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State v Tirikula [2009] FJHC 42; HAC105R.2006 (13 February 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 105 of 2006

STATE

V

PENIASI TIRIKULA

Hearing: 12th February 2009
Ruling: 13th February 2009

Counsel: Mr. A. Rayawa for State
Ms B. Malimali & Ms M. Savou for Accused

RULING ON SECTION 293 OF THE CRIMINAL PROCEDURE CODE

[1] The defence submits that there is no case for the Accused to answer on both counts on the Information. He is charged with robbery with violence and with manslaughter.

[2] As Gates J said in State v. Semisi Wainiqolo HAC 015.2004S:

"In order that section 293 of the CPC be satisfied there must be available for consideration by the assessors, evidence which is to be considered as more than "no evidence" in the sense no evidence that it was the Accused who had committed the offences."

[3] In Sisa Kalisoqo v. State Crim. App. No. 52 of 1984, and State v. Mosese Tuisawau Crim. App. No. 14 of 1990, the test was articulated as follows:

"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."

[4] On Count 1 the prosecution has led evidence of Iliesa Vakaloloma. He is an accomplice whose evidence will require not only a corroboration warning, but also a warning about the effect of immunity of the testimony of witnesses. Subject to this warning, the assessors may accept his evidence even if it is uncorroborated. That will be a matter for the assessors. However if they do accept his evidence then there is evidence that the Accused participated in a robbery with three other men, took a dvd player and video cd’s out of the premises and in the course of that robbery used personal violence on Michael Hamid Ali. The charge alleges personal violence also on Sue Gong Joo Ha the deceased’s wife. There is circumstantial evidence that she was assaulted during this robbery (by one or more of the robbers) and it is for the assessors to decide whether this was a joint enterprise participated in by the Accused and whether the assault on Sue Gong Joo Ha was a probable consequence of the joint enterprise.

[5] The charge lists the stealing of several items which have not all been led in evidence. However the element of the offence is not the stealing of specific items, but the stealing itself. For instance if the prosecution proves the theft of $6000 and the charge alleges $7000, the discrepancy is not material. A conviction can be entered without amendment of the charge, although an amendment is necessary if the accused is prejudiced or misled by the particulars. Thus on a guilty plea, a dispute about the actual property stolen does not lead to an invalid plea. Details of the stolen property might be relevant to sentence but they do not constitute elements of the offence. Thus a lack of evidence in this case about exactly what was stolen does not lead to the conclusion that there is no case for the Accused to answer on Count 1.

[6] Count 2 is however a different kettle of fish. The elements of the offence of manslaughter are - 1) The Accused 2) caused the death of the deceased 3) by an unlawful act. The evidence of Iliesa Vakaloloma, if accepted is capable of proving that the Accused assaulted Michael Hamid Ali. There is no suggestion that any such assault was lawful. Defence counsel however submits that there is no evidence that the deceased died as a result of such assault. State counsel submits that the post mortem report provides some evidence of causation, and that the issue of the weight of such evidence is one for the assessors.

[7] The post mortem report was not tendered by the pathologist who conducted the post mortem, but by Dr. Litia Tuidravu, the clinical pathologist at the Lautoka Hospital. Her expertise in the field of clinical pathology is not disputed. She tendered the post mortem of the deceased. The report states that the deceased was a 70 year old man with a fractured skull, and bleeding in the abdomen, spleen, gastro-intestinal tract and pancreas. Both lungs and heart showed signs of disease. These latter findings were apparently to be expected in an old man. The cause of death in the report is "multi-organ failure, secondary to atheroscherosis, diabetes, hypertension, infection and aging in a case with a history of assault."

[8] Dr. Tuidravu explained these findings. She said that what had caused death was blood vessel injury, diabetes, hypertension and infection. She said that there was a history of assault and that there was bleeding under the skin of the right parietal region of the head associated with the fracture of the right parietal bone. She said that the head injury was consistent with trauma but that the haematoma in other organs were secondary to multi-organ failure. She was of the opinion that the head injury on its own could have killed a 70 year old man.

[9] She was cross-examined by defence counsel. She agreed that the deceased had a heart condition and a lung disease, probably associated with smoking. She said that there was a cut on the deceased’s head on the left side, but that the bleeding and skull fracture was on the left. The record then shows the following questions and answers:

"Q: He had a cut on the left side of his head?

A: Yes.

Q: But the haemotoma was on the right?

A: Yes.

Q: Why was that?

A: The haematoma overlies the fracture.

Q: So we don’t know how did fracture occur?

A: No.

Q: He had 4 stitches on the left but the fracture on the right?

A: Yes.

Q: Cause of death was multi-organ failure?

A: Yes.

Q: Death was not as a result of the head injury?

A: In the cause of death there is no mention of the head injury.

Q: So the death of Michael Hamid Ali was not due to the head injury?

A: Not according to the report."

[10] In re-examination, the doctor said that all the organs had failed causing death and that the report had said that there was a history of assault.

[11] Section 206 of the Penal Code supplements the common law definition of causation. Generally at common law, the act of the accused must have been the substantial and operating cause of death. It need not be the only cause of death. Section 206 provides for situations where there might be other, contributory causes of death. The section states:

"A person is deemed to have caused the death of another person although his act is not the immediate or sole cause of death in any of the following cases ....

(d) if by any act or omission he hastened the death of a person suffering under any disease or injury which apart from such act or omission would have caused death,

(e) if his act or omission would not have caused death unless it had been accompanied by an act or omission of the person killed or of other persons."

[12] This section was discussed by the Fiji Court of Appeal in Shashi Kapoor Ryan v. State [2002] AAU0028/00S. In that case the accused persons had pulled the deceased out of the house into the driveway, and punched and kicked him. He required surgery and died while the surgery was being conducted. The court held that the acts of the accused do not need to be the immediate or sole cause of death and upheld the conviction. In Vereimi Ikaniwai & Others v. Reg (1986) 32 FLR 156, the accused caused serious injuries to the deceased, requiring hospitalization. The deceased was unconscious and later died of pneumonia. It was held that the injuries inflicted on him by the accused were "an operating and a substantial cause of death."

[13] Thus if Michael Hamid Ali died because of multi-organ failure which arose because he was suffering a head injury inflicted by the Accused, the issue of causation can safely be left to the assessors. There must be a link between the assault and the condition which eventually killed him. The fact that he was a vulnerable victim because of age and disease does not break the causation. However there is no such link. There is no evidence at all that the deceased’s death was as a result directly or indirectly of the head injury allegedly inflicted by the Accused. It is of little relevance that there were injuries on both sides of the head because the evidence is of a punch and a fall, both caused during the robbery. The real question is whether the deceased would have died anyway irrespective of the head injury. The post mortem report does not say this. The doctor giving evidence said there was no link between the head injury and the death according to the report. It is possible that the deceased’s death was hastened by the trauma inflicted on him during the robbery, but there is no evidence of any such hastening of death. There is evidence that there was a history of assault, but the report does not suggest that this assault in any way led to the multi-organ failure which caused death.

[14] On this evidence there is no link between the alleged assault and the death of the deceased, and no evidence touching on one of the elements of the offence.

[15] I therefore find that there is no case for the Accused to answer on Count 2. He is acquitted on that count. There is a case to answer on Count 1.

Nazhat Shameem
JUDGE

At Suva
13th February 2009