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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 071 of 2019
[In the High Court at Suva Case No. 377 of 2017]
BETWEEN:
STATE
Appellant
AND:
NOA RAVUTANASAU
MELACI TIKOMAIRARATOGA
Respondent
Coram: Prematilaka, JA
Counsel: Mr. M. Vosawale for the Appellant
Ms. S. Nasedra for the Respondents
Date of Hearing: 19 March 2021
Date of Ruling : 22 March 2021
RULING
[1] The respondents had been charged in the High Court of Suva on a single count of murder contrary to section 237 read with section 45 of the Crimes Act, 2009 committed on 30 November 2017 at the Total Service Station car park at Suva in the Central Division. The charge read as follows.
‘Statement of Offence
MURDER: Contrary to Section 237 read with section 45 of the Crimes Act of 2009.
Particulars of Offence
NOA RAVUTANASAU and MELACI TIKOMAIRARATOGA on the 30th day of November 2017, at the TOTAL SERVICE STATION car park at Suva in the Central Division as joint principles or either aiding and abetting the other murdered RUSIATE VAKALAKOVI.
[2] After the summing-up on 14 November 2019 the majority of assessors had opined that the respondents were not guilty of murder but guilty of manslaughter. In the judgment delivered on 20 November 2019 the learned trial judge had disagreed with the majority of the assessors and acquitted the respondents.
[3] The state had filed a timely appeal against acquittal on 13 December 2019 and written submissions on 13 August 2020. The Legal Aid Commission had filed written submissions on behalf of the respondents on 24 December 2020.
[4] In terms of section 21(2)(a) & (b) of the Court of Appeal Act, the appellant could appeal against acquittal without leave on a question of law alone and with leave of court on a question of mixed law and fact respectively. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (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 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds.
[5] The sole ground of appeal against acquittal urged on behalf of the appellant is as follows.
Ground (a) - That the verdicts of acquittal are unreasonable and cannot be supported having regard to the evidence in that:
(i) it was not properly open to a reasonable judge to find that either of the Respondents may have honestly believed that their conduct in continuing to assault the defenseless deceased on the ground was necessary to defend themselves.
(ii) it was not properly open to a reasonable judge to find that the conduct of both of the respondents in continuing to assault the defenseless deceased on the ground was a reasonable response in the circumstances as he or she perceived them.
[6] The summary of evidence set out in the judgment read as follows.
Ground of appeal
[7] It is clear that the main issue to be resolved in this appeal is whether the respondents were acting in self-defense in attacking the deceased though they had not testified that they were acting in self-defense. Section 42(2) of the Crimes Act, 2009:
“A person carries out conduct in self-defense if and only if he or she believes the conduct is necessary:
(a) to defend himself or herself or another person; or
(b) to prevent or terminate the unlawful imprisonment of himself or herself or another person; or
(c) to protect property from unlawful appropriation, destruction, damage or interference; or
(d) to prevent criminal trespass to any land or premises; or
(e) to remove from any land or premises a person who is committing criminal trespass —
and the conduct is a reasonable response in the circumstances as he or she perceives them.”
[8] It was held in Naitini v State [2020] FJCA 20 AAU135 of 2014, AAU 145 of 2014 which in turn had quoted from Vasuitoga v State [2013] FJSC 1; CAV001 of 2013 (29 January 2016) regarding the duty of the trial judge when self-defense is relied upon by an accused.
‘[28] It is settled that when an accused relies on self-defence, the trial judge should direct the assessors to consider whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds. As the Privy Council said in Palmer v The Queen [1970] UKPC 2; [1971] AC 814, 831-832:
"The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable ground that it was necessary in self-defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal."
[29] In State v Li Jun unreported CAV0017/2007S; 13 October 2008 Sackville JA referred to the English and Australian authorities on self-defence and said at [46]:
"It is important to appreciate that the test stated in Zecevic is not wholly objective. It is the belief of the accused, based on the circumstances as he or she perceives them to be, which has to be reasonable."
[30] We also refer to what Lord Lowry CJ said in R v Browne [1973] NI 96 which is cited in the unreported decision of the English Court of Appeal of Balogun [1999] EWCA Crim. 2120. Lord Lowry said at p 106:
"To justify killing or inflicting serious injury in self-defence the accused must honestly believe on reasonable grounds that he is in immediate danger of death or serious injury and that to kill or inflict serious injury provides the only reasonable means of protection."
[9] In Aziz v State [2015] FJCA 91; AAU112.2011 (13 July 2015) Calanchini P said of section 42(2) of the Crimes Act, 2009 as follows.
[30] The defence of self-defence is now, as a result of the words "if and only if", available as a statutory defence. The defence will exonerate an accused person in the event that the prosecution fails to establish beyond reasonable doubt that the conduct of the accused was not a reasonable response to the circumstances as they were perceived by the accused. This is the only basis upon which the use of force in self-defence will negate criminal responsibility for an offence.
