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Court of Appeal of Fiji |
IN THE COURT OF APPEAL
(ON APPEAL FROM THE HIGH COURT)
Criminal Appeal No. AAU 0036/2007
(High Court No.HAC 008 OF 2006)
BETWEEN:
SAKIUSA BOSE VASUITOGA & SOLOMONE QURAI
Appellants
AND:
STATE
Respondent
Coram: Calanchini AP
Basnayake JA
Madigan JA
Counsel: Ms. B. Malimali for the 1st Appellant
Mr. J. Sloan for the 2nd Appellant
Ms. P. Madanavosa for the Respondent
Date of Hearing: 6 November 2012
Date of Judgment: 8 February 2013
JUDGMENT
Calanchini AP
[1] I agree that the appeals should be dismissed.
Basnayake JA
[2] The 1st and 2nd accused appellants (accused) were indicted for the murder of Mohammed Azim Khan (1st count). The two accused were also charged for the robbery of Mohammed Azim Khan (count 4). The 1st accused alone was charged for demanding money with menace from Ashwin Kumar (count 2) and with intent to cause grievous bodily harm (count 3). The 2nd accused was also charged for the offence of larceny from person contrary to S. 271 of the Penal Code (Cap. 17) (count 5). The 2nd accused had already pleaded guilty to the offence of larceny.
[3] After trial before a Judge of the High Court and three Assessors, the accused were found guilty as charged. Both the accused were sentenced to a term of life imprisonment on count 1. On count 2 the 1st accused was sentenced to 18 months imprisonment. On count 3 the 1st accused was sentenced to 2 years imprisonment. On count 4 the 1st accused was sentenced to 5 years imprisonment. On count 4 the 2nd accused was sentenced to 3 years imprisonment. On count 5 the 2nd accused was sentenced to a term of 12 months imprisonment.
[4] The accused appealed against the conviction. In respect of the appeal of the 1st accused, leave was granted on the following question namely:-
[5] Leave to appeal was granted on 17 March 2009 against the conviction of the 2nd accused. The grounds of appeal of the 2nd accused as summarised by me are as follows:-
[6] The incident relating to this action occurred on the night of 11 February 2006 at Kewal's yard, Nasinu. At this incident one Mohammed Azim Khan and Kamalesh Pillai were stabbed. Azim succumbed to the injuries. Kamalesh survived.
[7] The facts of this case are as follows. Ashwin, Azim (deceased), Moshin, James Lal and Sai Nagendra had been friends. Kamalesh (the injured) is a brother of Ashwin. On 11 February 2006 they had met at Ashwin's house at Kewal's Yard for a drink.
The 1st incident (as described by Sai Nagendra and James Lal)
[8] On the night of 11 February 2006, Sai Nagendra and James Lal had gone to Subash's shop in Kewal Yard to buy beer and coke. While coming back with the beer and coke, they were approached by three men. One of them identified as the 2nd accused had taken beer from Sai Nagendra. Another identified as the 1st accused demanded money or otherwise threatened that he would use the knife. Sai Nagendra had told him that the other guy had taken the money and got himself released. Thereafter Sai Nagendra and James Lal had gone to Nasinu Junction to escape from the accused and returned to Ashwin's house. At Kewal Yard they heard the sound of cracking bottles and a scream of Kamalesh. They have seen the three Fijians who robbed them earlier running away. On arrival at the scene they had found both, Kamalesh and Azim on the ground with injuries.
The 2nd incident (as described by Ashwin and Moshin)
[9] Ashwin Kumar, Azim Khan (deceased) and Moshin had gone looking for Sai Nagendra and James Lal as they were getting late to come from the shop. On the way they had seen the three Fijian boys (referring to the accused) coming towards them. Suddenly they (accused) started attacking Ashwin, Azim and Moshin. One of them (identified as the 1st accused) pointed a knife at Ashwin and had demanded money. Another one punched him and after several blows Ashwin fell on the ground. Ashwin says he heard the cracking of glass bottles and someone removed his shoes.
Arrival of Kamlesh
[10] Kamalesh heard the sound of cracking glass and screams and had gone to check. He says that when he arrived at the scene, he had seen someone holding a knife at Ashwin. When he went near Ashwin, someone punched him (Kamlesh) and another stabbed him with a knife to which he fell down.
