State v Tugalala [2008] FJHC 100; HAC025.2008 (29 April 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 025 of 2008

STATE

v.

SALOTE TUGALALA

Hearing: 17th April 2008 – 29th April 2008
Summing Up: 29th April 2008

Counsel: Mr. A. Rayawa for State
Mr. S. Karavaki for Accused

SUMMING UP

Madam Assessors and Gentleman Assessor

It is now my duty to sum up to you. In doing so, I will direct you on matters of law which you must accept and act upon. On matters of fact however, which witnesses to accept as credible and reliable, what evidence to give weight to, these are matters for you to consider and decide for yourselves. So if I express my opinion on matters of fact, or if I appear to do so, you may disregard what I say and form your own opinions. In other words, you are the masters of fact.

Both counsel have made strong submissions to you about how you should find the facts of this case. That is in accordance with their duties as counsel. If you agree with what they have said, if what they have said appeals to your own judgment and common sense, you can adopt what either has said. It is you who are the representatives of the community at this trial and it is you who must decide what evidence to accept or reject. Mr. Karavaki referred to the penalty for this offence as life imprisonment. I must ask you to disregard the penalty for the offence. That is not your concern.

In arriving at your decisions, you should only consider the evidence led in this case. If you have read about this case in the media, or if you have heard about it outside this courtroom you should disregard that and must make your decisions on what you have heard led in evidence inside this courtroom.

I am not bound by your opinions but I will give them the greatest weight when I come to deliver my judgment. Your opinions need not be unanimous but it is desirable if you would agree on them.

On the question of proof, I must direct you as a matter of law that in a criminal trial, the Accused person is presumed to be innocent until she or he is proved guilty. The burden of proving the guilt of the accused rests on the prosecution and never shifts. The standard of proof is that of proof beyond reasonable doubt. This means that at the end of the case, you can only find the accused guilty if you are satisfied so that you are sure of her guilt. If you have any reasonable doubt about her guilt, you must find her not guilty.

The prosecution relies on the relationship between Salote, Filipe and Meresiana to show that Salote was motivated by jealousy in this incident. Motive is not an element of the offence but evidence of motive may help you to understand this incident better, if you accept it.

The Accused person is charged with the offence of doing an act with intent to cause grievous bodily harm, contrary to section 224(a) of the Penal Code. The charge is that on the 26th of November 2005 at Nasinu, with intention to inflict grievous harm to Jacob Ledua, she punched Jacob Ledua causing him a skull fracture.

The offence of causing grievous harm with intent has three elements which the prosecution must prove beyond reasonable doubt. They are:

1. The Accused
2. With intent to cause grievous harm to any person
3. Does grievous harm to any person.
   

In this case, it is not in dispute that the Accused was the person involved in the incident with Meresiana and Jacob Ledua. What is in dispute is that she did any act of grievous harm to Jacob Ledua or his mother, and that she acted with intent to cause grievous harm.

The words "grievous harm" simply means serious, or dangerous or permanent harm to someone.

In this case, the prosecution has proceeded either on the basis that the Accused intended grievous harm to both Meresiana and her baby, or that she intended grievous harm to Meresiana and the blow fell instead on Jacob without intending to hit him.

As a matter of law, I must direct you that if you are satisfied beyond reasonable doubt that the Accused did intend serious harm to Meresiana and punched her, then it does not matter that the punch landed on someone else. Under the doctrine of transferred malice, if she intended to do grievous harm to Meresiana then she is deemed to have intended grievous harm to Jacob.

I will give you another example of the way this doctrine works. If I go to a bar with a gun and I shoot my intended target with intent to kill him, but he evades the shot, and the bullet instead hits the bar tender who dies, I am still guilty of the murder of the bar tender even though I did not mean to shoot him. This is because I shot someone else with an intention to kill and when the bullet got an innocent bystander, I am deemed to intend his death as well. That is the doctrine of transferred malice. So the questions for you will be:

1. Did the Accused punch Meresiana?
2. Did the punch cause grievous harm to Jacob Ledua?
3. Did she intend to cause grievous harm to Jacob Ledua? or
4. Did she intend to cause grievous harm to Meresiana who avoided the punch and Jacob received it instead?
   

