State v Vusonitokalau [1996] FJHC 172; HAC0005.1996 (28 October 1996)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0005 OF 1996

THE STATE

V

FELIX KEITH VUSONITOKALAU

Counsel: Mr. J. Naigulevu and Ms. L.Tabuya for the State
Mr. V. Nathan for accused.

Hearing: 11-13, 16, 17, 23-27 and 30 September,
8-10, 14-16, 18, 21-24 and 28th October 1996.

Summing up: 28th October 1996

SUMMING UP OF PAIN J.

Madame and Gentlemen Assessors, it is now my duty to sum up this case to you. You will then be required to deliberate together and each of you must give a separate opinion whether the accused is guilty or not guilty. I will then pronounce the verdict or judgment of the court and your opinions will carry great weight with me in deciding that judgment.

In coming to your opinions you must apply the law as I explained it to you. It is my duty to regulate the procedure of the trial and direct you on the law. Those directions on the law must be followed by you. However you decide the facts of the case. As I speak to you you may feel that I have formed some view on a particular question of fact. If you disagree, then please feel completely free to disregard my version. All matters of fact are for you and you alone. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject. You decide what facts are proved and what inferences you can properly draw from those facts. You then apply the law as I explained it to you and decide whether your opinion is guilty or not guilty. You must come to that decision solely upon the evidence you have heard from the witnesses which includes the exhibits that have been produced. If you have previously heard anything about this case or the people involved through the media or some other source, you must ignore that completely. The law requires that the accused is to be judged solely upon the evidence sworn to in this court. In considering that evidence you are expected to apply your common sense and everyday knowledge of human nature and people. You must please put aside any feelings of prejudice or sympathy which may occur to you one way or the other and arrive at your opinions calmly and dispassionately.

The charge against the accused is set out in the information that you each have a copy of. This charge is brought by the State and the onus of proving it rests on the State from beginning to end. There is no onus on the accused at any stage to prove his innocence or to prove anything else. He does not need to give evidence. The law is that the State must prove the essential ingredients of a charge beyond reasonable doubt before there can be a finding of guilty. That is the standard of proof I mean when I say throughout this summing up, that the State must prove some matter. Proof beyond reasonable doubt. That is a classical phrase that you will have heard many times. Those words are clear and will be readily understood by you. They mean just what they say. A reasonable doubt is a doubt which you find reasonable in the circumstances of this case. If after a full consideration of the evidence and bearing in mind the directions I give to you, you find the charge is proved beyond reasonable doubt, your opinion must be guilty. On the other hand if you are left with a reasonable doubt your opinion must be not guilty.

The accused is charged with murder. The State alleges that the accused deliberately stabbed Kalesito and thereby caused his death. The State said that the accused had the criminal intention at that time which makes that killing a murder. Another crime that can arise from killing of a person is manslaughter. If is important that I should explain these two crimes of murder and manslaughter to you. Under our law a person can only be criminally responsible for the death of another if his actions come within the crimes of either manslaughter or murder as described in the Penal Code. In its simplest terms, the law is this. If a person causes the death of another person by an unlawful act, he is guilty of manslaughter. If in addition to causing the death by an unlawful act he has what the law calls malice aforethought he is guilty of murder. Malice aforethought is a particular criminal purpose or intention that I will shortly explain to you. In this case the charge is murder. There are three ingredients that must be proved for this crime:

1. That the accused did an unlawful act.

2. That this unlawful act cause the death of the victim.

3. That the accused acted with malice aforethought.

I will now explain these three elements to you:

An unlawful act is something done by a person that is against the law. A very common example of an unlawful act is where a person deliberately applies force to another person without legal justification. If a person intentionally strikes another person without legal justification, then that is a criminal assault. In such circumstances a person who deliberately punches, kicks or hits another with a weapon is committing an unlawful act. Further the unlawful act such as an assault must be one that reasonable people would inevitably realise must subject the victim to, at least, a risk of some physical harm. It need not be serious harm and it does not matter whether the offender realised this or not.

In this case the State alleges that the accused intentionally stabbed Kalisito in the chest with a knife. If that is what happened then that would be an assault which is an unlawful act. The defence submits that this is not proved and the stabbing could have been an accident or in self defence. I will consider these defences shortly.

The second ingredient that must be proved is that the unlawful act caused the death of the victim. The law requires a link between the unlawful act and the death. Usually the unlawful act causes some specific injury to the victim and that particular injury causes the victim's death.

