State v Wakilau - Ruling [1993] FJHC 102; Hac0014d.93s (4 November 1993)

IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

CRIMINAL CASE NO. 14 OF 1993

THE STATE

v.

MANUELI WAKILAU
AND 6 OTHERS

ARSON: Contrary to Section 317(a) of the Penal Code, Cap. 17
MURDER: Contrary to Section 199(1) and Section 200 of the Penal Code, Cap. 17

Mr. I. Wickramanayake for the State
Mr. T. Fa for all Accused persons

RULING

At the close of the prosecution's case and in the absence of the assessors, learned defence counsel made a submission of 'no case to answer' confined to the 3rd accused Rt. Marika Beranaqe, the 5th accused, Iosefo Turaga and the 7th accused, Iowane Taukeisalili.

The application is made pursuant to Section 293(1) of the Criminal Procedure Code (Cap. 21) which also sets out the statutory 'test' which this Court is bound to follow in considering such a submission.

The Section reads so far as relevant:

"... the Court, if it considers that there is no evidence that the accused or any one of several accused committed the offence, shall, ... record a finding of not guilty."

The Fiji Court of Appeal in considering the meaning and effect of the section in Sisa Kalisoqo v. R. Cr. App. 52 of 1984 said (at p.7):

"... a submission of 'no case' was made by the appellant's counsel at the end of the case for the prosecution and the judge heard argument thereon. Even if there had been no submissions, the judge would have been obliged to consider the question. And it seems to us that he has to approach the matter on the same basis, whether the accused or his counsel raises the matter, or he is left to consider it pursuant to the duty imposed upon him by Section 293(1). In each instance he has to ask himself and answer the question: 'Is there no evidence that the accused committed the offence?'"

Clearly then although defence counsel has confined his submission to accuseds 3, 5 and 7 the Court may on its own initiative and ought in the discharge of its duty under the Section consider the case against each of the accused persons in this case.

What then is the offence with which the accused persons are charged and upon which this Court is asked to consider a submission of "no case"? The information in this regard contains 2 counts:

Count 2 which charges all 7 accused with Murder and Count 1 which charges the 6th accused Saiasa Lewaca alone with an offence of Arson.

I can deal quite quickly with the first count of Arson against the 6th accused Saiasa Lewaca. In my view at this stage of the trial and having regard to the admissions contained in the caution interview record and charge statement of the 6th accused I am unable to hold that there is "no evidence" that he committed the offence with which he alone has been charged. Accordingly I rule that there is a case to answer on Count 1 which must be left to the assessors.

In doing so however I would only make the observation that it is not without some interest that the 6th accused is charged alone on this count although his actions would not have been unknown to at least some of the other accused persons who were with him in the group that left Nabukavesi for Qilai that fateful night. So much then for Count 1.

I turn next to Count 2 which charges an offence of Murder against all 7 accused jointly. Now on such a charge as defence counsel has correctly pointed out the prosecution must lead some evidence to prove or from which it might be reasonably inferred that each of the 7 accused persons caused the death of Ro Baleibau Duilomaloma by an 'unlawful act' and with 'malice aforethought'.

In this case there is evidence of an 'unlawful act' in so far as the dwelling house of the deceased was wilfully set on fire without any lawful excuse and further that as a direct result of that 'unlawful act' Ro Baleibau Duilomaloma sustained extensive burns to his body from which he died.

Defence counsel submits however that there is no evidence of "malice aforethought" in respect of the 3 above-named accused persons. Now by Section 202 of the Penal Code:

"Malice aforethought is deemed to be established by evidence proving:

(a) An intention to cause the death of or to do grievous harm to any person ...; or

(b) Knowledge that the act ... causing death will probably cause the death of or grievous harm to some person ... although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused."

In this regard I rule that in so far as the 1st, 2nd 4th and 6th accused persons are concerned there is 'some evidence' that they committed the offence of Murder with which they are charged and I rule that they have a case to answer to the charge on Count 2.

As for the remaining 3 accused persons namely the 3rd, 5th and 7th accused, the prosecution's case is not that they actually set fire to the house of Ro Baleibau Duilomaloma thereby causing his death, rather, the case against them is based on the provisions of Section 22 of the Penal Code Cap. 17 which reads:

"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."

How does this section assist the prosecution or affect the charge of Murder in respect of the 3 accused persons?

It does so learned prosecuting counsel says, in this way - if a group of people form a common intention (as disclosed by their conduct, conversations and State of knowledge) to commit an unlawful act or purpose (such as the wilful burning of another's house) then such group of persons are liable for any offence that is committed as a probable consequence of carrying that common unlawful purpose into effect (i.e. for any felonious death caused by the burning of the house).

What then was the "common unlawful purpose" in this case?

