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State v Tokalau [2017] FJHC 236; HAC290.2015S (27 March 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 290 OF 2015S

STATE

vs

KELEVI TOKALAU

Counsels : Mr. S. Vodokisolomone and Mr. S. Seruvatu for State
Mr. N. Shivam and Ms. J. Lal for Accused
Hearings : 13 to 16 March, 2017
Summing Up : 17 March, 2017
Judgment : 27 March, 2017

JUDGMENT

1. On 13 March 2017, on the first day of the trial, the following information was put to the accused in the presence of his counsel:

Statement of Offence

MANSLAUGHTER: Contrary to section 239 (a), (b) and (c) (ii) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

KELEVI TOKALAU on the 26^th day of April 2015, at Suva in the Central Division, engaged in a conduct namely punching SAULA SUCU thereby causing his death, and at the time of engaging in that conduct, KELEVI TOKALAU was reckless as to a risk that his conduct will cause serious harm to SAULA SUCU.

2. He pleaded not guilty to the charge. The matter then proceeded to trial before myself and three assessors from 13 to 16 March 2017. I delivered my summing up on 17 March 2017, and after deliberating on the matter, the assessors returned with a mixed opinion. Assessor No. 1 found the accused guilty as charged, while Assessors No. 2 and 3 found the accused not guilty as charged.
   
3. Because I was required to attend the 20^th Commonwealth Law Conference at Melbourne Australia from 20 to 24 March 2017, I wasn’t able to deliver my judgment on 20 March 2017. Written below is my judgment.
   
4. 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...”

5. 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...”

6. 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...”

7. 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 17 March 2017. The assessors’ verdict was not perverse. It was open to them to reach such conclusion on the evidence. However, I am not bound by their opinion. On my analysis of the case based on the evidence, and on my assessment of the credibility of the witnesses, I am bound to disagree with the minority guilty opinion of the first assessor, and agree with the not guilty opinions of the second and third assessors.
   
8. My reasons are as follows.
   
9. On the elements of the offence of “manslaughter”, as discussed in paragraphs 9, 10, 11 and 12 of my 17 March 2017 summing up, the first and third elements of the offence, as described in paragraphs 9(a), 9(c), 10 and 12, were both contested by the parties. The accused denied “engaging in a conduct” (first element), that “caused the deceased’s death” (second element) and that “he was reckless as to a risk that his conduct will cause serious harm to the deceased” (third element). It was the prosecution’s duty to prove the above three elements of manslaughter against the accused beyond a reasonable doubt. In other words, it was their duty to make the three assessors sure that the accused was guilty as charged.
   
10. The cause of the deceased’s death on 26 April 2015 was not disputed by the parties. When looking at the parties’ position on the second element of manslaughter, as described in paragraph 9(b) and 11 of my summing up, they appear to agree that the deceased suffered massive head and brain injuries as a result of various assaults to his head. This caused the deceased’s death on 26 April 2015. As a matter of law, it was thus absolutely essential for the prosecution, to prove the assault or assaults by whoever, to ground the first element of manslaughter, as described in paragraphs 9(a) and 10 of my summing up.
    
11. It was the prosecution’s case that the accused punched the deceased several times on the mouth and/or head, at the material time, to cause his death on 26 April 2015. According to the prosecution, by doing so, the accused was reckless as to a risk that his conduct will cause serious harm to the deceased. It was therefore essential for the prosecution to prove beyond a reasonable doubt that the accused punched the deceased, as alleged, to succeed in their case against the accused.
    
12. The prosecution relied on three witnesses to prove the above against the accused. We discussed the above in paragraphs 27 to 34 of my summing up on 17 March 2017. We will start with Isei Wasabalavu (PW2) and Mataiasi Bose’s (PW3) evidence. In their evidence, both witnesses said they saw a bouncer punching the deceased, at the material time. We discussed this at paragraphs 33 and 34 of my summing up. However, both witnesses never identified the accused in a properly held police identification parade, nor in the courtroom during the trial. This was a fatal mistake by the prosecution. By failing to connect PW2’s and PW3’s identification evidence to the accused during the trial, PW2 and PW3’s identification evidence became worthless and of no effect in connecting the accused to the alleged assaults on the deceased, at the material time.
    
13. The prosecution’s case will now stand or fall on whether or not Misaele Draunibaka’s (PW1) identification evidence is accepted. We discussed his evidence in detail in paragraphs 27, 28, 30 and 31 of my summing up. PW1 said, he saw the accused delivered two strong right hand straight punches at the deceased’s mouth, at the material time. Yet, the accused, as a witness, denied the above on oath. The defence also called a witness, William Pawa Tuiono (DW2), who was in the smoke room, the crime scene, at the material time. DW2 said, he saw another i-taukei man, with a check shirt, throw two hard right hand straight punches at the deceased’s jaw, at the material time. DW2 said, he saw no-one punching from outside the smoke room window into the inside of the smoke room. The prosecution did not destroy the accused’s and DW2’s evidence during cross-examination.
    
14. PW1, when cross examined by the defence, admitted he was drinking rum and cola for two hours between 10 pm and 12 am on 25 April 2015 at Friend’s Nightclub. PW1 said, he arrived at O’Reilly’s Nightclub at 2 am. When cross-examined, he could not tell us what he was doing between 12 am and 2 am on 26 April 2015. In the video evidence, the crime scene was crowded with people going into and coming out of O’Reilly’s Nightclub. There were a lot of bouncers in the area. The prosecution did not point to where in the video evidence was PW1 standing. PW1 said, when he saw the accused punching the deceased, his vision was not impeded in any way. However, the video evidence, produced in the courtroom, showed exactly the opposite. In my view, his view could be impeded by the crowd of people going into and out of the nightclub. At the end of the day, when you put PW1’s identification evidence as against the accused’s sworn denials and DW2’s evidence that another man punched the deceased at the material time, PW1’s identification evidence against the accused was not that solid enough.
    
15. Looking at all the evidence in their totality, and given the above, there is a reasonable doubt in the prosecution’s case. I find the prosecution had not proven its case against the accused beyond a reasonable doubt, and the benefit of that doubt, as a matter of law, must go to the accused. I agree with majority assessors’ opinions, and I find the accused not guilty as charged. I acquit him accordingly.
    

Salesi Temo

JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva.

Solicitor for Accused : N.Shivam, Barrister and Solicitor, Suva.