Prasad v Reginam [1985] FijiLawRp 15; [1985] 31 FLR 76 (8 November 1985)

[1985] 31 FLR 76

COURT OF APPEAL OF FIJI

Criminal Jurisdiction

JITEND PRASAD

v

REGINAM

Mishra, J. A ., Roper, J. A., O'Regan, J. A.

Date of hearing: 21 October, 1985
Delivery of Judgment: 8 November, 1985

(Criminal Law – Murder − Provocation − 3 Elements − Accused's reaction not one to be expected of an ordinary person of his age, background − Judge rarely if ever to reject opinion of assessors familiar with the accused's background − accused's retaliation not reasonable to provocation offered.)

S. R. Shankar for the Appellant.
M. D. Scott (Director of Public Prosecutions & B. Singh for the Respondent.

Appellant aged 18 lived on a farm at Nawaicoba near Nadi with his mother, elder brother (brother) and the brother's wife, Anjila. Her parents were not on the best of terms with the brother and his mother. The deceased's home at Nawaicoba was not a happy one. On 30 October, 1983 the brother arrived home to find Anjila lying outside the house on the ground with multiple injuries to the head including a compound fracture of the skull. The appellant was sitting nearby on a log. Police were informed. Anjila was taken to the hospital. She died on 09 November, 1983 without regaining consciousness. The appellant was interviewed on 30 October, 1983. He gave an account of seeing Anjila armed with a knife chasing his mother. He thereupon picked up an iron bar. By then Anjila "lifted the knife to hit her". He aimed a blow to "hit on the knife"; it missed and landed on her head; then she fell down and he sat down a little distance away. He was charged with wounding with intent to do grievous bodily harm. He made when charged a similar statement adding that he was angry and hit her hard.

After the death, appellant was charged with murder. He made another statement which included that·" ....I saw blood on the head of (Anjila)and I kept on hitting her, but I do not know how many times ........"

The grounds of appeal were:-

"(a) that in his judgment the learned Judge misdirected himself on the issue of provocation;

(b) that the learned Judge erred in holding the statements made by the appellant to the police voluntary."

At the trial the appellant gave evidence that he had struck Anjila only once in self defence. This was relied on as a defence. The trial Judge directed the assessors on provocation also, in terms not the subject of objection. But counsel for the appellant did challenge the validity of the trial Judge's reasoning for accepting the unanimous opinion of the assessors.

Appellant had also made allegations of serious assault against police officers when he was interviewed at the Police Station. The Judge accepted the evidence of the police officers.

The appellant was found guilty.

There were also allegation of "rough handling" by Police at the hospital before he was brought to the Police Station.

Held: "Provocation in each case is an issue of fact which a panel of assessors familiar with the background of the accused is best qualified to determine". A trial Judge should rarely if ever reject their assessment.

The learned trial Judge followed the dictum of the Privy Council in Lee Chun Chuen (1963) AC 220:

"Provocation in law consists mainly of three elements the act of provocation, the loss of self control, both actual and reasonable and the retaliation proportionate to the provocation."

He found the appellant's reaction, taken in its totality, not to be one which could be expected from an ordinary person of the appellant's age and background. No words were spoken between appellant and Anjila - she was unwell, and much smaller than appellant, who was unmarked in the encounter.

The trial Judge felt there might have been some "rough handling" of appellant before he was taken to the Police Station but was satisfied beyond reasonable doubt that the effect of any such assault was well dissipated by the time the statement was taken. No evidence suggested appellant's free will was overcome so that he spoke when he might have remained silent.

This conclusion, in view of evidence which was accepted, was correct.

Appeal dismissed.

Cases referred to:

Ram Lal (FCA 3 of 1958).
Lee Chun-Chuen v R (1963) AC 220.

MISHRA, Justice of Appeal.

Judgment of the Court

This is an appeal against a conviction of murder on two grounds:-

(a) that in his judgement the learned Judge misdirected himself on the issue of provocation;

(b) that the learned Judge erred in holding the statements made by the appellant to the police voluntary.

The appellant, 18 years of age, lived on a farm at Nawaicoba, Nadi, with his mother and his elder brother, Hari Prasad, who was married to the deceased.

The deceased's parents were not on the best of terms with Hari Prasad and his mother and, as the learned Judge found, the deceased's home at Nawaicoba was not a happy one.

On 30th October, 1983, Hari Prasad arrived home from Lautoka to find the deceased lying on the ground outside the house with an injury to her head and the appellant sitting nearby on a log. The police were informed and the deceased was taken to the hospital where she died on 9th November, 1983, without regaining consciousness.

Death, according to the medical evidence, was due to multiple injuries to the head resulting in a compound fracture of the skull.

Interviewed by the police the same day the appellant, among other things, said:-

"Then I saw my sister-in-law chasing my mother with a cane knife. The same time my mother called out look Vijend she is chasing with knife. Then I went out from the bed onto the porch and saw one iron bar on the porch and I picked that iron bar, and I went out of the porch by then my sister-in-law lifted the knife to hit me then I with iron bar hit on the knife but it missed and landed on her head, my sister-in-law fell down then I threw the iron bar and went and sat down a little distance about ten yards away."

When charged with wounding with intent to do grievious harm he made a similar statement again in which appears the following:-

"I then raised the iron bar to hit the knife but it missed and hit her on the head. I was angry and I hit her hard and Anjila fell to the ground and did not came up."

On 11.11.1983, after the deceased's death the appellant was charged with murder and made another statement in which he said:-