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Cavasiga v State [2015] FJCA 128; AAU135 & 145.2014 (30 September 2015)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

CRIMINAL APPEAL NOS. AAU 135 & 145 OF 2014
[High Court Case No. HAC 322 of 2012]

BETWEEN:

1. PAILATO CAVASIGA
2. ILIKIMI NAITINI
Appellants

AND:

THE STATE
Respondent

Coram : Goundar JA

Counsel : Mr. S. Waqainabete for the 1st Appellant
Ms S. Vaniqi for the 2nd Appellant
Mr. M. Korovou for the State

Date of Hearing : 24 August 2015
Date of Ruling : 30 September 2015

RULING

[1] The appellants seek leave to appeal their murder convictions. They were convicted after trial in the High Court at Suva and sentenced to life imprisonment. Naitini was ordered to serve a minimum term of 18 years imprisonment. Cavasiga was ordered to serve a minimum term of 16 years.

[2] Cavasiga's grounds of appeal are:

Ground 1: The Learned Trial Judge erred in law and in fact when he found that the Appellant was an active participant in the joint enterprise that led to the death of the deceased.

Ground 2: The Learned Trial Judge erred in law and in fact when he did not give directions to the assessors in the Summing Up on the defence of self defence and provocation and also to consider the same given the evidence led in the trial from the eye witnesses.

Ground 3: The Learned Trial Judge erred in law and in fact when he made this comment in paragraph 48 of the Summing Up in relation to the Appellant's witness evidence, "Well that was the witnesses evidence and you might find it to be a bit "pat", a little too" coached" to be credible, especially after Karailina had said that Atelina hadn't seen what had occurred but then it is all a matter for you Ladies and Gentlemen". By doing so, the Learned Trial Judge had usurped the function of the assessors thus resulted in a gross miscarriage of justice.

[3] Naitini's grounds of appeal are:

1. That the Learned Judge erred in law and fact when he failed to direct the assessors properly in regards to the inherent weaknesses of the prosecution case, specifically that the defence had shown:
   
   1. The two main eye witnesses would have had difficulty observing the start of the fight given they were cowering inside the house as they were afraid to let the drunk deceased into the house; and
      
   2. The eye witness Theresea Yee Sing testified about how the deceased approached the house in a drunken state, which was a propostion favorable to the defence case theory of self defence and provocation.
      
2. That the Learned Judge erred in law and fact when he failed to adequately sum up the argument of self defence, supported by testimony the Appellants counsel obtained from the State witnesses under cross examination which highlighted the violent and aggressive nature of the deceased.
   
3. That the Learned Trial Judge erred in law and fact when at para 48 of the Summing Up he made comments to the assessors which may have led them to question the credibility of the defence witnesses, resulting in a miscarriage of justice to the Appellant.
   
4. That the Learned Trial Judge erred in law and fact when at para 39 of the Summing Up he stated;
   

"...you will note that nowhere in that interview did he tell the Police that he was acting in self to save himself and his partner form injury".

in that it could be interpreted by the assessors to suggest recent invention by the Appellant, when it was also possible the Appellant did not have the benefit of legal advice when being caution interviewed so was unaware of a legal defence available to him which he needed to articulate to the police. In doing so, the Trial Judge misled the assessors on the facts leading to a miscarriage of justice.

5. That the Learned Trial Judge misdirected himself on the facts when he said in the Sentence Ruling at paras 9 and 10 that the Appellant and his co-accused were,
   

"executing a revenge attack on the deceased, their perception their being that he had been part of a group who had attacked the second accused's brother at earlier time"

Given that the facts at trial established the Appellant happened upon the deceased while visiting his relatives, and not that he lay in wait to execute a revenge killing as alluded to by the Trial Judge. This reflects a misunderstanding on the facts by the Trial Judge, resulting in a miscarriage of justice.

[4] I deal with Cavasiga's grounds first.

[5] At trial, the evidence was that Cavasiga was not the instigator of the fight between the deceased and Naitini. Cavasiga intervened to stop the fight, but in the process of stopping the fight, he threw punches at the deceased. The Trial Judge gave careful and detailed directions on joint enterprise as it applied to Cavasiga at paragraphs 22-29 of his Summing Up. The questions for the assessors were summed up at paragraph 29 as follows:

"Your approach to the second accused should be therefore:

• If you think he was there just to stop the fight and for no other purpose, then you will find him not guilty.
  
• If you think he was assisting the first accused in beating up Tevita then he is jointly liable.
  
• If you find that it was foreseeable that the beating up would lead to the death of Tevita then Pailato is guilty of whatever you find Ilikimi guilty of; that is murder or manslaughter.
  
• If you find that the death was not foreseeable then you will find him not guilty."
  

[6] The assessors expressed unanimous opinion that Cavasiga was guilty of murder. The Trial Judge agreed. The issue is whether the evidence led by the prosecution proved beyond reasonable doubt that Cavasiga was part of an agreement to assault the deceased and that he participated in the venture with the foreseeability of death or serious harm (Chan Wing–Jiu v The Queen [1985] AC 165, 175). In my judgment, this is an arguable issue.

[8] The second ground relates to lack of directions on the defence of provocation and self defence. Cavasiga's evidence was that he was not part of a joint enterprise to assault the deceased. His defence was that he only intervened to stop the fight between the deceased and Naitini, but when the deceased elbowed him, he punched the deceased twice in the chest. Whether there was any evidential basis for the defence of provocation and self defence as it applied to Cavasiga is an arguable point.

[9] The third ground relates to comments made by the Trial Judge in relation to a defence witness. Cavasiga claims the comments "well that was the witnesses evidence and you might find it to be a bit "pat" a little too coached" to be credible", had no factual foundation and was unfair and prejudicial to the defence case. In my judgment this is an arguable ground.

[10] As regards Naitini's appeal, he criticizes the Trial Judge using isolated passages from the Summing Up. Leave cannot be considered when the alleged errors are vague and not particularised with clarity. The only issue that appears to be arguable but not raised by Naitini is the Trial Judge's failure to put the defence of provocation to the assessors. On this issue, I grant him leave.

Result
[11] Leave granted.

Hon. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Office of the Legal Aid Commission for the 1st Appellant
Vaniqi Lawyers for the 2nd Appellant
Office of the Director of Public Prosecutions for the Respondent