State v Bakata - Ruling no case to answer [2016] FJHC 175; HAC121.2014 (18 March 2016)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 121 OF 2014

BETWEEN :

STATE

AND :

NACANIELI VAKATAWA BAKATA

Counsel : Mr. A. Singh for the State
Accused in person

Date of Hearing : 16th and 17th of March 2016
Date of Ruling : 18th of March 2016

RULING ON NO CASE TO ANSWER

1. The accused is charged with one count of Manslaughter, contrary to Section 239 of the Crimes Decree. The Particulars of the offence are that;
   

"Nacanieli Vakatawa Bakata on the 8th day of September 2014, at Nadi in the Western Division, being reckless as to the risk that his conduct would cause serious harm, killed Ananaiasa Cavacava"

2. The Accused pleaded not guilty for this offence, hence the matter was set down for hearing on 16th and 17th of March 2016. The prosecution called four witnesses. At the conclusion of the prosecution case, the court invited the learned counsel for the prosecution and the accused person to make submissions for no case to answer pursuant to Section 231 (1) of the Criminal Procedure Decree.
   
3. Section 231 (1) of the Criminal Procedure Decree states that;
   

" When the evidence of the witnesses for the prosecution has been concluded, and after hearing (if necessary) any arguments 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 person committed the offence".

4. Justice Madigan in State v Rasaqio ( 2010) FJHC 284; HAC155.2007 ( 5 August 2010) has elaborately expounded the applicable test of no case to answer under Section 231 (1) of the Criminal Procedure Decree where his lordship found that;
   

"That test under section 231(1) is settled and is more stringent than the test under section 178 of the same Decree. The English test for no case to answer stated in the case of Galbraith (1981) 2 All ER 1060 has no application to a case in this Court. The Galbraith guidelines were expressly rejected by the Court of Appeal in Sisa Kalisoqo v R – Cr. App. No. 52 of 1984 because in England the matter is not governed by any Statute. In Kalisoqo the Court of Appeal took the view that if there is some direct or circumstantial evidence on the charged offence, then a judge cannot say there is no evidence on the proper construction of section 231(1). This view was later confirmed by the Court of Appeal in State v Mosese Tuisawau – Cr. App. 14/90.

More recently the Court of Appeal in State v George Shiu Raj and Shashi Shalendra Pal [2006] AAU0081/05 and State v Brijan Singh [2007] AAU0005 confirmed that the correct approach under [section 231(1)] is to ask whether there is some relevant and admissible evidence on each element of the charged offence, and not whether the evidence is inherently vague or incredible.

5. Accordingly, the court is required to satisfy whether there is some relevant and admissible evidence on each element of the offence as charged in the information and not whether the evidence is credible and acceptable.
   
6. Section 239 of the Crimes Decree states that;
   

"A person commits an indictable offence if—

1. The person engages in conduct; and
2. the conduct causes the death of another person; and

100. the first mentioned person-
     
     1. intends that the conduct will cause serious harm; or
     2. it reckless as to a risk that the conduct will cause serious harm to the other person.
        

7. Accordingly the main elements of the offence of manslaughter are that;
   
   1. The Accused,
   2. Engages in a conduct,
   3. That conduct causes the death of the deceased,
   4. The accused
      
      1. Intends that the conduct will cause serious harm; or
      2. It reckless as to a risk that the conduct will cause serious harm to the other person
         
8. The prosecution presented evidence that the accused threw a punch towards Mr. Mikaeale, when their argument erupted to exchanging of punches. Others including the deceased who were drinking with them, tried to stop the fight and separate them. Mr. Mikaeale in his evidence stated that the accused threw a punch towards him and the deceased was standing in front of the accused at that time. Mr. Mikaele further stated that the he did not see the accused punched the deceased. As the accused threw a punch toward him, Mr. Mikaele was pulled back by his other bother Domisio. He was also struggling and trying to get himself free from Domisio as he wanted to get the accused. Soon after the accused threw that punch, he saw the deceased had fallen down and lying n the ground.
   
9. The doctor who conducted the post mortem examination stated in her evidence that she found a swelling on the left side of the face close to the ear. According to her professional opinion that swelling might have caused by either a punch or a fall. According to the evidence of the Doctor the cause of the death is haemopericardium as a consequence of ruptured left atrium.
   
10. In view of the evidence presented by the prosecution, it appears that the case of the prosecution is mainly found on circumstantial evidence. There is no direct evidence that the accused punched the deceased and he fell down due the said punch. There is on direct evidence that the punch has caused the death of the person. The doctor only stated that the raptured left atrium could have caused as a result of a blunt trauma. She further stated the blunt trauma could have caused by falling of that person.
    
11. In view of the judicial dicta discussed above, the court at this point is not required to consider the reliability or acceptability of the direct or circumstantial evidence. It is only required to satisfy whether the prosecution has presented some relevant and admissible evidence on each elements of the offence as charged.
    
12. Having considered the evidence presented by the prosecution, it is my opinion that there is evidence touching the main elements of the offence as charged in the information. I accordingly hold that there is evidence that the accused committed this offence pursuant to Section 231 (1) of the Criminal Procedure Decree.
    

R. D. R. ThusharaRajasinghe
Judge

At Lautoka
18th of March 2016.

Solicitors : Office of the Director of Public Prosecutions for Respondent,
Accused in person