Court of Appeal of Fiji

(i) Acted upon a wrong principle;(ii) Allowed extraneous or irrelevant matteratters to guide or affect him;(iii)Mistookfacts;(iv) Failed to take iake into account some relevant consideration.

‘Conviction

1. THAT the Learned Trial Judge erred in law and in fact when he convicted the Respondent for Manslaughter instead of Murder when the evidence proved that the conduct of the Respondent was more than to cause serious harm.
   
2. THAT the Learned Trial Judge failed to give reasons for convicting the Respondent on the lesser charge of Manslaughter.
   

Sentence

100. THAT the Learned Trial Judge erred in fact and in law when he imposed a sentence which was manifestly lenient.
     

[8] The Trial Judge had summarised the appellant’s case in the summing-up as follows:

21. The prosecution’s case was as follows. On 8 October 2017, the deceased, Mr. Masi Kalaro (MK) was 41 years old, married with 3 children. The accused, Mr. Epeli Talakubu wa1)approely 47ly 47 yearsyears old, previously married with 3 children. On 8 October 2017, DW1 was in a de facto relationship with MK’s younger sister, Ms. Salasieli Molidegei (DWhey hen tor for the prhe previouevious 8 ys 8 years, and had a young son, Sevuloni, who was approximately 1 year 3 months at the time. MK’s family and DW1’s family live in Batiniwai Settlement, Caubati and are neighbors. They are also brothers-in-law and are very close to each other.
    
22. According to the prosecution, on 8 October 2017 (Sunday) before lunch, Epeli, his wife DW2, MK, Losalini, Alumeci, Kaminieli (PW2), Virisila and Samuela (PW1) were drinking liquor in Epeli’s house. They started off drinking Woodstock liquor and then drank three cartons of long neck Fiji Gold beer. They were sitting on a rug in Epeli’s house on the floor, and were drinking using the “taki” style. According to the prosecution, the problem appeared to have started when Epeli’s young son, Sevuloni, was brought into the party by his mother, DW2. MK objected to the same, because the child might be exposed to cigarette and liquor smells. According to the prosecution, Epeli did not object to his son being present.
    
23. According to the prosecution, the male members of the drinking party were drunk. It was said that MK and Epeli began to head-butt each other. According to the prosecution, MK and Epeli wanted to fight each other. However, Samuela (PW1) stopped the two by separating them. MK went out of the house and later returned. When he returned, he went and got hold of a bucket which contained 6 or 7 full long neck bottles of Fiji Gold beer. According to the prosecution, Epeli tried to stop him, and took a bottle out of the bucket. According to the prosecution, he allegedly smashed the bottle on a table, and with the broken bottle allegedly stabbed MK twice on the left chest and the left neck. The stab to the chest allegedly severed an artery, leading to excessive blood loss, resulting in MK’s death at 5.35 pm on the same day. According to the prosecution, the accused allegedly intended to cause MK’s death, or was reckless in causing the same. After the above, according to the prosecution, the accused allegedly threatened to chop PW1 with a chopper, without any lawful excuse.
    

[9] The Trial Judge had summarised the defence case in the summing-up as follows:

26. The accused’s case was as follows. The accused (DW1) in his sworn evidence, admitted he was at the crime scene, his house, at the material time. He admitted, he was drinking liquor with his wife (DW2), the deceased (MK), MK’s wife, Samuela (PW1), PW1’s wife, Kaminieli (PW2) and PW2’s wife, at the material time. DW1 said, it was a family drinking party. They started drinking after 11 am on 8 October 2017, a Sunday. DW1 said, the family enjoyed themselves while drinking. They were drinking using the “taki” style. They started off drinking Woodstock liquor and went on to drinking Fiji Gold. DW1 appeared to say that everyone was drunk as the party went on. DW1 said, MK went out the house, and brought in a neighbor, Aseri (DW3) to join them. DW1 said, MK went and brought his child to the party, and gave him to his wife (DW2).
    
