IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL CASE NO. HAC0002 OF 1995

STATE

v.

JOELI KURUVOLI
IOBE TAKALA
APIMELEKI AMARAKI

Counsel: Mr. D. McNaughtan for State
Mr. R. Chand for Accused

Hearing: 15th to 30th May, 1st and 7th June 1995
Judgment: 7th June 1995

JUDGMENT

The three accused were tried on a joint charge of Manslaughter.

The Prosecution presented its case on the basis of a joint enterprise. Each accused assaulted the deceased. It was not known who struck the blow that caused the fatal injury. They were acting in concert together and each of them was a party to the unlawful act that caused the death of the deceased.

The unanimous opinions of the assessors were that the first accused, Joeli Kuruvoli, was not guilty and the second accused, Iobe Takala, was guilty. The majority opinion was that the third accused Apimeleki Amaraki, was not guilty. 

In view of these varying opinions and in fairness to the accused, I adjourned judgment for further consideration until today and invited Counsel to make submissions if they wish to do so. However, Counsel for the accused has not advanced any legal reasons why judgment should not be given in accordance with the assessors opinions. 

Nevertheless it is appropriate for me to deal with these issues that I see capable of arising in the particular circumstances of this case. I have carefully considered these issues, the evidence given at trial and the legal directions contained in my summing up. I have also taken into account the submissions of Counsel and the opinions of the assessors. I am now in a position to deliver judgment. In view of the issues that need to be addressed, this will be much longer than a usual judgment following a criminal trial.

The court would need very cogent reasons for giving judgment that is contrary to the unanimous or majority opinions of the assessors.

It is dangerous to speculate on the reasoning for those decisions. However, it is clear in this case, that at least the majority must have either rejected the prosecution theory of a joint enterprise, or found assaults by the first and third accused not proved. Moreover, their finding of only the second accused guilty, could only be on the basis that he personally committed the offence. 

I agree that a common enterprise was not proved between the three accused. It was not proved that they were acting in concert. There was nothing to indicate that they were acting together to achieve a common objective. Their individual assaults upon the deceased were separated in time and committed for different reasons. The third accused assaulted the deceased because the deceased had punched his father. The first accused presumably assaulted the deceased because he had been punched by him. These two assaults, although independent, were relatively close in time and had similar motives. However, the assault by the second accused, was committed some appreciable time later and was prompted (according to the second accused's statement which is the only evidence of this assault) by the deceased punching Alipate.

In these circumstances there would be no reason to interfere with the unanimous and majority opinions of the assessors that the first and third accused were not guilty of the offence. I unhesitatingly reject the prosecution submissions that opinions should now be sought from the assessors on a lesser charge in respect of those accused.

Accordingly the only matter to be considered is the verdict in respect of the second accused.

In the absence of a common enterprise, the second accused alone could only be guilty as the principal offender. It would need to be proved that he struck a blow to the deceased which caused the subdural haematoma and ultimate death.

The initial question is whether a verdict can be sustained on this basis which is different from that propounded by the Prosecution at trial.

In my view the court is not restricted to a finding of guilt solely on the basis advanced by the prosecution, provided this is done without prejudice or disadvantage to the accused putting a proper defence. The court and the assessors are not bound by counsel's submissions as to how a particular incident occurred. That is a factual matter to be determined by the assessors and the court on the basis of the evidence. If there is evidence to support the assessors opinions and a direction has been given that covers a finding on the basis of that evidence, then this court would need very cogent reasons indeed to pronounce a contrary judgment.

The three accused were jointly charged but this does not preclude the conviction of one of them alone. This is clear from the case of the Director of Public Prosecutions v Merriman 1973 AC 585 cited by the Prosecutor. I refer to the speech of Lord Maurice at pp. 596-597. He said:

"For the reasons I have given I consider that if a and b are jointly charged with wounding c, it is open to the prosecution to secure a conviction of both a and b, on the ground that they acted jointly or (no matter how either a or b has pleaded) to secure a conviction of either a or b or both of them on the ground of an independent commission of the offence".

Similarly Lord Diplock said at p.607:

"I conclude therefore that whenever two or more defendants are charged in the same count of an indictment, with any offence which men can help one another to commit, it is sufficient to support a conviction against any and each of them to prove either that he himself did a physical act which is an essential ingredient of the offence charged or that he helped another defendant to do such an act and that in doing the act or in helping the other defendant to do it, he himself had the necessary criminal intent".

Clearly the second accused in this case, can alone be convicted on the joint charge. The defence has not challenged the validity of a conviction on the basis of being a principal and not as a party to a joint enterprise.

The next question is whether the assessors were given a sufficient direction to enable them to find one of the accused to be the principal offender. The summing up was given on basis of the prosecution case that this was a joint enterprise. Accordingly they were told that if no joint enterprise was proved, the accused could not be found guilty. However as I mentioned earlier, that does not mean that liability cannot be considered on some other basis.