In this case counsel for the accused told you that the defence accepts that the penetration of the knife through to the heart was a fatal wound. It is accepted that the knife inflicted the injury that caused death. The disputed matter is whether the knife wound was caused by an unlawful act of the accused. However there is no dispute that the stab to the chest caused the death of the deceased as the pathologist explained to you.

The third ingredient that must be proved for the crime of murder is that the person who caused the death of another by an unlawful act did so with malice aforethought.

This is an old legal term which describes a particular intention or state of mind.

It is an intention to cause death or grievous harm to the victim or knowledge that death or grievous harm would probably be caused, accompanied by indifference whether it is caused or not, or by a wish that it may not be caused.

In the present case the State does not allege that the accused intended to kill the deceased. The case is put on the basis of an intention to cause grievous harm to the victim or knowledge that such harm would probably be caused. Grievous harm means any bodily hurt which seriously or permanently injure health or which is likely to seriously or permanently injure health.

Therefore the State must prove that the accused intentionally stabbed Kalesito and at that time he intended to cause serious or permanent injury to Kalesito or he knew that serious or permanent injury would be likely to be caused to Kalesito and he nevertheless went ahead and did it being indifferent, that is having no concern one way or the other, whether serious or permanent injury was caused or not/or that he did it wishing or hoping that such injury would not be caused.

One of these states of mind must be proved by the prosecution to establish malice aforethought. An accused's state of mind is as much a question of fact for you to determine as any other question of fact and I will have something further to say on this shortly. That completes my explanation to you on the crime of murder.

To summarise there are three elements to be proved for the crime of murder. First, an unlawful act. Second that the unlawful act caused the death of the victim. The third element for murder is proof of malice aforethought which is the specific intention or knowledge that I have just explained to you.

If only the first two elements are proved but not the third element then that amounts to the crime of manslaughter. This means that if it is proved that the accused did the unlawful act of intentionally stabbing the victim which caused the death of the victim, but it is not proved that the accused had the necessary intention to cause grievous harm, he would be guilty of manslaughter only. Of course the defence is, in this case is that neither murder nor manslaughter has been proved. The defence submits that the stabbing of the deceased was an accident. If this is so, then the accused could not be guilty of either murder or manslaughter. The death would not have been caused by an unlawful act. The stabbing would only be an unlawful act if it was intentional and that must be proved by the prosecution.

The defence has also raised the issue of self defence which I must explain to you. If the accused deliberately stabbed the victim it would not be an unlawful act if he was acting reasonably in his self defence. So the State must prove that the accused was not acting in self defence.

The law is that a person who is attached may defend himself. He is not obliged to meekly submit to the attack. He is entitled to use reasonable force to defend himself. I stress that the force must be used in self defence. There is a difference between self defence and mere fighting. A man defending himself does not want to fight and defends himself to avoid fighting. That is quite different from a man who accepts a challenge from his attacher and readily participates in a fight. So the force must be used in self defence. It must not be used for instance as aggressive participation in a fight or for revenge or just to inflict punishment. The force can only be justified if it is used for the purpose of self defence. However a person who is attacked may need to fight back to defend himself. But he cannot use an unlimited force to do this. The law is that he can only use such force as is reasonably necessary for the purpose of self defence. What is reasonable will depend on the particular facts and circumstances of the case. Including for instance the nature of the attack and the peril in which it places the person being attacked. Some attacks may be relatively trivial and require only minimal force by way of self defence. On the other hand, an attack may be very serious and even life threatening. This may require the use of considerable force in self defence. For instance a person whose life is threatened by a vicious attack may need to take very drastic retaliation in self defence to save himself. It is common sense that the same drastic measures would not be needed in defence if the assault is merely a slap on the face. In that case grabbing hold of the assaillant's arm may be all that is required in defence. So only reasonable force can be used for the purpose of self defence. It would not be reasonable to retaliate by using a degree of force that is wholly out of proportion to the demands of the particular situation. However if the person attacked is placed in imminent danger he may have to avert that danger by some instant reaction. A person in that crisis cannot be expected to weigh to a nicety the exact measure of force necessary for his defence. If in that moment of unexpected anguish he only did what he honestly and instinctively thought was necessary then that would be potent evidence that only reasonable defensive action had been taken.

Those are the legal principles applying to a defence of self defence. I will return to them when I direct you on the specific issues arising in this trial.

