(e) ;&nspp;&nssp;&nbs; &nbp; The Learngistaate eate erred in law and facts when he failed to take into consideration the inconsistent evidence of thplainnd thestigating
Officer;
(f) p; &nnsp;&nbp; &nbs; &nbbp;&nnbsp; The Learned Magistrgistrate erred in law and facts when he failed to take into consideration that Constable Yunmitteling and as such
his evidence d havn comly ignoregnored;
(g) & p;&bssp;&bbsp;&nbp;&nbp; &nbssp; The Learned rned Magistrate erred in law and facts when he failedake ionsidon thdence of the defence witness even though the complainant
admi admitted tted that that she dshe did speak to the defence witness after the incident.”
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The facts of the case as disclosed on the record are that the complainant, Sitli Singh, was on her way to a mother’s club prayer session
oion on Wainibokasi Road when she met the Appellant. They exchanged words, the complainant saying that the Appellant had accused
her of spreading rumours about the Appellant having an affair with the complainant’s husband. Sitla Devi said that the Appellant
assaulted her on the head, right shoulder, and ribs. She said that she in turn bit the Appellant to protect herself. Her jewellery
was broken and fell on the road. She then went to a police constable’s house nearby where she began to wash her hair. The Appellant
pursued her there and assaulted her further. Sitla Devi said that she went home and reported the matter to the police.
The medical evidence was that the complainant received two ˝ inch cuts on the head and shoulder, a haematoma (bruise) five centimetres
in diameter on the thigh and tenderness to the right side of the chest.
The Appellant was interviewed under caution. Unfortunately the interview is not included in the court record although the Learned
Magistrate has referred to it in his judgment. However from the Learned Magistrate’s reference to it, it would seem that
the statement was exculpatory and therefore of limited weight in any event.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Ground a
&
The Appellant submits that the medical report was wrongly admitted, and refers to the case of Colin Raymond Langford -v- R [1974)] FLR 11.
State Counsel concedes that the report was a memory-refreshing document but points out tha examination-in-chief comprised of the tendering
of the repe report, that the doctor was cross-examined on the report by the Appellant’s counsel himself, and that the tendering of
the report caused no prejudice to the Appellant.
In Langford (supra) Grant CJ found that a medical report was a memory-refreshing document forctor giving evidence and shnd should not ordinarily
be produced. However the appeal was allowed on the ground that the Magistrate had decided to give weight to one medical report over
another on the basis of a medical text book he had read, and had convicted the Appellant against the weight of the evidence.
That decision was therefore better authority for the issue of what weight ought to be given to expert evidence, than to the question
of the effect of improperly admitting a medical report.
Nevertheless, as a matter of evidence, a medicport read by a doctor in the witness-box, is a memory-refreshing document which is not
admi admissible except in the unlikely event that a fabrication is alleged. (See R -v- Sekhon 85 Cr. App. R.19)
The effect of exhibiting a memory-refreshing document is simply to show consistency in the witness producing it. Such a doc is not
evidence of the true truth of the facts stated in it. R -v- Britton (1987) 85 Cr. App. R. 14)
In Langford (supra) Grant CJ said at page 12:
“The doctor was called as a witness by the prosecution and was permitted by the trial Maate to put in evidence his his written medical
report in which he gave as his opinion that the appellant was so affected. This report, if contemporaneous could certainly have been
used by the doctor to refresh his memory but it should not have been produced in evidence unless, as a statutory exception to the
best evidence rule, section 184A of the Criminal Procedure Code applied, under the provisions of which certain documents may be produced in evidence in lieu of, but not in addition to, the oral
evidence of a witness and subject to the requirements of that section being complied with, which is not the case here.”
Section 185A of the Code is now replaced with section 191 which only applies to the use of t reports when the expert does not give
oral evidence.
As a general rule therefore, medical reports are not admissible, if they are used as memory-refreshing documents.
However, they may become admissible if there is an inconsistency between the record and the oral evidence. Once exed, it is not evidence
of t of the truth of its contents, only an aid to evaluating the credibility of the evidence of the witness R -v- Sekhon (supra).
Of course in this case, the Defence allegch an inconsistency. Counsel pointed to the Doctor’s oral evidence of a laceration, which
wich was not recorded. It appears therefore, that the Learned Magistrate had a discretion to allow the report to be exhibited, but
only after cross-examination on the alleged inconsistency, and after an application is made in that regard.
It appears from the record, that an incorrect procedure was adopted. Firstly, the doctor did not give evidence of the contents of
the r. He simply tendered it. Set. Secondly the report was tendered before any questions were asked about it which might lay the
basis for admissibility. Thirdly, no application was made by the prosecution to tender the report, as a memory-refreshing document.
However, as I have found, the report was admissible in any event, on the ground e alleged inconsistency. That inconsistency was alleged
by d by the Defence and the tendering of the report was therefore in the interests of the Appellant.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> I also find that the Learned Magistrate based his don to convict, largely on the credibility of the civilian witnesses, and that only
fleetingeting reference was made in any event, to the contents of the report.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> I find therefore that there was no prejudice toAppellant in the adoption of an incorrect procedure relating to the tendering of the
reporteport, and that this ground of appeal therefore has no merit.
