State v Turaganikeli [2010] FJHC 51; HAC006.2009S (19 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 006 OF 2009S

STATE

V

KEASI TURAGANIKELI

Counsels: Ms. S. Tagivakatini and Ms. S. Puamau for the State
Ms. S. Vaniqi for the Accused

Hearing: 15th, 16th and 17th February, 2010

Summing Up: 19th February, 2010

SUMMING UP

ROLE OF JUDGE AND ASSESSORS

1. Madam and Gentlemen Assessors, it is 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, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.

2. Both counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.

3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.

B. THE BURDEN AND STANDARD OF PROOF

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.

5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused’s guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.

6. Your decision must be based exclusively upon the evidence which you have heard in this Court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts.

C. THE INFORMATION

7. The accused, Keasi Turaganikeli, is charged with "manslaughter", contrary to sections 198 and 201 of the Penal Code, chapter 17. It was alleged that, on 18th December 2008, at Nausori in the Central Division, he unlawfully killed Tevita Moce.

D. THE MAIN ISSUE

8. The following issue arises for determination:

(i) Did Keasi Turaganikeli, on 18th December 2008, at Nausori in the Central Division, unlawfully killed Tevita Moce?

E. THE OFFENCE AND ITS ELEMENT

9. 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 has two elements which the prosecution must prove beyond reasonable doubt. They are that the accused did an unlawful act, and that act caused the death of the deceased.

10. In other words, for the accused to be found guilty of the offence of "manslaughter", the prosecution must prove beyond reasonable doubt the following elements:

(i) that the accused did an unlawful act;

(ii) that act caused the death of the deceased.

11. In this case, when the defence were making their closing address, they admit that the accused punched Tevita Moce on the chin, on 18th December 2008, and he fell to the ground, a concrete footpath [see Prosecution Exhibit No.4(a), Question 36 and Answer]. In the Agreed Facts submitted by the parties, the defence did not dispute the post-mortem finding of Doctor Gupta that "Tevita Moce died as a result of Intra-Cranial Hemorrhage and fractured skull due to trauma (physical assault)" [see paragraphs 1,2,3, 4, 14(ii) of the Agreed Facts and Prosecution Exhibit No.2]. The significance of the above is that, the defence accepts that the accused punched the deceased on 18th December 2008, wherein he fell hard on the ground, fracturing his skull, and causing injuries to his brain, resulting in his death. In other words, the defence agreed that element No.2 of the "manslaughter" offence, as described in paragraph 10(ii) abovementioned, is not disputed, in this case. They admit that the accused did a physical act (i.e. left hand punch to the deceased’s chin), which substantially caused the deceased to fall on the concrete footpath, and caused his death.

12. The only disputed issue in this case is element No. 1 of the "manslaughter" offence, that is, whether or not the accused’s single left hand punch to the deceased’ chin, was an unlawful act? An unlawful act is one which is not justified by law. To punch someone in the face, is an assault. In other words, it is not permitted in law for anyone to go around punching others in the chin, or anywhere else. The law of assault was enacted to protect citizens from the unlawful application of force to our persons.

13. However, the physical act of punching can be justified in law, if it was thrown in self-defence. It is well recognized in law that, when a man is attacked, he is entitled to defend himself. He may defend himself, by using only reasonable force, to counter the threat against him. If the force used is more than reasonable, the defence is not available to him. Self-defence in a manslaughter case is a complete defence, in that, it converts an otherwise "unlawful act" into a "lawful act".

F. THE PROSECUTION’S CASE

14. The prosecution’s case was simple. After 12am on 18th December 2008, Tevita Moce (deceased) was standing in front "Jack’s Little India" Shop in Nausori Town. He was standing on a very wide concrete footpath extending from the shop window to the N.G. Patel Road. He was extremely drunk at the time. The accused and two of his friends were returning from the "Whistling Duck" Nightclub. They have been drinking beer there since approximately 7 to 9pm the previous night.

15. According to the prosecution, the accused and his two friends were coming from Ross Street towards N.G. Patel Road, where the "Jack’s Little India" Shop is situated. They bought roti from a lady sitting near the Video Shop at the corner, and proceeded to the "Jack’s Little India" Shop, where the deceased was standing. The accused was heard saying to the deceased, "...You’re the one who spoil things for me inside..." The deceased replied, "...I am okay..." According to the prosecution, it was a minor argument.

