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State v Nasetava [2021] FJHC 413; HAC310.2019S (20 December 2021)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 310 OF 2019S


STATE


vs


LUKE NASETAVA


Counsels : Ms. S. Tivao and Ms. P. Ram for State
Mr. F. Vosarogo and Ms. J. Qica for Accused
Hearings : 17, 18, 19, 22 November, 6 and 10 December, 2021.
Judgment : 20 December, 2021.


JUDGMENT


  1. On 17 November 2021, the following information was read over and explained to the accused, in the presence of his counsels:

“Statement of Offence

MURDER: Contrary to Section 237 of the Crimes Act 2009.


Particulars of Offence

LUKE NASETAVA, on the 31st day of August 2019 at Suva in the Central Division murdered AMELIA MAFI.”


  1. Mr. Luke Nasetava said, he understood the charge and pleaded not guilty to the same. The prosecution opened her case and called seven witnesses. They were as follow:
  2. The prosecution presented the following exhibits:

Prosecution Exhibit No. 4 (b) - Accused’s pants.

(v) Prosecution Exhibit No. 5 (a) - Hand written caution interview.

Prosecution Exhibit No. 5 (b) - Typed caution interview.

(vi) Prosecution Exhibit No. 6 - Accused’s Charge Statement
(vii) Prosecution Exhibit No. 7 - SC 3031’s Photographic Booklet.
(viii) Prosecution Exhibit No. 8 - PC 5345’s Photographic Booklet
(ix) Prosecution Exhibit No. 9 (a) - Police rough Sketch Plan.

Prosecution Exhibit No. 9 (b)- Police Normal Sketch Plan.

