State v Colata [2008] FJHC 87; HAC030.2007 (29 April 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 30 of 2007

STATE

v.

JEFFERY VEIBATAKI
VULIKIVAVALAGI COLATA

Hearing: 21st April 2008
Summing Up: 29th April 2008

Counsel: Ms L. Lagilevu for State
Mr. G. O’Driscoll for Accused

SUMMING UP

Madam and Gentlemen Assessors. It is my duty at this stage of the trial 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 evidence to accept or reject, which witnesses to accept as being reliable, these are matters for you to consider and decide for yourselves. So if I express my opinion on any question of fact, or if I appear to do so, it is entirely a matter for you whether you accept what I say or form your own opinions. In other words, you are the masters of fact.

Counsel have made submissions to you in their opening and closing addresses about how you should find the facts of this case. That is in accordance with their duties as counsel. However you do not have to accept what they say unless you think that what they say appeals to your own common sense and judgment. It is you who are the representatives of the community in this trial, and it is you who must make up your own minds about the facts of this case.

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 would be desirable if you 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 he is proven guilty. The burden of proving his guilt rests on the prosecution and it never shifts. The standard of proof is that of proof beyond reasonable doubt. This means that before you can find the accused guilty of the offence with which he is charged, you must be satisfied so that you are sure that he is guilty. If you have any reasonable doubt about his guilt, you must return an opinion that he is not guilty.

The Accused person, Jeffery Colata is charged with the offence of manslaughter, contrary to section 198 of the Penal Code. The Information says that on the 25th of November 2006, at Suva in the Central Division, he unlawfully killed Lepani Rokoduvunivosa.

Section 198 of the Penal Code provides that any person, who by an unlawful act or omission causes the death of another person, is guilty of the felony called manslaughter.

The offence of manslaughter has two elements which the prosecution must prove beyond reasonable doubt. They are that the accused did an unlawful act and that the act caused the death of the deceased. An unlawful act is one which is not justified by law. In this case the defence has raised the issue of self defence, so it is suggested that the accused acted in lawful self-defence. So this element is in dispute.

The element of causing death is also disputed. The law on causation is firstly that all persons are presumed to intend the natural consequences of their acts. So, for instance if I shoot at someone with a gun, it is presumed that I intend the natural consequence of the shooting, and that is death. If I assault someone, than I must at least foresee that some harm will be caused to the victim as a result of my punch. In this case you may think that when anyone punches another person, especially a drunk one, you do foresee some harm. However that is of course a matter for you.

Secondly, an accused person is responsible for the death of someone, if the substantial and operating cause of the death is the accused’s act. Let me give you an example. If I kick a man on his stomach, and he is taken to hospital but on the way there is a traffic jam and the victim dies before he gets medical attention, I am still deemed to have caused his death because it was my kick which put him in the position of requiring medical attention, and it was my kick which was the substantial and operating cause of death. Further, the law says that a person is deemed to have caused the death of another person although his act is not the immediate or sole cause of death if he inflicts bodily injury on the deceased as a result of which the deceased undergoes surgical or medical treatment which then causes the death. In this case it is irrelevant whether the treatment given was proper or mistaken as long as it was employed in good faith and with common knowledge or skill. Furthermore, a person is deemed to have caused the death of another if his act caused the deceased to do something which then caused his death. So in this case if you are satisfied beyond reasonable doubt that the substantial cause of the deceased’s death was the accused’s punch or punches, then it is irrelevant if he might have been saved with different medical treatment as long as the doctors acted in good faith and with common knowledge and skill, and it is irrelevant if the punch then led to the deceased staggering back and hitting his head on the pavement.

I now turn to the requirement that the act should be unlawful. As a matter of law I must direct you that when a man or woman acts in self-defence to protect himself or his family, he or she is not acting unlawfully. The law defines self-defence as a legal right to defend oneself and to do anything that is reasonably necessary to protect oneself from attack or injury. The law on self-defence is not a charter for revenge or retaliation. So you should think carefully about whether the deceased attacked the accused, and whether in punching the deceased the accused was doing what was necessary to protect himself or whether he was acting out of anger and retaliation. In considering whether the Accused acted reasonably, you must ask yourselves what a reasonable man in the Accused’s shoes would have done to defend himself.

