State v Wakilau - Judgment [1993] FJHC 103; Hac0014j.93s (10 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

JUDGMENT

The assessors are unanimous in their opinions that on the first count of Arson on which SAIASI LEWACA is charged he is "guilty". Having considered the evidence and my summing-up to the assessors I have no hesitation in affirming the unanimous opinion of the assessors and accordingly find Saiasi Lewaca guilty of Arson as charged.

In respect of the charge of Murder on which all 4 accused are jointly charged the assessors are unanimously of the opinion that all 4 accused persons are "not guilty" of Murder as charged. The assessors however are equally unanimous in their opinion that the first accused MANUELI WAKILAU is "guilty" of Manslaughter.

I have directed myself in terms of my summing-up to the assessors and in respect of Timoci Loqai, Ratu Josua Raqio and Saiasi Lewaca I have not the slightest hesitation in upholding the assessors unanimous opinions in respect of each of them. They are accordingly acquitted of Murder as charged.

The case against the 1st accused however has presented me with greater difficulty. In my summing-up to the assessors I dealt with the case against this accused quite distinctly and separately from that of his co-accused because the case against MANUELI WAKILAU differs significantly from the case against his co-accused.

I have considered afresh my summing-up to the assessors and the evidence against the 1st accused and I find that there can be not the slightest doubt in anyone's mind that MANUELI WAKILAU unlawfully caused the death of Ro Baleibau Duilomaloma but more is needed to be proved on a charge of Murder.

The fundamental difference between the offences of Murder and Manslaughter is to be found in the mental element of each offence which the prosecution must prove beyond a reasonable doubt.

The assessors by their unanimous opinion that the first accused is "not guilty" of Murder but "guilty" of Manslaughter have clearly demonstrated that they are unsure of the 1st accused's state of mind when he set the fire in the room in which on his own admission the deceased Ro Baleibau Duilomaloma was sleeping.

The question of the 1st accused's 'state of mind' or intent at the time he lit the fire in the deceased's house was left for the assessors to consider and determine and this they have answered in their unanimous opinion.

As I said in my summing-up to the assessors as ordinary citizens of this country they are better suited than I am in understanding the thought processes, speech patterns and behaviour of ordinary members of this society moreso an ordinary young Fijian villager of Class 4 education who also performs the traditional role of 'matanivanua'.

It is difficult to explain on what basis the gentlemen assessors could have had a reasonable doubt as what was the intention of the 1st accused when he set the fire in the deceased's house but mere difficulty of explanation does not render the assessors doubt unreasonable or their opinions perverse.

After carefully considering my summing-up and having anxiously reviewed the evidence in the case against the 1st accused MANUELI WAKILAU I can find no irresistible reason for differing from the unanimous opinions of the assessors which I accept.

Accordingly I find the 1st accused MANUELI WAKILAU "not guilty" of Murder as charged but "guilty" of Manslaughter.

The 2nd and 4th accused having being found "not guilty" of any offence are free to leave this court.

The court will now turn to consider the matter of sentence against the 1st and 6th accused.

(D.V. Fatiaki)
JUDGE

At Suva,
10th November, 1993.

HAC0014J.93S