Bauro v Reginam [1971] FJLawRp 27; [1971] 17 FLR 190 (7 September 1971)

[1971)] FLR 190

COURT OF APPEAL OF FIJI

CRIMINAL JURISDICTION

v

REGINAM

[COURT OF APPEAL, 1971 (Gould V.P., Marsack J.A. Tompkins J.A.),
31st August, 7ttember]

Criminal inal law-evidence and proof-homicide-cause of death-medical evidence-no post mortem carried out-sufficiency of evidence-malice aforethought-severity of injuries as evidence of-Penal Code 1965 (Gilbert & Ellice Islands) s.195.

Criminal law-practice and procedure-joinder of counts-count for assault causing actual bodily harm joined with a count for murder-series of offences of similar character-no prejudice to accused-Criminal Procedure Code 1963 (Gilbert. & Ellice Islands ) s. 118(1).

Criminal law-homicide-malice aforethought-evidence of-joinder of-more than one count.

At the trial of the appellant in the High Court on a charge of murder the only direct medical evidence as to the cause of death of the deceased was given by a Medical Assistant or Dresser who had three years' hospital training and twenty-one years' practical and had made a detailed examination of the body of the deceased; his conclusion was that death was due to serious internal injury from the crushing of the rib cage on both sides of the chest.

Held: 1. That though no post mortem examination was performed the evidence of the Medical Assistant was sufficient to prove the cause of death beyond reasonable doubt

2. The only reasonable inference from the evidence being that the appellant had beaten aten the deceased to death it was quite impossible that the appellant could have inflicted such severe injuries without malice aforethought in the form an intent to cause, or at least that he would probably cause, grievous bodily harm.

The count for murder was joined with a count charging an assault causing actual bodily harm arising out of an incident on the previous day.

Held: The joinder of the two counts, being counts comprising a series of offences of a similar character, was permissible under section 118(1) of the Criminal Procedure Code, and caused no prejudice to the appellant as evidence of the assault on the previous day would have been admissible in any event to show intent

Appeal from a conviction of murder by the High Court of the Western Pacific in the Gilbert and Ellice Islands Colony.

K. C. Ramrakha for the appellant
T. U. Tuivaga for the respondent

th Seth September 1971

JUDGMENT OF THE COURT (prepby Tompkins J.A.):-

We now deal with the f grou appeal, which was added by consent at the hearinearing that, on the evidence, he should hald have been convicted of manslaughter as was no sufficient proof ofof of malice aforethought.

Malice aforethought is defined in Section 195 of the Penal Code of thbert & Ellice Isla Islands No. 7 of 1965 as follows:-"Malice aforethought may be expressed or implied and express malice shall he deemed to be o be established by evidence proving eithethe following states of minf mind preceding or co-existing with the act or omission by which death is caused, and it may exist where that act is unpremeditated-

(a) An intention to cause death of or grievous bodily harm to any person, whether such person is the person actually killed or not; or

(b) a knowledge that the act which caused death will probably cause the death of, or grievous bodily harm to, some person whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused."

In this case the accused was unrepresented. The learned trial Judge had to determine without the assistance of a jury or of assessors, whether it was proved beyond reasonable doubt that the accused had caused his wife's death. The accused had gone to great pains to try to make it appear that his wife had committed suicide by hanging. Accordingly, nearly the whole of the judgment is devoted to this subject. He finally found that the deceased did not kill herself but that she was "brutally murdered"' by her husband. The evidence of the Medical Dresser was that on the right side of the chest of deceased, the 3rd, 4th and 5th ribs were broken In two places, the broken pieces being pressed inwards; on the left side, two ribs. 4th and 5th, were broken in two places and bent inwards. There were marks of general beating on the body. The Medical Dresser and the Doctor both thought that a person injured in that way could not have walked and would have died at least within a few hours.

It is true the accused had punished his wife by a severe physical assault on Sunday, the day before her death. He had gone out with her to cut toddy early on Monday. The only reasonable inference to be drawn from the evidence, we think, is that he had beaten her to death. We think it is quite impossible that she could have been beaten so severely by her husband without his intending to cause her grievous bodily harm. At the very least he must have known that the acts which caused death would probably cause grievous bodily harm to her. It may be true that the accused did not intend to kill his wife and intended only to punish her for wanting to leave him; but notwithstanding this we think that his mode of punishing her, if that were his purpose, was so extreme that he must have come within both (a) and (b) of the definition of "malice aforethought."

There is nothing on the record to show that the learned trial judge had directed his mind to the question of intent and to the possibility of the conviction for manslaughter only if malice were not established by the evidence. The only passages in his judgment from which his consideration of the question of intent might be inferred are these:-

At p. 23 line 1387 of the record: "She died from a brutal assault. I have formed the opinion that the crushing of the ribs in a similar manner on either side of the chest was probably due to her having been thrown to the ground on her back and then jumped on, the heels driving in the ribs on either side of the rib cage. If that is the correct conclusion as to how those particular injuries came to be caused, then it is significant that it is just what the accused said he did on the Sunday before she died, namely he threw her to the ground and trampled on her."

At p. 24 he said:

"The deceased did not kill herself. She was brutally murdered."

It may, we think, properly be concluded from these passages in the judgement that the trial Judge was satisfied that intent to kill or cause grievous bodily harm had been proved beyond reasonable doubt.

In our view, it would have been preferable, particularly as the accused was not legally represented, that the learned trial Judge should have expressly stated his reasons for holding that there was no basis for a verdict of manslaughter instead of murder. At the same time we are satisfied, from the whole tenor of the judgment, that the Judge had found the essential ingredient of malice in the crime of murder amply proved We can find no grounds upon which a verdict of manslaughter should be substituted for that of murder.

For these reasons the appeal will be dismissed.

Appeal dismissed.