There are of course inconsistent accounts of what occurred outside Barista’s Coffee Shop on the 25th of November 2006, and you must first ask yourselves which version of the evidence you accept as being reliable. Once you have done that you need to ask yourselves the following questions:

1. Did the deceased attack or assault the Accused?
   
2. Did the Accused believe that he was under attack?
   
3. Did the Accused punch the deceased in order to defend himself?
   
4. Was his assault on the deceased reasonably necessary to defend himself? Was it proportionate to what the deceased was doing to him?
   
5. In considering whether the Accused acted reasonably ask yourselves what a reasonable person in the Accused’s shoes would have done? Would he have punched the deceased in the way that he did? Could he have removed himself from the situation instead of punching him?
   

Remember in considering self-defence, that the entire incident occurred within about 20 minutes and that in a sudden incident it is not always easy to assess what is reasonable self-defence and what is not. At the spur of the moment a person may act without thinking.

However in considering self-defence, think of the deceased’s conduct and the accused’s conduct. Was the Accused acting in retaliation? Compare also the height and build of the accused to the deceased. Was it natural for the Accused to fear the deceased’s assault? These are the questions you must ask yourselves.

As a matter of law, once the Accused raises the issue of self-defence as he has done in this case, the burden is on the prosecution to prove that the Accused was not acting in self-defence and you must be satisfied of this beyond reasonable doubt. Because self-defence is a complete defence, if you believe that the Accused punched the deceased in self-defence, or if you have a reasonable doubt about it you must give your opinions that the Accused is not guilty of any offence.

Furthermore if you are satisfied beyond reasonable doubt that the Accused was not acting in self-defence, but you do have a reasonable doubt about whether his punch caused the death of the deceased, you should similarly express an opinion that the Accused is not guilty.

I now summarise the prosecution and defence cases.

The evidence

There are some facts in this case which are agreed to by both sides and you may accept them as if you had heard them led in evidence from the witness box. These facts are that the Accused, Jeffery Veibataki Colata was 21 years old in November 2006, and employed as a waiter at Barista’s Coffee Shop in Selbourne Street. The deceased Lepani Rokoduvunivosa was 27 years old when he died. At about 6pm on the 25th of November, the deceased was with three friends Avnesh Avnit Prasad, Lenaitasi Nakaka (the deceased’s brother) and one Antonio who were employees of the King’s Construction Company which at that time had a construction site on Knollys Street. The deceased and his friends were all at a work party that day and they were walking past Barista’s Coffee Shop on their way to town. It is not in dispute that they had all consumed alcohol at this party and that the deceased was drunk.

What happened next is in dispute and you must consider the evidence of the witnesses very carefully.

Avnesh Avnit Prasad was a work mate of the deceased. He said that as he, Antonio, Lepani and Lenaitasi walked on Selbourne Street, Antonio started to tackle cars in the middle of the road. He crossed the road with his friends when he heard someone calling from the balcony at Barista’s. The voice said in Fijian – "Are you people mad?" Lepani felt bad about this and crossed the road again to the coffee shop side. The Accused then came downstairs and came towards them. Antonio and Avnesh then crossed the road again leaving Lepani and Lenaitasi in front of the coffee shop. The Accused and the deceased were having a conversation. Avnesh was worried and crossed back to Barista’s. Then he saw the Accused punch Lepani twice in the face. Lepani fell backwards onto the edge of the pavement and hit his head on the edge of the pavement. Lepani was unconscious. He was taken to hospital in a taxi. He was bleeding from the mouth and nose and was making snoring sounds. Avnesh marked places on the photographs tendered (Ex.1) to show where the punches were inflicted, where the deceased fell, and where he was.

In cross-examination it was suggested that it was Lepani who was aggressive to the Accused, he said he did not know but he did not think that they were having a friendly conversation. He said that when the Accused shouted at them from the balcony, Lepani had called back saying, ‘Mind your own’, or ‘you don’t rule us’ which then led to the Accused coming downstairs. He said that Lepani was by nature a gentle person even when he was drunk, that he did not see the deceased swinging punches at the Accused.

