State v Laqeni - summing up [2005] FJHC 686; HAC0001.2005L (7 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0001 OF 2005L

STATE

v.

TANIELA LAQENI

Mr. K. Tunidau for the State
Mr. K. Vuataki for the Accused

Date of Hearing: 2 and 3 November 2005
Date of Summing Up: 7 November 2005

SUMMING UP

Lady and Gentlemen Assessors,

We have now arrived at the stage of the trial, where I am required to sum up to you.

During the course of this summing up, I shall give you directions on the law and you are bound to accept those directions regardless of what counsel may have told you the law to be. On matters of fact, you are free to make up your own minds and reach your own conclusions. You have heard counsel from both sides. Each put to you their view of the evidence and how it should be assessed. In so doing, they were doing what they were duty bound to do and their remarks were intended to assist you.

However you are not bound by what counsel have said if you do not agree with it and similarly if I appear to be expressing any view of the facts you must reject such view unless you yourselves are of the same opinion. If I omit to mention evidence which you think is important, you must take it into account, just as if I stress evidence which you think is unimportant, you must disregard the fact that I stressed it.

In arriving at your conclusions, you must have regard only to the evidence you heard in this case. You must discard anything you may have heard from friends or relatives or read in the newspapers and ignore any advise or suggestions made to you. You must also put aside any feelings of horror or revulsion or sympathy either for the deceased or the accused. You must base your opinions on your own objective analysis of the evidence.

In assessing the evidence, you are at liberty to accept the whole of a witnesses evidence or accept part of it and reject another part or reject the whole. In deciding on the credibility of any witness, you are to take into account not only what you heard but what you saw. You should take into account the manner in which he or she gave evidence. Was he or she evasive, how did he or she stand up to cross-examination? You are to ask yourselves, was the witness honest and was the witness reliable.

Of course in any trial, there are bound to some inconsistencies in the evidence of a witness, with that of another. You are to ask yourselves did the inconsistency relate to peripheral matters or did the inconsistency go to the core of the witnesses evidence and was it of sufficient significance to affect his or her credibility.

At the end of the prosecution case, you heard me explain several options to the accused. He could have remained silent. He could have made an unsworn statement. He could have made a sworn statement. These options were given to him because there is no obligation on him to give evidence.

The prosecution has the burden of proving guilt at all times.

The accused gave sworn evidence and you must give his evidence careful consideration.

You the assessors are chosen from the community represent a pool of common sense and experience of human affairs. You do not leave that common sense and experience behind when you enter the courtroom. You are expected and indeed required to use that common sense and experience in your deliberations and deciding upon any proposition put to you. You are to ask yourselves whether it accords with your common sense or is it an affront to your common sense and experience.

At the conclusion of this summing up, I shall adjourn the Court so that you may retire and deliberate. You are free at that time to discuss the case amongst yourselves but with no one else. However, you must form your own individual opinions. When you are ready, the Court will reassemble. You with then be asked to state your individual opinions in Court. You will not be asked for the reasons for your opinions. Your opinions need not be unanimous, but it is desirable that they are.

The accused stands charged with the offence of murder and as you are aware, he has pleaded not guilty. Under the law, an accused person is presumed to be innocent until proven guilty. He does not have to prove his innocence and indeed he does not have to prove anything. It is the duty of the prosecution to prove the guilt of the accused. The prosecution must prove each and every ingredient of the offence.

Not only must the prosecution prove the accused’s guilt, it must prove it beyond a reasonable doubt. This is perhaps the most important direction of law that I can give you. This means that you must be so satisfied as to be sure of the accused’s guilt before you express the opinion that he is guilty. If after considering all the evidence in this case, you are left with a reasonable doubt as to the guilt of the accused, then you must advise me that the accused is not guilty.

The particulars of the offence which is contained in the Information, a copy of which you have before you are that TANIELA LAQENI on the 26^th November 2004 at Lautoka in the Western Division murdered Roselyn Ledua.

