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Bukai v State [2000] FJHC 149; Criminal Appeal 40 of 1999 (10 January 2000)

IN THE HIGH COURT OF FIJI
AT LABASA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 40 OF 1999
(Labasa Mag. Ct. Crim. Case No. 1028/96)

Between:

VILIKONA BUKAI
Appellant

V

STATE
Respondent

Mr. Robinson for Mr. A. Kohli for Appellant
Mr. J. Rabuku for State

JUDGMENT

The appellant, Vilikona Bukai, was charged on three counts with the offence of act with intent to cause grievous harm contrary to section 224(a) of the Penal Code Cap.17.

Charges

The particulars of offence on each of the three Counts read as follows:

First Count

VILIKONA BUKAI, on the 16th day of August, 1993 at Soasoa Labasa in the Northern Division wounded with intent to disfigure YASMIN BI ALI d/o LIAQAT ALI by cutting off the ear tops of the said Yasmin Bi Ali.

Second Count

VILIKONA BUKAI, on the 16th day of August 1993 at Soasoa Labasa in the Northern Division wounded YASMIN BI ALI d/o Liaqat Ali with intent to do grievous harm to the said YASMIN BI ALI by punching her consistently until the latter lost conscious.

Third Count

VILIKONA BUKAI, on the 16th day of August, 1993 at Soasoa Labasa in the Northern Division wounded YASMIN BI ALI d/o LIAQAT ALI with intent to do grievous harm to the said Yasmin Bi Ali.

Although the alleged offences took place on 16 August 1993, the accused was not charged until 2 December 1996 when the appellant elected trial by Magistrate’s Court and pleaded not guilty on each of the three counts. The appellant told the learned magistrate that he does not want to engage counsel and that he will defend himself (p.17 of Record). The case proceeded to hearing on 31 August 1998.

After trial on 16 September 1998 the appellant was convicted and sentenced to consecutive terms of 10 years’ imprisonment in respect of each offence, namely, on Count I: 3 years’ imprisonment Count 2: - 4 years’ imprisonment and Count 3 - 3 years’ imprisonment.

The appellant now appeals against both conviction and sentence. He initially filed Petition of Appeal himself on 6 October 1998 but then on 7 July 1999, New Grounds were filed by Mr. A. Kohli who now represents the appellant.

Evidence

The facts and circumstances leading to the commission of the offences are as set out hereunder.

The victim Yasmin Bi, who is dead now, in the three counts was the niece of Moh’d Israel s/o Moh’d Jahir Khan (PWI). She died at the age of about 16 years. In 1991 she lived with PWI with her father’s consent. She was legally married to Mohd Sadiq Ahmed. The victim eloped with the appellant who did not allow PWI to take her back.

The victim’s father Liaqat Ali (PW2) testified that the victim died on 17 August 1993. She was born on 12 November 1975. He identified her body at the hospital. It is pertinent to note that the alleged incidents in the three counts took place the day before she died allegedly by committing suicide by hanging herself.

The victim’s mother Shamima Bibi (PW3) testified that the victim was her daughter. In 1991 after leaving school, she got married in 1992. But a few days after the 'legal marriage’ she eloped with the appellant.

The appellant’s sister Litiana Vuniwaqa (PW4) is married to Abdul Munif. On 16 August 1993 she returned home with the appellant in a taxi. He was drunk and he had a bottle of liquor with him. She went as far as his home at 5.00 p.m. and at 5.30 p.m. before she left for Bulileka she saw both the appellant and the victim 'on a soapstone’ outside their house. Then when she returned a week later she heard that the victim had died.

PW6 Losana Tuisale said that there was death in the family. The appellant’s and PW6's houses are separated by a stream. She saw the victim and the appellant together on 12 August but not after that. Later she learned that the victim had died.

PW8 Raijieli Dikoila who is the sister-in-law of the appellant testified that on 16 August 1995 the appellant came home drunk at 5.00 p.m. with a beer bottle in his hand. He punched the victim who was with him in her face a few times and she fell down in great pain. She was bleeding, he kicked her on the head. She was helpless. She lost lot of blood and was in great pain. The victim became unconscious. At the appellant’s direction his Fijian wife helped him to take the
victim into the kitchen. The next morning she was found by PW8 hanging from a tree. She reported the matter to police.

