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Court of Appeal of Fiji |
IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]
CRIMINAL APPEAL NO.AAU 108 of 2018
[In the High Court at Lautoka Case No. HAC 119 of 2015]
BETWEEN:
PAULIASI NAUASARA
Appellant
AND:
THE STATE
Respondent
Coram: Prematilaka, ARJA
Counsel: Appellant in person
: Ms. R. Uce for the Respondent
Date of Hearing: 22 December 2021
Date of Ruling: 23 December 2021
RULING
[1] The appellant had been indicted in the High Court at Lautoka on one count of murder contrary to section 237 (1) of the Crimes Act, 2009 committed on 25 June 2015 at Lautoka in the Western Division.
[2] The information is read as follows.
‘Statement of Offence
MURDER: contrary to section 237 (1) of the Crimes Act No. 44 of 2009.
Particulars of Offence
PAULIASI NAUASARAthe 25th of June5 at Lautoka in the the Western Division murdered MICHAEL SEOSBORNE.&#/b>’
[3] After the summing-up, the assessors had opined that the appellant was not guil murdt guilty of manslmanslaughter. The learned High Court judge had disagreed with the assessoressors, convicted the appellant and sentenced him on 15 November 2018 to mandatory life imprisonment with a minimum serving term of 18 years.
[4] Iqbal Khan & Associates had filed a timely appeal (22 November 2018) against conviction and sentence and Naco Chambers had filed written submissions on the same grounds of appeal on 08 February 2021. The state had tendered written submissions on 24 November 2021.
[5] In terms of section 21(1)(b) and (c) of the Court of Appeal Act, the appellant could appeal against conviction and sentence only with leave of court. The test for leave to appeal against conviction and sentence is ‘reasonable prospect of success’ [see Caucau v State [2018] FJCA 171; AAU0029 of 2016 (04 October 2018), Navuki v State [2018] FJCA 172; AAU0038 of 2016 (04 October 2018) and State v Vakarau [2018] FJCA 173; AAU0052 of 2017 (04 October 2018), Sadrugu v The State [2019] FJCA 87; AAU 0057 of 2015 (06 June 2019) and Waqasaqa v State [2019] FJCA 144; AAU83 of 2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 (15 July 2014) and Naisua v State [2013] FJSC 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds [see Nasila v State [2019] FJCA 84; AAU0004 of 2011 (06 June 2019)].
[6] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14; House v The King ef="h/www.paclii.org/corg/corg/cgi-bin/LawCite?cit=%5b1936%5d%20HCA%2040?stem=&synonyms=&query=leave%20to%20appeal%20against%tence"
title="View LawCite Record">[1936] HCA 40;  href="http://www//www//www.paclii.org/cgi-bin/LawCite?cit=%281936%29%2055%20CLR%20499?stem=&synonyms=&query=leave%20to%20appeal%20against%20sentence"
title="View LawCiteRecord">(1936)LR 499, Kim Nam BNam Bae v The State Criminal l No.AAU0015 and
(i) Acted uped upon a wrong principle;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.
Ground 1
THAT the Learned Trial Judge erred in law and in fact in relon and/or considering and/oand/or taking into consideration inadmissible and/or prejudicial evidence in finding the appellant guilty.
Ground 2
THAT the Learned Trial Judge’s failure to adequately evaluate the evidence prior to returning a verdict of guilty as charged, and the failure of the Learned Trial Judge to independently assess the evidence before confirming the said verdict, have given rise to a grave and substantial miscarriage of justice.
Ground 3
THAT the Learned Trial Judge erred in law and in fact in not directing himself and or the assessors to refer to any summing up the possible defence on evidence and as such by his failure there was a substantial miscarriage of justice.
Ground 4
THAT the Learned Trial Judge erred in law and fact in overturning the unanimous decision of the assessors of not guilty on the charge of Manslaughter but guilty on the charge of Murder and failing to consider the facts of the case.
