State v Tugalala [2008] FJHC 387; HAC0025.2008 (28 April 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 25 of 2008

STATE

v

SALOTE TUGALALA

Hearing: 14^th April 2008
Ruling: 28^th April 2008

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

RULING ON NO CASE TO ANSWER

Counsel for the Accused raises two issues at this stage. Firstly that the Accused should not have been charged with the offence on the information because she was not charged under the Judges Rules for it, and secondly that the Accused has no case to answer on the Information.

On the first issue, counsel refers to section 27(1)(a) of the Constitution which provides that:

"Every person who is arrested or detained has the right:

(a) to be informed promptly in a language he or she understands of the reason for his or her arrest or detention and of the nature of any charge that may be brought."

Section 28(1)(b) of the Constitution provides:

"Every person charged with an offence has the right:

(b) to be given details in legible writing, in a language that he or she understands, of the nature of and reasons for the charge."

In this case, the Accused was charged on 23^rd of May 2006 by Ip Setaita Tikotani of assault occasioning actual bodily harm contrary to section 245 of the Penal Code.

In the Magistrates' Court, and on the Information, the Director of Public Prosecutions, charged the Accused with the more serious offence of act with intent to cause grievous bodily harm contrary to section 224(a) of the Penal Code. The question raised by counsel for the defence is whether the prosecution can lay a different charge before trial from the charge laid by police and whether the Director of Public Prosecutions acts in breach of the Constitution when he or she decides to lay a different charge.

Section 233(2) of the Criminal Procedure Code provides:

"In the information, the Director of Public Prosecutions or the Commissioner of the Fiji Independent Commission Against Corruption may charge the accused person with any offence either in addition to or in substitution for the offence in respect of which the accused has been transferred to the High Court for trial."

This section provides that the DPP is not obliged to proceed on the same charge laid in the lower court. Under section 114 of the Constitution, the Director of Public Prosecution has power to institute and conduct criminal proceedings and to take over criminal proceedings instituted by another person. The independence of the office is guaranteed under section 170(5) of the Constitution which states that:

"In the performance of his or her duties or functions or the exercise of his or her powers, a person to whom this Part applies is not subject to direction or control by any person or authority."

This provision guarantees independence even from the body or institution conducting the investigations. The Director is therefore empowered by both the Criminal Procedure Code and the Constitution to lay charges which are different from the charges preferred by the police under the Judges Rules.

There is no inconsistency between this power and the rights of charged or detained persons. Section 27 of the Constitution relates only to arrested or detained persons and says that they have the right to be informed promptly of the nature of any charge which "may be brought." The prosecuting authorities have a discretion to change the charges because of the use of the word "may" but once changed they should inform the accused promptly of it.

Section 28(1) says that the accused is entitled to be given details of the nature of the charge and the reasons for it. There was no breach of this section. The Accused has known of the charge facing her since May 2006. The service of the disclosure informed her of the reasons for the charge. If the DPP amended the charge at a later stage, he would not be in breach of this section provided he promptly advise the accused of the new charge before the trial. Further, because the purpose of the section 28 rights is to ensure a fair trial, disclosure of the new charge must be made with enough time to allow the accused to prepare a defence to it. What is "enough time" must depend on the circumstances of each case. In this case the Accused was in no way prejudiced by the laying of a new charge because it occurred as early as May 2006. The same charge was preferred on the information and it cannot have come as any surprise to her.

There is no breach of section 28 of the Constitution and the charge is a valid one.

Section 293

Section 293 of the Criminal Procedure Code provides that the test at this stage of the trial is whether "there is no evidence that the accused or anyone of several accused committed the offence." As has been said in a number of authorities, the question for the court at this stage of the trial is whether there is some relevant and admissible evidence implicating the accused on each element of the offence (State v. George Shiu Raj and Shashi Shalendra Pal [2006] AAU0081/05S (per Barker, Henry and Scott JJA).

The Accused is charged with an offence under section 224(a) of the Penal Code. The elements are:

1. The Accused;

2. with intent to maim, disfigure or disable any person or do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person;

3. unlawfully wounds or does any grievous harm to any person.

