Lal v Reginam [1974] FijiLawRp 20; [1974] 20 FLR 82 (2 August 1974)

[1974] 20 FLR 82

COURT OF APPEAL

Criminal Jurisdiction

CESSION LAL AND ANOTHER

v

REGINAM

Gould V.P., Marsack J.A., Bodilly J.A.

25th July, 2nd August, 1974

Criminal law — summing up — self defence — only necessary to direct assessors on issue of self-defence if evidence present to support such a plea.

Criminal law — summing up — provocation — obligation on judge to direct assessors on provocation if evidence present from which provocation may be deduced.

Criminal law — sentence — murder — whether Court has jurisdiction to interfere with death sentence

In a trial for murder the appellants contended that the trial judge had inadequately directed the assessors, inter alia, on the issues of self-defence, and provocation.

Held: 1. If there was no evidence to support a plea of self-defence, then there was no onus on a trial judge to direct the assessors upon that issue. (Chan Kau v R [1955] AC 206 applied).

2. There was an obligation on a trial judge to direct the assessors on pro-vocation if there was evidence from which provocation might be deduced although not pleaded. However in this case, there was no such evidence. (Lee Chun Chuen v R [1963] 1 All ER 73; [1963] AC 220 applied).
3. The Court had no jurisdiction to interfere with the death sentence. (Uday Narayan v R 19 FLR 127 applied).

Appeal against the conviction and sentence by the Supreme Court for murder.

F. M. K. Sherani for the appellants.

G. Trafford-Walker for the respondent.

Judgment of the Court (read by MARSACK J.A.): [2nd August 1974]—

These are appeals against convictions for murder entered in the Supreme Court sitting a Suva on the 17th May 1974 and also against sentences of death imposed in each case. The two appellants were tried together before a Judge sitting with five assessors. The assessors all expressed the opinion that both appellants were guilty of murder as charged. The learned trial Judge accepted this unanimous opinions, gave judgment convicting each appellant of murder and passing sentence of death in each case.^[1]

The facts disclosed in the evidence may be shortly stated. The appellant Shiu Lal is the father of the appellant Cession Lal. The appellants, the deceased Apimeleki Uea, and one Jawahir Lal all lived in the same vicinity in Tamavua, Suva. Relations among the neighbours had for some time been unfriendly, the matter in dispute being the lands occupied by the different parties. On at least three occasions towards the latter end of 1973 there were quarrels between the appellants on the one hand and the deceased and his family on the other. No serious incidents occurred in the course of these quarrels until the night of Christmas 1973. Then disturbances among the families concerned broke out late at night. In the course of the troubles Apimeleki sustained a number of stab wounds and cut wounds on the head and upper limbs, the chest, side and back, as a result of which he died the same night. According to the medical evidence the cut wounds could have been caused by a cane knife similar to that produced at the trial, and the stab wounds were consistent with having been caused by a short dagger-bladed knife also produced. The medical evidence was to the effect that the cause of death was a stab wound to the heart. It is clear that Apimeleki, both appellants and one Jawahir Lal, among others, were all in the general vicinity during the disturbance; and the main question for determination at the trial was who had inflicted the wounds on Apimeleki, and in what circumstances.

A considerable volume of evidence at the trial was directed towards the previous quarrels which had occurred among the parties; but it does not seem necessary to traverse that evidence in detail now. All that it is necessary to say is that it showed the existence of strong ill-feeling between Apimeleki and his family on one side, and appellants and their families on the other.

The prosecution evidence as to what took place on Christmas night was given in the main by four witnesses. The first of these was the deceased's daughter Tuliana who gave her age as 14. She stated that she and her parents were at the house of one Ilaisa. Late that night she heard a woman calling out that there was trouble. She and her parents rushed outside, and she saw both appellants at Jawahir's house "brandishing their knives" and challenging "Apimeleki's gang." She said her father went towards the appellants who were close to Cession Lal's house. She then stated, "I got the impression that someone was hitting my father with something and my father then fell down".

Ilaisa deposed that he had heard the appellants shouting and second appellant saying in English, "If anyone comes to my compound I will kill him". He noticed the deceased struggling with the accused; it is not clear from the Record if he were referring to either of the accused or both. He saw the deceased coming back staggering and then falling to the ground. He was wounded in the chest and he seemed to have died. Aseri, the wife of Ilaisa, stated. that during this altercation she heard Cession Lal say in English, "If anyone comes in my boundary I'll kill him".

The most direct evidence came from Nacanieli Lavilavi who said that shortly after midnight he heard a disturbance in that general area and heard someone say "Bring a knife". He was afraid of growing trouble and went along to warn the people concerned not to resort to violence. In particular he said to the second appellant, "Shiu, don't fight; somebody could get hurt". He went to the people outside Jawahir Lal's house and warned them that the appellants had knives. He then noticed the appellants rush at a man whom he did not immediately recognise, but who turned out to be the deceased.

Nacanieli hurried to try to stop the fight. He then saw the man fall to the ground. He went on:

"As I came close I saw Cession Lal with a knife in his hand — he raised his hand with the knife and struck the man on the ground who was in a sitting position. After Cession had chopped at the man, the latter got up and rushed back but he only went a few paces and he dropped to the ground."

He went to lift up the fallen man and found that his back was covered with blood. He also identified a cane knife as similar to one he saw in the hand of the first appellant that night.