PW9 Paulini Diwaqavarua, the 17 year old daughter of the appellant, gave a graphic account of what happened. The victim was assaulted by her father; he punched her and she fell down; he stepped on her head; he cut off the right ear with a razor blade.

PW10 Rucy Ailaumela, the de facto wife of the appellant testified that she knew that he assaulted the victim. He punched her on the day in question and she became unconscious.

The appellant gave evidence on oath and denied assaulting the victim.

Dr. Dhana Goundar (PW5) carried out post-mortem examination on the victim and found injuries on her. He said that most of the injuries were caused by blunt instruments including fisting. Those injuries were serious. There was haemorrhage in skull. He said that upper portions of both ears were removed and one piece was located and that matched one ear. He said that sharp object was used to cut, such as scissors or knife. Hair was cut to a few millimeters above the skull. The doctor found that death was due to asphyxia due to hanging. Details of the injuries are to be found in the Post mortem Report (exhibit I).

Grounds of appeal

The Grounds of Appeal are as follows:

1. THAT the Learned Trial Magistrate erred in law and in fact in proceeding to hear the Appellant’s case in light of objection by the Appellant.
   
2. THAT the Learned Trail Magistrate erred in law and in fact in failing to advise the Appellant the seriousness of the charge and the need for legal representation.
   
3. THAT the Learned Trial Magistrate erred in law and in fact in proceeding to hear the case without enquiring whether the Appellant had access to witness statements.
   
4. THAT the Learned Trial Magistrate erred in law and in fact in admitting statement given to the police by prosecution witnesses.
   
5. THAT the Learned Trial Magistrate erred in law and in fact in coming to a finding that the witnesses PW8, PW9 and PW10 corroborated each other in respect of the three charges the appellant was facing.
   
6. THAT the Learned Trial Magistrate erred in law and in fact in failing to deal with the facts relating to the ingredients of the charges and in particular whether the evidence supported an intention on the part of the Appellant.
   
7. THAT the Learned Trial Magistrate erred in law and in fact in failing to consider whether the Appellant could have formed the intention in light of his state of drunkenness.
   
8. THAT the Learned Trial Magistrate erred in law and in fact in failing to consider that the charges were bad for duplicity.
   
9. THAT the Learned Trial Magistrate erred in law and in fact in making the sentences consecutive instead of concurrent to each court.
   
10. THAT the sentence is harsh and excessive and wrong in principle.
    

I shall now deal with these grounds.

Grounds 1 to 4

Before hearing commenced the appellant was asked if he has counsel. He replied, ‘I will defend myself’ (p177 Record). He then objected to the learned Magistrate hearing the case (p.19 of Record). When asked why? He replied, ‘No reason. Just don’t want you to hear it’. The hearing commenced thereafter.

After listening to the arguments put forward on grounds one to four and taking into account the contents of the Record touching on these grounds I find that there are no merits in them whatsoever.

The appellant therefore fails on these grounds.

Grounds 5 to 8

The learned counsel for the appellant doubts whether intention on the part of the appellant as an essential ingredient of the offence has been established on evidence because of the state of his drunkenness.

It is clearly borne out in evidence that the appellant knew what he was doing. The evidence is also there and which has not been disputed that he was in the habit of beating the victim. On the effect of drunkenness in the commission of offences, Grant C.J. when dealing with an appeal against conviction in Waisake Kasawa and Reginam (Crim. App. No. 10 of 1975) said:

"I would have thought that this Court had left no room for doubt that over- indulgence in alcohol does not give licence for the Commission of criminal offences, will not be taken into account in mitigation, and will not reduce by one day the appropriate sentence for the offence".

It is also pertinent to note that the appellant hardly cross-examined any of the prosecution witnesses. Almost the whole of the evidence of the witnesses have gone by unchallenged. The witnesses PW 8, 9 & 10 gave detailed accounts of what they saw, particularly the infliction of the injuries on the victim. Evidence was given, inter alia, in this regard by the appellant’s de facto wife and daughter who were not cross-examined at all. The learned Magistrate accepted the evidence of the other civilian witnesses, and found the appellant guilty of the offences as charged . Subject to what I say hereafter the learned Magistrate could not have on the evidence before him come to any other conclusion but that the accused is guilty of wounding the victim as charged and causing her grievous bodily harm. It is abundantly clear on the evidence that the injuries, which amounted to ‘wound’, could not have come about in any other way but through assault on her by the appellant. The Post Mortem Report tendered to Court reveals it all.

