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State v Waqamailau [2010] FJHC 518; HAC006.2010 (16 November 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA

CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 006 of 2010

BETWEEN:

STATE
PROSECUTION

AND:

OSEA WAQAMAILAU
ACCUSED-PERSON

Counsel: Mr. Mosese Korovou
Assistant Director of Public Prosecutions
-For State

Mr. T. Terere -For Accused

Dates of Trial: 09th and 10th November, 2010

Date of Summing Up: 12th November, 2010

Date of judgement: 16th November, 2010

JUDGEMENT

The accused in this case stood charged on two counts. The 1st count was in relation to the murder of one Prasad Amit Singh, while the 2nd count was in relation to robbery with violence on Prasad Amit Singh, punishable under Sections 199 and 293(1) (b) of the Penal Code respectively. The two offences were alleged to have been committed on 26.09.2009 in the course of same transaction.

1. The case for the prosecution was founded on the cautioned-interview statement of the accused, Osea Waqamailau, dated 29.09.2009, contents of which were admitted by the accused in their entirety. 'Agreed Facts', based on the contents of the cautioned-interview statement, were filed on 08.11.2010, which recorded the admission of the 'wrongful act' on the deceased and the 'causation of the death'.
   
2. Consequently, proceedings were substantially sought to be truncated; and, the main evidence for the prosecution was limited to that of police officers, who deliberated on recording the cautioned-statement, and Dr Ponnu Swamy Goundar, the medical pathologist.
   
3. As the information was read-out on 09.11.2010 as a prelude to commence the trial, the accused changed his earlier 'plea of not-guilty' in respect of the count on 'robbery with violence' and tendered instead an unequivocal 'plea of guilty'. Court accepted the plea of guilt and proceedings in respect of count (2) accordingly came to an end save the sentencing.
   
4. In the result, the case proceeded to trial on the issue whether the accused did have the malice aforethought in the act of causing the death of the deceased. In order to enable the assessors and the court to determine the issue, the prosecution placed the evidence of:
   
   • (i) Vijen Prasad, who saw the body of the deceased inside Austech Laboratory at Drasa Avenue, Lautoka, where the deceased was working on 26.09.2010-the date of incident;
     
   • (ii) Josateki Seuseu, Police Officer, who visited the scene in the afternoon of 26.09.2009 and recovered a kitchen knife blade (PE-3) with which the deceased was stabbed by the accused, a rubbish-bin (PE-4) into which PE-3 was thrown by the accused before treatment was received at Lautoka Hospital for an injury sustained by him and a blood soaked face-towel (PE-5) disposed by the accused;
     
   • (iii) Terotuma Voi, Officer-in-Charge of the Forensic Unit, who too had visited the scene of crime at the laboratory, had recovered a foot-stool (PE-6) with which the accused dealt blows on the head of the deceased twice, a black handle of a kitchen knife (PE-7) and the wallet of the deceased (PE-8);
     
   • (iv) Police Constable Jone Sauqaqa, who recorded the statement of the accused under caution as the accused was making the same (PE-9) at his freewill without any inducement;
     
   • (v) Detective Corporal Finau, who charged the accused and the charge-statement was marked as PE-10; and,
     
   • (vi) (a) Dr Ponnu Swamy Goundar, who conducted the post-mortem examination and testified on multiple injuries found on various parts of the body, as admitted by the accused. The injuries were as follows:
     
     1. A sharp cut below the left nipple 42mm along the mid clavicula line 21mm x 6mm;
        
     2. 8mm above the left clavicle, a cut measuring 15mm x10mm;
        
     3. A cut above the cut describe under 2 above and lateral to it measuring 18mm x 10mm;
        
     4. 20mm above the left acrimonial process [sic] is a cut 20mm x 7mm;
        
     5. 5mm above the left ear is a cut measuring 40mm x 11mm in the front – temporal area;
        
     6. A bruise over the left ear is a cut measuring 57mm x 15mm;
        
     7. A cut below the left brow 7mm below brow measuring 37mm x 7mm. The edges are rough there is a hematoma over the left upper and lower eye lids. There is a bruise over the bridge of the nose measuring 15mm x 8mm; and,
        

viii. The deceased lung was punctured and collapsed and there was 1.5 litres of blood in the left pleural cavity.

