State v Naliva - Judgment [2015] FJHC 792; HAC21.2012 (22 October 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Crim. Case No: HAC 21 of 2012

STATE

V

KAVEKINI NALIVA

Counsel: Ms. J. Fatiakifor State
Mr. V. Sharma for Accused

Hearing: 19, 20 and 21 October 2015
Summing Up: 22 October 2015
Judgment: 22 October 2015

JUDGMENT

1. The accused is charged with the following offence:
   

FIRST COUNT
Statement of Offence

MANSLAUGHTER: Contrary to section 239 (a), (b) and (c) (ii) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

KAVEKINI NALIVA on the 10th day of December, 2011 at Sigatoka in the Western Division, engaged in a conduct that caused the death of VILIKESA KALOU and was reckless as to a risk that the conduct will cause serious harm to VILIKESA KALOU.

2. After trial, the three assessors unanimously opined that the accused is guilty of manslaughter as charged. I direct myself in accordance with my summing up and the evidence adduced at the trial.
   
3. The elements the prosecution has to prove beyond reasonable doubt to find the accused guilty are:
   
   1. The accused;
      
   2. Engaged in a conduct;
      
   3. That conduct caused the death of the deceased; and
      
   4. The accused was reckless as to a risk that the conduct will cause serious harm to the deceased.
      
4. The prosecution called six witnesses to give evidence. The post mortem report and the photographs of the autopsy and the crime scene were also produced in evidence by consent. Defence called the accused and another two witnesses to give evidence.
   
5. There is no dispute that the accused punched the deceased on his face. Witness for the prosecution AlipateNatoba and InokeNavisi who had seen the accused punching the deceased said that the accused fell on the cement floor face upwards when the accused punched the deceased. Accused also in his examination in chief said that the deceased fell on the ground when he punched him and that then he also received a punch where later he found that he was punched by Alipate Nagata.
   
6. Defence witness TipolaRanadi said in evidence that when she was walking along the Sigatoka Bridge she saw the deceased lying on the cement floor of the club. She said that she then saw Alipate kicking the deceased who was lying on the floor and also smashing his head three times on the cement floor.
   
7. Defence witness JojiNavabale said that when the accused punched the deceased, he held the deceased before falling. He also said that he was the only person who was there when this punching took place. However, he had not given a statement to the police. Later he admitted that there were other people sitting on the porch three to four meters away from the scene that they could see the place where the incident happened.
   
8. Therefore, the only evidence available to say that the witness Alipate Nagata smashed the head of the deceased on the cement floor is of the defence witness TipolaRanadi. It was evident that Tipola had not told the police in her statement that she saw Alipate smashing the head of the deceased three times on the floor. Although the witness Tipola said that she also saw Alipate kicking the deceased, it was revealed that she had not told that also to the police. She also admitted that she lied in Court when she said that she told the police that she saw Alipate kicking the deceased.
   
9. On the evidence it was also revealed that the other witnesses for the prosecution who were outside the club and the balcony could have had a better view of the incident than Tipola who was walking along the bridge at night.
   
10. Therefore I find that TipolaRanadi is a totally unreliable witness and the evidence that she said she saw from the Bridge cannot be accepted. I find that she gave false evidence to save the accused who is her cousin.
    
11. I also find that the evidence of JojiNavabale also cannot be accepted, that he held the deceased when he was punched to prevent him from falling onto the floor. I am of the judgment that he is making up a story to show that the injuries to the head of the deceased were not caused by the conduct of the accused. I find that the evidence proves beyond reasonable doubt that the injuries to the deceased head were caused when he fell on the cement floor face upwards when the accused punched him.
    
12. The cause of death in the post mortem report shows that the death of the deceased was due to the injuries to the head. The accused himself said in his examination in chief that he punched the deceased and that he fell on the ground.
    
13. The evidence establishes that the accused initiated the argument with the deceased about a previous incident before he punched the deceased. The accused also admitted in his evidence that he wanted to weaken the deceased. Therefore it is well established that the accused was reckless when he punched the deceased and that he also was aware of the substantial risk that his conduct would cause serious harm to the deceased when he punched him and that his conduct caused the death of the deceased.
    
14. Hence I find the prosecution has proved all the elements of manslaughter beyond reasonable doubt against the accused as charged.
    
15. I therefore agree with the unanimous opinion of the assessors and find the accused guilty as charged.
    
16. I convict him accordingly.
    

Priyantha Fernando
Judge

At Lautoka
22 October 2015

Solicitors
Office of the Director of the Public Prosecutions for State.
Mr. V. Sharma for Accused.