However, the matter that is of some concern to me is Count 3 and this I think is the matter of duplicity which has been raised by the learned counsel for the appellant in ground 8.

I see nothing wrong with Counts one and two as framed. The charge in the third count is not clear as to how and on which part of the body was she ‘wounded’. Neither the charge nor the evidence show separately as to what particular injuries or 'wound’ are comprised in Count three. Even the learned Magistrate did not say in his ‘Ruling’ anymore on Count 3 then that "Count 3 alleges that the accused wounded the victim with intent to do her grievous harm. This is quite clear from the evidence of PW8, PW9 and PW10." He did not say which particular injury or ‘wound’ is comprised in the third Count in respect of which he found the appellant guilty on that Count.

The purpose of a charge is to tell an accused person as precisely and concisely as possible of the particulars of the offences with which he is charged and sections 119 to 122 of the Criminal Procedure Code give clear and explicit directions as to how, inter alia, a charge should be framed.

A charge must contain those particulars which give the accused an idea of the case which he has to meet. It may not contain elaborate details but there should be no doubt as to what is the case against him and what allegations he has to meet.

Here I find that the charge in Count 3 has not been framed properly and hence it disclosed no offence and therefore it is void ab initio. It was so held in Director of Public Prosecutions v Solomone Tui (Grant C.J.) 21 FLR at p.4 thus:

"If a summons or information discloses no offence it is void ab initio, and cannot be cured by application of Criminal Procedure Code s80(2) or s.323; nor can a conviction for a lesser or kindred offence be substituted or the proviso to Criminal Procedure Code s.300(1) be applied."

Upon a careful examination of the whole of the evidence I have come to the conclusion that there was abundance of evidence which the learned Magistrate believed as ample to support the conviction on Counts 1 and 2 but not on Count 3.

For these reasons the appellant fails on grounds 5, 6 and 7 but succeeds on ground 8.

In the outcome the appeal against conviction partially succeeds, namely on Count 3 but not on Counts 1 and 2. The conviction on the Third Count is therefore set aside and the sentence quashed.

Grounds 9 and 10

With regard to sentence, which is grounds nine and ten, the learned Magistrate as stated hereabove gave consecutive sentences.

I agree with the learned counsel for the appellant that the sentences should have been concurrent as there has been a ‘series’ of offences in one and the same incident on the same day and at the same time. In this regard I have borne in mind the following passage from the judgment of the then Acting Chief Justice Tuivaga (now Chief Justice) in Ernest Whippy and Reginam (Crim. Appeals 38 to 42/94):

"Thus a court should be careful when dealing with a series of cases such as the present not to order a sentence to run consecutively to another sentence if the nett result is to inflate the overall effective sentence out of proportion to the offences concerned."

The reason given for consecutive sentences is stated in the following words (p.93 of Record). "In my view, in the interest of justice, consecutive sentence is warranted. I have considered whether the sentence should be made concurrent but in my opinion it is not approximate (?) (should be ‘appropriate’, I think), to make them concurrent. Therefore, each sentence is consecutive to each other; making it a total of 10 years to serve given the seriousness of the offences".

The appellant has a long list of previous convictions which include crimes of violence and drunkenness dating back to 1975. In mitigation he said that he is "serving 3 years imprisonment for robbery with violence case".

The sentencing remarks of the learned Magistrate are quite justified in the circumstances of this case. Within hours of the incidents the victim allegedly hung herself which resulted in her death.

Having regard to the facts of the offences and in particular the aggravating features and looking at the injuries, the learned Magistrate was justified in concluding that a long custodial sentence was warranted. It is necessary that the Court should, and should be seen and understood to, punish conduct of the nature as to this case severely.

In my view the sentence of 3 years on the first count is appropriate but on the second count the appropriate sentence would have been on the facts 5 years’ imprisonment.

In the outcome, for the above reasons, accepting the appellant’s submission on Count 3, I set aside the conviction and quash the sentence on that Count. The sentence on Count 1 is not disturbed. I set aside the sentence on Count 2 and substitute it with one of 5 years’ imprisonment to be served concurrently which makes the total sentence on Counts 1 and 2 to 5 years’ imprisonment . This
sentence is consecutive to the sentence which the appellant is serving at present.

The appeal is allowed to the above extent.

D. Pathik
Judge

At Labasa
10 January 2000