Cevakibau v State [2008] FJSC 10; CAV0007.2006S (23 July 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0007 OF 2006S
(Fiji Court of Appeal No. AAU0007 of 2005S)

BETWEEN:

LUTU CEVAKIBAU
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Keith Mason, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Ronald Sackville, Judge of the Supreme Court

Hearing: Monday 21st July 2008, Suva

Counsel: Ms J Nair for the Petitioner
Mr W Kurisaqila for the Respondent

Date of Judgment: Wednesday, 23rd July 2008, Suva

JUDGMENT OF THE COURT

[1] The petitioner was convicted of the murder of his six year old daughter. It is no longer in issue that she died as a result of being beaten savagely and repeatedly with a piece of firewood and then a broom handle. She was also slapped and kicked in the course of what the sentencing judge described as "an act of sadistic brutality". She was taken to hospital unconscious and died there the following day. A post-mortem examination discovered abrasion marks all over the body with death having been caused by head injury as a complication of intracranial haemorrhage and edema.

[2] The petitioner never disputed the beating, either in the caution interview conducted on the day following the beating, in another one day later after the little girl had died, or in his unsworn statement at trial.

[3] The incident arose after the petitioner questioned his daughter about why a pencil had been sharpened at school apparently in breach of his prior instructions. In his first caution interview, the petitioner said that he was "really angry as this is not the first time she had been telling lies to me and the students have been telling me about her behaviour". In his second caution interview, he said that he beat and kicked his daughter "because she did not listen to what I told her, not to sharpen her pencil in school. In the afternoon I asked her and she showed me her pencil which she had sharpened. I got angry with her and I beat her." In his unsworn statement at trial he told the assessors that his purpose in hitting her was to educate. He never expected her to die.

[4] These passages make it plain that the beating was intentional and that the petitioner was very angry. It could not be suggested that any parental right to administer reasonable discipline was involved in the severe beating. The critical question was whether the petitioner was shown to have had the requisite intent to be guilty of murder, as distinct from manslaughter.

[4] The trial judge, Govind J. instructed the assessors that they could convict of murder if satisfied that the petitioner beat her –

1) with the intention of causing her death; or

2) with the intention of causing her really serious injury; or

3) with the knowledge that the beating would cause her death; or

4) with the knowledge that the beating would cause her really serious injuries.

[5] His Lordship indicated that any of the above would constitute malice aforethought. He also directed the assessors that if the petitioner had knowledge that his acts would probably cause death or really serious injury, then it did not matter whether he wished or did not wish for the girl to die or suffer grievous harm.

[6] There is no suggestion before us that these directions were inadequate. They reflect the terms of s.202 of the Penal Code which provides:

"202. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:-

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

(b) knowledge that the act or omission causing death will probably cause the death of or grievous 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.

[7] The only complaint raised in the Court of Appeal in regard to the directions was that manslaughter was not left to the assessors. That Court was of the view that the alternative verdict should have been left to the assessors. Their Lordships nevertheless applied the proviso, stating:

"30 ... [The] undisputed seriousness of the assault and the age of the victim leave us satisfied that the assessors could not have formed any opinion other than that the appellant, notwithstanding that he might have wished that they would not do so, undoubtedly realised his actions would probably cause grievous harm and was indifferent whether they did or not. In those circumstances we do not consider that any substantial miscarriage of justice has occurred and dismiss the appeal against conviction under the proviso to section 23(1) of the Court of Appeal Act."

[8] An additional matter came to attention during the hearing in this Court. The trial judge had directed the assessors that (emphasis added).

"The State also tendered the cautioned statement of the accused, in which he virtually agreed with all that his wife PW1 has told you. He admitted beating her with the stick, broom handle and kicking her. He said he did this because he was angry that she had disobeyed him. He said he knew that the beating he was giving her could cause her death.. He said much the same in the 1st charge statement he made."

[9] This was a significant misdirection on the facts. It is true that the petitioner expressly acknowledged in the first caution statement that he knew that his daughter "could lose her life through the injuries she received." The record caution statement includes the sentence "I know that the injuries which she received can cause her death and I am asking for forgiveness."

[10] But each statement went to his state of mind at the time of the respective caution interview. Nothing was asked and nothing said about his state of mind as to the probable effect of the injuries he was inflicting at the time he inflicted them. In the circumstances, Govind J’s directions may have been understood by the assessors as pointing to evidence by way of admission that went directly to malice aforethought within s.202(b) of the Code (above).

[11] It would have been well open to a properly instructed tribunal of fact to infer the requisite state of mind from the objective facts of the beatings and the injuries. But, unlike the Court of Appeal, we are unwilling to apply the proviso in view of the additional matter that came to light in this Court, being a matter of positive misdirection as distinct from an omission. We also bear in mind that the petitioner was unrepresented at trial.

[12] We have therefore concluded that this is a proper matter for the grant of special leave in light of s.7(2)(e) of the Supreme Court Act.

[13] The petitioner also submitted that the trial miscarried and that the verdict should be set aside because he was unrepresented at trial. The circumstances in which lack of representation in criminal proceedings may entail a breach of an accused person’s constitutional or common law rights will be explored by this Court in the Ledua matter fixed for hearing later in this Session. But the present case could not conceivably engage the principles involved. Here the petitioner was legally represented by Ms Nair, counsel funded by the Legal Aid Commission. He chose to dispense with legal representation, as was his right. On one view of the matter he claimed the right to counsel of his own choosing, funded by Legal Aid, something that was definitely not his right. (see Eliki Mototabua v. The State (CAV0004 of 2005S at [37]).

[14] Ms Nair, who represented the petitioner in this Court, raised additional issues about difficulties of communication with her client in the preparation of the case for trial. It is unclear whether these stemmed from problems with interpretation, or problems in the petitioner’s capacity to comprehend the consequences of his actions or the advice he was being given.

[15] In any event there is no suggestion that the petitioner was unfit to be tried.

[16] There were also oral submissions to the effect that the trial judge should have done more to inform the petitioner of his rights after the petitioner took over his own defence. These matters had not been raised previously, have been explored inadequately, and are unnecessary to resolve in light of our decision to order a new trial.

[17] Accordingly, we rule of the following orders:

(1) Leave to appeal granted

(2) Appeal upheld

(3) Set aside the order of the Court of Appeal dismissing the appeal against conviction under the proviso to s.23(1) of the Court of Appeal Act.

(4) In lieu, order that the appeal against conviction be allowed, the conviction is set aside and a new trial is ordered.

Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice Ronald Sackville
Judge of the Supreme Court

Solicitors:
Office of the Legal Aid Commission, Suva for the Petitioner
Office of the Director of Public Prosecutions, Suva for the Respondent