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State v Tamanivulagi [2023] FJHC 495; HAC276.2020 (27 July 2023)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


CRIMINAL CASE NO. HAC 276 OF 2020


BETWEEN:


STATE


A N D:


JOLAME TAMANIVULAGI
SITIVENI CAVUILAGI


Counsel: Ms. B. Kantharia for State
Mr. J. Cakau for both Accused


Date of Hearing: 26th -27th June 2023


Date of Judgment: 27th July 2023


J U D G M E N T


  1. The Director of Public Prosecution, by the Information filed on the 12th of October 2020, charged the two Accused with one count of Criminal Trespass contrary to Section 387 (1) (a) of the Crimes Act. The first Accused is further charged with one count of Act with Intent to Cause Grievous Harm, contrary to Section 255 (a) of the Crimes Act. The particulars of the offences are;

Count 1

Statement of offence


Criminal Trespass: Contrary to section 387 [1] [a] of the Crimes Act, 2009


Particulars of Offence

JOLAME TAMANIVULAGI and SITIVENI CAVUILAGI on the 15th day of September 2020 at Nasinu in the Central Division, entered into the property of Samisoni Cevarua with intent to commit an offense.

Count 2


ACT WITH INTENT TO CAUSE GRIVEOUS HARM: contrary to section 255 [a] of the Crimes Act 2009.

Particulars of Offence


JOLAME TAMANIVULAGI on the 15th day of September, 2020 at Nasinu in the Central Division, with intent to do some grievous harm to SAMISONI CEVARUA, unlawfully wounded the said SAMISONI CEVARUA by hitting him with a wheel chair.

  1. Both the Accused pleaded not guilty to these offences. Hence the matter proceeded to the hearing. The hearing commenced on the 26th of June, 2023, and concluded on the 27th of June, 2023. The Prosecution called four witnesses while the first Accused gave evidence for the Defence. Subsequently, the Court heard the closing submissions of the learned Counsel for the parties. Having considered the evidence presented during the hearing and the closing submissions of the parties, I now proceed to pronounce the judgment as follows.

Burden and Standard of Proof

  1. The Accused are presumed to be innocent until proven guilty. The burden of proof of the charge against the Accused is on the Prosecution. It is because the Accused are presumed to be innocent until proven guilty. The standard of proof in a criminal trial is "proof beyond reasonable doubt". The Court must be satisfied that the Accused guilty of the offence without any reasonable doubt.

Elements of the Offences

  1. The main elements of the offence of Criminal Trespass are that;
    1. The two Accused,
    2. Entered the property of the Complainant,
    3. With intent to commit an offence,
  2. The main elements of the offence of Act with Intent to Cause Grievous Harm are that;
    1. The Accused,
    2. With intent to maim, disfigure, disable or to do some grievous harm to the victim,
    3. Unlawfully wounds or does any grievous harm to the victim by any means.
  3. Section 4 (1) of the Crimes Act has defined “grievous harm” as:

"grievous harm" means any harm which—

  1. amounts to a maim or dangerous harm; or
  2. seriously or permanently injures health or which is likely so to injure health; or
  1. extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense”
  1. Grievous harm means serious or dangerous, or permanent harm to someone.
  2. The two Accused tendered the following admitted facts under Section 135 of the Criminal Procedure Act;

