State v Haynes [2007] FJHC 92; HAC 07.2005 (19 November 2007)

IN THE HIGH OF THE FIJI ISLANDS
CRIMINAL JURISDICTION
AT LABASA

Criminal Case No. HAC 07 of 2005

THE STATE

V

GRAHAM HAYNES
LEONARD HAYNES

Ms Nancy Tikoisuva for the State
Mr. Ami Kohli for Graham Haynes
Mr. Amrit Sen for Leonard Haynes

Hearing of Submission: 16 November 2007
Date of Ruling: 19 November 2007

RULING ON SUBMISSION OF NO CASE TO ANSWER

1. In this trial, Graham Haynes and Leonard Haynes are jointly charge with one count as follows:
   

Statement of Offence

ACT WITH INTENT TO CAUSE GRIEVOUS BODILY HARM: Contrary to section 224(a) of the Penal Code Cap 17

PARTICULARS OF OFFENCE

GRAHAM HAYNES AND LEONARD HAYNES, on the 13th day of November 2004 at Savusavu in the Northern Division, with intent to cause grievous harm, unlawfully wounded CLARENCE LEPPER

2. At the close of the case for the prosecution, counsels for the two accused submitted to the court that on the evidence called so far in the trial, there was no case made out for their respective clients to be put to their defence.
   
3. Both Mr Ami Kohli for Graham Haynes and Mr Amrit Sen for Leonard Haynes made submission under section 293(1) of the Criminal Procedure Cap 21 [CPC]. This provision states:
   

" When the evidence of the witnesses for the prosecution has been concluded....the court, if it considers that here is no evidence that the accused or anyone of several accused committed the offence, shall after haring, if necessary, any arguments which the legal practitioner for the prosecution or defence may desire to submit record a finding of not guilty."

4. Mr Amrit Sen for Leonard Haynes also submitted to the court that the charge in the information was defective in not stating a material element of a charge of Act with Intent to cause Grievous Harm contrary to section 224 (a) of the Penal Code Cap 17[PC], namely that the nature of the wounding and how it is alleged the accused inflicted it to cause the grievous harm was not included in the particular of the offence. I will first deal with the submission of no case to answer first, before I consider the submission of the defective charge.
   

Principles to follow on a Submission of no case to answer

5. I need only to refer to three cases that have adequately set out the principles that should guide a court in determining submission from defence counsel of no case to answer after the close of prosecution case.
   
6. In R v. Galbraith[1981]1 AllER 1060, the English Court of Appeal said as follows:
   

"How then should the judge approach a submission of ‘No case’ – (1) if there is no evidence that the crime alleged was committed by the defendant, the case should be stopped. (2) If there is some evidence but it is tenuous in character i.e. because of the inherent weakness or vagueness or because it is inconsistent with other evidence...."

7. In The State v. Senivlati Ramuwai & 0thers, Crim Case No: HAC 33/2005, the High Court stated that " the test is whether there is evidence in respect of each ingredient of the offence...... if there is some relevant and admissible evidence, direct or circumstantial, touching all the elements of the offence, then there is prima facie case.’ This is consistent with the view of the law as expounded by the Privy Council in Haw Tau Tau v. Public Prosecutor [1982] AC 136, where it was held it is the duty of a judge to direct the acquittal of the charge where there is no relevant evidence to prove one or more essential elements of the charge.
   
8. The Court of Appeal recently endorsed this approach in State v George Shiu Raj & Anor Crim App No: AAU 81/2005.
   
9. In making my determination in this matter I will be guided by the principles set out in these cases.
   

Essential Elements of a charge under Section 224(a) of the Penal Code Cap 17

10. In this case for the prosecution to successfully prosecute the charge under section 224(a) of the Penal Code Cap 17, the following essential elements of the offence must be proven beyond reasonable doubt:
    
    1. the accused persons committed an act or acts;
       
    2. that act caused the wounding or serious harm to the complainant;
       
    3. when the accused commit the act or acts, they had the intention to cause grievous harm
       
11. In my opening remark to the assessors for this trial I did emphasise the fact that the charge against the two accused persons is one requiring proof of specific intent offence, unlike a charge preferred under section 245 of the Penal Code Cap 17 which does not require proof of specific intent to cause grievous bodily harm but where foreseeable consequences of an unlawful act committed, would be sufficient. The test for evaluating intent is subjective, but before the subjective analysis is carried out there must be some relevant and admissible evidence before the court, from which this analysis may be undertaken.
    
12. I should state clearly that at the close of the prosecution the only issue that was causing me difficulty is whether the prosecution have proven the specific intent of the charge against the accused. I am satisfied that there is prima facie evidence on essential elements of the offence in i) and ii) identified in paragraph 8 above, for the accused to be put to their defence.
    

The Charge

13. Section 224(a) of the Penal Code Cap 21, is clear in its wording: any person with intent to cause grievous harm to another, unlawfully wounds or does grievous harm to that person is guilty.
    
14. It therefore follows from the wording of the section itself that there must be evidence proving beyond reasonable doubt that the accused person at the time of wounding the other person had the intention to grievously wound or harm to that person. It would not be enough to charge a person under this provision of the Penal Code if the wounds sustained results from a punch up or scuffling.
    
15. In R v. Belfon [1976]3AllER 46 [English Court of Criminal Appeal] dealing with the specific intent requirements under similar statute, held that :
    

"it was necessary to prove that the accused had done the acts in question with intent to cause grievous bodily harm; the fact that the accused had foreseen that such harm was likely to result from his acts, or that he had been reckless whether such harm would result; did not constitute the necessary intent". [emphasis added]

Powers of the Court

16. Under section 210 of the CPC there is power in this court at the close of the evidence in support of the charge, if it appears to the court that a case is not made out against the accused person sufficiently to require him to make a defence, the court shall dismiss the case and shall forthwith acquit the accused.
    
