State v Turagabete [2005] FJHC 108; HAC0002J.2005 (10 May 2005)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL ACTION NO. HAC0002J OF 2005

THE STATE

V

SEMI TURAGABETE and 2 Others

Gates J.

Ms S. Shah for the State
Ms. S. Vaniqi for the 3 Accused

10th May 2005

JUDGMENT

All 3 assessors present.

[1] The assessors have given their opinions as follows:

For Accused 1, 2 to 1:-Guilty of murder.

For Accused 2, 2 to 1:-Guilty of manslaughter.

For Accused 3, 2 to 1:-Guilty of murder.

[2] I refer to my Summing up and remind myself of its directions on the law and the facts.

[3] I am satisfied beyond reasonable doubt that the State has proved the death of the victim Tumeli Vukivuki on 27 December 2004, and that he died from his injuries as the doctors and pathologist have testified. I am also satisfied that common skill and knowledge in good faith was exercised by the treating doctors.

[4] I find that the injuries were caused by unlawful acts without justification, and that they were given to the victim in the course of a serious assault whilst he was on Chetty Road. I reject any intervening or other causes such as a fall from the stairs of the Chong Pong restaurant or a motor vehicle accident whereby he might have fallen from a vehicle or been run over.

[5] I also reject the suggestion, for that was all it was, that some third parties might have come across the deceased lying immobile in the drain and given him some kicks whilst he lay there.

[6] On Inoke’s evidence, I accept that the victim was severely assaulted by the three Accused at Chetty Road, near Narain’s park, and that all 3 kicked him when he was on the ground. Both Inoke and Accused 3 accept that the assault lasted 4-5 minutes. From the injuries given to the victim’s body, it is clear the assault was a sustained one and may have lasted for the duration they suggest.

[7] I accept the account given by Accused 1 and 2 in interview of the earlier minor provocation in the form of a single punch by Tumeli to Semi. However, I find these two Accused returned to look for Tumeli having gathered the added strength of their father Accused 3, all three being determined to teach Tumeli a lesson.

[8] I found Inoke to be an honest, credible and accurate witness. He was neither deterred by Accused 3’s pre-charge approach for him to change his evidence, nor shaken by cross-examination. I accept the light was sufficient for him to see all 3 kicking the victim, and that neither hedge, bollards or hot springs steam impeded that view of Tumeli being kicked on the ground.

[9] I find that there is no evidence of any resistance by Tumeli to the assault. In his confused and very drunken state he was incapable of anything other than the earlier wild and irrational swing at Semi which precipitated this unfortunate retaliation.

[10] I also accept Aseri to be a truthful witness in telling of Accused 3’s admission to him of his involvement in the payback assault on Tumeli, and that he, Nemani, had punched him. I do not accept Accused 3’s denial of involvement in his caution interview.

[11] I find the State has succeeded in disproving provocation, an issue though available on the evidence, was nonetheless one that did not form, and no doubt correctly, part of the defence case. The provocation offered, the wild single punch by the victim, was not sufficient to rob an ordinary person of self control, nor did it result in loss of self-control by the Accused here. The Accused all three of whom were sober were in control of themselves throughout. I am satisfied of all of these matters to the standard beyond reasonable doubt.

[12] In conclusion I concur with the majority opinions of the assessors in the cases of Accused 1 and 3 and convict Accused 1 and 3 of murder.

[13] I have pondered overnight on the majority opinions of the assessors in the case of Accused 2 Jone, which were in favour of not guilty of murder, but guilty of manslaughter. I am prepared to accept that though Accused 2 was seen to kick the victim on the ground with the other Accused, that there may have been a doubt as to his intent, and as to whether he did intend to cause grievous bodily harm or was indifferent to it. I accept that doubt and therefore convict Accused 2 instead of manslaughter.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Labasa
Solicitors for all three Accused: Legal Aid Commission, Labasa