State v Manumanunitoga [2012] FJMC 271; Criminal Case 2105.2006 (31 October 2012)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Case No: 2105/06

THE STATE

V

PAULA MANUMANUNITOGA

Prosecution : Cpl Reddy [police prosecutor]
Accused : Mr Inia [Legal Aid Comission]

JUDGEMENT

1. The accused Paula Manumanunitoga was charged for one count of 'Act with intent to cause Grievous Harm' contrary to section 224(a) of the Penal Code Act 17.
   
2. Initially he entered a guilty plea and was sentenced by learned resident magistrate Mr.Waqaivolavola. Being dissatisfied of the sentence, Director Public Prosecution appealed against the order which was delivered by this Court.
   
3. Thereafter the High Court remitted the case back to this Court with an order for a re-trial as there were facts to consider that the accused acted in his self defence.
   
4. It is regrettable to note that this order for remittance was made on 22.02.2008 and until 05.07.2012 this matter had been in the 'Mention list' for various applications.
   
5. The alleged incident had taken place on 16.11.2006 at Samabula in the Central Division. The prosecution adduced evidence in order to prove that the victim Mr. Epi Joji Lailai was wounded by the accused with intent to cause grievous harm.
   
6. The onus every time rests with the prosecution to prove a charge beyond reasonable doubt. It never shifts to the accused. In other words defence needs not to prove anything in the trial. However in the present case the defence proceeded to cross examine the prosecution witnesses on the basis of 'Self Defence'.
   
7. The prosecution adduced evidence of five witnesses. The caution interview and the charging statement of the accused were tendered in by consent.
   
8. Ms. Viniana Naisa testified as the opening witness. The victim had been her uncle and they were living in the same compound at the time of the incident. She was the partner of the accused and they were separated three months before the incident. However the accused had visited her during early hours on the day of the incident. They had a conversation and it was interrupted by the victim at 6 am. The victim had asked the accused to leave the house. When the accused turned to leave the victim has swore at him stating 'mother's cunt and father's cunt'. Witness stated that he further threw the bottle of beer he had in his hand as the dog barked at him. The witness states that the accused left the place and she too went back to bed. She was unaware of the latter incident.
   
9. She further stated in cross examination that the accused had not in good terms with the victim as the victim tried to adopt their child. She went on to say that there was nothing aggressive by the accused before the victim's behaviour.
   
10. Detective constable 2991 Clint gave evidence as the second witness of the persecution. He explained the duties and the formalities carried out by him as he was tasked with interviewing the accused. The interview was tendered as the first exhibit of the prosecution.
    
11. Police constable 2659 Eliki echoed a similar testimony as the charging officer and it was marked as exhibit 2.
    
12. The prosecution called the victim on 06.07.2012 as their fourth witness. He was a retired military officer. At the time of incident he had been in the army and was residing at Samabula.
    
13. He recalled the incident slightly different to the first witness. According to him the witness Viniana came running towards him accusing that the accused abused her. He states that sometime he heard a commotion from the road. This tempted him to run down towards the road. He further stated that he knew that it would end up with a fist fight.
    
14. The victim stated that he chased and went after the accused 800 meters from his residence. The victim then had seen some youth who were acting in favour of the accused. He was caught and surrounded by them and the accused ran towards their kitchen to arm with a knife. Victim states thereafter the accused came from behind to stab three times on his ribs. Later he was taken to the hospital by his brother in law Poate Tanoa.
    
15. The victim was medically examined at the hospital and the report was marked as exhibit 03.
    
16. During the cross examination of the victim Mr. Inia managed to highlight a vital omission which was in the victim's police statement. In fact the victim admitted that he did not mention anything in his police statement, about the people who surrounded him. Further he admitted that he took an iron rod before the assault by the accused.
    
17. However in his re examination he stated that he took the rusty old pipe to protect himself from the accused. And the omission was made due to his ill health at the time he made the statement.
    
18. The brother in law of the victim Mr. Poate Tanoa called as the next witness. This witness came out with new additions to the victim's evidence. Firstly he stated that the accused threw stones at the victim. Thereafter the accused had challenged the victim by saying 'if you can challenge for a fight follow me to the roundabout'.
    
19. Then at the roundabout they had exchanged few punches and then the youths have joined the accused. After that the accused came with a knife to stab the victim.
    
20. He further stated that the victim appeared 'normal' to him after the stabbing. However this witness too faced difficulties in explaining the omission made by him during the recording of the police statement. He had no other option but to accept that he did not mention anything about the youth who aided the accused.
    
21. Although the medical report was tendered through the victim the prosecution did not call any witness to testify on the said report. I note that there was no agreement between the two parties to admit the medical report by consent. Therefore it is the duty of the prosecution to call for a medical practitioner with adequate expertise to explain and express his opinion for the Court to come to a conclusion on the injuries.
    
22. Thereafter the prosecution rested their case. The accused opted to give evidence for the defence case.
    
23. He narrated the same evidence which was given by the first prosecution witness. He stated that he smashed the beer bottle on the road as the dog barked at him. Then the victim had started assaulting him with stones and called his neighbours to support him. Later he was chased by the victim and others. The accused has run towards his cousin brother's place. This time the accused states that he saw the victim was armed with an iron rod. He has jumped to a Lovo pit and found a knife from there. The accused stated that the victim tried and assaulted him four times with the iron rod. He further stated that during the struggle he stabbed the victim due to the fear he had for his life.
    