(x) Prosecution Exhibit No. 10 - CCTV disc and footage.
  1. The parties submitted an “Amended Admitted Facts”, containing 21 paragraphs, dated 17 November 2021.
  2. At the end of the prosecution’s case, both parties agreed that the accused had a case to answer, given the evidence so far laid before the court. The court agreed with the parties and ruled accordingly. The accused was given the standard options. He chose not to make an opening. He also chose to remain silent and chose not to call any witness. The parties made their closing submissions on 6 and 10 December 2021. The court then adjourned to 20 December 2021 to deliver its judgement.
  3. The burden to prove the accused’s guilt beyond reasonable doubt still rest on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. There is no obligation on the accused to prove his innocence. He is presumed innocent until proven guilty beyond reasonable doubt in a court of law.
  4. For the accused to be found guilty of “murder”, the prosecution must prove beyond reasonable doubt, the following elements:
  5. On the first element of murder, a “wilful act” is a voluntary act by the accused. It is a feeling of strong determination to do something that he wanted to do. It is what he wanted to happen in a particular situation. This is the physical element of the offence of murder.
  6. On the second element of murder, “the wilful act must cause the death of the deceased”. This simply meant that the accused’s wilful act, substantially contributed to the death of the deceased. The accused’s wilful act must be a substantial contributor to the death of the deceased. In other words, the accused’s wilful act was a substantial cause of the deceased’s death.
  7. The third element of murder concerned its fault element. There are two fault elements for murder, as described in paragraphs 7 (iii) (a) and 7 (iii) (b). It would appear that the prosecution is running its case on the fault element in paragraph 7 (iii) (a), instead of paragraph 7 (iii) (b). That is permissible. They need only satisfy one fault element, to prove the charge of murder. They are saying the accused intended to kill his wife when he assaulted her. We will now discuss this fault element.
  8. On the first fault element, the prosecution must make the court sure that when the accused did “the wilful act”, he “intended to cause the death of the deceased”. You cannot cut open the accused’s head, to find out what his intentions were, at the time he allegedly assaulted the deceased to death. But the court can examine his conduct at the time, that is, what he said and did, and the surrounding circumstances, to infer whether or not he intended to kill the deceased, when he allegedly assaulted her. If the court finds that he intended to kill the deceased, at the material time, that would be sufficient to support the third element of murder, that is, an intention to kill.
  9. If the court was sure that all the elements of murder, as expressed above, are satisfied by the prosecution beyond a reasonable doubt, then the court will find the accused guilty as charged. If the court finds that some elements of murder, as described above, are not satisfied beyond a reasonable doubt by the prosecution, then the court will find the accused not guilty as charged. It is a matter entirely for the court.
  10. The court will now examine the prosecution’s case, in the light of the evidence it presented, as described in paragraphs 2, 3 and 4 hereof. It was the prosecution’s case that, on 31 August 2019, the accused allegedly stabbed his wife multiple times in the back, chest and head, thereby causing her serious injuries that caused her death. It was also the prosecution’s case that, when he allegedly stabbed his wife, he intended to cause her death.
  11. On the first element of murder, as described in paragraphs 7 (i) and 8 hereof, the first question becomes: Did the accused do a wilful act on 31 August 2019? It was the prosecution’s case that the accused stabbed his wife multiple times on 31 August 2019, in the afternoon. While watching the CCTV footage of the crime scene, at the material time, during the trial, it showed the accused stabbing his wife on the back and other parts of the body, multiple times. The CCTV disc and footage were tendered in evidence as Prosecution Exhibit No. 10. Furthermore, in paragraph 6 of the “Amended Admitted Facts”, dated 17 November 2021, the accused admitted stabbing the deceased multiple times on 31 August 2019. From Questions and Answers No. 132 to 144 of his police caution interview statements [Prosecution Exhibit No. 5a and 5b], the accused admitted stabbing the deceased multiple times on 31 August 2019. Mr. Semisi Matakibau (PW1) and Mr. Sakiusa Turaga (PW2) said, they saw the accused stabbing the deceased multiple times, at the material time. Looking at the totality of the evidence, the prosecution had proven beyond reasonable doubt that on 31 August 2019, the accused did a wilful act by stabbing the deceased multiple times in the back and other parts of her body.