[11] The 1st and the 2nd accused were clearly identified by Peni Duana (pgs. 213-218) and Naomi Tiani (pgs. 219-222). The 2nd accused already pleaded guilty to count 5.
[12] At the trial the 1st accused gave sworn evidence (pgs 293-341). In evidence the 1st accused admitted to having followed the two Indian boys carrying beer and coke and robbing them. While coming back after robbing beer and coke, he said he met another 4 Indian persons and he robbed them too. He said he had a scuffle with one of them and the person with whom he had a scuffle pulled his black t-shirt upwards to cover his face. When he heard the other Indians rushing towards him he took out a small knife from the pocket and threatened him. As this person was still holding on to his t-shirt, he swung the knife and did not know that the knife struck him. As he turned around another person came and hit him with a stick. Then he swung the knife. He said he used the knife in self defence. He said that he used the knife on the person who hit him with a stick.
[13] Under cross examination he said that before pulling the knife he punched him. When he swung the knife on the person armed with a stick, the knife struck him. At page 339 the 1st accused admitted to stabbing two persons. He first admitted (under cross examination by the learned counsel for the State) that they (the 1st and 2nd accused) approached them (Ashwin and others) to rob them (at pg. 339 in Volume I of the High Court record).
Q. Suggest you approach him to rob him?
A. Yes. I approached him to rob him.
Q. And you stabbed him?
A. Yes.
Q. Then you stabbed another person?
A. Yes. He hit me with a stick.
[14] In his statement the 1st accused said that he snatched the coke and another (2nd accused) snatched the beer. Thereafter at Kewal's yard they saw three Indian men and they robbed them too. The 1st accused searched the pockets of one of them (Ashwin). Thereafter he stabbed another Indian man (deceased) and his companion (2nd accused) hit with a beer bottle. He said another Indian man (Kamalesh) came with a stick and he stabbed him too. He said that he stabbed the first Indian man to rob money and the other Indian man was stabbed to save himself (in self defence).
[15] There is no dispute that it was the 1st accused who caused the stab injuries. The 1st accused admits that he robbed several Indian people of their money and their belongings. The 2nd accused admits his participation with the 1st accused with regard to robberies. It was only in the course of executing these robberies that Azim and Kamalesh were injured.
[16] The 1st accused raised the issue that he acted in self defence. A person who acts reasonably in his self defence commits no unlawful act. By his plea of self defence the accused is raising in a special form the plea of not guilty. It is for the Crown to show that the plea of not guilty is unacceptable. Therefore the Crown must convince the Jury (or Assessors) beyond reasonable doubt that self defence has no basis in the present case (R. v. Abraham, 57 Cr. App. R. 799 quoted in Archbold 2011 at 19-45 (pg. 1842).
[17] Considering the admitted facts in this case there seems to be no evidence of self defence to be placed before the Assessors. The accused admittedly had been committing robbery. In the course of the robbery the accused had been grabbing the victims and snatching their property. When resisted the accused had been stabbing the victims on the basis of exercising the right of self defence. With all that the learned Judge was fair enough to have placed before the Assessors the plea of self defence raised.
The submission of the learned counsel for the 1st accused
[18] The leaned counsel for the 1st defendant submitted that the learned Judge failed to put the defence of self defence to the Assessors. Again she states that the learned Judge failed to put the subjective component of self defence. When a defence of self defence is pleaded the basic question the jury must ask itself is: did the accused intend only to defend himself, or did he use the occasion for the purpose of inflicting harm on someone else?
[19] Before the issue of self defence is left to the jury, there must be evidence, whether from the prosecution or the defence, which, if accepted, could raise a prima facie case of self-defence; if there is such evidence, the issue must be left to the jury, whether it is relied on by the defence or not (DPP (Jamaica) v. Bailey [1996] EWHC 382; [1995] 1 Cr. App. R 257, PC (Archbold 2011 19-43). However the learned Judge placed before the jury the plea of self defence. Therefore the submission of the learned counsel has to fail.
