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State v Tuivuya [2003] FJHC 186; HAC0015X.2002S (4 November 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0015 OF 2002S

STATE

v.

WAISALE TUIVUYA

Counsel: Mr. W. Kuruisaqila for State
Mr. A. Singh for Accused

Hearing: 30th October 2003
Ruling: 4th November 2003

RULING

Counsel for the Accused makes a submission that there is no case for the Accused to answer on the charge of murder.

The test to be applied under section 293 of the Criminal Procedure Code is whether there is evidence in respect of each ingredient of the offence. If there is some relevant and admissible evidence, direct or circumstantial, touching on all the elements of the offence, then there is a prima facie case (Sisa Kalisoqo –v- State Crim. App. No. 52 of 1984, State –v- Mosese Tuisawau Crim. App. No. 14 of 1990).

In the course of their submissions, both counsel addressed me on Galbraith (1981) 2 ALL ER 1060. In that case, the test was said to be double-pronged; one, whether there was no evidence in respect of each element of the offence; and two, whether the evidence was of such a tenuous nature that a jury properly directed could not convict on it. This was the test referred to in the case cited to me by counsel for the defence, R –v- Colin Shippey, Steven Jedynak and Malcolm Jedynak (1988) Crim. L.R. 767. In that case, where the evidence of witnesses was so contradictory and contrary to common sense, the High Court (at Sheffield) held that a judge had a duty to uphold a submission of no case to answer, even if the Crown case, taken at its highest, might have led a reasonable court to convict.

There is no doubt at all that the Galbraith test is the proper test to be applied in the magistrates’ courts. Section 210 of the Criminal Procedure Code requires the court to consider whether “a case is made out against the accused person sufficiently to require him to make a defence.”

However section 293(1) of the Code reads quite differently. It provides that at the end of the prosecution case, the court “if it considers that there is no evidence that the accused ... committed the offence shall ... record a finding of not guilty.”

This provision appears to adopt only the first limb of the Galbraith test. In State –v- Anthony Frederick Stephens Crim. Case No. 3 of 1997, Pain J said (at page 2):

“The narrow prescription of section 293(1) of the Criminal Procedure Code excludes the common law test enunciated in such cases as Galbraith (1981) 2 ALL ER 1060 that if the evidence is of such a tenuous character that a jury properly directed could not convict on it, the Judge should stop the case.

Accordingly, the question to be addressed at this stage of the trial is whether there is some relevant and admissible evidence in respect of each element that must be proved before the accused could be convicted of the offences alleged against him in the information.”

That was the position accepted by the Court of Appeal in Sisa Kalisoqo and Mosese Tuisawau and that is the test applied in this case.

The Information reads as follows:

Statement of Offence

MURDER: Contrary to sections 199 and 200 of the Penal Code, Cap. 17.

Particulars of Offence

WAISALE TUIVUYA on the 3rd day of November 2000 at Lami in the Central Division, murdered ALIFERETI NIMACERE.

The ingredients of the offence of murder are firstly that the accused did an unlawful act, secondly that the act caused the death of the deceased, and thirdly that the accused did the act with malice aforethought. In this case there is no dispute that the victim, Alifereti Nimacere died as a result of a gun shot wound. Nor is there dispute that on the night of the 3rd of November 2000, there was only one gun shot aimed towards Nimacere and that was from the K2 gun held by the Accused. There is no direct evidence that the bullet from the Accused’s weapon was the bullet which killed Nimacere other than the evidence of IP Filimone Seniroqa that Sgt. Sekove gave him 4 bullet fragments to examine, which he said came from a K2 weapon. However there is circumstantial evidence that there was no other shooting that night, that the Accused shot at Nimacere as he was running down the slope at Nadonumai, that 5 bullet fragments were found in the deceased’s lungs, and that a single shot killed Nimacere. There is sufficient evidence to put to the assessors that it was the Accused’s bullet which caused Nimacere’s death. Finally, there is no dispute that anyone who discharges a firearm at another person must intend some harm. The Accused himself in his interview said that he shot at Nimacere to “weaken” him. On that basis the question of malice aforethought may be left to the assessors. It is for them to decide what the accused intended to do, and what he foresaw would happen after he shot at Nimacere.

The real dispute in this case is the unlawfulness of the act of shooting. The defence submits that this was a lawful arrest, conducted under the Emergency Decree 2000, that the accused shot at an armed and dangerous man in defence of the police, the army and the civilians at Nadonumai, and that because these matters are not in dispute, there was no unlawful act.

In Livai Nagera –v- The State Crim. App. No. HAA0056 of 2001S, I considered the validity of the Emergency Decree in relation to an appellant who had been convicted and sentenced for an offence under the Decree of being found out of doors during curfew hours without a permit. I held that the Decree was valid, although unconstitutional, under the doctrine of necessity on the basis that the government was held hostage, there was rioting on the streets and there were rebels moving in and out of Parliament. I applied the test for necessity, which had been adopted by the Court of Appeal in The Republic of Fiji –v- Chandrika Prasad Civil Appeal No. ABU0078.2000S, in considering the validity of the Emergency Decree. In particular I considered the following passage from the judgment of Haynes P in Mitchell –v- DPP (1986) LRC (Const) 55, 88:

“I would lay down the requisite conditions to be that:

(i) an imperative necessity must arise because of the existence of exceptional circumstances not provided for in the Constitution, for immediate action to be taken to protect or preserve some vital function to the State;

(ii) there must be no other course of action reasonable available;

(iii) any such action must be reasonably necessary in the interests of peace, order and good government; but it must not do more than is necessary or legislate beyond that;

(iv) it must not impair the just rights of citizens under the Constitution;

(v) it must not be one the sole effect and intention of which is to consolidate or strengthen the revolution as such.”