I intend now to consider the evidence that has been given by various witnesses called by the prosecution in this case. The accused himself has not given evidence. But all that means is that in considering the case you do not have the benefit of any evidence or explanation on oath from him. But as I said earlier there is no onus on the accused to prove his innocence. He is not obliged to give evidence. He is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that he is guilty because he is not given evidence. The fact that he is not given evidence proves nothing one way or the other. It does not establish his guilt. On the other hand, it does nothing to rebut, contradict or explain the evidence put before you by the prosecution.

There have been 15 witnesses and the trial has extended over a period of six weeks. It would be quite impracticable for me to go through the evidence of each witness in full detail.

I intend to concentrate upon the evidence of what happened in the confrontation between the accused and Kalesito. That is the vital consideration in this case. You must determine how Kalesito suffered his injury. The other evidence may also assist you in your deliberations and should not be ignored. You must take into account and assess all the evidence of all the witnesses. You will consider the demeanour of individual witnesses when they gave their evidence and the effect of cross examination. You determine for yourselves what evidence you accept as truthful, what you reject and what you find to be proved.

In relation to the actual incident that occurred the crucial eye witness for the prosecution is Vitalina. She was a friend of the accused and she was aged 15 years at the time. You will recall that she told us that she attended Cathedral Secondary School and she went to the social with Losalini and Vani. The accused joined them at the social. At midnight the social finished and they all left together. She said that they were walking towards the main road and the accused stopped to talk to his elder brother, Apisai. She said that four boys approached and asked about Losalini. She told them that Losalini's name was Leba. She said that she waited for the accused and these four boys approached Losalini and Vani. They asked Losalini if they could talk to her. She said that the boy who was dead, grabbed Losalini's collar and was pulling her. She said that Felix then arrived and Losalini said that her brother was coming and the boys let her go. She said that one of the boys asked Felix if he could have a talk to Losalini but Felix said that they were rushing home. She said they then all started walking away. Losalini and Vani were in front and that she Vitalina and Felix were behind. She said that these boys then started swearing at them. It was particularly foul language making very crude and indecent suggestions. There is no need for me to repeat. You will recall the evidence as to what was said.

Vitalina said that Felix turned and asked who was swearing. She said that one boy then approached Felix. At that time she was about two to three steps from Felix. She said as soon as the boy reached Felix he punched Felix and Felix fell backwards. She then said and I quote, "I saw Felix took out a knife and held it in his hand. When he was holding the knife and falling backwards, he grabbed the boy's collar while he was falling. Then I saw the knife struck the boy's ribs. I saw Felix holding the knife in front of him. The knife must have struck his ribs when he was falling. It was the force of him falling. I can't recall where in the ribs he was struck. Then Felix also stabbed his thigh. The boy who was stabbed fell down. When he was stabbed in the thigh, he was still standing. When the knife struck the ribs, she indicated that she was about six metres away from him. When the boy was struck on the thigh, I was a distance, she indicated, of about 3 metres. After the boy fell down Felix then stomped his mouth. He stood on his mouth on his right foot. He did it just once on his cheek. Felix and I ran towards the road where Vani and Losalini were". Later she said "when we were leaving the school grounds we were running. Felix told them to take the boy to the hospital who was stabbed". She then told us how they took a taxi to Raiwai, they bought some bread and butter which they ate and that Felix used the same knife to cut and butter the bread. She identified the knife that has been produced.

Now in cross examination she confirmed that at about 10.30 that night there was a fight outside the dance hall and that some people from Qauia village at Lami were involved. She said that she heard that Seru had been assaulted and she saw injuries on Seru's face. She also said that when the two boys approached Losalini they were pulling at Losalini and she said that also when the boys were swearing, there were two of them that were swearing. She also said in cross examination that the accused and one of the boys were approaching each other when they met. She agreed that it was dark. There was a light on the left of the building that was on but she said that the light on the right of the building was off. She said that she did not see where the knife came from because it was dark. She agreed that this boy was running towards Felix. She said he was taller than Felix but the same build. She said that he looked drunk. She said that as soon as the boy reached Felix he punched Felix on the jaw. She then said Felix fell down. When he fell backwards I saw he was holding the knife. The boy was struck by the knife. It struck him on the left below the ribs, not at the back or sides. The boy held on to the neck of Felix for support. He was not on top of Felix, they did not fall on to the ground. There was also a stab on the thigh but he did not get stabbed in the buttock. She also said in cross examination that Felix told them to take him to hospital or he will die. She also confirmed that she saw Felix stamping on the mouth of the boy. She said that from the lighting she could see the stabbing on the thigh and below the ribs. Finally you will recall that in answer to a question from me she said that only the boy who was stabbed fell to the ground and that was after he was stabbed. Before that Felix was falling backwards but he did not fall to the ground.

