Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Tabuavula [2014] FJMC 164; Criminal Appeal 1472.2010 (18 December 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case : 1472/2010

STATE

VS

SANAILA TABUAVULA
JONE DI
JOJI DAKUNITURAGA
VILIVE DEANA

PC Joshua for the Prosecution
The 1st and the 2nd accused in persons
Ms. K. Vulimainadave (Legal Aid) for the 3rd Accused

JUDGMENT

1. The accused are charged in this Court for following offences.
   

1st Count

ASSAULTING POLICE OFFICER IN DUE EXECUTION OF HIS DUTY: contrary to Section 277(b) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Sanaila Tabuavula, Jone Di, Joji Dakunituraga and Vilive Delana on the 8th day of August 2010 at Suva in the Central Division, assaulted Police Constable number 3599 Avinesh, whilst in due execution of his duty.

2nd Count

ACT OCCASIONING BODILY HARM: contrary to Section 275 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

Sanaila Tabuavula, Jone Di, Joji Dakunituraga and Vilive Delana on the 8th day of December 2011 at Suva in the Central Division assaulted Special Constable Number 4133 Solomone, committing an assault occasioning her actual bodily harm.

2. The 4th accused pleaded guilty for these offences earlier and already sentenced. Since the other accused pleaded not guilty this matter proceeded for hearing where the prosecution called 05 witnesses and for the defence the 1st and the 2nd accused gave evidence. Therefore before considering the law I would first summarize the evidence presented by all the parties during the hearing.
   
3. PW1 was PC 3599 Avinesh who is in the police for 08 years and on that day he was working as a enquiry man in Totogo police station. His tasks were to serving the customers, answering the phone calls, checking the prisoners and serving meals to them. He was instructed by one NCO Goundar to check about prisoners in the cell block as they were asking to visit wash room. He went to check about the prisoners with SC Solomone. While SC solomone was standing outside the cell block PW1 went inside cell where there were 05 prisoners and he let them one by one to go to washroom. After finishing that when he was about to close the cell door all of them came to him and started punching him. Then one of them ran and started assaulting SC Solomone also. Even though there were 05 prisoners only 04 assaulted him and he identified them in the Court. After assaulting him the prisoners escaped from the cell and SC Solomone was assaulted by Vilive (4th accused) and then other 03 accused went and assaulted him also. PW1 was injured and was treated in hospital. He identified his medical report but as this was not served to the defence was not marked. In cross- examination by the 1st accused the witness said 04 prisoners came and assaulted him. In cross- examined by the learned counsel from the Legal Aid PW1 said there were 05 prisoners in the cell and he knew some of them by name. He followed procedures when letting the prisoners out but could not recall which prisoner he last took to the washroom. Even though the counsel suggested that he could not identify who assaulted him the witness said all 04 came and assaulted him in his head and chest and at that time the fifth prisoner was inside the cell. PW1 also said that the 2nd accused assaulted him even though he was in bandage. In his statement to the police PW1 didn't mention that the 2nd accused was in bandage as he knew his name. In cross- examination by the 3rd accused PW1 said he just closed the door and the 3rd accused was also involved in the assault. In re- examination the witness reiterated that 1st, 2nd and the 3rd accused assaulted him and he knew the identity of all the accused.
   
4. PW2 was SC 4133 Solomone, who is in the police for 03 years and on 08th August 2010 he was assigned sentry duties in Totogo police station. He was instructed by OIC to go to cell with PW1 and he saw prisoners pushed the cell door and assaulting PW1. There were 05 prisoners in the cell at that time. PW2 was standing at the door of the cell block and the distance from him to cell was only 7 meters and he identified them as present in the dock. He saw the 04 accused assaulting PW1. PW1 was pushed and punched and he fell from the blows. After assaulting the 1st accused ran to PW2 and assaulted him also. The 1st accused punched his left side of the face and he had swollen head and hand from the assault. PW2 was also examined in the hospital but his medical report was also not tendered in the Court. In cross- examination by the 1st accused PW2 agreed in his police statement he said one prisoner punched and ran outside. During the cross- examination by the legal aid counsel (for the 2nd accused) the witness said he could see the cell from where he was standing and 04 prisoners including the 2nd accused assaulted PW1.
   
