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State v Vasuturaga - Judgment [2016] FJHC 686; HAC241.2014S (1 August 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 241 OF 2014S

STATE

vs

SITIVENI QIO VASUTURAGA

Counsels : Mr. T. Qalinauci and Ms. L. Bogitini for State
Ms. S. Vaniqi for Accused
Hearings : 25, 26 and 27 July, 2016
Summing Up : 29 July, 2016
Judgment : 1 August, 2016

JUDGMENT

1. On 25 July 2016, in the presence of his counsel, the accused pleaded not guilty to the following information:

Count 1

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Decree, 2009.

Particulars of Offence

SITIVENI QIO VASUTURAGA on the 10^th of August, 2014 at Kadavu in the Southern Division, murdered ELENOA WAQAICECE.

Count 2

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Decree, 2009.

Particulars of Offence

SITIVENI QIO VASUTURAGA on the 10^th of August, 2014 at Kadavu in the Southern Division, murdered SALASEINI KUNAYASI.

Count 3

Statement of Offence

ATTEMPTED MURDER: Contrary to section 44 (1) and section 237 of the Crimes Decree, 2009.

Particulars of Offence

SITIVENI QIO VASUTURAGA on the 10^th of August, 2014 at Kadavu in the Southern Division, attempted to murder JIMMY VICTOR MORRELL.

2. The trial then went on before myself and three assessors for 3 days. The assessors returned with their opinions on 29 July 2016. On the first count, all three assessors found the accused not guilty of murder, but guilty of the manslaughter of Ms. Elenoa Waqaicece, the accused’s wife. On the second count, Assessor No. 1 found the accused guilty of the murder of his mother-in-law, Ms. Salaseini Kunayasi, while Assessors No. 2 and 3, found the accused not guilty of her murder, but guilty of her manslaughter. On the third, all the assessors found the accused not guilty as charged.
   
3. The law at this stage of the trial is section 237 (1), (2), (4) and (5) of the Criminal Procedure Decree 2009, which reads as follows:
   

“...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...

(4) When the judge does not agree with the majority opinion of the assessors, the judge shall give reasons for differing with the majority opinion, which shall be –

(a) written down; and

(b) pronounced in open court.

(5) In every such case the judge’s summing up and the decision of the court together with (where appropriate) the judge’s reasons for differing with the majority opinion of the assessors, shall collectively be deemed to be the judgment of the court for... all purposes...”

4. In Ram Dulare, Chandar Bhan and Permal Naidu vs Reginam [1956 – 57], Fiji Law Report, Volume 5, pages 1 to 6, page 3, the Fiji Court of Appeal, said the following, on an equivalent section of the then Criminal Procedure Code:
   

“...In our opinion learned counsel for the appellants is confusing the functions of the assessors with those of a Jury in a trial. In the case of the King v. Joseph 1948, Appeal Case 215 the Privy Council pointed out that the assessors have no power to try or to convict and their 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 the assessors is that of the trial Judge and the trial judge alone and in the terms of the Criminal Procedure Code, section 308, he is not bound to follow the opinion of the assessors...”

5. In Sakiusa Rokonabete v The State, Criminal Appeal No. AAU 0048 of 2005, the Fiji Court of Appeal said as follows:
   

“...In Fiji, the assessors are not the sole judge of facts. The judge is the sole judge of fact in respect of guilt, and the assessors are there only, to offer their opinions, based on their views of the facts...”

6. I have reviewed the evidence called in the trial, and I have directed myself in accordance with the summing up I gave the assessors on 29 July 2016. The assessors’ verdict was not perverse. It was open to them to reach such conclusion of the evidence. However, I am not bound by their opinions. On my analysis of the case based on the evidence, and on my assessment of the credibility of the witnesses, my judgment on each count are as follows.
   
7. On count no. 1, the three assessors were unanimous that the accused was not guilty of the murder of his wife, but guilty of her manslaughter. These unanimous opinions would mean that the three assessors had rejected the defence’s contention that, when he stabbed his wife at the material time, he was acting in self-defence. The defence agreed with the prosecution that, when he stabbed his wife twice on the bottom front neck and upper left chest, at the material time, he caused her serious internal injuries, that lead to her death. So, the parties agreed that element no. 1 and 2 of murder, as explained in paragraphs 9(i) and 9(ii) of the summing up, were proven beyond reasonable doubt by the prosecution.
   