The next witness was Losalini. She was Vitalina's best friend and went to the social with Vitalina and Vani. She said that they saw Felix at the dance and that she had met Felix a week before. Felix joined them and they all left together when the dance finished. She said that Felix's brother called him and at that stage Vani and Vitalina were in front of her. She said that three boys called to her but she kept on walking but two of them then came to her and caught her arm. She told them to let go because her brother was coming and Felix came and told them to go. She said we started walking. She and Vani were in front and Vitalina and Felix were behind. She said that the boys started swearing at them and she also gave evidence of very foul language. She said these boys were beside the woodwork building. She then said that Felix stood still. One of the boys approached Felix. I can't recall if Felix said anything. When the boy was approaching Felix, Felix also approached the boy. Then a little later Vani and I stood and watched what was happening. I could see because of the brightness of the light in front of the woodwork building. I saw Felix fell backwards. The boy was standing and Felix was falling down. I only saw that Felix fell. I did not see anything that happened after that. Felix was facing up. He was not lying on the ground. When he was falling backwards before he reached the ground, he got hold of the other boy's shirt. When he pulled the shirt of that boy he managed to stand up straight again. Felix had hold of the other boy's collar. He stood up, I did not see anything after that. She then said that she and Vani ran to get a taxi and that Felix told the boys to take the deceased to hospital. She also said that in the taxi, Felix said to her, I stabbed that boy.

In cross examination she said that to her knowledge Felix does not drink. She said that two boys pulled her arms and they forced her and they pulled her hard. She said I think they must have drank or taken drugs, they looked drunk. She confirmed in cross examination that she did not see the stabbing that she did not see Felix hit or stab anybody. She said there was only one light on the building. It was towards the right hand side of the building and it was dim. That is one of the reasons she said that she could not see clearly what was happenning. Again in cross examination she said that in the taxi Felix told her that he stabbed a young man. He told her, she said, in a joking way. When he told her he was laughing at the same time and she thought he was joking. She said he was talking softly.

The final eye witness was Tomasi. He went to the social with Kalesito and two other people. He said that nothing happened at the social and they all left when it finished at midnight. He said that he and Kalesito stopped by the woodwork room and the other two walked on. He said they saw two girls and Kalesito wanted to speak to one of them. One of two girls said that her brother was coming and the accused then came up. He said that Felix wanted the girls to go and all this time Kalesito was trying to talk to one of the girls. He said that he himself was just standing there. He said that they then left and Kalesito swore at these others but he said he could not recall what was said. He said that nobody else swore. He said that Felix, the accused, then turned back and called to Kalesito. His evidence then was then Kalesito ran towards Felix. They fought, there was a struggle. Klesito fell. Felix kicked his head and went off. He said that he heard Felix say, take him to hospital. He then went up to Kalesito who was lying down and could not speak. He saw blood on his side and on his buttock. He said there was lighting and he was able to see. He said that there were three tube lights on the building, one on each end and one on the building.

In cross examination Tomasi indentified Kalesito and Losalini in Court as the two girls who were involved on that night. He said that he did not see anyone pulling the arm of the girl. He said he did not know how the injuries were sustained. He said he only saw that the accused and Kalesito were fist fighting. He said they met, they were using their fists to fight, I only saw Kalesito punched Felix. He also agreed or said that the accused and the deceased were about the same height. He said that Felix did not ask who was swearing. He also said that the struggle went on for a few minutes. They were fist fighting in the brightness where the light was.

Finally I intend to remind you of the evidence of the Pathologist, Dr. Cayari. He conducted the post-mortem. He said that the deceased was 1.7 metres tall. He described five external injuries that he found. These were a bruise on the left upper eye lid, a laceration on the bridge of the nose, bruise on the left cheek, a penetrating stab wound on the left side of the chest and a penetrating wound on the left of the buttock. He said that the bruises could be caused by a punch or by falling head first to the ground. He said that the wound on the left buttock was a stabbing injury and was non fatal. He said that the chest wound could only be caused by a sharp instrument such as a knife. Moderate to strong force would be needed. It could only be caused by another person holding the knife and stabbing the victim. The wound went through the rib space, continued upwards, went through the left lung and penetrated into the heart. He drew a diagram to illustrate this and that is an exhibit that has been produced. He said that the wound of the heart caused blood to escape into the plural cavity of the lung. A large quantity a massive loss of blood occurred. He said that the wound had to be caused by a knife curved upwards like the knife that had been produced and he then said that to reach the upper chamber of the heart, it must be used with strong force. Finally he explained in his examination in chief that the stab wound to the heart caused loss of circulating blood volume. This caused shock which caused the death of the victim. He said the shock would have come immediately after the stabbing and with a massive blood loss death would have occurred immediately.