If you are satisfied beyond reasonable doubt that it was the Accused’s punch which caused injuries to Jacob, but are not satisfied beyond reasonable doubt that the injuries were serious or are not satisfied beyond reasonable doubt that the Accused intended serious harm, then you should go on to consider whether the accused has committed the lesser offence of assault occasioning actual bodily harm.

Assault occasioning actual bodily harm has three elements:

1. The Accused assaulted the victim;
2. And caused him some harm;
3. She intended to assault the victim.
   

For this lesser offence it is not necessary for you to consider whether the Accused caused serious harm or not, nor whether she intended serious harm. You must however be satisfied beyond reasonable doubt that she intentionally assaulted Jacob, and that she caused him some injury. Again, the doctrine of transferred malice applies if the Accused intentionally aimed the punch at Meresiana and got Jacob instead, she can still be found guilty of assaulting Jacob even if she did not mean to assault him.

I now turn to the evidence.

The evidence

The evidence in this case was led over only two days and it must still be fresh in your minds. Much of it is not in dispute. The Accused is in a de facto relationship with one Constable Filipe Puamau. Constable Puamau is legally married to Meresiana Vasukicakau and they have 4 children. The youngest is Jacob Ledua who was 2 weeks old on the 26th of November 2005. The Accused was a police officer at the time of the incident. She had a baby daughter with Constable Puamau, born in June 2005.

In November 2005 Meresiana went to hospital to have her baby. Her husband had left his wife in October 2004 but according to her was still sharing conjugal relations with her. She was living in Narere but her evidence was that on the 25th of November, her husband asked her to come to his house in Nadera to bring and cook food for their children. He was living there at Yasiyasi Road with the Accused, his children with Meresiana, and his parents. She went there on the 25th of November. It was the day of the Sukuna Bowl rugby match between the police and the army and she did not see the Accused until the next day, the 26th of November.

At 7am, Meresiana was standing outside in the porch carrying baby Jacob. The Accused came into the porch where Meresiana was standing with the landlady of the house. According to Meresiana, the Accused punched her twice, once on her forehead, and second when Meresiana was trying to sit down to evade the punch on baby Jacob’s head.

In cross-examination she said she had been told by Salote not to visit her husband’s house but that she had gone at his request to see her children. She said she had told the landlady that she and not the Accused was the legal wife of Filipe and agreed that she was not paying the rent for the house. She denied that the Accused had only knocked her on the head and said that she had punched Meresiana. She denied that it was her own head which had knocked against her baby’s head causing the injury. She said that the baby’s injury was caused by the punch administered by the Accused.

Dr. Sarika Chandra gave evidence that on the 28th of November 2005 she examined Jacob Ledua at the Accident and Emergency Department at the CWM Hospital. The baby’s mother told her that Jacob had been punched in the head by Salote Tugalala during an argument. The baby was weak, drowsy and had a twitching left arm. There was swelling in the left parietal region which is the left side of the head. She found that the injury on the head was consistent with a dull blow. In her opinion the injury could have been caused by any blow because the skull of a 2 week old baby has not been fully formed but she also said that a considerable amount of force would have been administered to cause that injury.

Under cross-examination, it was suggested that the erratic movement of a head against the baby’s head could have caused the injury and the Doctor said that this was possible. However in re-examination she said that this was not what the mother of the baby had said had happened.

Dr. Josese Vuki also treated Jacob. He was the pediatrician who examined him. He said that 1-2 days after the injury the baby had low-grade fever, poor feeding habits with jerking of the left upper arm. The baby was admitted to intensive care. He was x-rayed and a CT was conducted. The x-ray showed a linear and vertical fracture from the left parietal region to the zygona with haematoma of the left parietal bone with mild collection. The baby was neurologically stable but was in a critical condition and admitted for a week. On a sketch plan (Ex. 3) he marked the left parietal region where the injury was. He said that the injury would have been administered with enough force to break a bone.

