High Court of Fiji

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. was not necesnecessarily 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 Naicad had nothing to do with hith him, and trial counsel may well have thought that tactically it would be better if the alternative of self-defence was not consid But the mere 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 scf the defence of self-defendefence 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 o accused. However, it was rwas 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 ve [2015] FJS] FJSC 32; CAV21.2015 (10 December 2015), threme Court of Fiji has dias discussed the principle of &#82visibility of credibility” where Dep JA held that:
    

“In the the past, the courts applied the maxim 'F in Uno Falses in Omnibus' bus' - 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 divisibili ofb> of credibility.”

19. Accordingly, the Court can accept part of a wit#8217stimony and rejecreject the other part. A witness may tell 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 of the Accused. Moreover, ser, 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.
    
tyle='text-indenindent:0pt; margin-top:0pt; margin-bottom:0pt;' value='22' value="22">The Prosecution did not adduce evidence o crime scene investigators to establish whether they found a pillow with blood strains or a 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 thesed was still strangulating her neck. Parvati Devi had aske 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 cfely conclude that there is a reasonable possibility that the accused had pushed the neck oeck 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.
    
I now draw my attention to the second count of Assault Causing Actual Bodily Harm. The main elements o 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 contrarSection 255 (a) of the Crim 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

15^th February 2022

Solicitors<

Office of the Director of Public Prosecutions for the State.

Office of the Legal Aid Commission for the Accused.