State v Toka - summing up [2003] FJHC 318; HAC0005S.2002S (8 September 2003)

HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Cr. Action HAC0005.2002

STATE

V

SEKONIA TOKA

Fiji High Court, Suva
8 September 2003
Gates J

SUMMING UP

Mr W. Kurisaqila for the State
Mr Anil Singh for the Accused

All 3 Assessors present

[1] Lady and Gentlemen Assessors, it is now my duty to sum up the case to you. We have differing roles in this trial. I have to give you directions on the law and you must accept those directions. You are to decide the facts applying those directions and to give me your opinions as to the Accused’s guilt or innocence.

[2] In going through the evidence I may express an opinion. If you do not agree with that opinion, you are free to ignore it and to form another view of that piece of evidence. I may omit some evidence which you think significant. Nonetheless you may give that evidence such weight as you consider appropriate. You are free to form your own opinions.

[3] At the end of this summing up, and after you have given your individual opinions, the final decision on the facts rests with me. I am not bound to conform to your opinions. However in arriving at my judgment I shall place much reliance upon those opinions.

[4] The burden of proof rests throughout the trial upon the State. In our system of justice there is a presumption of innocence in favour of an Accused which is enshrined in the Constitution. The State brings the charge against the Accused. Therefore it is for the State to prove it. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused.

[5] The prosecution must prove its case beyond reasonable doubt. That means that before you express an opinion that the Accused is guilty you must be satisfied so that you are sure of his guilt beyond reasonable doubt. If you consider him innocent you must give your opinion that he is not guilty. If you entertain a reasonable doubt of guilt, you must also give your opinion that the Accused is not guilty.

[6] The Accused is charged with murder. There is only one charge to consider.

[7] The Accused elected to go into the witness box and to give sworn evidence, and thereby he has subjected himself to cross-examination. An Accused person is not obliged to do this, that is, to give evidence. In this case he has chosen to do so.

[8] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate amongst yourselves so as to arrive at your opinions. Upon your return to court, when you are ready, each one of you will be required to state his or her individual opinion orally, which opinion will be recorded. Your opinions need not be unanimous. You will not be asked for reasons for your opinions.

[9] However it will be helpful to you beforehand in arriving at a sound and rational opinion if you ask yourselves why you have come to that opinion.

[10] That opinion must be based solely upon the evidence. Evidence consists of sworn testimony of the witnesses, what each witness has told the court in the witness box, as well as the exhibits tendered in court, such as the caution interview statement, the medical reports, the photographs, and the iron rod, said to be the murder weapon. In addition you will consider the evidence that went in by consent of both parties, and the list of admissions. Following correct procedure counsel have agreed certain issues or facts. They are therefore not in dispute in this trial. Such agreements properly help to shorten the proceedings.

[11] Neither speculation nor theories of one’s own constitute evidence. Media coverage, idle talk, or gossip are similarly not evidence. Put out of your mind when considering your opinions, anything you may have read in the newspapers about this case. Focus solely on the evidence which you have seen, heard, or examined in this court.

[12] This summing up is not evidence either, nor are counsel’s opening or closing addresses. Naturally we hope all of these are of assistance to you, but they do not constitute evidence.

[13] If a witness is asked a question in cross-examination and agrees with what counsel is suggesting, the witness’ answer is evidence. If he or she rejects the suggestion, neither the question nor the answer can become evidence for the proposition put.

[14] In arriving at your opinions, use the common sense you bring to bear in your daily lives, at home and at work. Observe and assess the witnesses’ evidence and demeanour together with all of the evidence in the case. You can accept part of a witness’ testimony and reject other parts. A witness may tell the truth about one matter and lie about another.

[15] The Accused is also to be considered as a witness, since he gave sworn evidence. He is no different from any other witness and each witness in the case requires equal consideration. A man’s life has been taken away following a violent attack. But consistent with your oath, put away both prejudice and sympathy. Approach your assessment of the evidence dispassionately. Bring a cool detachment to your task of examining whether the case has been proved before you.

[16] I turn now to deal with what the prosecution must prove. The Accused is charged in the information with one charge or count, and that is of murder, which is an offence in our Penal Code.

[17] There are in this case 4 relevant elements that the prosecution must prove. First it must be proved beyond reasonable doubt that the deceased Narend Kumar s/o Jai Narayan died on 24 November 2001. For this you have the evidence of Dr Loata Vunimo, a Pathology Registrar. She performed a post mortem on the body of the deceased on 26 November 2001 at the CWM Hospital and in court tendered her post mortem report by consent. There is no dispute about the fact of death of this victim. It is admitted in the list of agreed admissions. According to the post mortem report also the body of the deceased was identified to Dr Vunimo by the deceased’s nephew, Mahendra Prasad of Rakiraki.