In this matter there are some facts that don’t have to be proved that have been agreed and you have before you a copy of the statement of agreed facts that has been signed by both counsel and signed by me. In making your deliberations you must consider the matters contained in that statement and I repeat that those matters don’t have to be proved, they have been agreed and have been admitted.

You have heard the evidence and I don’t propose to recite it to you but I do propose to briefly refer you to it. You will recall that the first witness called by the prosecution was Master Line Turaganiviu. You will recall that he identified the accused. He described himself as a close friend. He knew the deceased. He described the car. He was a school teacher with the accused.

He says he was invited by the accused to come with him as he normally travelled from Nadi and he resided in Nadi. The school finished at about 2.00pm. The accused and his wife and their niece and Master Line all came to town. They went to P. Meghji and they purchased a carton of rum and cola and a carton of 24 cans. They then went to Saweni Beach, they drank a carton of rum and cola, and they were there until about 5.00pm and came back to town to P. Meghji to get some more. The accused was driving at the time. They got another carton and they then went to Marine Drive. He said that they drank the second carton and it was after 8.00pm they left, it was getting dark. They headed to Nadi and he was in the front passenger seat and he said that Roselyn was drunk. The accused was sitting behind Roselyn and the niece was sitting behind him. He says that the accused started punching his wife in the car, she stopped the car and he told the accused to stop and not to punch his wife. If he keeps on fighting he would get out of the car. He did keep going he got out of the car after the fourth punch. He then described that he went up the Natabua Road. He didn’t look back to see what was happening. He jumped off the road as a car was coming near him. He denied that he had placed a hand on the deceased’s thigh or between the thighs at anytime. He says that they were drinking in the car and each person had a can. He says that when they were drinking the males were drinking more than females. It was put to him in cross-examination that he ran away because he had been touching the thighs of the deceased to which he said “I disagree”.

The next witness was the pathologist but I will come back to his evidence shortly.

After the pathologist you heard evidence from the niece, Wainikiti Kamea. She is a student in Form 6. She was residing at Lomawai School. She was living with the principal who is the father of the accused and his wife. She said she

only identified the accused and described how she and he, accused and the deceased had come to Lautoka on the 25^th November 2004 and that how she and the deceased had collected the accused and Master Line had come to town and bought rum and coke and went to Saweni Beach. They left there at about 5.00pm and she had about 5 cans. They came back to town to buy more alcohol and they went to the seawall. They left the seawall after 7.00pm and she says that the accused was driving when they left the seawall. She was in the back seat with Roselyn and Master Line was in the front with the driver. They headed towards Nadi and near the Navutu roundabout they changed driver and that she drove, that is the deceased from there. That the accused sat in the back behind the driver and then she felt asleep. She woke up and she heard screaming and that the accused was punching her more than once. The car stopped and after that Mr. Line took his file and ran towards Natabua. That the accused went out of the car, pulled the deceased out of the car, punched her and she fell down. He picked her up and put her in the car and they moved on. She says that the accused drove as he normally drives. That the deceased had injuries to her head, there was blood coming from her nose. At Saweni, the accused took off the deceased’s clothes. That they ultimately headed towards Semo Village. They got there at about 1.00am. She suggested to the accused that the deceased be taken to hospital when they got to Semo Village. He told her to leave there and she ultimately left the car and went to relatives in Semo Village. She later on the 27^th November 2004 identified the body of the deceased.

You will then recall that the aunt, Kiti Babitu, of Semo Village gave her evidence in chief against the accused. She says that she was asleep and she heard him calling out asking if his wife could rest at her place. She came and she heated some water and she tried to treat the deceased. The deceased was cold. That she said to take her to the hospital and she went with the accused and another to take the deceased to the Sigatoka Hospital. There they were told that the deceased was dead. There was blood coming out of her eyes. She was asked if she smelt liquor inside the car and she said she couldn’t remember. She was referred to the statement that she made to the police on the 26^th November 2004 in which reference was made of her having smelt liquor in the car.

Corporal 1907 Prem Chandra gave evidence having interviewed the accused and he then read to him the caution interview. You will have the caution interview before you when you retire to your room and you should read the caution interview in its entirety. You were referred to various parts of it by State Counsel in his address that you should read it all whilst I might refer you to some particular parts I stressed you should read the document in full.

