State v Luma [2024] FJHC 188; HAC177.2020 (25 March 2024)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 177 OF 2020

STATE

V

1. MOSESE LUMA
2. URAIA NATALIGA
3. ALIVERETI NAUCA

Counsel: Mr L. Baleilevuka for Prosecution
Ms L. Volau for 1^st Accused
Ms Priyanka for 2^nd Accused
Ms L. Taukei for 3^rd Accused

Dates of Hearing : 02, 21, 26, 28 February & 14 March 2024

Date of Judgment : 25 March 2024

JUDGMENT

1. The Accused persons (The Accused) are jointly charged with one count of Manslaughter. They were arraigned on the following information filed by the Director of Public Prosecutions:
   

Statement of Offence (a)

MANSLAUGHTER: Contrary to Section 239 of the Crimes Act 2009.

Particulars of Offence (b)

MOSESE LUMA, URAIA NATALIGA, & ALVERETI NAUCA, on the 13^th day of July 2018, at Rakiraki in the Western Division, assaulted SAVENACA NAKUTA which caused his death, and in doing so was reckless as to a risk that the assault will cause serious harm to the said SAVENACA NAKUTA

2. The Accused pleaded not guilty to the charge. At the ensuing trial, the Prosecution presented the evidence of five witnesses. Being satisfied that there was case for each Accused to answer, the Court put the Accused to their defence. The Accused elected to remain silent.
   
3. The Counsel filed written submissions at the end of the trial. Having considered the evidence presented at the hearing and the respective submissions of the Counsel, I now proceed to pronounce the judgment as follows.
   
4. I bear in mind that the Accused are presumed innocent until they are proven guilty. The onus or the burden of proof rests on the Prosecution throughout the trial. That onus never shifts to the Accused. There is no obligation or burden on the Accused to prove their innocence. The Prosecution must prove each Accused’s guilt beyond reasonable doubt. Although the Accused are jointly charged, the case against each Accused should be considered separately.
   
5. To establish the offence of Manslaughter, the Prosecution must prove beyond reasonable doubt that the Accused engaged in a conduct and that conduct caused the death of deceased and that the Accused at the time of that conduct, either intended to cause serious harm or was reckless as to causing serious harm to the deceased [Section 239 of the Crimes Act]. In this case, the Prosecution was running its case on the basis that each Accused was reckless as to causing serious harm to the deceased.
   
6. 6. The first element that the Prosecution must prove is the identity of the Accused in relation to the alleged conduct. The second element requires the Prosecution to prove that the Accused wilfully engaged in an unlawful conduct. To engage in a conduct means to do an act of one’s own free will. The Prosecution alleges that each Accused deliberately punched the deceased causing the death of the deceased.
   
7. The third element concerns the causation. It must be proved that the conduct of the Accused caused the death of the deceased. The law requires a link between the conduct and the death. The conduct may usually cause an injury which is the sole cause of death. But it is sufficient if it is an operating or substantial or significant cause of death. In this case, the Prosecution alleges that the Accused by their acts of punching caused the death of the deceased.
   
8. The fourth element concerns fault element, namely recklessness. A person is reckless if he/she was aware of a substantial risk that serious harm will occur and having regard to the circumstances known to him/her, he/she was unjustified to take that risk^[1]. The first step is to decide if there was a risk and whether the risk was “substantial”. The risk is substantial if a reasonable and sober person would have taken the risk to be substantial at the time it was taken. The test to be applied in this regard is objective in nature and raises a question of law. If the court finds the risk to be substantial at the time it was taken, then it must decide whether the accused was aware of that substantial risk, that is, serious harm will occur. The court must then proceed to consider whether having regard to the circumstances known to the accused, he/she was unjustified to take that risk. Whether taking the risk was unjustified is a question of fact^[2] for the court to determine on the basis of subjective test.
   
9. Bearing in mind the legal principles discussed above, I now proceed to summarise the evidence led in the trial.
   

PW 1 Eroni Vunisa Nakuta

10. Eroni testified that in 2018, he was schooling at St. Thomas Primary School in Lautoka while residing in Kashmir, Lautoka. He testified to the circumstances that led to the death of his biological father, Savenaca Nakuta, the deceased in this case, on 13 July 2018.
    
11. On the evening of 13 July 2018 at around 6 p.m., he and his father left Kashmir for Navolau village 1 in Rakiraki in the car driven by his father. When they were on their way close to Nakorokula at around 9 p.m., they saw a group of drunk men sitting beside the road. There were four of them. One of them suddenly came onto the road. The car dodged that man and drove towards an electric post. The man came to the road dived to the other side to avoid an accident. His father turned around his car and came back slowly to see what had happened to the man who dived on the road.
    
12. When they came around, one of the men approached them and pulled the (steering) wheel of the moving car and was told to stop the car. When the car stopped, this man pulled his father’s head and punched his head when his father was still sitting in the driver’s seat. Upon being punched, his father stopped the car and went in front of the car.
    
13. He recognized the man who punched his father as Uraia who was staying at Nakorokula from the light coming from the car inside. He had seen Uraia very often at functions in Nakorokula. He observed the punching incident when he was still sitting in the front passenger seat. He could clearly see the face of Uraia from the light in the car. After the punching, he came to the back seat out of fear. The witness identified the 2^nd Accused who was sitting in Court as the person who punched his father.
    
14. After receiving the punch from Uraia, his father got off the car and went towards the front of the car when his father was punched again by another one from the same group. One punch landed on the face (forehead) and two punches on the stomach. He was watching this incident from the back seat of the car. He recognized this man from the head light of the car as Tubuna Alifereti who used to hang around in Namuaimada and Navolau. He observed Tubuna for 3 to 10 seconds as he was punching. He identified Alifereti in Court. He only knew about the two he mentioned.
    
15. When his father was getting punched, he called out to Rogosau who lived in a house nearby. Rogosau responded to his father’s call and approached them. His father came to the vehicle to check on him. Before reaching him, his father knelt beside the car where he lied down. Rogosau came and punched Alifereti and chased him away.
    
16. Rogasau’s family poured water on his father’s face to regain his consciousness but failed. After that his uncle Paula and Uncle Bete came and took his father to the hospital. He saw injuries on his father’s head and face. Upon admission to the hospital, his father was already dead.
    
17. Under cross-examination by the Counsel for the 2^nd Accused, Eroni said that his father was driving slowly so that Uraia managed to pull the (steering) wheel. He could not recall if he had told the police that Uraia threw a punch on his father’s nose. When his father was being punched, Uraia’s head was inside the car while his body was outside. His father was angry when he got punched inside the vehicle. His father had high blood pressure and diabetes. When he gave his statement to police on 13 July 2018, he was still in a state of shock.
    
