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{\fs22\insrsid2309395\charrsid10355983 {\*\bkmkend Romanu_Naceva_Tueta_Seqasaqa_v_State} \par Court of Appeal Criminal Appellate Jurisdiction \par 24 May, 2001 }{\fs22\insrsid2309395 \tab \tab \tab \tab \tab \tab \tab }{\fs22\insrsid2309395\charrsid10355983 AAU0014/98S}{\fs22\insrsid2309395 \par \par }\pard\plain \s15\qj \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 \fs24\lang3081\langfe3081\cgrid\langnp3081\langfenp3081 {\i\fs22\insrsid2309395\charrsid12917588 murder \endash assault occasioning actual bodily harm \endash appeal against conviction and sentence - finding of guilt of manslaughter \endash }{\i\fs22\insrsid2309395 whether Judge right to withdraw defence of accident from assessors - }{ \i\fs22\insrsid2309395\charrsid12917588 Penal Code ss199, 200, 245 \par }\pard \s15\ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 {\b\fs22\insrsid2309395\charrsid12917588 \par }\pard \s15\qj \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 {\i\fs22\insrsid2309395 right to counsel }{\i\fs22\insrsid2309395\charrsid12917588 -}{\b\fs22\insrsid2309395\charrsid12917588 }{ \i\fs22\insrsid2309395\charrsid12917588 conflict between defences of A2 and A3 and the}{\i\fs22\insrsid2309395 others \endash counsel sought leave to withdraw representing A2 and A3 and later A1 and A4 but continued representing A5 \endash unrepresented accused elect to waive right to counsel to end of trial - whether breach of right to counsel - }{\i\fs22\insrsid2309395\charrsid12917588 1997 Constitution}{\i\fs22\insrsid2309395\charrsid3360961 }{\i\fs22\insrsid2309395 ss}{ \i\fs22\insrsid2309395\charrsid12917588 28(1)(d)}{\i\fs22\insrsid2309395\charrsid7297571 }{\i\fs22\insrsid2309395\charrsid12917588 and 29(1)}{\i\fs22\insrsid2309395 \par }\pard \s15\ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 {\b\fs22\highlight7\insrsid2309395\charrsid6115143 \par }\pard\plain \qj \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 \fs20\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\fs22\insrsid2309395\charrsid5308971 All }{\fs22\insrsid2309395 Appellant}{ \fs22\insrsid2309395\charrsid5308971 s faced a murder charge}{\fs22\insrsid2309395 of a complainant villager who suspected 3 youths of removing fuses from his meter box}{\fs22\insrsid2309395\charrsid5308971 . A1-A3 and A5 also faced a charge of assault occasioning actual bodily harm A3 pleaded guilty to the latter charge}{\fs22\insrsid2309395 and}{\insrsid2309395\charrsid12917588 }{\fs22\insrsid2309395\charrsid12917588 was sentenced to 18 months imprisonment concurrent with his sentence on manslaughter. The other }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid12917588 s pleaded not guilty to all charges. During the course of the trial the State withdrew the charge of assault occasioning actual bodily harm against }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid12917588 s A1 and A2. }{ \fs22\insrsid2309395 Also d}{\fs22\insrsid2309395\charrsid12917588 uring the course of trial, original counsel sought leave to withdraw as counsel for A}{\fs22\insrsid2309395 1-}{\fs22\insrsid2309395\charrsid12917588 A}{\fs22\insrsid2309395 4}{ \fs22\insrsid2309395\charrsid12917588 on the basis of conflicting defences. The trial Court found A1-A4 guilty of manslaughter and sentenced each to 7 years imprisonment, while A5 was found guilty of murder and sentenced to life imprisonment. A5 was found guilty of assault occasioning actual bodily harm and sentenced to 9 months imprisonment to be served concurrent ly.}{\fs22\insrsid2309395 The Appellants appealed on the grounds of the refusal of the trial Judge to declare a mistrial, to adjourn to allow the accused separate legal representation, that he allowed counsel to continue to represent A5 and withdrew the defence of accident from the assessors. The Court considered the difficulties confronting the trial Judge at the advanced stage of trial when the conflict was discovered. The appellate Court found that the Appellants needed to make decisions }{ \fs22\insrsid2309395\charrsid13192641 on their separate interests, and required sophistication in formulating questions for cross-examination, which could not reasonably have been expected from the }{\fs22\insrsid2309395 Appellant}{ \fs22\insrsid2309395\charrsid13192641 s. It found that the trial Judge should have }{\fs22\insrsid2309395 ended the trial and }{\fs22\insrsid2309395\charrsid13192641 started }{\fs22\insrsid2309395 again }{\fs22\insrsid2309395\charrsid13192641 with a hearing de novo when original counsel withdrew representation of some }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid13192641 s. }{\fs22\insrsid2309395 The appellate Court then considered A5\rquote s}{ \fs22\insrsid2309395\charrsid14375701 }{\fs22\insrsid2309395 appeal that the State }{\fs22\insrsid2309395\charrsid14375701 did not establish the intention necessary }{\fs22\insrsid2309395 f}{\fs22\insrsid2309395\charrsid14375701 o}{\fs22\insrsid2309395 r }{\fs22\insrsid2309395\charrsid14375701 malice aforethought}{\fs22\insrsid2309395 , and dismissed that ground}{\fs24\insrsid2309395 .