The evidence of Darren Hussein, bar tender at Barista’s was that he was upstairs in the balcony of Barista’s with the Accused, Samuela Ledua, Gene Henry Liam and Jaswant joking and laughing with them. The 4 drunk youths then came past the coffee shop. Darren Hussein thought that they probably believed that the Barista’s group was laughing at them. They came into the Barista’s compound and started swearing at them. The Accused told them they were trespassing but they started pushing him. He tried to walk away but the deceased pushed him then threw a punch at him which the Accused dodged. The Accused had a meat pie in his hand which he was eating. The deceased slapped the meat pie out of his hand and pushed him again a few times while swearing at him. He punched the Accused, and then Accused then punched him. The deceased staggered back and tripped on the footpath. He fell backwards. He was motionless. A taxi was stopped to take him to hospital. He said that the altercation had started on the driveway of Barista’s, but that the deceased fell on the concrete footpath next to the road. Under cross-examination he said that the incident took almost an hour and that only one of the deceased’s punches landed on the Accused, on his chest.

Samuela Ledua also said that the boys on the road were swearing at them, and that the Accused went downstairs to tell them to quieten down. He said that the deceased confronted the Accused, then hit him once on the chest. He said the Accused punched the deceased once and the deceased staggered back, tried to regain his balance then fell. He was asked to describe the build of the deceased. He said he was slim and of average build.

Under cross-examination, he said that the Accused told the boys to carry on because it was a residential area, and that they responded saying "Fuck your father. Fuck you guys."

Gene Henry Liam is also an employee of Barista’s. He said that the Accused went down because he was concerned about the welfare of the four drunk men because they were stopping traffic on the road. He said that it was the victim who was causing trouble and that he and his friends were trying to come up the driveway. The Accused was pushed by the deceased in the chest. Then the deceased swung a punch at the deceased and Liam ran downstairs. He said the deceased fell down, and hit his head on the pavement.

The deceased’s brother Lenaitasi Nakaka gave evidence that the Accused started shouting and swearing at them from the balcony, calling them "fools." They crossed the road and said "Who are you talking to?" Then the Accused came down. Lenaitasi said to him "We were just enjoying our party and why do you have to swear at us?" The Accused then went to his brother, the deceased, and punched him three times on the face. All three punches landed on the deceased’s face. The deceased fell on the edge of the footpath, and rolled onto the road. He said that the deceased never assaulted the Accused, nor did he say anything to the Accused. He said the Accused was bigger and taller than the deceased.

Under cross-examination he said the altercation took place on the pavement, and never went into the compound of Barista’s.

The Accused was interviewed under caution on the 25th of November 2006, when the deceased was still alive. This interview and its contents are not disputed by the defence.

In this interview the Accused said that the deceased challenged him to a fight and he had said no because the deceased was drunk and had two friends with him. He said that the victim charged at him, pushed him and swung a punch and it was only then that the Accused punched the deceased. Then the deceased got up and came towards him again, and the Accused punched him again. The deceased then fell. He said the deceased had punched him once, and pushed him three times. He said that he agreed that if he had run away from the scene the assault would not have occurred. In his charge statement, he said that the Fijian boys were coming down Knollys Street, "making fun." The Accused went downstairs, two challenged him for a fight, and in defending himself he threw a punch at the deceased. He moved back, then charged forward again. The Accused then threw another punch to defend himself.

