IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 69 of 2018

STATE

V

OLIVER WHIPPY

Counsel	:	Miss D Rao for the State
			Mr. E. Radio with Miss K. Boseiwaqa (L.A.C.)
			 for the Accused

Dates of Trial		:  	  8, 9 and10 April 2019
Date of Summing Up 	: 	10 April 2019
Date of Judgment 	: 	15 April 2019

JUDGMENT

1.	The accused was charged with one count of attempted murder 	and two counts of criminal intimidation. On the first day of trial 	he entered pleas of guilty to the two intimidation counts and not 	guilty to the attempted murder.

2.	He was tried before this Court with three assessors, and 	following my summing up, the assessors returned with a 	majority opinion of not guilty on the attempted murder and a 	majority opinion of guilty of the lesser charge of causing 	grievous harm, contrary to section 258 Crimes Act, an 	alternative lesser offence the Court left with them to consider. 
3.	The charges arose out of a violent attack on a young lady by her 	former de facto partner in August 2018. He was already the 	perpetrator in a Domestic Violence Order made in 2016 to 	protect her. After what appeared to be a very tempestuous 	relationship, they finally separated in 2017.

4.	Thereafter the accused constantly harassed the victim with 	abusive and threatening telephone calls and visits to her 	workplace.

5.	The victim whom I shall refer to as Mela told the Court of the 	day she will never forget. She works as a Manager in a well 	know resort near Savusavu. In the days leading up to August 	25th, the accused was constantly calling her (sometimes as often 	as 20 times a day) and making murderous threats to her and to 	her parents.

6.	On the 25th August he suddenly and unexpectedly presented 	himself at her workplace and in her small and confined office he 	produced and brandished a cane knife. He was very aggressive 	and told her that this was her last day on earth. He swung the 	blade up towards her neck/shoulder area and Mela in trying to 	fend the blow off received injuries to her palm and lower fingers. 

7.	He then proceeded to drag her out of her office into the grounds 	of the resort dragging her at least 500 metres towards an area of 	bushy undergrowth. All the time while dragging her he was 	beating her all over with the flat side of the cane knife. He was 	shouting threats continuously alleging that she was “seeing 	other boys so today must be your last day”. He told her to call 	her father and tell him that he would never hear her voice 	again. 

8.	Mela said that she was bleeding heavily and feeling weak. 

9.	The Police arrived and at this stage the accused had her on the 	ground with the cutting edge of the blade against her bare neck. 	She was taken to hospital and eventually transferred to CWM 	for surgery where she spent a month recovering. 

10.	Mela’s colleague Ally gave evidence that largely confirmed Mela’s 	description of the horrific events of that day. She heard the 	accused in the office talking about “death” and “today” two 	words in Itaukei dialect that she knew. It was she who arranged 	for the Police to be called. 

11.	When the accused was dragging Mela through the resort 	grounds Ally followed behind filming the progressive attack on 	her mobile phone. 

12.	The film was shown in Court and the most memorable part of 	that film was the noise of the blows that were being landed on 	Mela by the cane knife. They must have been struck with 	considerable force and violence. She too saw the accused place 	the sharp edge of the knife on Mela’s neck when the Police 	arrived.

13.	The third prosecution witness was a Senior Police Officer from 	Savusavu. He was first at the scene. The accused told them that 	if he got any closer to him he would kill Mela. The Inspector 	saw him put the knife against the victim’s neck and he feared 	the worst. This experienced officer somehow managed to defuse 	the situation and persuaded the accused to surrender. He 	arranged for Mela to be sent to Savusavu hospital and for the 	accused to be detained. 

14.	The final witness for the prosecution was the medical officer 	who examined Mela at Savusavu Hospital. The patient had 	multiple left hand injuries. These lacerations were fresh and 	deep and needed surgery. Savusavu has a small hospital and is 	not equipped to deal with such a serious case, so Mela was 	stabilized, the wound dressed, given antibiotics and transferred 	to Labasa Hospital. 

15.	In finding a case to answer, the accused was told of his rights in 	defence. He elected to give sworn evidence but called no 	witnesses. 

16.	He admitted his violent actions and words that day but he said 	he was acting in response to what he perceived to be acts of 	provocation from the victim. He said he was in a relationship 	with another lady and thought that Mela was trying to interfere 	in that relationship. He could not remember placing the blade of 	the knife to Mela’s neck. 

17.	He claimed that on that day, he was still in love with the victim; 	he had no intention to actually kill her, he was just trying to 	teach 	her a lesson. 

	Discussion

18.	The crime of attempted murder is extremely difficult to prove. 	There has to be evidence of very violent action, and/or very life 	threatening injury not resulting in death to make the 	presumption that the actor had murderous intent. 

19.	The circumstances and evidence in this case could not lead to 	that conclusion beyond reasonable doubt.

20.	Of course the actions were violent; of course the threats were 	alarming; of course the final deed of holding the sharp blade 	across her bare neck was terrifying; but is that all enough to 	find beyond reasonable doubt that he intended to kill her?  The 	majority of the assessors thought not, and I agree with them. 	Put simply, one just cannot be sure and that uncertainty must 	go to the benefit of the accused.

21.	There can be no doubt however that Mela suffered grievous 	harm. She had surgery and spent a month in hospital. She 	showed me her hand and it is still scarred. This injury I find 	was directly caused by the action of the accused and I agree 	with the majority of the assessors that he is guilty of the lesser 	charge of causing grievous harm (s.258 Crimes Act.) 

	This then is the Judgment of the Court

1.	The accused is found not guilty of the offence of attempted murder and acquitted of that count.

2.	Pursuant to section 160 of the Criminal Procedure Act and in following the FCA case of Hari Prasad & Bhawar Singh v the Queen (1981) 27 FLR 80 the accused is found guilty of the lesser count of causing grievous harm contrary to section 258 of the Crimes Act 2009 and convicted of that count.

		P. K. Madigan
		Judge
At Labasa
15 April 2019