}{\fs24\insrsid2309395\charrsid14375701 \par }\pard\plain \s15\ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 \fs24\lang3081\langfe3081\cgrid\langnp3081\langfenp3081 {\f54\fs18\lang2057\langfe3081\langnp2057\insrsid2309395 \par }\pard \s15\qj \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 {\b\fs22\insrsid2309395 Held }{\fs22\insrsid2309395\charrsid6771426 \endash (1)}{\b\fs22\insrsid2309395 }{ \caps\fs22\lang2057\langfe3081\langnp2057\insrsid2309395\charrsid12466774 i}{\fs22\lang2057\langfe3081\langnp2057\insrsid2309395\charrsid996598 n performing }{\fs22\lang2057\langfe3081\langnp2057\insrsid2309395 an }{ \fs22\lang2057\langfe3081\langnp2057\insrsid2309395\charrsid996598 unlawful }{\fs22\lang2057\langfe3081\langnp2057\insrsid2309395 act, which is }{\fs22\lang2057\langfe3081\langnp2057\insrsid2309395\charrsid996598 at the same time a dangerous act, which is likely to injure another person and quite inadvertently the doer of the act causes the death of that other person by that act then he is guilty of manslaughter}{ \fs22\lang2057\langfe3081\langnp2057\insrsid2309395 .}{\b\fs22\insrsid2309395 \par }\pard\plain \qj \fi374\li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 \fs20\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\fs22\insrsid2309395\charrsid14375701 (2) Intoxication cannot of itse lf constitute a defence but is relevant only in a case where a necessary specific intent is said to be negatived by the degree of intoxication of the accused person. A drunken intent is still an intent. Before drunkenness can affect the existence of an i ntent, it would have to be fairly far advanced. In neither statements did he suggest that he was so affected by alcohol as to be unable to form an intention. The evidence was sufficient for assessors to find the necessary intent to justify conviction. \par }\pard\plain \s15\qj \fi374\li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 \fs24\lang3081\langfe3081\cgrid\langnp3081\langfenp3081 {\fs22\insrsid2309395 (3) The trial Judge should have ended the trial of A1-A4 when counsel withdrew representation, as the accused had previously been represented, and indicated they wished to be represented. \par (4) Where a court is informed during the course of trial that the re is a conflict between the defences of accused persons and the counsel wishes to cease acting for some of the accused who still want to be legally representated, then the interest of justice require that the trial should be brought to an end and begun d e novo with all accused being separately represented. \par }\pard\plain \qj \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 \fs20\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\insrsid2309395 \par }\pard \qj \fi-374\li374\ri-35\widctlpar\aspalpha\aspnum\faauto\adjustright\rin-35\lin374\itap0\pararsid2309395 {\fs22\insrsid2309395\charrsid10313942 Obiter dictum}{\fs22\insrsid2309395 -}{\fs22\insrsid2309395\charrsid10313942 the correct statement of the law in respect of the defence of accident is: \'93where the act which a person is engaged in performing is unlawful then if at the same time it is a dangerous ac t, that is an act which is likely to injure another person and quite inadvertently the doer of the act causes the death of that other person by that act then he is guilty of manslaughter.\'94 The Judge in this case was therefore right to withdraw the defence of accident from the assessors. \par }\pard\plain \s15\qj \fi374\li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 \fs24\lang3081\langfe3081\cgrid\langnp3081\langfenp3081 {\b\i\fs22\insrsid2309395\charrsid10313942 DPP v Newbury}{ \fs22\insrsid2309395\charrsid10313942 [1977] }{\fs22\insrsid2309395 AC}{\fs22\insrsid2309395\charrsid10313942 500 appl. \par }\pard\plain \qj \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 \fs20\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\insrsid2309395 \par }{\fs22\insrsid2309395\charrsid5778025 Appeal allowed in respect of A1-A4. Convictions for manslaughter quashed. No retrial ordered. }{\fs22\insrsid2309395 Appeal against conviction of A5 dismissed.}{\fs22\insrsid2309395\charrsid5778025 \par }\pard\plain \s15\qj \fi748\li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 \fs24\lang3081\langfe3081\cgrid\langnp3081\langfenp3081 {\fs22\insrsid2309395 \par }\pard \s15\ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 {\b\fs22\insrsid2309395 Cases referred to in Judgment \par }{\b\i\fs22\insrsid2309395 The}{\fs22\insrsid2309395 }{\b\i\fs22\insrsid2309395 Queen v Taiters}{\fs22\insrsid2309395 (1966) 87A Crim. R. 507 \par }{\b\i\fs22\insrsid2309395 Reg v Church}{\fs22\insrsid2309395 [1966] 1 QB 59 \par }{\b\i\fs22\insrsid2309395 Rex v Larkin}{\fs22\insrsid2309395 [1943] 1 All ER 217 \par }{\b\fs22\insrsid2309395 \par }\pard\plain \qj \fi-2160\li2160\ri0\widctlpar\tx-1440\aspalpha\aspnum\faauto\adjustright\rin0\lin2160\itap0\pararsid2309395 \fs20\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\i\fs22\insrsid2309395\charrsid3562260 Dr. John Cameron for the }{ \i\fs22\insrsid2309395 F}{\i\fs22\insrsid2309395\charrsid3562260 irst to }{\i\fs22\insrsid2309395 F}{\i\fs22\insrsid2309395\charrsid3562260 ourth }{\i\fs22\insrsid2309395 Appellant}{\i\fs22\insrsid2309395\charrsid3562260 s \par }\pard \qj \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 {\i\fs22\insrsid2309395\charrsid3562260 Neel Shivam for the }{\i\fs22\insrsid2309395 F}{\i\fs22\insrsid2309395\charrsid3562260 ifth }{\i\fs22\insrsid2309395 Appellant}{\i\fs22\insrsid2309395\charrsid3562260 \par Kevueli Tunidau for the }{\i\fs22\insrsid2309395 Respondent}{\i\fs22\insrsid2309395\charrsid3562260 \par }\pard\plain \s15\ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 \fs24\lang3081\langfe3081\cgrid\langnp3081\langfenp3081 {\b\fs22\insrsid2309395 \par }\pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 \fs20\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\fs22\insrsid2309395 24 May, 2001\tab \tab \tab }{\b\caps\fs22\insrsid2309395 judgment}{ \fs22\insrsid2309395 \par \par }\pard \qj \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 {\b\fs22\insrsid2309395\charrsid13195875 Casey, Gallen, Byrne}{\b\fs22\insrsid2309395 ,}{\b\fs22\insrsid2309395\charrsid13195875 JJA \par }{\fs22\insrsid2309395\charrsid728288 The above-named }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s were tried in the High Court of Fiji at Suva on a charge of murder contrary to {\*\bkmkstart s199_PC_Romanu_Naceva_v_State} sections 199 {\*\bkmkend s199_PC_Romanu_Naceva_v_State}a}{\fs22\insrsid2309395 nd}{\fs22\insrsid2309395\charrsid728288 {\*\bkmkstart s200_PC_Romanu_Naceva_v_State}200 {\*\bkmkend s200_PC_Romanu_Naceva_v_State}of the Penal Code. All }{ \fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s other than Saqasaqa were also charged with assault occasioning actual bodily harm contrary to section 245 of the Penal Code. The }{\fs22\insrsid2309395 Appellant}{ \fs22\insrsid2309395\charrsid728288 Jeke pleaded guilty to that charge. The other }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s pleaded not guilty to all charges. During the course of the trial the State withdrew the charge of assault occasioning actual bodily harm against the }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s Naceva and Nukuveiwaqa. \par \par The first four of the above-named }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s were al}{\fs22\insrsid2309395 l found guilty of manslaughter }{\fs22\insrsid2309395\charrsid728288 convicted and sentenced to 7 years imprisonment. Th}{\fs22\insrsid2309395 e fifth named Appellant Vilise }{\fs22\insrsid2309395\charrsid728288 Leweni who has separately appealed was found guilt y of murder convicted and sentenced to life imprisonment. On the charge of assault occasioning actual bodily harm Vilise Leweni was convicted and sentenced to 9 months imprisonment to be served concurrently with his sentence of life imprisonment. The }{ \fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 Jeke who had pleaded guilty to the charge of ass}{\fs22\insrsid2309395 ault occasioning actual bodily }{\fs22\insrsid2309395\charrsid728288 harm was sentenced to 18 months imprisonment concurrent with his sentence on manslaughter. \par \par The trial commenced before Townsley J. on the 21 of April 1998. All accused, who had been granted legal aid, were represented by Mr. J. Maharaj. The State case depended upon an allegation that the }{\fs22\insrsid2309395 Appellant}{ \fs22\insrsid2309395\charrsid728288 s were acting in concert and were charged as parties although Dr Cameron complains the State never clarified the allegations. \par \par The trial proceeded through the prosecution case until the 22 of May 1998. On that day Mr. Maharaj opened the case for the }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 , Naceva. He indicated to the court that there had been a development,}{\fs22\insrsid2309395 }{\fs22\insrsid2309395\charrsid728288 that the first accused wished the second accused t o testify for him and sought an adjournment to interview an additional witness. An unsworn statement was made from the dock by the }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 Naceva. \par \par On Tuesday the 26 of May when the hearing resumed Mr Maharaj indicated that he was about to move onto the second accused. The Judge reminded Mr Maharaj that he had previously indicated the second }{\fs22\insrsid2309395 Appellant}{ \fs22\insrsid2309395\charrsid728288 was going to give evidence as a witness for the first }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 . Mr Maharaj informed him there had been a change but he wished to confirm it. The Judge properly pointed out that if the second }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 did give evidence he would be subject to cross-examination as to the whole case and as to credibility. Mr Maharaj replied by informing the Judge that he was uncomfortable with certain things that had been told to