IN THE COURT OF APPEAL BETWEEN AND

Transcription

1 TRINIDAD AND TOBAGO IN THE COURT OF APPEAL Mag. Appeal No. 13 of 2011 BETWEEN DAVENDRA OUJAR Appellant AND P.C. DANRAJ ROOPAN #15253 Respondent PANEL: P. WEEKES, J A R. NARINE, J A Appearances: Mr. Jagdeo Singh for the Appellant. Ms. Dana Seetahal S.C. for the Respondent. DATE DELIVERED: 21 st July, Page 1 of 9

2 JUDGMENT DELIVERED BY: R. NARINE, J A 1. The appellant was charged with unlawful assault occasioning a wound contrary to section 5 (2) of the Summary Offences Act. Cha. 11:02 and assault by beating contrary to section 4 of the Act. On 2 nd July 2010 he was found guilty of both offences. For the first offence he was fined $ and ordered to pay $3, in compensation to the virtual complainant. For the second offence he was fined $ and ordered to pay $1, compensation to the virtual complainant. He has appealed the convictions and sentences. THE PROSECUTION CASE: 2. The evidence of the virtual complainant was that the appellant beat him at El Carmen Village, St. Helena, where he went to purchase cigarettes. He was struck on this face and his head. He fell down, and the appellant proceeded to kick him about the body. He waited for a while after the appellant had left, before leaving for his home in a car driven by one Chantram, a co-worker. On reaching the entrance of the Central Experiment Station, which is opposite to the appellant s mother-in-law s home, the appellant reversed his vehicle in the path of Chantram s vehicle. The appellant came out of his vehicle and pulled the virtual complainant out of the car and said ah will finish you off and make ah jail. He proceeded to slap him on his face and head. The virtual complainant fell to the ground. The Page 2 of 9

3 appellant then kicked him all over his body. The virtual complainant was taken by ambulance to hospital where he was treated and discharged. A medical report revealed that the virtual complainant suffered a puncture wound to the forehead and multiple facial bruises. THE DEFENCE CASE: 3. The appellant gave evidence on his own behalf and called his wife as a witness. The appellant testified that he knew the virtual complainant for some 30 years. That evening at about 5.15 pm there was an incident between them. He saw the virtual complainant by Boloco Bar. He asked the virtual complainant what kind of asshole driving is that? The virtual complainant started cursing and pushing his hand in his face. They had a scramble and the virtual complainant fell to the ground. Chantram came out of the car, and the appellant and Chantram also had a struggle, and Chantram fell to the ground. Both Chantram and the virtual complainant were smelling highly of alcohol. A short while later, the appellant pulled into his mother-in-law s driveway and parked. He heard a loud screeching of brakes. On looking back he saw Chantram reversing his car and stopping directly behind his car. The virtual complainant came out with a knife in his hand. The appellant came out of his car and engaged in a struggle with the virtual complainant for the knife. Eventually he managed to kick away the knife. Chantram came out of the car, took up the knife, threw it in his trunk and drove away. During the struggle on the ground, the appellant s wife kept calling to him saying leave the man alone allyuh stop that. Page 3 of 9

4 4. The appellant filed four Grounds of Appeal. GROUND 1: The Magistrate erred in law by failing and/or neglecting to direct herself in terms of the Lucas Directions when considering the case. 5. In her written reasons the Magistrate noted that in his statement to the police the appellant stated that in the incident at his mother-in-law s home, the virtual complainant came out of the vehicle with an object in his hand. He did not state what that object was, or that he struggled with the virtual complainant for possession of that object. Yet in his oral evidence the appellant stated quite emphatically that the virtual complainant came out of the car with a knife in his hand, there followed a struggle for the knife, and the appellant was eventually able to kick the knife out of his hand. The Magistrate found that the failure of the appellant to mention that the virtual complainant had a knife in the first account that he gave of the incident, was so significant that she was satisfied to the extent that she felt sure that the appellant was not a witness of truth on that issue, and was sufficient to raise doubt in the mind of the appellant s veracity generally. 6. The appellant complains that the Magistrate should have directed herself in accordance with the classic Lucas direction before proceeding to convict and her failure so to do, resulted in a miscarriage of justice. 7. In R v. Goodway 98 Cr. App. R 11 it was held that whenever lies are relied on by the prosecution, or might be used by the jury, to support evidence of guilt as opposed to merely reflecting on the defendant s credibility, a judge should give a Page 4 of 9