18. Under cross-examination by the counsel for the 3^rdAccused, Eroni agreed that when his father turned the vehicle around, there was broken glass in his father’s car as it drove towards the electric post. The reason his father turned the car around was because he wanted to see the person who had dived on the road. He agreed that his father was much bigger than Alifereti. When he was in Class 5, his father was admitted in hospital for high blood pressure.
    

PW 2 Peni Rogosau

19. In 2018, Rogosau lived at Nasakiki in Rakiraki. On 13 July 2018, he returned home from a funeral at around 6.30 p.m. He was sitting in front of his house facing the highway, on the opposite side of Vicky’s Shopping Centre. At around 7.15 p.m. he heard some drunkards on the road. After a while, he heard one vehicle go past and a glass being broken. The vehicle went past for about 100 meters and returned to where the drunkards were. When he heard that sound, he came to the road where he heard Savenaca’s voice. Savenaca opened the door of his car and went straight to Uraia who was on the other side of the road. He could recognize Uraia and Savenaca from the brake light that was on.
    
    20. He saw Alivereti punching Savenaca twice in the middle of the road. He did not see where the punches landed. He knew Alivereti and Uraia from their childhood. Uraia was still on the other side of the road. There were many drunkards on the road at that time. He went straight to Alifereti and punched him. Alifereti then went away from Savenaca who returned to his vehicle.
        
    21. He heard another brawl happening at the back of the car where two men punching each other. He saw Mosese Luma punching Savenaca. Luma is the son of his sister. He did not know where those punches landed. He pulled Luma back and punched him. After that, Uraia came and told him that Savenaca had bumped one of them. He asked Savenaca whether he bumped any of those people. Savenaca admitted that he turned back because one of them was hit by the side mirror on the side of the passenger seat. The person who got bumped was sitting in front.
        
    22. He then heard Savenaca’s son, who was sitting at the back seat of the car, calling out “maqu”, meaning father. Then he returned to where Savenaca and Eroini were. He saw Savenaca lying down right beside his car. Savenaca was still breathing. Another Alifereti was massaging Savenaca who was then taken to the hospital by his cousin.
        
    23. Under cross-examination by Ms Volau, Rogosau said that he could not say how many punches were landed on Savenaca while being punched by Luma. The brawl between Savenaca and Luma was part of the ongoing fight where all of them were involved. He saw Mosese Luma’s face when he pulled him back. It was dark so he could not tell if Savenaca was injured or not. Savenaca was just leaning on the car. Savenaca was standing up, when he was talking to him.
        
    24. Under cross-examination by Ms. Priyanka, Rogosau denied that he came out of house only when his name was being called out by Savenaca.
        
    25. Under cross-examination by Ms. Taukei, Rogosau denied lying about Alivereti punching Savenaca because he had not in his statement told that to the police. He saw Alivereti punch Savenaca and that was the reason why he had punched Alivereti. He was behind Savenaca when he (Savenaca) was being punched. That is the reason why he was not able to see where the punches landed. When he returned home from the funeral, he was not doped or drunk.
        

PW 3 Pita Davuiqalita

26. On 14 July 2018, Corporal Pita attended to a case of an alleged murder at Ellington in Rakiraki. He prepared a sketch of the alleged crime scene, took photographs of the crime scene, the vehicle and the postmortem examination. He identified the photographs (PE 2) and the sketch (PE 1) which he tendered in his evidence.
    

PW 4 PC Apisalome Rokosuka

27. Constable Rokosuka was the witnessing officer for the caution interview of Mosese Luma (Luma) conducted at the Ra Police Station on 14 July 2018. Mosese Luma was interviewed by Isoa Vakaciwa in the Fijian Language. He tendered in evidence the original record of caution interview (PE 3) which was signed on each page by the interviewing officer, the witnessing officer himself and Luma, the suspect. The record was translated into English which he tendered in evidence (PE4). He read the questions and the answers from 64 to 115 where Luma’s admissions were recorded.
    
28. After the interview was concluded he or the interviewing officer added anything or did anything else to the record of interview. The original record of interview was given to the suspect who took time to read his interview before signing.
    
29. Under cross-examination by Ms Volau, Constable Apisalome said that all the movements in and out of the station would be recorded in a station diary kept in the police station. His presence during the caution interview will have to be recorded in the station diary. At every time the caution interview recommences or suspends, his presence during the caution interview had to be noted in the station diary by the station orderly. He was present right throughout the interview. He denied that he was present only at the recommencement of the interview at 1510 hrs. on 14 July 2018. It must have been a miscommunication with the orderly that his presence is not reflected in the station diary.
    
30. Checking alibis and conducting a reconstruction can be done at the same time. He agreed that in questions 51, 53, 82, 83, 90, 91, 1-7 and 1-8, Mosese Luma had denied the allegation that he assaulted the deceased. He agreed that in the original iTaukei version, in response to question 72, Mosese Luma did not admit that he had fought or assaulted Savenaca. He agreed that the English version is incorrect when it read “Veidre” that meant pulling each other. The correct translation would be “Save and I pulled each other when he came out of the vehicle”. He denied that those parts were fabricated by the interviewing officer.
    
31. Luma was given his Statement to re-read at 1340 hours. The caution Interview reflects that at 1400 hours Luma had completed reading his caution interview where 133 questions and answers were recorded. He denied that Luma was not given time to read his interview. He agreed that it’s mandatory for the police officers to comply with Force Standing Order No. 88 which provides for the guidelines on station diary. He did not have access to the station diary to correct what the orderly had written in it. The presence or otherwise of the witnessing officer is not entered in the station diary.
    
32. He denied that he did not bring the notebook mandated by the Force Standing Order No. 97 to cover-up the fact that the interviewing officer had fabricated the caution interview.
    

PW 5- Dr Daniella John

33. On 16 July 2018, Dr John conducted the autopsy on the deceased Savenaca Nakari Nakuta and prepared a postmortem repot. The estimated time of death was 1930 hrs on 13 July 2018. He tendered in evidence the postmortem report marked as PE 5.
    
34. Upon external examination, Dr John observed tears on the inner surface of the lower lip which are consistent with trauma applied to the face as if he were punched on the face. There were two linear abrasions, 9cm and 2cm, noted over the right side of the head. Abrasions noted are the result of the skin being scraped at an angle against rough surface. There was no evidence of bony injuries internally on the skull or base of the skull including the jaws and the face.
    
35. The immediate cause of death was a heart disease. The deceased’s blood vessels supplying the heart were significantly blocked and he also had evidence of old heart attacks. The antecedent causes of death were (b) severe cardiovascular atherosclerotic disease, in simple terms, three coronary blood vessels that supply the heart were severely blocked. (c) There was thrombus in the right coronary artery, meaning that a blood clot in the right artery that supplies the right side of the heart and d) Acute pulmonary edema, evidence of fluid in the lungs which could have been following cardiac event.
    
