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Tiritiri v State [2015] FJCA 147; AAU0009.2011 (2 October 2015)

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

CRIMINAL APPEAL NO. AAU 0009 OF 2011
[High Court Criminal Case No. HAC 18 of 2008]

BETWEEN:

VILIAME ROGOSE TIRITIRI
Appellant

AND:

THE STATE
Respondent

Coram : Basnayake JA
Fernando JA
Goundar JA

Counsel : Mr. M. Yunus for the Appellant
Mr. M. Korovou for the Respondent

Date of Hearing : 15 September 2015
Date of Judgment : 2 October 2015

JUDGMENT

Basnayake JA:

I agree that this appeal should be dismissed.

Fernando JA:

I have read the Judgment of Justice Goundar and agree with his findings and conclusion.

Goundar JA:

[1] Following a trial in the High Court at Lautoka, the appellant was convicted of murder and sentenced to life imprisonment with a minimum term of 12 years to serve. His co-accused was acquitted of the charge. The appellant applied for leave to appeal his conviction and sentence. After hearing, Marshall JA refused leave and dismissed the appeal under section 35(2) of the Court of Appeal Act, Cap. 12. The appellant successfully appealed against the dismissal of his appeal by Marshall JA in the Supreme Court. The Supreme Court quashed the order of dismissal and remitted the renewed application for leave to be heard by the Full Court (Tiritiri v State, unreported Cr. App. No. CAV9 0f 2014; 14 November 2014).

[2] On 29 July 2015, the appellant renewed his application for leave to appeal conviction only on the following amended grounds:

"1. That the Learned Trial Judge erred in law and fact in not directing himself and or the assessors that the prosecution evidence before the court carried serious doubts in respect of operative cause or substantial cause of death and as such the benefit of doubt ought to have been given to the Appellant.

2. That the Learned Trial Judge erred in law and in fact in not directing himself and or the assessors that the prosecution evidence before the court proved that at the material time of the alleged incident the appellant was intoxicated with liquor as such with his state of intoxication whether he could form intention, specific or otherwise, in the absence of which he would not be guilty of the offence.

3. That the Learned Trial Judge erred in law and in fact in not directing himself and or the assessors regarding identification of the Appellant in dock.

4. That the Learned Trial Judge erred in law and in fact in not directing himself and or the assessors to refer any Summing Up the possible defence on evidence and as such by his failure there was a substantial miscarriage of justice.

5. That the Learned Trial Judge erred in law and in fact by not adequately/sufficiently/referring/directing/putting the defence case to the assessors."

Evidence led at trial

[3] In the early hours of 21 March 2008, the appellant was part of a group who proceeded to drink beer at Namaka Public School in Nadi after a night of clubbing. At the time, the appellant was in a de-facto relationship with the co-accused's daughter. The co-accused was the headmaster of the school. He had access to the school premises outside the school hours.

[4] In his caution interview which was tendered by consent at trial, the appellant said that he left the drinking party with his uncle and walked towards the main road. When they reached a neighbouring property which was Sadhai's garage, they were confronted by the deceased who at the time was working as a security guard for the school. The confrontation developed into an argument when the appellant tried to justify why he was drinking at the school premises. The appellant told the deceased to wait there until he fetched the co-accused who allowed them to drink at the school premises. When he returned to the crime scene, he saw his co-accused punch the deceased. He turned around to see who was behind him. He saw men and women from his drinking group. When he turned back, he saw the deceased lying unconscious on the ground with his face and forehead covered with blood. He saw the co-accused next to where the deceased was lying. The appellant said he kicked the side ribs of the deceased and noticed he was breathing, but not moving.

[5] At trial, neither the appellant nor his co-accused gave evidence or called any witnesses. The only evidence that contradicted the prosecution's case was the caution interviews which were admissible only against the makers. In his caution interview, the appellant agreed he was at the crime scene but he did not inflict any assault on the deceased. But the prosecution led evidence from two eye witnesses, Waisele Cegunacoko and Saimoni Tikibo who contradicted the appellant's version that he did not take part in the assault at all.

