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State v Shaheen - Judgment [2015] FJHC 465; HAC113.2012 (24 June 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 113 OF 2012

STATE

V

MOHAMMED SHAHEEN

Counsels : Ms R. Uce/ MsWakesa E. for the State
Ms S. Ratu for the Accused

Date of Trial : 22nd June – 23rd June 2015
Date of Summing Up : 24th June 2015
Date of Judgment : 24th June 2015

JUDGMENT

1. The Accused person is charged with the following count:
   

COUNT
Statement of Offence

ATTEMPT TO COMMIT MURDER: Contrary to Section 44 and 237 of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MOHAMMED SHAHEEN, on the 7th of September 2012 at Lautoka in the Western Division with intent to cause the death of ROVINA LATA unlawfully wounded the said ROVINA LATA with a kitchen knife.

2. After trial the three Assessors unanimously opined that the Accused person is not guilty on the above count against him. The Assessors also unanimously opined that the Accused is not guilty of the lesser offence of Act with intent to cause grievous harm.
   
3. I direct myself in accordance with my Summing Up and the evidence adduced at the trial.
   
4. It is an agreed fact that the Complainant and the Accused had been living in a de-facto relationship for the past 4 years. The Complainant in her evidence said that she left the Accused because she started an affair with another boyfriend. On the day in question, the Accused had seen the Complainant with her boyfriend and has come and questioned her.
   
5. She has then told him that she did not want him, but the new boyfriend. Then the Accused had hit her on the stomach because he could not control his anger, she said. She said that she got unconscious and she regained conscious at the hospital.
   
6. When she was questioned as to how she got the injuries, she said that the Accused did not do it intentionally. Further she said that she and the Accused were playing and accidently she got injured.
   
7. On the application made by the Prosecution, Complainant was allowed to be treated as a hostile witness. When questioned about her statement to the Police, she admitted that her signature was there, but said she did not know how the Police got her signature. She said she was unconscious. She said that she would not put the blame on the Accused as he did not do it.
   
8. However, the witness Pita Lotu who was a by-stander when the incident took place giving evidence said that he saw the Accused stabbing the victim. When he went to save the victim, the Accused had tried to stab him too. Then he had punched the Accused and taken the knife from the Accused. When the Police vehicle came, the Accused and the knife were handed over to the Police.
   
9. The Police Officer who re-arrested the Accused at the scene also gave evidence. The caution interview statement of the Accused was produced in evidence. It was not challenged by the Defence. In the caution interview statement, the Accused had admitted that he stabbed the Complainant with the kitchen knife which was in his pocket,as he got angry after seeing the Complainant with a man.
   
10. The Doctor who examined the Complainant also testified in Court on the injuries inflicted on the Complainant. It is an agreed fact that the Complainant got the following injuries.
    
    • - Multiple lacerations about 1cm x 1cm long around the left scapular area, posterior chest wall, left umbiliam and middle finger.
      
11. The Doctor said that it could have been worse if it was penetrated the chest cavity and abdomen. She further said that if it penetrated the chest cavity and abdomen, the victim would have injured her lungs, bowels and other organs in the cavity.
    
12. I do not take into consideration the history given by the Complainant to the Doctor, as it was not elicited by the Prosecution during the evidence of the Complainant.
    
13. I find that the Complainant in her evidence was trying to save the Accused from the charge by saying it was an accident and I find that she is not telling the truth in Court when she said she got injured accidently. It is clear from the evidence of the witness Pita Lotu that the Accused stabbed the Complainant and that it was not an accident. I also find that the version of the Accused in his caution interview statement that he stabbed the Complainant is the truth. It was not challenged by the Defence. The Accused was handed over to the Police then and there by the witness Pita Lotu who can be considered as an independent witness who had been a by-stander.
    
14. The Accused had come ready with the knife in his pocket. His motive is also well established by the Prosecution. Accused had stabbed the Complainant on her chest. Therefore, it is clear that his intention when he stabbed the Complainant on the chest was to kill the Complainant.
    
15. However, the Complainant's internal organs were not injuredas the knife did not penetrate up to the lungs and other organs in the cavity. As the Doctor testified it would have been worse if it penetrated the chest cavity and abdomen.
    
16. Therefore, I find that the Prosecution has proved all the elements of the offence of Attempt to commit murder, beyond reasonable doubt.
    
17. Hence, I find that the unanimous opinion of the Assessors was perverse and I do not agree with the Assessors unanimous opinion that the Accused is not guilty.
    
18. Therefore, acting in terms of Section 237 (4) of the Criminal Procedure Decree, I find the Accused guilty of the offence of Attempt to commit murder as charged.
    
19. I convict the Accused accordingly.
    

Priyantha Fernando
JUDGE

At Lautoka
24th June 2015

Solicitors: Office of the Director of Public Prosecution for the State
Office of the Legal Aid Commission for the Accused