IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC0001 of 2005S

STATE

v.

RUSILA VUKI; and
SUSANA WATISIVO

Hearing: 27th July 2005
Ruling: 28th July 2005

Counsel: Mr. P. Bulamainaivalu for State
Ms B. Malimali for Accused persons

RULING

The prosecution has closed its case. The defence makes two applications. One is for a view of the locus in quo, or visit to the scene of crime. The other is that there is no case for the 2nd Accused to answer. The State opposes both applications.

The locus in quo

The law on a view of the locus in quo is governed by the common law. A view of the scene becomes necessary where the evidence led by prosecution and/or defence fails to describe the scene with sufficient clarity and the ambiguity may affect the outcome of any findings of fact. In a criminal trial, where the view is requested by the defence, care must be taken to ensure that no possible prejudice could arise from a refusal of the application.

Counsel makes this application saying that there are discrepancies in the evidence of witnesses describing the Vunisaleka Settlement, the road to Dibulu, and the proximity of Mekemeke Cagilevu to the scene. She also referred to the evidence of PW1, Monika Koivuki, and said that Monika said on the one hand that she was very weak after the assault, and on the other that she ran to the house of Apisai Taka and Komai Navuniora, to ask for help. She said a visit to the scene was necessary to determine the credibility of these witnesses, and to ascertain actual distances between, for instance Dibulu and Vunisaleka.

The State says that the evidence does not lack clarity, that any inconsistencies are irrelevant to the issues in the trial, and that in any event, defence counsel does not object to the sketch plan exhibited during the trial which describes the scene clearly.

Having perused the record in this case, I find that the length of the path from Vunisaleka to Dibulu, or to Narere, and the whereabouts for instance, of the exact place where Mekemeke caught up with the 1st Accused, to be of marginal importance. Similarly any apparent inconsistencies in Monika’s evidence can be put to the assessors in addresses. A visit to the scene will not necessarily prove lack of credibility. That must depend on the assessors’ own view of her credibility. In the absence of the defence case, the issues for the assessors to determine are likely to revolve around the actual assaults at the water pipe outside Mekemeke’s house. The description of this scene has been led with some clarity, particularly in the evidence of Rosa Tawake and Mekemeke Cagilevu. I see no inconsistency, which will affect the court’s eventual decision on matters such as mens rea, joint enterprise, and contemplation of the conduct of the 1st Accused.

In the circumstances, I see no reason to visit the scene. However, if the defence case gives rise to a relevant ambiguity, I am prepared to re-visit this application.

No case to answer

Section 293 of the Criminal Procedure Code requires me to make a finding that there is sufficient evidence to put the accused to her defence, before I allow the trial to proceed further. There is no dispute that there is a case for the 1st Accused to answer.

Counsel submits that there is no case for the 2nd Accused to answer on the basis that there is no, or insufficient evidence of a joint enterprise.

The test at this stage of the trial is whether there is relevant and admissible evidence in relation to each element of the offence. The credibility and reliability of witnesses are not relevant issues at this stage of the trial. As Pain J said in State v. Anthony Frederick Stephens Crim. Case HAC0015 of 2002S:

“The prescription of s.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.”

What is the undisputed evidence thus far? It is that the 1st and 2nd Accused, who are sisters, were involved in a dispute with Monika Koivuki, a fellow villager. The dispute involved an alleged swearing by the younger sister of the accused, and an alleged assault on the sister by Monika Koivuki. The dispute led to the punching of Monika at about 9am on the 15th of October 2004. The two accused persons went to Narere Police Post to report that they had punched Monika, and assured the Post Officer, Corporal Banuve that they would not take the law into their own hands. The 1st Accused, unknown then to the 2nd Accused, had the murder weapon, a kitchen knife in the waist band of her trousers. When they walked back to Vunisaleka from the Post, the 1st Accused showed the 2nd Accused the knife. According to the 2nd Accused’s undisputed interview with the police, the 1st Accused said to her sister:

“If they will want to fight again or if this gang are going to do anything else to us, one of them is going to get this.”