him that morning after the assessors retired. Mr Maharaj indicated that it appeared there would be a conflict between the defences of the second and third }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s but he did not know to what degree. There was a further adjournment while he sou ght further instructions. At 10.48 a.m. Mr Maharaj advised the Court that he would have to withdraw from the defence of the second and third accused. He indicated that they fully understood what was being said and accepted the withdrawal but indicated t h eir desire to have Counsel. The Prosecutor then stated that the State had no objection to 48 hours adjournment for the second and third accused to get counsel. The Court asked Mr Maharaj whether it was necessary for them to have fresh Counsel each and M r Maharaj explained that one Counsel for both would be sufficient. The hearing was then adjourned to Friday the 29}{\fs22\super\insrsid2309395\charrsid728288 th }{\fs22\insrsid2309395\charrsid728288 of May. \par \par On the 29}{\fs22\super\insrsid2309395\charrsid728288 th }{\fs22\insrsid2309395\charrsid728288 of May Dr Cameron appeared as amicus curiae and Mr Maharaj appeared for the first, fourth and fifth }{\fs22\insrsid2309395 Appellant}{ \fs22\insrsid2309395\charrsid728288 s. Dr Cameron informed the Court that he had spoken to all accused and that the first four accused had given him instructions to move for a mistrial. He noted that they had a right to independent Counsel and he stated to the Court that the defences of the a ccused were contradictory. He stated it was impossible that they could continue to be represented by single Counsel and that the defence could be described as \'93cut-throat\'94 . He informed the court that the conflict from the outset was irreconcilable. He also stated that if the application for }{\fs22\insrsid2309395 a mis-trial were not acceded to }{\fs22\insrsid2309395\charrsid728288 he would not be in a position to appear. \par \par Mr Maharaj indicated he had sought leave to withdraw from defending accused numbers 2 and 3. He did not see any conflict of interest up to tha t point and did not concede that there was a conflict right from the outset. He saw no reason why the trial should not proceed. The prosecutor submitted that conflict between the accused was no ground to abort the trial. She pointed out that it was in its sixth week and submitted there was no grave irregularity justifying a new trial. \par \par The Judge stated that the mere fact of conflict between the defences of the accused should have been ironed out in the time that had elapsed since the 17}{\fs22\super\insrsid2309395\charrsid728288 th}{\fs22\insrsid2309395\charrsid728288 of April. He noted that Mr Maharaj did not consider that he should not act until the 26}{\fs22\super\insrsid2309395\charrsid728288 th}{\fs22\insrsid2309395\charrsid728288 of May. He saw no reason to declare a mistrial and considered that it should proceed. There was then a short adjournment for counsel to take instructions after which Mr Maharaj indicated he withdrew from the defence of accused numbers 1 and 4 as well as 2 and 3. He continued to act for accused number 5. \par \par Dr Cameron stated that he objected to Mr Maharaj continuing to act for accused number 5 as he would be in breach of confidence with accused number 4 who in fact is the son of accused number 5. Mr Maharaj considered that there was no conflict. Dr Cameron then sought a temporary stay so that Counsel could be sought under the legal aid certificates. This was opposed by the prose cutor and the Judge took the view that in the circumstances of the history of the trial and the stage it had reached he was of the view that the application for stay should be refused and the trial should proceed. \par \par Dr Cameron then withdrew with the leave of the Court and the trial proceeded with Mr Maharaj representing the fifth accused. All other accused were from that stage forward unrepresented. The Judge then asked the first accused if he wished to call the second accused. He received the reply \'93 yes\'94, and the second accused was then called by the first accused. The second accused is then recorded as having stated that he understood that he abandoned his right to silence and would be exposed to cross-examination by counsel and other unrepresented accu sed. The case then proceeded to a conclusion after which the convictions already referred to were entered. \par \par The factual background, although complex in detail, can be referred to in very short summary. It appears that the deceased and his wife who lived a t Qauia Village believed that a fuse wire had been removed from a fuse box at their house. They were suspicious that this had been done by several young people from the village and they pursued their suspicion by inquiries. They also reported the incide nt to the police station and named three boys as suspect. The second and fourth accused were two of the three so named. All that occurred on the 2}{\fs22\super\insrsid2309395\charrsid728288 