For reasons that would become apparent when I give you some further directions, you should look to the answer to Question 81 when asked:

“Q81: At the time you proceeded towards Nadi what was your condition like?

A: I wasn’t that drunk and I knew what I was doing.”

There are also questions and answers from Question 84 to Question 93 that described the punching in the car and the punching at the Natabua, Queens Road junction and further at around Question 105 the description of what occurred subsequently on Saweni Beach Road and also his observations of her at Question 97 after leaving Natabua before reaching Saweni when asked:

“Q.97: What was her condition that time?

A: She had facial cuts and she was bleeding from her face and eye.”

The caution interview and the charge statement which is also in evidence and you will have contained admissions by the accused that he assaulted the deceased. The charge statement was put in evidence by Detective 2867 Harif who charged the accused. Corporal Prem Chandra said that it was 4 kilometres from Natabua Queens Road junction to the site of the assaults on the Saweni Beach Road.

The accused as I have said gave sworn evidence. In that sworn evidence he made similar admissions to those in the caution interview, that is admissions of having assaulted the deceased and of there being four incidents, of there being the first incident in the car where he saw the hand he says of Master Line on the thighs or between the thighs of his wife and he punched the deceased. That the car then stopped near the intersection of the Queens Road at Natabua Road. He got out, pulled the deceased out and punched her further.

Then the third incident on that Natabua Road which you will recall was described in some detail by Beranado Varani of his observations being in a taxi with the lights on when he saw a man that he identified as a man he can see at St. Thomas High School. He identified the accused and you recall the description he gave that a man standing near the woman and ultimately lifting the woman into the car and that she was unconscious and motionless. He held her by the stomach and body and went half way in the car with hands still out. He slammed the door with both hands. He was kicking the woman, slammed the door again and pushed the woman inside and closed the door. You will recall that he was yelling out “this is my wife, this is my wife” and telling the taxi and its occupants to go and that he drove off at high speed. That is the third incident that the accused acknowledged.

Then the fourth incident he acknowledged was that at Saweni Beach feeder road. He acknowledges that he punched and kicked the deceased. He confirms the evidence given by the other witnesses of the events of the day of going to work, being picked up by his wife and niece and going to P. Meghji and buying some liquor, a box of rum and cola and chips for his wife and going to Saweni and consuming them and going back to P. Meghji for some more at about 5.00pm and going to the seawall and drank most of those and of leaving the seawall and heading to Nadi and that the drivers changing near the Navutu roundabout. He says he consumed 13 to 15 cans in the total period. You will recall he says he saw Master Line’s hand on the thighs or between the thighs of his wife and called out “what are you two doing” or “what are you doing”. It was then that he started punching his wife and the car stopped and the other incidents to which I have referred took place.

He says his wife was trying to talk but he didn’t want to hear any explanation from her. His wife was responsible enough to avoid what was occurring, he says in his evidence-in-chief. You will recall he didn’t take his wife to hospital at any of the places where he could have at Lautoka, Nadi and Sigatoka. He didn’t want people to know what was happening.

He told his aunty, as his aunty has told the Court, what had occurred and he sought help from his aunty to treat the deceased. She was naked then but he put clothes on her to take her to hospital. You would recall him giving that evidence.

He said in cross-examination that his wife was the person to answer what was happening and to get an honest answer must come from his wife. When asked why he didn’t reach out and pull away Master Line’s hand he said he would feel embarrassed to do that but he did say that was not a current feeling. He acknowledged in answer to cross-examination that he was capable of driving his car and he knew what he was doing.

You will recall his description throughout his evidence of the events as they unfolded that afternoon and most probably that evening. He says that he did not know that the punches and kicks would kill her but as he was cross-examined he had a recollection of the number of punches. He further, in cross-examination, gave his reason for not seeking help he didn’t want his father to know. He did not want other people to know that he assaulted his wife. He made those decisions to those judgments.