[18] Second, the prosecution must prove that the deceased’s death was caused by an unlawful act, an act without lawful justification. In considering whether the deceased met his death in this way you have the photograph album to assist you. One of the photographs showed an exterior view of Narend’s head injuries, and another showed you the place where he was found injured in the course of taking his bath at the side of Raghwa Nair’s house. Raghwa you will remember was known by the name of Bobby, whose wife was Reshmi.

[19] Could Narend’s injuries have occurred accidentally? You will consider the pathologist’s list of grave injuries found to the deceased’s head and the circumstances in which he was found at the time of his evening bath and no doubt conclude that they could not. This part of the evidence is also not challenged in its substance. The defence questioning of the doctors, concerned whether a knife could also have been used thus perhaps pointing to an attack on the deceased by two persons not one. The deceased went immediately into a coma from which he never re-emerged. The origin of the internal head injuries was said to be multiple impacts on the head. This element has been admitted by the Accused in his formal list of admissions, of which each of you have a copy. The Accused accepted that the cause of the death on 24 November 2001 was multiple skull fractures with intracranial bleeding due to multiple impacts on the head. This was not a strangulation case. You can put out from your minds any such suggestion. From all of this evidence you will have no difficulty in concluding Narend Kumar died by the unlawful act of another.

[20] The information gives the date of the murder as 23 November 2001. The fatal blows were struck on that date, but Narend did not die until the early hours of 24 November 2001. Nothing turns on this variation. Provided the death occurs within a year and a day of the unlawful act, the exact date is usually not an element of proof that is litigated. The defence in this case have not been misled by the date given. But the information for a charge of murder must set out the date of death rather than the date of the deed which causes the death. Accordingly I amend the information so that the date of the murder reads 24 November 2001.

[21] Third, the prosecution must prove to you that this unlawful act was the act of the Accused. I shall return to this element later.

[22] Fourthly and lastly, it must be proved beyond reasonable doubt, as all of the elements must be proved, that the Accused killed the deceased whilst acting with malice aforethought. In this case, on the Accused’s own confession, if you accept it, the Accused said he intended to kill Narend, not simply to cause him grievous harm. He has now repudiated that confession which he made to D/Cpl. Aliki. It is for you to consider carefully the Accused’s evidence as to why he made that confession and decide whether his story now is the truth in preference to his account to the police on 25 November 2001.

[23] The technical phrase, malice aforethought, here means the intent to kill. If you accept that the original confession to Cpl. Aliki was true, then you will conclude that the Accused accepted he had only one intention and that was to kill Narend.

[24] In that interview on 25 November 2001 the Accused made the following answers to the Investigating Officer’s questions:

"Q40 : Did you two have any discussion about Narend while you were

drinking grog with Bobby?

1. : There is nothing else to discuss about Narend because we have

already laid down our plans of what to do to him on this night.

Q41 : What was your plan with Bobby to do to Narend you are saying?

A : It is my duty to hit Narend and kill him on this Friday night.

Q42 : What was reason you have planned with Bobby to hit and kill

Narend on this night?

A : Bobby told me that Narend is doing witchcraft on him and he is

doing the same to his wife, Reshmi. This is why Bobby wanted Narend to be killed."

[25] Both counsel have told you, correctly, that this is a trial of the Accused, not of the witnesses Bobby and Reshmi. But the defence have argued that everything points to responsibility for the crime lying with those two, not the Accused. In considering the case against the Accused therefore you will need to consider that line of argument very carefully.

[26] The prosecution case is what lawyers call a circumstantial case. No witness has come forward to tell you that he or she saw Toka strike Narend, thus inflicting the fatal injuries. The case against the Accused rests on evidence of the surrounding circumstances of Narend’s death, together with the Accused’s confession that he was the person who killed him.

[27] Of course the allegation against Bobby and Reshmi also rests on circumstantial evidence. No-one saw them inflict the injuries either.

[28] It is possible for you to convict the Accused on such evidence. You must look at all of the circumstances together. One circumstance alone may have to be rejected, but several circumstances together may give rise to an inference of guilt. It has been said that your task is to give weight to the united force of all the circumstances put together. But before that you must be satisfied beyond reasonable doubt of a fact, a piece of evidence, before you can put that together with others, similarly proved, and then assess whether together they lead to an inference of guilt. Lastly, having reached that stage, you must ask yourself whether those circumstances exclude any reasonable hypothesis consistent with innocence.

[29] If, as the defence suggests, you find there is a reasonable hypothesis consistent with the innocence of the Accused, namely that Bobby and Reshmi had the motive, the intent, the plan, and the opportunity, perhaps the only opportunity, to commit the crime, it will be your duty to acquit the Accused. Only if the facts which you find proved before you are inconsistent with any other reasonable conclusion than that the Accused committed the murder, could you find the Accused guilty.