[6] Waisale was a security guard at Sadhai's garage on the night of the assault on the deceased. He said the deceased was with him at the garage drinking kava when they heard two young men yelling and swearing on the road. The deceased went and told them not to swear. They started arguing. While arguing they moved to the driveway of the school. The appellant ran to the school premises, and returned with the headmaster (the co-accused) and two other boys. They argued and had a fist fight with the deceased. One of the two boys standing beside the deceased hit the deceased with a beer bottle in the head. The deceased fell down. While he was lying on the ground, the two boys kept kicking him. Waisale saw the appellant pick up a block and smash it on the deceased's head. When Waisale tried to intervene, the group turned on him and Saimoni by throwing broken pieces at them.

[7] Saimoni was the deceased's nephew. On the night of the assault on the deceased, he was in the company of the deceased drinking kava at Sadhai's garage. When they had run out of kava, he went to get some more. When he returned, he saw the appellant and the deceased quarrelling along the road near Sadhai's office. Saimoni ran away and returned to the scene through another route. When he returned to the scene, the deceased was lying on the ground. He saw people standing but no one was helping. He called the deceased twice, but there was no response. He ran to the taxi stand to seek assistance but was told that the police had been informed. He returned to the crime scene. He turned the deceased around and touched his face and realised the injury. Saimoni said a block was struck on the deceased's face and it broke into pieces.

[8] Apparently, the deceased was taken to Nadi hospital by one of the men from the drinking party immediately after the incident. He was later transferred to Lautoka hospital and then to CWM hospital in Suva when his condition deteriorated. He remained in the hospital. On 31 March 2008, he died. Post mortem examination revealed that the victim died of brain injuries (intra-ventricular haemorrhage and diffuse cerebral edema) that were consistent with the use of blunt impact on the head.

[9] Only the appellant and his co-accused were charged with murder. In his caution interview, the co-accused denied assaulting the deceased. The assessors expressed unanimous opinion that the appellant was guilty of murder while his co-accused was not guilty of any offence. The trial judge accepted the assessors' opinions and convicted the appellant but acquitted the co-accused.

Ground 1 – Cause of death

[10] The unlawful act relied on by the prosecution was the assaults inflicted on the deceased by the appellant and others. According to the pathologist who gave evidence at the trial, the brain injuries sustained by the deceased could have been caused by any blunt force like hitting the head with a bottle or a block.

[11] The cause of death was not an issue at the trial. The appellant agreed that the deceased had died of brain injuries. The appellant's contention is that since the deceased was also assaulted on the head with a bear bottle by an unknown man, there was doubt regarding whether it was his assault that caused the brain injuries that led to death. The issue taken on appeal is not the trial judge's directions on the cause of death, but the trial court's finding that the evidence established beyond a reasonable doubt that it was the unlawful act of the appellant that caused the brain injuries that led to the death of the deceased.

[12] In my judgment, the appellant's argument that his conduct did not cause the brain injuries that led to the death of the deceased ignores the principle of joint enterprise relied upon by the prosecution to attach criminal responsibility on him pursuant to section 22 of the Penal Code, Cap.17. Section 22 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 an offence 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."

[13] The prosecution evidence established that the appellant formed a common intention to assault the deceased, when he returned to the crime scene with a group of men after arguing with him. The prosecution evidence also established that the appellant carried out his intention by participating in the assault. The appellant, of course, denied assaulting the deceased at all. His defence was that he was an innocent bystander when the deceased was assaulted. Obviously, the assessors and the trial judge did not accept the appellant's version of facts. The assessors and the trial judge accepted the prosecution version of facts. They accepted that the appellant participated in the assault of the deceased with others with the foresight that the deceased could either be killed or seriously injured. The evidence of Waisale established that the deceased was struck in the head with a bottle by a man who accompanied the appellant to assault the deceased, and after the deceased had fallen on the ground, two men kicked him while the appellant picked up a block and smashed it on the deceased's head. The assessors and the trial judge were entitled to conclude that the appellant was criminally responsible for the brain injuries sustained by the deceased as a result of the assault on him by the appellant and others under the doctrine of joint enterprise. For these reasons, this ground of appeal has not been made out.

Ground 2 – Intoxication

[14] Intoxication was not raised as a defence by the appellant at the trial. The appellant submits that the trial judge was obliged to put to the assessors any defence that was available on the evidence, although not raised by the accused.

[15] Voluntary intoxication is not a defence to any offence. However, section 13 (4) states that:

"Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence".