5. The Court adjourned the hearing for the next day and could not proceed on that day. After numerous adjournments when this was called before me on 26th November 2013 PW2 was not present. Therefore I allowed the prosecution to call this witness another date and proceeded with the hearing with other witnesses who were present on that date.
   
6. PW3 was PC 4125 Petero, the interviewing officer of the 1st and the 2nd accused. The Interview was conducted in the Inquiry office on 11th August 2010 and these were marked as PE-01 and PE-02 respectively. He also identified the two accused in the Court.
   
7. PW4 was PC Epeli Mata, the charging officer of the 1st and the 2nd accused and these charge statements were also marked as PE-03 and PE-04 respectively.
   
8. PW5 was PC 3380 Aklesh, the officer who formally charged the 3rd and the 4th accused and the charge statement of the 3rd accused was tendered as PE-05.
   
9. On 12th June 2014 when the prosecution called PW2 again as a witness the 2nd accused informed this Court that he no longer wanted the legal Aid to represent him and after waiving right to counsel submitted that he did not want to cross- examine the witness. Thereafter the prosecution closed their case. After considering the evidence presented by the prosecution I gave all the accused their rights pursuant to section 179 of the Criminal Procedure Decree.
   
10. The 1st accused opted to remain silent but called the 4th accused as a witness. He said that he was with the 1st accused when he was arrested and he assaulted the Indian police officer on that day. The prosecution did not cross- examine this witness. In cross- examination by the 2nd accused the witness said he saw the 2nd accused being injured.
    
11. The 2nd accused also remained silent but called the 4th accused as a witness. In his evidence the witness again said he saw the 2nd accused with a broken arm but was not aware how he got injured. He also said he punched the Indian police officer.
    
12. The 3rd accused also remained silent and did not call any other witnesses. The defence also closed their case and opted to file closing submissions which were filed accordingly.
    
13. The 1st accused in his submission said that the prosecution was relying on the hearsay evidence and failed to prove their case against him beyond reasonable doubt.
    
14. The 2nd accused submitted that there were no evidence to implicate him with these offences and the last prosecution witnesses failed to attend the court and the prosecution failed to tender any medical report to substantiate their claim.
    
15. In his detailed submission filed through the legal aid the 3rd accused submitted that the main witnesses for the prosecution did not identify the 2nd accused as the one who assaulted them and the prosecution also did not charge the fifth prisoner or call him as a witness. Also the 2nd accused did not resist arrest and was arrested outside a night club. The 2nd accused did not get the chance to cross- examine PW2 also. Therefore the learned counsel submitted that the prosecution failed to prove their case beyond reasonable doubt against his client.
    
16. Having summarized the evidence in the above manner now I would briefly consider the applicable law in this case.
    
17. In Woolmington v DPP [1935] AC 462 Viscount Sankey L.C. at pp. 481-482 said;
    

"Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained "

18. In State v Delana [2014] FJHC 336; Criminal Case 158.2010 (16 May 2014) his Lordship Justice Madigan defined the burden placed on the prosecution in the following manner:-
    

"The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you."(Emphasis added)

19. In this case the accused are charged with two counts. First count is Assaulting Police Officers in Due execution of His Duty contrary to section 277(b) of the Crimes Decree. Section 277(b) states that:
    

"A person commits a summary offence if he or she—

(b) assaults, resists or wilfully obstructs any police officer in the due execution of his or her duty, or any person acting in aid of such an officer"

20. In view of the above section the elements of this offence are
    
    1. The accused
    2. Assault any police officers in the due execution of his duty.
       
21. In the second count all the accused are charged with Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Decree. Section 275 provides that:
    

"A person commits a summary offence if he or she commits an assault occasioning actual bodily harm."

