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State v Chand [2008] FJHC 342; HAC71.2007 (20 November 2008)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No. HAC 71 OF 2007

STATE

V.

PHILIP ANIL CHAND

Hearing: 18, 19, 20 November 2008.
Summing Up: 20 November 2008.

Counsel: Ms V. Lidise for the State
Mr. I. Khan for the Accused

SUMMING UP

Ladies and Gentlemen Assessors,

It is now my duty to sum up to you in this case.

1] Our function in this trial – that is, my function as judge and your function as Assessors – have been and remain quite different. Throughout this trial the law has been my area of responsibility, and I must now give you directions as to the law which applies in this case. When I do so, you must accept those directions and follow them.

2] It is also my function to remind you of the prominent features of the evidence. However, it has always been your responsibility to judge the evidence and decide all the relevant facts of this case. You and you alone must decide what evidence you accept, what evidence you do not accept and what evidence you are not sure about; and when you come to consider your opinion, you and you alone must do that.

3] You do not have to decide every point which has been raised; only such matters as will enable you to say whether the charges laid against the Accused have been proved. You will do that by having regard to the whole of the evidence and forming your own judgment about the witnesses, and which evidence is reliable and which is not.

4] The evidence consisted of the oral testimony of witness who were called to the witness box, and the various exhibits.

5] You must decide this case only on the evidence which has been placed before you. There will be no more. You are entitled to draw inferences, that is come to common sense conclusions based on the evidence which you accept, but you may not speculate about what evidence there might have been, or allow yourselves to be drawn into speculation.

7] The facts of this case are your responsibilities. You will wish to take account of the arguments in the speeches you have heard, but you are not bound to accept them. Equally, if in the course of my review of the evidence, I appear to express any views concerning the facts, or emphasis a particular aspect of the evidence, do not adopt those views unless you agree with them; and if I do not mention something which you think is important, you should have regard to it, and give it such weight as you think fit. When it comes to the facts of this case, it is your judgment alone that counts.

8] You are quite free to discuss the evidence between yourselves before reaching your conclusions.

9] You may only consider the evidence you have heard in this trial before reaching your opinions as to whether the Accused is guilty

10] In closing addresses to you by prosecution counsel and the defence counsel, the evidence in this case was reviewed in great length. I will not go over the evidence at great length again as this must still be fresh in your minds. As far as their submissions are concerned you must give them your best consideration. You have been told to use your common sense and if I may add, your own personal experience in dealing with matters of importance in your daily affairs. It is for you to assess and evaluate all the evidence from which you will have to decide what are the true facts in this case. It is only then will you be able to say where the truth really lies.

BURDEN AND STANDARD OF PROOF

Burden of Proof

11] In this case the prosecution must prove that the accused is guilty. He does not have to prove his innocence. In a Criminal trial the burden of proving the accused guilt is always on the prosecution. There is no burden on the accused to prove his innocence. The accused was under no obligation to give evidence and if, as in this case, he offered a defence to a charge, it is not for him to prove that defence, it is still for the prosecution to prove that he is guilty.

Standard of Proof

12] How does the prosecution succeed in proving the Accused guilt? The answer is – by making you sure of it. Nothing less than that will do.

13] Before you are entitled to convict, the prosecution must have proved the Accused guilt beyond reasonable doubt. If guilt has been proved to that extent, then, and only then will it be your duty to convict. Unless you are sure of guilt beyond any reasonable doubt, it will be your duty to acquit.

14] If after considering all the evidence you are sure that the accused is guilty, you must return an opinion of ‘Guilty’. If you are not sure, your opinion must be ‘Not Guilty’

15] This case is about an incident that took place outside of the Zone nightclub in the early hours of 13 February 2005. The complainant in this matter, Mr. Navineshwar Nand went to the Zone nightclub with his brother, Najneshwar Nand to play pool. The Prosecution says that they arrived there at about 8.30 pm on 12 February 2005.

16] When Navineshwar Nand was leaving the club, at about 1.00 am, the State says that he was punched in the head by the Accused. The Prosecution says the punch caused Navineshwar Nand to fall to the ground and hit his head on the pavement, just outside of the Zone night club. This caused Navineshwar Nand to become unconscious, and he remained so until about 10.00 am in the morning of 13 February, 2005.