The evidence at best establishes that 'the group' of which all 3 accused persons were a part had intended to unlawfully set fire to the house of Ro Baleibau Duilomaloma but that if I may say so is not and falls well short of being a common unlawful intention to kill or cause grievous bodily harm to anyone which is what is required on a charge of Murder or to put it another way and in the language of Section 22 - is Murder a "probable consequence" of the prosecution of a common unlawful intention to burn a house down?

It is axiomatic that a man may commit Arson by wilfully and unlawfully burning a house to the ground without intending to or indeed causing the death of anyone. Equally it only requires one person to set fire to a house.

In the circumstances having regard to the ingredients of the offence charged and the prosecution's case against the 3 accused persons can it be said that there is 'some evidence' of a common intention to commit Murder?

Learned defence counsel on a close analysis of the interview records of the 3rd, 5th and 7th accused submits that there is no evidence that they were involved in the planning on the night in question to go and set fire to the deceased's house at Qilai; no evidence that they intended to or actively participated in any way, shape or form in the actual burning of the house; no evidence that they knew that the deceased was in the house at the time it was set alight and no evidence that they intended that Ro Baleibau Duilomaloma should be killed.

The learned prosecutor on the other hand submitted, also on a close analysis of the 3 interview records, that there was 'some evidence' that each of them knew that the plan was to burn Ro Baleibau Duilomaloma's house at Qilai; knew the apparent reason for burning his house; knew that the first accused had with him the means for setting the fire and each with that knowledge had voluntarily joined the group in accompanying the 1st accused a distance of 3 kilometres to Qilai and each had remained at the scene and witnessed the burning of the deceased's house and then returned to Nabukavesi in the group.

More specifically, the prosecution says, amongst other things, that the burning of the deceased's house at a time in the night when persons can be expected to be asleep in the house is "some evidence" from which the presence of "malice aforethought" can be inferred against the 3 accused persons.

I am mindful that questions of the meaning, weight and reliability of admissions in a confessional statement are matters properly to be left to the assessors to determine but after the most anxious consideration of the submissions of counsel and more particularly the evidence in this case I am driven to disagree with learned prosecuting counsel that there is "some evidence" of malice aforethought on the part of the 3rd, 5th and 7th accused persons.

It has never been the prosecution's case that the "common unlawful purpose" of the 6 accused persons was to commit murder or kill anyone for that matter. Rather the prosecution's case and the accused's own admissions supports an unlawful purpose of setting fire to the deceased's house at Qilai. Nor was it the prosecution's case that the fire was lit from outside the house or that the deceased was asleep in a different room in the house to that in which the fire was lit by the 1st accused.

It is also the prosecution's case that it was the first accused alone who had set the fire inside the deceased's house and indeed it was he alone who saw and knew that the deceased's was sleeping in the house at the time he set it alight. Did his actions? and Could his 'state of knowledge' be transferred or transposed to the 3 accused persons standing outside the deceased's house so as to transform their common unlawful purpose 'to burn the deceased's house' into the more serious one of 'to kill the deceased'? and more particularly clothe them with the requisite mens rea for the offence of Murder? I think not.

The headnote to Anderson and Morris (1966) 50 Cr. App. R. 216 correctly and conveniently sets out the law on the matter. It reads:

"Where two (or more) adventurers embark on a joint enterprise, each is liable for acts done in pursuance of it and also for the unusual consequences of such act, provided that they arise from the execution of the joint enterprise; but if one of the adventurers goes beyond what has been tacitly agreed as the scope of the enterprise, his co-adventurer is not liable for the consequences of that extraneous act.

Where, therefore, two (or more) persons take part in a concerted attack and one of them departs completely from the scope of the common design and forms an intent to kill or cause grievous bodily harm and uses a weapon in a manner in which the other party had no reason to suspect he would act, and so causes death, the other party is not necessarily liable to be convicted and may be entitled to an acquittal, of manslaughter."

In this case it lay within the power of the 1st accused to ensure that the house was empty when he set it on fire, and more specifically, to save the deceased if he had so intended or desired. He could have desisted in his actions or even advised the others of the presence of the deceased in the house. Needless to say none of this information or 'options' was available to the 3 accused persons standing outside the deceased's house.

In my view and for the foregoing reasons I uphold the submission of learned defence counsel and would answer the question posed by the Court of Appeal in Sisa Kalisoqo's case (op.cit) in the affirmative.

I consider that there is "no evidence" that the 3rd, 5th or 7th accused committed the offence of Murder and I record a finding of 'not guilty' against each of them.

The 3rd, 5th and 7th accused are accordingly acquitted and released from further attending this trial.

(D.V. Fatiaki)
JUDGE

At Suva,
4th November, 1993.

HAC0014D.93S