nd}{\fs22\insrsid2309395\charrsid728288 of December 1995. On the 4}{\fs22\super\insrsid2309395\charrsid728288 th}{\fs22\insrsid2309395\charrsid728288 of December 1995 the deceased was drinking at a house in the village when a group of persons including the accused approached that house. There are varying accounts of what subsequently occurred but there is no doubt that the deceased received a number of kicks and blows and was stomped on the back while he was lying on the grou nd. He was removed to hospital and died there. According to the post-mortem report (which was available to Counsel although not produced during the course of the hearing), he died from a massive sub-dural hematoma right fronto temp. parietal. \par \par The original grounds of appeal put forward by the }{\fs22\insrsid2309395 f}{\fs22\insrsid2309395\charrsid728288 irst four }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s were apparently adduced by them without the assistance of Counsel. They were replaced for the purposes of this hearing by amended grounds of appeal filed by Dr. Cameron who appeared on behalf of all four. These were conveniently set out in the amended grounds of appeal filed by him in the following terms: \par }\pard \qj \fi-776\li1496\ri526\widctlpar\aspalpha\aspnum\faauto\adjustright\rin526\lin1496\itap0\pararsid2309395 {\insrsid2309395\charrsid14164530 The Judge \par }\pard \qj \fi-776\li1496\ri526\widctlpar\tx-1440\aspalpha\aspnum\faauto\adjustright\rin526\lin1496\itap0\pararsid2309395 {\insrsid2309395\charrsid14164530 (a)\tab breached the rights of the }{\insrsid2309395 Appellant}{\insrsid2309395\charrsid14164530 s under {\*\bkmkstart Const_s29_1_Romanu_Naceva_v_State}sections 29(1) {\*\bkmkend Const_s29_1_Romanu_Naceva_v_State}and {\*\bkmkstart Const_s28_1_d_Romanu_Naceva_v_State}28(1)(d) {\*\bkmkend Const_s28_1_d_Romanu_Naceva_v_State} of the Constitution of Fiji when he refused the }{\insrsid2309395 Appellant}{\insrsid2309395\charrsid14164530 s\rquote applications: \par }\pard \qj \fi-776\li2216\ri526\widctlpar\tx-1440\aspalpha\aspnum\faauto\adjustright\rin526\lin2216\itap0\pararsid2309395 {\insrsid2309395\charrsid14164530 (i)\tab that he declare a mistrial; or \par (ii)\tab that he stay the prosecution until such time as the }{\insrsid2309395 Appellant}{\insrsid2309395\charrsid14164530 s should be provided with separate legal representation; or \par (iii)\tab that he adjourn the trial to enable the }{\insrsid2309395 Appellant}{\insrsid2309395\charrsid14164530 s to seek separate legal representation; and having refused such applications}{\insrsid2309395 ;}{\insrsid2309395\charrsid14164530 \par (iv)\tab refused to direct that their former counsel withdraw from the representation of the accused Vilise Leweni; and \par (v)\tab permitted their former counsel to continue his represenation of the co-accused Vilise Leweni and to conduct his defence in breach of his fiduciary duty to the }{\insrsid2309395 Appellant}{\insrsid2309395\charrsid14164530 s and of his duty to the Court. \par }\pard \qj \fi-776\li1496\ri526\widctlpar\tx-1440\aspalpha\aspnum\faauto\adjustright\rin526\lin1496\itap0\pararsid2309395 {\insrsid2309395\charrsid14164530 (b)\tab failed to put adequately or at all the }{\insrsid2309395 Appellant}{ \insrsid2309395\charrsid14164530 \rquote s defence based upon the inconsistency between the evidence of the prosecution eye-witnesses as to the prolonged and vicious attack on the deceased on the one hand, and the absence on the evidence o f prosecution witnesses adduced by the prosecution of injuries on the body of the deceased consistent with such an attack on the other; and \par (c)\tab failed to leave the defence of accident to the assessors; and \par (d)\tab failed to impress upon the assessors their duty to be satisfied beyond reasonable doubt of the guilt of each individual accused considering his case separately from that alleged against his co-accused. \par }\pard \qj \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 {\fs22\insrsid2309395\charrsid728288 \par The first of the grounds of appeal arises out of the situation which developed at the conclusion fo r the case of the prosecution when Mr Maharaj, who had up until that time represented all five accused decided that it was inappropriate to continue to do so and from that point on represented only the }{\fs22\insrsid2309395 F}{ \fs22\insrsid2309395\charrsid728288 ifth }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 . The Judge was at this point confront ed with a difficult situation. The trial had already been proceeding for some six weeks. A large number of witnesses had given evidence and the prosecution had completed its case. To direct a mis-trial and commence the hearing from the beginning was no t an attractive prospect and understandably so. All the }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s had up until that time the support of representation by Counsel. They had made it plain from the outset that they wished to be represented by Counsel. In