790.

It follows in this case that the Magistrate should not have accepted the police statement made by the complainant's wife as evidence against the Appellant.

The Police Constable who gave evidence in the Magistrates Court was unable to give any direct evidence of the Appellant striking his wife. The oral statements made by the complainant, such as the references to the kitchen knife, are in the same category as her written statement. They are inadmissible hearsay.

The Medical report is only evidence of the injury suffered by the complainant and contains an opinion that it is consistent with a knife wound. However it does not exclude the infliction of the injury by some other means and does not constitute evidence that the Appellant caused that injury.

The Respondent's evidence that he did not strike his wife and did not know how she sustained injury was rejected by the Magistrate as unbelievable and untrue. However, that cannot amount to proof that he did strike his wife. As with the complainant, the rejection of the Appellant's evidence means that the case must be considered as if he had not given any evidence at all. The Appellant could only be convicted if the prosecution evidence proved his guilt.

It follows that the Appellant should not have been convicted on the evidence adduced in this case. The wife was not a compellable witness and the admissible evidence adduced by the prosecution was insufficient to prove that the Appellant struck his wife with a knife. It may or may not be that his wife's original statement to the police was true. However, there is no evidence to prove that version of events.

For these reasons the appeal must succeed.

I conclude by saying that this appeal was set down for hearing within a few days of the file being given to me. It is inexcusable that the justice system with a backlog of cases has permitted the Appellant to be incarcerated for such a lengthy period. Tragically he has served most of a prison sentence which, at law, ought never to have been imposed. Steps are being taken to ensure that this will not re-occur.

The appeal is allowed. The conviction of the appellant in the Magistrates Court and the sentence imposed thereon (including the activation of the suspended sentence) are quashed.

JUSTICE D.B. PAIN
HAA0072D.94S