State v Baisagale [1991] FJHC 24; HAC0032.1990s (20 March 1991)

IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

CRIMINAL CASE NO. 32 OF 1990

THE STATE

v.

ROPATE BAISAGALE

MURDER: Contrary to Section 199/200
of the Penal Code Cap. 17

JUDGMENT

Two assessors have returned a majority verdict in this case that the accused is "not guilty" of any offence. The third assessor however is equally sure that the accused is "guilty" of both offences as charged.

Such diametrically opposite opinions in my considered view can only have arisen from a grave lack of understanding and confusion in the assessors minds as to the court's summing up of the case to them.

In so far as the majority opinions are explicable, (if at all) both gentlemen assessors must have formed the view that the accused had acted in self-defence or at least had a reasonable doubt about the matter in respect of both killings.

With that view of the facts and the applicable law this court cannot agree. The fact of the matter is that the accused was armed with a lethal weapon capable of discharging a number of bullets at a single burst, when he arrived outside Litia's sitting room at 249 Waimanu Road and asked "Where is the money?"

On the other hand neither deceased was armed at anytime and it is not suggested that they had jointly attacked the accused or were unaware that the accused was armed. In such a situation it would be foolhardy even suicidal for the deceased to have behaved in a threatening or aggressive manner towards the accused leave alone attack him nor in my considered view did the accused reasonably fear for his life.

He is a trained soldier and was clearly familiar with the weapon which he used. He had been attacked previously and if he truly feared for his life then with or without a gun he would not have returned to 249 Waimanu Road.

This court is unable on any view of the evidence on this aspect to avoid the distinct and unshakeable impression that the accused having armed himself, returned to 249 Waimanu Road secure in the knowledge and confident that he could overcome any eventuality that might arise.

Then there is also the evidence of Vitinia Ledua Baleilevuka who was in the room at the time and saw the shooting. She was categorical and remained unshaken in her denial that the accused was attacked by either Peniasi or Waqa.

I accept her evidence on this aspect in its entirety and reject the accused unsworn assertion in court and in his police interview statement that he was attacked by the deceased at the time he shot them. Neither statement has been tested in cross-examination and both were made with hindsight after the shootings.

It might be that the 2 assessors in the majority disbelieved her evidence about Peniasi pulling out the money from his pocket after he was shot but that does not necessarily mean that she was untruthful in her evidence on the actual shootings which she would have necessarily observed at very close range and to which her attention would have been rivetted at the time.

Even accepting the accused's untested unsworn statement to the police it is sufficiently clear that both deceased persons were shot before they had actually done anything to the accused. Each was shot because the accused thought they were "....... going to do something". The defence of self-defence is only available where there is a real (not imagined) and immediate threat to one's life.

I have directed myself in terms of my summing up and have carefully considered all of the relevant evidence pertaining to the issue of self-defence and I find as a matter of fact and in law that the accused in shooting Peniasi Yasawa and Metuisela Waqa did not and was not acting in necessary or lawful self-defence and I reject that defence.

As for the minority assessor his opinion is only explicable (if at all) on the basis that he rejected all defences raised by the accused including provocation.

In this latter regard I am firmly of the view that his rejection of the defence of provocation is equally incorrect and may have been unduly coloured by the accused's admission that he was angry. Additionally he may have been confused by the court's directions on the matter.

I have found the assessors opinions in this case of no assistance to me and I reject them all.

I have accordingly directed myself in terms of my summing up and again considered all of the evidence afresh and I find that on a reasonable view of the evidence in this case the accused was subjected throughout the night of the 25th and early morning of the 26th to numerous minor 'provocative incidents' which kept him on the 'boil' (so to speak) until he finally exploded when he was beaten and robbed and left senseless on the road side.

I accept that on regaining his senses the accused was overcome with anger and lost his self-control. I am further satisfied that in shooting both deceased the accused was acting under provocation which was further 'fuelled' by the non-responsive attitude he encountered when he returned to Litia's room at 249 Waimanu Road and asked for the return of his money from persons who either knew or ought to have known the answer to his question.

I am satisfied beyond all reasonable doubt that the accused unlawfully caused the deaths of Peniasi Yasawa and Metuisela Waqa on the early morning of the 26th of April 1990 in circumstances that do not reasonably or necessarily exclude the existence of provocation and I therefore find him not guilty of murder but guilty of manslaughter on both counts in the information and convict him accordingly.

(D.V. Fatiaki)
JUDGE

At Suva,
20th March, 1991.

HAC0032.90S