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Nacagilevu v State [2013] FJCA 6; AAU0058.2010 (1 February 2013)

IN THE COURT OF APPEAL, FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.AAU0058 OF 2010
[High Court Criminal Action No. HAC 155 of 2007]

BETWEEN:

PAULIASI NACAGILEVU
Appellant

AND:

THE STATE
Respondent

Coram : Chandra RJA

Counsel : Appellant in Person
Mr M. Korovou for the Respondent

Date of Hearing : 11 October 2012
Date of Ruling : 1 February 2013

RULING

1. The Appellant was charged for the count of Murder contrary to section 199 and 200 of the Penal Code (Cap.17) and 4 counts of Robbery with Violence contrary to Section 293(1)(1) of the Penal Code (Cap.17).
   
2. The Appellant was charged with four others on all the counts that the Appellant was charged with and he pleaded not guilty to all the charges and the case proceeded to trial before Assessors in the High Court of Fiji at Lautoka.
   
3. The Assessors returned an unanimous verdict of guilty on the charges against the Appellant and on 9th August 2010 he was sentenced to Life Imprisonment on the Count of Murder and 15 years imprisonment each for the four counts of robbery and the minimum term of imprisonment that the Appellant had to serve before being eligible for parole was a period of 14 years.
   
4. The Appellant has made an application for leave to appeal against his conviction and the grounds urged by the Appellant are as follows:
   
   1. That the learned Trial Judge erred in law when convicting him with murder when the evidence of joint enterprise was available in evidence and the Appellant was acting in concert with his accomplices;
      
   2. That the learned Trial Judge erred in law when he did not properly and/or adequately direct the assessors on the issue of causation;
      
   3. That the learned Trial Judge erred in law when convicting the Appellant with the 4 counts of robbery with violence when the evidence shows that the Appellant had effectively withdrawn himself from the joint enterprise.
      
5. On 5th October 2007 the Appellant and four others at about 9 p.m. had laid in wait till a shop keeper closed up his shop, waylaid him and the Appellant had punched him once as a result of which he had fallen down and later had died, had proceeded to the dwelling house and threatened four ladies who were there, being armed with a pinch bar, a cane knife and a kitchen knife, injured them, had hurled obscenities at them, stolen their jewellery, their cash and the keys to the rental car which had been hired by one of the ladies, driven away in the car picking up the fifth accused at the Tavua Bus stand and eventually proceeded to Malele where they had broken into another house at 1.30 a.m. while the occupants were sleeping, and before they could steal anything another car had arrived and they had fled the scene.
   
6. The Assessors had found the three offenders who had entered the premises of the victims, not guilty of murder but guilty of the lesser offence of manslaughter while finding the Appellant guilty of murder.
   
7. The Appellant and the three offenders who had entered the premises of the victims were charged with the count of murder on the basis of joint enterprise and therefore the question arises as to the justifiability of the verdict of the Assessors whereby they found the Appellant guilty of murder and the others guilty of manslaughter. The learned trial Judge agreed with the said findings and proceeded to convict and sentence the offenders on that basis.
   
8. The Respondent citing the decisions in Tej Deo v The State [2008] FJCA 23 and Joji Dresuna v The State [2006] FJCA 33 submitted that the learned trial Judge's summing up to the assessors was fair and sufficient on the issue of joint enterprise. The trial Judge's summing up has been adequate on the issue of joint enterprise, but the question that arises in this appeal is as regards the decision of the learned trial Judge in agreeing with the verdict of the Assessors and convicting the Appellant.
   
9. It is a well established principle that the trial Judge has the power to disagree with the verdict of the Assessors and that he is not bound to conform to their opinion. However, where he differs from the such verdict he must give reasons for doing so. Litiwai Setevano v State [1991] AAU 14/89; State v Ram Criminal Appeal No.AAU 004 of 1995.
   
10. Since the basis of the charge of murder on the four accused was joint enterprise and when they had entered the premises after being together and designing and planning to commit robbery, the other three offenders should also be liable to the same extent as the Appellant or the Appellant should have been made liable for manslaughter along with the other three. The learned trial Judge had in his summing up adequately directed the assessors of the possible verdicts that they could have brought about in relation to the evidence that was before them. However, the learned trial Judge should have given more consideration in his judgment regarding the different verdicts of the Assessors in relation to the other three offenders and the Appellant.
    
11. In these circumstances, there is merit in the first ground of appeal of the Appellant and I would grant leave to appeal against his conviction on Count 1.
    
12. The second ground of appeal relates to the question of causation. The Appellant had dealt a single punch on the victim whereupon he had fallen on the ground and subsequently died. The question for consideration was whether the single blow caused the death of the victim or the fall caused the death of the victim by which he received injuries to the head.
    