In passing, I note that section 30 of the English Crimiustice Act 1988, now makes provision for the admissibility of an expert report,
whether or r or not, the expert gives oral evidence, and that the contents of the report are admissible as evidence of the facts
and opinions stated in it.
This may be a useful provision for the authorities to consider adopting in Fiji.
Ground b
The Appellant says that the Learned Magistrate failed to consider the defence of self-defence. The evidence that the Appellant was
defending herself came from her evidence, and the evidence of Madhu Lata. He rejected that evidence as being unworthy of belief.
There was no other evidence on which the Magistrate could have considered the defence of self-defence. Tidence of the complainant
was that she was attacked by the the Appellant and that she had to bite the Appellant to defend herself. The cautioned interview
appears to have been exculpatory and was therefore of limited weight. In any event, the Magistrate found the interview inconsistent
with the Appellant’s sworn evidence which had an inevitable effect on the credibility of both.
The Learned Magistrate having decided that the Appellant’s story was not worthy oief, was then entitled to settle for the complainant’s
vers version which ruled out self-defence.
For these reasons I find that the Learned Magistrate did not err in law in failing to refer to the law relatinself-defence and I dismiss
miss Ground (b) accordingly.
Ground c
Ground (c) is clearly devoid of merit. No rule of law or practice requires a corrtion warning in “domestic” cases. Fiji has not adopted
legi legislation yet that gives a judge or magistrate the discretion to give a general warning in cases where witnesses might be
considered unreliable for some reason.
As such, corroboration warnings are required in sexual offences, in cases when children give sworn evidence and i case of accomplices.
ThereThere are some cases in which a person cannot be convicted without corroboration in any circumstances, the notable examples
being perjury and the unsworn evidence of children of tender years.
There being no requirement for a corroboration warning in this case, this ground of appeal is dismissed.
Ground d
n lang=EN-GB>
In his judgment, the Learned Magistrate wrote that he had read the judgment in Case No. 660/98 in which his brother Magistrate had
acquitted the complainant of a charge related to the same incident.
Counsel for the Appellant submitted that this was improper and that the Learned Magistrate had thereby created a perception of bias
against the Appellant. He said that this was an irregularity which tainted his decision, and that the conviction should thereby be
quashed.
The test for bias is whether a reasonably informed observer in the courtroom, knowing all the ant circumstances would have a reasonable
suspicion or cons consider that there was a real danger of bias (Amina Begun Koya -v- State Cr.App.No.CAV0002/97).
The court record shows that the issue of the previous proceedings in which the complainant was charged, was first raised by the Appellant’s
counsel in his cross-examination of the complainant. It is unfortunate that the prosecutor did not then re-examine on the result
of the case which had been disposed of. However the judgment does not suggest that the Learned Magistrate did anything other than
read the judgment of Case No. 660/98. Further his remarks were as follows:
“Since counsel for the defence had cross-examined PW1 whether she was also charged on a cross-summons of this same offence, it is
only appropriate that this court should highlight the case in question.
In Case No. 660/98 PW1 in this case was the accused in that case. In his judgmentvered on 25/5/99 Brother Maer Magistrate Mr Jitend
Singh had acquitted Sitla Devi Singh d/o Hanuman Lal, for lack of material evidence.
The full text of the learned magistrajudgment may be made available to the defence upon request.
p class=MsoNormaNormal style="margin-left: 36.0pt; margin-top: 1; margin-bottom: 1"> However, this court shall base this judgment not on Case 660/98, but from the facts as nted in this court by the pthe prosecution.”
It would appear to the informed observer in the courtroom, that the issue of the previous case was raised by the Defence itself. It
would appear that the Magistrate looked at the judgment (and not the evidence) to discover the outcome of the case. It would further
appear that the Learned Magistrate decided the case not on the previous trial, but strictly on the evidence before him. Indeed on
a reading of the entire judgment, he made no reference at all to the earlier proceedings.
In these circumstances, the reasonably informed observer at the back of the courtroom would not have a suspicion of bias, or consider
that there was a real danger of bias.
This ground is dismissed.
Grounds e, f and g
These grounds are essentially about the Learned Magistrate’s analysis of the evidence, and his findings on the credibility of the
witnesses.
The inconsistencies referred to in the evidence of the complainant and Police Constabnus are not crucial to the case. The discrepancies
recordedorded as to whether the road was a gravel one or tarsealed, are not surprising given the lapse of time since the date of
the offence. Moreover, in considering the evidence the discrepancies must have been considered by the Learned Magistrate, who is
not obliged to record every inconsistency in his judgment.
On all the evidence the Magistrate accepted the prosecution version of the facts. It is not corro say that he did not explain why
he rejected the Defence vnce version, nor provide an analysis of the evidence. Pages 5 and 6 contain several reasons for rejecting
the Defence version - the inconsistency between the Appellant’s charge statement, caution statement and sworn
evidence, the absence of proof of injuries, and the differension provided by Madhu Lata.
At the end of the day, the question of credibiof witnesses is for the trial Magistrate. It is a discretion rarely interfered with
on appe appeal. These grounds also fail.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> Conclusion
p class=MsoNormalormalormal style="margin-top: 1; margin-bottom: 1"> For the reasons given in this judgment the appeal by the Appellant against her conviction and sentence, is dismissed.
Nazhat Shameem
b>JUDGE
At Suva
16th October 2000
HAA0078j.00s
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