State v Baravilala [2022] FJHC 92; HAC010.20 (25 February 2022)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 010 OF 2020

STATE

V

YAVALA BARAVILALA

Counsel: Ms W Elo for the State

Accused in person

Date of Hearing: 15 February – 17 February 2022
Date of Judgment: 25 February 2022

JUDGMENT

The charges

[1] The Accused is charged with one count of attempted murder and one count of resisting arrest. The prosecution alleges that the Accused on 5 January 2020 at Nabua attempted to murder Niria Tuitoga and that on the same date and place the Accused resisted PC William whilst effecting arrest in the due execution of his duty.

Burden and standard of proof

[2] The burden is on the prosecution to prove the charge beyond reasonable doubt. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused.

Elements explained

[3] Section 44 (1) of the Crimes Act states that for a person to be guilty of an attempt to commit an offence, the person’s conduct must be more than mere preparation to the commission of the offence attempted. The question whether conduct is more than mere preparation to the commission of the offence is one of fact. Intention and knowledge are fault elements of the offence attempted (section 44 (3) of the Crimes Act).

[4] Murder is committed if a person engages in conduct that causes the death of another person, with the intention to cause death or with recklessness as to causing death (section 237 of the Crimes Act).

[5] To prove attempted murder, the prosecution must prove beyond reasonable doubt, firstly, that the Accused intended to kill Niria Tuitoga at the relevant time, and secondly, with that intention the Accused did acts which were more than mere preparation to commit murder. In order words, did the Accused take substantial steps to execute the intention to kill by means adapted to its fulfilment?

[6] Intention is a state of mind. It is necessarily a matter of inference whether a person had an intent to kill. There must be a logical and rational connection between the facts proven and any inference drawn. Inference of an intention to kill Niria Tuitoga must be the only reasonable inference open on the proven facts.

[7] To prove resisting arrest, the prosecution must prove beyond reasonable doubt that the Accused resisted a police officer in due execution of his duty.

Summary of evidence

[8] At trial, the prosecution led evidence from eight witnesses.

[9] Niria Tuitoga is the complainant. Her evidence is that she had been in a live-in relationship with the Accused for about a year. In 2019, she lived with him at his flat in Nabua. However, when the alleged incident occurred on 5 January 2020, she had ended her relationship and had moved back to live with her mother in Makoi.

[10] On the day of the incident, the Accused approached her at a supermarket in Makoi and invited her for lunch at his cousin’s place in Cunningham. Her young niece had accompanied her to the supermarket on that day. She accepted his invitation. He accompanied her to drop her niece to her home first and then drove to Nabua. While in the vehicle he changed the plan and convinced her to accompany him to his flat for him to take a bath and change and then go to Cunningham. When she arrived at his flat, she went and sat on the bed.

[11] While she was inside the house, the Accused confronted the complainant about an affair with another man. When she denied the allegation, the Accused punched her several times in the face and bit both her ears. Her right ear lobe was severed. She temporarily lost consciousness and when she regained consciousness, the Accused struck her left hand and thighs with an iron rod several times. She temporarily lost consciousness again and when she regained consciousness she saw the Accused going to the kitchen to take out a knife. She called out to the neighbours for help and managed to escape from the room. She lost consciousness again outside of the house.

[12] Mere Bai is the Accused’s neighbour. On 5 January 2020, she was about to have her lunch when she heard distressed screams of a female coming out from the Accused’s flat. She called out to the Accused and the Accused responded “it’s all set Meme”. When the scream continued Mere went to the Accused’s flat to check. She heard a female calling out ‘Meme kere veivuke’ meaning Meme I need help. She called out to the Accused to open the door and when he did not, she placed her hand through the open window and pulled the curtains to one side to see what was going on. She saw the Accused walking to the kitchen and washing his hands.

[13] At the same time the complainant came out of the house covered in blood. The Accused also came out and stood beside Mere. Mere told him that she was taking the complainant with her and the Accused did not say anything. Another neighbour, Kuini Osborne came and took the complainant away.

[14] Kuini Osborne’s evidence is that when she arrived at the scene, the complainant called out to her to take her away. Kuini said that the complainant was crying in distress, her dress was torn and half of her ear was missing. She brought the complainant to her place until the police arrived when she accompanied her to the CWM hospital with a female police officer.