[31] The common law defence of self-defence was discussed in the judgment of Sackville J in The State –v- Li Jun (unreported CAV 17 of 2007; 13 October 2008). Although the judgment of Sackville J was a dissenting judgment, the judgment of the majority does not appear to take issue with the principles to be applied by a trial judge when directing the assessors and himself on self-defence. Sackville J having formed the view that although it may be possible that there are some differences between the common law of self-defence in England and Australia concluded that they were not material to the appeal before the Supreme Court in that case. The Supreme Court was concerned with a petition for leave to appeal against conviction for murder of four family members where the defences of self-defence (at common law) and provocation were in issue. Sackville J referred to the decision of the High Court of Australia in Zecevic –v- DPP [1987] HCA 26; (1987) 162 CLR 645 at 661 and concluded that there was no inconsistency with the statements made by the Privy Council in Palmer v The Queen [1995] UKHL 1; [1995] 1 AC 482. Sackville J then made the following observations as to the nature of the test for self-defence at common law in paragraph 46:
"It is important to appreciate that the test stated in Zecevic is not wholly objective. It is the belief of the accused based on the circumstances as he or she perceives them to be, which has to be reasonable. The test is not what a reasonable person in the accused's position would have believed. _ _ _. It follows that where self-defence is an issue, account must be taken of the personal characteristics of the accused which might affect his appreciation of the gravity of the threat which he faced and as to the reasonableness of his or her response to the threat."
‘[32] There is in my judgment no inconsistency between the common law principles of self-defence and section 42 of the Decree.
[33] In my judgment the summing up did not adequately explain the subjective element of the test under section 42 of the Decree. The actions of the Appellant will be considered necessary for the purposes of self-defence if the conduct was a reasonable response in the circumstances as they were perceived by the Appellant. In my judgment the summing up does not direct the minds of the assessors or the Judge himself to the importance of the Appellant's perception of the threat that he faced on the afternoon of 10 September 2011. There is in the summing up an emphasis on the objective nature of the test. For example, the assessors were told that in considering whether the accused acted reasonably you must ask yourself what a reasonable man in the accused's shoes would have done to defend himself. It was not made sufficiently clear that the issue of whether the conduct was necessary must he considered in the context of reasonableness which in term had to be determined by reference to the Appellant's perception of the threat that he faced. The Appellant's defence had at all times been that as an immediate response to the stone hitting him he had swung the cane knife in the direction of the deceased.
[10] In Narayan v State [2020] FJCA 189; AAU0610.2017 (6 October 2020), I had the occasion to remark:
‘[14] In my view, in the case of a defense of self-defense the primary question similar to that of provocation is whether such a defence arises on the evidence – or to be more precise, whether there is “a credible narrative of events suggesting the presence of” such a defence [see the decision of the Privy Council in Lee Chun Chuen v R [1963] AC 220 and Fiji Supreme Court decision in Naicker v State [2018] FJSC 24; AAV0019.2018 (1 November 2018)]. If and when the factual matrix giving rise to ‘self-defense’ is believed, the assessors have to then consider whether it could be said that the accused believed upon reasonable grounds that it was necessary in self-defense to do what he did. If the accused had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal. However, the test is not 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 reasonable in those circumstances 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 fact that an appellant has taken up ‘self-defense’ in his evidence does not necessarily make it a credible story and the assessors should always act upon it.
[11] The trial judge had directed the assessors to consider the issue of self-defense at paragraphs 66-70 and asked them to find the respondents not guilty if they had acted in self-defense. The trial judge particularly said:
[69] If you are sure that the two accused were the aggressors and do not believe they were under threat from the deceased then no question of self-defense arises. If, however, you consider it was or may have been the case that the accused were or believed they were under attack or believed they were about to be attacked you must go on to consider whether response of the accused were reasonable. If you consider what the accused did was, in the heat of the moment when fine judgments are difficult, no more than the accused genuinely believed was necessary, that would be strong evidence that what accused did was reasonable; and if you consider accused did no more than was reasonable, accused was acting in lawful self-defense and not guilty of any offence. It is for you to decide whether the force used was reasonable and you must do that in the light of the circumstances as you find accused believed them to be. If you are sure that even allowing for the difficulties faced in the heat of the moment accused used more than reasonable force, then accused were not acting in lawful self-defense.
[12] The judge also directed the assessors on manslaughter as follows.
[13] Clearly, the majority of assessors had not accepted self-defense the respondents attempted to bring to the focus in cross-examination, for they did not give evidence and take up that defense. The majority had not believed that the prosecution had proved murder either. They had thought that a case of man-slaughter had been made out beyond reasonable doubt by the prosecution.
[14] Having examined the evidence as quoted above the trial judge had remarked in the judgment as follows in acquitting the respondents.
[15] In my view, the trial judge’s summary of evidence in the judgment does not reflect the accurate picture of what had transpired between the deceased and the respondents as revealed by the narration of evidence in the summing-up. The respondents had got inside their car possibly to leave the scene but got off from it a little while later. Paragraph 25 and 26 gives the rest of the events in a nutshell. Paragraphs 27-39 contain details of what had followed.
[25] .........Thereafter, the man and the woman went down to the car park of the service station which is located about 2 ½ meters below the railings. They then got into the car but in a while got off from the car. Then he saw the deceased was swearing at the man. The deceased swore at the man saying that “I am not afraid of how big you are, we can punch each other, I am not afraid of how big you are”. The deceased then came and punched the man, falling him down. The man then stood up and the lady also came in. The man then punched the deceased. The deceased then leant on the vehicle and then fell on to the ground.
[16] Further, the trial judge had not applied the correct tests formulated in the above decision in coming to his conclusion that the respondents had exercised their right to self-defense. In my view when both the objective and subjective tests are applied to the totality of circumstances, a case of self-defense cannot be said to be made out. Though, there was a credible narrative of events suggesting the presence of self-defense, in my view, the respondents had exceeded their right of self-defense. However, I am not convinced that the prosecution had proved beyond reasonable doubt the charge of murder. I agree with the majority of assessors that the respondents were guilty of manslaughter.
[17] Therefore, there is a reasonable prospect of success in this appeal.
Order
Hon. Mr. Justice C. Prematilaka
JUSTICE OF APPEAL
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