In cross examination, he said that the bruises that he found were still fresh but could have been caused hours before. He said that it was possible that the injury to the buttock could be inflicted when two people were struggling and rolling. He also said that it is possible that the chest wound could be caused by a person dropping on to the knife. He also said that it was possible the injury could be caused by the knife being held and victim running on to it. He said that if the deceased charged someone holding the knife it would have to be held in a fixed position and the deceased would have to charge on to it. He said that the deceased physical health was commensurate with a strong healthy Fijian.

In re-examination the prosecution listed further details about the way in which the wound to the chest could have been caused. The doctor said that for the victim to fall onto the knife causing this particular wound, the knife would have to be held out to the side and against a wall or the ground and the victim would have to fall sideways onto the knife. He said that that type of fall would not be possible if they were directly in front of each other. He said that if the person with the knife was holding the victim's collar he would expect the injury to be on the front of the chest and not on the side. He said that if they were facing each other and one was not on the side this injury to the chest would have to be a deliberate stabbing. If the man with the knife had not fallen to the ground he said, the stab is very unlikely to have been accidental.

Finally I'll mention the evidence of the government analyst, Mr. Hine. You will recall that his statement was read and a certificate produced. He conducted an analysis of samples taken from the deceased at the post mortem and he said that these showed the following alcohol content. The alcohol content of the blood 138 milligrams percent. Of the urine 172.5 milligrams percent and gastric 69 milligrams percent. Just to give you some indication of what this level means, I can tell you that as a matter of law under the Traffic Act, it is an offence to drive with the concentration of alcohol in the blood that is equal to or exceeds 80 milligrams of alcohol in a 100 millilitres of blood. Now the deceased blood alcohol content was 138.

I see that its just 11 o'clock. Your refreshment ought to be available for you and I will then take a short adjournment but it would be for no longer than is necessary for you to have your refreshment. I don't want a long break in the summing up so I don't want anyone to go away and get lost. I will remain in the chambers here and as soon as you are ready to resume I will continue with my summing up.

I have given you a summary of the evidence given by witnesses that relates directly or indirectly to the alleged stabbing. I repeat that it has not been possible for me to relate every word of evidence given by these witnesses. If I have not referred to a particular piece of evidence that does not mean it is unimportant. You should consider all the evidence of the witnesses. That also includes the police officers, Dr. Tin Mynit who examined the deceased when he was taken to CWM Hospital. Dr. Naivalulevu who examined the accused and Mr. Singh the Justice of the Peace who spoke to him. The evidence for your consideration also includes the exhibits that have been produced. In particular there are the photographs, the knife, the sketch made by Dr. Cayari and the caution and charged statements of the accused.

Those two statements alleged to have been made by the accused are important because they provide the only explanation from the accused. Those statements formed part of the evidence in this case for consideration by you. The defence challenges some of the contents of the statements but the interviewing officers have said that the statements correctly record what the accused said. That is a question of fact for you to determine. The statements are partly incriminatory and partly exculpatory. For instance the accused admitted that he was the person holding the knife when it pierced into Kalesito's chest. He also said that Kalesito bumped into him and he did not mean to kill him. The whole of the statements both the admissions and the excuses or explanations must be considered by you in deciding where the truth lies. The value or weight that you placed on those statements is entirely a matter for you. They can be evaluated in the light of all the other evidence and circumstances of this case. For instance you can take into account the circumstances in which the statements were made. You will recall the submissions of counsel in that regard about such matters as the accused being locked up after arriving at the station and the delay in interviewing him. You can also compare the statements against the sworn testimony that has been given by the witnesses. You may accept or reject all the statements or you may accept some parts of the statements as true and reject other parts of them as untrue. It is entirely a matter for you. As the accused has not given evidence, the statements provide the only explanation from him. However this explanation given by the accused is not sworn testimony and has not been tested by cross examination. All these matters I have mentioned can be taken into account by you in determining the value or weight that you place on the statements in this case.