[15] WPC Anisa accompanied her male colleagues to the scene. When she arrived at the scene, she saw the complainant lying in the bathroom inside Kuini Osborne’s flat and the Accused was trying to soothe the complainant and the complainant was swearing at him. WPC Anisa saw the complainant was covered in blood, her ears were beaten off, her dress was slightly torn and she was crying out in pain. She accompanied the complainant to the hospital.

[16] PC William and PC Munishal were the two male officers who attended the scene when they received a report of domestic violence. Both officers at the time were based at the Nabua Police Station. When they arrived at the scene they saw the complainant was lying in the bathroom of the neighbour’s flat and the Accused was kneeling over and talking to her. The complainant was covered in blood.

[17] PC William made a decision to act quickly as the victim was losing blood. He tapped the Accused and asked him to accompany them to the station. The Accused did not respond but kept talking with the complainant. When the Accused did not listen, PC William grabbed the Accused pants and t-shirt from behind and pulled him out from the bathroom. The Accused responded well and wasn’t aggressive, but as soon as they took him out of the house, he started resisting and shoving them off. At that stage PC Munishal subdued the Accused using a pepper spray and brought him to the Nabua Police Station in the police vehicle.

[18] The prosecution tendered two weapons – an iron (PE1) and a kitchen knife (PE2). Both of these weapons were identified in court by the complainant.

[19] DC Nakula gave evidence that he uplifted the weapons from the alleged crime scene. However, his account of the date and circumstances are vague. He said that he went and uplifted the weapons on the date the incident took place. He said that when he arrived at the scene he saw a crowd and the family members pointed to him the place the incident took place. He seized an iron rod, a kitchen knife and a garden fork. He seized these items and handed them to the exhibit writer.

[20] Apart from uplifting the exhibits, DC Nakula recorded the caution interview of the Accused on 7 January 2020. When DC Nakula was cross-examined on his record that he suspended the interview and accompanied the Accused to uplift the weapons from the scene of the incident, the officer said he may have made mistake in the record.

[21] The final witness was Dr Sovanivalu, an orthopedic surgeon based at the CWM hospital at the time of the incident. His evidence is that the complainant arrived at the hospital with visible facial injuries, swollen head, swollen lips, lacerations on both ears, bruises on both inner thighs and injuries to her jaws and forearm, more likely to be caused by high blunt force trauma. After a 12 hour observation the doctor concluded that the injuries were not life threatening. However, the complainant was admitted for about two weeks to undergo various surgeries to her arm and face. Her jaw and arm were fractured.

[22] That is a summary of evidence for the prosecution.

Defence case

[23] The Accused chose to give evidence. However, he does not have to prove anything. If the account given by him is or may be true, then he must be found not guilty. But even the account given by him is entirely rejected, that would not relieve the prosecution of its burden of making sure by evidence of the Accused’s guilt.

[24] The Accused’s evidence is that on the day of the incident he was heavily intoxicated. He went and picked the complainant from Makoi after she gave him a call. When they returned to his flat in Nabua he confronted her about an affair. They ended up arguing and in rage the Accused punched and kicked her. He admitted biting off her ears and hitting her with a wooden plank used as cross bar for the base of the bed. He stopped when the plank broke. He said that he did not use any iron rod or knife on the complainant. He said that he did mean to kill her. He said that he assaulted her out of rage when she argued with him.

[25] The Accused said that when the police officers arrived they manhandled him by pulling his pants and underwear up, causing him discomfort. He said that he shoved them to give him a moment to adjust his pants. He denied resisting arrest.

Analysis

[26] On both counts, the identity of the Accused is not an issue. It is not in dispute that the Accused and the complainant had known each other for about two years and that they had been in an intimate partner relationship for about a year.

[27] The place and date of the alleged incident is not an issue. The alleged incident occurred on 5 January 2020 at Sukunivalu Road, Nabua.

Count One

[28] On count one, the Accused’s defence is that he did not mean or intend to kill the complainant. His account is that he went and picked the complainant from Makoi after she gave him a call. His account is that he was heavily intoxicated and that when he argued with the complainant in his flat about her being involved with another man, he lost his temper and in rage assaulted the complainant. He admitted punching, kicking and hitting the complainant with a wooden plank until the timber broke. He admitted biting off the complainant’s ears.

[29] The Accused’s account of punching the complainant and biting off her ears is consistent with the account of the complainant. The point of difference is that according to the complainant, the Accused met her in Makoi and persuaded her to accompany him for lunch in Cunningham. Once she was in the vehicle he changed the plan and diverted to his flat in Nabua for him to shower and change. She voluntarily accompanied him to his flat and when they were inside the flat he confronted her about an affair. They ended up arguing, and in rage he punched her face several times and bit off her ears. She passed out and when she gained consciousness he further assaulted her with an iron rod and stabbed her with a kitchen knife.