  12. We now examine the second element of murder, as described in paragraph 7 (ii) and 9 hereof. It was the prosecution’s case that when the accused stabbed his wife multiple times on 31 August 2019, the same caused serious injuries to her, leading to her death. In other words, the accused’s wilful act of stabbing his wife, was a substantial cause of her death. PC 5345 Seru Rovia compiled 45 photos into a Booklet of Photos, which was tendered into evidence as Prosecution Exhibit No. 8. Photos No. 23 to 44 showed the stab wounds to the deceased’s body and the injuries it caused. Photo No. 23, 25, 26, 27 and 28 showed the fatal stab wounds to the deceased’s back. Doctor James Kalougivaki (PW4) did the post-mortem on the deceased on 2 September 2019 and compiled the post mortem report, which was tendered into evidence as Prosecution Exhibit No. 2. During the trial, the doctor described each of the stab wounds on the deceased. PW4 said, cut no. 1 in Photo 23 (Prosecution Exhibit No. 8) severed the major blood vessels completely. Cut No. 3, 9 and 12 penetrated the chest cavity. The doctor said, the cause of the deceased’s death was excessive blood lost due to multiple stab wounds and the underlying cause of death was sharp force trauma. The murder weapon, the steel knife, was produced during the trial as Prosecution Exhibit No.1. Mr. Matakibau (PW1) and Mr. Turaga (PW2) retrieved the knife from the accused after he used the same to stab his wife. In my view, the totality of the evidence did show that the accused stabbing the deceased at the material time, did cause serious injuries to her that caused her death. His wilful act of stabbing his wife was a substantial cause of the death of the deceased. As a result, in my view, the prosecution had proven beyond reasonable doubt the second element of murder, as described in paragraphs 7 (ii) and 9 hereof.
  13. We now move on to examine the last element of murder, as described in paragraphs 7 (iii) (a), 10 and 11 hereof. The question becomes: When the accused stabbed his wife multiple times, on 31 August 2019, did he intend to kill her? The court watched the accused stabbing his wife multiple times, at the crime scene, on 31 August 2019, via the CCTV footage [Prosecution Exhibit No. 10]. Although there was no audio sound in the CCTV footage, the accused’s actions as depicted in the CCTV footage showed that, by stabbing his wife multiple times, he obviously intended to cause her death. Furthermore, the photos of the multiple stab wounds on the deceased, as shown in Photos 23, 24, 25, 26, 27, 28, 29, 30, 31, 36, 38, 39, 42 and 43 of Prosecution Exhibit No. 8 (Booklet of Photos), proved beyond reasonable doubt that when the accused stabbed his wife multiple times, he obviously intended to kill her. Furthermore, PW1 and PW2 said, the accused ignored their pleas to him to stop stabbing the deceased at the material time. This was further evidence of his intention to kill his wife when he was stabbing her on 31 August 2019. In my view, given the above, the prosecution had proven beyond reasonable doubt that when the accused stabbed his wife multiple times at the material time, he intended to kill her.
  14. Given the matters discussed in paragraphs 14, 15 and 16 hereof, in my view, the prosecution had proven beyond reasonable doubt that, on 31 August 2019, when the accused stabbed his wife multiple times and thereby causing her death, he was guilty of the offence of murder, contrary to Section 237 of the Crimes Act 2009. However, the defence, in their written and oral closing submissions, had submitted that, on the facts of this case, the partial defence of provocation applied to reduce the murder charge to one of manslaughter. In negativing the partial defence of provocation, the burden of proof was always on the prosecution. It is the prosecution who must prove beyond reasonable doubt that the partial defence of provocation does not apply in this case.
  15. Section 242 (1), (2) and (3) of the Crimes Act 2009, reads as follows:

