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State v Prasad [2022] FJHC 68; HAC188.2020 (15 February 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 188 of 2020

STATE

vs.

NAREN PRASAD

Counsel: Ms. S. Tivao for the State
Ms. S. Prakash for Accused

Date of Hearing: 01^st to 2^nd February 2022
Date of Closing Submission: 03^rd February 2022
Date of Judgment: 15^th February 2022

JUDGMENT

1. The Accused is charged with one count of Act with Intent to Cause Grievous Harm, contrary to Section 255 (a) of the Crimes Act and one count of Assault Causing Actual Bodily Harm, contrary to Section 275 of the Crimes Act. The particulars of the offences are that:
   

FIRST COUNT

Statement of Offence

ACT WITH INTENT TO CAUSE GRIEVOUS HARM: Contrary to Section 255 (a) of the Crimes Act 2009.

Particulars of Offence

NAREN PRASAD on the 26^th day of June 2020 at Nasinu in the Central Division intended to cause grievous harm to MAYA WATI by strangling her neck.

SECOND COUNT

Statement of Offence

ASSAULT CAUSING ACTUAL BODILY HARM: Contrary to Section 275 of the Crimes Act 2009.

Particulars of Offence

NAREN PRASAD on the 26^th day of June 2020 at Nasinu in the Central Division, assaulted MAYA WATI by pressing her chest causing her actual bodily harm.

2. Consequent to the plea of not guilty entered by the Accused, the matter then proceeded to the hearing. The hearing commenced on the 1st of February 2022 and concluded on the 2nd of February 2022. The Prosecution presented three witnesses. The Accused and another witness gave evidence for the Defence. Subsequently, the Prosecution and the Defence were directed to file their respective written submissions, which they filed as per the directions. Having carefully perused the evidence presented during the hearing and the respective written submissions of the parties, I now proceed to pronounce the judgment as follows.
   
3. The Prosecution alleges that the Accused had strangulated the Complainant with an intention to cause her grievous harm. He had then tried to press her chest with his hand causing her actual bodily harm. The Accused and the Complainant are married. They had been living at the property that belonged to the Accused. The Complainant has two sons from her previous marriage, and the Accused's previous wife had passed away. They had married in 2017. One Parvati Devi was living with them when this alleged offence took place.
4. The Accused denies the allegation stating that he pushed the Complainant away with his hand in order to save himself from the Complainant's assault. According to his evidence, the Complainant had started a verbal argument regarding his property. The Complainant had then assaulted the Accused on the back of his head with an iron rod. She had then bit his lips, injuring them. He then pushed the Complainant, placing his hand on her neck or the jaw to escape himself. He was not sure whether he pushed her neck or the jaw. He then ran out of their bedroom. In a while, he had pulled the Complainant back to the house and made her sit on the sofa. He had then showed her the injuries that she had caused to him. Accordingly, the Accused had denied this allegation, stating that he had pressed the Complainant's neck or jaw to escape from the Complainant's assaults. He further denies that he assaulted her, causing actual bodily harm, stating that he only showed her the injuries she had caused on him. Accordingly, it appears that the Accused had taken the defence of self-defence.
   
5. The main elements of the offence of act with intent to cause grievous harm are that:
   

i) The accused,
ii) With intent to maim, disfigure, disable or to do some grievous harm to the victim,
iii) Unlawfully wounds or does any grievous harm to the victim by any means.

6. I now draw my attention to the definition of “grievous harm” as stipulated under Section 4 (1) of the Crimes Act, where it states that:
   

"grievous harm" means any harm which—

1. amounts to a maim or dangerous harm; or
2. seriously or permanently injures health or which is likely so to

injure health; or extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense;”

7. Grievous harm simply means serious or dangerous or permanent harm to someone.
   
8. Section 42 of the Crimes Act has defined the defence of "self-defence". Defence of self-defence is a circumstance that involves external factors. Section 42 of the Crimes Act states that:
   
   1. A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in self defence.
   2. A person carries out conduct in self defence if and only if he or she believes the conduct is necessary—
      
      1. to defend himself or herself or another person; or
      2. to prevent or terminate the unlawful imprisonment of himself or herself

or another person; or

100. to protect property from unlawful appropriation, destruction, damage

or interference; or

4. to prevent criminal trespass to any land or premises; or
5. to remove from any land or premises a person who is committing

criminal trespass, and the conduct is a reasonable response in the

circumstances as he or she perceives them.”