36. The heart disease is unhealthy lifestyle related-non-communicable disease, largely due to unhealthy diet, lack of exercise, exposure to stress if he was a smoker etc.; if he’s a known case in hospital for diabetes or high blood pressure or if he basically had family history. These are all risk factors if he does not look after himself.
    
37. If somebody had punched the deceased in his face, not so much the force that results in a direct impact on his heart, but the stress induced by the punch. Threatening someone to punch could be a stressful event. Even in the absence of assault itself, any threat whatsoever could induce a stress upon an individual when he is going to prepare and respond to the threat by increasing his heart rate and blood pressure.
    
38. For a normal individual with no problems in the heart, it doesn’t lead so much to any cardiac event because his heart is able to cope with the influx of adrenalin. For an individual who has a pre-existing cardiac problem and if he’s put in that stressful event, that stress in itself will cause his body to prepare himself either to fight or run, his heart rate will go up, blood pressure will increase thus increasing the risk of his heart going into a cardiac event.
    
    39. The doctor didn’t find any medical condition that is linked to a physical attack except the stress associated with such an attack. In coronary arteries that supply the blood to the heart muscles showd severe atheroma with areas of occlusion up to 90 per cent, most likely to have been caused by a pre-existing cardiac condition.
        
    40. Under cross-examination by Ms. Volau the doctor said that the number of heart attacks a person with a history of heart disease will have to go through before his death would depend on a lot of things. Accumulation of fat in blood vessels happens over a period and if it is not addressed at certain point in time through medical interventions, it will get worse. Severe atheroma with areas of occlusion in coronary arteries up to 90 per cent indicates how badly they were blocked. The risk of getting a cardiac event is high in a person with a history of heart disease.
        
    41. The deceased did not have any internal injuries and therefore it’s the stress caused by the assault that has induced that physiological response. Whether or not he received the assault, even in the absence of assault, it’s been proven that anger increases that risk of cardiac events, even anger itself. She agreed that if a person hits another person with his car causing injuries to the other person and is worried, that is likely to heighten the risk of heart attacks because of the stress that’s involved in it.
        
    42. The deceased already had a pre-existing medical condition. Even if he were at rest, even if he went home without being confronted, undergone nothing, his cardiac condition can eventually lead to his death at any time. He was at risk of dying because his cardiac condition was pre-disposing it. Any added stressful event, regardless of if there was assault involved or not, adds stress on his heart thereby increasing his risk of getting a cardiac event and that is what could lead to his death.
        

Evaluation / Analysis

43. The Prosecution alleges that the deceased died because of the unlawful and willful conduct of the Accused, namely, punching. To prove the conduct, the Prosecution relied on the evidence of two eyewitnesses and the admissions allegedly made by the 1^st Accused at his caution interview. The 1^st Accused did not challenge the admissibility of the record of his caution interview but its truthfulness. The 1^st Accused took up the position that the caution interview was fabricated by the police officers.
    
44. The identity of the Accused was not so much in dispute but the alleged unlawful conduct of each Accused. The Defence Counsel confirmed during the trial that the Accused persons will not dispute their presence at the alleged crime scene. The Accused were previously known to both eyewitnesses. It was not a fleeting glance identification. The lighting condition which was sourced from the hood and the head lights of the car was adequate to recognize the Accused who were previously known to the eyewitnesses. The observations had been made in proximity sans obstructions. I accept that the Accused were among the people present at the alleged crime scene.
    
45. Let me now analyse the evidence of the eyewitnesses who implicated the Accused in the alleged crime. The first eyewitness Eroni, the son of the deceased, implicated only the 2^nd and the 3^rd Accused. According to him, the 2^nd Accused, pulled the (steering) wheel of the slow-moving car driven by the deceased and, when the car stopped, he pulled the deceased by his head and punched his head when the deceased was still sitting in the driver’s seat.
    
46. Eroni made this observation when he was seated on the passenger seat next to the driver’s seat where the deceased was sitting. When the deceased was being punched, the 2^nd Accused’s head was inside the car while his body was outside. The observation was made in the light sourced from the (hood) light (of the car).
    

47, The inconsistency highlighted by the Defence on this point vis-a-vis the previous statement to police in my opinion is not material enough to discredit Eroni’s evidence. Eroni had told the police that the deceased was punched on his nose whereas in his evidence he said it was on his head. His evidence that the 2^nd Accused pulled the steering wheel while the vehicle was still in movement is not unbelievable as it was being driven very slowly at that point in time for the deceased to observe what had happened to the boy who was hit.

48. Rogosau’s evidence in large part is consistent with that of Eroni. Rogosau is completely an independent witness compared to Eroni. The sound of the falling broken glass had brought him to the road when he saw the 2^nd Accused being pursued by the deceased across the road. As opposed to what Eroni had seen, Rogosau had not seen any injuries on deceased’s face or head in that light. However, Dr John who conducted the autopsy confirmed that the deceased had tears on the inner surface of the lower lip and two linear abrasions over the right side of the head.
    
49. The 3^rd Accused was implicated by both Eroni and Rogosau. According to Eroni, the deceased, after receiving a punch from the 2^nd Accused, had alighted from the car and gone towards the front (of the car) when the 3^rd Accused threw one punch on the face (forehead) and two on the stomach of the deceased. He had observed this incident for 3 to 10 seconds from the back seat in the light sourced from the car. He recognized the 3^rd Accused whom he knew previously as a person who used to hang around in Namuaimada and Navolau.
    
50. Eroni’s evidence on this point was corroborated by Rogosau. Rogosau said he saw the 3^rd Accused in the middle of the road punching the deceased twice. Rogosau explained why he was not able to see where those punches landed; at that point in time, he was placed himself behind the deceased. I do not see any omission vis-a -vis his previous statement to police as was suggested by Ms Taukei that he saw the 3^rd Accused punch the deceased. Rogosau in his statement had clearly stated to police that he saw two men punching the deceased and, when he came closer, he recognized the two as Luma (1^st Accused) and Alvereti of Nakorokula (3^rd Accused).
    
51. I accept the evidence of Eroni and Rogosau. The mere existence of a close relationship between Eroni and the deceased does not allow me to reject his evidence as it was supported by other evidence led in the trial. I accept Eroni’s evidence that the deceased was punched once in his head by the 2^nd Accused. I also accept that the deceased was punched twice in the stomach and once in the head by the 3^rd Accused.
    
52. The Prosecution relies on the evidence of Rogosau and the caution interview of the 1^st Accused to prove that the 1^st Accused was also involved in punching the deceased that night.
    
