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Lesu v State [2003] FJCA 1; AAU0003U.2002S (14 February 2003)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU0003 OF 2002S
(High Court Criminal Action No. HAC0018 of 1999L)

BETWEEN:

ASAELI LESU
Appellant

AND:

THE STATE
Respondent

Coram: Reddy, P
Barker, JA
Davies, JA

Hearing: Wednesday, 12th February 2003, Suva

Counsel: Mr. G. O’ Driscoll for the Appellant
Mr. K. Tunidau for the Respondent

Date of Judgment: Friday, 14th February 2003

JUDGMENT OF THE COURT

The Appellant was tried and convicted by Prakash J, sitting with three assessors, in the High Court at Lautoka, on 29 November 2001, on an indictment that he murdered Peter Shaw (“the deceased”) at Sabeto, Nadi, in the Western Division on 11 July 1999. One of the three assessors found the Appellant not guilty of murder but guilty of manslaughter, the other two found him guilty of murder. The Learned Judge accepted the opinion of the majority and convicted him accordingly. The Appellant has appealed to this Court from that decision.

The facts of the case can be briefly stated.

The Appellant was married to Kolora Lewatu in 1994, but the couple separated in 1996, and thereafter lived separately. Since 1996 Kolora was living with the deceased in a defacto relationship and had a child by him. The couple lived with Kolora’s mother in Sabeto village. The Appellant lived nearby.

At about 3:30 a.m. on 11 July 1999, the Appellant returned from Nadi Town. He had spent time drinking at a night club with friends. He then went to his house, armed himself with a kitchen knife, and went straight to Kolora’s mother’s house. The Appellant first broke some window louvre blades in the house, gained entry into the house through the door, and stabbed the deceased, who was inside , four times with the kitchen knife, thereby causing serious injuries which resulted in his death. One of the four stab wounds to the abdomen was so serious that it exposed the deceased’s intestine. According to the pathologist who conducted the autopsy on the deceased, death resulted from excessive loss of blood from the stab wounds.

After hearing the sound of breaking glass, Luke Toroca, a villager, ran to Kolora’s mothers house, which was some 22 metres away from the house he was in. He saw the Appellant enter the house, even as he tried to pull him back, and stab the deceased four times with the kitchen knife. He held the Appellant’s knife-weilding hand, pulled it down, and asked Penioni Dawai, who had by now arrived at the scene, to take the knife away from the Appellant which the latter did. According to Luke Toroca, the deceased punched the Appellant after he was stabbed the first time; when cross examined, he denied that the deceased struck the Appellant first, and insisted that the deceased struck the Appellant only once. Penioni Dawai gave the knife to the Police later that day. Penioni Dawai punched the Appellant before taking the knife away.

After he was injured the deceased ran to Penioni Dawai house, clutching his stomach and crying “I am hurt”, “I am hurt.” He was bleeding profusely and crying in pain. Later that morning he was taken to Lautoka Hospital where he died.

Later that day, the Appellant went to the Sabeto Police Station, where he was questioned by Constable Senitiki Talebula. The record of interview records that, among other things, the Appellant told the Constable:

“When I arrived at the house of SITERI DAWAI, than I knocked at the window opposite to the room. I was surprised when PETER SHAW spoke out, saying “Who’s that? Magaijinamu, meaning, Mother’s vigina. At the same time I punched the louvre blades and broken. I was still standing, when I saw PETER SHAW ran towards the front door, to go and open. As soon as he open the door I was standing in front of him, and at the same time threw punch at me, and landed on my left eye and also punched my mouth. We than had an open fight inside the house. Later I than took the kitchen knife and stabbed him and didn’t expect that I will injure him.”

When asked why he stabbed the deceased with the kitchen knife the Appellant said
“I was upset and I just couldn’t tolerate when I came to the house, I saw Kolora and Peter Shaw sleeping together, and she is my legal wife.”

When formally charged with the murder of the deceased, the Appellant said:

“I married Kolora in 1994 in 1994 and we had a son by the name of Nacani Varo. My wife Kolora went and stayed with another man by the name of Peter Shaw. I was not happy with this, as I had talked to my wife who told me that she will tell Peter Shaw to go. On the evening of Saturday, 10/7/99 when I went to bring my video deck from Kolora, I saw Peter Shaw again inside Kolora, s house. This made me angry. I then went to dance in Martintar, and upon returning, I went to my home and got hold of the knife and I went to the house of Kolora. I was only planning to go and frighten Peter Shaw. I was not expecting, that my stabbing him will occur. I know and admit that I had swung the knife at where Peter Shaw was standing, but I did not meant to hit him. I admit that it was the same knife which I brought had hit him and caused his death. I ask to be forgiven as all that happened had occurred due to my wife. I had not meant to kill Peter Shaw.

At the close of the prosecution evidence, the Appellant elected to make a unsworn statement. He said that he had married Kolora in 1994. In 1996, he found that she was pregnant with the child of another man. On 10 July 1999, he met Kolora in Nadi Town, and told her that he would spend the night with her. At 6 p.m, he went to her house, to collect a video deck, and reminded her that he would spend the night with her. He then went to Nadi Town and drank grog and beer, before going to Binn’s Night Club. At 2:30 a.m. he came back to Sabeto with others, got off the transport near the bus shelter, and went straight to Kolora’s house. He had not expected the deceased to be there, and did not intend to kill him. He said that he was “blacked out” that night.

The Appellant did not mention when or why he took the kitchen knife with him in his unsworn statement.