9. The learned Counsel for the Accused initially did not rely on the defence of self-defence. However, in his evidence, the Accused stated that he pushed the Complainant, placing his hand on either her neck or the chest, to save himself when the Complainant started to bite his lower lips. The allegation of the first count is that the Accused had strangulated the neck of the Complainant with his hands.
   
10. Keith JA in Naicker v State [2018] FJSC 24; CAV0019.2018 (1 November 2018) held that:
    

“It needs to be noted that the defence did not ask the judge to leave the issue of self-defence. That was not necessarily negligence on the part of trial counsel. Such a defence was completely inconsistent, of course, with Naicker’s defence at trial, which was that the death of Naicker had had nothing to do with him, and trial counsel may well have thought that tactically it would be better if the alternative of self-defence was not considered. But the mere fact that the defence in a particular case does not want an alternative defence to be raised does not mean that it should not be: see Marsoof JA’s compelling judgment in Praveen Ram v The State [2012] FJSC 12 in which the relevant authorities on the topic were reviewed. It all depends on whether such a defence arises on the evidence – or to be more precise, whether there is “a credible narrative of events suggesting the presence of” such a defence: see the decision of the Privy Council in Lee Chun Chuen v R [1963] AC 220."

11. Even though the learned Counsel for the Defence decided not to raise the defence of self-defence, the Court still has to consider whether the Accused had raised defence of self-defence in evidence. The evidence given by the Accused suggested the presence of the defence of self-defence. Hence, I first draw my attention to consider the defence of self-defence.

12. The Privy Council in Sigismund Palmer v The Queen (Jamaica) [1970] UKPC 31 (23 November 1970) has defined the scope of the defence of self-defence in an inclusive manner, where Lord Morris held that:
    

“The defence of self-defence is one which can be and will be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explanation. No formula need be employed in reference to it. Only common-sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common-sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary. If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may no longer be any link with a necessity of defence.”

13. In order to rely on the defence of self-defence, the Accused has to carry out the alleged conduct constituting the offence. The Accused can then claim defence of self-defence.
    
14. If the Accused wishes to rely on any defence stipulated in the Crimes Act, he bears the evidential burden of proving that defence. (vide; section 59 (2) of the Crimes Act). The defence of self-defence has been stipulated under Section 42 of the Crimes Act, making it a defence stated under the Crimes Act. Wherefore, the burden of proving the defence of self-defence is on the accused. The burden of discharging this onus of the Accused is the evidential burden, which means adducing or pointing to evidence that suggests a reasonable probability that the defence of self-defence existed (vide; Section 59 of the Crimes Act). The Prosecution still holds the burden of disproving the said defence provided by the Accused. (vide; section 57 (2) of the Crimes Act).
    
15. If the Court believes that the evidence adduced or pointed out by the Defence in respect of the defence of self-defence is reasonably true, though the Court is not convinced it is true, it means that the Accused has successfully discharged his evidential burden under Section 59 of the Crimes Act.
    
16. In this case, the Accused said that the Complainant first hit him on the back of his head with an iron rod. When he turned and asked her why she had assaulted him, the Complainant then came and bit his lips. Then, to save himself from that assault, the Accused pushed her away, placing his hand either on her neck or jaw.
    
17. According to the medical report of the accused, Doctor Alisi had found slight tenderness in the occipital area of the accused. However, it was revealed during the cross-examination of the accused that he had told Doctor Alisi that he had fallen and hit his head on the ground. He had not informed Doctor Alisi about the assault with the iron rod. The learned Counsel for the Prosecution submitted that the Court should not accept the evidence of the Accused due to this contradictory nature of his evidence.
    
18. In Chandra v State [2015] FJSC 32; CAV21.2015 (10 December 2015), the Supreme Court of Fiji has discussed the principle of “divisibility of credibility” where Dep JA held that:
    

“In the past, the courts applied the maxim 'Falses in Uno Falses in Omnibus' - meaning "He who speaks falsely in one point will speak falsely upon all" - to a witness who gives false evidence. The present trend is instead of rejecting the totality of evidence, to act on that part of evidence which is true and reliable. This approach is known as divisibility of credibility.”

