Shaheen v State [2022] FJSC 17; CAV0015.2019 (28 April 2022)

IN THE SUPREME COURT OF FIJI
[CRIMINAL APPELLATE JURISDICTION]

Criminal Petition No: CAV 0015 of 2019
[On Appeal from the Court of Appeal Criminal Appeal No: AAU 0078 of 2015; High Court No: HAC 113 of 2012]

BETWEEN:

MOHAMMED SHAHEEN
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon. Mr. Justice Anthony Gates, Judge of the Supreme Court

The Hon. Mr. Justice Saleem Marsoof, Judge of the Supreme Court

The Hon. Mr. Justice Brian Keith, Judge of the Supreme Court

Counsels: Mr S. Waqainabete for Petitioner

Mr L. J. Burney for the Respondent

Date of Hearing: 13^th April, 2022

Date of Judgment: 28^th April, 2022

JUDGMENT

Gates J

[1] This case concerns whether the prosecution had proven the element of intention to kill beyond a reasonable doubt. The petitioner was charged with a single count of attempted murder contrary to sections 44 and 237 of the Crimes Act.

[2] He came before the High Court at Lautoka. He was tried over 2 days and convicted on 24^th June 2015. On 25^th June 2015 he was sentenced by the learned Judge to the mandatory penalty for this offence of life imprisonment. The judge exercised his judicial discretion to fix a minimum term to be served before pardon may be considered. His Lordship fixed 8 years as the minimum period. A permanent Domestic Violence Restraining order was imposed identifying the victim as the protected person.

[3] The petition of appeal is against conviction only. There is no appeal to this court against the sentence imposed.

[4] The petition is timely. It was signed by the Petitioner, then a serving prisoner, on 12^th June 2019 being received in the Supreme Court Registry later, the papers being stamped by the registry on 5^th July 2019. The decision of the Full Court of the Court of Appeal had been delivered on 6^th June 2019. Because of the COVID-19 pandemic, this is the first sittings of this court following the commencement of the lockdown in 2020.

[5] The petition presents a single ground for the appeal:

“CONVICTION

Ground 1: THAT the conviction was unreasonable and cannot be supported by law and facts, since the State was not relieved from the burden to prove the element of ‘intention to kill’, beyond a reasonable doubt, for the offence of attempted murder, thereby causing a grave miscarriage of justice.”

The High Court Trial

[6] Very little was in dispute at the trial. The Agreed Facts accepted relevantly that the Petitioner and the complainant had been living at Votualevu, Ba in a de facto relationship for the previous 4 years. On the 4^th September 2012 the complainant left the Petitioner’s home and came to live with her daughter in Lovu, Lautoka. On 7^th September 2012 she came to Lautoka City with one of her friends.

[7] Near the Chilli Tree Café she met the petitioner. He asked her to return home with him. She refused to go. She was taken to the Lautoka Hospital and admitted in the Trauma Ward where she was examined by Dr Fane Lord. Noted on her body was: multiple lacerations about 1cm x 1cm around the left scapular area [shoulder blade upper back], posterior chest wall [below scapular], left umbilical [region of abdomen near stomach, pancreas], and middle finger. The Petitioner was arrested on 7^th September 2012 and interviewed under caution at the Lautoka Police Station the next day.

[8] The first witness was the doctor who examined the complainant in Lautoka Hospital the afternoon of the attack. Dr Fane Lord noted her clothing was blood stained. She recorded the injuries on the medical report form as:

“1. Multiple lacerations secondary to stab wound – post chest wall/ant ab wall/rt middle finger.”

[9] The form contained notes of possible injuries to be looked for whilst the patient was held in the Trauma Ward – internal bleeding in the lung cavity, haemothorax and pneumothorax or collapsed lungs. She said the wounds were not deep enough to penetrate the vital organs. Some stitches were applied.