The summing up of the learned Judge on the right of self defence
[20] The learned Judge states in her summing up (pg. 19) with regard to self defence;
"The 1st accused has also raised the issue of self defence in relation to count 3 on the Information. He said that Kamlesh attacked him with a stick, that he deflected it with his hand and that his hand had the knife which struck him.
The law on self defence is this. A person who is attacked may defend himself or herself, but he/she may only do what is reasonably necessary. The question for you to decide are whether the accused was indeed attacked by Kamlesh Pillay, whether he swung the knife to protect himself, and whether the use of the knife was necessary and in proportion to the necessities of the situation. Of course you must also consider that the incident must have taken place quickly and in the dark and in deciding what is reasonable self-defence you are entitled to take in to account the physical characteristics of the accused and Kamlesh Pillay as well as the other circumstances of the case. It is for the prosecution to prove that the 1st accused was not acting in reasonable self-defence and you must be satisfied of this beyond reasonable doubt".
Moshin (pgs. 204-206), Kamalsh Pillay (pgs. 207 – 210), Ashwin Kumar (pgs. 210 – 213), Peni Duana (pgs. 213 – 218), Naomi Tinai (pgs. 219 – 222) gave evidence with regard to the 2nd incident involving the stabbing. None of these witnesses spoke of either Azim or Kamlesh carrying a stick. No questions asked from these witnesses in cross-examination about carrying a stick. The 1st accused refers to Kamalesh as the person who carried a stick.
[21] However there had been no iota of evidence to support the story of the 1st accused. None of the witnesses were questioned for the 1st or the 2nd accused of any aggression on the part of the deceased.
Submission of the learned counsel for the 2nd accused
[22] The learned counsel submitted that the 2nd accused should have been acquitted due to insufficient evidence. The learned counsel submitted that there had been no witnesses to testify that the 2nd accused attacked the deceased. The 1st accused admitted that it was the 1st accused who stabbed the deceased. The deceased died of a single stab injury which penetrated the heart. There was no evidence of a plan or any joint enterprise between the accused. There was no evidence that the 2nd accused was aware that the 1st accused was carrying a knife. The 1st accused admitted that he acted alone. Considering the above the learned counsel submitted that the 2nd accused should be acquitted.
[23] The 2nd accused had already pleaded guilty to the 5th count in this indictment. According to the evidence adduced the prosecution was able to prove that the 1st and the 2nd accused had been together drinking for several hours prior to this incident. When Sai Nagendra and James Lal were returning with beer and coke, the 2nd accused with the 1st accused robbed the beer and coke. Admittedly it was the 2nd accused who got beer from Sai. According to Sai the 1st accused demanded money from Sai or otherwise threatened that he will use the knife.
[24] When Ashwin, Azim and Moshin went looking for Sai Nagendra and James Lal they were confronted by the 1st, the 2nd accused and another. Again the 1st accused was with the 2nd accused. They were in the process of robbing. The 1st accused had kept a knife on Ashwin and demanded money while the 2nd accused punched him. According to evidence the 2nd accused was assaulting the victims with bottles. When Kamalesh went to inquire, the 1st accused stabbed Kamalesh. Sai had seen the accused running away together after causing injuries to Azim and Kamalesh.
[25] The 2nd accused had been indicted with the 1st accused in terms of Section 22 of the Penal Code on the basis of joint enterprise. Considering the evidence of the witnesses it appears that the evidence of joint enterprise against the 2nd accused in this case is overwhelming. Therefore I am of the view that this appeal is without merit. Hence the appeals are dismissed.
Madigan JA
[26] I refer to and adopt the dicta of my Basnayke JA in paragraphs [2] to [17] hereof but would add to that as follows:
[27] It is quite clear from the authorities that the defence of self-defence if raised must be disproved by the Prosecution. It is for the assessors to decide factually (i) if the accused reasonably perceives that he or she is at risk of death or grievous bodily harm, and (ii) if what he or she did in response to that threat was reasonable in the circumstances.