27. According to DW1, the problem started when Samuela (PW1) kissed his baby, Sevuloni, and told him that Sevuloni would not be registered in DW1’s “vola ni kawa bula”, but in DW2’s family’s “vola ni kawa bula”. DW1 appeared to say he was not happy with this and questioned PW1. He said, PW1 came and held his collar. DW1 said, at that particular moment, MK came and tried to take the bucket containing 6 long neck full bottles of Fiji Gold. DW1 appeared to say, he disagreed with MK’s action, as he was the barman during the drinking party. DW1 said, he tried to stop MK take the bucket of beer bottles. DW1 said, he tried to grab the bucket, but instead grabbed a beer bottle from inside the bucket.
    
28. DW1 said, the beer bottle broke. DW1 said, at the same time, MK was bending down to pick up the bucket full of beer bottle. DW1 said, PW1 was still holding his collar. DW1 said, he suddenly raised both his hands up, apparently to stop MK taking the bucket of beer bottles. DW1 said, he didn’t realize he was still holding the broken beer bottle. DW1 said, everything happened so fast, and he didn’t realize that the broken bottle he was holding had struck MK in the left chest. DW1 denied stabbing MK in the left neck. DW1 denied threatening PW1 with a chopper. He denied threatening to kill PW1 with a chopper, at the material time. DW1 said, he did not intend to stab MK with the broken beer bottle, nor was he reckless in stabbing MK with the same. DW1 said, the stabbing of MK, at the material time, was nothing but an accident.
    

01^st ground of appeal

[10] The appellant submits that the Trial Judge had mostly accepted the defence version on the main disputed issue namely whether the attack on the deceased was accidental as claimed by the respondent or deliberate as presented by the appellant. According to the appellant, the Trial Judge had seemingly discounted the respondent having broken the bottle and stabbed the deceased twice. The appellant also submits that the respondent’s version of ‘accident’ could not be credible in the light of the evidence of PW1 and PW2 who both spoke to the respondent stabbing the deceased twice on the left neck and left chest which evidence was supported by the uncontested testimony of the pathologist who had confirmed 02 stabs caused with significant force suggesting that the blows were deliberate rather than accidental.

[11] However, it appears from the judgment that the Trial Judge while accepting the assessors’ opinion that the respondent was guilty of ‘manslaughter’ and not murder, had believed the evidence of PW1 and PW2 that the respondent had indeed stabbed the deceased:

6. The prosecution’s case was obviously built on the evidence of Mr. Samuela Tabuavou (PW1), Mr. Kaminieli Matayabone (PW2) and Doctor James Kalougivaki’s (PW5) evidence. I accept the evidence of Samuela and Kaminieli that the accused stabbed the deceased with a broken beer bottle on the left chest, at the material time. I accept their evidence that they saw blood coming from the deceased’s chest after the stabbing. I find that on the above issue, PW1 and PW2’s evidence were credible, and I accept the same. This evidence satisfied the first element of murder and manslaughter, as described in paragraphs 10 (i) and 17(i) of my summing up.
   
7. On the second element of murder and manslaughter, as described in paragraphs 10 (ii) and 17 (ii) of my summing up, I accept the evidence of Doctor James Kalougivaki (PW5). He said, the deceased died as a result of the injury to his left chest. He said, the deceased died as a result of excessive blood loss due to the complete cut to the major artery from the heart that supplied blood to the left side of the chest and upper limp, due to sharp force or trauma. PW5 said, it was highly likely that the use of a broken beer bottle may amount to “sharp force injury or trauma”. Given PW5’s above evidence, I find and accept that when the accused stabbed the deceased on the left chest, he thereby caused his death, as a result of the deceased’s abovementioned injury.
   