17] Although Navineshwar Nand regained consciousness, the Prosecution says that he suffered injuries to his head which caused him to be hospitalized. First in the Lautoka Hospital, then at the Suva Private Hospital, and finally in the Auckland City Hospital in New Zealand.

18] The Prosecution says that Navineshwar Nand suffered serious injuries which required specialist treatment which he could not get at the time in Fiji.

19] The Prosecution says that it was the Accused who punched Navineshwar Nand in the head out the front of the Zone night club and inflicted these injuries on him.

20] From the facts you have just heard, it appears that the fact that Navineshwar Nand and Najneshwar Nand went to the Zone Night Club on 12 February 2005 is not in dispute.

21] However, you must decide whether the facts I have just mentioned are in fact proved, although you may have no difficulty in deciding that Navineshwar Nand and Najneshwar Nand did go there, and that Navineshwar Nand did become injured in someway.

22] Therefore, before you can convict the Accused you must be sure:

FIRST COUNT

ACT WITH INTENT TO CAUSE GRIEVOUS HARM:

Contrary to section 224(a) of the Penal Code, Cap. 17.

Particulars of Offence

PHILIP ANIL CHAND s/o Phul Chand, on the 13th day of February, 2005 at Lautoka in the Western Division, with intent to do so, caused grievous harm to NAVINESHWAR NAND s/o Jawahar Nand.

IN THE ALTERNATIVE

Statement of Offence

ASSAULT OCCASIONING ACTUAL BODILY HARM: Contrary to section 245 of the Penal Code, Cap 17.

Particulars of Offence

PHILIP ANIL CHAND s/o Phul Chand, on the 13th day of February, 2005 at Lautoka in the Western Division, assaulted NAVINESHWAR NAND s/o Jawahar Nand, thereby occasioning him actual bodily harm.

23] The Accused PHILIP ANIL CHAND is charged with these alternative offence and he has pleaded "Not Guilty" to both of them.

LAW

24] Counts 1 and 2 are alternative counts. You cannot find the Accused guilty on both. First consider count 1, which is the more serious one involving:

1. that the Accused;
   
2. with intent to do grievous harm to Navineshwar Nand;
   
3. unlawfully did grievous harm to Navineshwar Nand;
   
4. by any means whatsoever.
   

24] In relation to the first element, you must be satisfied that it was the Accused who assaulted Navineshwar Nand at the front of the Zone Night Club on 13 February, 2005.

25] In relation to the second element, you must be satisfied that the Accused assaulted Navineshwar Nand with intent to do grievous harm to him. This simply means serious harm. You must feel sure that the Accused intended to cause serious bodily harm to Navineshwar Nand. You can only decide what his intention was by considering all the relevant circumstances and in particular what the Accused said and what he did about it.

26] In relation to the third element, you must be satisfied that the Accused did grievous harm to Navineshwar Nand. You do not have to find that the grievous harm should be either permanent or dangerous. Nor is it a pre-condition that Navineshwar Nand should require treatment or that the harm would have lasting consequences. In assessing whether particular harm was grievous, you should take into account the effect on, and the circumstances of Navineshwar Nand.

27] In relation to the fourth element, you must be satisfied that the Accused caused grievous harm to the Accused by any means what so ever.

28] If you find the Accused guilty on that count, do not consider count 2 at all. But if you are not sure that the Accused is guilty on Count 1, then consider count 2 which requires that the Prosecution prove the following elements of the offence to you.

1. the Accused;

2. committed an assault;

3. occasioning actual bodily harm.

29] In relation to the first element, you must again be satisfied that it was the Accused.

30] In relation to the second element, you must be satisfied that the accused committed an act done with intention to create a fear in the mind of Navineshwar Nand that unlawful force was about to be used against him.

31] In the relation to the third element, the assault must have occasioned actual bodily harm. Bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of Navineshwar Nand. Such hurt or injury need not be permanent, but must, no doubt, be more than merely transient or trifling. Bodily harm should receive a wide interpretation and not be restricted to harm to the skin, flesh and bones of Navineshwar Nand. It may include organs, nervous system and brain.

32] The burden is throughout on the prosecution to prove each ingredient of the offence beyond reasonable doubt.

33] The prosecution called a total of 4 witnesses.

