Cama v State [2001] FJCA 30; AAU0011E.99S (1 November 2001)

IN THE COURT OF APPEAL, FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. AAU0011/1999S
(High Court Criminal Case No. HAC 015 of 1997)

BETWEEN:

ENELE CAMA
Appellant/Applicant

AND:

THE STATE
Respondent

APPLICATION FOR LEAVE TO APPEAL

1. In a minute dated 18 October 2001 I dealt with the applicant’s application for an extension of time for filing a notice of appeal and granted it. In relation to his application for leave to appeal (see s 21(1)(b) of the Court of Appeal Act as amended by 379 of 1990) I stated that it was not possible to make a decision without considering the evidence trial, and I directed that the notes of evidence should be prepared and placed before me. They have now been prepared, and were placed before me. Today I have read the notes and considered the written submissions might by both the parties at an earlier stage.

The applicant’s trial for murder commenced on 2/4/98. The accused was represented by counsel, and continued to be represented by counsel throughout the trial.

In opening the prosecution stated that the case it would present was that the accused caused the death of the deceased by the unlawful act of stabbing in in the head with a knife, intending to kill him or cause him grievous bodily harm. The deceased and the accused had been drinking during the day, they went to Miss Savu’s home, and an argument developed and the accused stabbed the deceased.

The first prosecution witness produced a sketch plan of the scene. Miss Savu was called. She stated that on her way to do some shopping she met the deceased and another person. She invited the deceased to her house. Both he and his companion were drank. On returning home she joined some other people who were there drinking. The deceased arrived and they drank for some hours until they ran out of beer. In the meantime the accused had joined them. When Miss Savu went to prepare some food she found that all the groceries she had bought were missing. She questioned the deceased and one of his companions about a plastic bag of groceries which they had, which she suspected contained the missing articles. An argument started about the groceries. Miss Savua told them to leave. An argument developed over the groceries, and she saw the accused take a kitchen knife out of the kitchen basin. She asked them to give the knife back because she was sure there is going to be a fight. He declined. An argument continued between two of the others but the accused did not take part. As the deceased went to leave words were exchanged between the accused and themself and the deceased pulled the accused by the singlet. The witness followed them outside but did not see what happened at that crucial time. She saw the deceased lying on the ground, unconscious, and try to revive him. She found that he was bleeding from a gas in his head. He was taken to hospital but died shortly afterwards.

Page 31 it seems that the sequence of the events was that the accused made a comment to the deceased the deceased pulled the accused outside by his singlet.

The next witness Lepani Vakaotia was one of the accused’s drinking companion. He said that the deceased became angry when the accused challenged him in having taken Miss Savu’s groceries. The deceased made to attack the accused about the witness told them if they were going to fight they would have to go outside. He did not see what happened but heard some one fall to the ground and then found the accused lying there. At 42 he confirmed that the deceased rushed towards to accused to puncheon.

The next witness Samuela Navali was also at the party at Savus house. He did not see anything of the encounter between the accused and the deceased. He recalled that Miss Savu called out to the accused to bring the knife back. However it seems (54) this was after stabbing. After this there was some formal evidence and several statements was read by consent. A police constable deposed that the following morning he located the accused and under caution often whose knife was used in stabbing to which the accused answered it was Miss Savu’s. At the officers request the accused went and found the knife. The hospital medical officer who first attended the deceased on admission gave evidence. It appears that the deceased suffered a single stabbed wound above the left ear.

At this stage the trial was adjourned with the intention that the hearing would continue in the absence of the assessors to determine the admissibility of a detailed written statement made by the accused to an officer the day after the stabbing. That there would be such a challenge had been for shadowed before the opening of the trial. The Court had requested counsel for the accused to file a statement detailing the grounds on which the objection to admissibility would be based. When the trial adjourned on 6 April the statement was still not available, a state of affairs which the Court criticised. The hearing adjourned on the basis that the statement would be involved and that the statement would be provided by 8:30 a.m. the next morning. When Court resumed at 9:30 a.m.on 7 April counsel stated he was no longer objecting to the admissibility of either the caution interview or of the brief statement made by the accused when charged. These statements were then produced. The accused caution statement generally was consistent with the evidence that is already been related. The accused said that he had taken the kitchen knife “in case someone do something to me” when he would stabbed him with a knife. He said that the deceased came over to him and through a punch which however did not connect. He then pulled the accused by the shirt. The shirt tore and then the accused stabbed the deceased with the knife, once. In the charge statement he said he had done this through drunkenness and did not mean to kill the deceased.