Then you will recall the evidence of the pathologist and his evidence and the report that he prepared, the post mortem report, has been tendered by consent and you will have it before it when you consider your opinions. You will recall the evidence given by the doctor of his examination of the deceased. His descriptions of haematoma in the front parietal region of the skull, the fractured ribs and you have before you a diagram of the ribs and the post mortem report the conclusion as to the cause of death, the multiple rib fractures, the rupture of the liver and haemothorax and haemoperitoneum. You will recall the doctor describing the effect of those causes. The causes are not denied by the accused that he punched and kicked, punched with his fist and kicked with his leg.

The doctor in the report also described the external injuries on the deceased. The lacerations around the left and right eye with a ruptured left eyeball, contusion and bruises on the face, bruises on the upper part of the chest, bruises around the left breast, bruises on the lower abdomen and upper thighs and bruises on the thighs, knees and dorsal of the feet and the large abrasion on the upper right thigh and you will recall the doctor describing those injuries and the diagram attached to the report will help you in assessing the evidence of the doctor.

To establish the charge of murder against the accused the prosecution must prove various things to you. Firstly, the death of Ledua was caused and secondly, that it was caused by an unlawful act and thirdly, that it was the accused who committed the unlawful act and fourthly that it was done with malice aforethought.

The expression “malice aforethought” is a collective name for those mental attitudes, which turn the killing of a person into murder, means the intent, state of mind that the prosecution must prove that the accused had at the time he is alleged to have caused the death by his unlawful act. The necessarily intent or state of mind of an accused is established by proving one of the following:

(i) that the accused intended to cause the death of Roselyn Ledua; or

(ii) that the accused intended to do grievous harm to her; or

(iii) that the accused knew that his unlawful act would probably cause death or grievous harm.

Provided that the accused had the knowledge that his act would probably cause death or grievous harm, it does not matter whether he was indifferent whether Roselyn Ledua died or not, nor does it matter that he might even have wished that neither death nor grievous harm were caused. I think you will know that grievous harm simply means a serious injury.

Therefore the prosecution must satisfy the essential elements of murder. The death of Roselyn Ledua occurred. The death was caused by an unlawful act, that is without justice excused or provocation and that it was a deliberate act by the accused and that it was the accused who committed the unlawful act and that it was carried out with intention of causing the death or causing serious harm or with the knowledge that death would probably result, or with the knowledge that serious harm would probably result.

If the prosecution fails to prove any of these elements to you beyond reasonable doubt, or if you are unsure of any of them, then you must find the accused not guilty of murder.

It is not disputed that Roselyn Ledua died and that she died as a result of injuries she sustained.

The issue is, did the accused intend to cause the death or intent to cause the grievous harm or knew that his act would probably caused death or knew that his act would probably caused grievous harm. It does not matter whether he wanted her to die or not or whether he wanted her to suffer grievous harm.

Where the unlawful application of course in the event like causing death are parts of the same sequence of events, the same transaction the fact that there is an interval of time between them does not matter.

The circumstances you might think are such that and the submission has been made to you that it is an issue as to whether there was proper provocation so that the verdict might be one of manslaughter and not murder.

Provocation is not a complete defence. Its effect is to reduce murder to manslaughter. Such a defence however operates only when the act causing death is done in the heat of passion caused by sudden provocation, that is, before there is time for such passion to cool. Provocation is any wrongful act or insult of such a nature which when done to an accused person causes in that person a sudden and temporary loss of control and so to behave as the accused did.

Remember the accused does not have to prove provocation. It is for the prosecution to satisfy you beyond the reasonable doubt if there was no provocation. You will therefore have to consider:

(a) Would the deceased’s conduct have caused a reasonable man to lose his self control, if so,

(b) Did the deceased’s conduct cause the accused to lose his self control, if so,

(c) Did the retaliation by the accused bear a reasonable relationship to the provocation by the deceased.