“... (1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as defined in sub section (2), and before there is time for the passion to cool, he or she is guilty of manslaughter only.

(2) The term “provocation” means (except as stated in this definition to the contrary) any wrongful act or insult of such a nature as to be likely when-

(a) done to an ordinary person; or
(b) done in the presence of an ordinary person to another person-

to deprive him or her of the power of self-control and to induce him or her to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered.

(3) When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as stated in subsection (2), the former is said to give to the latter provocation for an assault...”


  1. To find out whether or not, the partial defence of provocation applied in this case, we will begin our discussion with section 242 (2) of the Crimes Act 2009. Section 242 (2) reads, “...The term “provocation” means any wrongful act or insult of such a nature as to be likely when – (a) done to an ordinary person; to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed...” In Isoa Codrokadroka v The State, Criminal Petition No. CAV 7 of 2013 (20 November 2013), the Supreme Court of Fiji said as follows, “...The source of provocation can be one incident or several. To what extent a past history of abuse and provocation is relevant to explain a sudden loss of self-control depends on the facts of each case, However, accumulative provocation is in principle relevant and admissible... The starting point is that the assessors and the judge should take the accused exactly as they find him. When considering the gravity of the provocation offered, the standard of self-control by which the accused should be judged is that of a person of the accused’s age and gender exercising the ordinary powers of self-control to be expected of an ordinary person of that age and gender...ethnicity and cultural background will be relevant if the words spoken or deeds done, are aimed at the culture or ethnicity of the accused...” [paragraph 16 and 17].
  2. The facts showed the accused and the deceased started living together as man and wife since he was 26 years old and she was 27 years old. This was on or about December 2011. They lived together in a defacto relationship for the next 5 years. This obviously meant there was a lot of love and togetherness for the two. The two shared each other’s love and life. They also studied accounting together at the Fiji National University. On the 9th December 2016, the two legally married. They were now legally husband and wife. At first, the wife worked for a scrap metal dealer in Walu Bay. The accused’s brother was working at Total Fiji Limited [TFL]. Through his influence, the deceased joined TFL in 2014. The accused, at first, worked for Fiji Ships for 2 years before starting his grog business in January 2019. At first the couple were living in Suva. Then the accused went to his village and started planting yaqona in the deep forest. At times, he slept in the deep forest. The deceased, his wife, continued to work for TFL in Suva. The accused, on the other hand, operated his grog business from Lautoka. In December 2018, the deceased moved to her uncle in Nabua. The couple were now physically separated, with the accused in Lautoka and his wife in Nabua, Suva, with an uncle. They maintained contact through the phone and sometimes they visited each other. In August 2019, the couple bought a Honda Fit Shuttle for $16,500 and the same was registered in the wife’s name. The car was kept by the wife in Nabua.
  3. At times, the wife found it difficult to pay for the car fuel. The accused was sending her $50 per week to assist her pay for the fuel. In August 2019, the phone conversation between the accused and his wife were sometimes not pleasant. It appeared they were constantly arguing about their relationship. It reached a point where the wife asked the accused to find another woman for himself, and she will find another man for herself, and they to move on in life. According to the accused, he was sad, unhappy and heartbroken about his wife’s suggestion, given the fact that they were married and the times and sacrifices they had together in their lives. The accused started to suspect that his wife was having an affair in Suva, while he was operating his grog business in Lautoka. In fact, the deceased was already having an affair with another man in Suva. Ms. Litia Baleitoga (PW7) said, she had seen a man, not Luke, driving the deceased’s Honda vehicle in Suva. PW7 said, she knew the man and the deceased were having an affair, despite the fact she was married to the accused. On the morning of 31 August 2019 (Saturday), the accused and the deceased argued over the phone. The accused questioned the deceased over her whereabouts on Friday (30 August 2019). The deceasd said she was at her uncle’s place in Nabua. However, the accused, through third parties, made a check at Nabua, and found their Honda vehicle not at her uncle’s. In fact, it appeared the deceased was lying to the accused. It appeared she was with her new man. The accused then took a taxi from Lautoka to Suva to try and resolve their marital problem. He began to lose control by consuming liquor on the way.
  4. When he arrived in Suva, the accused first visited his mother at Nasinu, and then went to see his wife a Total Fiji Limited (TFL), Walu Bay. It appeared the security guards and staff at TFL allowed him to see his wife. PW2 escorted the accused to his wife’s work station at the TFL office. The wife was surprised to see her husband. The accused then asked his wife her whereabouts on Friday night (30 August 2019), as she had told him she was at home with her uncle at Nabua. Mr. Sakiusa Turaga (PW2) was right next to the two. PW2 said, the deceased was shocked to see the accused in front of her, and she appeared confused. The accused said, they had a heated argument. The accused asked her why she was lying to him, about her affair on Friday night. The accused said he was very sad and heartbroken. PW2 said, he heard Luke asking his wife for them to talk, presumably to resolve their marital problem. PW2 said, he heard the wife say she didn’t want to talk to him. PW2 said, the wife then swore at the accused telling him to “fuck off outside!” PW2 said, the wife spoke very loudly. PW2 said, he heard the accused still asking her to talk. His tone was loud, strong and angry, according to PW2. PW2 said, he later heard the deceased shout. Accused said, he picked up a knife on top of a table inside the office and stabbed his wife with the same. The ferocity of the accused’s attack on his wife, at the material time, was well recorded in the CCTV footage, as displayed in court, during the trial. The accused, after stabbing his wife multiple times, took himself to Totogo Police Station. His wife was later conveyed to CWM Hospital where she later died.