[12] Nevertheless, the trial had agreed with the assessors’ opinion on manslaughter based on what he thought was their conclusion on the fault element namely that the respondent had only intended to cause serious harm or was reckless in causing serious harm to the deceased as opposed to him having intended to cause death or been reckless as to causing the death of the deceased:

8. On the third element of murder, as described in paragraph 10 (iii) (a) or (b) of my summing up, I am guided by the three assessors’ opinion. They appear to find that the accused did not intend to kill nor was he reckless in causing the deceased’s death, when he stabbed him with a broken beer bottle. The assessors appeared to have found that the accused, at the material time, when he stabbed the deceased with the broken beer bottle, intended to cause him serious harm, or was reckless in causing him serious harm, the third element of the offence of manslaughter. I accept the three assessors’ opinion on the above issue, and in my view, it was credible evidence, given the totality of the evidence.
   

[13] The Trial Judge had fully placed all the material evidence before the assessors including medical evidence and addressed the assessors on the fault element of murder as follows:

39. If the prosecution had made you sure that Epeli’s alleged stabbing of Masi’s chest caused his death, then you must consider the third element of murder. Please, take on board the directions I gave you in paragraphs 13, 14 and 15 hereof. The first question you have to ask yourselves become: Did Epeli intend to kill Masi when he allegedly stabbed him in the chest with a broken beer bottle? On this issue, you will have to examine Epeli’s conduct at the time, that is, what he said and did, and the surrounding circumstances, to make reasonable inferences on whether or not he intended to kill Masi, at the material time. You have heard the details of Samuela (PW1), Kaminieli (PW2) and Doctor Kalougivaki’s evidence of what allegedly occurred, Why the dispute over the child? Why the argument over the bucket of beer? Why the breaking of the beer bottle? Why didn’t Epeli drop the broken beer bottle immediately? If you accept PW1’s evidence, why smash the beer bottle on the table? If you accept PW1 and PW2’s evidence, why stab Masi in the left chest? The answers to the above questions will tell you whether or not Epeli intended to kill Masi, at the material time. If you find that he did, the prosecution would have proven murder against the accused. If otherwise, you will have to find the accused not guilty as charged for murder. It is a matter entirely for you.
    
40. If you are sure Epeli did not intend to kill Masi, when he allegedly stabbed him in the left chest, you will have to consider whether or not, Epeli was reckless when he allegedly stabbed Masi in the left chest. On this issue, take on board my directions in paragraph 15 hereof. You will have to ask yourselves the following questions. Was Epeli aware of a substantial risk that Masi would die if he allegedly stabbed him in the left chest with a broken beer bottle? If he was aware of the substantial risk, did he nevertheless take the risk? If you accept PW1 and PW2’s evidence, he allegedly took the risk. Was it unjustifiable to take the risk? Your answers to the above question will decide whether or not he was reckless when he allegedly stabbed Masi with a broken beer bottle. If you find he was reckless, the third element of murder would have been satisfied. If otherwise, the third element of murder was not satisfied. How you decide the above is a matter entirely for you.
    
41. If you find the prosecution had satisfied all the 3 elements of murder as described above, you must find the accused guilty as charged. If otherwise, you must find him not guilty as charged. It is a matter entirely for you.
    

[14] The Trial Judge had earlier addressed the assessors on manslaughter as follows:

17. ‘If you find the accused not guilty of murder, you may in the alternative, consider the lesser offence of “manslaughter”. A person, as a matter of law, may be convicted of the lesser offence of “manslaughter”, although he was not formally charged with the same. The first and second element of “manslaughter” are similar to that of “murder”, as described in paragraphs 10 (i) and 10 (ii) hereof. The only difference between the two offences are their fault elements. In “manslaughter”, the prosecution must prove beyond reasonable doubt, the following elements:
    

(i) that the accused did a willful act; and

(ii) that willful act caused the death of the deceased; and

(iii) at the time of the willful act, the accused either;

(iv) Intends the willful act to cause the deceased serious harm; or

(v) Is reckless as to causing serious harm to the deceased.

[15] Therefore, given proper directions on facts and law the assessors had found the respondent only guilty of manslaughter. The Trial Judge agreed with them inter alia having directed him according to the summing-up.

[16] The question is whether it was not open to the assessors and the Trial Judge to have found the respondent guilty of manslaughter. In other words, whether the verdict of manslaughter was unreasonable or cannot be supported having regard to the evidence.