State v Ratunarukutabua - summing up [1993] FJHC 123; Haa0027.93s (21 December 1993)

IN THE HIGH COURT OF FIJI
At Suva
Criminal Jurisdiction

CRIMINAL CASE NO. 17 OF 1993

THE STATE

v.

IRIMAIA RATUNARUKUTABUA

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

Mr. Dane Tuiqereqere for the State
Accused in Person

SUMMING-UP

Lady and gentlemen assessors as I said yesterday all that remains in this trial is for me to sum-up the case to you. Now the object or purpose of a summing-up is to help you in forming your opinion of this case. You and I are trying this case together and your opinions will weigh heavily with me when I make my final decision.

On matters of law that is the legal principles which apply in this case I shall be giving you directions which you must accept and apply in your deliberations.

On matters of fact however such as what happened on the steps of Rajend Singh's house at Kalokalo Place, Makoi on the early evening of Saturday the 12th of September 1992? Who did what to whom? How Prema Wati Devi came to sustain the injuries which ultimately caused her death? and which witnesses and what evidence you accept and believe? these are all questions of fact on which you are completely free to form your own opinions.

Lady and gentlemen assessors if I should express an opinion on the facts it is intended only to assist you in forming your individual opinions and you are at liberty to reject any view I may express if it does not appeal to you or you do not agree with it.

This has been a relatively short, simple trial and no doubt the evidence will still be fairly fresh in your minds. I do not propose therefore to repeat all of the evidence to you but in arriving at your opinions you must consider all of the evidence both for the prosecution and the unsworn statement of the accused which I shall be reminding you of at a later stage in this summing-up.

Lady and gentlemen assessors my first direction of law to you in this case is perhaps one of the most important and jealously guarded 'protections' granted by our criminal law to an accused person and which says that an accused person who has pleaded not guilty to a criminal charge is presumed to be innocent until proven guilty.

Furthermore the burden of proving an accused's guilt on any criminal charge rests fairly and squarely on the prosecution to establish beyond all reasonable doubt. The accused as you may recall me telling him does not have to prove his innocence nor does he have to disprove anything that the prosecution alleges against him. He could have remained silent had he so-desired but no doubt you will recall he elected to make an unsworn statement in his defence.

In other words lady and gentlemen assessors before you can express the opinion that the accused is 'guilty', the prosecution must call and produce evidence which you accept and which satisfies you so that you feel sure in your mind of the guilt of the accused.

If after considering all of the evidence you are unsure of the accused's guilt or have a reasonable doubt about it, then you must give the accused the benefit of your doubt and advise me that he is 'not guilty'.

If however after considering all of the evidence including the accused's unsworn statement, you are satisfied and are sure in your mind of the accused's guilt then it will be your duty to find him 'guilty' of the offence as charged.

Remember however that the accused is not charged with Robbery with Violence or with Larceny from the Person and you are not called upon to give any opinion on those offences.

Nor are you called upon to vent any feelings of anger or disgust you may feel about the crime or towards the accused or of any feelings of sympathy you may entertain for the victim or her family members.

Lady and gentlemen assessors neither you nor I have a duty to find someone criminally responsible for the death of Prema Wati Devi however tragic that may be.

In this case lady and gentlemen assessors we are first, finally and solely concerned with a single offence of Manslaughter in which the accused Irimaia Ratunarukutabua is alleged to have unlawfully killed Prema Wati Devi.

Let me now deal in more detail with the charge or information in this case copies of which you have before you. Lady and gentlemen assessors on a charge of Manslaughter the prosecution must prove or establish three (3) elements or ingredients beyond all reasonable doubt. These are:

First that the accused Irimaia Ratunarukutabua committed an 'unlawful act' upon the deceased Prema Wati Devi i.e. an act committed without any excuse or reason which would render it lawful for example if the act was committed in self-defence ;

Secondly the prosecution must also establish that the 'unlawful act' was a substantial cause of the death of Prema Wati Devi ; and

Thirdly, that the accused Irimaia was aware or must have known or recognised that his 'unlawful act' was likely to subject the deceased Prema Wati Devi to the risk of some harm albeit not serious harm.

Let me now deal with the prosecution's evidence ; as to the first of the ingredients or elements i.e. the 'unlawful act' the prosecution has called an eye-witness to the incident who described what he saw happen to the deceased on the early evening of the day in question.

The witness was Rakesh Prasad. He testified that he was invited to a party to celebrate the birthday of Rajend Singh's wife at Makoi. He attended the party and was sitting on the terrace beside the steps at the front of the house and from where he could easily see people climbing up the steps. In particular he said:

"I noticed a middle-aged Indian lady as she climbed onto the middle-landing of the steps and as she began to climb up to the terrace, a boy wearing a cap, a dungree coat and 3/4 length jeans and a pair of canvas ran up the steps and got hold of the lady's left shoulder where she had her purse or handbag. The boy grabbed the purse and that made the lady fall down the steps from the middle-landing to the ground. The lady fell backwards and her head hit the steps. When I saw this I yelled: 'Chor! Chor! and people quickly gathered. I came down to attend to the lady. The lady's handbag was not with her when I got to her at the foot of the steps."

This witness when questioned by the accused agreed that the boy may have pulled the lady's gold chain but he was adamant that it was the pull on her shoulders that caused the lady to fall down the steps.

Lady and gentlemen assessors it has been suggested by the accused in his police interview that after he grabbed the woman's handbag and turned to run away he felt as if the lady had tried to hold him from the back and it is suggested that in doing so the lady fell down the steps.