  5. What were the “wrongful acts or insults” that the deceased did to the accused, over their 8 years of life together? Were the “wrongful acts or insults” of such a nature as to be likely when done to an ordinary person, to deprive him of the power of self-control and induce him to commit an assault of the kind which the person charged committed? Was the accused stabbing the deceased multiple times done in the heat of passion caused by sudden provocation? Was there time for the passion to cool, before he stabbed the deceased multiple times on 31 August 2019? In the Oxford Advanced Learner’s Dictionary, Oxford University Press, 6th edition, 2002, the word “passion” was taken to be a noun meaning “a very strong feeling of love, hatred, anger, enthusiasm; a state of being very angry; a very strong feeling of sexual love.”
  6. In my view, in the words of Isoa Codrokadroka v The State (supra), the source of provocation in this case was not one incident, but several. It was arguable, it was accumulative provocation. One could even argue, it was “slow burn accumulative provocation”. The accused and the deceased had shared a relationship for 8 years. They first went out as boyfriend and girlfriend when he was 26 years old and she was 27 years old. They lived together as man and wife. They were in a defacto relationship for the first 5 years from on or about December 2011. For those 5 years, they obviously loved each other, shared each other’s lives and confided in each other. They voluntarily married each other in December 2016. Life was good for them. In the pursuit of their careers, the accused as a grog businessman, and the deceased as an employee of Total Fiji Limited (TFL), the couple began to reside separately. The deceased resided with her uncle in Nabua, Suva, while the accused resided in Lautoka, where his grog business was.
  7. Despite the above, the couple invested in a $16,500 Honda Fit Shuttle, which both agreed should be registered in the deceased’s name. As an employee of TFL, the deceased earned between $500 to $700 per fortnight. The accused continue to assist his wife by giving $50 per week for fuel. One could presume that the Honda Fit Shuttle was purchased to assist the deceased travel to work and to enable her to visit the accused in Lautoka. The couple maintained contact with each other through the phone. The accused revealed that he went to his village and planted yaqona in the deep forest. He said, he slept in the deep forest when planting yaqona. He was obviously determined to better his life and career as a grog businessman through hard work. Then “the wrongful act” and “insult” began to appear in the couple’s relationship when the deceased suggested to the accused for him to find another woman, while she find another man, and for them to both move on separately in life. This was so despite the fact that the two were legally married. In a society like Fiji, caught between the traditional world where marriage is sacred and the liberal world where marriage is not so sacred, the deceased’s suggestion caused sadness, and unhappiness in the accused. The accused himself said he was heartbroken. The above suggestion was conveyed to the accused by the deceased in a previous phone conversation.
  8. In fact, when the deceased made the above suggestion, according to PW7, she was already having an affair with another man. PW7 had seen the man driving the couple’s Honda Fit Shuttle in Suva. Was this a wrongful act or insult by the deceased against the accused? On 30 August 2019, a Friday, the accused was suspicious of his wife, given her earlier suggestion. He sent third parties to check on the couple’s Honda vehicle at her uncle’s house on Friday night. The car was not there. It appeared the accused’s wife was with her new man. Was this a wrongful act or insult to the accused? The couple conversed by phone early morning on 31 August 2019 on the above matter. The accused asked his wife her whereabouts on Friday night. It appeared the wife lied to the accused and appear to say she was at home with her uncle. Another wrongful act or insult? The phone conversation was heated, and the accused decided to come to Suva to resolve their problem. He came by taxi, and was consuming liquor on the way. A loss of the power of self-control.
  9. In Suva, the accused went to see his wife at work. In the words of Isoa Codrokadroka v The State (supra), the provocation to the accused, at this stage, had been several, accumulative and “slow-burn”, that is, the encouragement from the deceased to commit adultery, the deceased committing adultery, the new man driving the couple’s car and the wife lying to the husband about the affair. The accused, it appeared, went to see his wife to talk the matter over, and to resolve the matter amicably. The accused knew his wife was having an affair and she was lying to him. PW2 said, he heard the accused asking his wife for them to talk the matter over. PW2 said, he heard the wife swore at the deceased saying “fuck off outside!” in a loud voice. The accused then grabbed a knife from the table and stabbed the deceased multiple times. Looking at the evidence in its totality, in my view, the provocation the deceased gave the accused in terms of section 242 (2) of the Crimes Act 2009, were several, accumulative and “slow burn” in nature, as described above. The wrongful acts and insults were of such a nature as to be likely when done to an ordinary person in the shoes of the accused to deprive him of the power of self-control and to induce him to commit the assault of the kind which the accused was charged with. In my view, the accused killed the deceased in the heat of passion caused by sudden provocation and before there is time for his passion to cool.
  10. Given the above, I make the following finding of facts:
  11. Given the above, I find the accused not guilty of murder and acquit him accordingly. However, I find him guilty of the manslaughter of Amelia Mafi on the 31 August 2019, pursuant to section 242 (1), (2) and (3) of the Crimes Act 2009. I order so accordingly.

Salesi Temo
JUDGE


Solicitor for State : Office of the Director of Public Prosecution, Suva
Solicitor for Accused : Vosarogo Lawyers, Suva.

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