State v Anwar [2012] FJHC 1078; HAC49.2009 (12 May 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO : HAC 49 OF 2009

BETWEEN:

STATE
Prosecution

AND:

DIN AISAKE ANWAR
Accused

Mr F Lacanivalu with Ms S Kiran for the State
Mr T. Lee (Legal Aid Commission) for the Accused

Dates of Trial : 07 - 10 May 2012
Date of Summing-up : 11 May 2012
Date of Judgment : 11 May 2012

JUDGMENT

1. The accused stood charged for having committed the murder of one Ronald Ramesh Prasad on 05 July 2009 in Nadi, according to the information dated 30 November 2009 of the Director of Public Prosecutions (DPP). Upon a plea of 'not guilty' being recorded, the case proceeded to trial before me with three assessors.
   
2. The prosecution presented only the evidence of Sakiusa Bulivorovoro as an eye witness to the incident, which culminated in the death of the deceased.
   
3. Evidence revealed that the accused was leisure-making with his de facto wife, Olivia Smith, and two daughters, one of whom was only eight months old, at Wailoaloa Beach on 05 July 2009. They got stranded as their hired vehicle failed to return to pick them up in the evening. By then, Olivia Smith and her friend, Alini, had made friends with deceased-Ronald Ramesh, who, too, had been on the beach drinking with witness-Sakiusa and a few others. The deceased offered the accused and the family a lift and dropped them off at their residence at Nadi Back Road in Nadi in their hour of need.
   
4. The accused and his wife, Olivia Smith, had later joined the deceased-Ramesh at his residence at his request where they drank together. Evidence revealed that the witness-Sakiusa, by then, had got into a state of intimacy with Alini and was occupying a room of Ramesh's house. Evidence also revealed that there had been sexual advances made towards Olivia, too, by Ramesh, the deceased, which had irked the accused. The accused got offended by these turns of events and asked Olivia to come out of the place. This gave rise to an exchange of words between the accused and Olivia resulting in accusations being hurled at each other. The deceased-Ramesh and Sakiusa intervened at this stage. It appeared that both Sakiusa and Ramesh had, in the process, wished that the accused keep away from them to enable Ramesh to have some time with Olivia.
   
5. Thereafter, a quarrel at Ramesh's place ensued and the accused later left for his home, which was about 100 M away. It is the undisputed evidence, both of prosecution and of the defence, that the deceased came after the accused armed with a linear timber plank of sizeable length and weight, which was marked by the defence as DE-1, and entered the compound of the accused in that thick night. The deceased, thereafter, went up to the doorstep of the accused.
   
6. The accused, having been armed with a kitchen knife, which was marked as PE-7, had gone out towards the gate of the premises. It was the evidence of the accused that, as he moved towards the gate, the deceased sprang at him from hiding behind a palm tree and speared his abdomen with DE-1 resulting in a couple of injuries. The Medical Report, the form of which was originated from police upon the arrest of the accused soon after the incident, established the presence of injuries on the accused. It was the evidence of the accused that upon receipt of the attack, he fell on the ground; but, forced himself up and swung the knife that he was armed with, which hit the deceased-Ramesh causing an injury.
   
7. Evidence did not reveal any pursuit of the deceased by the accused after infliction of that injury. The Post-Mortem Report of the deceased, as confirmed by the oral testimony of the doctor in court, showed that there was only one injury on the body of the deceased, which caused the death due to excessive internal bleeding in the thoracic cavity.
   
8. The version of the accused, as testified to in court, was substantially and in material parts consistent with his charge-statement as recorded on 07 July 2009 soon after the incident. The cautioned-interview statement, too, contained consistent positions with his sworn evidence in court. The two statements, which were marked as PE4 and PE6 respectively by the prosecution, also formed part and parcel of the prosecution case. Thus, the case for the prosecution, on one hand, presented a case of murder on the basis of a malice aforethought, which was interestingly countered by the statements of the accused marked as PE4 and PE6. This scenario undoubtedly led to contradictory positions within the prosecution case itself giving rise to more than a reasonable doubt in the case against the accused. Be that as it may, evidence in the case, in any event, necessitated court to deal with the law on issues in relation to provocation and self-defence.
   
9. After trial, the assessors returned unanimous opinions that the accused was not guilty of any offence.
   
10. The assessors, properly directed on the relevant issues, were entitled to come to a conclusion that the case against the accused was not proved beyond reasonable doubt after an overall evaluation of the evidence. The assessors, accordingly, were right in their opinions that the accused was not guilty of the offence of murder as charged or any other offence on application of the principles of law on which they were summed-up.
    
11. I agree with the unanimous opinions of the assessors and hold that the accused is not guilty of the offence of murder or any other lesser offence. The accused is, accordingly, acquitted.
    

Priyantha Nāwāna
Judge
High Court
Lautoka
11 May 2012