53. Rogosau said that he saw the 1^st Accused punching the deceased and that he pulled the 1^st Accused and punched him. Rogosau had no reason to lie against the 1^st Accused who is his nephew. It is understandable that in that light he could not exactly tell where those punches landed and how many of them were thrown at the deceased. He had told the police that when he saw the commotion, he intervened and pushed away the two people (Luma and Alvereti) who were drunk. I accept the evidence of Rogosau that the deceased was also punched by the 1^st Accused.
    
54. The admissions made by the 1^st Accused to police also support the evidence of Rogosau. In his caution interview, the 1^st Accused has admitted that he swore at the deceased and was fighting with the deceased because he was angry that the deceased had hit Mataqali. The Defence contended that those admissions were fabricated by the police officers. The main challenge to the truthfulness of the admissions was mounted on the premise that the witnessing officer was not present during the entire caution interview so that, in the absence of the witnessing officer, the interviewer had fabricated the interview to the detriment of the 1^st Accused.
    
55. 55. The 1^st Accused did not give evidence to say which parts of his interview that were fabricated. The only evidence presented by the Defence to support the Defence claim was the station diary entries put by the station orderly who did not give evidence at the trial. PC Rokosuka, the witnessing officer who gave evidence at the trial denied the proposition of the Defence that he was not present during the caution interview and that some of the answers were fabricated.
    
56. The mere absence of entries in the station diary does not conclusively prove that the witnessing officer was not present during the caution interview. There is no mandatory legal requirement to mark the presence of the witnessing officer in the station diary at an interview. As the witnessing officer said, due to miscommunication or inadvertence on the part of the station orderly, it is possible that his presence may have been missed out in the station diary.
    
57. The witnessing officer agreed that in questions 51, 53, 82, 83, 90, 91, 1-7 and 1-8, the 1^st Accused had denied the allegation that he assaulted the deceased. He also agreed that, in response to question 72 in the original iTaukei version, the 1^st Accused did not admit that he had fought or assaulted the deceased. He also agreed that the correct translation would have been “Save and I pulled each other when he came out of the vehicle”.
    
58. It is clear from the answers given by the 1^st Accused at his interview, which I have reproduced below, contain both admissions and denials (mixed statement).
    

Q:72. Peni said that you and one other you punched Savenaca beside his car. What can you say about this?

A: I was fighting with Save when he came out of his car and Uraia and Tubuna came and pulled me away.

Q:74 How many punches did you give to Savenaca?

A: I do not know.

Q:75 Which part of Savenaca’s body did you punch?

A: I do not even know.

Q81: How many punches did you give Savenaca?

A: I do not even know that I punched him.

Q:82 Which part of Savenaca’s body did you punch?

No, I never punch him.

Q83: The punch which you gave to Savenaca caused him to collapse. What can you say about this?

A: I did not punch him

Q 88: Did you recognize Savenaca during the time you was punching him?

A: No.

Q 91: I wish to inform you that you were the one who punched Savenaca. What can you say about this?

A: No.

Q 94: What was Savenaca doing?

A: I swore at him then we began fighting.

Q 95: What word did you told him?

A: Fuck why did you hit ‘mats’.

Q 98: Do you know the place where you punched Savenaca?

A: At Vunimoli beside Rogosau’s house.

Q 99: What was your reason of punching Savenaca?

A: I was angry when he had hit mataqali.

Q:105 What did you do?

A: I swore at the driver, and he hates it so we started fighting.

Q:115 Can you show the place where you and Savenaca where fighting?

A: We were fighting near the culvert of Rogosau driveway.

59. In most of the answers, the 1^st Accused had denied punching while admitting to fighting. The questions posed in this regard were leading questions put on the assumption that the 1^st Accused had punched the deceased. While agreeing that this type of questioning is unfair, it is reasonable to assume that if the interviewer maliciously fabricated the answers to incriminate the 1^st Accused, he would not have included the denials of the 1st Accused in the record. I am not convinced that certain parts of the interview of the 1^st Accused were fabricated by the interviewing officer as claimed by the Defence.
    
60. The admissions made by the 1^st Accused in his caution interview are consistent with the other evidence led in the trial. I accept that the answers to the questions in the interview were given by the 1^st Accused and that he told the truth in his answers when he admitted to fighting with the deceased. The Prosecution proved beyond reasonable doubt that each Accused was engaged in willful and unlawful conduct, namely punching the deceased.
    

Causation - Did the conduct of the Accused cause the death of the deceased?

61. Causation is the relationship (causal link) between the unlawful act committed by the accused and the resulting effect of that act which is the victim’s death. Causation is linked to the actus reus of the offence of murder and manslaughter as well^[3].
    
62. In R v David Keith Pagett^[4] , the House referred to a passage in Smith and Hogan’s Criminal Law (4^th ed.1978) where it states:
    

Causationation is a question of both fact and law. D’s act cannot be held to be the cause of an event if the event would have occurred without it. The act, that is, must be a sine qua non of the event and whether it is so is a question of fact. But there are many acts witch are sine qua non of a homicide and yet are not either in law, or in ordinary parlance, the cause of it. If I invite P to dinner and he is run over and killed on the way, my invitation may be sine qua non of his death, but no one would say, I killed him and I have not caused his death in law. Whether a particular act which is a sine quo non of an alleged actus reus is also a cause of it is a question of law.

63. This legal pronouncement suggests that the causation is not merely a question of law but a matter of both question of fact and question of law.
    
64. The evidence of Dr John (PW5) who conducted the autopsy on the deceased is important in this regard. Upon external examination, Dr John observed tears on the inner surface of the lower lip which were consistent with trauma applied to the face as if the deceased had been punched in the face. There had been two linear abrasions noted over the right side of the head. No internal or external injuries in the stomach are noted in the report linking the punching in that area.
    
65. The external injuries found on the deceased are consistent with the eyewitness accounts that the deceased was punched in his head by the 2^nd and the 3^rd Accused. However there is no evidence of bony injuries internally on the skull or base of the skull, including the jaws and the face or of any internal hemorrhages suggesting that the force used in punching had been intensive. Therefore, it can reasonably be assumed that the punches had not carried a severe force to cause serious harm.
    
66. The immediate or main cause of death had been a heart disease (Ischaemic Heart Disease) which is not associated with the physical attack or punching on the head. According to the doctor, the deceased’s blood vessels supplying the heart had been significantly blocked and he also had evidence of old heart attacks. In coronary arteries that supply the blood to the heart muscles showed severe atheroma with areas of occlusion up to 90 per cent, most likely to have been caused by a pre-existing condition.
    
