State v Bakata - Judgment [2016] FJHC 180; HAC121.2014 (21 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 : 15th - 18th of March 2016
Date of Closing Submissions : 18th of March 2016
Date of Summing Up : 21st of March 2016
Date of Judgment : 21st of March 2016

JUDGMENT

(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 Nanaiasa Cavacava"

(2) The Accused pealed not guilty for the offence, hence the matter was set down for hearing from 15th to 18th of March 2016. The prosecution called four witnesses during the course of the hearing. At the conclusion of the prosecution's case, the accused gave evidence on oaths. However, he did not call any other witnesses for his defence. Subsequently, the learned counsel for the prosecution and the accused person made their respective closing submissions. It was followed by the summing up of mine.

(3) The three assessors returned with an unanimous verdict of not guilty. The assessors verdict was not perverse. It was open for them to reach such conclusion on the evidence presented during the hearing.

(4) Having considered the evidence presented during the hearing, respective closing submissions of the prosecution and the defence, and the opinions of the assessors, I now proceed to pronounce my judgment as follows.

(5) Section 239 of the Crimes Decree states that;

"A person commits an indictable offence if-

(a) the person engages in conduct; and
(b) the conduct causes the death of another person; and
(c) the first-mentioned person-

• (i) intends that the conduct will cause serious harm; or
• (ii) is reckless as to a risk that the conduct will cause serious harm to the other person"
  

(6) The prosecution alleges that the accused punched the deceased while he was having a fight with his eldest brother. The deceased and few others were trying to stop them and pushing them apart. They all had been drinking beer since the morning. The incident took place around 6.pm. The deceased had fallen down and then later found that he was dead.

(7) In view of the information and the Section 239 of the Crimes Decree, the main elements that the prosecution has to prove beyond reasonable doubt are that;

• (i) The accused punched the deceased,
• (ii) The said punch has substantially and mainly caused the death of the deceased,
• (iii) The accused was aware of the substantial risk if he punched the deceased under the circumstance that was prevailed at the time of this incident took place, would cause the deceased serious harm. However, the accused still took that risk and punched the deceased without any justification.
  

(8) According to the evidence presented by the prosecution, it appears that there is no direct evidence to prove that the accused punched the deceased. However, Mr. Mikaele stated in his evidence that he saw the accused threw a punch towards him and the deceased was standing in front of the accused at that time. The deceased was trying to stop and pulled the accused away from exchanging punches. Michele was pulled back by his other brother as the accused threw the punch towards him. He did not see at where the punch was landed. He stated in his evidence that he did not see the accused punched the deceased. In a while Mikaele saw the deceased had fallen down and lying on the ground.

(9) In respect of the second elements of the offence, the prosecution has not presented direct evidence to prove that the said punch has substantially contributed the death of the deceased. Doctor Mate stated in her evidence that the cause of the death is haemopericardium as a consequence of ruptured left atrium. She further stated that the raptured atrium could have been caused by a fall. The swelling that she found on the left side of the face close to the ear could have been caused by either a punch or a fall. She further stated that the size of the swelling is smaller than a fist.

(10) Having presented the above mentioned evidence, the learned counsel for the prosecution submitted that the effect of that evidence, when considered as a whole, leads to the indisputable and inescapable conclusion that the accused person is guilty for the offence as charged. In other words, the prosecution case is founded on circumstantial evidence.

(11) Mikaele has not seen the accused punched the deceased. He only saw a punch was thrown towards him by the accused. Mikaele only said the deceased was in between them and was standing in front of the accused at that time. There was another person also standing with the deceased. They were all drunk as they all had been drinking beer for several hours and had already consumed about five carton of long neck bottles of beer. The deceased with another was trying to push the accused from fighting with his brother. Doctor Avikali stated in her evidence that the swelling she found on the face of the deceased could have caused by either a punch or by a fall. Under such circumstances, it is my opinion that there are possibility that the deceased might have fallen due to some other reason than of a punch by the accused. It is possible to form few inferences which are either concerning the innocence of the accused or generate reasonable doubt of the version that the prosecution is inviting to infer. Hence, it is my opinion that there is a reasonable doubt whether the accused has actually punched the deceased.

(12) In view of the evidence given by Doctor Avikali, there is no conclusive reason for the swelling that she found on the left side of the face of the deceased. She has not found any medical or scientific reason to conclude that the assault was another significant cause for the death of the deceased. Such finding of her was merely based on the information given by the investigator. In the absence of any conclusive evidence that the accused has punched the deceased, it is my opinion that there is a reasonable doubt whether the death of the deceased was mainly and substantially caused by the alleged punch of the accused person.

(13) Having considered the reasons discussed above, it is my considered opinion that the prosecution has failed to prove beyond reasonable doubt that the accused is guilty for the offence of manslaughter as charged in the information. Accordingly, I do not find any cogent reason to disagree with the unanimous verdict of not guilty by the assessors. Hence, I find the accused person is not guilty for the offence as charged and acquit the accused accordingly.

(14) Thirty (30) days for appeal to the Fiji Court of Appeal.

R. D. R. ThusharaRajasinghe
Judge

At Lautoka
21st of March 2016

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