I have reminded you of the evidence given by the witnesses about what happened between the accused and the deceased. It is also appropriate that I should remind you of what is recorded in the caution and charge statements of the accused. I am reading from the English translations made by the Court Interpreter. Copies of these translations will be available for you together with the original version in the Fijian language. In the caution statement I commenced with question 33 What then happened? The answer is recorded, when I reached there I pulled Losalini's hand and we walked to the main road. Then one of the boys followed me, pulled the collar of my shirt and told me that he wanted to speak to Losalini. I then told him that he can't because we were in a hurry home. He then shook the collar of my shirt and released me. What then did you do? They then swore at me, I then told them, what. Then one of them wanted to fight me and ran at me. Then what happened? At this time, I held the knife to scare them, then one of them ran at me then bumped me. We then fell and the knife must have pierced to his chest. I stood up, one kick on his mouth and left. Did you stab any other parts of his body? Yes his leg. Where did you bring the knife? When I left for the dance I had the knife with me. What was the knife for? Because we usually fight with the youths from Qauia and they are usually armed with knives. I took knife because of them to protect me. Later at question 47, after you had stabbed this young man, did you say anything to his companions? Yes. What did you tell them? All of you, take him to hospital. And finally at question 56, is there anything else you wish to say? Answer, I only wish to say here is that when I took the knife I only wanted to scare him and when he bumped me the knife pierced him. I did not expect that it would result in his death. Then in the charge statement, the statement is recorded, I admit that I stabbed Kalesito but I did not mean to kill him as a result. I took a eating knife around there because we were fighting with the Qauia youths. Kalesito caused the fight between us because he interfered with my girl.

I have now explained the legal principles to be applied in this trial and reminded you of the evidence that has been given. What then are the issues that you must decide in coming to your decisions? I suggest that certain basic facts are not in dispute. The accused took this knife to the dance. After the dance the deceased and his group approached the accused and his group. The deceased had been drinking. He accosted Losalini and was then very abusive towards the accused and girls. There was a confrontation between the accused and the deceased. The accused had pulled out the knife. There was some sort of scuffle or interchange between them and the knife held by the accused entered the side of the deceased's chest and pierced right through into his heart. The wound caused the death of the deceased.

The first issue for you to consider is whether this was an accident or intentional stabbing by the accused. The State must prove that it was an intentional stabbing for the accused to be criminally responsible for the death. This is the principal defence raised by counsel for the accused. He reminded you that the accused gave a reason for having the knife. That was the conflict with the Qauia boys. He said they carried knives and therefore he took a knife for his own protection. Counsel also referred you to the accused's account in the caution interview. In that statement the accused said that Kalesito ran at him, bumped him and they fell and the knife must have pierced his chest. Counsel submitted to you that the accused's statement is an admission that he may have had some passive part in Kalesito's death but was not responsible for it. Counsel also referred you to the evidence from the Pathologist which he submitted supported this view. Counsel was also critical of the evidence of the eye witnesses particularly Vitalina. However Vitalina did not give evidence of having seen the stabbing. Counsel pointed out that she only said that she saw the knife struck Kalesito's ribs and it must have struck his ribs when he was falling. Counsel also submitted that as it was dark and the lighting was not good the deceased could have run on to the knife held by the accused without seeing it.

Counsel for the State submitted that the evidence proves that this was an intentional stabbing. Reasonable force was needed for this particular stabbing. If the deceased ran on to the knife or was pulled on to it by the accused grabbing his collar as he fell backwards, the wound would have been on the front of the deceased's body. Counsel particularly directed your attention to the site of the stab wounds and the evidence of Dr. Cayari. This must have been a deliberate stab into the side of the deceased's body when the two came close together and face to face to each other. Dr. Cayari said that for the deceased to have fallen on the knife it would needed to have been based against the ground and the deceased would need to have fallen sideways on to it. Counsel submits that the evidence is that the accused never fell to the ground and the deceased only fell to the ground after he had been stabbed. A further point is that the accused did not behave as if it was an accident. Instead of stopping and assisting the victim he stabbed him again. stomped on his face and then left, telling the deceased's friends to take him to hospital. Counsel submitted that this sequence of events shows a deliberate and an intentional attack on the deceased with the knife. Then in the taxi the accused told Losalini he had stabbed the youth.

Well, those are the arguments on this issue. It is a matter for you to decide. If you consider that the stabbing was or could have been an accident, that is the end of the matter, you opinion would be not guilty. On the other hand if you are satisfied that this was an intentional stabbing then you must proceed and consider the further issues.

The State must then prove that this deliberate stabbing was not done by the accused in self defence. Counsel for the accused raised this issue as a defence but did not make specific submissions about it. This is understandable as the main thrust of the defence was directed to accident. An accident is quite incompatible with a deliberate stabbing whether in self defence or otherwise.