Ground 5
THAT the Learned Trial Judge erred in law and fact in overruling the unanimous verdict of the assessors of not guilty on the charge of Murder did not give cogent reasons as to why he overruled the unanimous not guilty opinion of the three assessors in light of the evidence presented at the trial.
Sentence
Ground 1
THAT the appellant relies on Grounds (i) to (v) stated hereinabove.
Ground 2
THAT the Learned Trial Judge erred in law and in fact when he erroneously mistook the facts of the case resulting in the sentence being manifestly harsh and excessive and wrong in principle in all the circumstances of the case.
[8] The trial judge had summarized the prosecution evidence as follows in the sentencing order.
[2]On 21st March 2015, the deceased after drinking about 5 cartons of beer with his friends met the accused in town. The deceased and his friends cruised in the car driven by the accused for sometime. The deceased and his friends including the accused ended up at the multipurpose court where they drank some more beer except the accused. At this time the accused left his vehicle and went to relieve himself.
[3]Unbeknown to the accused the deceased drove the vehicle with his friends in the car. In the evening at about 7.40pm the deceased stopped the vehicle at Oriana Junction, Field 40. The accused was following in another vehicle came and stopped at the same junction. He got out of the vehicle, went to the deceased and punched him two times on his face. The deceased became unconscious.
[4]The accused opened the door of the car pulled and dragged the deceased out and took him to the roadside. At the roadside the deceased was lying face down.
[5]The accused started punching, kicking and stomping the accused on his face and head. According to eye witnesses the punching and kicking were more than 10 and they were forceful ones. At this time the accused was yelling “Mortuary” “Mortuary. One eye witness Albert Pickering shouted at the accused to stop because he feared the deceased would die from the assaults.
[6]The accused came for Albert, Albert fell while defending himself. The accused was stopped by one James Ledger. The accused once again went and assaulted the deceased until he was stopped by James. After assaulting the deceased the accused went away. The deceased was thereafter taken to the Lautoka Hospital.
[7]Albert could not recognize the deceased since his face was swollen and there was lot of blood. At the Lautoka Hospital the receiving doctor Dr. Pala saw the deceased was unconscious and he was bleeding from his mouth and nose. There was a lot of blood around his nose, mouth and face which was causing difficulties in breathing. The deceased’s jaw was deformed and fractured. The doctor stated the injuries were as a result of blunt force injuries to the face and jaw of the deceased.
[8]The deceased was admitted at the intensive care unit at the Lautoka Hospital for about three months he died on 25 June 2015. The post mortem report prepared by Dr. Kumar dated 2 July 2015 noted the cause of death as septicemia multiple bed sores, history of head injury and assault.’
[9] The defence position had been set out by the trial judge in the judgment as follows.
01st ground of appeal
[10] The submission on this ground of appeal is based primarily on medical evidence. The appellant seems to question the integrity of Dr Praneel Kumar who performed the post-mortem examination as he was employed with the Fiji Police Force and he alleges that the doctor had attempted to incline his findings according to the history of the case.
[11] The trial judge correctly directed the assessors as to how to approach expert evidence of both Dr Praneel Kumar and Dr Poonam Pala in the summing-up (see paragraphs 54-56). The summing-up or the judgment does not show that the appellant’s counsel had in any way challenged the expert evidence on the cause of death and the injuries. No allegation of the kind made now by the appellant against Dr Praneel Kumar does not appear to have been levelled at the trial.
[12] According to the post-mortem report, the cause of death is septicemia and multiple bedsores had directly led to the death of the deceased while historical injuries and assault had been identified as antecedent causes. He had also found diffuse axonal injury/DAI (a kind of brain injury) resulting from high-velocity trauma and assault though the brain was normal on gross inspection.
[13] The deceased had been in a vegetative state for 03 months after the incident before his death and it is understandable that the pathologist had not seen an injury on the head and abdomen. However, Dr Poonam Pala had observed bleeding from the deceased’s mouth and nose and the deceased having a fractured jaw upon his admission in a state of unconsciousness.