the circumstances, to have adjour ned the matter to allow fresh Counsel to be appointed would have created some degree of inconvenience. Furthermore, on Dr Cameron\rquote s submission it could have resulted in the necessity to recall a number of witnesses to cross-examine them in a manner which had not been done earlier in the hearing, in order to ensure that the separate interests of the various }{ \fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s were dealt with. The Judge then made a decision to proceed with the hearing as has already been indicated. It proceeded with the fifth }{\fs22\insrsid2309395 Appellant}{ \fs22\insrsid2309395\charrsid728288 being represented and the others appearing on their own behalf, despite the fact that they had previously been represented and had sought representation. \par \par This was a complex case giving rise to difficulties of both fact and law. In supp ort of his submissions Dr Cameron put forward various contentions which depended upon factual material which he submitted was not before the court and ought to have been. One of his submissions was that the Judge ought not to have withdrawn the defence o f accident from the assessors. This contention depended upon questions relating to causation, intention and forseeability. These are not concepts which would be readily understandable by persons with the background of the }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s. These aspects of th e case were further complicated by questions arising as to which of the sections of the Penal Code dealing with parties were relied upon by the State during the course of the proceedings. Assuming that both were before the assessors, a certain sophist ication was necessary in formulating questions for cross-examination. We cannot accept that this could reasonably have been expected from the }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s. \par \par Quite apart from the complex questions of law and fact, the }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s faced other difficulties of wh ich they were unlikely to have been aware. Problems arose when a decision had to be made as to whether or not the second }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 would be called as a witness by the first }{ \fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 . That decision involved an assessment of the interests of both first and second }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s. That needed to be considered in the light of the fact that the statement made by the first }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 to the police was exculpatory of himself and inculpatory of other }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s. By the time it was necessary to make a final and formal decision Mr Maharaj was representing only the fifth }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 and in no position to advise either the first or second }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s of what was in their best interests. The Judge properly informed the second }{\fs22\insrsid2309395 Appellant}{ \fs22\insrsid2309395\charrsid728288 of the disadvantages of his giving evidence in a situation where he could be cross-examined as to matters which affected his own position. He was called upon to make that decision without the advantage of direct and personal legal advice. Dr Cameron pu t an emphasis on the fact that any information which the first or second }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s had given to their former Counsel, Mr Maharaj, would be difficult if not impossible to isolate from the interests of the fifth }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 whom he continued to represent. We note that in advising the Court of the difficulties which were arising Mr Maharaj indicated that those were complicated by information he had been given that day. We cannot of course speculate as to what that information was but it must have related to t he interests of one or more of the }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s. \par \par In summary then, this was a difficult and complex case both as to fact and law. The }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s had sought legal assistance but through no fault of their own at a comparatively late stage of the trial, they we re deprived of that assistance. It was moreover a state of the trial where decisions had to be made which reflected their separate interests as distinct from those of the other }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s. This gave rise to conflicting interests, a situation which was further complicated by the fact that counsel who had previously represented them continued to represent the fifth }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 . We are satisfied that the interests of justice required the trial to be brought to an end when Mr Maharaj withdrew from representation of the first four }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s