In cross-examination he said he had never come across a baby’s skull coming into contact with an adult head but if such a thing did happen it could cause injury to a baby’s head. In re-examination he said that if the baby and mother were being punched and the punches were evaded it would be unusual to see the mother’s head hitting the baby’s head. In answer to my question he said there was no sign of permanent brain injury.

The Accused was interviewed under caution by Ip Etuate Qioniwasa who was then in the Professional Standards section of the Police Force. The interview has been tendered and you may peruse it and give it whatever weight you think fit. The Accused does not dispute its contents and you may think that they give some insight to the incident. However, she does dispute the word "punch." In it, in answer to questions 12 and 13, she said:

"I was still not having a good rest because of the function the previous night and was still hung over. While I was talking to the landlord’s wife Meresiana interfering with us and saying that I am a liar and I stole her husband. I was very upset at her remarks so I grabbed her hair and punched her on the head twice."

When asked why she punched the baby –

"To tell you the truth, I was very very annoyed and I did not know that I also hit the child. As I already said that I was still hung over and heard Meresiana making such comments I was very very upset."

She also said she never meant to hit the baby and she was sorry about it. In her charge statement she said:

"I did not mean to assault the baby. I was trying to stop Meresiana for interfering between me and my landlord. But I’m sorry for what I have done that it so happens accidentally. That is all."

That was the case for the prosecution. At the end of the prosecution case you heard me explain several options to the Accused. She could have remained silent, or made an usnworn statement or given sworn evidence. She had these options because she does not have to prove anything. The burden of proving her guilt remains on the prosecution at all times. She chose to give sworn evidence and to subject herself to cross-examination and you must consider her evidence carefully.

Her evidence was that she did not want Meresiana to come to her house and that she was angry when she saw Meresiana speaking badly of her to the landlord. She said she grabbed her hair and knocked her twice on the head and that she does not know how the baby got injured. She said that she never meant to injure the baby.

Under cross-examination by the State prosecutor she said she was angry with Meresiana but denied that she was hung over with alcohol. She said she knew that Meresiana was carrying the baby when she saw her on the porch and said that she told Ip Etuate she had only knocked on Meresiana’s head but that he had written "punched" in error. However this allegation had not been put to Ip Etuate when he gave evidence. She denied targeting both mother and baby and said that in the situation she had not been under a duty to arrest Meresiana and take her to the police station rather than to assault her.

That was the case for the defence.

Analysis

The prosecution case, and the defence case, are quite clear. The prosecution says that the Accused punched Meresiana once and baby Jacob once with intent to cause grievous harm. Whether the punch landed on Jacob intentionally or by mistake is irrelevant because it was administered with intention to cause grievous harm. Further the prosecution says that the punch did cause grievous harm because the fracture to Jacob’s head was serious and dangerous harm, especially to a 2 week old baby. The prosecution invites you to convict of the offence of act with intent to cause grievous harm because the Accused either meant grievous harm to Meresiana or to the baby. The prosecution says that because the blow was inflicted with "considerable force" then there must have been an intention to cause grievous harm.

The defence says that the Accused only knocked Meresiana on the head, and that the injury to the baby might have been caused by Meresiana knocking her head on her baby’s head. The defence says that the Accused did not intend grievous harm to either mother or baby and that the Accused did not assault the baby at all. The defence says that the Accused is not guilty of any offence.

The issues for you to decide are:

1. Did the Accused punch Meresiana once and baby Jacob once?
2. Did she do so with intent to cause grievous harm to either?
3. If the baby was punched by accident did the Accused intend grievous harm to Meresiana?
4. Was grievous harm caused? Is a fracture of the skull grievous harm?
5. Are you satisfied of these issues beyond reasonable doubt?
   

If you have a reasonable doubt about the Accused’s intent to cause serious harm, then you should go on to consider whether you should find the accused guilty of the lesser offence of assault occasioning actual bodily harm. Did the Accused assault Jacob? Did her assault of him cause him injury? Are you satisfied of this beyond reasonable doubt? Your possible opinions are:

Guilty as charged; or
Guilty of Assault Occasioning Actual Bodily Harm; or
Not Guilty.

You may now retire.

Nazhat Shameem
JUDGE

At Suva
29th April 2008