PW1 – NAVINESH NAND

34] Navineshwar Nand said in evidence that he is a Lawyer with the Office of the Director of Public Prosecutions ("DPP"), which he joined in 2001.

35] On 12 February 2005 he was at home with his brother and father. He said he made some grog for his father, and gave him some.

36] Later, he went with his elder brother Najneshwar Nand to Zone night club at about 8pm. While at Zone, they played pool, and drank 9-10 stubbies of beer until the night club closed at 1am, and this is when he left. Navineshwar Nand said that he was wearing sandals with jeans. The sandals had a strap.

37] While outside the Zone Night Club, Navineshwar Nand said he kneeled down on the pavement to adjust his sandal.

38] As the pavement was slippery, he kneeled down with one leg half bent so he could adjust his sandal. He said that this is when he was hit behind the right ear.

39] Navineshwar Nand said that he did not see who hit him. He said the blow caused him to fall backwards and hit is head on the concrete floor. From then on, Navineshwar Nand said that he does not remember anything else, as he was unconscious.

40] The next thing that Navineshwar Nand said he remembered was waking up at home, at about 10.00am on the following morning. He said when he woke up, he could not walk, he was dizzy, and that he omitted anything that he tried to eat. He said that he would vomit, and that he had a severe head ache. He felt as though he was unable to walk, so he laid motionless.

41] Later that day, Navineshwar Nand said that his older brother Najneshwar Nand took him to the Lautoka Hospital, where he was admitted.

42] Navineshwar Nand said he was discharged from Lautoka Hospital on 14 February 2005 because he still had a headache, and that he could not face light, or tolerate loud noise.

43] Therefore, his father made arrangements for him to be transferred to the Suva Private Hospital where he remained from 14-17 February 2005.

44] At this time, Navineshwar Nand said that he was still vomiting, that he could not face bright light, he felt dizzy, had a headache, and needed help to walk.

45] While in the Suva Private Hospital, he was under the care of Dr. Fred Merchant, who provided a Medical Report, which is available for you to read.

46] On 17 February 2005, Navineshwar Nand’s father arranged for him to go to New Zealand for treatment. He had to go to New Zealand because at that time in Fiji, there was no qualified Neurosurgeon to treat him.

47] Dr. Merchant traveled with the Navineshwar Nand to New Zealand. While at Auckland Hospital, Navineshwar Nand received a CT scan. The results of the CT scan where that there had been bleeding in Navineshwar Nand brain, which had by this time stopped.

48] Since the injury, Navineshwar Nand said that he still can’t face brightness, or tolerate direct sun-light, because it makes him dizzy. He also said that he can’t smell anything.

49] Finally, Navineshwar Nand said that he did not go back to work for the DPP until March 2005.

PW2

50] Najneshwar Nand, also gave evidence for the Prosecution. He is Navineshwar Nand’s brother who went with him to the Zone Night Club on 12 February 2005. He said they got there at about 9 or 10pm.

51] While they were there, they played pool, and had a couple of drinks. He said that when the bar closed at 1.00am, they both went downstairs to leave. While they were leaving together, Najneshwar Nand said that stopped to take his keys, and he saw his brother Navineshwar Nand bend down to adjust his sandal.

52] He said this is when he saw the Accused punch his brother on the right side of his head, which caused him to fall down and hit his head on the concrete, when he then became unconscious.

53] Najneshwar Nand said that the Accused then went back to his car. Najneshwar Nand said it was at about this time that he called for an Ambulance. He said that the twin cab police van arrived too. He said that Navineshwar Nand was then picked up and put on the tray of the Police vehicle and taken to the Lautoka Police Station, while Najneshwar Nand followed them in his own car to the police station

54] At the Police station, Najneshwar Nand said that they tried to revive Navineshwar Nand, but they were unable to.

55] Navineshwar Nand was then put on the back seat of the car being driven by Najneshwar Nand and taken back to his father’s home.

56] When they arrived at his father’s home, they tried to revive Navineshwar Nand, but they were unable to.

57] Najneshwar Nand said that Navineshwar Nand did not regain consciousness until sometime later in the day. He said that Navineshwar Nand remained unconscious for the entire time that they were at the Police station.

The Defence

58] As I said earlier the burden is on the Prosecution to prove the case against the Accused beyond reasonable doubt.

