State v Tikoisuva [2004] FJHC 344; HAC0024.2003 (2 December 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0024 OF 2003

BETWEEN:

STATE

AND:

MELI TIKOISUVA
PAULIASI MATAI IMANUELI

Counsel: Mr. P. Bulamainaivalu/Ms K. Bavou – for the State
Mr. G. O’Driscoll for both Accused

Hearing: 22nd November – 2nd December, 2004
Judgment: 2nd December, 2004

JUDGMENT

The accused were charged with manslaughter. This requires the State to prove beyond reasonable doubt that there was an unlawful act and that the act caused the death of Mr. Shankar. As to that first test the evidence consisted of the accused statements to police of some blows and contradictory eye witness accounts in Court by eye witnesses.

In particular the evidence of Mr. Kalougata who is Prosecution Witness No.7. You recall he was the accused’s uncle. I prefer the evidence in Court of these eye witnesses rather than the accuseds statements to policemen. I find as a fact based on this evidence that Mr. Imanueli hit the deceased once on the chin and that Mr. Tikoisuva raided his pockets at about the same time. That is all the direct evidence can properly sustain. As for the post mortem report and evidence of Dr. Prashant I find him a reliable and careful witness in Court. I accept his testimony that many of the external injuries and some of the internal ones (some injuries to the brain and to the liver) can be explained by the collapse and fall of the deceased. The plain fact is that the police focused on the deceased’s presented injuries and in my view leapt to the conclusion that these were all caused by the accused’s assaults when they clearly were not. This had two effects.

First it skewed the investigation and police interview into an enquiry about how many blows each accused might have put upon Mr. Shankar and it had a second effect. It clearly influenced the doctor’s findings as the only history he was given before his post mortem examination was of a severe assault. This is reflected in his post mortem examination report.

The State have proved there was an unlawful act; an assault accompanied with an intent to rob. However, the assault was on this best evidence from an eye witness one punch and some pocket raiding nothing more.

I further find that the deceased had no obvious other injuries when he was face to face with Prosecution Witness 7 and thanked him for his intervention. This was moments before his fall. Accordingly, most if not all of the injuries subsequently found on the deceased were on this evidence most probably caused by Mr. Shankar’s fall.

I find the two accused acting together committed an unlawful act of assault of intent to rob against Mr. Shankar. The State have accordingly proved the first limb for manslaughter. I am not satisfied on this evidence however that the State have proved the second limb; causation.

The assault with intent to rob would have to be causative of Mr. Shankar’s death. The evidence that we have; the one punch and the pocket raiding; would have to have caused Mr. Shankar’s death beyond reasonable doubt. When expressed in this way the difficulties faced by the State in securing a conviction on the evidence in this trial in this Courtroom are thrown into sharp relief. Counsel relied primarily on the post mortem report to prove this causation.

The State in my view are not assisted by the post mortem report. The doctor’s original scant briefing that the injuries occurred as the result of an extreme assault compared with information that he was given in Court make for the real possibility that his conclusion is now unsustainable or of little relevant weight. He did not know at the time of the post mortem that there was one punch and pocket raiding only. He did not know at the time of the post mortem examination that this assault was followed by the clear evidence of an absence of injury by prosecution witness 7. That witness had rescued Mr. Shankar from the accused. Mr. Shankar was face to face with PW.7. Mr. Shankar thanked his rescuer and then Mr. Shankar travelled further down the road and only then fell to his knees and collapsed face forward into the gravel at the side of the road.

Further, the doctor did not know at the time that it took at least 35 minutes before the deceased arrived in hospital. He also did not know that throughout the majority of that 35 minutes the deceased was struggling for breath and making choking sounds but no efforts were made to revive or assist him. That is not to say that a failure to render medical treatment is an excuse for the crime of manslaughter. It is however to say that the doctor, in my view, would have been assisted by knowing that dynamic at the time he conducted the post mortem.

In addition the doctor could not explain the absence of external marks on the outside of the deceased’s body on top of or near the injuries to the internal vital organs the lungs, the liver and the heart. If the accused had caused that injury where were the associated marks, external trauma. The doctor agreed that the brain damage except for the injury on top of the head is explicable by the dynamic of the fall and collapse. There was no evidence of the deceased receiving a blow to the top of the head. The doctor accepted that many of the other injuries may have been caused in the fall.

Accordingly, the post mortem finding as to the cause of death in my view is now of questionable evidential value. In proving the second limb the State must convince me that the assault as described in the evidence caused the death. The post mortem report was prepared on an incorrect history of events. It did not explore the mechanism of death from punch through an appearance of being normal before PW.7 to a 15m walk downhill to a fall and face forwards collapse. The post mortem report does not provide a causative link between the assault and death. In my view there are other possibilities. The mechanism of death may have started by a trip and a fall or the cause of death as I said in my summing up may be on this evidence a complete mystery.

If that is the case then the State on the evidence available in this trial simply do not have sufficient material to prove that the accused's unlawful act caused Mr. Shankar’s death. Upon this evidence they cannot discharge the burden of proving beyond reasonable doubt that Mr. Tikoisuva and Mr. Imanueli by their assault to rob caused Mr. Shankar’s death.

Accordingly, in reliance on the summing up that I gave you and these brief extempore reasons that I note I am dictating immediately after hearing your opinion (and I reserve the right to correct or amend as required) I am driven to the conclusion that the standard in this Court has not been reached. The State cannot discharge the burden to convince me of proof beyond reasonable doubt that the accuseds unlawful act caused the death of Mr. Shankar. Accordingly, I enter an acquittal against the names of both accused on the information.

Gerard Winter
JUDGE

At Suva
2nd December, 2004