67. The antecedent causes of death were also associated with the heart disease. Three coronary blood vessels that supply the heart had been severely blocked (Severe Cardiovascular Atheroscloretic Disease). There was even a blood clot (thrombus) in the right artery that supplies blood to the right side of the heart. The doctor opined that the accumulation of fat in blood vessels happens over a period and if it were not addressed through medical interventions, it will get worse. The evidence of fluid in the lungs (Acute Pulmonary Edema) could also have been following a cardiac event.
    
68. The heart disease is non-communicable disease due to unhealthy lifestyle or family history. Severe atheroma with areas of occlusion in coronary arteries up to 90 per cent indicates how badly they were blocked. The risk of getting a cardiac event is high in a person with a history of heart disease and diabetes.
    
69. According to Eroni, the deceased was treated a long time ago in hospital for heart disease and diabetes. Medical evidence confirmed that the deceased already had a history of heart attacks. The doctor was of the opinion that even if he were at rest, even if he went home without being confronted, his cardiac condition could eventually lead to death and he was at risk of dying at any time because his cardiac condition was pre-disposing it.
    
70. The doctor opined that it’s not the assault itself that had led to the death of the deceased because the deceased did not have any internal injuries linked to the punching. In view of the doctor’s opinion, it is obvious that the willful conduct of the Accused, namely punching was not the main or sole cause of death of the deceased.
    
71. The next pertinent question to be asked in a manslaughter case is whether the conduct of the Accused has substantially or significantly contributed to the death of the deceased^[5]. In R v David Keith Pagett^[6] Lord Goff at page 288 observed that^[7]:

Even where it is necessary to direct the jury’s mind to the question of causation it is usually enough to direct them simply that in law the accused’s act need not be the sole cause or even the main cause of the victim’s death it being enough that his act contributed significantly to that result. It is right to observe in passing, however, that even this simple direction is a direction of law relating to causation.

72. This legal pranouncement has received recognition in Fiji. Section 246 (1) of the Crimes Act 2009 provides as follows:

In this Division, a person’s conduct causes death or harm if it substantially contributes to the death or harm.

73. The doctor opined that any added stressful event, and therefore it’s the stress caused by the assault that may have induced the physiological response increasing the risk of getting a cardiac event and that is what would have led to the death of the deceased. The doctor said that even in the absence of an assault, it’s been proven that anger itself increases the risk of cardiac event.
    
74. She futher clarified that if somebody had punched the deceased in his face, not so much the force that would have resulted in a direct impact on the heart, but the stress induced by the punch. Threatening someone to punch could be a stressful event. Even in the absence of assault itself, any threat whatsoever could induce a stress upon an individual when he is going to prepare and respond to the threat by increasing his heart rate, resulting in blood pressure. According to this medical opinion, the punching or a threat of punching would have had the effect of increasing the heart rate and blood pressure thus resulting a heart attack leading to death.
    
75. There can be no doubt that the conduct on the part of the accused (punching) is a stressful event that could have the effect of increasing the heart rate of the deceased. However, in this case, it is not only the punching or the threat of punching that could have had the effect of increasing the heart rate and blood pressure. The doctor agreed with Ms Volau that if a person with a history of heart attacks, worried about an accident where his car had just hit another person causing that person injuries, is likely to have a heart attack because of the stress that’s involved in it.
    
76. It was admitted before the trial that one boy from Namosi got hit by the vehicle driven by the deceased. That had been the reason for the deceased to turn his car around to proceed to where the alteraction occurred. He also realized that one of the glasses of his car had been broken because of the accident. In view of this evidence, it is possible that the stress or fright associated with the accident could also have had an effect of heightening the risk of a heart attack.
    
77. Section 246 (2) of the Crimes Act further provides:
    

Without limiting the right of a court to make a finding in accordance with sub-section (1), a person is deemed to have caused the death of another person although the act is not the immediate or the sole cause of death in any of the following cases —

(a) ....
(b) ....

(c) ....

(d) if by any act or omission he or she hastened the death of a person suffering under any disease or injury which apart from such act or omission would have caused death;

(e)...

78. However, it would appear that this sub-section does not limit the right of the Court to make a finding in accordance with sub-section (1) on whether a person’s conduct substantially contributed to the death or harm, irrespective of the deeming provision in 246(2).
    
79. The probative effect of the deeming provision could be displaced by adducing evidence to the contrary. In other words, even if the Court finds that the Accused by their acts (punching) created a panic/stress situation and that situation hastened the death of the deceased who was already suffering from a heart disease which apart from such acts would have caused death, it is open for the Defence to adduce some evidence to create a doubt in the mind of the fact finder to displace the effect of the deeming provision.
    
80. The doctor could not rule out the heart attack having occurred due to the fright generated by the accident. Accordingly, even if the Court were to find that the stress generated by the punching was the substantial contributor to the heart attack that caused death of the deceased, still there had been on evidence in the instant case two competing causes of stress or fright that could have brought about a heart attack to the deceased. In view of the accident which the deceased had observed and experienced, it cannot be certain that the stress was solely generated by the conduct of the Accused. Therefore, the benefit of doubt should be held in favour of the Accused.
    
81. The English Court of Appeal decision in Dawson^[8] is quite relevant to this case. Two masked men, one was carrying a pickaxe handle and another armed with a replica gun, while the third accused kept watch, demandeey from a 60-year-old petrol filling station attendant (Mr Black), who, unknown to the accused, suffered from heart disease. The attendant pressed the alarm button, and the three men fled. Shortly after the police arrived, the attendant collapsed and died from a heart attack. They were charged, inter alia, with Manslaughter. At their trial, the medical experts were of the opinion that the attempted robbery was responsible for the attendant's death; but they could not rule out the possibility of a hear heart attack having occurred before the attempted robbery. The accused were convicted and appealed, on the ground inter alia, that the jury had been misdirected. The appeal was allowed.
    
82. In Dawson, the Court approved the direction given by the learned trial judge based upon what was said by Ormord L.J. in Bracewell (1979) 68 Cr. App. R 44 at 49) (Bracewell Directions) on how to approach the expert scientific evidence. The facts in Bracewell (supra) and Dawson (supra) are dissimilar to those in the present case, but the considerations arising from the medical evidence in both cases bore such a similarity as, in my view, to entitle the Court to take the Bracewell direction, suitably altered to accord with the evidence I must bear in mind, as a guide, which I reproduce as follows:
    