59] But having elected to give an unsworn statement, the Accused evidence must be given whatever weight you consider appropriate. You must considered and evaluated this evidence and take it into account along with all other evidence presented in the case so you may decide where the truth lies.

60] Now the evidence of the Accused can have one of three possible effects on the case as a whole.

61] His evidence may have the effect of satisfying you that he did not do an act to Navineshwar Nand with intent to cause him grievous harm in which case you will express the opinion that the accused is not guilty as charged: OR

62] His evidence may have the effect of creating in your minds a reasonable doubt as to whether or not he assaulted Navineshwar Nand and occasioned him actual bodily harm in which case also you will express the opinion that the accused is not guilty as charged; OR

63] His evidence may have the effect of satisfying you beyond any reasonable doubt that he did an act to Navineshwar Nand with intent to cause him grievous Harm, or in the alternative that he assaulted Navineshwar Nand occasioning him actual bodily harm in which case you will express the opinion that he is guilty of either the first count of grievous harm or in the alternative of the second count of assault occasioning actual bodily harm.

Unsworn statement from Dock

64] At the close of the Prosecutions case, you will recall that the Accused was informed by me that there was a case to answer and that there were three options available to him.

65] He was told that he could remain silent, or elect to give an unsworn statement from the dock where he would not be subject to cross examination, or he could give sworn evidence from the witness box where he would be subject to cross examination.

66] You will recall that he decided to give an unsworn statement from the dock. You must decide for your self what weight you will give this evidence in forming your opinion as to where the truth lies.

67] The Accused, Mr. Philip Chand, said that he is married with 3 children, 2 sons and a daughter. The Accused outlined in detail the various community roles that he has been involved in over the years. He also gave a detailed description of his many professional achievements. He said that he had been working for the Fiji Sugar Corporation since he graduated from University, some 30 years ago.

68] The Accused said that he is now the most senior sugar boiler in the 4 Mills.

69] Amongst other things, he said he has been the Branch Secretary of the Fiji Sugar Tradesman Union from 1987 – 1989, and Assistant General Secretary of four Mills from 1989 to 1991, and the Executive Member of Fiji Trades Union Congress from 1992 until now.

70] He said that in 1999, he was elected as a Councilor of Lautoka. He also said that he has volunteered in many community projects throughout his life for the citizen and people of Lautoka.

71] On 13 February 2005, the Accused said that he was with Suresh Patel and his brother in law Mohan Patel. He said that they were both business people and good friends.

72] He said they went to Zone Night Club to have a drink before going to Nadi Airport to collect Suresh’s wife who was arriving from England.

73] Before closing time at Zone Night Club, they all decided to go down early so as to avoid the crowd.

74] The Accused said that his car was parked just a few steps from the entrance.

75] As he was not the designated driver, the Accused said that he sat in the front passenger seat.

76] Before driving off, the Accused said that a gentleman came along and lifted his leg up onto his car’s fender.

77] He said that this man, who he did not know, appeared to be very drunk.

78] He said that because he realized that this man might go under the wheel if they drove off, he got out of his car and asked the man why he put his leg on the fender.

79] The Accused said the man then swore at him, and not bothering much, the Accused said that he "put" him aside.

80] It was not until later on that the Accused came to know that this man was a DPP officer.

81] The Accused said that when he pushed Navineshwar Nand, he fell down. This is when the Accused said that he looked around and stopped a police vehicle that was passing by.

82] The Accused denies that at this time, he drove away.

83] He said that he stayed at the scene and told his friends to take his car, as he wanted to go to the Police station.

84] The Accused said that the man, Navineshwar Nand, while under the influence, was thrown by the Police onto the tray at the back of the police vehicle. The accused said he went with the Police in the front of their vehicle to the Police Station.

85] The Accused said that at the Police Station, the Police Officers gave Navineshwar Nand a shower of water, and that Navineshwar Nand started throwing punches.

86] As well as the unsworn statement of the Accused, the Defence also relies on the following matters as part of its defense.

87] That Navineshwar Nand was drunk at the time he was assaulted, and that he did not see who punched him.

88] They say that there are some inconsistencies in the evidence given by the Prosecution witnesses. They say that their evidence from the witness box is different to what they previously said when they gave their written statements to the police.