[30] In 2001 the deceased Narend Kumar used to drive a bus for the Tacirua Bus Company. He had marital problems and eventually came to stay along with two of his young children with Bobby and Reshmi Nair at their farm in Lomaivuna. He used to drive the Suva-Lomaivuna route and park his bus alongside the Nair’s house overnight.

[31] On the night of 23 November 2001 whilst having his evening bath he was brutally attacked. He was discovered by the Accused lying mortally wounded head down on the ground near the side of the Nair house. No-one has said they saw who committed this crime. The Accused called out for help from a house directly across the road. Some Fijian youths came to help. Narend was put on a mat and transported to the Vunidawa Hospital by Bobby and the Accused.

[32] At the Vunidawa Hospital the receiving doctor, Dr Rolando Rena, stabilised the comatose victim by drip and intubation. He stitched up the worst head wounds and sent him on to the CWM Hospital for more sophisticated treatment. But Narend died from his wounds a few hours later.

[33] Meanwhile Bobby, Reshmi and the Accused drove in Bobby’s carrier to Samabula to notify Narend’s sister. They brought her back to Vunidawa Hospital, only to be told, Narend had been taken by ambulance to the CWM Hospital in Suva.

[34] Later that morning, 24 November 2001, the police began their investigation and their questioning. The Accused was questioned at first informally by the Investigating Officer. He told them he thought a man had been hired to kill the deceased. When the D/Cpl Aliki was about to interview the Accused under caution on 25 November 2001, the Accused was seen to be breathing heavily. He then said to Cpl Aliki, after shaking his hand "I am the only one who hit Narend’s head with an iron rod and that has caused his death." The officer asked him if he was telling the truth. Again he said "I am the only one who hit him." It is interesting that he should repeat the phrase "the only one" twice.

[35] The Accused was then cautioned and an interview was carried out and recorded. That interview is not disputed, in the sense that the Accused admitted he made it. It is not denied the Accused helped the police reconstruct the scene and in effect, show them how and where he did it. I shall come back to this statement later on.

[36] Bobby and Reshmi said they did not do it. It is clear from their evidence there was only a short time span within which the crime, whoever committed it, could have been committed. Narend arrived home around 8.30 pm, the 4 children had all gone to bed by about 9 pm, and then some youths came and bought cigarettes. From that moment until the Accused is heard to cry out for help, which was in turn answered by Raiwalui and Inosi from across the road where there was a small engagement party going on, was the time within which the attack must have taken place. Narrowing it down further, the assault must have taken place whilst the victim was having his bath, a period of perhaps 5 to 10 minutes, and likely to have been as soon as the youths had been served their cigarettes and matches and departed.

[37] At that time only Bobby, Reshmi and the Accused were at home. Bobby said the Accused was inside the sitting room apart from serving cigarettes when he went to the porch. Reshmi said at one time the Accused came past her into the house and said "moku" meaning "hit". From this we are to gather suspicion had then fallen on the Accused as the perpetrator.

[38] That then is a summary of the evidence against the Accused in short compass. What are some of the factual issues you need to decide?

[39] Narend’s blood was found to have been present on the iron rod. This evidence came from Mr Vakacegu’s report. He was the forensic scientist whose report went in by consent. The defence say this was likely to have been the murder weapon, but it is also likely that a meat chopper was used.

[40] In his caution interview the Accused told the police he had pulled the same iron rod, a grog pounder, out from underneath the house. He said he hit Narend first once with the rod, and as he tried to get up again 3 more blows on his head. He put the iron rod back under the house, and later pulled it out and put it into the back of the carrier for the journey to Narend’s sister’s place in Samabula. He relieved himself on the way when the vehicle stopped. He took the rod from the back, kept it with him at the front seat, and threw it away at the Waidrauso bridge into a creek.

[41] In evidence the Accused told you how it came about that he threw the iron rod out from the carrier into the creek. He said it was Bobby who told him to pick it up from the passenger seat floor and throw it. He did this because Reshmi was crying and Bobby asked him to take the blame for the killing.

[42] In their evidence both Bobby and Reshmi denied all knowledge of the throwing away of the iron rod. They said they were not aware of it. The iron rod was found at that creek, after the Accused directed the police to it. In his evidence he admits throwing it there. Could the driver and the other passenger not have been aware of this large rod being thrown from the passenger window of the carrier? If you disbelieve Bobby and Reshmi on this issue you may ask yourself why they would lie, and does their lie on this issue support the prosecution case or the Accused’s case?

[43] The police searched the Nair’s house for possible weapons. They did not find a meat chopper which the Nairs have told you they possessed at that time. They still possess a meat chopper. The Accused said Bobby and Reshmi told him a chopper had been used as well as the iron rod. The pathologist believed the rod alone could have caused the head injuries. She favoured a blunt object because she saw jagged edges to one of the wounds.