Jolame Tamanivulagi – 1st Accused

  1. Mr. Jolame Tamanivulagi (hereinafter referred to as “Mr. Tamanivulagi”) was born on 10 December, 1978 and was 41 years old, residing at Naidiri Settlement, Nasinu, Fiji at the alleged time of the offending.
  2. Mr. Samisoni Cevarua (hereinafter referred to as “the Complainant”) was 47 years old and residing at Naidiri Settlement, Nasinu, Fiji at the alleged time of the offending.
  3. That the Complainant and Mr. Tamanivulagi were neighbors at the alleged time of the offending.
  4. On 15 September 2020, at around 10.00pm, the Complainant was present at his place of residence in Naidiri Settlement, Nasinu, Fiji.
  5. The Complainant of the above mentioned date and time was hosting a party with this family and friends playing music and celebrating.
  6. On the above date and time, Mr. Tamanivulagi entered into the Complainant’s compound at Naidiri Settlement, Nasinu, Fiji.
  7. On the above date and time, Mr. Tamanivulagi confronted the Complainant regarding the music and celebration.
  8. The identity of Mr. Tamanivulagi is not disputed with respect to the elements of the alleged offending.
  9. Mr. Tamanivulagi was arrested on 17 September, 2020 by PC Arthur at the Valelevu Police Station, Nasinu, Fiji.
  10. Mr. Tamanivulagi was interviewed under caution on 17 September, 2020 by PC Luke Navela at the Valelevu Police Station, Nasinu, Fiji.
  11. Mr. Tamanivulagi was charged on 17 September, 2020 by DC Ledua at the Valelevu Police Station, Nasinu, Fiji.
  12. It is admitted that the contents of the following document is not in dispute and will be tendered by consent:
    1. Fiji Police Medical Examination Form of Mr. Saimoni Cevarua conducted by Dr. Alisi B. Waqa at the Valelevu Health Centre on 16/09/2020.

Sitiveni Cavuilagi- 2nd Accused


  1. Mr. Sitiveni Cavuilagi (hereinafter referred to as “Mr. Cavuilagi”) was born on 30 October 1982 and was 38 years old, residing at Naidiri Settlement, Nasinu, Fiji at the alleged time of offending.
  2. Mr. Samisoni Cevarua (hereinafter referred to as “the Complainant”) was 47 years old and residing at Naidiri Settlement, Nasinu, Fiji at the alleged time of the offending.
  3. That the Complainant and Mr. Cavuilagi were neighbors at the alleged time of the offending.
  4. On 15 September 2020, at around 10.00pm, the Complainant was present at his place of residence in Naidiri Settlement, Nasinu, Fiji.
  5. The Complainant of the above mentioned date and time was hosting a party with this family and friends playing music and celebration.
  6. On the above date and time, Mr. Cavuilagi entered into the Complainant’s compound at Naidiri Settlement, Nasinu, Fiji.
  7. The identity of Mr. Cavuilagi is not disputed with respect to the elements of the alleged offense.
  8. Mr. Cavuilagi was arrested on 17 September, 2020 by PC Arthur at the Valelevu Police Station, Nasinu, Fiji.
  9. Mr. Cavuilagi was interviewed under caution on 17 September, 2020 by PC Pauliasi Ratu at the Valelevu Police Station, Nasinu, Fiji.
  10. Mr. Cavuilagi was charged on 17 September, 2020 by WDC Ateca at the Valelevu Police Station, Nasinu, Fiji.
  11. It is admitted that the contents of the following document is not in dispute and will be tendered by consent:
    1. Fiji Police Medical Examination Form of Mr. Saimoni Cevarua conducted by Dr. Alisi B. Waqa at the Valelevu Health Centre on 16/09/2020.
  1. The Prosecution alleges that the two Accused entered the house of the Complainant on the night of the 15th of September 2020, when the Complainant was drinking alcohol with his son's friends, celebrating the visit of his son and daughter, and assaulted the Complainant with the intent to cause grievous harm. The Complainant and the two Accused are neighbours living in the same village. On the night of the 15th of September 2020, the Complainant was celebrating his son and daughter's visit with his son and son's friends. They were drinking while listening to the music. The Complainant saw the two Accused enter their porch and assault one of his son's friends. The Complainant then intervened to stop it. The two Accused then assaulted the Complainant. While attacking the Complainant, the first Accused took a wheelchair and assaulted the Complainant.
  2. The first Accused, in his evidence, denied this allegation. He said the Complainant was causing disturbs by shouting and challenging the villagers, as he was drunk. They were playing loud music as well. The first Accused lives just next to the Complainant's house. The loud noise and the loud music continued even after the commencement of the curfew. The villagers were concerned about it, and several of them called the Police, but the Police informed them that the Police had no vehicle to visit the place. The first Accused then went to the Complainant's house to ask him to stop the noise, letting the villagers sleep peacefully. The second Accused followed him. When the first Accused entered the porch, asking the Complainant to stop the noise, the Complainant and the others started to assault him. In order to defend himself, the first Accused got hold of the nearby chair and threw it away to distract his attackers and gain time for him to prepare to defend himself. The first Accused then punched the Complainant on his side ribs when the Complainant tried to assault him. The second Accused, standing outside the Complainant's compound, shouted, saying that is enough. The first Accused then stopped and walked away.
  3. According to the evidence presented by the Prosecution and the Defence, there is no dispute between the parties that the two Accused entered the compound of the Complainant on the night of the 15th of September 2020. The Prosecution claims the first Accused hit the Complainant with a chair which the first Accused denies, saying that he only threw it away. The first Accused says that he punched the Complainant to defend himself from the Complainant's assault.