(b) The forensic pathologist expressed the opinion that injuries (ii)-(iv) were resulted from four different strokes with variable physical force, while the injury (i) was resulted from a substantial force. Injuries (v) (vi) and (vii), which were found on temporal area on left side of the head, could have been caused by a blunt instrument of weapon such as a foot-stool (PE-6) with a substantial force.

(c) Internally, Dr Goundar had observed that the left lung was punctured and collapsed, and pleural cavity had a collection of approximately 1.5 litres of blood. As regards the head injuries, the doctor had seen subdural haemorrhage over the parietal and occipital areas of the brain.

d) The doctor opined that the immediate cause of death was the excessive loss of blood from injuries [and the collection of blood] into left pleural cavity. The doctor was specific on the fact that there was little chance of saving the life of the deceased.

(e) The post-mortem report was produced as PE-11, contents of which were accepted by the accused.

5. It was admitted that the above injuries were caused on the deceased by the accused with the kitchen knife (PE-3) after intruding into the laboratory, where the deceased was lonely working in the afternoon of 26th Saturday of September, 2009. The intent was to rob. As the deceased reacted against this physical violence on him with a handpicked knife, the accused got injured in the knee and got his fingers of the right hand cut resulting in bleeding injuries for which, the accused took medical treatment at the Lautoka Hospital. The deceased was, however, overpowered and the accused had incessantly attacked the deceased at least with four strokes with the kitchen knife. Each one of such stroke had caused a separate injury. As the deceased stood up to escape the attack, he was punched twice on the face followed by another couple of punches as the deceased was running to the door to flee from the attacks. The deceased, upon receipt of repeated attacks, fell on the floor. The accused, thereupon, furthered the attack with two blows with the footstool (PE-6) right on the head.
   
6. The medical evidence supported the above account as to the manner of the receipt of injuries. It was in this context that the determination as to the presence or the absence of malice aforethought had to be made.
   
7. The assessors were guided in my summing-up in regard to the malice aforethought inter-alia in following terms:
   

'Malice aforethought, therefore, is a legal term which describes a particular intention or state of mind. It is an intention in this case to cause the death or grievous harm to the deceased. Grievous harm means any bodily hurt, which seriously or permanently injures health, or which is likely to seriously or permanently injure health.

In law 'malice aforethought' is deemed to have been established by evidence proving any one or more of the following circumstances:

(a) An intention to cause the death of or to do grievous harm to any person;

(b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not.

Possibility of causing harm or grievous harm in light of the act/s or conduct of the accused-person is dependent on the circumstances of the case. And, sufficiency of such circumstances to cause death is entirely a matter for you to decide after considering the evidence before you.

You must also bear in mind that a person's intention is locked up in mind. It is not often spoken out. The intent, therefore, cannot be physically observed. However, this intent can be proved by what one tells others, or it can be inferred from one's conduct prior to, during or subsequent to the act or the conduct in question. And, also on the circumstances that prevailed before and/or after the act. You must also know on application of your commonsense that such an intention can spring-up on the spur of the moment with or without any act/s manifesting the intention.'

(Paragraphs 26-29 of the summing-up.)

8. As regards the cautioned-interview statement, the assessors were directed as follows:
   

'Cautioned –interview statement is before you.

You must read it very carefully. The statement is made to police under the caution that it will be used as evidence against the maker of such statement. The statement was admitted as evidence without any objection from the accused. The statement, therefore, is evidence in the case if you feel sure that the statement was freely made by the accused without any influence.

In the cautioned-interview statement, the act of attacking the deceased was admitted as stated in the agreed facts.

It was also admitted by both parties that the deceased got armed himself with a knife as the accused set upon the deceased and had, in fact, injured the accused in the knee. The accused, thereupon, got into a scuffle with the deceased, grabbed the knife by holding it from the blade and threw it away according to the cautioned interview statements. The accused specifically relied on the following questions and answers in the cautioned interview statement.

' ...Q51 Then what happened there?

A Inside the office as he was alone I went towards him and grab hold his neck from the back using my left hand.

Q52 What happened next?

A ....[he] stabbed me on my right knee.

Q87 What type of blade was it?

A It is a silver blade about 3 inches.

Q97 Did that technician assault you?

A Whilst I grab his neck from behind he took his knife from the table and stab me above my right knee.

Q100 What happened when he injured your knee?

