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State v Rasuaki [2019] FJHC 613; HAC19.2018 (20 June 2019)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 19 of 2018

BETWEEN: STATE PROSECUTION

AND: TEVITA RASUAKI
ACCUSED PERSON

Counsel: Mr. I. Rakaria for State
Ms. M. Tuiloma for Accused

Date of Hearing: 18 June 2019
Closing Submission: 19 June 2019
Summing Up: 20 June 2019
Date of Judgment: 20 June 2019

JUDGMENT

1. The accused is being charged with one count of Attempted Murder, contrary to Sections 44 and 237 of the Crimes Act. The particulars of the offence are that;

Statement of Offence

ATTEMPTED MURDER: Contrary to Sections 44 and 237 of the Crimes Act 2009.

Particulars of Offence

TEVITA RASUAKI, on 02 December 2017, at Koroivonu Village, Tunuloa, Cakaudrove in the Northern Division, with intent, attempted to murder SILIO NAULU.

2. The hearing commenced on the 18th of June 2019, and concluded on the same day. The prosecution presented the evidence of three witnesses, including the complainant and tendered the Medical Examination Report of the complainant as the exhibit of the prosecution. The accused opted to exercise his right to remain silence. Hence, no evidence was adduced for the defence. The learned counsel for the prosecution and the defence then made their respective closing addresses. Subsequently, I delivered my summing up.
3. The two assessors in their opinion found the accused not guilty of attempted murder but found him guilty of the alternative count of Act With Intent to Cause Grievous Harm. One assessor found the accused guilty of Attempted Murder.
4. Having carefully considered the evidence presented during the hearing, the respective closing addresses of the prosecution and the defence, the summing up and the opinion of the assessors, I now proceed to pronounce my judgment as follows.
5. The complainant and his wife, Betty Maria in their respective evidence explained that it was the accused who came to their home on the night of 2nd of December 2018. The accused is a cousin brother of the complainant, however, the complainant said that the accused is his own brother.
6. According to the evidence of the complainant, the accused came and confronted him about some marijuana. He had alleged that the complainant had taken them. Then the accused had stabbed the complainant on the right side of his chest with a knife. The complainant in his evidence said that the accused did not tell him that he was having a knife when they had their conversation regarding the marijuana. However, Ms. Maria, who was standing at the bathing area, which is 10 to 15 meters away from the place where the complainant and the accused were confronting, had heard the accused was telling to the complainant that he came to confront the complainant and he was crying his weapon with him. Ms. Maria in her evidence did not say that the accused was having a camouflage backpack with him.
7. Moreover, the complainant said the knife was in the bag of the accused. It was a camouflage backpack. There is no evidence from the prosecution whether the accused was carrying the bag on his back or any other manner. If he carried the bag on his back, had the complainant seen the accused was taking the knife from the bag? What was the reaction of the complainant if he saw it? Was it possible for the accused to take the knife without the complainant noticing of it? The complainant in his evidence did not explain whether he saw the accused was taking the knife from the bag or not. He only said that he felt that something sharp went into his chest. He did not specify whether he saw the knife before he felt such a sharp thing went into his chest or after it.
8. I now take my attention to the Medical Examination Report. According to the report, there was a wound on the right side of the chest which was 5 cm long. Apart from the length of the wound there are no other details of the dimension or the nature of the wound in the Medical Report. There is no specific evidence to establish whether it was a stab wound with a certain amount of depth, or a deep cut, or a superficial cut on the skin. Apparently, the Doctor who gave evidence failed to provide any professional opinion about the wound or about the findings he made during the medical examination of the complainant.
9. In the absence of such a professional medical opinion about the wound, it is important to provide the evidence of the nature of the knife which was allegedly used by the accused. However, the prosecution never provided such evidence apart from the brief description given by the complainant about the knife. However, the complainant might not have a sufficient opportunity to properly observe the nature and size of the knife, as it was happened suddenly. The knife was remained in the hands of the accused during this alleged incident. At least, the prosecution failed to provide any evidence about the investigation conducted by the police in order to locate the alleged knife.
10. In view of the above reasons, there is a reasonable doubt whether the wound that was found on the right side of the chest of the complainant was actually caused by the stabbing with a knife. In this regard, I must take into consideration the evidence of Ms. Maria. She said that she heard the complainant was replying to the accused, stating that he would never do such things during the conversation they had at the Kitchen Shed. At the same time she heard a sound of bang in the kitchen and the accused ran away. However, the complainant in his evidence never said anything about such a sound came from the kitchen when this alleged confrontation took place at the kitchen shed. Accordingly, there is a reasonable doubt whether the wound on the chest was caused by the stabbing with a knife, or by something which was related to the sound of bang came from the kitchen.
11. The complainant said that he ran to his uncle’s place in order to go to the hospital after the accused allegedly stabbed him on his chest. When he ran to his uncle’s place the wife of the complainant was standing at the bathing area. However, Ms. Maria in her evidence said that she went to the accused when he broke down while he was trying to go to Uncle Sakaria’s place.
12. In view of the above discussed reasons, there is a reasonable doubt that whether the accused actually had an intention to kill the complainant. Moreover, there is a reasonable doubt whether the accused actually stabbed the complainant with a knife and wounded the right side of the chest of the complainant.
13. Accordingly, I find the prosecution has failed to prove beyond reasonable doubt that the accused guilty of attempted murder as well as of the alternative count of Act With Intent to Cause Grievous Harm.
14. Therefore, I do not find any cogent reasons to disagree with the majority opinion of the assessor that the accused not guilty of attempted murder. However, I find cogent reasons to disagree with the majority opinion of the assessor that the accused guilty of Act With Intent to Cause Grievous Harm.
15. In conclusion, I find the accused not guilty of the offence of Attempted Murder, contrary to Sections 44 and 237 of the Crimes Act and acquit him from the same accordingly.
16. Thirty (30) days to appeal to the Fiji Court of Appeal.
    

R.D.R.T. Rajasinghe

Judge

At Labasa
20 June 2019

Solicitors
Office of the Director of Public Prosecutions for the State
Office of the Legal Aid Commission for the Accused