You will first consider whether the deceased’s conduct was such as would have caused a reasonable person to lose his self-control. You are to take into account everything said and done and the effect, which in your opinion, it would have on a reasonable man. A reasonable man is an ordinary person that is to say an ordinary person having the powers of control to be expected of an ordinary person of the sex and age of the accused, of the same cultural background and of the same upbringing and education as the accused living in the same community sharing such of the accused’s characteristics as you think would effect the gravity of provocation to him.

In considering the provocation you should look to the totality of the evidence that is before you. You should consider the issue of provocation in the light of all of the evidence that is before you as to the commission of the unlawful act. If on doing so, you are satisfied beyond reasonable doubt that the accused was not provoked you will reject the defence of provocation and consider the main charge. If however you have a reasonable doubt about it or indeed if you accept that he was provoked, you will go on to consider the last limb on this matter namely whether what the accused did was a reasonable retaliation for anything the deceased did. In other words was what was said or done by the deceased make an ordinary person inflict the injuries the accused did.

If you are satisfied beyond reasonable doubt that an ordinary person would not have retaliated in the manner of the accused, you will reject the defence of provocation. If you have a reasonable doubt about it and earlier having had a reasonable doubt about the other elements of provocation, you will find the provocations has been established.

If you are not satisfied beyond a reasonable doubt that there was no provocation, you cannot find the accused guilty of murder but of manslaughter. If you are so satisfied as to be sure that there was no provocation but are also not satisfied beyond reasonable doubt that he had the necessary malice aforethought, you will advise that he is not guilty of murder but of manslaughter.

As to the necessary malice aforethought the necessary intent in this matter, you must also take account or take into consideration the intoxication of the accused and in doing so, you must have regard to the whole of the evidence which includes the consumption of alcohol and you must draw such inference from that evidence as you see fit and thereupon ask yourselves whether you are satisfied beyond reasonable doubt that at the time the accused punched and kicked his wife in the car, at the Queens Road Natabua Road intersection, on the Natabua Road and at Saweni he had the requisite intent to kill her or to cause grievous harm to her. As I have said the accused cannot be convicted of murder unless it is proved beyond reasonable doubt that he inflicted the blows with intent to murder or to cause grievous harm.

The extent or degree of the intoxication is for you to determine and then to express your opinions as to whether it is being proved to your satisfaction that the accused despite the affect of the intoxicated liquor which he had admittedly consumed was capable of forming any intent to kill or to do grievous harm and as I have said in forming that opinion you must look at the whole of the evidence. If you are of the opinion that the accused was incapable due to intoxication of forming the necessary intent then you must acquit him of murder but you may convict him of manslaughter. Put simply the relevance of intoxication to the matter is whether the accused was capable of forming the intent or capable of forming the malice aforethought.

You have to decide if the acts of the accused were done with malice aforethought that is whether he either intended to cause the death of Roselyn Ledua or intended to cause the serious injury or knew his act would probably cause death or knew his act would probably cause serious injury. If you are not satisfied beyond a reasonable doubt that the accused had malice aforethought you will render your opinions and advise me. If you are satisfied beyond a reasonable doubt that the accused acted with malice aforethought that have a reasonable doubt about the question of provocation you will advise me that the accused is guilty of manslaughter. If you are satisfied beyond a reasonable doubt that the act of malice aforethought and also satisfied beyond a reasonable doubt that there was no provocation, you will advise me that the accused is guilty of murder. Your possible opinions therefore in the light of the admissions made are that you find the accused guilty of murder or not guilty of murder but guilty of manslaughter.

Remember that in arriving at your opinions you are to have regard to all of the evidence and not merely the evidence that I might have referred to and the evidence includes the exhibits, which you have before you.

Court: Mr. Tunidau, Mr. Vuataki is there anything you wish me correct, add or detract?

Both Counsel: No Sir.

Lady and Gentlemen Assessors, that is all I wish to say to you. You may retire now to consider your opinions. If there is any clarification that you need, please send a message by the clerks. During your deliberations, take as much time as you need. When you are ready with your opinions, I will receive them individually in open court and remember you will not be asked for reasons for your opinions. Your opinions do not have to be unanimous but it would be good if they were.

JOHN CONNORS
JUDGE

At Lautoka
7 November 2005