12. The Prosecution called Constable Luke Navela, who was the officer who interviewed the first Accused under caution. The first Accused admitted, pursuant to Section 135 of the Criminal Procedure Act, that the Police interviewed him on the 17th of September 2020. Still, the Prosecution called Constable Luke Navela to give evidence only to establish that the first Accused was interviewed under caution and tendered the record of the caution interview as a Prosecution exhibit. The learned Counsel for the Prosecution did not lead Constable Navela to explain the contents of the caution interview and who gave those answers for him to record them in the interview etc. It is the onus of the Prosecution to establish the truthfulness of the admission made by the Accused, if any, in the caution interview beyond a reasonable doubt. Unfortunately, by just tendering the caution interview without providing any evidence about its contents, the Prosecution fails to establish the truthfulness of the admission made by the first Accused, if any, in the caution interview.

13. The Doctor who conducted the medical examination of the Complainant found tender and swollen left lower ribs with minimal chest expansion and tender right lower ribs with no swelling. However, she went ahead and explained the result of an X-ray examination. However, there is no such report tendered in evidence to support her observation. Moreover, it was revealed that the Prosecution had not disclosed such an X-ray report to Defence. According to the Doctor, she was not present when the X-ray of the Complainant was taken. She received a report of an X-ray examination via her Viber message.

14. According to the Complainant, the two Accused initially punched him in the jaw. He then fell due to the said punch on his jaw. The two Accused then continuously punched him when he fell. Then the first Accused took a wheelchair, and he felt that they hit him with the wheelchair. While the first Accused assaulted him with the wheelchair, the second Accused continued punching him on his body. In view of the evidence of the Complainant, and Robert Chris, who was drinking with the Complainant, the Complainant was severely assaulted by both the Accused. However, the Doctor found no injuries on his jaw or any other parts of his body except the tendering and swelling on his lower right ribs. As I explained before, there is a reasonable doubt about the accuracy of the evidence given by the Doctor retarding the X-ray report and its finding. Be that as it may, the injuries found in this X-ray report were also related to the rib area. The finding of the medical examination does not support the claim of the Complainant, and the evidence given by Robert Chris thus creates a reasonable doubt whether the Complainant's account regarding this assault is credible and reliable.

15. The first Accused admitted that he punched the Complainant when he tried to assault him from behind. The first Accused claimed that he punched the Complainant in that manner to defend himself.

16.Section 42 of the Crimes Act states that a person is not criminally responsible for an offence if he carries out the conduct constituting the offence in self-defence of the belief that such conduct is necessary to defend himself or another person. (vide Section 42 (1) (2) (a) of the Crimes Act).