The burden of proving “necessity” is on the party claiming the validity of the unconstitutional action. Further, the action can only be declared valid while there is a crisis. It is a temporary validity. The Court of Appeal said in Chandrika Prasad at p.27:

“The doctrine of necessity enables those in de facto control, such as the military, to respond to and deal with a sudden and stark crisis in circumstances which had not been provided for in the written Constitution or where the emergency powers machinery in that Constitution was inadequate for the occasion. The extra-constitutional action authorised by the doctrine is essentially of a temporary character and it ceases to apply once the crisis has passed.”

At first instance, Gates J (2001) NZAR 21, said (at p.42):

“It is obvious therefore, that the doctrine of necessity could come to aid Commodore Bainimarama in resolving the hostage crisis, imposing curfews, maintaining roadblocks and ensuring law and order on the streets. Once the hostage crisis was resolved and all other law and order matters contained if not entirely eradicated, the Constitution, previously temporarily on ice or suspended, would re-emerge as the supreme law demanding his support and that of the military to uphold it and to buttress it against any other usurpers.”

The Emergency Decree itself was promulgated on 2nd June 2000. The Army Commander, by virtue of the Decree “assumed all executive authority and established martial law.” The evidence in this case is that on the 2nd of November 2000, the day before the shooting, there was a mutiny by rebel soldiers at the Queen Elizabeth Barracks. It is part of the defence case, put to witnesses in cross-examination, that some of these rebel soldiers were at large in the Lami area. The evidence is also that the deceased was an escapee from Naboro prison, where prison wardens had been kept hostage by prisoners, that he was armed with weapons and ammunition, that he was wanted in connection with the murder of a policeman and soldier at Sawani and that he may also have been connected with the Monasavu takeover.

In these circumstances, and the State concedes this, there was clearly a desperate situation facing the police and the army. The arrest of Nimacere, armed as he was, was clearly logistically difficult and potentially dangerous for servicemen and civilians alike. At that time, the High Court at Lautoka had not declared the validity of the 1998 Constitution. Nor was there an elected and lawful government in place which could have overseen the passing of emergency measures under the Constitution. I accept therefore that the sending of army personnel to Nadonumai on the 3rd of November 2000 was necessary for the preservation of law and order to protect the security of citizens. I also accept that the Fiji Military Forces had no other reasonable course of action available to it, and I accept that in the circumstances section 17 of the Decree does not impair the just rights of citizens to move freely through Fiji. Indeed the section appears to have been drafted to protect those rights from those who would have destroyed them. Finally it is not suggested by anyone that the Decree was passed to further the objectives of the hostage-takers or mutineers or rebels.

I therefore find as a matter of law, that the Defence has shown that on the 3rd of November 2000, the Accused was involved in a lawful enterprise to arrest a known armed escapee, and that he was lawfully carrying a weapon to further that lawful purpose. This finding is limited only to this incident on the 3rd of November 2000. It does not, and cannot extend to any other incident which may come before the courts. The test for necessity must be applied to each incident in the context of which it arises.

However, merely finding that he was involved in a lawful mission, does not render all acts done during the arrest lawful. In the execution of any arrest, a person, civilian, policeman or army officer, must only use reasonable force to effect the arrest. The use of unreasonable force renders an otherwise lawful arrest unlawful. Section 17 of the Decree provides that a member of the Armed Forces “may use reasonable force including the use of arms” to prevent imminent threat to life.

The law on self-defence is summarised in the following passage from Palmer –v- R [1970] UKPC 2; (1971) AC 814 Privy Council per Lord Morris:

“It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense, that he may do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may be no longer any link with a necessity of defence. Of all these matters the good sense of the jury will be the arbiter.”

Section 18 of the Penal Code is also relevant. It provides:

“Where any person is charged with a criminal offence arising out of the lawful arrest, or attempted arrest, by him of a person who forcibly resists such arrest or attempts to evade being arrested, the court shall, in considering whether the means used were necessary, or the degree of force used was reasonable, for the apprehension of such person, have regard to the gravity of the offence which had been or was being committed by such person and the circumstances in which such offence had been or was being committed by such person.”

It seems to me that this case is about whether, in using his weapon to shoot the armed and running Nimacere, the Accused used reasonable force. There is evidence available to the assessors to allow them to decide this question for themselves. At this stage on the evidence led by the State I cannot say that a conclusion that the use of the gun on Nimacere was justifiable and reasonable is the only possible conclusion. Indeed whether or not the accused acted reasonably and properly and/or in self-defence is a matter for the assessors to consider.

In considering whether the force used was reasonable, the assessors will ask themselves the following questions: Was the accused’s immediate intervention required to prevent an imminent threat to life? Was Special Constable Nacanieli’s life in imminent danger? Were the lives of others in the vicinity including the accused’s, in imminent danger? Was Nimacere about to shoot? Was it reasonable in all the circumstances to assume that he was about to shoot? Was the shooting of Nimacere proportionate to the threat posed by him? What would a reasonable man who is a reserve soldier and who found himself in the accused’s position have done in those circumstances? In considering all these matters, the gravity of the offences alleged to have been committed by Nimacere is, by virtue of section 18 of the Penal Code, relevant.

These are matters for the assessors to consider in all the circumstances of the case. The onus is, of course on the prosecution to prove that the accused was not acting in self-defence. Lastly the accused’s own perceptions of the imminent threat to life are relevant in assessing whether he acted reasonably (R –v- Oatridge 94 Cr. App. R. 367) the test for reasonableness being partly subjective (R –v- Shannon 71 Cr. App. R. 192).

I find therefore that there is sufficient evidence to put the Accused to his defence. There is a case to answer.

Nazhat Shameem
JUDGE

At Suva
4th November 2003