A As soon as he tried to hit me for the second time I got hold of the blade of the knife and pull it away from him.

Q.101 Then what happened after that?

A I threw the knife somewhere on the floor and when the knife was in my hand I also receive a big cut.

Q102 How did that blade of the knife got bent? [Showed him the bent kitchen knife]

A It got bent when I was trying to pull it from the person I stabbed.

Q.135 Osea do you wish to say anything further in regards to this matter?

A My intention was only to rob and not to kill Amit.'

(Paragraphs 42-43 of the summing-up)

10. Reliance on the above contents of the cautioned-interview by the accused necessitated court to address issues of 'provocation' and 'self-defence' albeit such defences were not specifically raised by the accused. The assessors were advised in following terms:

'The above contents of the cautioned-interview and the admissions also bring into focus two important issues for you to consider.

Firstly, it is for you to consider whether the accused got provoked as a result of the deceased arming himself with a knife and thereafter stabbing in the knee followed by a scuffle in the course of which the accused got injured in his right hand as he grabbed the knife from the deceased.

In considering whether the deceased had offered provocation, you need to consider that, the act or the conduct of the deceased was wrongful, which deprived the accused of the power of self control and induced him [the accused] to commit the acts by the accused for which he has now been charged.

When a person unlawfully kills another in th heat of passion caused by sudden provocation and before there is time for passion to cool, then he is guilty not of murder but of manslaughter. That is so even if he committed the murder with intent as the presence of provocation reduces the culpability of the accused to manslaughter.

As a matter of law, you must bear in mind that:

(i) A lawful act is not provocation to any person for an assault; and,

(ii) If the act, which the deceased did, was in consequence of incitement given by the accused then the accused is not entitled to excuse his act of attack on the deceased on the ground of provocation.

Secondly, it is also open for you to consider whether the accused had acted in self-defence as a result of the deceased arming himself with a knife and thereafter stabbing in the knee followed by a scuffle in the course of which the accused got injured in his right hand as he grabbed the knife from the deceased.

You may recall that, as admitted by the accused, the deceased was at his work in the laboratory when the deceased entered and attacked the deceased. Under law, any person has the right to defend himself or his property against such an act of attack or on attempt on property. The right has to be exercised only to the extent that it was reasonable and proportionate in the circumstances that the deceased was in at that point of time. If you consider that the deceased attacking the accused as he invaded him[the deceased] with a kitchen knife was reasonable and proportionate and not excessive or aggressive in the circumstances that the deceased was in at that time, then his [deceased's] act of injuring the accused is not unlawful. You must consider the circumstances and decide whether the conduct of the deceased was reasonable, proportionate and not excessive or aggressive in coming to the conclusion that such conduct of the deceased was not unlawful.

If it is so, the accused is not entitled to the defence of provocation to reduce his culpability to that of manslaughter as I said earlier that a lawful act cannot in law give provocation to anyone to justify his attack.

In the same vein, you must consider whether the acts of the accused were carried out in his self-defence of person in the course of the sudden turn of events as the deceased stabbed with randomly picked-up knife. In deciding that issue too, you must bear in mind that even the killing of the deceased was not unlawful in self-defence, if you consider that the accused on the spur of the moment perceived that the threat at the hands of the deceased was such that the accused had to reasonably use force. You have to consider whether the accused believed, based on the circumstances as he perceived, that his acts of attack on the deceased were reasonable and proportionate and not excessive and aggressive.'

-(Paragraphs 45-53 of the summing-up)

11. Moreover, the assessors were further directed on the issue of malice aforethought in light of the conduct of the accused as follows:

'In deciding the issue whether the conduct of the accused was reasonable and proportionate or excessive or revengeful you must consider:

(i) the medical evidence where three major injuries were shown by the doctor as a result of repeated attacks with a knife in injuring vital parts of the body;

(ii) the number of attacks inflicted on the deceased;

(iii) The attack with a foot-stool twice on the head when he lay fallen causing serious head injuries;

(iv) Opinion of the doctor that any medical intervention could hardly have saved the life of the deceased.

(v) The conduct of the accused in trying to treat his injuries while leaving the deceased all alone when he was profusely bleeding;

(vi) The fact that the accused did not bother to see what had happened to him after he unleashed the series of attacks.