You must remember this, that a doctor, and you may have thought that Dr. Green was a splendid example of fairness, is speaking from a scientific point of view. He was saying, ‘I cannot as a scientific certainty rule out that which you postulate, namely partial asphyxia, recovery and then a heart attack,’ but, he said, ‘I incline strongly against that view.’ You will remember ladies and gentlemen that your duty is not to judge scientifically or with scientific certainty. You judge so that as sensible people you feel sure and even say that what might not satisfy Dr. Green as a scientific certainty, might, with propriety, satisfy you so that you felt sure. Do not be misled. There is no such thing as certainty in this life, absolute certainty. You ask yourselves the simple question upon the whole of the evidence do I feel sure? Take account of course of the doctor’s evidence. It is the most important evidence on this aspect. He is really the only one qualified to speak here. Take account of his reservation fully. That direction, in our judgment, correctly draws the distinction between what might be described as scientific proof on the one hand and legal proof on the other. It is, with respect, an admirably lucid and succinct way of dealing with a problem which often arises in connection with scientific evidence. It is, of course, part of cross-examining counsel’s duty to invite expert witnesses to consider alternative hypotheses and, after examining them in detail, to conclude by asking, ‘Can you exclude the possibility?’ The available data may be inadequate to prove scientifically that the alternative hypotheses is false, so the scientific witness will answer, ‘No, I cannot exclude it,’ though the effect of his evidence as a whole can be expressed in terms such as, ‘But for all practical purposes (including the jury’s) it is so unlikely that it can safely be ignored.’ This is in substance what Dr. Green said.”

83. Apart from the above direction, this Court in dealing with medical evidence should also be guided by the direction given by Boreham J to the jury in Bracewell (supra) in the following terms:
    

How then should you approach the doctors' evidence? Your task, using your experience and your common sense, is to ask yourselves whether you are sure of guilt beyond a reasonable doubt. You are not asked to say you are absolutely certain. Indeed there are few things in this trial which are absolutely certain. The doctors gave their evidence to you as experts. Their standard is the standard of medical science. So when they say in effect, in my opinion it is highly probable that Mr. Black's death was caused by the shock of the attempted robbery but I cannot rule out the possibility that it was caused by an episode of heart disease unconnected with the attempted robbery, you may think that it is in the context of medical science that they are using the phrases 'highly probable' and 'cannot rule out the possibility. The doctors' opinions do not necessarily oblige you to say that you cannot be sure. If they did then of course there would have been no point in inviting you to judge this matter. Of course, the doctors' opinions are of the utmost importance in this case and you will take full account of them. But when you have done so make up your own minds on the whole of the evidence.

84. The Prosecution is relying on State v Ratuwaqa^[9] where the High Court found the causation established and the accused guilty of (motor) manslaughter to support its claim that the Accused in the instant case should be guilty of Manslaughter. In that case, the medical evidence is somewhat analogous to the present case. The manslaughter charge was mounted on the allegation that the accused, having consumed alcohol (whose persenatge in blood exceeded the permited limit), had caused the death of the deceased by driving his car under the influence of alchol. The accused was drinking at a night club with his friends and the deceased whom he had met for the first time. The accused offered to drop the deceased home. On their way, the car fell to a creek upside down. The accused managed to come out of the vehicle and sought help from a bystander who helped the accused to take the deceased out of the vehicle. The deceased was stranded in the vehicle for 30 minutes and, by the time they managed to open the door, the lady's crying sound had faded and was unconscious. The attempt to resuscitate the deceased’s life failed.
    
85. The doctor who conducted the post-mortem examination found no external or internal injuries on the body of the deceased but a heart disease called Ischaemic Heart Disease. It was found that the right coronary artery was blocked by 70 to 75 persent, hampering the supply of enough blood and oxygen to the heart. The leading cause of death according to the postmortem report was Ischaemic Heart Disease. The postmortem report had further noted that the external cause of death is the history of a motor vehicle accident.
    
86. The doctor in his evidence explained that a person with such a compromised heart condition gets a sudden increase in heart rate due to a panic mode; it can be a contributing factor to death, though it cannot be proven in a postmortem. If the deceased were awake and aware at the time of the said motor accident, it would have increased her heart rate as it is natural to a fright response. Doctor had said that he could not really say for certain that the increase in heart rate was due to the motor vehicle accident and that caused the death. However, he affirmatively said that it can be a contributing factor to death.
    
87. These medical findings are very much similar to those explained by Dr John in this case. However, Ratuawqa (supra) could be distinguished from the present case on two main planks. First, in Ratuwaqa, the court found the act of driving under influence of alchol as being inherently cabable of causing serious harm to others road users. Rajasinghe J at [37] observed as follows:

There are certain conducts in our ordinary life, which are inherently capable of causing a risk of harm to others. Driving a motor vehiclehicle carries such an inherent risk or danger of damaging other vehicles or causing serious harm/harm to other people. (vide Blackstone’s 2020 Ed p 25; Hill v State [2018] FJCA 123; 123; AAU109.2015 (10 August 2018)) Such risks or dangers have been mitigated with a set of laws, rules and regulationserning the manner of driving motor vehicles. Section 103 (103 (1) of the Land Transport Act is one such law stipulated to maintain the driving of the drivers with due care and attention. Section 103 (1) of the Land Transport Act has prescribed that it is an offence if a person drives or attempts to drive a motor vehicle or is in charge of a motor vehicle while more than the prescribed concentration of alcohol is present in his or her blood. According to Regulation 3 of the Land Transport (Breath Test and Analysis) Regulations 2000, the prescribed concentration of alcohol is 80 milligrams of alcohol in 100 millilitres of blood.

88. Whereas in the present case, on the basis of an objective test, I found that a simple single punch on the face /head in the circumstances associated with each punching, does not carry an inherent danger capable of having such a risk of serious harm to the victim.
    
89. Second, in Ratuwaqa (supra), the only hypothesis available on evidence was that the panic situation was created by the accident. The Court found facts on the basis of the bystander’s evidence that the deceased was awake at the time of the accident to absorb the shock of fright. During cross-examination, the defence counsel put an alternative hypothesis to the doctor on the basis that, if the deceased were drinking, smoking or dancing that night, would they cause the heart rate to increase. Doctor agreed and said that dancing can, but it depends on how hard the deceased danced. Based on doctor’s evidence, the defence counsel argued that it cannot be certain that the hightened state of the deceased’s heartbeat was caused by the motor accident and therefore, the evidence presented by the prosecution lacked the required standard of proof to convict the accused of Manslaughter. The Court having disagreed with the defence counsel observed as follows:
    

However, there is no evidence presented or pointed out by the Defence that the deceased was dancing before this alleged accident. Additionally, the learned Counsel for the Defence did not venture further in exploring other alternate possibilities during his cross-examination.

90. In the instant case, there is evidence to support an alternative hypothesis that the fright could also have been produced when the deceased saw the boy being hit by the car driven by him and the glass being broken. Therefore, the facts of Ratuwaqa are quite different to those of the instant case.
    
91. Being guided by the above directions and upon consideration of the expert medical opinion, the doubt created thereby on the cause of death vis-a-vis the conduct of the Accused, I am not satisfied that the Prosecution has proved beyond reasonable doubt that the conduct of the Accused substantially contributed to the death of the deceased.
    

