Court of Appeal of Fiji

[6] Although thgh the question whether a wilful act is an element of murder is a point of law alone, in my judgment, the question is frivolous and cannot possibly succeed. To engage in an act means is to do an act (section 15(2) of the Crimes Decree 2009). Further, a conduct can only be a physical element if it is voluntary (section 16(1) and a conduct is voluntary if it is a product of the will of the person (section 16(2)). Given the definition of the phrase ‘engage in conduct’ carries the notion of a voluntary act, it is not a misdirection to inform the assessors that the prosecution is required to prove that the accused did a wilful act that caused the death of a person. Ground one cannot possibly succeed.

Use of prejudicial examples to explain the physical element

[7] This complaint is misconceived. The appellant’s contention is that the learned trial judge’s use of an example of a person stabbing with a kitchen knife to explain the physical element of murder lacked fairness and objectivity. The appellant did not dispute stabbing the deceased with a kitchen knife. The physical element of murder was not disputed by the appellant. In these circumstances, there was nothing wrong with the use of example of a stabbing to explain the physical element of murder that was not in dispute. Ground two is unarguable.

Direction on provocation

[8] The direction on provocation is in paragraphs 14 and 36 of the summing-up as follows:

14. Provocation is a partial defence. If it is made out, it reduces an offence of murder to manslaughter. If an accused person does an act which causes death, in the heat of passion, caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter. Provocation is any wrongful act or insult of such nature, when done to an ordinary person, deprives him of the power of self-control, and induces him to assault the deceased. If you find that the above defence is available to the accused, then you must find him not guilty of murder, but guilty of manslaughter. However, if you find that the defence is not available to the accused, and all the three elements of murder had been proven by the prosecution beyond a reasonable doubt, then you must find the accused guilty as charged.

36. You will have to consider the above defence, if you have reached the conclusion at this stage that, the accused is guilty of murdering his wife, at the material time. Please, examine this defence of provocation in the light of the direction I gave you at paragraph 14 hereof. Was the accused provoked by the wife to the extent that he subsequently stabbed her? Was the provocation by the wife of such a nature as to cause him to lose his power of self-control? Was the stabbing done in the heat of passion, caused by sudden provocation, and before there was time for his passion to cool? Was the retaliation proportionate to the provocation? In my view, the surrounding circumstances and the previous verbal arguments between the accused and his wife from 1am to 5am on 9 January 2013, was not sudden provocation. There was enough time for his anger etc to cool down as they walked to the bridge. In his own evidence, he wanted to teach her a lesson. In my view, the defence of provocation is not available to the accused. In any event, it is entirely a matter for you.

[9] Counsel for the appellant while conceding that the direction on provocation was correct, submits that the learned trial judge should have emphasised on the facts from which an inference could have been drawn that the provocation was prolonged as the couple argued the entire night before he stabbed the deceased in the early hours of the morning. In paragraphs 32-35 of the summing-up, the learned trial judge highlighted all the relevant facts that led to the stabbing of the deceased by the appellant. The assessors and the trial judge did not find the appellant was provoked. The finding was available on the evidence. Ground three is unarguable.

Bad character evidence

[10] The bad character evidence was that the appellant had been in prison before he was charged with murder. The evidence was contained in the appellant’s caution interview. The evidence was led as background evidence of the relationship between the appellant since September 2012 when the couple started having problems in their marriage. In paragraph 15 of the summing-up, the learned trial judge informed the assessors that “according to the prosecution, the family lived together happily, until September 2012, when the accused was released from prison”. Otherwise, the learned trial judge did not make any further reference to this evidence in the summing-up. The evidence was led without any objection from the appellant’s trial counsel. If the evidence was prejudicial to the appellant, then his trial counsel could have asked the trial judge to either exclude the evidence or warn the assessors not to draw any adverse inference as to the guilt of the appellant based on his criminal history. No direction was sought by the appellant’s trial counsel. Ground four is unarguable.

Reasons for voir dire ruling

[11] The appellant’s caution interview was ruled admissible after a voir dire hearing, but written reasons for the decision were given on 28 October 2014, that is, before the summing-up was delivered. Although it is always desirable for the reasons to be given at the same time when the ruling is made, there is no caveat against the ruling to be made, for instance, admitting the evidence so that the trial can proceed without delay, and the written reasons provided later during the course of the trial and before the case is concluded. The learned trial judge did give written reasons for his ruling admitting the appellant’s caution interview before the summing-up was delivered. Ground five is unarguable.

Minimum term

[12] The sentence for murder is fixed. It is mandatory life imprisonment. There is no right of appeal against a fixed sentence. The appellant’s complaint relates to the length of his minimum term before he can apply for a pardon. In my judgment, the minimum term of 20 years reflect the criminality involved. The killing arose from domestic violence. The purposes of the sentence are to denounce the appellant’s crime and deter him and others from committing similar offences. The minimum term is within the permissible range.

Result

[13] Leave refused.

Hon. Mr. Justice Daniel Goundar

JUSTICE OF APPEAL

Solicitors:

Office of the Legal Aid Commission for the Appellant
Office of the Director of Public Prosecutions for the State