IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL  APPEAL NO. AAU 0105 OF 2023
[Lautoka High Court: 117 of 2020]

BETWEEN:

TIMOCI  RASOVA  MATAITINI
Appellant

AND:

THE  STATE
Respondent

Coram	: 	Mataitoga, P
Counsel		:	Appellant in Person
				Naibe, S for the Respondent 

Date of Hearing:	6 December, 2024
Date of Ruling	:	18 February 2025
RULING

1.	The appellant [Timoci Rasova Mataitini] was jointly indicted with another, in the High Court at Lautoka, with the following offences:

i)	1 Count of Murder contrary to section 237 of the Crimes Act 2009;
ii)	1 count of Aggravated Robbery contrary to section 311(1)(a) of the Crimes Act 2009;
iii)	1 count of Aggravated Burglary contrary to section 313(1)(a) Crimes Act 2009;
iv)	1 Count of Theft contrary to section 291 Crimes Act 2009.

2.	The appellant pleaded not guilty to the charges filed against him by the DPP. Following the trial, the appellant was found guilty on all 4 counts for which was charged and was convicted in the judgement dated 23 August 2023.  He was sentenced on 18 October 2023, to life imprisonment with a minimum term of 12 years to be served before pardon may be considered.

The Appeal

3.	The appellant being dissatisfied with the outcome of his trial in the High Court filed an Application for Leave to Appeal Against Conviction dated 6 November 2023. There was 1 ground of appeal submitted with Leave application, which states:

“The trial judge erred in law and facts in not analysing all the facts before him, before he made the decision that the appellant was guilty as charged for the murder. Such error by the trial judge in failing to make an independent assessment of the evidence, before affirming the verdict which was unsafe, unsatisfactory and unsupported by evidence give rise to a grave miscarriage of justice.”

4.	The appellant filed 6 additional grounds of appeal against conviction, on 6 February 2024. In evaluating the additional grounds of appeal, the following is evident:

i)	Ground 1 which allege that the trial counsel failed to cross-examine the first accused [Inoke Qilai Dokanavosa] in regards to the cause of death of the deceased. This ground is misconceived because the decision of a trial counsel to ask any question to any witness is a matter solely for him. That decision cannot be questioned, to form the basis of an appeal ground.
ii)	Ground 6 is the same as the initial ground of appeal referred to paragraph 3 above.
iii)	 Ground 2 and 3 cover the issue of causation of death and the Doctors evidence and will covered together.
iv)	Ground 4 is on provocation – 
v)	Ground 5 is the claim that the judge did not consider the evidence that would have reduced the charge to manslaughter.

Relevant Law

5.	The above grounds involve both questions of law and fact and therefore leave is required for appeal to the court of appeal: section 21(1)(b) of the Court of Appeal Act 2009. 

6.	For a timely appeal, the test for leave to appeal against conviction is ‘reasonable prospect of success’ see: Caucau v State [2018] FJCA 171; Navuki v State [2018] FJCA 172 and State v Vakarau [2018] FJCA 173; and Sadrugu v The State [2019] FJCA 87.

Assessment of Grounds of Appeal

	Causation 

7.	The grounds of appeal 2 and 3 of the additional grounds. There are no submission by the appellant to further articulate the precise aspect of causation he alleges. 

8.	I accept the respondent’s submission that the cause of death was adequately covered in paragraphs 58- 63 and 184 to 189 of the judgement. The evidence against the appellant on this element of the murder charge is strong and was not challenged at the trial.

9.	The evidence of the pathologist which the trial judge accepted was that the head injuries of the deceased was the substantial contributing factor to the death of the deceased. In this regard, the appellant’s caution interview statement he admitted that he repeatedly punched the deceased in the head. 

10.	This ground of appeal lack merit.

Provocation/Manslaughter

11.	The judgement did not cover provocation because it was never raised. The appellant’s position on the murder charges was total denial. It was never raised by the defence counsel at the trial because the appellant maintained that he was never at the scene of the crime. 

12.	The court did not need to consider the lesser charge of manslaughter because the appellant was in total denial. If the appellant had raised the issue of manslaughter, the court would have been duty bound to consider it. But it was not raised and there was no basis for considering the lesser offence of manslaughter.

13.	At paragraph 136 of the Judgement, the court noted:

“136. The case of the Defence is one of denial. They don’t deny however that the offences charged in the information took place and that some of the stolen properties were in their possession soon after offences. The position of the Defence is that they were never present at the crime scene on the 22 or 23 of March 2020 and that they were not involved in the offences. In their evidence, the accused persons appear to be mounting an alibi although no formal notice of alibi was given or no alibi witnesses were called. However, it is for the Prosecution to prove beyond reasonable doubt that the accused were present at the crime scene, and they committed the offences as charged.

14.	These grounds have no merit.

	Inadequate Assessment of the Evidence

15.	Under this cover, the 6th additional ground of appeal and the standalone ground that was filed on 6 November 2023 are assessed together.