[10] The next witness was the complainant. She said she went to town on the day in question with a friend. She recalled walking with her friend towards Chilli Tree Café. She said:

“I was talking to another boy who was my boyfriend, not him after he left me (shows the accused). While I was talking to this boyfriend he saw me. He was Mohammed Shaheen. It was my fault. I was talking to my boyfriend and Mohammed Shaheen came to me. He came and asked me “what’s this?” Then I told him I don’t want you. I want him. He could not control his temper and then he hit me on my stomach and after that I was unconscious and know nothing. I said I left Mohammed Shaheen. I left him because I had another affair so I left him because I did not want to stay with him.”

[11] After that she was treated as a hostile witness. She said he was playing around with a knife in his hand. “I was not aware he would stab me with his knife.” She said he did not mean to stab her and she got injured accidentally. She said it was her fault. The judge allowed the prosecution to cross-examine her.

[12] She admitted she was kept in hospital for 3 days.

[13] A bouncer from a nightclub, Pita Lotu, was passing through Naviti Street at the time of the incident. It was around 6pm, and he had been sent on an errand by his employer. He saw a crowd of people near the Chilli Tree Café. He saw the petitioner stabbing the victim. The victim ran towards him. The petitioner was following her. He tried to stop the petitioner. The petitioner tried to scare him but Pita punched him. He fell to the ground and Pita took the knife from him. He locked his hands at the back to take him to the Police Post. At that moment, a police vehicle arrived, so he handed the petitioner over to the police, together with the knife.

[14] He said he saw blood on her clothes when the victim ran towards him. It was on her chest area. She seemed frightened. He said he definitely saw the stabbing which was taking place in the middle of the road.

[15] D/Cpl. Salen commenced duties at 6pm on the day in question. He was on mobile patrol and arrived on the scene of the incident at Naviti Street junction with Nande Street. The witness Pita handed over to him the petitioner and a kitchen knife with a small blade and a wooden handle. He arrested the petitioner and took him to the Police Station.

[16] DC Tobia Matai was witness No.5. He was appointed Investigating Officer for the case. The day after the arrest he conducted a caution interview of the petitioner in English. He also went with the petitioner to the shop where the petitioner said he purchased the knife.

[17] In the interview, which was not disputed the Police Constable put the stabbing allegation to the petitioner. The Officer referred to the unlawful stabbing of the victim with a kitchen knife, causing injuries to her stomach, back, below the left breast, and on her right hand ring finger. The Petitioner said he was a cane cutter and he also looked after his employer’s farm. He said he had been staying with his third wife, the complainant. They were not married but had been staying together for 4 years.

[18] He said they were no longer staying together. He was asked why and he replied “she said she had another boyfriend.” The complainant had left him the previous week.

[19] On Friday 17^th September, 2012 he came to Lautoka. He said he came looking for the complainant and wanted to beg her to come back. He met her near the Chilli Tree restaurant. He asked her to come with him to Ba. She said she had a boyfriend “and also had a client who had money and I didn’t have any money.”

[20] He said he waited for her, but saw her go with a man into the motel. He waited over an hour. He approached her when she emerged and asked her whether she was taking clients. She said yes. He said he got angry and pulled out a kitchen knife from his pocket which he had bought from Rups Big Bear. He was really upset he said. “I really want to stab her at that time.” There was a tussle then he started to stab her. He said he stabbed her once in the stomach, her breast, and her back. She tried to get the knife off him and in the process when he pulled the knife back it cut her finger.

[21] The stabbing stopped when a Fijian man came and punched him on the mouth and the knife was taken from him by the Fijian man. He was asked why he bought the knife, and he replied “to use it to stab (the complainant)”. Then he was asked why did he stab the complainant and he said “because every time she always tell lies to me.” Later he went with the police to reconstruct the scene and showed them the shop where he had purchased earlier that day the knife.

[22] Defence counsel informed the court that the petitioner was electing to remain silent. No witnesses were called for defence.

[23] In a careful summing up the learned trial judge told the assessors of the elements of the offence, including the intention to kill the victim. He told them:

“You decide whether the accused intended to kill Rovina Lata. You decide intent by considering what the accused did or did not. You should look at his actions before, at the time of and after the act. The weapon used, the place of the body where the injury was inflicted, all these things may shed light on the intention of the accused at the crucial time.”

[24] He directed them that something more than mere preparation was required. His Lordship also told them of the alternative offence of act with intent to cause grievous harm and what had to be proved. He traversed the medical evidence on the injuries inflicted.