According to the 2nd Accused, the 1st Accused was referring to Monika. The two sisters then walked towards Vunisaleka. At the water pipe outside Mekemeke’s house, they met Monika and her sister-in-law, the deceased. There was an exchange of words. A fight broke out between the 2nd Accused and Monika. The 1st Accused fought with the deceased. In the process the deceased was fatally wounded and later died of shock as a result of loss of blood from a severed carotid vein.

The defence submissions are that there is no evidence that the 2nd Accused planned the attack on the deceased and Monika, with the 1st Accused. Counsel further says that the 2nd Accused did not contemplate that the 1st Accused would use the knife on the deceased, and that the assault on the deceased was a separate incident from the assault on Monika by the 2nd Accused. I was told from the bar table that the 2nd Accused was separately charged, convicted and sentenced for the assault on Monika.

Section 22 of the Penal Code provides as follows:

“When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.”

The section is similar to the common law on joint enterprise. The Privy Council in Chan Wing-Siu and Others v. The Queen [1984] 3 All ER 877 considered the principles of joint enterprise that where two or more persons embark on a joint unlawful enterprise, then each person is responsible for any unusual consequences that arise from such enterprise as long as each contemplates those consequences as being probable.

The test is a subjective one. The question is whether the accused did contemplate the consequences, and the prosecution, at the end of the trial must prove such contemplation beyond reasonable doubt. If the accused did not contemplate the use, for instance of a weapon, or if such contemplation was too remote to involve a probable consequence, then the accused is not guilty of those consequences. As the court said (per Sir Robin Cooke at page 882):

“The test of mens rea is subjective. It is what the individual accused in fact contemplated that matters. As in other cases where the state of mind has to be ascertained, this may be inferred from his conduct and any other evidence throwing light on what he foresaw at the material time, including of course any explanation that he gives in evidence or in a statement put in evidence by the prosecution. It is no less elementary that all questions of weight are for the jury.”

Of course, counsel says that there could have been no contemplated risk of the use of the knife. But Sir Robin Cooke, said of the “remoteness of risk” argument at page 883:

“In cases where an issue of remoteness does arise, it is for the jury (or other tribunal of fact) to decide whether the risk as recognised by the accused was sufficient to make him a party to the crime committed by the principal. Various formulae have been suggested including a substantial risk, a real risk, a risk that something might well happen. No one formula is exclusively preferable; indeed it may be advantageous in a summing up to use more than one.”

The law was succinctly summarised by the House of Lords in R v. Powell and Another, R v. English [1999] 1 AC. It is that a secondary party is guilty of murder if he participates in a joint venture realising that in the course thereof the principal might use force with intent to kill or cause grievous harm, and the principal does kill with such intent. However, if the principal goes beyond the scope of the joint venture the secondary party is guilty of neither murder and manslaughter.

In this case, on the 2nd Accused’s own admission to the police, she knew that the 1st Accused was carrying a knife and that she was intending to use it if she encountered further trouble. There had been trouble both on the 14th and the 15th of October. They were both returning to the settlement from the Police Post. Whether the 2nd Accused contemplated in fact the probable use of the knife on someone by the 1st Accused, whether such contemplation was real, substantial or remote, are essentially questions for the assessors. The prosecution had led evidence which is sufficient to submit to the assessors that there was contemplation of such a probable consequence. What the assessors decide to accept, taking into account all the evidence is a matter for them. Similarly, whether or not there was a joint venture, or common enterprise is a question of fact for them.

I have considered counsel’s submissions on what she submits are the discrepancies in the prosecution evidence. In particular she suggests that some of the prosecution witnesses are unreliable. That is not a relevant consideration at this stage of the trial. The fact of the matter is, that on the undisputed evidence, and even disregarding the eye witnesses, there is evidence to put each accused to her defence.

There is a case to answer.

Nazhat Shameem
JUDGE

At Suva
28th July 2005