17. This power is not unfettered. It must be exercised carefully after taking into consideration the relevant evidence and analysing them to ascertain whether it supports all the essential elements of the offence charged beyond reasonable doubt.
    

The Evidence

18. The only relevant evidence tending to the issue of intent in this trial was that of the complainant Clarence Lepper [PW1] himself.
    
19. Mr Lepper’s evidence in court is as follows: in chief he stated that he received a call from Graham Haynes[Accused 1] at approximately 6.30 pm on 13 November 2004, who told him that his sheep were on roadway and that he will shoot them. He grabbed a torch and walked towards the place where the sheep were. He saw a car coming. In the car were the two accused. They were good family friends and are well known to him. Accused 1 got out of the car and started shooting at the sheep. After that Accused 1 came to his van and butted PW1 on the head with the rifle. He fell to the ground, he felt a blow to his head and he was unconscious and he was dazed. They started {Accused 1 & 2] kicking and punching PW1. Struck with stone in the head. No reason why this happened. I had no trouble with accused. Just the animals going out. Injuries sustained by PW1 abrasions on knees, head swelling, broken ribs, finger chewed. Admitted overnight at Savusavu Hospital.
    
20. In cross-examination from Mr Kohli for Accused 1, PW1’s evidence was that he has known Accuse 1 all his life. Prior to the incident on 13 November 2004, their relations was good, there were no animosity. There were no threats or abuse from Accused 1 to PW1 at anytime prior to the incident. At 6.30pm on 13 November 2004 PW1 received a phone call from Accuse 1. Accused 1 did not abuse PW1 over the phone and there no threats to shoot PW1 or to harm him at all. PW1 confirms that the shots were not fired in his direction. He was not scared of accused 1. There was nothing in their past to indicate that he intend to harm me i.e. PW1. It was put to PW1 that the injury to his finger was caused by the butt of the rifle smashing it against the handle of the torch and not from biting by accused 1. At the time Accuse 1 was shooting in the direction of the sheep, accused 2 was standing next to PW1 close to the van belonging to the Haynes.
    
21. In cross-examination from Mr Amrit Sen for Leonard Haynes [Accused 2], PW1 evidence was that he has known accuse 2 since he was a baby. He calls him uncle. There is no animosity between them. They saw each other everyday.
    
22. Another witness called by the prosecution was a Michael Crofoot [PW4]. His evidence is largely irrelevant because when he arrived at the scene of the crime, the fight had finished. He did say that he saw the accused 2 [Leonard Haynes] drop a stone from his hand and he saw this from the headlights of his van. This evidence is severely compromised given the fact that in his statement to the Police on 13 November 2007 he said that "I did not se Graham Haynes or Leonard Haynes carry anything in their hands" Despite confirming that his recollection of the events of that evening of 13 November 2004 was the same today as it was then. This was serious inconsistency in his evidence. There was no explanation for the difference in the two statements he made covering the same issue, which is essential to the liability of the two accused in this case.
    

Assessment of the evidence

23. What is required in law is for the prosecution to adduce evidence that prove beyond reasonable doubt that when Graham Haynes and Leonard Haynes committed an act or acts that caused grievous bodily harm, they at that time intended those acts to cause grievous bodily injury .
    
24. One of the major difficulty in this trial was the fact that the charge did not specify the alleged unlawful wounding act that caused the grievous bodily harm. This meant it was unclear which unlawful acts allegedly committed by the accused persons that they say was accompanied with the specific intent to cause grievous harm.
    
25. In the view of this court the evidence adduced at the time the prosecution close its case has fallen short of proving that both accused persons had the requisite specific intention to cause grievous bodily harm on Clarence Lepper [PW1] when there was confrontation between them that night of 13 November 2004, resulting in some injuries he sustained. It was simply not enough for a charge preferred under section 224(a) of the Penal Code Cap 17 to rely on the legal principle state deem any person to have intended the consequences of his unlawful act, to prove specific intent offence.
    
26. The relevant and admissible evidence of PW1 and PW4 is consistent in one important respect, there was no ill will or pre-existing dispute between the two accused and Clarence Lepper. There is no evidence showing that the two accused had planned anything to do against Clarence Lepper. The evidence in court shows one thing: the two accused persons had returned from Savusavu town that afternoon of 13 November 2004, when they saw the sheep on the driveway or the roadway. They rang PW1 to tell him that his sheep was out again and that accused 1 was going to shoot them. If the sheep was not out, it is reasonable to assume that there would not have been any confrontation.
    
27. The evidence at the close of the prosecution case, on the issue of ‘intent" would have been sufficient if the charge was under section 245 of the Penal Code cap 17. There being a failure to prove an essential ingredient of the offence in this case, the charge is dismissed and both accused persons are acquitted.
    

Defective Charge

28. It was also submitted to this court that the charge was defective. I agree with this submission.
    
29. A charge preferred under section 224(a) of the Penal Code Cap 17 must specify in the particulars of the charge the nature of the unlawful wounding that is alleged against the accused person. This is an essential element of the charge and when it is not included in the particulars of the offence the defect is terminal: Vilikona Bukai v The State, Crim App No: 40/1999
    
30. Without the charge particularising the nature of the unlawful wounding alleged, it would not be possible to evaluate the existence or not of the specific intent to cause grievous bodily harm to the complainant.
    

ORDERS

31. Both accused Graham Haynes and Leonard Haynes I find that the prosecution have not adduced evidence beyond reasonable doubt, at the end of their case to prove an essential element of the charge jointly preferred against you both. I therefore find both of you not guilty as charge and you are acquitted.
    

Isikeli Mataitoga
JUDGE

At Labasa
19 November 2007