[30] The complainant’s account of being assaulted with an iron rod and stabbed with a kitchen knife is based on her memory of the incident when she was trying to escape from the room while temporarily losing consciousness on more than two occasions. Her account is that she was conscious but disoriented after the Accused punched her in the face several times and bit her ears.

[31] The complainant’s identification of the weapons used by the Accused is unreliable. There is no forensic link between the iron rod and the knife and the Accused. Even the circumstances under which these weapons were uplifted by DC Nakula from the scene of the alleged incident are vague and unreliable.

[32] The medical evidence does not support the complainant’s account of being stabbed on her arm and hand with a knife. The medical evidence is consistent with the Accused’s account of punching, kicking and hitting the complainant with a timber plank. The injuries were caused by blunt force trauma. The injuries were serious but not life threatening.

[33] I believe the account of the Accused that in rage he punched and kicked the complainant and bit off her ears and then struck her with a timber plank. I accept that the assault was intentional and not accidental. He was drunk but he was not so drunk, as not able to form an intent to cause serious harm to the complainant. He did respond to the neighbour’s call to stop and he did stop the beating when his neighbours intervened and took the complainant away.

[34] However, what I am not sure of is whether the Accused intended to cause the death of the complainant. I accept the complainant’s version that the Accused persuaded her to accompany him to his flat. I do not accept that the complainant called the Accused to pick her up from Makoi. When they met in Makoi the complainant was with her young niece, which shows that she had not planned to go out with the Accused as suggested by him in his evidence.

[35] The entire episode occurred during daytime on a Sunday when the Accused’s neighbours were home. The Accused knew that his neighbours were around when he got the complainant to accompany him to his flat. He could have but he did not take the complainant to a secluded place if he had intended to murder her.

[36] On the evidence led by the prosecution I am not satisfied beyond reasonable doubt that the Accused intended to kill and that he took substantial steps to carry out the intention to kill by means adapted to its fulfilment.

[37] But I am satisfied beyond reasonable doubt that the Accused unlawfully and maliciously caused grievous harm to Niria Tuitoga contrary to section 258 of the Crimes Act.

[38] Unlawful means without lawful excuse. There is no suggestion that the Accused had a lawful excuse to assault the complainant.

[39] Malice means a wrongful act done intentionally without just cause or excuse (Prasad v Reginam [1981] FJLawRp 16; [1981] 27 FLR 80 (2 April 1981)).

[40] Section 160 (2) of the Criminal Procedure Act states that when a person is charged with an offence and facts are proved which reduce it to a minor offence, the person may be convicted of the minor offence although he was not charged with it. A minor offence is one that is less grave than the offence charged and carries a lower maximum penalty.

[41] Causing grievous harm is less grave than attempted murder and carries a lower maximum penalty than attempted murder. The offence is a lesser offence to a charge of attempted murder (Prasad v Reginam [1981] FJLawRp 16; [1981] 27 FLR 80 (2 April 1981)).

[42] I am not satisfied beyond reasonable doubt that the Accused is guilty of attempted murder, but I am satisfied beyond reasonable doubt that he is guilty of causing grievous harm to the complainant.
Count two

[43] On count two, the Accused’s defence is that he shoved the police officers during arrest because they manhandled him and caused him discomfort.

[44] The police officers may use reasonable force to effect arrest of a person suspected to have committed a crime (section 10 of the Criminal Procedure Act).

[45] I accept the evidence of PC William that he had to act quickly to remove the Accused from the scene to attend to the injured victim. The Accused cooperated with the police until he came out of the house when he shoved them. I accept that the Accused knew that he had been detained and was being taken to the police station. He may have felt some discomfort in the manner in which PC William held him, but that is not an excuse for him to shove the police officers performing their duties.

[46] I am satisfied beyond reasonable doubt that the Accused resisted a police officer in the due execution of his duty.

Verdict

[47] On count one, the Accused is not guilty of attempted murder but guilty of causing grievous harm contrary to section 258 of the Crimes Act.

[48] On count two, the Accused is guilty of resisting arrest contrary to section 277(1) of the Crimes Act.

[49] Convictions entered accordingly.

. ...........................................
Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
Accused in Person