Directions were given to the assessors that all matters of fact were for them to determine. They were advised to determine the factual matters solely on the evidence. They were specifically directed to consider the case against each accused separately. That was repeated on a number of occasions. They were also given a specific direction on the crime of manslaughter and the elements that must be proved against an offender to constitute that crime. In particular they were told "manslaughter is established if the accused intentionally does an act which is both unlawful and, objectively considered, is likely to injure or harm another person. If the act causes the death of another person, the accused is guilty of manslaughter, even though such death was inadvertent and unintended".

These directions would cover and justify an opinion of guilty of manslaughter in respect of an accused who was proved to have inflicted the blow that caused the head injury. That was an unlawful act. It caused the death of the victim by a subdural haematoma.

The question now to consider is whether there is evidence to prove that the blow by the second accused caused that head injury. In this regard the assessors were entitled to act upon the confession made by the second defendant in the narrative part of his caution statement and reject his later modifications about what happened.

The evidence clearly proves that this attack by the second accused was the last assault upon the deceased. Up until that time the deceased's conduct was unchanged. He was staggering around in a drunken condition and others in the drinking group were finding his conduct annoying. According to the statement of the second accused, after the assaults on him by the first and third accused, Jese left the drinking group and followed Paula and Sereli who had gone towards the beach. Not long afterwards Jese staggered back up to where they were sitting and punched Alipate.

Accordingly at this time Jese was still mobile and in a sufficiently oriented state to be able to deliver a punch.

The second accused then according to his statement slapped Jese on the jaw. Jese fell to the ground and the second accused kicked him on the head and stomped on his neck. This was clearly an assault of some ferocity that included kicking and stomping. Prior to this Jese had been in an active conscious state. He had been able to walk back to the group and strike one of them. This attack by the second accused left him in a comatose state. In the words used by the second accused in his statement, Jese never moved again. That was the last assault upon Jese. He remained in that spot until he was moved by Willy William. He had a serious head injury. His condition never improved and he died from that head injury.

Those facts provide ample evidence for the conclusion that this final assault by the second accused caused the serious injury to Jese that resulted in his death. The Pathologist in giving evidence said that he could not say whether one or more blows caused the subdural haematoma and suborechnoid haemorrhage that he found on post-mortem examination. He, of course had no knowledge of the sequence of events that occurred. The assessors were under a duty to determine these on the basis of the evidence. Their determination was a finding of fact that the fatal injury was caused by the final assault by the second accused. There is absolutely no reason why this court should depart from that finding.

For the sake of completeness, there is one issue that requires further consideration and elaboration. That is the absence of a specific direction to the assessors, regarding this separate basis of liability for the individual defendants. Is it open to the assessors and to the court, to find an accused guilty on a different basis than that advanced by the prosecution?

I have already referred to this matter and said that neither the assessors nor the court is bound by submissions of counsel. However there are a some specific matters that should be mentioned.

The first is that a Judge has a duty to direct the assessors in accordance with the prosecution case. Although it was not done in this case, the judge may also put an alternative basis for culpability which has not been relied upon by the prosecution. However there are a number of authorities on this topic and it is clear that such a course is unusual and should only be taken if a defendant is not thereby disadvantaged or prejudiced in his defence.

In my view the assessors in their opinions and this court in its judgment is also entitled to find an accused guilty on a different basis than advanced by the prosecution if the accused is not disadvantaged or prejudiced. It must not result in a trial and verdict that is unsatisfactory or unfair. In this present case there is clear evidence to prove the guilt of the second accused on the basis that he struck the fatal blow. Although the prosecution presented its case on the basis of a joint enterprise, I see no unfairness to the accused by this finding on a different factual basis. In particular,

1.	The factual basis for liability really remains the same. It is an allegation that the accused assaulted the deceased. This matter was fully in issue at trial. No new factual basis has been introduced.

2.	The only difference is that the State presented its case on the basis that the three accused acted in concert. The finding of the second accused alone to be guilty, would mean a determination that he alone caused the death by his separate assault. As I mentioned earlier the assessors and this court are not bound by the submissions of counsel. Liability can be found on the basis of the facts proved. In this case those facts proved the commission of the crime by the second accused.

3.	The direction to the assessors covered the legal elements that must be proved for a finding on this basis. 

4.	Cogent reasons would be needed for this court to differ from the opinions of the assessors. There are none in this case.

5.	Counsel for the defence has not submitted that there is any disadvantage or prejudice to the accused resulting from a determination of a case on a different basis from that advanced by the prosecution. Nor has it been submitted that this finding of guilt is otherwise unsafe or unsatisfactory.

For these reasons, the judgment of the Court is that the first accused, Joeli Kuruvoli and the third accused, Apimeleki Amaraki, are not guilty of the charge of manslaughter by the unlawful killing of Jese Senikuta on the 25th December, 1992 as detailed in the information. Those two accused are acquitted.

The second accused, Iobe Takala, is guilty of the charge of manslaughter by the unlawful killing of Jese Senikuta on the 25th December, 1992 detailed in the information.

JUSTICE D.B. PAIN
HAC0002J.95S