[14] Therefore, in my view, causation between the assault inflicted on the deceased by the appellant as spoken to by the eyewitness and the cause of death had been established. In law it is enough that the appellant’s act contributed significantly to the death; it need not have been the sole or principal cause of death unless the death had been the result of a supervening event such as medical negligence. Due to large bedsores, bacteria had multiplied and eventually entered the bloodstream causing septicemia. It is the deceased’s vegetative state that had led to bedsores resulting in septicemia. Thus, bedsores cannot be considered as an independent supervening event as it was the direct result of the deceased’s vegetative state caused by the assault of the appellant. The medical evidence had stood unscathed.
[15] Therefore, I do not see any reasonable prospect of success in this ground of appeal.
[16] However, the larger issue as to whether the appellant, in fact, entertained an intention to cause death or was reckless as to causing the death of the deceased or whether he only intended to cause serious harm or was reckless as to the risk that his conduct will cause serious harm to the deceased, had not been taken up in appeal by the appellant.
[17] The eye-witnesses had spoken to the violent attack on the deceased; punches, kicking and stomping on the head by the appellant while shouting ‘mortuary’, ‘mortuary’ when the deceased was lying unconscious. They had not seen the deceased punching the appellant.
[18] According to the appellant, when he pulled the deceased out of the vehicle, the latter punched him and once out of the car he again punched the appellant. The appellant also punched the deceased with his right hand to try and stop the deceased and there was an exchange of blows. The appellant punched the deceased three (3) times and the latter fell down. When the deceased was on the ground he was verbally abusing the appellant. The deceased landed on the ground face up and since the deceased continued swearing, the appellant punched the deceased.
[19] The reasons given by the appellant for his actions were firstly when he pulled the deceased out of the car the deceased had punched him, secondly, his vehicle had been damaged by the deceased and thirdly the appellant tried to protect himself since the deceased was drunk and swearing. After his last punch, the appellant kicked the deceased who was lying down but he did not know where the kick landed. When he was punching the deceased the appellant claims to have had no intention to kill the deceased since they knew each other very well.
[20] The trial judge had concluded in his judgment as follows and convicted his for murder.
‘[54] I am satisfied beyond reasonable doubt that on 21st M 2015 the accused had enga engaged in the conduct of punching, kicking and stomping the deceased on his face and head wearing hivas when the deceased was in a state of unconsciousness causing the death of the deceased ased and the accused intended to cause the death of the deceased by his conduct.’
[21] The trial judge had fully addressed the assessors on manslaughter based on fault element in paragraphs 28-30 of the summing-up
and the assessors had decided on manslaughter based either on the fault element or provocation. However, the trial judge had ruled
out both in the judgment which was his right. In Fiji, the assessors are not the sole judge of facts. The judge is the sole judge
of fact in respect of guilt, and the assessors are there only to offer their opinions, based on their views of the facts and it is
the judge who ultimately decides whether the accused is guilty or not [vide abete v St;v State;#160rea href="http://www.paclii.org/fj/cases/FJCA/2006/85.html?stem=&synonyms=&query=Fraser" title="View Case">[2006] FJCA 85; AAU0048.2005S (22 March 2006),
02nd and 05th ground of appeal
[23] The appellant argues that the trial judge had not independently assessed the evidence before overturning the assessors and convicting the appellant for murder. He also suggest that the learned judge should have addressed the assessors on lighting at the crime scene.
[24] A trial judge is not expected to repeat everything he had stated in the summing-up in his written decision/judgment when he directs
himself accordingly (vide Fraser v State [2021] FJCA 185; AAU128.2014 (5 May 2021). When the trial judge disagrees with the majority of assessors he should embark on an independent assessment
and evaluation of the evidence and must give ‘cogent reasons’ founded on the weight of the evidence reflecting the judge’s
views as to the credibility of witnesses for differing from the opinion of the assessors and the reasons must be capable of withstanding
critical examination in the light of the whole of the evidence presented in the trial [vide Lautabui v State&#/b> [2009] FJSa>; CAV0024.2008 (6 February 2009),
[25] Having perused the judgment, I do not find any merits in the appellant’s argument. The trial judge had in fact embarked on an independent assessment and evaluation of the evidence and given ‘cogent reasons’ for convicting the appellant for murder rather than manslaughter. If the appellant’s grievance is that he did not entertain any of the fault elements required for murder and the prosecution had not proved the same despite the convincing reasons given by the trial judge, he will have to take the appeal before the full court that could examine the complete transcript to decide on the correctness of the verdict of murder.