[28] The law relating to self-defence in Fiji was clearly expounded at length in the Supreme Court case of Li Jun CAV0017.2007S (13 October 2008) where Sackville J.A. said this:
"When upon the evidence the question of self-defence arises, the trial Judge should in his charge to the jury place the question in its factual setting, identifying those considerations which may assist the jury to reach its conclusion. In attempting to identify those considerations in any abstract manner here, there is a danger of appearing to elevate matters of evidence to rules of law. For example, it will in many cases be appropriate for a jury to be told that, in determining whether the accused believed that his actions were necessary in order to defend himself and whether he held that belief on reasonable grounds. However, the whole of the circumstances should be considered, of which the degree of force used may be only part. There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone. The trial Judge should also offer such assistance by comment as is called for in the particular case. No doubt it will often also be desirable to remind the jury that in the context of self-defence it should approach its task in a practical manner and without undue nicety, giving proper weight to the predicament of the accused which may have afforded little, if any, opportunity for calm deliberation or detailed reflection."
[29] A clear and more pragmatic summary of the operation of the defence could not be imagined, but Sackville went on to say this:
"It is important to appreciate that the test ..... is not wholly objective. It is the belief of the accused, based on the circumstances as he or she perceives them to be, which has to be reasonable."
[30] It is also quite evident from the summing up that the learned trial Judge did not address the assessors on the subjective limb of the defence of self-defence, and Counsel for the first appellant is correct in that submission. However it is there that Counsel and the Court part company in agreement.
[31] The factual scenario of this "engagement" between the first appellant and the deceased and his group is highly relevant. In the words of the first accused himself (p.297 Court Record) when described the incident which led to the fatality, he said this:
"we met 4 other Indians on the way. So we robbed them. One of them whom I robbed, we had a scuffle. He was pulling my black T-shirt which covered my face. At the same time I could hear Indian people rushing towards us. So I took out the small knife in my pocket and I was threatening him so that he could leave my T-shirt alone but he was still holding on to it. While having this scuffle I swung the knife. I did not know that the knife hit the other person. At the same time he was still holding on to my singlet so I left without my singlet. He was holding on to it. And I left him. As soon as I turned around another person came and hit me with a stick. When he hit I swung the knife again to threaten him. After that I left to cross the footpath and went home. I used the knife because I wanted to defend myself because he was pulling my singlet and it covered my face. I could not see anything. The T-shirt was over my face. There was no light. I swung the knife because I wanted him to leave me ..... I would not see the person who had a stick. He hit me from the front. There was a light coming from Courts, I met him when I crossed to the footpath and he hit me with a stick. Used the knife on him so I could defend myself. I was fully drunk."
[32] It is clear from this evidence that in neither of the two incidents in which the first appellant used the knife was he able to properly assess the situation and be said to be in mortal danger or fear of grievous bodily harm. There is no foundation whatsoever for him to so perceive. In the first he could see nothing because his face was covered by his own T-shirt and he was using the knife merely to get his assailant to let go of his T-shirt. In the second incident when the knife was used, the appellant himself says he was drunk and could not see the person who had the stick so it was not possible for him to be in fear of attack.
[33] In those circumstances a self-defence charge to the panel was not necessary at all and the fact that the learned trial Judge gave a limited direction on self-defence was generous to the first appellant. There was no basis for the subjective element to be given to the assessors, and the Judge in all fairness gave the objective test to the assessors who clearly by their opinions given, rejected it.
[34] Even if the appellant could be said to be in fear of mortal danger or fear of serious wounding, the fact that there was no subjective direction can only be in favour of the appellant and not to his prejudice. It is yet one less test for the accused to satisfy.
[35] It would seem that the learned trial Judge being cognizant of the difficulties thrown up by the factual matrix, nevertheless in all fairness to the appellant gave the self-defence direction that she could.
[36] This ground of appeal for the first accused is not made out.
The Second Appellant
[37] The second appellant's grounds of appeal are that 1) he was not in a joint enterprise with the first appellant and 2) that even if he were, the fact that the first appellant had a knife (which he used) was unknown to him and not foreseeable in the enterprise.
[38] Section 22 of the Penal Code, Chapter 17 reads:
"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence"
This section is the codification of a long line of cases that establish the joint enterprise liability of secondary parties in an unlawful enterprise.