I have already given you a full explanation of the defence of self defence and I need not repeat it. There must first have been an attack upon the accused from which he had to defend himself. There is evidence that the deceased ran up to the accused and punched him. The evidence is that the accused's response was to deliberately stab the deceased in the chest with the knife. Was this reasonable force used to defend himself from an attack made by a punch? Did he only do what in the anguish of the moment he honestly and instinctively thought was necessary? Or was this a case where the accused, instead of leaving with the others, turned to accept the challenge and fight with the deceased? Was his retaliation by stabbing with a knife an act of aggression and wholly out of proportion to the attack on him by a punch.

You may think there is substance in the prosecution submission that there is no suggestion made by the accused in his statements or given in evidence by any witnesses that the accused was acting to defend himself when he stabbed the deceased. However you are the judges of fact and you will decide what is proved or not proved in this case.

If you consider that the accused did act in self defence or you are left with a reasonable doubt on the matter then the defence succeeds. In that case the intentional stabbing will not be an unlawful act and your opinion will be not guilty. On the other hand if you are satisfied that the accused was not acting in self defence he was not using reasonable force for that purpose. If it is proved that the intentional stabbing was wholly out of proportion to the attack upon him and was not a reasonable defensive action then his defence fails. That stabbing would be an unlawful act and he would then be guilty of either murder or manslaughter.

As I told you at the beginning, a killing by an unlawful act amounts to murder if it is done with malice aforethought. That means proof that at the time he stabbed Kalesito the accused intended to cause serious or permanent injury or he knew that serious or permanent injury would be likely to be caused and he nevertheless went ahead and did it being indifferent whether a serious or permanent injury was caused or not, or that he did it wishing or hoping that such injury would not be caused. So you must consider the evidence and see whether such intention or knowledge has been proved. A person's state of mind is as much a question of fact for you to determine as any other question of fact. It is not possible to have direct evidence of this. No witness can look into the accused's mind and describe what he was thinking at any particular time. However it is something that can often be inferred from all the proved facts and circumstances. They include what the accused himself actually did. That will often be a very important matter. A person's actions in themselves may clearly show his purpose or intention. Other matters that may be relevant are what the accused said and did before and after the incident. You should consider all the proved facts and circumstances including those I have just mentioned and from them you are entitled to draw proper inferences as to the accused's knowledge and intention. To come to the conclusion that the accused had a specific intention or knowledge at the time of the alleged offence you will need to be satisfied that this is the logic inference to be drawn from the proved facts and is not mere speculation or guess work. As it is an element of the crime that must be proved by the State. You must be able to infer that intention or knowledge beyond reasonable doubt.

The State submits that the clear inference to be drawn from the proved facts is that the accused intended to cause serious injury when he stabbed Kalesito or he knew that such injury would be likely and stabbed him anyway. Prosecution counsel submitted that the facts speak for themselves. This was a deliberate forceful stab with a long bladed knife to the chest area. Obviously such a blow will cause serious injury. That purpose is shown by the very nature of the stabbing. Further confirmation of the intent to cause serious injury can be found in the acts of the accused in stabbing the victim again and then stomping on his face. It is submitted to you that these are the actions of a man intent on causing serious injury. He immediately knew that it has been caused because he told the victim's companion to take the victim to hospital or he would die.

Again counsel for the accused did not address specific submissions to this issue of intent. That is understandable as the main focus of the defence was upon accident. However counsel did suggest that emphasis should not be placed on the nature of the knife with its upward curve. The accused described it in his statement as a kitchen knife. Moreover, the accused said in his police statements that he only wanted to scare Kalesito with the knife. He did not expect that it would result in his death and he did not mean to kill him. So the defence case is that the accused did not intend to cause serious injury to Kalesito.

It is for you to determine whether the State has proved this ingredient of malice aforethought. If that has been proved then the unlawful stabbing of the deceased which caused his death amounts to murder. If it is not proved then the accused is guilty of manslaughter only.

Finally if you find that the crime of murder has been proved you will then have to consider whether the accused acted under provocation. Provocation is a special defence that only applies to a charge of murder. If all the elements of murder have been proved, the accused would nevertheless be guilty of manslaughter only if he acted under provocation. Provocation is not a complete defence. It can only reduce the crime of murder to manslaughter. For this defence to apply the accused must have done the act that caused death in the heat of passion caused by sudden provocation and before there was time for his passion to cool. Provocation is any wrongful act or insult done by the victim to the accused. It must be of such a nature as to be likely when done to an ordinary person to deprive that ordinary person of the power of self control and induce him to commit an assault of the kind which the accused committed upon the victim.