89] The Defence says that the Prosecutions case is supported by the evidence of Navineshwar Nand, Najneshwar Nand, Dad who are all blood relatives, and therefore have an interest in supporting each other.

90] The Defence also says that Inspector Shanti Lal was the only Independent Prosecution Witness in this case. However, the Accused says that this case was not properly investigated by him because he failed to interview Suresh Patel or Mohan Patel who the Accused said were with him at the scene.

Specific Directions

91] During the trial certain exhibits were tendered. You are free to consider them during your deliberations.

Previous Inconsistent Statements

92] It is suggested by the Defence that previous statements made by the Prosecution Witnesses are inconsistent with the evidence they gave in this court.

93] You have undertaken to try the case according to the evidence. If a witness comes to court and states what did or did not happen, that is evidence of what did or did not happen. Whether you accept that evidence or not is another matter; but in law it has the status of evidence of what he asserts.

94] On the other hand, if on a previous occasion, not in this court before you, the witness stated what did or did not happen on a particular day that is not evidence that he in fact saw that event. It is merely evidence that that is what he asserted at some earlier time.

95] In examining suggested inconsistencies, you will wish to decide, first, whether there is in fact and in the true context, an inconsistency; and if you decide that there is one, you will wish to decide whether it is material and relevant or, on the other hand insignificant or irrelevant.

96] If there is an inconsistency, it might lead you to conclude that this witness is generally not to be relied upon; alternatively that part only of his evidence is inaccurate; or you may accept the reason he has provided for the inconsistency and consider him to be a reliable witness.

IRRELEVANT/EMOTIVE CONSIDERATION

97] Do not be sidetracked in your task by irrelevances. Your task is to reach an opinion according to the evidence, not according to the newspaper reports, or to prejudices, or to irrelevant sympathies. This trial may have given rise to some publicity. But you do not decide the case on publicity, for publicity is not evidence.

98] If after considering all of the evidence in this case you are not satisfied that the Accused did an act with intent to cause grievous harm to Navineshwar Nand, or if you have any reasonable doubt about the matter, then it will be your duty to express the opinion that he is not guilty of the first count.

99] Only if you are satisfied beyond reasonable doubt from the whole of the evidence that the Accused is guilty of the first count will you express the opinion that the Accused is guilty of this offence for which he now stands trial.

100] In the alternative, if after considering all of the evidence in this case you are not satisfied that the Accused assaulted Navineshwar Nand, and thereby occasioned him actual bodily harm, or if you have any reasonable doubt about the matter, then it will be your duty to express the opinion that he is not guilty of this charge.

101] Only if you are satisfied beyond reasonable doubt from the whole of the evidence that the Accused is guilty of 2nd Count will you express the opinion that the Accused is guilty of this offence for which he now stands trial.

CONCLUDING DIRECTIONS

102] You should strive to reach a unanimous opinion, that is, an opinion upon which you all agreed; whether guilty or not guilty.

103] You will not be asked to give reasons for your opinions, but merely your opinion itself and your opinions need not be unanimous although it would be desirable if you could agree on them.

104] Your opinions are not binding on me but I can tell you now they will carry great weight with me when I come to prepare and deliver the judgment of the Court.

105] On your return to court, you will each be asked for your opinion.

106] When you retire you will be taken by my Clerk to your deliberating room. If after your retirement you require assistance upon a matter of law, or wish to be reminded of some evidence, you should please write your question or request on paper and hand that paper to my Clerk. You will then be called back to court to deal with the matter, though there may be a little delay before you are brought back, because I shall need to recall counsel and discuss the issue raised with them first.

107] The Clerk will at all times be close by. Please do not, on any account, discuss with him any aspect of the case or procedure nor ask him any questions unless it be to ask him to deliver an exhibit to you or to deliver a written question to me.

108] Refreshments and lunch will be brought to you, and it would be irregular for you to split up or go out for any other purpose. Nor may you telephone from the Assessors room. I would be grateful if you would leave mobile telephones with my Clerk and not take them into the Assessors room with you.

109] When you retire, take with you the notes which you have been making as well as the exhibits.

110] That is all I wish to say in the way of summing up to you.

Anthony J Sherry
Judge

At Lautoka
20 November 2008.