Also giving evidence for the prosecution was Dr. Prashant Samberkar the Consultant Forensic Pathologist at the CWM Hospital. He conducted a post mortem on the deceased on 6/12/2006. The estimated time of death of 6/12/2006 was 3am. The deceased was 25 years old, and 179 cm tall. There were no external injuries found on him. Internally, there was a single fracture of the skull on the mid-line of the occipital surface. In the brain, there was diffuse fuliminant edema, diffuse subarachnoid haemorrage, right frontal lobe necrosis and hemorrhage. The cause of death was cranio-cerebral injuries secondary to blunt impact to the head. He said that cranio-cerebral injuries meant there was a fracture at the back of the head and swelling, dead tissue and haemorrage. He said that this meant that there had been a blunt impact to the head which could be the falling of the deceased onto a hard surface and hitting the back of the head. In cross-examination he said that he had found burr holes in the skull which were from an operation on the skull to remove blood clots from the cranial cavity to reduce the pressure on the brain. He said that the injuries he found on the head of the deceased were unrelated to the operation, and that the injuries were consistent with a fall backwards on a concrete surface. He said that he must have had access to the hospital files which showed the treatment given to the deceased from the 25th of November to the 6th of December 2006. He said that a person with this sort of injury could possibly have survived, and that there have been cases of similar seriousness with brain swelling where the patient has survived. He said that the operation on the deceased’s skull would have been carried out soon after admission.

The prosecution then closed its case. You then heard me explain several options to the Accused. He could have remained silent, he could have given sworn evidence and he could have made an unsworn statement. He was given these options because he does not have to prove anything. The burden of proving his guilt rests on the prosecution at all times.

The Accused chose to give sworn evidence and you must give his evidence careful consideration. He said that on the 25th of November 2006 after he returned from the grocery shops, he saw a group of youths near the roundabout at the bottom of Knollys Street. They were rowdy and swearing. The Accused and his friends were on the balcony at Barista’s "joking around." The group looked up and saw the Accused and his workmates staring at them. They swore in Fijian saying "Mind your business" and "What are you looking at?" The Accused told them not to be silly and to carry on their way. One of them called the Accused down. He went down because he was concerned about their behavior. He believed that they were drunk and aggressive. He met them at the end of the Barista’s driveway. They had an argument. They then came onto the Barista’s compound and they seemed angry. One swore at the Accused’s mother, and called him a coward. One challenged him to a fight. The Accused refused. Another man threatened the Accused with his flip flops. Then the deceased pushed the Accused several times and swung two punches at him. One grazed his chest, the second hit his chest. The Accused was scared that he might take out a knife, he stepped back and threw a punch at him. It landed on his face. The deceased staggered back and fell backwards on the road. The Accused said he only punched him once.

In cross-examination he said that in his caution statement, when he told the police that none of the deceased’s punches landed on him, he meant, they did not land on his head. He also said that he told the police he had only punched the deceased once but in recording two punches in the interview, the police had misunderstood him. He agreed that he was taller and bigger than the deceased and that he was sober. He said that he punched the deceased in self-defence.

The defence also called the keeper of the CWM Hospital’s archives who said that the deceased’s medical records which documented all the treatment given to the deceased between the 25th of November 2006 and 6th of December 2006, were missing.

That was the case for the defence.

Analysis

The question of self-defence must be determined by you on the version of the facts that you accept as being reliable. Did the deceased attack the Accused? Or did the Accused come downstairs to challenge the deceased and his friends? Why did the Accused come downstairs? Did the deceased push the Accused several times, and punch him? If so, was it necessary for the Accused to defend himself? In punching him either once, according to his evidence and of the evidence of the other employees of Barista’s, or if you accept the evidence of the caution statement, twice, or the evidence of the deceased’s brother, three times, was this necessary self-defence? Could the Accused have avoided the situation and protected himself by moving away from the deceased? What would a reasonable person of the Accused’s build and height, faced with the deceased have done?

These are the issues you should consider. Remember that you must be satisfied beyond reasonable doubt that the Accused was not acting in self-defence if you find that he did an unlawful act in punching the deceased.

In relation to causation, was the Accused’s punch or punches, the substantial cause of death? Are you satisfied beyond reasonable doubt on Dr. Prashant’s evidence that it was the falling after the punch which caused death, and not medical treatment administered in bad faith or without proper knowledge or skill? These are the questions for you in relation to causation.

If you are satisfied beyond reasonable doubt that the Accused was not acting in reasonable self-defence and that it was his punch which caused the deceased to fall which caused head injury causing death then you may find the Accused guilty of manslaughter. If you have a reasonable doubt about either element of the offence, you must find him not guilty. Your possible opinions are Guilty or Not Guilty.

Nazhat Shameem
JUDGE

At Suva
29th April 2008