17. Supreme Court of Fiji in Vasuitoga v State [2016] FJSC 1; CAV001.2013 (29 January 2016) outlined the scope of self defence, where it was held that;

28] It is settled that when an accused relies on self-defence , the trial judge should direct the assessors to consider whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds. As the Privy Council said in Palmer v The Queen [1970] UKPC 2; [1971] AC 814, 831-832:

"The question to be asked in the end is quite simple. It is whether the accused believed upon reasonable ground that it was necessary in self defence to do what he did. If he had that belief and there were reasonable grounds for it, or if the jury is left in reasonable doubt about the matter, then he is entitled to an acquittal.”

29] In State v Li Jun unreported CAV0017/2007S; 13 October 2008 Sackville JA referred to the English and Australian authorities on self-defence and said at [46]:

"It is important to appreciate that the test stated in Zecevic is not wholly objective. It is the belief of the accused, based on the circumstances as he or she perceives them to be, which has to be reasonable.”

30] We also refer to what Lord Lowry CJ said in R v Browne [1973] NI 96 which is cited in the unreported decision of the English Court of Appeal of Balogun [1999] EWCA Crim. 2120. Lord Lowry said at p 106:

"To justify killing or inflicting serious injury in self-defence the accused must honestly believe on reasonable grounds that he is in immediate danger of death or serious injury and that to kill or inflict serious injury provides the only reasonable means of protection."

18. The Accused has to carry out the alleged conduct constituting the offence to claim the defence of self-defence. The Accused must establish that he believed the conduct was necessary and reasonable to defend himself based on his perceived circumstances. The Accused bears the burden of proving that defence. (vide; section 59 (2) of the Crimes Act). The burden of discharging this onus of the Accused is the evidential burden, which means adducing or pointing to evidence that suggests a reasonable probability that the defence of self-defence existed (vide; Section 59 of the Crimes Act). The Prosecution still holds the burden of disproving the defence provided by the Accused. (vide; section 57 (2) of the Crimes Act).

19. The Court has to determine, firstly, whether the Accused had believed that his conduct was necessary and then whether it was a reasonable response under the circumstances that the Accused perceived. It is not wholly an objective test. It is a subjective belief founded on the perceived circumstances of the Accused. Furthermore, the Accused's subjective belief and conduct should be objectively reasonable. (vide : Narayan v State [2020] FJCA 189; AAU0610.2017 (6 October 2020)

20. Accordingly, the Court needs to examine whether the first Accused believed upon the reasonable ground that he needed to punch the Complainant in his ribs side to defend himself from danger. According to the first Accused, the Complainant and his visitors were drinking alcohol when the two Accused came to the Complainant's compound. The Complainant and Robert Chris also admitted in their respective evidence that they drank alcohol that night. Moreover, the Complainant did not dispute that they played music; the only issue is whether they played it loudly, disturbing the neighbours.

21. The Prosecution did not produce the wheelchair and the small JBL speaker in evidence or at least a photograph of the alleged wheelchair and the JBL speaker. It would be prudent to present the evidence of the crime investigation officer explaining the crime scene and the items found at the scene. Still, the Prosecution decided otherwise, leaving certain doubts uncleared in the Prosecution case.

22. Considering the facts that the Complainant and his son's friends were drinking and playing music in the night and the nature of injuries found during the medical examination of the Complainant, there is a reasonable doubt whether the version of the first Accused is true or may be true. Hence, the Prosecution has failed to prove beyond a reasonable doubt whether the first and second Accused entered the property of the Complainant with the intent to commit an offence and the first Accused then hit the Complainant with a wheelchair with intent to cause grievous harm.

23.In conclusion, I find the first and second Accused not guilty of the first count of Criminal Trespass, contrary to Section 387 (1) (a) of the Crimes Act and acquit from the same accordingly. I further find the second Accused not guilty of the second count of Act with Intent to Cause Grievous Harm, contrary to Section 255 (a) of the Crimes Act and acquit form the same accordingly.

24. Thirty (30) days to appeal to the Fiji Court of Appeal.


.................................................
Hon. Mr. Justice R.D.R.T. Rajasinghe
At Suva
27th July 2023


Solicitors.
Office of the Director of Public Prosecutions for the State.
Office of the Toganivalu Lawyers for both Accused.

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