and that in spite of the difficulties and expense such a decision would have entailed the trial ought to have been commenced de novo with all }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s being separately represented. \par \par The question then arises as to what is an appropriate outcome at this stage. The first four }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s were all acquitted of murder. If the matter is to be retried, they ought only to be retried in respect of a charge of manslaughter. On the conviction on the charge of manslaughter they were each sentenced to 8 years imprisonment. When the period on remand is taken into account, each has already served in excess of five years imprisonment. It is now 5 years from the date of the trial and there are bound to be problems with witnesses. Havin g regard to the circumstances, we have come to the conclusion that there ought not to be a retrial in respect of the four }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s. The appeal will be allowed. The convictions in respect of manslaughter will be quashed in respect of each of the four }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s. \par \par Before leaving the appeal of the first four }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s we think it right to comment on a submission made by Dr Cameron as to the relevance of the defence of accident in manslaughter cases of the kind at present before the Court. He submitted following}{\fs22\insrsid2309395 {\*\bkmkstart Queen_v_Taiters_v_State_Romanu} }{\b\i\fs22\insrsid2309395\charrsid6894680 The}{\i\fs22\insrsid2309395\charrsid6894680 }{\b\i\fs22\insrsid2309395\charrsid6894680 Queen }{\b\i\fs22\insrsid2309395 v}{\b\i\fs22\insrsid2309395\charrsid6894680 Taiters}{\i\fs22\insrsid2309395\charrsid6894680 }{\fs22\insrsid2309395\charrsid14164530 (1966) 87A Crim. R. 507 (Ca Qld{\*\bkmkend Queen_v_Taiters_v_State_Romanu})}{\fs22\insrsid2309395\charrsid728288 that the Crown must prove that an ordinary person in the position of the }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s would reasonably have foreseen death could follow from his or her actions. \par \par }{\fs22\insrsid2309395 }{\fs22\insrsid2309395\charrsid728288 We do not accept that is a correct statement of the law of Fiji. The position in this country is set out in the decision of the House of Lords in }{\b\i\fs22\insrsid2309395\charrsid728288 {\*\bkmkstart DPP_v_Newbury_Romanu_Naceva_v_State}DPP }{\b\i\fs22\insrsid2309395 v}{\b\i\fs22\insrsid2309395\charrsid728288 Newbury}{\fs22\insrsid2309395\charrsid728288 {\*\bkmkend DPP_v_Newbury_Romanu_Naceva_v_State}[1977] }{\fs22\insrsid2309395 AC}{ \fs22\insrsid2309395\charrsid728288 , 500 quoting from }{\b\i\fs22\insrsid2309395\charrsid728288 {\*\bkmkstart Rex_v_Larkin_Romanu_Naceva_v_State}Rex }{\b\i\fs22\insrsid2309395 v}{\b\i\fs22\insrsid2309395\charrsid728288 Larkin}{ \fs22\insrsid2309395\charrsid728288 {\*\bkmkend Rex_v_Larkin_Romanu_Naceva_v_State}[1943] 1 All ER 217 at 219 where it was said: \par }\pard \qj \li748\ri526\widctlpar\aspalpha\aspnum\faauto\adjustright\rin526\lin748\itap0\pararsid2309395 {\insrsid2309395\charrsid3562260 \'93where the act which a person is engaged in performing is unlawf ul then if at the same time it is a dangerous act, that is an act which is likely to injure another person and quite inadvertently the doer of the act causes the death of that other person by that act then he is guilty of manslaughter.\'94}{ \fs22\insrsid2309395\charrsid3562260 \par }\pard \qj \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 {\fs22\insrsid2309395\charrsid728288 \par The House also approved the statement illustrating the meaning of \'93dangerous\'94 - in }{\b\i\fs22\insrsid2309395\charrsid728288 {\*\bkmkstart Reg_v_Church_Romanu_Naceva_v_State}Reg }{\b\i\fs22\insrsid2309395 v}{\b\i\fs22\insrsid2309395\charrsid728288 Church}{\fs22\insrsid2309395\charrsid728288 {\*\bkmkend Reg_v_Church_Romanu_Naceva_v_State}[1966] 1 QB 59: \par }\pard \qj \li720\ri526\widctlpar\aspalpha\aspnum\faauto\adjustright\rin526\lin720\itap0\pararsid2309395 {\insrsid2309395\charrsid3562260 \'93For such a verdict\'94 (guilty of manslaughter) \'93inexorably to fo llow, the unlawful act must be such as all sober and reasonable people would inevitably recognise must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.