State v Prasad [2022] FJHC 83; HAC385.2019 (2 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 385 of 2019

STATE

vs.

RAVIN PRASAD

Counsel: Ms. S. Tivao with Ms. A. Devi for the State
Mr. P. Kumar for Accused

Date of Hearing: 21^st and 22^nd February 2022
Date of Closing Submission: 23^rd February 2022
Date of Judgment: 02^nd March 2022

JUDGMENT

1. The Accused is charged with one count of Attempted Murder, contrary to Sections 44 (1) and 237 of the Crimes Act. The particulars of the offence are that:
   

Statement of Offence

ATTEMPTED MURDER: Contrary to Sections 44 (1) and 237 of the Crimes Act 2009.

Particulars of Offence

RAVIN PRASAD on 22 November 2019, at Caubati, in the Central Division, attempted to cause the death of ANA SIFECI SAVUI by strangling her neck with his hands and suffocating her with a pillow, and at the time RAVIN PRASAD intended to cause ANA SIFECI SAVUI’S death by his conduct.

2. Consequent to the plea of not guilty entered by the Accused, the matter proceeded to the hearing. The hearing commenced on the 21^st of February 2022 and concluded on the 22^nd of February 2022. The Prosecution adduced the evidence of three witnesses, and the Accused and one witness gave evidence for the Defence. Subsequent to that, the learned Counsel for the Prosecution and the Defence filed their respective written submissions. On the 23^rd of February 2022, the Court heard the oral submissions of the parties. Having carefully perused the evidence adduced in the hearing and the respective oral and written submissions of the parties, I now proceed to pronounce my judgment as follows.
   
3. The Prosecution alleges the Accused, on the 22nd of November 2019, had attempted to murder the Complainant by strangling her neck with his hands and then suffocating her with a pillow. The Prosecution called three witnesses, including the Complainant, to prove the charge against the Accused. The Complainant and the Accused lived together in a flat rented by the Accused. The Complainant has been married before. She has four children from her previous marriage. On the 22^nd of November 2019, the Complainant attended a function of her children, where she had also met her ex-husband. Upon returning from the function, she went to Wishbone with the Accused and two other friends to consume alcohol. Once they returned home, the Accused had asked her to join him to drink rum, but she had refused it, saying she needed coca-cola to drink rum with. She had then gone to sleep in the bedroom. She was suddenly awakened when she received a punch on her face. She found the Accused was lying on her stomach, punching her mouth, and then strangling her neck with his hands. She tried to call for help, but at the same time, the Accused took a pillow and covered her mouth. When he covered her face with the pillow, the accused stopped strangling the Complainant.
   
4. In her evidence, the Complainant explained that it was difficult for her to breathe when the Accused strangled her neck. She tried to stretch out her hand and pinch and scratch the stomach of the Accused. The Complainant had moved around her head, trying to breathe.
   
5. The Accused had strangled the neck of the Complainant for about 3 to 4 minutes, and he then covered the face of the Complainant with the pillow for about 3 to 4 minutes. The Accused had fallen when the Complainant had pinched and scratched him. The Complainant then managed to escape and ran outside the house. The Accused also chased after her, but the landlord had intervened, asking the Accused to stop chasing her after. The Complainant found a private car when she went to the road and got into it. She then went and reported the matter to the Police.
   
6. The Accused denies this allegation. He said such an incident of strangling and suffocating had never happened. According to the Accused, they started to drink rum at the passage of their house after returning home from Wishbone. After a while, the Complainant got emotional about her children and ex-husband and said that she wanted to go back to them. An argument started over that issue, leading to a physical exchange of punches. The Complainant began to assault the Accused, claiming that she wanted to return to her children. The Accused had asked her to wait till she was settled as she was drunk at that time. The Accused had punched her several times to scare and stop her from hitting him. He then went to his mother’s place. His mother paid his taxi fare when he reached his mother’s home.
   
7. According to the particulars of the offence, as stated in the information, the Prosecution alleges that the Accused had attempted to murder the Complainant by strangling her neck and then suffocating her with a pillow. However, the Prosecution adduced evidence that the Accused assaulted the Complainant on her face several times, injuring her lips and lower eyelids which is not an incident alleged in the information. The learned Counsel for the Prosecution stated that the purpose of eliciting the evidence of the assault is to prove that the Complainant was bleeding when the Accused put the pillow on her face to suffocate her.
   
8. I first take my attention to determine whether the Court could consider such evidence that discloses the commissi an offence that is not chat charged in the information. The High Court of Australia in Pfennig v R [1995] HCA 7; (1994-95) 127 ALR 99) has discussed the purpose and application of such evidence, where Mason CJ held that:
   

“There is no one term which satisfactorily describes evidence which is received notwithstanding that it discloses the commission of offences other than those with which the accused is charged. It is always propensity evidence but it may be propensity evidence which falls within the category of similar fact evidence, relationship evidence or identity evidence. Those categories are not exhaustive and are not necessarily mutually exclusive. The term “similar fact” evidence is often used in a general but inaccurate sense.”

9. Accordingly, the evidence regarding the assault is considered evidence of "similar facts". Pfennig v R (supra) has discussed the admissibility of such evidence. Having discussed the principles adopted in Makin v Attorney-General (N.S.W.) (1894) A.C. at 65, Noor Mohamed v R (1946) AC 182, R v Boardman (1975) AC 421, and Director of Public Prosecution v P (1991) 2 AC 447, the High Court of Australia in Pfennig v R (supra) found the applicable principle to determine the admissibility of such similar fact evidence is to determine whether the prejudice to the accused is outweighed the probative force of the evidence. The Fiji Court of Appeal in Senikarawa v State [2006] F.J.C.A. 25; AAU0005.2004S (24 March 2006) has adopted the guidelines expounded in Pfennig v R (supra).
   