22. Therefore the prosecution needs to prove following elements beyond reasonable doubt for the second count.
    
    1. The accused
    2. Commit an assault
    100. Occasioning actual bodily harm
         
23. For the 1st count the relevant witness for the prosecution is PW1, PC Avinesh who described what happened on 08th August 2010. His version was that when he tried to close the cell door the prisoners came out and assaulted him. According to him even though there were 05 prisoners in the cell only 04 assaulted him and he identified them in the Court as the accused in this case. There is no dispute that he was in his duty at that time and therefore only issue is whether the accused assaulted him that day.
    
24. Even though he said he was injured from this assault the Court did not allow the prosecution to tender his medical report. But this is not relevant as only elements the prosecution has to prove is that the accused assaulted PW1 on that day and PW1 getting injured is not material. In cross- examination all the witnesses tried suggesting they were not involved in this assault but PW1 rejected these and said all of them assaulted him.
    
25. With regard to the 2nd count for some reasons the prosecution charged the accused with AOABH contrary to section 275 of the Decree instead of going with section 277 of the Decree. PW2 in his evidence said while he was waiting outside the cell block door the 1st accused came and punched him in left side of the face which led to swollen face and hand. In this instance also the Court did not allow the prosecution to mark his medical report. But I am satisfied with his evidence and accept even without medical report that he was injured.
    
26. Even though the prosecution charged all the accused through the PW2's evidence I find that only person directly implicated in this assault is the 1st accused only. PW1 did not mention other accused assaulting him on that day. But I believe they would be liable based on the joint enterprise as defined in section 46 of the Crimes Decree.
    
27. Section 46 of the Crimes Decree provides that:
    

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

28. In State v Delana ( supra) his Lordship Justice Madigan also explained about the joint enterprise in the following manner.
    

"If you find that these two accused were two of the robbers on the 22nd July 2010, and you find that they were acting together as part of a plan to steal by robbery, then each of them is jointly liable for whatever every member of the group does. This is called in law the "doctrine of joint liability". So in the execution of an agreed plan then whatever one does, they all do. There are exceptions to this in serious cases of murder etc. but none of those exceptions apply here in this case. What it means in our case is that if you find there is a joint agreement to rob, and there is a robbery then even if one doesn't steal anything or doesn't hit anyone with a bolt cutter, he is still in law liable for these actions if he is part of the group."

29. In this case all the prisoners escaped from custody after committing these offences. In fact they were charged initially for Escape from Lawful Custody and after pleading guilty have been already sentenced for that. Also from the evidence of PW1 it is revealed that they all assaulted him while trying to escape. Therefore I decide that even though only the 1st accused assaulted PW2 based on the Joint Enterprise all the accused are equally liable for that offence also.
    
30. The 1st accused in his closing submission submitted that the prosecution was relying on the hearsay evidence. But the prosecution case was based on direct evidence PW1 and PW2 who described what happened to them on that day. Therefore I do not accept there is any hearsay evidence led by the prosecution.
    
31. The 2nd accused in his closing submission said that the prosecution failed to lead any evidence to implicate him for these offences but I find that PW1 and PW2 evidence is credible to prove this offence against him. As for the prosecution failing to call last witness I find that this has not weakened the prosecution case.
    
32. The 3rd accused as mentioned earlier took objection for not charging the fifth prisoner in this case but from all the evidence I find only these accused were involved in these offences. Also mentioning about he being arrested in a night club after escape this was never revealed during the hearing. Therefore I do not think it is proper to accept the evidence coming from bar table and reject that part.
    
33. Based on above mentioned reasons I find that the prosecution has proved beyond reasonable doubt that 1st, 2nd and the 3rd accused committed these offences.
    
34. Therefore I find them guilty for this charge and convict them accordingly.
    
35. 28 days to appeal
    

18th December 2014

H.S.P.Somaratne
Resident Magistrate