The Appellant was examined by Dr Edwards Sedotes, on 12 July 1999. The doctor found “haemorrage of the Sclera” of the Appellants left eye, a 5 cm injury. The injury was consistent with the application of blunt force, such as a punch.

GROUNDS OF APPEAL

Although the Appellant filed five (5) separate grounds of appeal, Counsel confined himself to two (2) of the grounds. They are: -

1. That the learned trial Judge erred in law and in fact and misdirected the assessors by not adequately explaining the defence of provocation during the course of his summing up thereby leading to a verdict inconsistent with that which would have been reached had an adequate explanation been given.
   
2. That the prosecution failed to establish beyond reasonable doubt that the Appellant had acted with malice aforethought as required by section 199 of the Penal Code, Cap. 17.”
   

GROUND I:

Sections 203 and 204 of the Penal Code deal with provocation.

Section 203 provides:-

“When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only.”

Relevant part of Section 204 reads:-

“The term “provocation” means, except as hereinafter stated, any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, ..................................................................................................................... to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.

When such an act or insult is done or offered by one person to another......................................................................................................... the former is said to give to the latter provocation for an assault.

A lawful act is not provocation to any person for an assault.

It is settled law that, once there is evidence in a case, capable of supporting a finding that the accused was provoked, the burden is on the prosecution to prove beyond reasonable doubt that the case is not one of provocation.

In Praneel Kumar v. Reginam Cr. App. No 25 of 1972, this Court said:-

“It is well established law that a trial Judge is under no obligation to leave the issue of provocation to the Jury - in this case Assessors - where there is no evidence of facts upon which a finding of provocation could properly be based. In Holmes v. D.P.P. (1946) A.C. 588 Viscount Simon says:

“If there is no sufficient material, even on a view of the evidence most favourable to the accused, for a jury (which means a reasonable jury) to form the view that a reasonable person so provoked could be driven, through transport of passion and loss of self-control, to the degree and method and continuance of violence which produces the death, it is the duty of the judge as matter of law to direct the jury that the evidence does not support a verdict of manslaughter.”

In Lee Chun Chuen v. R. (1963) A.C. 220 Lord Devlin delivering the judgment of the Privy Council said:

“Provocation in law consists mainly of three elements - the act of provocation, the loss of self-control, both actual and reasonable, and the retaliation proportionate to the provocation. The defence cannot require the issue to be left to the jury unless there has been produced a credible narrative of events suggesting the presence of these three elements.”

Similarly in Maha Narayan v. Regina, (Criminal Appeal No. 1 of 1972), this Court said that the issue of provocation should be left to the assessors only of there is credible narrative of events suggesting the presence of the three elements referred to in Lee Chun Chuen v. R (1963) AC 220 namely, the act of provocation, the loss of self control, both actual and reasonable, and the retaliation proportionate to the provocation.

We have reviewed the facts of this case. We do not think there was credible evidence capable of supporting a finding of provocation, and the issue should not have been left to the assessors. There was no evidence of any “wrongful act or insult” offered by the deceased to the appellant, to induce him to commit the kind of assault that he did on the deceased. The deceased was unarmed, and came out of his bedroom after the appellant broke the louvre blades. He did not say or do anything that might be called provocative. True, the appellant was still married to Kolora, but they had separated three years earlier. The fact that the deceased lived in defacto relationship with Kolora and had a child by him was known to the appellant. The appellant had accepted the situation. He went to the house where the deceased lived in the early hours of the morning when most people are in bed, sleeping. He was armed. There is no rational explanation why the appellant took the knife with him, unless he intended to use it on the deceased, in the way he did. The deceased did not punch the appellant until he was struck the fist blow with the knife, a perfectly natural and predictable response. Mr O’Driscoll, Counsel for the appellant, submitted that finding his wife with the appellant in bed when he had earlier arranged to spend the night with her constituted “such wrongful act or insult” as to constitute provocation. We can not agree. We do not think in the circumstances of this case that the alleged provocation was such as would deprive a reasonable man of the power of self-control such as to induce him to commit the kind of violence which the appellant inflicted on the deceased. There was a large element of premeditation in what the appellant did. There was some evidence that the appellant had attacked the deceased on two previous occasions. The Appellant stabbed the deceased four times causing serious injuries.

Having decided to leave the issue with the assessors, the Learned Judge failed to direct them that it was not for the appellant to prove that he was provoked, but for the prosecution to prove beyond reasonable doubt that there was no provocation. To that extent the summing up was deficient. Furthermore, although the Learned Judge read section 204 of the Penal Code to the assessors, he did not either read or explain section 203 to them.

Neither of these omissions have caused any injustice to the appellant. The Learned Judge quite unnecessarily left the issue of provocation to the assessors. The deficiencies in the summing up are irrelevant.

This ground of appeal fails.

GROUND 2:

This ground of appeal has no merit. The Learned Judge made it very clear to the assessors that, before they could find the appellant guilty of murder they had to be satisfied beyond reasonable doubt that the appellant intended to kill or to cause really serious injury to the deceased, or that he knew that his actions would probably cause the death of or grievous harm to the deceased. He told the assessors that the state of the appellant’s mind at the time he inflicted the injuries had to be inferred from his conduct and all the circumstances of the case. We see nothing wrong in that direction. This ground also fails.

Order:

The appeal is dismissed.

Reddy, P
Barker, JA
Davies, JA

Solicitors:

Messrs. G.O’Driscoll and Shivam, Suva for the Appellant
Office of the Director of Public Prosecutions, Suva for the Respondent