8. Element No. 1 and 2 of murder, are the same as element no. 1 and 2 of manslaughter, as explained in paragraphs 16(i) and 16(ii) of the summing up. The defence did not rely on the defence of provocation in the murder of his wife, so as to reduce the same to manslaughter. It would therefore appear that the defence contended and the three assessors accepted that, when the accused stabbed his wife, as previously described at the material time, he did not intend to cause her death, but only seriously harm her. This is where I disagree with the three assessors.
   
9. In my view, after listening to and carefully assessing the demeanour of the witnesses, I find as a matter of fact that, when the accused stabbed his wife, as previously described, he intended to cause her death. In my view, when a person stabbed a person, in the manner that the accused had done in this case, that person intended to cause the other person to die. The description of the injuries by the pathologist that happened to Ms Elenoa Waqaicece do confirm the above. It was easy for the accused, after the event, to make a self-serving statement that, when he stabbed his wife, he only intended to seriously harm her. His actions and the fact that he was driven by extreme anger, showed that he intended to kill his wife at the time he stabbed her.
   
10. As a result of the above, I disagree with the assessors’s manslaughter verdict on count no. 1. I find, on the evidence, that the accused, on 10 August 2014, stabbed his wife to death, and at the time, he intended to cause her death, and I find him guilty of the murder of his wife.
    
11. On count no. 2, I agree with the assessor’s majority opinion that the accused was not guilty of the murder of Ms. Salaseini Kunayasi, his mother-in-law, but guilty of her manslaughter on 10 August 2014. On the evidence, the prosecution and the defence agreed that, when the accused stabbed his mother-in-law 11 times on the back of the head and back top shoulder and other parts of the body, that caused her serious injuries, which subsequently caused her death. So, the parties agreed that the first and second element of murder, as described in paragraphs 9(i) and 9(ii) of the summing up, and which is also similar to the first and second element of manslaughter, as described in paragraphs 16(i) and 16(ii) of the summing up, are satisfied in this case, and had been proven by the prosecution beyond a reasonable doubt.
    
12. However, on the evidence, I would reject the accused’s self-serving statement to the police when caution interviewed, and when he gave evidence in court, that at the time of his stabbing Salaseini, he only intended to seriously harm her and that he did not intend to kill her. In my view, when a person stabbed a person 11 times, as the accused did in this case, that person intended to cause the death of the victim. In my view, that was the case in Salaseini’s case.
    
13. However, the defence pleaded provocation. For provocation to succeed, the accused, on the evidence, must have already committed the offence of murder. In my view on the evidence, the accused had already committed murder against Salaseini. But he pleaded provocation. The relationship between the accused and his mother-in-law was full of tension, when she joined the accused and his wife in Kadavu. The mother-in-law was always putting the accused down, and bent on breaking up their marriage. She did not like the accused and was always encouraging her daughter, the accused’s wife, to leave him. The assessors appeared to have accepted the defence of provocation, which reduce the offence of murder to manslaughter. I accept the assessor’s view on the success of the provocation defence, and I agree with the majority verdict that the accused is not guilty of the murder of Salaseini Kunayasi, but guilty of her manslaughter.
    
14. On count no. 3, I agree with the three assessors verdict that the accused is not guilty of count no. 3. There was a lot of doubt on the prosecution’s case regarding it satisfying the elements of attempted murder. The benefit of the doubt must go to the accused. I therefore accept the three assessors’ verdict and find the accused not guilty as charged on count no. 3.
    
15. In summary, on count no. 1, I find the accused guilty as charged and I convict him of murdering his wife on 10 August 2014. On count no. 2, I find him not guilty of murdering Salaseini Kunayasi and acquit him accordingly, but find him guilty of her manslaughter on 10 August 2014, and convict him accordingly. On count no. 3, I find him not guilty as charged and acquit him accordingly.
    

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : S. Vaniqi, Barrister and Solicitor, Suva.