State v Narayan [2004] FJHC 453; HAC0012.2004L (24 August 2004)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC0012 OF 2004L

STATE

v.

PETER JOHN RAM NARAYAN

Counsel: Mr. K. Tunidau for the State
Mr. H. Shah for the Accused

SUMMING UP

Ladies and Gentleman Assessors.

We have now arrived at the stage of the trial where I am required to sum up to............

During the course of the summing up, I officially give you directions on the law and you are bound to accept those directions regardless of what counsel may have told you the law to be.

On matters of fact, you are free to make up your minds and reach your own conclusions.

You have heard counsel from both sides. Each put to you their view of the evidence and how it should be assessed. In so doing they were doing what they were duty bound to do and their remarks were intended to assist you. However, you are not bound by what counsel have said if you do not agree with it and similarly, if I appear to be expressing any view of the fact, you must reject such view unless you yourselves are of the same opinion.

If I omit to mention evidence, which you think is important, you must take it into account just as if I stress evidence, which you think is unimportant, you must disregard the fact that I stressed.

In arriving at your conclusions, you must have regard only to the evidence you heard in this case. You must discard anything you may have heard from friends or relatives or read in the newspapers or seen on the television. You must ignore any advice or any suggestions made to you. You must also put aside any feelings of horror or revulsion or sympathy either for the deceased or the accused. You must base your opinions on your own objective analysis of the evidence.

In assessing the evidence, you are at liberty to accept the whole of the witnesses evidence or accept part of it and reject another part or reject the whole. In deciding on credibility of any witness, you are to take into account, not only what you heard but what you saw. You should take into account the manner in which he or she gave evidence –

(a) The State v Tuisawau Crim. App. No. 14 of 1990.

As was adopted by Mr. Justice Govind in The State v Mul Chand HAC0022 of 2003, the evidence referred to must be reliable and not simply any evidence no matter how inherently vague or unreliable it might be.

Section 293(1) of the Criminal Procedure Code provides that at the end of the prosecution case, the court “if it considers that there is no evidence that the accused ... committed the offence shall ... record a finding of not guilty.”

In State –v- Anthony Frederick Stephens Crim. Case No. 3 of 1997, Pain J said (at page 2):

“The narrow prescription of section 293(1) of the Criminal Procedure Code excludes the common law test enunciated in such cases as Galbraith (1981) 2 ALL ER 1060 that if the evidence is of such a tenuous character that a jury properly directed could not convict on it, the Judge should stop the case.

Accordingly, the question to be addressed at this stage of the trial is whether there is some relevant and admissible evidence in respect of each element that must be proved before the accused could be convicted of the offences alleged against him in the information.”

That was the position accepted by the Court of Appeal in Sisa Kalisoqo and Mosese Tuisawau and that is the test applied by Shameem J. in State –v- Waisale Tuivuya HAC0015 of 2002S and is the test to be applied in this case.

The Information reads as follows:

Statement of Offence

MURDER: Contrary to sections 199 and 200 of the Penal Code, Cap. 17.

Particulars of Offence

PETER JOHN RAM NARAYAN s/o John Narayan between the 13^th day of February 2004 and the 19^th day of February 2004 at Namoli Avenue, Lautoka in the Western Division murdered SAINIMILI VAKANIBAU.

The ingredients of the offence of murder are firstly that the accused did an unlawful act. Secondly, that that act caused the death of the deceased and thirdly that the accused did the act with malice aforethought. In this case the evidence is that Sainimili Cokanibau died after having been assaulted by the accused.

The first two elements are present but what of the third element, malice aforethought.

The pathologist, Dr. Gupta, her evidence is that the deceased died of asphyxia due to suffocation. Her evidence is that the injuries inflicted on the deceased by the accused with the iron bar did not cause the death of the deceased. She says there was no blood inside the trachea and therefore the asphyxiation was not directly due to blood emanating from breaking the nose and associated injuries occasioned by the assault with the iron bar.

The accused in his record of interview, Exhibit 1, says at Questions 156 to 158 that he pushed a bed sheet against the deceased mouth for about 5 minutes and she was bleeding heavily and to stop the blood going on the floor.

Counsel for the accused submits that there was no malice aforethought and that the deceased attacked the accused first that there is therefore provocation on the part of the deceased, reducing the offence to manslaughter. There is evidence that may enable the conclusion that the accused was provoked both immediately prior to the assault with the iron bar and prior thereto.

Was the assault with the iron bar and the pressing of a bed sheet onto the mouth, one act following the provocation or was the bed sheet incident, a separate act with no provocation?

In Regina v Le Brun [1992] 1 Q.B. 61 Lord Lane CJ, delivering the judgment of the court at page 68 said:

“It seems to us that where the unlawful application of force and the eventual act causing death are parts of the same sequence of events, the same transaction, the fact that there is an appreciable interval of time between the two does not serve to exonerate the defendant from liability. That is certainly so where the appellant’s subsequent actions which caused death, after the initial unlawful blow, a designed to conceal his commission of the original unlawful assault.

It would be possible to express the problem as one of causation. The original unlawful blow to the chin was a causa sine qua non of the later actus reus. It was the opening event in a series which was to culminate in death: the first link in the chain of causation, to use another metaphor. It cannot be said that the actions of the appellant in dragging the victim away with the intention of evading liability broke the chain which linked the initial blow with the death.”

The circumstances of that case were that the accused had assaulted the deceased. She became unconscious, he then sought to move her inside the house. In doing so, her head hit the ground breaking her skull resulting in death.

Counsel for the State submits that the accused is indifference to the deceased in not calling for help when she was bleeding heavily amounts to malice.

The record of interview records the accused saying that he realized she was dead and he was scared (Question 75).

I am of the opinion that ultimately, it is a question of whether the accused was provoked as defined in section 204 of the Penal Code to invoke the operation of section 203 of the Code to reduce the charge to manslaughter.

There is, in my opinion, some relevant and admissible evidence in respect of each element that must be proved. This is not a very high standard. These are issues to be properly considered by the assessors in all the circumstances of the case. I find therefore, that there is sufficient evidence to put the accused to his defence.

There is a case to answer.

JOHN CONNORS
JUDGE

At Lautoka
24 August 2004