In this case the evidence led from the victim's mother Meresiana Vasukicakau is that the Accused punched her once, then punched her again. The second punch landed on her baby Jacob Ledua, whom she was carrying on her shoulder. The medical evidence is that the baby suffered a fractured skull resulting in hospitalization for one week. Under caution the Accused admitted two punches but said she had no intention of hitting the baby. That is the prosecution evidence led. The mother of the baby is the legal wife of the Accused's de facto partner.

The defence says that there is no evidence of an intent to cause grievous harm. The prosecution says that the assessors should decide this and that there is some evidence from which the assessors could deduce such intent. In particular, the evidence of Dr. Josese was that the blow causing injury to Jacob Ledua "was hard enough to break a bone." Dr. Sarika Chandra said that the blow causing the injury would have had to be administered with "a considerable amount of force to cause that injury."

The mens rea of the offence of a section 224(a) offence is "with intent ... to do some grievous harm." Grievous harm as defined in section 4 of the Penal Code means "any harm which amounts to maim or dangerous harm, or seriously or permanent injuries health."

This definition includes the common law definition of grievous harm as being "really serious harm."

The prosecution has referred me to a House of Lords authority to suggest that section 224 offence can also be committed "recklessly." The case Regina v. G and another [2003] UKHL 50 is an authority on the definition of "recklessness" when it is a component of the statutory definition of the offence. In that case the word "reckless" was referred to by the Criminal Damage Act (U.K.) 1971. Section 1(1) provides that a person, who without lawful excuse destroys or damages any property belonging to another intending to destroy or damage any such property or being reckless as to whether any such property would be destroyed or damaged shall be guilty of an offence." (my emphasis).

The word "reckless" does not feature in section 224. It is a component of the statutory definition of malice aforethought (for murder), and it has become a component of any offence requiring proof of "willful" conduct. Thus for instance on a charge of "wilfully and unlawfully destroying or damaging property" the word "wilfully" is now interpreted as meaning either deliberate conduct, or reckless conduct (R v. Sheppard (1981) AC 394, Epeli Ligairi v. State [2001] HAA 091/008). However, where the word "reckless" or "willful" is not used in the statutory definition of the offence, I do not accept that the courts can read it in. Reckless conduct is conduct involving knowledge of a risk of harm but going on to take the risk away. Intention is specifically intending a consequences. They are not the same. I do not accept that a section 224 offence can be committed recklessly. I do however accept that when a person assaults another and that person is holding a baby, then the intention of the accused is a matter of inference for the assessors. Whether or not the Accused in this case intended grievous harm on the evidence is a question for the assessors.

There is a case for the Accused to answer on the Information.

Furthermore, I consider that it is also open to the assessors to find the accused guilty of a lesser offence if they have a reasonable doubt about whether the Accused intended grievous harm. Section 169(2) of the Criminal Procedure Code provides that: "When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it."

What is a minor offence? It is whether it is a necessary step towards establishing the major offence to prove the commission of the lesser offence. The question is whether the lesser offence is an essential ingredient of the major offence (Springfield 53 Cr. App. R. 608, Nawaqabuli v. R [1977] 23 FLR). Thus in Alivereti Nimacere v. State [1995] AAU0019/94S a conviction under section 227 substituted for a charge under section 224, of unlawful and maliciously doing grievous harm. In Hari Prasad & Bhawar Singh v. Reginam, the word "maliciously" was held to mean intentionally, without just cause or excuse and included foresight of consequence.

Section 245 of the Penal Code creates the offence of assault occasioning actual bodily harm. I consider that it is a lesser offence in relation to section 224 of the Penal Code. It has two elements, one is committing an assault, and the second is occasioning actual bodily harm. If the assessors have a doubt about whether the Accused intended serious harm, or whether Jacob Ledua was seriously harmed, it is open to them to find her guilty of assault occasioning actual bodily harm.

Both defence and prosecution agree on the applicability of transferred malice in this case. If the Accused intended serious harm to Meresiana but instead hit the baby, the mens rea applies also to the harm done to the baby. There is no dispute about this doctrine. It also applies to the lesser offence of assault occasioning actual bodily harm.

I find therefore that there is evidence touching on the elements of the offence charged, and of the lesser offence to put the Accused to her defence. She has a case to answer.

Nazhat Shameem
JUDGE

At Suva
28^th April 2008