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State v Turaga [1993] FJHC 70; Hac0025j.1992s (23 August 1993)

IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

CRIMINAL CASE NO. 25 OF 1992

STATE

v.

1. TANIELA TURAGA
2. PAULA LALAKAI

MANSLAUGHTER: Contrary to Section 198 of the Penal Code Cap. 17.

Ms. L. Laveti for the Prosecution
Mr. T. Fa for both Accused Persons

JUDGMENT

When I summed up this case on Friday I said to the gentlemen assessors:

"... although your opinions are not binding on me, they will carry great weight with me when I come to write the judgment of the Court."

The assessors after deliberating for 40 odd minutes have returned a unanimous opinion of "not guilty". That is an opinion they have individually formed on the evidence led in this case and must weigh heavily with me.

The assessors were also directed as a matter of law that the standard of proof which the prosecution had to attain in proving its case was: "proof beyond all reasonable doubt NOT proof beyond all doubt."

It is not possible to ascertain on what aspect of the case or where the gentlemen assessors may have entertained any reasonable doubt in the prosecution's case.

For my part I have not the least doubt and the assessors were directed as a matter of law that "... to intentionally kick a man in anger whilst he is lying on the ground is an 'unlawful act'." In the face of the accused's own admissions there can be no reasonable doubt that he committed an "unlawful act" on the deceased as he lay on Victoria Parade.

But did he cause the deceased's death by his "unlawful act"? It is beyond dispute that the deceased died as a result of severe head injuries. The narrower question that arises therefore is did the accused cause those head injuries?

The accused denied on oath kicking or stamping on the deceased's head but both Susana and Litiana testified they saw him from a distance of 25 or 50 metres, stand or stamp on the deceased's head as he lay motionless on the road. This direct conflict in the evidence was properly left to the assessors to resolve. By their opinions they have clearly preferred the evidence of the accused or at least entertained a doubt on this aspect of the prosecution's case.

Was that a "reasonable" doubt? Bearing in mind that the accused was not the original assailant of the deceased and the fact that both Susana and Litiana testified that when the deceased was first punched or elbowed he fell and hit his head on the road surface coupled with the evidence of Yakub that the deceased fell off the hospital trolley head first onto the concrete pavement, I am driven to agree that the doubts the assessors may have entertained to the "cause of death" are "reasonable" in all the circumstances.

True as learned State Counsel pointed out the deceased vomited in the taxi and may have already sustained head injuries before he was loaded onto and subsequently fell off the hospital trolley but that fact alone does not answer the possibility that the deceased may have sustained his head injuries even before the accused kicked him and whatsmore the deceased's vomiting is somewhat "clouded" by the undisputed evidence that the deceased was very drunk that night.

Accordingly I uphold the unanimous opinion of the assessors and also find the accused "not guilty" of the Manslaughter of Josevata Tabuya.

(D.V. Fatiaki)
JUDGE

At Suva,
23rd August, 1993.

SUCC25.92