Fault Element of Manslaughter - Were the Accused reckless as to the risk of causing serious harm to the deceased?

92. The Prosecution is running the manslaughter charge in this case on the basis that the accused were reckless as to the risk of causing serious harm to the deceased. Therefore, it is apposite to look at the statutory interpretation on recklessness as stipulated in the Crimes Act. According to Section 21 (2) (a) of the Crimes Act, a person is reckless with respect of a result (serious harm) if he or she is aware of a substantial risk that the result (serious harm) will occur and having regard to the circumstances known to him or her, it is unjustifiable to take that risk.
    
93. The risk must be ‘substantial’. Objectively viewed, it is common knowledge that the head and the face are the most vulnerable parts of human body and anyone punching on that area should be aware of the risk involved in his or her action. A strong and forceful punch, albeit single, on the face or head would carry a substantial rick of causing serious harm to the victim which a reasonable prudent man in the shoes of the Accused would not have taken.
    
94. However, in this case, the 2^nd and the 3^rd Accused each had thrown only one punch on the deceased’s head. They had operated independently of each other in that there is no evidence that the conduct (punching) of the 2^nd Accused and where the punch landed were known to the 3^rd Accused. There is no direct evidence on how much force each punch must have carried. The fact that deceased after receiving those punches had not fallen down on the ground indicates that they did not carry strong force. Other than the small tears on the inner surface of the lower lip and the bruising, there were no other injuries internal or external caused by the punching. The medical evidence revealed no evidence of bony injuries internally on the skull or base of the skull including the jaws and the face or internal injuries or hemorrhage in the brain suggesting that the force used in punching had been intensive or severe. The 1^st Accused had punched the deceased but there is no evidence on which part of the deceased’s body he had punched. On medical evidence, no link whatsoever is established between the punches on the stomach and the heart attack other than the fright they might have caused.
95. The Supreme Court decision in Nacagilevu v State^[10] can be factually distinguished from the present case. In that case, during an armed gang robbery, the petitioner, one of the members of the gang, had violently punched the deceased on the forehead and as a result of the punch he fell down on the ground hitting his head on the railing and the concrete floor that connected the grocery with the house. The petitioner argued that he should not have been convicted for murder having relied on the concept of “novus actus interveniens.” The petitioner claimed that after his act of assault on the deceased the victim survived the punch and was alive and the deceased hit his head on the railing and the concrete edge when he fell down to the ground. According to the post-mortem report the deceased had died of concussion due to “ischemic heart disease”. The petitioner further adverted to the fact that the brain injury sustained by the deceased was a result of the falling and hitting his head on the edge of the concrete and not the punch he landed on the head.
96. The Court found that the allegation by the petitioner that the deceased would have died of concussion caused due to the falling and hitting his head on the edge of the concrete and due to the heart condition cannot be supported due to the evidence elicited from the post mortem report and caution interview statement as admitted by the petitioner. The Court observed ....One can argue that the medical condition of the deceased of which the petitioner was unaware would have rendered the victim susceptible to death than a person of normal health. But that contention or proposition does not enable the assailant to claim that the death does not attract criminal liability.
    
97. In Nacagilevu (supra), the force of the punch had been so severe that it caused the deceased to fall on the ground hitting his head on the railing and the concrete edge. There was a direct link established between the punch and the concussion that led to the death. On the same basis the facts of the case of Mamote-Kulang v Queen^[11] , cited in Nacagilevu, could also be distiguished. In that case the assailant hit the wife in the spleen causing the spleen to rupture and his wife to die. Windeyer J observed that “killing is not less a crime because the victim was frail and easily killed”
    
98. Whereas in the instant case, it is not open for the Court based on an objective test to find that the Accused persons were aware of a substantial risk that serious harm will occur when they dealt simple punches on the deceased. I am not satisfied the evidence does qualify the ‘substantial risk’ threshold in this case.
    
99. The next question is whether the Accused having regard to the circumstances known to them took an unreasonable risk that the result (serious harm) will occur.
    
100. In Ratuwaqa, Rajasinghe J thought that the test to be applied in deciding mens rea in a manslaughter case is purely one of objective. To support this thinking, His Lordship at [31] quoted the following paragraph of Lord Salmon from DPP v Newbury^[12]

I agree entirely with Lawton LJ that that is an admirably clearclear statement of the law which had been appled many times. It makes it plain (a) that an accused is guilty of manslaughter if it is proved that he intentionally did an act with was unlawful and dangerous and that the act inadvertently caused death and (b) that it is unnecessary to prove that the accused knew that the act was unlawful or dangerous. This is one of the reasons why cases of manslaughter very so infinitely in their gravity. They, may amount to little more than pure inadvertence and sometimes too little less than murder.”

101. Having quoted the above paragraph, His Lordship commented that the House of Lords in Newbury (supra) enunciated an objctive test to determine the accused's mens rea. His Lordship, having considered several decisions^[13] from other common law jurisdictions, concluded that the mens rea of Manslaughter should be based on an objective test. His Lordship observed at [35] as follows:
     

In view of the above discussed judicial precedents of England, I find it would be more practical to adopt an objective test based on a sober and reasonable man, but obviously with the necessary variation that suits the requirement of Section 239 of the Crimes Act, to determine whether the alleged conduct of the accused had the risk of causing serious harm to the deceased.

102. With respect, I would not agree that that the test for mens rea is purely one of objective. Having agreed that it is unnecessary to prove that the accused knew that the act was unlawful or dangerous, (in Fiji, the risk of causing serious harm) I do not subscribe to the view that, in Newbury, it was held that the mens rea of manslaughetr should be decided purely on the basis of an objective test.
103. As far as I can see, the paragraph quoted by Rajasinghe J from Newbury concers the actus reus and not mens rea. I do agree that the actus reus of manslaughter should be decided, as I have done in this case, on the basis of an objective test. Rajasinghe J too appears to have agreed with this view when he stated at the end of the paragraph 34 as follows:
     

....Having considereidered the previous decisions of R v Curch (1965) 49 Cr. App. App. R. 206) R v Lamb (1967) 51 Cr. App. R. 417) and R v Newbury (supra), Lord Thomas of Cwmgiedd CJ concluded that the Court must adopt the objective test enunciated by those cases in order to determine whether the act was dangerous.