5 full direction in accordance with R v. Lucas (R) (1981) Q.B. 720, to the effect that a lie can only strengthen or support evidence against a defendant if the jury are satisfied that: (a) (b) (c) the lie was deliberate, it relates to a material issue, and there is no innocent explanation for it. See: Archbold (2006) paragraph It is clear from the Magistrate s written reasons that she considered the issue in relation to the appellant s credibility only, not as evidence of guilt. Accordingly, it was not necessary for her to guide herself in accordance with the classic Lucas direction. Accordingly, we find no merit in this ground. GROUND 2: 9. The learned Magistrate erred in law by misconstruing evidence and applying the said misconstruction against the appellant. 10. During the course of his evidence in chief, according to the official transcript, the appellant testified: During the struggle on the ground she kept calling me and saying leave the man alone, all yuh stop that. In cross-examination the appellant stated: My wife told me to leave the man alone. In cross-examination, the appellant s wife denied that she told him to leave the man alone. She claimed that she shouted to her husband to look out. Page 5 of 9

6 11. In her written reasons, the Magistrate found it significant that the appellant s wife called out to him saying leave the man alone, allyuh stop that. The Magistrate found that the ordinary meaning of those words suggested that the appellant was the perpetrator of some act on the virtual complainant. She noted that the wife s evidence was inconsistent with the appellant s on this issue. 12. Having regard to the evidence of the appellant it was open to the Magistrate to construe the plain and ordinary meaning of the words, and draw the inference that she did. Accordingly, there is no merit in Ground Two. GROUND 3: 13. The learned Magistrate erred in law by failing to consider the legal ramifications of self-defence when considering the case as a whole. 14. The essence of the complaint appears to be that the Magistrate having rejected the appellant s evidence as to the virtual complainant possession of a knife as untrue, did not go on to consider the issue of self-defence on the basis that the appellant held an honest but mistaken belief that the virtual complainant was armed. 15. Nowhere in her written reasons does the Magistrate use the term self-defence. However, she gave careful consideration to the evidence and she concluded that it was the appellant who was the aggressor on that day. She based that finding of fact on: Page 6 of 9

7 - the appellant s own evidence that he was the one who approached the virtual complainant in an aggressive manner and inquired what kind of asshole driving was that - the inference that the appellant was enraged by what he perceived to be a bad drive, - the appellant s own evidence that his wife called out to him saying leave the man alone, allyuh stop that. - the fact that he beat the virtual complainant into a state of unconsciousness. 16. Having made that finding of fact, which it was clearly open to the Magistrate to make on the evidence, it is difficult to see how the Magistrate could have gone on to consider the issue of self defence based on an honest but mistaken belief held by the appellant that the virtual complainant was armed with some object. It is clear that on the evidence, the Magistrate rejected the appellant s evidence that the virtual complainant was armed with a knife and was sure to the criminal standard of the case for the prosecution. 17. In our view it would be artificial, if not pedantic for the Magistrate to go on to consider the issue of self defence in the manner suggested by the appellant. Accordingly, we find no merit in this ground as well. GROUND 4: 18. The sentences imposed by the Magistrate were too severe. 19. Section 5 (2) of the Summary Offences Act carries a maximum penalty of six months imprisonment for the offence of unlawful assault occasioning a wound or Page 7 of 9

8 actual bodily harm. Section 4 of the Act carries a maximum penalty of a fine $ or three months imprisonment. Section 69 (1) of the Summary Courts Act gives the Magistrate a discretion to impose a fine in lieu of imprisonment. 20. For the offence of unlawful assault occasioning a wound the Magistrate imposed a fine of $ and ordered compensation in the sum of $3, This was a case of a brutal and unjustified attack on the virtual complainant which involved a puncture wound to the forehead and multiple bruises to the face. The virtual complainant was rendered unconscious by the beating. In our view the sentence imposed was by no means unduly severe. 21. With respect to the assault simpliciter under s. 4 of the Summary Offences Act, the Magistrate exceeded her jurisdiction in imposing a fine of $ In her written reasons she acknowledges the error, and with the benefit of hindsight suggested a fine of $300.00, which in the circumstances appears to be appropriate. ORDER: 22. In the result the appeal against conviction is dismissed. The appeal against sentence is partially successful. The sentence in respect of unlawful wounding occasioning a wound contrary to Section 5(2) of the Summary Offences Act, is affirmed. The sentence in respect of unlawful assault contrary to Section 4 of the Act is varied. The appellant is fined $ In default he will serve one month hard labour. He is ordered to pay the sum of $1, compensation to the virtual complainant, and in default will serve six weeks simple imprisonment. He is allowed one month to pay the fines and the compensation. Page 8 of 9

9 Dated the 21 st day of July, P. Weekes Justice of Appeal. R. Narine Justice of Appeal. Page 9 of 9