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State v Lautabui [2002] FJHC 268; HAC009.2001S (1 February 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC009 OF 2001S

STATE

V

LEONE LAUTABUI;
JONASA TONAWAI; and
SEMESA ROKO

Ms White & Mr Tunidau for State
Mr Veretawatini for 1st Accused
Mr Rabo for 2nd Accused
Mr Vere for 3rd Accused

RULING

The prosecution invites me to withdraw the defence of compulsion from the assessors on the ground that on an objective test, there is insufficient evidence that each accused committed the offences while under a continuing threat of death or grievous harm, for the assessors to consider.

Section 16 of the Penal Code provides:

“A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or to do him grievous bodily harm if he refuses; but threats of future injury do not excuse any offence. Although in other jurisdictions, the defence is not available for the offences of murder or attempted murder, section 6 of our Penal Code makes no exception and is therefore available in principle for these offences.”

The test relevant for this defence in common law jurisdictions is both objective and subjective, 1) was the threat such as to cause a sober reasonable person of reasonable fairness sharing the defendant’s characteristics and placed in the same situation to act in the same way as the defendant acted? and 2)was the defendant in fact compelled to commit the offences?

However, a direction to the assessors strictly along the lines laid down in section 16 of the Penal Code and that is whether there was an irresistible and imminent threat to life placing the accused in an inescapable dilemma, was approved by the Court of Appeal in Prakash Wati Amos & Others -v- R Crim. App. 41 of 1986.

In Amos the matter was left to the assessors although in the words of the Court of Appeal, the defendant Ralulu, “had ample opportunity to escape from his predicament earlier in the evening”, and it was clearly left to the assessors in Chaudhar Masih Hilmuk -v- R (1963) CA 9 FLR 92.

In this case the accused have all denied that in fact they had an opportunity to escape from Nimacere, and in all the circumstances the question of whether or not there was such an opportunity, given the individual characteristics of each accused, the presence of firearms, the darkness, and the presence of the surrounding villages and bushland is a matter for the assessors.

The application to withdraw “compulsion” from the Assessors is refused.

Nazhat Shameem
JUDGE

At Suva
1st February 2002