More specifically the accused in his unsworn statement said:

"On the day in question my main intention was to rob the lady. Whatever happened after I robbed her I am not responsible for causing the lady's death."

Well lady and gentlemen assessors it is for you to decide which version of the events to believe. The prosecution's witness Rakesh Prasad who testified on oath that he saw the deceased being pulled backwards by the shoulder or the accused who suggests in his unsworn police interview that the deceased fell whilst trying to stop him from getting away.

But lady and gentlemen assessors if a person sets out to rob another and uses some physical force to commit the robbery then any act which is committed in order to effect that unlawful purpose you may think is an 'unlawful act' for which there can be no lawful reason or excuse?

Indeed I would go so far as to direct you lady and gentleman assessors that to pull a person's handbag away from them with the intention of robbing that person is an 'unlawful act' even if there was no accompanying intention to cause the death of the person robbed.

If however a person slips whilst chasing after a fleeing robber then you will not doubt consider whether or not the actions of the person in chasing after the robber were a natural and probable consequence of the accused's actions or were they an unnecessary and independent risk-taking on the robbery victim's part.

But if you do consider that the deceased did slip when trying to stop the accused then you may think and this is entirely for you, but you may think that the accused would nevertheless be responsible for the deceased losing her balance or slipping and falling down the steps. Well, that is a factor entirely for you to consider as you see fit.

If after considering all of the evidence you are unsure or have a reasonable doubt as to whether or not the accused committed an 'unlawful act' on the deceased then that would be the end of the case and the accused would be not guilty.

But if you are sure that the accused committed an 'unlawful act' on the deceased in forcibly removing her handbag and gold chain from her in the course of robbing her then you will go on to consider the second element, namely, whether the deceased Prema Wati Devi died as a result of the accused's 'unlawful act' or through some other unrelated cause.

In this regard we have heard how the deceased was pulled from the middle-landing of the front steps leading up to Rajend Singh's house and fell backwards hitting her head on the steps and finally coming to rest at the foot of the stairs.

You will also recall the evidence of Dr. Ilaitia Seruvatu who conducted the post-mortem examination on the deceased on 15th September 1992. He said he found a large collection of blood involving the whole right side of the deceased's head with deep bruising and contusion. The cause of death was brain haemorrhage inside and outside the brain covering and broncho-pneumonia.

The doctor expressed the opinion that a fall down a flight of steps could cause the injuries to the head which he observed on the deceased. He also said that spontaneous vomiting and disorientation was some evidence of severe head injury.

For his part the accused does not deny that the deceased died of head injuries sustained in her fall down the flight of steps, he says however that he was not responsible for causing her death which was never intended.

Lady and gentlemen assessors the question you must ask yourselves is this: Did Prema Wati Devi die as a result of the unlawful actions of the accused? If your answer to the question is unsure or you have a reasonable doubt in the matter then that would be the end of the case because the prosecution would have failed to prove beyond a reasonable doubt that the accused caused the death of the deceased.

If however you are sure beyond all reasonable doubt that the accused did cause the death of Prema Wati Devi by an 'unlawful act' then you will go on to consider the third and final ingredient of the offence and that is whether the accused knew or must have known that his actions were likely to cause some harm or injury to the deceased.

In this regard the prosecution's case is that anyone who without any warning pulls a person's shoulder backward or pulls a handbag slung over a person's shoulder whilst that person is in the process of mounting stairs must know that the person being pulled could lose his or her balance, and fall and injure himself and where the person is at some height off the ground then the prosecution says the likelihood of injury is greatly increased and any reasonable person ought to know that.

In this regard the prosecution says that the accused's unsworn statement that his main intention was to rob the deceased and his denial of responsibility for her death are irrelevant and in any event are not on oath and have not been tested under cross-examination.

Furthermore lady and gentlemen assessors we did not hear the accused say that he did not actually pull the deceased from behind or that he did not know that she might fall as a result of his actions. All he said was that his intention was to rob the lady. He does not say how he did it? or how he managed to free her handbag which was slung over her shoulder and I think you will agree lady and gentlemen assessors that robbery may be committed in a variety of ways from threats without any physical violence to the use of actual violent force.

Lady and gentlemen assessors the principal evidence we have and upon which you can determine this issue comes you may think from the eye-witness Rakesh Prasad who described in some detail what he saw done to the deceased as she began to mount the stairs leading to the terrace.

That is all I wish to say to you lady and gentlemen assessors by way of summing-up this case to you. If after considering all of the prosecution's evidence and the accused's unsworn statement you are not satisfied beyond a reasonable doubt or are unsure that the accused caused the death of Prema Wati Devi by an 'unlawful act' likely to cause injury to her then you will advise me that the accused is "not guilty".

If however you are satisfied beyond a reasonable doubt after considering all of the evidence and are sure that the accused caused the death of Prema Wati Devi by an 'unlawful act' which was likely to cause her some injury and which the accused knew or ought to have known then equally, it will be your duty to find the accused "guilty" of Manslaughter as charged.

Remember that at the end of the day it is the duty of the prosecution to prove the case against the accused beyond all reasonable doubt. Remember also to consider and give the unsworn statement of the accused whatever weight you may consider it deserves.

You may if you wish take the exhibits with you when you retire to consider your opinions, when you are ready to deliver, your opinions let the clerk know and the Court will reassemble.

(D.V. Fatiaki)
JUDGE

At Suva,
21st December 1993.

HAA0017.93S