\'94 \par }\pard \qj \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 {\fs22\insrsid2309395\charrsid728288 \par It follows that the Judge in this case was right to withdraw the defence of accident from the assessors. \par \par }{\b\fs22\ul\insrsid2309395\charrsid728288 Appeal by Fifth }{\b\fs22\ul\insrsid2309395 Appellant}{\b\fs22\ul\insrsid2309395\charrsid728288 \par }{\fs22\insrsid2309395\charrsid728288 That leaves the appeal by the fifth }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 . He alone was convicted on a charge of a murder. He was in fact represented throughout by Mr Maharaj. His appeal is accordingly much more limited than that of the first four }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 s. It depends upon a contention that the State did not establish the intention necessary to meet the requirement of malice aforethought. This contention depends upon an assertion that the }{\fs22\insrsid2309395 Appellant}{ \fs22\insrsid2309395\charrsid728288 was intoxicated at the time and incapable of forming the necessary intent. Counsel referred us to various authorities which relate to the effect of the consumption of alcohol on criminal intent. There is no dispute that intoxication cannot of its elf constitute a defence but is relevant only in a case where a necessary specific intent is said to be negatived by the degree of intoxication of the accused person. As assessors are frequently reminded, a drunken intent is still an intent. \par \par Mr Shivam quite properly drew attention to the evidence of five state witnesses whose evidence established that the }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 was drunk, that he wasn\rquote t still and that when he spoke his body was moving from side to side, and that he was speaking harshly and staggering. This material certainly goes far enough to indicate that the }{\fs22\insrsid2309395 F}{\fs22\insrsid2309395\charrsid728288 ifth }{ \fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 was affected by alcohol. However that must be considered against the fact that he made an unsworn statement from the dock in which he gave an account of what he had done duri ng the day and of going up the hill. His account was coherent and dealt with such detail as the fact that he could see a lantern light inside the house. He spoke of bringing a person down. Neither in that statement nor in the statement that he made to the police did he suggest that he was so affected by alcohol as to be unable to form an intention. Most significantly, however, the record indicates that before Mr Maharaj made his final address to the assessors on behalf of the }{ \fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 , he was specifically addressed by the court in the following terms \'93 and you have expressly resiled from the use of intoxication Mr Maharaj and anything following from the medical evidence.\'94 Mr Maharaj, \'93yes my Lord.\'94 In his summing up to the jury the Judge correctly stated that before drunkenness can affect the existence of an intent, it would have to be fairly far advanced which, if anything, puts the matter favourably for the }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 . Under those circumstances we could not possibly find that the material upon which Counsel relies is sufficient to establish that the assessors could not have found the necessary intent to justify conviction. The appeal of the }{\fs22\insrsid2309395 F} {\fs22\insrsid2309395\charrsid728288 ifth }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 must therefore be dismissed. \par }{\b\fs22\insrsid2309395\charrsid728288 \par }{\b\fs22\ul\insrsid2309395\charrsid728288 Result: \par }\pard \qj \fi-589\li1309\ri0\widctlpar\tx-1440\aspalpha\aspnum\faauto\adjustright\rin0\lin1309\itap0\pararsid2309395 {\fs22\insrsid2309395\charrsid728288 1.\tab The appeals by the first four }{\fs22\insrsid2309395 Appellant}{ \fs22\insrsid2309395\charrsid728288 s are allowed, their convictions for manslaughter are quashed and we direct that judgments and verdicts of acquittal are to be entered. \par }\pard \qj \fi-589\li1309\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin1309\itap0\pararsid2309395 {\fs22\insrsid2309395\charrsid728288 \par 2.\tab The }{\fs22\insrsid2309395 F}{\fs22\insrsid2309395\charrsid728288 ifth }{\fs22\insrsid2309395 Appellant}{\fs22\insrsid2309395\charrsid728288 \rquote s appeal against his conviction for murder is dismissed.}{\fs22\insrsid2309395 \par }\pard \qr \li776\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin776\itap0\pararsid2309395 {\i\fs22\insrsid2309395 \par }{\i\fs22\insrsid2309395\charrsid3562260 First to }{\i\fs22\insrsid2309395 F}{\i\fs22\insrsid2309395\charrsid3562260 ourth }{\i\fs22\insrsid2309395 Appellant}{\i\fs22\insrsid2309395\charrsid3562260 s\rquote appeal allowed. Fifth}{\i\fs22\insrsid2309395 Appellant}{\i\fs22\insrsid2309395\charrsid3562260 \rquote s appeal fails. }{\i\fs22\insrsid2309395 \par }{\i\fs22\insrsid2309395\charrsid3562260 \par }\pard\plain \s15\qr \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 \fs24\lang3081\langfe3081\cgrid\langnp3081\langfenp3081 {\fs22\insrsid2309395\charrsid275809 Marie Chan}{\fs20\insrsid2309395\charrsid275809 \par }\pard\plain \qc \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid2309395 \fs20\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\b\insrsid2309395\charrsid275809 \sect }\sectd \pgwsxn12240\pghsxn15840\marglsxn1800\margrsxn1800\margtsxn1440\margbsxn1440\linex0\endnhere\sectlinegrid360\sectdefaultcl\sftnbj \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \fs20\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\insrsid1972231 \par }}