[39] In Chan Wing-Siu [1984] UKPC 27; [1985] AC 168, Sir Robin Cooke (as he then was) giving the opinion of the Board said this:
"It is what the individual accused in fact contemplated that matters. As in other cases where the state of the person's mind has to be ascertained, this may be inferred from his conduct and any other evidence throwing light on what he foresaw at the material time, including of course any explanation that he gives in evidence or in a statement put in evidence by the prosecution. It is no less elementary that all questions of weight are for the jury. The prosecution must prove the necessary contemplation beyond reasonable doubt, although that may be done by inference as just mentioned. If, at the end of the day and whether as a result of hearing evidence from the accused or for some other reason, the jury conclude that there is a reasonable possibility that the accused did not even contemplate the risk, he is in this type of case not guilty of murder or wounding with intent to cause serious bodily harm. In some cases in this field it is enough to direct the jury by adapting to the circumstances the simple formula common in a number of jurisdictions. For instance, did the particular accused contemplate that in carrying out an unlawful purpose one of his partners in the enterprise might use a knife or a loaded gun with the intention of causing really serious bodily harm?" (Emphasis added)
[40] This proposition was later adopted by the House of Lords in Powell and English [1991] 1 AC 1 and Rahman [2008] UKHL 45.
[41] It must first be established by the prosecution, through direct evidence or circumstantial evidence that the accused whose case is being dealt with acted in concert with another who used a weapon to inflict serious bodily harm and the use of that weapon was with the contemplation or foreseeability of the secondary party.
[42] Counsel for the 2nd appellant submits that his client was never in a joint enterprise with the first accused and that there was no plan to attack or harm the deceased. These are two distinct questions. There need not be a plan to attack the deceased; all that is needed is a plan either agreed or tacitly acknowledged to pursue an unlawful purpose (in this case robbery) and in the course of that purpose a fatal blow by a knife is inflicted.
[43] The evidence establishing a joint enterprise is strong if not overwhelming. Both this appellant and the first appellant followed two "Indian" boys from the shop where they had bought beer and coke. After following them they attacked them with this (2nd) appellant taking beer from one of the "Indians." The victims ran off and the two men crossed towards a short cut where they encountered three more Indian men. The Fijian men attacked them. A knife was produced, punches were thrown and beer bottles used as a baton. This appellant stole $12 from one of the victim's pocket.
[44] Although it is accepted that the first appellant inflicted the fatal blow on Mohammed Azim, other witnesses have said that this 2nd appellant was assaulting the victim with bottles. The fact that this appellant was prepared to do or was reckless in causing grievous bodily harm with his bottle attacks goes a long way to suggest a tacit agreement with the first accused to do whatever was necessary to effect robbery of the victims.
[45] There is evidence that this (2nd) appellant took money from the pocket of one of the victims. There can be no doubt whatsoever that he was a party to the robbery and performing acts to effect it, and that being so, there remains only the question of foreseeability of the use of the knife on Mohammed Azim.
[46] The question of foreseeability is a matter for the assessors properly directed and the authorities have interpreted the doctrine very widely. If, for example, there was an agreement to attack people with fists only and there was evidence to that restricted manner of attack then production of knife would be far beyond the contemplation of others in the enterprise. However when a tacitly agreed plan is to rob with weapons, then production and use of a knife cannot be seen as a remote possibility far removed from the contemplation of the participants.
[47] The learned trial Judge was extremely fair in her directions to the assessors on this point. She said this:
"Was the death of Mohammed Azim a probable consequence of robbing a group of men or was it unlikely. Remember that there is no evidence that the 2nd accused knew that the 1st accused had a knife. Was it a probable consequence that the first accused would take out a knife and stab Azim? It is only if you are satisfied beyond reasonable doubt that the 1st and 2nd accused shared a common intention to rob, that they executed that plan by attacking Mohammed Azim and his two friends, that the stabbing was a probable consequence of that common intention that you may find the 2nd accused guilty of the murder of Mohammed Azim."
[48] With this correct and balanced direction, the assessors found the 2nd appellant (accused) guilty of the murder and on the evidence that was a perfectly justifiable opinion.
[49] The appeal of the 2nd appellant is dismissed.
[50] Orders of Court are:
Hon. Mr. Justice W D Calanchini
ACTING PRESIDENT
Hon. Mr. Justice E L Basnayake
JUSTICE OF APPEAL
Hon. Mr. Justice P Madigan
JUSTICE OF APPEAL
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