[25] The assessors gave their unanimous opinions that the petitioner was not guilty of attempted murder or act with intent to cause grievous harm. The judge in his judgment considered the opinions perverse and convicted the petitioner. His Lordship gave cogent reasons for not accepting the opinions. He referred to the anger of the petitioner, the prior purchase of the knife, and the type of injuries caused by the attack – the chest injury. The injuries could have been more serious. The petitioners motive was established.

Court of Appeal

[26] An application for leave to appeal was brought before a single judge of the Court of Appeal. Various matters were ventilated including, it was said, the lack of cogent reasons by the judge in disregarding the assessors opinions. Also raised was the Director of Public Prosecutions decision to charge for the more serious offence of attempted murder. On 23^rd June 2017 leave was refused.

[27] The matter was referred to the Full Court of the Court of Appeal. On 6^th June 2019 the Court declined leave and dismissed the appeal.

[28] In some ways the petitioner can engender our sympathy. He had faced the failure of yet another marriage or relationship. He was an asthma sufferer. He was not in well paid employment. He was a first offender. He co-operated with the police in all respects. He was remorseful. Even the complainant felt sorry for him and was not prepared to give her evidence to match her police statement. She tried to help him in her testimony.

[29] But this was a very serious matter. It occurred on a public street in full view of passersby. He pre-planned the anticipated assault. He purchased a kitchen knife beforehand. He became so angry and he kept on stabbing. What might have happened if the powerful bouncer had not stepped in and got him to the ground and taken the knife off him? The injuries caused could have been much more serious since the wounds were close to vital organs. It was an attack that became frenzied since he was so angry. It was a bad case of domestic violence with a weapon.

[30] He gave a very frank account of his actions to the police. He was truthful. But he was never pressed in the interview on what he really intended by the use of the knife. Nevertheless what we are concerned with here is whether there was a sufficiency of credible evidence to prove that he had an intention to kill the complainant.

[31] The evidence available was:

1. The pre-planning by the purchase of the kitchen knife beforehand. He said he was going to town to beg her to come back home with him. Why would he need a knife then?
2. The knife was said to be small but that had to be weighed with the ferocity of the attack, the number of blows, the continuous stabbing.
3. He had to be stopped. It was owing to the bravery of a bystander to intervene, though unarmed, to stop the stabbing and to take the knife away from him. What would have happened if no one was brave enough to step in?
4. The number of injuries, the wound locations on the body, the proximity to vital organs, and the dangers of haemothorax or pneumothorax.
   

[32] On the evidence presented to the High Court, almost entirely undisputed, by the Petitioner there existed material for a court to reach the reasonable conclusion that the Petitioner intended to kill the complainant.

[33] The decisions of the High Court and the Court of Appeal are not to be disturbed and the petition must be dismissed.

Marsoof J

[34] I have read the Judgment of His Lordship Gates J and I agree with his reasons, conclusions and orders proposed.

Keith J

[35] For the reasons given by Gates J, I agree that leave to appeal to the Supreme Court should be refused. I add a few words of my own only to explain why the trial judge would have been justified in disagreeing with the unanimous opinion of the assessors.

[36] As Gates J has said, the assessors expressed the opinion, not merely that the petitioner was not guilty of attempted murder, but also that he was not guilty of the alternative offence of acting with intent to cause grievous bodily harm. Whatever view one takes about whether the prosecution had proved the intent required for attempted murder, it is, I think, unquestionably the case that the prosecution had proved the intent required for the lesser offence. It looks, therefore, as if the assessors may have allowed such sympathies as they had for the petitioner to get the better of them. That would have called into question the extent to which they had properly addressed the principal issue of controversy which they had had to decide – namely whether the State had proved the intent required for attempted murder.

Orders:

1. Special leave to appeal refused.
2. Petition dismissed.
   

__________________________
Hon. Mr Justice Anthony Gates
Judge of the Supreme Court

__________________________
Hon. Mr Justice Saleem Marsoof
Judge of the Supreme Court

_________________________
Hon. Mr Justice Brian Keith
Judge of the Supreme Court