[26] I do not think there is any merit in the argument regarding lighting at the crime scene and that had not been canvassed as a contested issue at the trial by the appellant’s counsel. In any event, the appellant had not denied having attacked the deceased.
03rd and 04th grounds of appeal
[27] The appellant contends that the trial judge had not directed the assessors and himself on possible defences namely self-defence and provocation.
[28] The trial judge had addressed the assessors on self-defence at paragraphs 117-123 and on provocation at paragraphs 124-128. The judge had given his mind to self-defence at paragraph 46 and 47 and dealt with provocation at paragraphs 48-50 of the judgment where the judge had rejected both defences.
[29] Narayan v State [2020] FJCA 189; AAU0610.2017 (ober 2020), I had the occasion to remark:
‘[14] In my view, in the case of e of a defense of selfnse & the primaryimary question similar to that of provocation is whether such a defence arises on the eviden8211;o be precihether there is “a credible tive #160;#160;of evof events suts suggesuggesting the presence of” such a defence [see the decision of the Privy Council in Lee Chun Chuen v R> [1963] AC 220 and Supreurt don in&# inin Naicker v b>> [2018] FJSC 24; AAV0019.2018 (1 8 (1 November 2018)]. If and when the fl mativx giving rise to o ‘ self-defense ̵ beli ted, the asse assessors have to then considether it could be said that the accused believed upon reasonable grounds that it was necessecessary in f-def&#/b;&#/b>&#o do w do what heat he did. did. If t If the accused had that belief and there were reasonable grounds for it, or if the jury is left in reasondoubtt the matter, then he is entitled to an acquittalittal.. er, the test is not whol wholly objective and it is the subjective belief of the accused based on the circumstances, as perceived by him, that counts but that belief should be objectively rease in those circumstances thes that he was in immediate danger of death or serious injury and that to kill or inflict serious injury provided the only reasonable means of protection. The faat an appellant has thas taken up ‘self-defense in his evidence does does not necessarily make it a credible story and the assessors should always act upon it.
[ do not think thak that the appellant’s evidence could reach the threshold required tred to pass the above test for self-defense.
[31] The main considerations in ‘provocation’ are whether there had been a credible narrative of the act of provocation, resulting sudden loss of seltrol< by the appe and reta>retaliatory attack on the deceased by the accused which is proportionatethe proe provocative words or deeds (see Naiv Sta> [2020] FJCA 20; AAU135.2014, AA2014 (27 February 2020) and) and Masicola v State [2021] FJCA 176; AAU073.2015 (29 April 2021).
[32] On the facts stated in the summing-up and the judgment, I cannot see how the appellant could succeed in the defense of provocation.
[33] Further, some of the above matters should have been raised by way of redirections as held in Tuwai v State<160 [2016] FJSC35 (26 August 2016) and Alfaaz v State<16> [2018] FJCA19; AAU0030 of 2014 (08 March 2018 Alfaaz ve> [ FJSC 1JSC 17; CAV 0009 of 2018 (30 August 20st 2018) and the deliberate failure to do o do so would disentitle the appellant even to raise them in appeal with any credibility.
Grounds 01 and 02 (Sentence)
[34] The appellant contends that the sentence is harsh and excessive but not elaborated the two grounds of appeal.
[35] The statutory sentence for murder is mandatory life imprisonment. The judge has no discretion at all. However, he has a discretion in fixing the minimum serving period which has not been taken up in appeal by the appellant.
[36] Therefore, there is no reasonable prospect of success in the sentence appeal on the above grounds.
Orders
Hon. Mr. Justice C. Prematilaka
ACTING RESIDENT JUSTICE OF APPEAL
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