104. 104. Section 21(3) of the Crimes Act provides that the question whether taking a risk is unjustifiable is one of fact. The questions of facts are generally decided on the basis of a subjective test^[14]. Accordingly, mens rea associated with recklessness, particularly whether the conduct of the accused was justified when he took the risk, should in my opinion be decided on the basis of a subjective test. The English Court of Appeal decision in Dawson (supra) supports this opinion. The appeal ground (vi) in that case had been raised on the basis that the jury had been misdirected by the direction- “That is to say all reasonable people who knew the facts that you know” in that they might have been given an erroneous impression of what knowledge could be ascribed to the “sober and reasonable man”. The Court at [P 137] held as follows:
     

We look finally at the direction, "That is to say all reasonable people who knew the facts that you know." What the jury knew included, of course, the undisputed fact that the deceased had a very bad heart which at any moment could have ceased to function. It may be the judge did not intend that this fact should be included in the phrase "the facts that you know." If that was so, it is regrettable that he did not make it clear. By saying as he did, it is argued "including the fact that the gun was a replica" and so on, the jury must have taken him to be telling them that all facts known to them, including the heart condition, should be taken into account in performing what is undoubtedly an objective test. We think there was a grave danger of that. This test can only be undertaken upon the basis of the knowledge gained by a sober and reasonable man as though he were present at the scene of and watched the unlawful act being performed and who knows that, as in the present case, an unloaded replica gun was in use, but that the victim may have thought it was a loaded gun in working order. In other words, he has the same knowledge as the man attempting to rob and no more. It was never suggested that any of these appellants knew that their victim had a bad heart. They knew nothing about him. A jury must be informed by the judge when trying the offence of manslaughter what facts they may and those which they may not use for the purpose of performing the test in the second element of this offence. The judge's direction here, unlike the bulk of an admirable summing-up, lacked that necessary precision and in the form it was given may, in our view, have given the jury an erroneous impression of what knowledge they could ascribe to the sober and reasonable man. For these reasons we see no alternative to quashing the convictions for manslaughter as unsafe and unsatisfactory. The appeal against the convictions for manslaughter is therefore allowed.

105. In the last part of the definition for recklessness in Section 21 (2) (a) of the Crimes Act, it is stated... and having regard to the circumstances known to him or her, it is unjustifiable to take that risk. It is clear, the test to be applied here is subjective in nature^[15]. Even the Learned Judge in Ratuwaqa acknowledged that in Dawson that the trial judge’s direction to the jury regarding the objective test was erroneous^[16].
     
106. There is no evidence that the Accused were aware of the special circumstance of the deceased that he was a heart patient. If they did, the risk they took would have been unjustifiable. The deceased who was in his fifties was a well-built man compared to the Accused. The Accused would not be able to know or foresee that a single simple punch on the face/ head or two simple punches on the stomach will cause serious harm to the deceased. Therefore, it cannot be said that the risk in terms of serious harm took by each Accused was unjustified in the circumstances known to them.
     
107. In view of the reasons aforesaid, I find that the evidence led in the trial is not sufficient and does not support a conviction for the offence of Manslaughter as charged.
     

Joint Manslaughter charge based on recklessness

108. The Accused were jointly charged for Manslaughter on the basis that they were reckless in causing serious harm to the deceased and not that they had intended to cause serious harm. The information does not clarify the basis of the joint charge. It may be assumed that they were jointly charged under Section 46 of the Crimes Act. The legal basis for joint charge is provided in Section 46 of the Crimes Act as follows:

When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

109. It is clear, that a joint charge on the basis of Section 46 could be maintained only if the Accused had shared a common intention to prosecute an unlawful purpose. I doubt if a joint charge could be maintained on the basis that the Accused were reckless as to the risk of causing serious harm to the deceased as charged in the information. No preliminary objection to that effect was raised by the Defence. In any event there is no evidence that the Accused were acting jointly in the prosecution of the alleged offence. The Accused had been drinking together on the roadside and after seeing the accident in which one of their colleagues was hit, the 2^nd Accused had approached the deceased on his own and punched when the deceased was still in the vehicle. Upon seeing that the 2^nd Accused was being pursued by the deceased, the 3^rd Accused intervened and punched the deceased. The 1^st Accused had punched the deceased much later in a separate incident which PW 2 described as another brawl. Therefore, there is no basis for them being charged jointly on the basis of joint enterprise.
     

Liability for minor offence

110. However, there is a legal basis to try the Accused in the same action together because each of them was engaged in an unlawful act in the same transaction. Even where two or more people are jointly charged in the same information, a fact finder is required to consider evidence against each accused separately which I have done in this case. In that exercise, I find the evidence is overwhelming to find each of them guilty of a minor offence separately although the evidence is not adequate to find the Accused guilty on manslaughter.
     
111. When an Accused is charged with a serious offence and the court finds that the serious offence has not been proved, Section 160 of the Criminal Procedure Act empowers the court to enter a conviction for a proved minor or cognate offence. Section 160 of the Criminal Procedure Act reads as follows: ....
     

160(1)... When a person is charged with an offence consisting of several particulars combination of some only of which constitutes a complete minor offence, and such combination is proved but the remaining particulars are not proved, the person may be convicted of the minor offence although he or she was not charged with it.

(2)... 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 or she was not charged with it.

112. According to Section 275 of the Crimes Act, a person commits a summary offence if he or she commits an assault occasioning actual bodily harm. I find that the evidence is sufficient to find each accused guilty of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Act.
     
113. The Prosecution failed to prove the charge of Manslughter beyond reasonable doubt. I find each accused not guilty as charged and acquit them accordingly. I find each Accused guilty of Assault Occasioning Actual Bodily Harm contrary to section 275 of the Crimes Act.
     

Aruna Aluthge
Judge

25 March 2024
At Lautoka

Solicitors:
Office of the Director of Public Prosecutions for State
Legal Aid Commission for Defence

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^[1] Section 21 (2) (a) of the Crimes Act 2009
^[2] Cection 21(3)

[3] Nacagilevu v State [2016] FJSC 19; CAV 023.2015 (22 June 2016)

^[4] (1983) 76 Cri.App R 279)
^[5] Section 246(1) of the Crimes Act 2009
^[6] Supra 4 (1983) 76 Cri.App R 279
^[7] Quoted by the Supreme Court of Fiji in Nacagilevu v State [2016] FJSC 19; (22 June 2016)


^[8] 81 Cr App R 150 CA at 153 &154

^[9] [2021] FJHC 180; HAC135.2019 (10 March 2021)

^[10] Supreme Court [2016] FJHC 19 (22 June 2016)
^[11] [1964] HCA 21; 1964 111 CLR 62
^[12] (1977) A.C.500, HL)
^[13] Pagett (supra); RvF (J) and E(N) (2015); Rurch(1965) 49 Cr.App.206) ;R v Lamb (1967) 51Cr.App.R.417)
^[14] See: McPhee v S Bennett Ltd (1934] 52 WN NSWI8 at [9]
^[15] Vide discussion at paragraphs 99 onwards
^[16] Para 41