16. The accused’s two friends were trying to stop him from punching the deceased. They failed, the accused threw a left hand punch at the deceased’s chin, he fell on the concrete floor, fractured his skull, causing injuries to his brain, wherein he later died. According to the prosecution, the accused pushed and punched the deceased. Nearby witnesses, unrelated to the accused, said, they did not hear the deceased swearing at the accused. They did not see him picking a fight with the accused. They did not see him throw two punches at the accused. According to PW4, the deceased did not pose a danger to the accused and his two friends. According to the prosecution, the accused was the aggressor, and his punch was not thrown in self-defence.

17. The prosecution is asking you, as judges of fact, not to believe the defence witnesses. According to them, the witnesses were his relatives and friends from the same village. They are here to support the accused’s version of events, with a hidden agenda. On the other hand, according to the prosecution, you must believe the evidence of Lavenia (PW2), Luisa (PW3), and Isikeli (PW4), who were not related to either the accused or deceased, and are telling the truth. That was the case for the prosecution.

G. THE ACCUSED’S CASE

18. The accused’s case is also simple. In court, he choose to remain silent. That is his right. The burden of proof is not on him. It is the prosecution who must prove his guilt beyond reasonable doubt, and nothing negative must be imputed to his choosing to exercise his right to remain silent. He doesn’t have to prove his innocence. In any event, as defence counsel said, in her closing address, the accused has already spoken through his police caution interview statement, tendered by consent, as Prosecution Exhibit No. 4(a) and 4(b).

19. The accused’s case can best be put, by quoting from the questions and answers he gave in Prosecution Exhibit No. 4(a):

Q. 30: What can you say about the above allegation?

A: I wish to say that when we came out for us to go home, I then accidentally bumped with this guy in front of the shop close to some ladies who selling roti.

Q. 31: Then what happened?

A: This same guy then started swearing at me and challenged me for a fist fight.

Q. 36: Then what you did to that Fijian guy?

A: He kept on following me, all of a sudden he then pulled my t-shirt collar and tried to punch me. I just turned around and punch him on the chin by using my left palm. He then fell on the ground.

Q. 38: How many times you punched him?

A: Only once.

20. The above statements from the accused were taken by police on 19th December 2008 - 1 day after the incident. When arrested by police officer, Esava Waitasiwai (PW5), a few minutes after the incident, he told the officer that he punched the deceased because he swore at him and wanted to fight him. When formally charged by police officer Lepani Naisua (PW11), on 20th December 2008, he said, he punched the deceased because he swore at him, challenged him to a fight, and pulled his singlet. Mosese Nateba (DW3), who was with the accused, at the material time, confirmed in his evidence, what the accused told the police in his caution interview statement [Prosecution Exhibit No. 4(a) and 4(b)] and charge statement [Prosecution Exhibit No. 3(a) and 3(b)] According to the defence, his punch was thrown in self-defence, thus he committed no unlawful act. The first ingredient of manslaughter is therefore not satisfied, and thus he is not guilty as charged. That was the case for defence.

H. ANALYSIS OF THE EVIDENCE

21. In this case, the second element of manslaughter, as discussed in paragraph 10(ii) hereof, is not disputed by the parties. It is accepted by the prosecution and defence that, the accused, on 18th December 2008 after 12.00am, punched the deceased on the chin, wherein he fell hard on a concrete footpath, fracturing his skull, which caused injuries to his brain, resulting in his death, at Nausori, in the Central Division. [See also paragraph 11 hereof]. Because of the above, and as a matter of law, you may take it, as assessors and judges of fact that, the prosecution has proven the above facts, and the second element of manslaughter, beyond a reasonable doubt.

22. The only issue left to be resolved is: whether or not the accused punch to the deceased’s chin on 18th December 2008, was thrown in self defence? Your answer to the above question will depend on whether or not you accept or reject the evidence of the witnesses called by the prosecution and defence.