[44] Dr Rolando, who saw the deceased first, said he saw multiple incised wounds. One of the wounds was a straight wound. The wounds could have been caused by the iron rod or a knife he concluded.

[45] On this evidence it is possible that a second weapon was used in addition to the iron rod. The second weapon could have been a knife or a chopper. This evidence tends to fit with what the Accused said Bobby and Reshmi told him. It could also fit with the Accused’s original account that he gave to the police in his caution interview. Which is correct?

[46] Much has been said in this case about motive. Motive is not to be confused with intent. Whoever did this deed you may think intended to kill Narend. The question remains, for what reason? The prosecution have not sought to stress any particular motive, other than to say he fixed Bobby’s problem for him. Mr Kurisaqila said the Accused was a loyal servant to Bobby. What though was Bobby’s problem?

[47] The defence by their questioning and their submissions have shown the areas which they say provide a motive for Bobby and Reshmi, not the Accused, to do away with Narend. First, they say Bobby and Reshmi blamed Narend for doing witchcraft on them. Second, they owed money on Narend’s carrier and would cancel the debt in this way. Third, Bobby was put out by Reshmi’s affair with Narend, and Reshmi was jealous of and disappointed by her lover Narend, for it was said "two-timing" her, by resuming relations with his second wife Roshni.

[48] All of this evidence you will need to consider carefully. Does it help you to decide who may have done this crime from amongst those who had the opportunity? Mr Singh for the Accused has said the Accused had no motive to commit this crime. He only knew of the witchcraft and had advised Bobby to give Narend notice to leave. But they had never opened up their suspicions and confronted Narend to allow him to deny it. You will remember Bobby and Reshmi denied all of these allegations. You may also remember Reshmi’s reaction in the witness box upon being shown the birth certificate for Roshni’s second child, a child conceived by Narend in the month he was murdered, irrefutable proof that he still had eyes for Roshni.

[49] The Accused has told you why he made the statement under caution to the police. Not everything in it could have come from Bobby. Some of it is formal or introductory which would not have needed to have come from Bobby. There was no supporting evidence for the burning of the Accused’s clothes, and if he handled the bleeding Narend there would have been perhaps no need to burn clothes. Blood inescapably would have got onto the clothes of Bobby and the Accused as they clothed him, put him in the mat and carried him.

[50] On the prosecution case, the Accused as a loyal servant took the blame for his master Bobby’s deed or at least to draw suspicion away. Or on the defence case he was asked to take the blame and agreed to do so. But in both cases, the Accused did not make a good job of keeping Bobby out of it. Remember how he referred to "we having already laid our plans", and it being the Accused’s duty to hit Narend, and that it was witchcraft that was the reason why Bobby wanted Narend killed.

[51] The Accused says he told lies to the police officer by making this confession. This was a lie told out of loyalty and friendship. There were no other instances of the Accused telling lies. This is a case where you will have to decide whether the Accused told the truth to the police and is now lying, or vice versa. Did he tell a deliberate and material lie to you now because he realised he was guilty? Or has he realised his loyalty to his friend was misplaced? Certainly you do not jump to the conclusion that because he lied therefore he must be guilty.

[52] The prosecution have confirmed that the Accused is a person of previous good character. He has no previous convictions. He has not been in trouble with the police. This evidence can be used for two purposes. First you can take it into account in assessing the evidence of the Accused. Because he has a good character it is more likely that he is telling the truth to you now, and you may be more inclined to accept his explanation now.

[53] Second, you can take his good character into account when considering whether you consider he has committed this crime. His unblemished reputation can lead you to the presumption that he is incapable of committing this murder. You have heard evidence of his reputation in the area of Lomaivuna. There is nothing there to suggest that he is a violent man or a man prone to rages or aggression. Of course it is possible for a person to commit a first offence. You will need to consider the Accused’s good character carefully and place it in the balance.

[54] You have had a good opportunity to assess Bobby, Reshmi and the Accused. By considering the evidence of other witnesses who may be treated as independent you may gain assistance also. The evidence of Shyam Kumari, Narend’s sister will be helpful in this regard. She appeared to get on very well with Reshmi and she told you how Reshmi used to confide in her. Shyam had no enmity or unpleasantness with Reshmi, yet her evidence shows you how Reshmi has lied to you and denied the relationship with Narend.

[55] If she had such romantic attachments why did she not come out to tend Narend with first aid? Did she know already that he was dying, that he had no hope of survival?

[56] Look at who had the opportunity to commit this crime, and consider the subsequent reaction of the suspects at the scene? Then consider the evidence against the Accused, and ask yourselves if you can be sure of guilt?

Please retire now to consider your opinion.

A.H.C.T. GATES
JUDGE

Solicitors for the State: Office of the DPP
Solicitors for the Accused: Legal Aid Commission