19. Accordingly, the Court can accept part of a witness’s testimony and reject the other part. A witness may tell the truth about one matter and lie about another. If the Court found a witness has given false evidence on a particular point, still the Court could consider the remaining portion of the evidence as reliable and credible based on the principle of divisibility of credibility. In order to do so, the Court must consider all the evidence adduced during the hearing.
    
20. According to the Accused, he pushed the Complainant, placing his hand on her neck or jaw because she started to bite his lips. He had not pushed her due to the fact that she began to hit him on his head with an iron rod. He had just turned and asked her why she had assaulted him with an iron rod when she hit him with it. She then started to bite his lips, prompting the Accused to push her away as he wanted to save himself from that assault. He had used the force of his hand, placing it either on her neck or the jaw, to push her away. In her evidence, Doctor Kelera stated that she could not tell whether the push that caused the bruising on the neck was strong or hard.
    
21. Doctor Alisi, in her medical examination of the Accused, had found bite marks on the right side of the lower lips of the Accused. Moreover, she had observed the bleeding from those injuries had stopped when she examined the Accused. Hence, it establishes that there were bleedings from the injuries on the lower lips of the accused. The above finding of Doctor Alisi supports and corroborates the evidence given by the Accused regarding the reason for holding a pillow when Parvati Devi entered the bedroom. The Accused stated that he picked a pillow and covered his mouth because his lips were bleeding. He had then thrown it to the face of the Complainant when he ran out of the room. At the same time Parvati Devi came into the room.
    
22. The Prosecution did not adduce evidence of any crime scene investigators to establish whether they found a pillow with blood strains or any iron rod inside the bedroom. Unfortunately, the Prosecution had not considered the importance of crime scene investigation and the value of the evidence found in such crime investigation.
    
23. In addition, the Complainant said in her evidence that blood came out from her nose. She then went to the Police Station to report the matter in the same blood-stained clothes. Nonetheless, Doctor Kelera, in her medical examination, found no such bleedings in her nose. The Medical Examination of the Complainant was done on the same day, a few hours after the incident. The Prosecution did not present any evidence from any investigators to establish the existence of such blood-stained clothes, thus creating reasonable doubt about the event explained by the Complainant in her evidence.
    
24. Moreover, the Complainant stated that Parvati Devi came into the room while the Accused was still strangulating her neck. Parvati Devi had asked the Accused, why are you pressing her neck. However, in her evidence, Parvati Devi stated that she did not see the Accused was strangulating the Complainant.
    
25. Having considered all the evidence adduced in the hearing, I can safely conclude that there is a reasonable possibility that the accused had pushed the neck of the Complainant, placing his hand on the neck or the jaw of the Complainant in order to save himself when the Complainant started to bite his lips. Consequently, the above conclusion creates a reasonable doubt whether the Accused had actually strangulated the Complainant with the intention of causing grievous harm. Accordingly, the Accused had successfully discharged his evidential burden in proving the defence of self-defence. Hence, I find the Prosecution has failed to establish that the Accused had committed the offence of Act with Intent to Cause Grievous Harm beyond a reasonable doubt.
    
26. I now draw my attention to the second count of Assault Causing Actual Bodily Harm. The main elements of the offence are:
    
    1. The Accused,
    2. Assault the complainant,
    3. Caused bodily harm.
       
27. The Prosecution alleges the Accused had pulled the Complainant inside the house and made her sit on the sofa. He had then started to press her chest, causing her bodily harm. On the contrary, the Accused said that he pulled and made her sit on the sofa because he wanted to show her the injuries she had caused him. However, the Accused also admitted in his evidence that he pulled her to the sofa. He had held her by her chest and made her sit on the sofa. This evidence establishes that the Accused knew that his actions could cause bodily harm to the Complainant when he pulled her to the sofa, holding her by her chest.
    
28. In view of these reasons, I find the Prosecution has successfully established that the Accused had committed the second count of Assault Causing Actual Bodily Harm.
    
29. In conclusion, I find the accused not guilty of the first count of Act with Intent to Cause Grievous Harm contrary to Section 255 (a) of the Crimes Act and acquit from the same accordingly. Moreover, I find the accused guilty of the second count of Assault Causing Actual Bodily Harm, contrary to Section 275 of the Crimes Act and convict him to the same accordingly.
    

..................................................

Hon. Mr. Justice R.D.R.T. Rajasinghe

At Suva

15^th February 2022

Solicitors

Office of the Director of Public Prosecutions for the State.

Office of the Legal Aid Commission for the Accused.