You must consider all those factors and circumstances in deciding whether the accused had the malice aforethought in causing the death of the deceased and whether he was entitled to the right of self defence in the circumstances. If you conclude that in the circumstances he did have the malice aforethought and he is not entitled to the right of self defence, you can find him guilty of murder.'

(Paragraphs 55-56 of the summing-up)

12. The assessors, after about 30 minutes deliberations, returned unanimous opinions expressing that they would find the accused guilty of manslaughter.
    
13. I did not conform to the opinions of the assessors. Instead, I directed myself with my summing-up to the assessors on law and with the evidence in the case. I accordingly convicted the accused of the offence of murder as charged especially after consideration of the specific directions on law as to malice aforethought as set-out above, having exercised powers vested in me in terms of Section 237(2) of the Criminal Procedure Decree No 43 of 2009 (the Decree).
    
14. In the exercise of the power of court, I relied on the rulings in the cases of Joseph v King [1948] AC 215, which was followed in the case of Ram Dulare and Others v R [1955] 5 FLR 1 CA. It was held in Joseph's case that:
    

'..... [the assessors] duty is to offer opinions which might help the trial Judge. The responsibility for arriving at a decision and of giving judgment in a trial by the [High] Court sitting with assessors is that of the trial Judge and the trial Judge alone and ... he is not bound to follow the opinion of the assessors.'

15. Justice Goundar, in State v Raymond Johnnson HAC 120/08 [26.08.2010], overruled unanimous opinions of assessors that an accused was not guilty and substituted them with a verdict of guilty, where the accused was charged for robbery with violence. The cornerstone of the issues in that case was the identification of the accused and the credibility on the defence of alibi.
    

16. I had the occasion to consider the effect of the provisions contained in Section 237 of the Decree in the case of FICAC v Sunil Kumar; HAC 181/08; 13.08.2010 where it was observed:

'... Learned prosecuting counsel in this case, too, was strenuously seeking to make the point that if there is 'some evidence', the court must proceed and the case must be left to the assessors to decide. This submission, on one hand, has the inefficacy of downplaying the role of the Judge in a High Court Criminal Trial in view of the provisions in Section 237 of the Decree, which states:

'237(1) When the case for the prosecution and the defence is closed, the judge shall sum up and shall then require each of the assessors to state their opinion orally, and shall record each opinion.

(2) The judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors.

The counterpart section of the above under the Criminal Procedure Code has already been considered by Fatiaki J. in Kapoor's case and has underlined the inconclusiveness of the opinions of the assessors in a criminal trial under the laws of Fiji as opposed to trials by jury in other jurisdictions. His Lordship's observation serves to reinforce the Judge's role in a criminal trial at every stage until its conclusion.'...

17. Upon an analysis of undisputed facts as to the number, nature and location of injuries as well as their manner of causation, I am of the view that the assessors could and should safely have come to a finding that the malice aforethought in committing the death or causing grievous bodily injury so as to cause death was well-established beyond a reasonable doubt. Such a finding could lead them to the inevitable conclusion that the accused was guilty of murder as charged in light of specific directions on law as set-out above.
    
18. Physical invasion by the accused of the deceased with a lethal weapon in order to rob, denied him (the accused) any room to rely on provocation under law as clearly directed by me in my summing-up as set-out above. The assessors, if they had clearly acted on the direction on law on this point, could not and should not have reduced the culpability of the accused to that of manslaughter.
    
19. Moreover, the conduct and the acts of the accused, as borne-out by his own admissions and medical evidence, serve to show that they were unreasonable, excessive, disproportionate and, in fact, look aggressive and revengeful. These factual positions, which are manifest on the face of the evidence, safely invested the assessors with the opportunity to exclude room for self-defence if they had duly considered the directions on law on the point. In the result, the assessors should have come to the finding of guilty for murder as the conduct of the accused did not permit to reduce the culpability to that of manslaughter.
    
20. For these reasons, I did not conform to the opinions of the assessors. I am satisfied beyond reasonable doubt that the prosecution has established malice aforethought on the available evidence presented to court. I am further satisfied that defences of provocation and self-defence, even if they were applied in the circumstances of this case, do not favour the accused to mitigate the offence of murder to that of manslaughter. I accordingly convicted the accused for murder as charged.
    

PRIYANTHA NAWANA
JUDGE

At Lautoka
16.11.2010