Applying those principles to this case, it means you must consider whether the accused acted in the heat of passion caused by sudden provocation from the deceased. That provocation must have been sufficient to cause an ordinary man to lose self control and induce him to deliberately stab the deceased in the chest with a knife as this accused did. In deciding this an important consideration is whether the retaliation was proportionate to the provocation. There is no onus on the accused to prove that he was provoked. Prosecution must prove that the accused was not provoked before you could find him guilty of murder. There is some evidence of provocative insults and acts on the part of the deceased. He is alleged to have accosted Losalini, grabbed her collar and pulled her. More significantly so far as the accused is concerned, he made very insulting remarks and then ran up to the accused and punched him.

The question now is whether this conduct did in fact cause the accused to lose his self control. Also whether this conduct was of such a nature that would deprive an ordinary man of the power of self control and cause him to stab the victim in the chest. Both Counsel addressed you on this matter. Counsel for the accused reminded you that Kalesito was affected by liquor and Counsel referred to the aggressive conduct of Kalesito towards Losalini and then towards the accused. This ended with Kalesito punching the accused. The defence submission is that the accused was provoked. Counsel for the State submitted that Kalesito's conduct was the motive for the accused's actions. The accused said in his statement that the deceased caused the fight because he interfered with my girlfriend. However the accused did not say that Kalesito's conduct so provoked him that he lost his self control and stabbed him. In any event counsel submits, stabbing Kalesito in the chest was quite out of proportion to any provocation.

You must consider the evidence and submissions of Counsel and come to your own conclusion on this issue. It is entirely a matter for you but you may think that the provocation was not great, it would not have been likely to cause an ordinary person to lose his self control and induce such a disproportion of response. However that is a matter entirely for you to determine.

I have now dealt with all the legal issues that have been raised in this case. In doing so I have drawn your attention to the submissions of both Counsel on those matters. It is therefore unnecessary for me to summarise the prosecution and defence cases and submissions of Counsel. There addresses will be fresh in your minds. If I have overlooked some submission or point that has been made by Counsel it does not mean that it is unimportant. You should consider all the submissions of Counsel as you evaluate the evidence and decide what has been proved.

To conclude, in view of the number of issues that have been raised I will briefly summarise the matters that you must consider and determine in coming to your decision.

First, was the stabbing accidental or intentional. If the State has not proved an intentional stabbing, if it was or could have been a pure accident, the accused is entitled to a complete acquittal. If it was intentional then the accused is responsible. Therefore if the stabbing was intentional, did the accused do it in self defence. Again the State must prove that the accused was not acting in self defence. If this is not done then the accused is entitled to a complete acquittal. However if the stabbing, you are satisfied, was not done in self defence, then the accused must be guilty of either murder or manslaughter. Because the death of the deceased was caused by an unlawful act namely deliberate stabbing. He would be guilty of murder if the prosecution has proved malice aforethought which is the specific intention to cause grievous harm that I have already explained to you. If that is not proved then he is guilty of manslaughter only.

Finally, if murder is proved that is causing death by an unlawful act with malice aforethought, it can be reduced to manslaughter if the accused acted under provocation. Such provocation must have been sufficient to cause the accused and have been likely to cause an ordinary person to lose self control and stab the victim in this way.

So there are three possible opinions that you could have. Not guilty. That means not guilty of either murder or manslaughter. That would be based on the defences of the stabbing not being an unlawful act because of either by accident or self defence. You could have a verdict of guilty if all three elements have been proved. Namely causing death by an unlawful act with malice aforethought. You could also have a verdict of manslaughter if either the malice aforethought has not been proved, it has only been proved to be causing death by an unlawful act or if murder has been proved but the defence of provocation applies. So those are the three possible verdicts, Not Guilty, Guilty of murder or Guilty of manslaughter.

Madame and Gentlemen Assessors, that concludes my summing up of the law and the evidence in this particular trial. We have now reached the stage where you must retire to your room to deliberate together and form your individual opinions on whether the charge has been proved against the accused. You may have with you any of the exhibits you would like to consider. When you have reached your separate decisions we will all come back into Court and you will be asked to state your opinions as to whether the accused is guilty or not guilty of the charge of murder or of the alternative charge of manslaughter if that is appropriate. Would you please now retire to consider your opinions. When you have made your decisions would you please advise the Court Officer and the Court will reconvene to receive your opinions. Thank you.

Justice D.B. Pain