[16] Murder is a specific intent offence. Section 202 of the Penal Code, Cap. 12 sets out the mens rea required for murder. For an accused to be guilty of murder, he must either have an intention to cause death or grievous harm, or knowledge that the unlawful act will either cause death or cause grievous harm and that knowledge is accompanied by indifference whether death or grievous harm is caused or not, or by a wish that it may not be caused. One could argue that the knowledge limb of malice aforethought is excluded under the exception provided by section 13(4) of the Penal Code, Cap. 17, but since the parties made no submissions on this issue, I do not find it necessary to consider this point any further in this appeal.

[17] The appellant's main complaint is that the trial judge deprived him of the lesser verdict of manslaughter by not giving directions on intoxication. The law is that if there is evidential basis for a defence, then the trial judge is obliged to direct on it regardless of whether the accused has relied on it or not at trial (Pravin Ram v The State, unreported Cr. App. No. CAV0001 of 2011; 9 May 2012 at para. 34). However, the trial judge is not obliged to consider hypotheses which the evidence does not reasonably raise (Tej Deo v The State, unreported Cr. App. No. AAU0045 of 2006, 23 June 2008 at para. 24).

[18] In the present case, the prosecution did not dispute that the appellant had consumed alcohol leading to the alleged incident. The appellant might have been drunk but there was no evidence that due to his state of intoxication, he was unable to form the intention to cause death or grievous harm. The appellant refers to the evidence of the police officers who arrested the appellant and his co-accused from the school premises in the morning after the assault on the deceased. One police officer had said in his evidence that "their physical condition looked to be very drunk". But the appellant fails to mention in his submissions that in his caution interview, he told the police that after the alleged incident, he went back to the school premises and continued drinking with his friends. So it was no surprise that when the police arrested the appellant, his physical condition appeared drunk at the time of the arrest. In my judgment, there is no error made by the trial judge in not directing on intoxication because there was no evidence of intoxication as to render the appellant incapable of forming the intention to cause death or grievous harm when he assaulted the deceased with others as alleged by the prosecution. This ground has no substance.

Ground 3 – Dock identification
[19] This ground is difficult to follow. First time dock identification is permissible in Fiji provided the trial judge caution the assessors on the dangers of relying on the first time dock identification (Semisi Wainiqolo v The State, unreported Cr. App. No. AAU0027 of 2006; 24 November 2006). That was done in this case despite the fact that identification was not an issue at the trial. The appellant did not dispute his identification. He disputed his actions. He said he was present at the scene but did not assault the deceased as alleged by the prosecution. At the hearing, counsel for appellant in an attempt to explain this ground submitted that he was seeking a direction from this Court that in future cases, first time courtroom identification should be made by placing the appellant in the public gallery and not in the dock. Not only I question the wisdom of this submission, I have grave reservation on whether an appellate court has jurisdiction to make procedural rules regarding the first time identification of an accused during trial. This ground has no substance.

Ground 4 – Provocation
[20] In homicide cases, provocation is a defence that can reduce the charge from murder to manslaughter. For provocation to apply, section 203 of the Penal Code, Cap. 17 requires proof that the accused acted in the heat of passion caused by sudden provocation and before there was time for his passion to cool. Provocation is defined by section 204 of the Penal Code Cap. 17 as any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, to deprive him of the power of self control and to induce him to commit an assault of the kind which the accused committed upon the deceased.

[21] The provocative act relied on by the appellant to advance this ground of appeal is that the deceased challenged him for a fist fight (Q & A 79 of the appellant's caution interview). Unfortunately, the appellant fails to point out that as a result of his argument with the deceased, he told the deceased to wait while he went and fetched the headmaster who had allowed them to drink at the school premises (Q & A 81). Given the appellant's own statement, there was no evidence of any wrongful act or insult by the deceased, to deprive the appellant of the power of self control and to induce him to commit an assault on the deceased. In other words, there was no evidential basis for the defence of provocation to be put to the assessors. This ground has not been made out.

Ground 5 – Failure to put the defence case
[22] This ground was merely an extension of grounds 2 and 4 and therefore must fail.

Result
[23] For the reasons given in my judgment, I would grant leave but dismiss the appeal.

The Orders of the Court are:
Leave granted.
Appeal dismissed.

...............................................
Hon. Justice E. Basnayake
JUSTICE OF APPEAL

..............................................
Hon. Justice A. Fernando
JUSTICE OF APPEAL

.............................................
Hon. Justice D. Goundar
JUSTICE OF APPEAL

Solicitors:
Office of the Legal Aid Commission for the Appellant
Office of the Director of Public Prosecutions for the Respondent