23. The witnesses most favourable to the prosecution’s case were Lavenia Maranivalu (PW2); Luisa Tuvatuva (PW3) and Isikeli Rokoradrega (PW4). All these witnesses were present at the crime scene, at the material time. PW2 and PW3 were selling roti, at the time. Both were sober. PW4, worked for PWD, and had returned from a PWD work party, and was waiting in front of the Westpac, to catch a taxi home. PW2 was selling roti next to him, at the front door of Westpac. All three witnesses observed the accused, in a white T-shirt, walking along Ross Street toward N. G. Patel Road. They were drunk, and were observed buying something from PW3.

24. According to PW2, the deceased and the accused were having a minor argument. The accused appeared to be saying "the deceased hassled him from the inside". The two beside the accused were trying to stop the accused punch the deceased. They failed. The accused punched the deceased on the face, and he fell backward, hitting his head on the concrete footpath. PW2 said, it was a heavy fall and it sounded like a falling coconut.

25. When cross-examined, PW2 said the accused was trying to throw a punch at the deceased, and the other two were trying to stop him. She said, the accused was pushing the deceased. She said, she didn’t hear the deceased swear at the accused. She said, she didn’t see the deceased picked a fight with the accused. She said, she didn’t see the deceased punch the accused twice. She said, the accused pushed away his two companions who were trying to stop him, and then threw a punch at the deceased’s chin. She said, the deceased didn’t throw any punch at the accused.

26. According to PW3, who was selling roti at the corner of the video shop, she heard two youths talking. One said, "you’re the one who spoil things for me inside". She said, he was wearing a white T- Shirt. The other one replied, "I’m okay". She said, she didn’t see anything but heard someone falling down. She said, it sounded like a coconut falling from the tree. She said, she saw the victim vomiting and blood coming out of his nose.

27. When cross-examined, she said, she didn’t hear any swearing among the boys. She said, she didn’t see them punching each other. She said, she heard them talking, and later saw one lying down. She was the closest to the deceased and the accused, at the material time.

28. PW4 said, he was standing at Westpac waiting for a taxi to take him home. He said, he saw 3 drunk youths coming along Ross Street. He said, the deceased was standing alone beside the shop glass of "Jack’s Little India" shop. He said, he saw the person wearing a white T-Shirt throw a punch at the deceased, who fell down. He said, it sounded like a heavy object hitting the floor. He said, the three didn’t care for the man on the concrete floor, and they ran to the bus stand.

29. When cross-examined, he said he saw the deceased standing alone at "Jack’s Little India" shop. He said, the victim didn’t try to punch the accused twice. He said, he didn’t push the accused away. He also said, he didn’t hear any swearing between the deceased, the accused and his two friends. He said, the accused and the two boys came together as a group. He said, he didn’t see the deceased posed a threat to the accused and his two friends. He said, he smelt alcohol on the victim, when he went to assist him.

30. As you can see, PW2, PW3 and PW4 were unrelated to the accused, his friends and the deceased, in this matter. They were ordinary citizens going about their daily business early that morning on 18th December 2008. PW2 and PW3 were obviously selling roti to make ends meet for their families. PW4, a PWD worker of 29 years, was returning to his family, after a work party.

31. As for the defence, the most favourable witness for them, was the accused himself. Although he remained silent in court, when explained the three options open to him after the prosecution’s case, he had in fact explained his side of the coin to; first; the arresting police officer (PW5), second, the caution interview police officer (PW10), and third, the charging police officer (PW11). Through these police witnesses, his story was consistent throughout. He said, the deceased swore at him, and challenged him to a fist fight. He said, he followed him, pulled his T-Shirt, and tried to punch him. He said, he turned around and punched the deceased, who fell down to the ground. He called three witnesses, that is, Eparama Valelevu (DW1), Rameluse Druma (DW2) and Mosese Nateba (DW3).

32. DW2 said, he, the accused and 10 others were drinking liquor at the Whistling Duck Nightclub since 7pm, 17the December 2008. He said, the deceased was there. He said, the accused and the deceased had a disagreement over a girl, wherein the deceased was taken out of the nightclub. DW3 merely repeated what DW2 said. Both are closely related to the accused.