10. In this case, the Prosecution adduced the evidence of the assault in order to establish that the Complainant was bleeding from her lips when the Accused covered her face with a pillow. The Prosecution then tendered a pillow with a few dark colour stains in evidence. Considering the above guidelines, I admit this evidence disclosing an uncharged offence of assault as it has a probative value in respect of the offence of Attempted Murder as charged.
    
11. The Accused is presumed to be innocent until he is proven guilty. The presumption of innocence is in force until turt finds him guilty of thef the offence. The burden of proof of the charge against the accused is on the Prosecution. The standard of proof in a criminal trial is "proof beyond a reasonable doubt." It means that the Court must be satisfied that the accused is guilty of the offence.
    
12. The accused opted to give evidence, denying this allegation. If the Court satisfies the explanation offered by the Accused may reasonably be true, although the Court is not convinced that it is true (vide; Abramovitch (1914) 84 L.J.K.B. 397), the Accused has successfully created a reasonable doubt about the Prosecution's case.
    
13. Every offence contains two main elements. The first is the physical elements, whians the Accused have committed a crime. Accordingly, the Prhe Prosecution has to first establish beyond reasonable doubt that the Accused had attempted to murder the Complainant by strangling her neck with his hands and then suffocating her with a pillow. The second element is the fault element. The Prosecution then needs to prove that the Accused had committed the alleged physical element with the necessary fault element to complete the commission of the offence.
    
14. The main elements of the offence of Attempted Murder are that:

a) The Accused,
b) Engaged in a conduct,
c) The said conduct was an attempt to cause the death of the Complainant,
d) The Accused intended to cause the death of the Complainant by his

conduct.

15. The alleged conducts in this matter are the strangling of the neck of the Complainant and then suffocating her with a pillow. The Complainant explained that it was difficult for her to breathe when the Accused strangled her neck with his hands. She then tried to move around her head to breathe. Doctor Chand explained that if a person is being strangled, there should be some strangulation marks on the neck because of the force applied to the neck by hand. Doctor Chand further stated that when a person is trying to strangle another on the neck, it usually tries to press the neck, pressing on the windpipe, which causes suffocation.
    
16. According to the Complainant, she felt it was difficult to breathe when the Accutrangled her neck with his hand. According to the evidence ence of Doctor Chand, it appears that the Accused had applied certain force in strangling the neck of the Complainant, pressing her windpipe that could have caused her difficulties in breathing. However, Doctor Chand had not found or noticed any pressing marks or injuries on the neck of the Complainant. She explains during the cross-examination that the probable cause of the tenderness noticed on the nape of the neck could be a punch.
    
17. Though Doctor Chand, in her evidence, said that the medical findings support the history given by the Complainant, I find it otherwise. There would be injuries or marks on the neck of the Complainant if she were strangled to the extent that she found it was difficult to breathe. This finding creates a doubt whether the Accused had actually strangled the Complainant.
    
18. The Prosecution tendered a pillow and a pillow cover containing a few dark colour stains idence. The Complainant, in her evidence, stated that the dthe dark colour stains found on the pillow cover were her blood. According to DC Sharma’s evidence, the Police had not conducted any forensic examination to ascertain the nature and identity of those dark stains found on the pillow cover. The pillow was not recovered by the Crime Scene Investigators of the Police at the crime scene. The Complainant took it to the Police Station on the following day. The Prosecution did not provide any evidence to establish the status of the pillow when it was handed over to the Police. The Accused, in his evidence, stated that the pillow shown to him during the caution interview had no such dark stains. This evidence of the Accused was not challenged or suggested otherwise during the cross-examination by the learned Counsel for the Prosecution. In view of these reasons, there is reasonable doubt whether the dark stains found on the pillow was blood or not.
    
19. According to the Complainant, there were no issues between the Accused and the Complaithat could have triggered an argument between them when shen she went to sleep. They were jubilant when they returned home after drinking beer at Wishbone. The Complainant said that the Accused knew about her previous marriage and children. She never alleged that the Accused had any issues seeing or meeting her children and ex-husband.
    
On the other hand, the Accused explained that the Complainant got emotional her children when they consumed rum at the outside passagessage of the house. It then led to a commotion which is not a part of this charge. The Complainant had visited her children during the day and then consumed beer with the Accused at Wishbone. As I explained before, if the Court satisfies the explanation offered by the Accused may reasonably be true; although the Court is not convinced that it is true, it is sufficient to create reasonable doubt about the Prosecution case. Taking into consideration that the Complainant had visited and spent some time with her children during the day and then consumed a certain amount of alcohol with the Accused, I find there is a reasonable probability that she got emotional about her children, as explained by the Accused, which then led to a physical commotion between them.

21. As a consequence of the above-discussed reasons, there is a reasonable doubt whether the Accused haangled the neck of the Comp Complainant with his hand and then suffocated her with a pillow as alleged by the Prosecution. Accordingly, I find the Prosecution has failed to establish the physical elements of this offence of Attempted Murder beyond a reasonable doubt. As a result of this finding, I do not wish to discuss the fault elements of the offence.
    
22. In conclusion, I find the Prosecution has failed to provend reasonable doubt that the Accused had attempted to murder the Complainant by strangling ling her neck with his hands and suffocating her with a pillow. Therefore, I find the Accused is not guilty of Attempted Murder as charged in the Information and acquit from the same accordingly.
23. Thirty (30) days to appeal to the Fiji Court of Appeal.
    

.......................................................

Hon. Mr. Justice R.D.R.T. Rajasinghe

At Suva

02^nd March 2022

<Solicitors

Office of the Director of Public Prosecutions for the State.

Patrick Kumar Lawyers for the Accused.