The pathologist gave evidence that the wound had penetrated the dura and her gal into the left temporal load of the brain. The total death of penetration from the point of entry was about 4.5 cm. The pathologist said it would have required considerable force to cut through the skull. His opinion death was caused by loss of blood, internal and external, from the wound. I have also read a number of statements which were read to the Court by consent but they do not add anything of critical significance to the evidence already recited.

When on 8 April the fifth day of trial the prosecution case close accused by his counsel elected to give evidence. In his opening the counsel said the defence was based on the absence of intention or knowledge to kill or cause grievous bodily harm. It was not disputed that the accused stabbed the deceased, that it was an unlawful act and that it caused death. In his evidence the accused said that the answer he gave about why he had the knife meant that if someone wanted to do something to him he could protect himself. He said that the accused had hidden with one punch and then grabbed his T- shirt. He was scared when the deceased started pulling him outside. He said that only thing that came to his mind was to find a way of getting away. “When I came to my senses (the deceased) was lying on the ground.” The accused then realised that he had the knife in his hand. He did not previously know the deceased. He said that he didn’t know he had stabbed him that he had not intended to stab him and that he did not intend to stab him in the head. He had drunk a considerable amount during that day. In cross-examination he denied that he had said anything provocative to the deceased, although he agreed that he had spoken to him, and that the deceased then came back towards him and through a punch at him. In his caution statement he had said he had stabbed the deceased on the left side of the head, and the statement also contained an account of a demonstration given by the accused “how is stabbed the head of the deceased”. In cross-examination he had accepted that in relation to many important answers in his statement he was “totally himself” but not when he gave the answers to which the reference has just been made. He maintained that when he went to the kitchen door he had forgotten he had the knife. He said that at the time he hit the deceased he did not know what he did.

In his final address prosecution counsel, referring to the accused statement that he did not know that he had the knife and did not know what he was doing, described this is unbelievable, and contrasted it with what had been said in the caution statement. Counsel said that the accused subsequent actions of taking the knife with him and washing it and remaining in his house showed that he knew what he had done. The medical evidence indicated that considerable force had been used. Then prosecution counsel said that the defence had presented defences of intoxication and self defence. He dealt with those, saying that in relation to self defence that the force used had to be reasonable in the circumstances. He pointed out that the deceased was unarmed and submitted that the stabbed and unarmed intoxicated man in the head was a disproportionate response. He also pointed out that the accused had not suffered any injury. Counsel for the defence in his address pointed to in consistencies in the evidence of Miss Savu. He said that intoxication played an important role. The crack of the defence was whether the necessary intention or knowledge to cause death or grievous bodily harm had been proved. He did not rely on intoxication as a defence, and the notes make no reference to self defence. He described the incident “unfortunate.”

Following the addresses there was a record of a discussion in chambers between the Judge and Counsel with the accused present. Counsel excepted that in the view of the concessions there had to be at least a finding of manslaughter. Counsel for the defence accepted that the provocation had not been raised and was not available. Notwithstanding that the counsel said he had not relied on self defence, the court said it intended to direct on that subject. The Judge I said he would give a direction about the relevance of drunkenness .................... only on the question of its effect on intent. At the conclusion the Judge said that the following:

“I intend to direct the only issue is intent or malice of for thought. If that is proved that is murder if not proved it is manslaughter. Both counsel agreed and did wish to raise anything further. There is no record of the summing up but it was a lengthy one, taking from 9:45 to 11:40 am, subject to a break the length of which has not been recorded. After a retirement of less than half an hour the assessors returned with a majority opinion of guilty of murder, one assessor being of the view that the verdict ought to be manslaughter. The court delivered judgment finding the accused guilty of murder but the terms of the judgment are not available.”

In the accused first letter he made the following points:

(1) No one saw him strike the deceased.

(2) He wishes the court to hear his case on self defence or provocation.

(3) The reason he was holding a knife was that he wanted to open a tin of beef.

(4) When they fell down together by mistake the knife must have struck the deceased head but he did not mean to hit him.

(5) He made admissions to the Police because they forced him to give the statement while he was drunk. His subsequent letter again referred to the question of intent, and challenged any implication that he brought the knife from the kitchen in order to use it on the deceased. He repeated that the reason he had the knife was to open a tin of food.

Dealing with the points raised:

(1) Even putting aside the accused own statement, there was an ample evidence to establish that the accused stabbed the deceased.

(2) Self defence - was it put to the jury.

(3) There was no basis for putting provocation to the jury. The actions of the deceased would not have deprived the ordinary person of the power of self control.

Intoxication by virtue of the section of 13 of the Penal Code Cap (17) shall not constitute a defence. Self defence is determined according to the principles of English Common Law section 17.

Thomas Eichelbaum
Justice of Appeal

Dated at Suva ....................