33. The only witness of some importance to the defence is DW3. He was with the accused, at the material time. He confirmed what the accused told the police, in that the deceased swore at them, and challenged the accused to a fight. He said, the deceased threw 2 punches at the accused. Yet the accused said the deceased tried to punch him [see paragraph 19 hereof, Question 36 and Answer]. He said, he didn’t see the accused punched the deceased. He only saw the deceased lying on the concrete footpath. When cross-examined, he admitted he lied to the police about seeing the accused punched the deceased’s face. DW3 admitted he was drunk at the material time and is a good friend of the accused.

34. If you think Keasi was or may have been acting in lawful self-defence, he is entitled to be found not guilty. Because the prosecution must prove Keasi’s guilt, it is for the prosecution to prove that Keasi was not acting in lawful self-defence, not for Keasi to establish that he was, and you must consider the matter of self-defence in the light of the situation which Keasi honestly believed he faced.

35. You must first ask whether Keasi honestly believe that it was necessary to use force to defend himself at all. This would not be the case if Keasi was the aggressor, or acted in revenge or knew that he did not need to resort to violence. If you are sure that Keasi did not honestly believe that it was necessary to use force to defend himself, he cannot have been acting in lawful self-defence, and you need consider this matter no further. But what if you think that Keasi did honestly believe or may honestly believe that it was necessary to use force to defend himself.

36. You must then decide whether the type and amount of force Keasi used was reasonable. Obviously, a person who is under attack may react on the spur of the moment, and he cannot be expected to work out exactly how much force he needs to use to defend himself. On the other hand, if he goes over the top and uses force out of all proportion to the anticipated attack on him, or more force than is really necessary to defend himself, the force used would not be reasonable. So you must take into account both the nature of the attack on Keasi, and what he then did. From the prosecution’s view point, the deceased was standing alone at the "Jack’s Little India" shop front. He was very drunk. He didn’t swear at the accused and his friends. He didn’t pick a fight with the accused. He threw no punches at the accused or his friends. He didn’t push the accused and his friends. He was no threat to the accused and his friends. Was Keasi’s punch to the deceased’s chin essential to defend himself? From the defence viewpoint, the deceased was swearing at the accused, and challenging him to a fist fight. He pulled his T-Shirt collar and tried to punch him. The deceased was very drunk. The accused turned around and punched the deceased on the chin. He fell backwards onto the concrete footpath, fracturing his skull, which led to brain damage, and death. Was Keasi’s punch essential to defend himself?

37. If you are sure that the force Keasi used was unreasonable, then Keasi cannot have been acting in lawful self-defence; but if you think that the force Keasi used was or may have been reasonable, he is entitled to be acquitted.

I. SUMMARY

38. In summary, the resolution to this case, in reality, depends on whether or not you, as assessors and judges of fact, accept that when the accused punched the deceased on the chin on 18th December 2008, at Nausori Town, he was doing so in self-defence. You must remember, the burden to prove the accused’s guilt beyond reasonable doubt lies on the prosecution, throughout the trial. It is for the prosecution to prove beyond reasonable that the defence of self-defence is not available to the accused. The accused is not required to prove his innocence. But nevertheless, he may introduce evidence to create a reasonable doubt, and if so, well and good for him.

39. You have heard the prosecution and defence witnesses. You have observed their demeanours in court and how they gave evidence, how they answered questions and how they withstood cross-examination – were they forthright, evasive or argumentative? How did they dress to court and how did they behave generally? Given the above, my directions on the law, your life experiences and common sense, you should be able to decide which evidence are reliable and to be accepted, and which evidence are unreliable and to be rejected. You are entitled to accept parts of a witness’s evidence, and reject others, or you may accept his whole evidence. You are the judges of fact.

40. If you accept the prosecution version of events that the accused was not acting in self-defence when he punched the deceased on the chin on 18th December 2008, and you are satisfied beyond reasonable doubt and are sure of the accused’s guilt, you must find him guilty as charged. On the other hand, if you don’t accept the prosecution’s version of events, and you are not satisfied beyond reasonable doubt and not sure of the accused’s guilt, you must find him not guilty as charged.

41. Your possible opinions are:

(1) Guilty or Not Guilty of Manslaughter.

You may retire to deliberate. When you have made your decisions, please advise the clerks, so we can reconvene to receive them.

Salesi Temo
Acting Judge

AT SUVA
19th February, 2010