13. The learned trial Judge in his summing up at paragraphs 36 and 37 had stated thus:
    

"[36] The "unlawful act" is simply an act not justified in law. For example, in attempting to rob someone, I rushed towards him and delivered punches to his body and head. The act of punching, without any legal justification, is an assault and is an unlawful act. It is an unlawful application of force to the person of another, and is therefore an unlawful act."

"[37] The "unlawful act" must "cause the death of the deceased". This is the second element of murder. Continuing from the above example, the right hand punch I landed on the person's head was so hard, he fell to the ground. He suffered internal bleeding in his brain, as a result, and subsequently died. My punch therefore "caused the deceased's death", because it was a substantial cause of the injuries to his brains. Without my punch, he wouldn't have a brain injury, and therefore would not die. My punch was a substantial and major cause of his death."

14. The learned trial Judge in his summing up in his analysis of the Murder and the Robbery stated thus:
    

"[51] As I have said earlier, this was a case of joint enterprise, a plan to rob with dangerous weapons. If you find that in the course of that plan something is done resulting in the death of a person, then they can all be liable for murder if they knew when they went there that it was probable that things could have got out of hand.

[52] The fourth accused admits in his caution interview that "I went towards him and I coughed for him to look at me and he did and I pulled out and gave a hard punch on his forehead and he fell heavily to the ground". This then is an unlawful act and if you find that it caused Narend to fall to hard ground, causing concussion to the head, then death, then you will find all of the co-conspirators guilty of murder. If you also find that each one knew that this was a probable consequence of violence used during a robbery. If you think it was not possible to find that each one knew it was a probable consequence you can then go on to find them all guilty of manslaughter; and if you are not sure about any of it you will find them not guilty of anything. If you think as has been suggested to you, that he had a heart attack, fell to the ground getting severe concussion and then died; you will find them all not guilty of murder and not guilty of manslaughter.

[53] Bear in mind that each of the first four accused was aware of the plan to rob, each went there armed and was willing to carry out that plan. Each appears to have been present when Narend came out of the shop and when he received the "hard punch" from Pauliasi.

[54] You might also bear in mind that the Pathologist has said that the cause of death was extensive cerebral edema due to severe concussion, and she said falling to hard ground would have been consistent with such a medical finding."

15. The effect of the evidence of the Pathologist is to the effect that death of the victim would have been caused due to severe concussion due to falling on hard ground which was a possibility and the punch given by the Appellant by itself may not have brought about severe concussion although the punch caused the victim to fall heavily on the ground. This brings about a doubt as to the causative effect of the death of the victim which should have been directed by the learned trial Judge in somewhat greater detail in his summing up in relation to murder and manslaughter.
    
16. In R v Nathan [1981] 2N.Z.L.R. 473 and Kumar v The State [1987] FJCA 1 the cause of the death of the deceased was identified as a definite infliction of a blow to the deceased by the Offenders whereas in the present instance there is a doubt as to the causation of the death as to whether it was as a direct result of the punch that caused concussion or whether the heavy fall which resulted in the concussion.
    
17. In these circumstances I am of the view that the second ground of appeal too has merit in relation to the conviction of the Appellant on the first count of murder.
    
18. The third ground on which the Appellant relies on is in relation to his conviction for robbery along with the others.
    
19. Committing robbery was what was planned by the Appellant and the other offenders and in that sense the aspect of joint enterprise was very much established. However, the submission made by the Appellant is that he had withdrawn himself from the joint enterprise when the robbery was committed.
    
20. The learned trial Judge had in his summing up to the Assessors directed that once the Appellant had embarked on the joint enterprise, that he cannot get out of it, unless he does something definite to tell the others he is no more part of it.
    
21. In R v Wagner [1978] CanLII 401 (BC C.A.) it was held on the question of abandonment of the common purpose that there should firstly be an abandonment of the original common intent to fulfill an unlawful purpose and secondly that timely communication of such an abandonment should be made to the companion in the unlawful purpose.
    
22. In the light of the above principle the summing up of the learned trial Judge cannot be said to be inadequate as he had properly directed the Assessors regarding same as in the present case there was no evidence regarding such abandonment.
    
23. It is my view therefore that the third ground adduced by the Appellant has no merit.
    
24. In the above circumstances, leave to appeal against the conviction of the Appellant on the count of murder is allowed and leave to appeal on the counts of Robbery is refused.
    

Orders of Court

The application for leave to appeal against the conviction for Murder is allowed.

The application for leave to appeal against the convictions for Robbery is refused.

Suresh Chandra
Resident Justice of Appeal