State v Chand [2011] FJHC 396; CRC144.2007 (14 July 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 144 OF 2007

STATE

vs

1. SUREN CHAND s/o Hans Raj
2. KITIONE ROKOSUKA
   

Ms M. Fong for the State
Mr. C.B. Young for the 1st Accused
Mr. T. Terere for the 2nd Accused

Date of Hearing: 11 July 2011
Date of Ruling: 14 July 2011

RULING
[No Case to Answer]

[1] At the end of the prosecution case, counsel for the first accused submits that his client has no case to answer and should not be put to his defence.

[2] The applicant is charged, with one other, with manslaughter by an unlawful omission in that they failed at Tokoriki Island Resort to take reasonable precautions in securing a live electrical wire which caused the death of one Luke John Molnar.

[3] The test for a no case in the High Court is an extremely "low" test; it is governed by section 231(1) of the Criminal Procedure Decree which provides:

"When the evidence of the witnesses for the prosecution has been concluded, and after hearing (if necessary) any argument which the prosecution or the defence may desire to submit, the Court shall record a finding of not guilty if it considers that there is no evidence that the accused (or any one of several accused) committed the offence."

[4] The test is that there must be some relevant and admissible evidence, direct or circumstantial, touching on all the elements of the offence. Matters of credibility and weight of the evidence are not within the province of the judge at this stage of the trial.

[5] The applicant was the maintenance manager for Tokoriki Island Resort at the time of a fatal electrocution of a young volunteer temporarily staying in staff quarters at the time. Some nine months prior to the fatal accident some unauthorized wiring work was done at the resort to provide electricity to a temporary coconut leaf shelter used for staff social occasions. The installation of this unauthorized connection was not to a standard expected of a qualified electrician according to the evidence of an F.E.A. inspector and as a result of a heavy storm in August 2009, the wiring came into contact with a clothes line at the staff quarters creating a live path by which the deceased was electrocuted when hanging clothes to dry. The applicant's co-accused is the electrician who is alleged to have installed the offending electrical circuit.

[6] Mr. Young submits that at the time of the wiring his client had no responsibility for electrical supervision, which the Court accepts.

[7] He further submits that even later when the circuit remained in existence, his client as maintenance manager cannot be said to have the requisite duty of care to others because there is no evidence that he knew about it. He submits that even if a duty of care is established, that duty has not been breached.

[8] The State submits that there is evidence that the applicant as maintenance manager is responsible for electrical wiring and fittings and as such owed a duty of care to guests and staff to ensure that such fittings were safe especially if there was a risk to life and health. By not identifying and removing the unsafe connections over the ensuing 8 months, he thereby failed in that duty. They submit that the hazardous electrical wiring was not removed when the offending electrician left and it was a clear and present danger under the responsibility of the maintenance manager.

[9] As counsel for the applicant submits the duty of care must arise from either a statutory duty or a contractual duty. He says that there is no evidence from the OHS witness who only gave evidence as to the interviews he conducted. This submission is correct – the State did not lead any evidence from the witness as to the existence of a duty or its breach. The State could have adduced the requisite evidence from either the OHS witness or the F.E.A. witness, but they did not.

[10] Nor is there any evidence that the applicant knew of the existence of the illegal wiring before the fatality occurred.

[11] In the absence of direct evidence led by the prosecution that the applicant had a duty of care inherent in his post of maintenance supervisor, the only manner in which evidence could be relied on to hold him responsible would be to find that circumstantial evidence is available to imply such a duty. Circumstantial evidence is a path to a case to answer in the wording of the section 231. As the House of Lords said in Mitchell v Glasgow City [2009] 2 W.L.R. 481 at para 40 "if a defendant has played some causative part in the train of events that have led to the risk of injury, a duty to take reasonable steps to avert or lessen the risk may arise". Even if this were to be the situation that in itself would only found a duty of care on the part of the applicant and there must thereafter be evidence that he was in breach of that duty which is a far larger evidential step to take. Unfortunately in this case there is no such evidence of breach or even knowledge on the part of the applicant.

[12] It is the Court's view that evidence of breach has not been established by the State nor is there any evidence that the applicant even knew of the "risk to life and health". There has been no evidence led which could even establish circumstances suggesting a breach and it would be most unfair to the applicant to so find. As Mr. Young says it is not for the Court to say "well he should have known the risk. It happened on his watch".

[13] I find therefore that there being no evidence as to breach of duty, even if a duty to care is made out, then that represents failure of a crucial element of the offence charged, and therefore the submission of no case is made out.

[14] I find the first accused not guilty of the offence of manslaughter by omission.

Paul K. Madigan
JUDGE

At Lautoka
14 July 2011