24. The accused stated during his cross examination that he did not intent to cause injuries to the victim. He stated that the assault by the iron rod only left pain on him and therefore he did not receive any treatments.
    
25. Ms Asena Duaibe testified as a defence witness. She had witnessed the incident and stated that the victim is the one who approached the accused with an iron rod to assault. She stated that the accused at all times tried to avoid any fight. However she has seen the victim yelling out to kill Paula the accused. Defence closed its case with this evidence.
    
26. In order to secure a conviction the prosecution has to prove the following elements beyond reasonable doubt.
    
    1. Whether this act was committed by Paula Manumanunitoga,
       
    2. Whether he had the intention to maim, disfigure, disable Epi Joji or to do some grievous harm to Epi Joji,
       
    100. Whether Pula unlawfully wounded or caused grievous harm to Epi Joji.
         
27. It is to be noted that the prosecution only called two witnesses [victim and his brother in law] who witnessed the actual incident right throughout. Both these witnesses stated that the victim was caught up by a group of youth. I note that this is a vital piece of evidence in the prosecution case which affect the core of the case. However both witnesses admitted that they did not mention this in their initial statements. The victim said that he was not in a proper mind as he was injured. But the brother in law stated that he appeared to be normal to him after the incident. Anyhow the Court notes that this evidence was stated six years after the incident.
    
28. Further these two witnesses explained the incident with considerable difference. The victim never mentioned that they had a fist fight at the halfway nor he stated that the accused challenged him to follow him to the roundabout. Further Tanoa stated that the accused threw a stone at victim. The contradictory positions and lack of consistency will undoubtedly have serious impact on these testimonies.
    
29. It is also prominent to note that the victim reluctantly admitted the fact that he took the iron rod in to his hands. Further the victim stated that Viniana came accusing that she was abused by the accused. But Viniana never mentioned this during her evidence.
    
30. Therefore I note that it is highly unsafe to act on such doubtful evidence which is contradictory in nature. Furthermore I note that there is no incriminating evidence in the caution interview or in the charging statement against the accused person.
    
31. However before the conclusion, the Court would like to address on the defence which was took-up by the accused of this case although there is no burden on him to adduce such evidence. His contention was that he acted in his self defence.
    
32. If a person intentionally strikes another person without legal justification then that is a criminal assault. In such circumstances a person who deliberately hits another is committing an unlawful act. The Court is mindful to the fact that there can be legal justification to an assault such as 'Self Defence'. In fact this had been identified by the legislature under the general exceptions to the offences.
    
33. Section 17 of the Penal Code states as follows,
    

Defence of person or property

17. subject to any express provisions in this Code or any other law in operation in Fiji, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law

34. LORD MORRIS of BORTH-y-GEST discussed this legal principal in the Privy Council case of PALMER v REGINAM [1970] UKPC 2; (1971) 1 All. E.R. 1077 at p.1088 which is the high water mark on the subject of self-defence and provocation. This ould become pertinent and to be borne in mind when considering the defence that has been raised:
    

"In their Lordships' view the defence of self defence is one which can be ill be l be readily understood by any jury. It is a straightforward conception. It involves no abstruse legal thought. It requires no set words by way of explan.

No formula need be employed in referenference to it. Only common sense is needed for its understanding. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but may only do, what is reasonably necessary. But everything will depend on the particular facts and circumstances. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack it would not be common sense to permit some action of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is serious so that it puts someone in immediate peril then immediate defensive action may be necessary.

If there has been no attack then clearly there will have been no need for defence. If there has been attack so that defence is reasonably necessary it will be recognised that a person defending himself cannot weigh to a nicety the exact measure of his necessary defensive action. If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary that would be most potent evidence that only reasonable defensive action had been taken. A jury will be told that the defence of self- defence, where the evidence makes it raising possible, will only fail if the prosecution show beyond doubt that what the accused did was not by way of self-defence.

But their Lordships consider in agreement with the approach in De Freitas v R (1960) 2 W.L.R. 523 that if the prosecution have shown that what was done was not done in self-defence&#then that isst issue is eliminated from the case. If the jury consider that an accused acted in self-defence or if the juryin dos to thio this then they will acquit. The defence of self-defence either succeedsceeds so as to result in an acquittal or idisproved in which case as a defence it is rejected."

35. It was stated that in this case tase the victim is the one who initiated the incident by scolding at accused. Later he was chased away by the victim with the help of others. Finally he assaulted the accused having armed with an iron rod. The circumstances were very much sufficient to justify the reaction of the accused person. Further he has not exceeded his right by inflicting large number of injuries. Therefore the view of this Court is that the accused would succeed even in his defence case as he has proved his defence on the balance of probabilities.
    
36. I conclude that the prosecution case fails due to the infirmities of their own evidence.
    
37. Accordingly the accused is acquitted.
    
38. Twenty eight [28] days to appeal.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

31st October 2012