16.	The trial judge had considered the caution interview statements which was part of Agreed Facts. At paragraph 171 of the judgement:

“171. Then I carefully examined each caution statement separately, bearing in mind that the admissions/confessions made by one accused is admissible against him alone and not against the other, to see if they told the truth in their respective statements. I find that those statements are consistent with the other evidence led by the Prosecution at the trial. Those consistencies are capable of dismissing the allegation of the Defence that certain parts of the record of interviews have been fabricated by the police. The accused at the interview in fact admitted that the stolen property were in their possession. Having considered the caution statements as a whole, I am satisfied that the accused persons told the truth to police.”

17.	As regard the murder charge against the appellant, the trial judge analysed the evidence as follows at paragraphs 183 to 189:

“183. The 2nd accused in his caution interview admitted that he grabbed the old man tightly and blocked his mouth and started punching using his fist countless times to the point the deceased became unconscious. When the deceased became unconscious, he tied his mouth with a cloth and hands and legs with a belt and a cloth. He noticed the deceased breathing motionless, and his lower jaws detached, blood covering his nose and chest. Still he did nothing to revive the old man and proceeded to accomplish his task.

184. 	The 2nd accused admitted under cross-examination that he had injuries on his knuckles. Although he attributed those injuries to police brutality, his counsel never questioned any of the police witnesses on that basis. Doctor Avikali Mate’s evidence is consistent with the admission made by the 2nd accused that he repeatedly punched the deceased. Upon external examination, the doctor observed injuries to the head, the face and the neck area of the deceased. Most of the injuries were seen in the head and the face, the most vulnerable part of the body. She opined that blunt force trauma by repeated punches with a significant force could have caused those injuries.

185. 	Doctor’s evidence also established that the accused was reckless in causing the death of the deceased and that the conduct of the 2nd accused substantially contributed to the death of the deceased. The deceased was 78 years old, and the 2nd accused knew he was old. He could have foreseen the risk involved and the consequence of his action. He took the risk of causing the death of the deceased when he repeatedly punched this old man in his head. The risk he took is unreasonable in the circumstances known to him. The willful conduct and the recklessness as to causing death on the part of the 2nd accused are established.

Medical Evidence

186. 	According to the opinion of the doctor Avikali (PW-12), given the multiple bruises present on the forehead, the face, the neck and the displacement of the mandible or lower jaw, the deceased has received repeated punches in those areas. According to her, there were two possible causes of death that directly led to the death of the deceased. Firstly, severe cardiovascular disease dilated cardiomyopathy (atherosclerosis) and secondly, severe cerebral oedema.

187. 	Cerebral oedema affects the heart rate centre of the brain and attributed this phenomenon to blunt force trauma. For a person whose heart is already in a compromised state, not being able to supply itself with oxygen, because of the narrowed blood vessels, a swollen brain could exacerbate the problem by causing the heart to be less fast when it’s needed to be faster. The doctor linked the haemorrhage and the damage to the brain to blunt-force trauma. She opined that the damage to the brain could have been caused when the brain moved within the closed compartment as a result of a blunt force trauma with a significant or repetitive force applied in that area. The blunt force trauma has resulted in cerebral oedema and haemorrhage in the brain. She excluded all unlikely causes and boiled down to the opinion that the swelling and haemorrhage in the brain could have been caused by the trauma to the head. She further said that any compression or swelling of the brain could generally affect its function and even affect breathing and the heart rate. Without medical management, she opined that the brain would continue to swell thus compressing the blood vessels, eventually leading to death.

188. The 2nd accused noticed that the deceased was not breathing and he informed the same to the 1st accused, but he did nothing to save the deceased’ life. The deceased had succumbed to his injuries at the crime scene itself. The Prosecution proved beyond reasonable doubt that the conduct of the 2nd accused caused the injuries to the head of the deceased and those injuries substantially contributed to the death of the deceased. The elements of Murder as charged are established.

189.	The Prosecution also proved that the accused persons acting in a joint enterprise robbed the belongings of the deceased and robbed the complainant Krishi Lata. It also proved that the accused persons burgled the house occupied by Munendra Goundar and stolen the belongings of Goundar. Although there is no evidence that the 2nd accused entered the house in which Munendra was sleeping, he got closer to the window to peep inside when the 1st accused entered the house. “Building” includes a part of the building according to Crimes Act definition (s 312 (7). The 2nd accused was in the company of the 1st accused who entered the house and he shared the looted money with the 1st accused.”

18.	The analysis of the evidence against the appellant is clear and not challenged at the trial. To claim that inadequate assessment of the evidence was undertaken by the trial judge is baseless. This ground has no merit.

ORDER:

1.	 Appellant application for leave to appeal against conviction is refused.

___________________________________
Hon. Justice Isikeli U. Mataitoga
President, Court of Appeal