State v Navamocea - summing up [2005] FJHC 696; HAC0020.2003L (15 November 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0020 OF 2003L

STATE

v.

VILIMONE NAVAMOCEA

Mr. K. Tunidau for the State
Accused in Person

Date of Hearing: 8, 9, 10, 14 and 15 November 2005
Date of Summing Up: 15 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 for the State and you have heard from the accused. Each put to you their view of the
evidence and how it should be assessed. In so doing, State Counsel was doing what he is duty bound to do and his remarks like those of the accused were intended to assist you.

However you are not bound by what State Counsel or the accused have said and 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 gave evidence. Was he evasive, how did he 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 be some inconsistencies in the evidence of a witness, with the evidence of others. 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 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 and you 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 to 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 will 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 will have before you are that the accused between the 19^th day of September 2003 and 23^rd day of September 2003 at Nawaka, Nadi in the Western Division murdered PARAS RAM s/o Budh Ram and further the accused on the 19^th day of September 2003 at Nawaka, Nadi in the Western Division robbed PARAS RAM s/o Budh Ram of wristwatch valued at $50.00 and cash $70.00 all to the total value of $120.00 and immediately before such robbery did use personal violence to the said PARAS RAM s/o Budh Ram.

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 on behalf of the prosecution was Chandra Segran. He said on the 20^th September 2003 was a Saturday, he went to Nadi Hospital and he there saw Paras Ram. He tried to talk to him he wasn’t able to talk properly and not clearly. He said that the next day he went to the Lautoka Hospital to see Paras Ram. He was better than he was the previous day. He was able to talk and complained pain in his jaw and the back of his head. He saw an injury at the back of his head. He talked to him and he, Paras Ram, told him that Maani assaulted him. Maani was the boy who stayed at Hira’s place, the Indian man’s place. Hira, he said, was his neighbour and as to Maani he then identified the accused in Court and says that he knows him since birth.

In cross-examination he was asked by the accused if anyone else was present at the hospital and he said no.

The next witness on behalf of the State is Kalen Goundar. His evidence really was that he went on the 24^th September 2003 to Lautoka Hospital and identified the deceased as being his uncle, Paras Ram.

Joave Kadre then gave evidence that on the 19^th September 2003 at about 5.30pm he returned with the bag of cassava. He met the accused and Epi. He was wearing trousers, a T-shirt and a hat. He described the hat as being the white round hat bearing the words “NO FEAR”. He was shown a hat and he identified that as being his hat.

He said he dropped the bag of cassava, went to play and suggested to the others that they drink beer. He came to the soccer field, drank beer and smoked marijuana. After drinking he left for the shop and after a while, Maani told Epi to go and look for some money. They followed the road and looked for one Indian person. He said he heard this conversation quite clearly. He says that the accused then went to the accused’s home which is about 40 metres away and came back to where the others were with 2 pieces of wood. He said he clearly see 2 pieces of wood. He was shown a piece of wood and he recognized it. He said that the accused met him and talking about going looking for a person. He then left to go home. Then the accused he says asked him for his hat and he gave it to him. He says the accused had his hat when he left. He says he then went to sleep in his home.

He was cross-examined by the accused and he was asked whether anybody else present when he left apart from other 2, he said no. He was asked when he was playing soccer and rugby on the soccer field, was he the accused cutting firewood at Navin’s place, he said yes. He was also asked how far Navin’s house was from the accused’s house, he said about 50 metres. He was asked how the wood was being cut and he said with the chainsaw. He confirmed that he played that afternoon.

His evidence was followed by Epi Raiyane. Epi Raiyane said that on the 19^th September 2003 the accused was coming far, would have Navin’s place with the chain saw and Navin gave the accused $20.00 and he told them to go and drink beer. Navin suggested to drink beer. When he went off to purchase the beer he went to the ground behind the temple at Nawaka. He was smoking B & H and then planned to get some marijuana then went to the shop. They then smoked marijuana. After that Maani left and went to his house, the other 2 stays. Then the accused came back with 2 pieces of wood. He says there were pieces of rain tree. He was shown the wood, ‘MFI-2’, he reckoned those things. He said that the accused said to find an Indian man and looked for some money to hit one Indian man. He says that Kadre had left and there were only 2 of them. The accused asked for Kadre’s hat and shown Exhibit 1, the hat and he identified that hat. They went off, the saw an Indian man, Paras Ram, came out of the private car. They followed him on the path to his home and you knew him very well and the accused also knew him that they all lived on the same area. It was a gravel road to his house and they followed him down. You will recall at that point in his evidence, he was asked questions and confirmed whether he was given immunity by the DPP against prosecution in this matter, he admitted that. He said that he accepted the immunity he was given. He was shown the immunity and the acknowledgment.

You will have a copy of the immunity as Exhibit P-2 before you when you deliberate. He says that Paras Ram was known as mamma. He says that they followed him down and waited. He was about to cross when tried to capture him but he punched him in the stomach and wrestled with him and says hold him, one wood each. He then left his piece of wood and struggled as he tried to get hold of Paras Ram. He let him started running and Paras Ram crossed in front of Reddy’s house to his own house. He says he followed the gravel road to get to Paras Ram’s home. They reached Paras Ram’s house in the dark. Paras Ram did not arrive. They tried to open the house. He says he then opened some louver blades and the accused entered the house. The accused was still holding his wood at Paras Ram’s house. He says he took out 3 louvre blades and the accused entered the house. He was standing beside him. There was no light from the house.

When the accused entered the house, the wood was leaning against the front door. He says he noticed Mamma coming and he told the accused then he went outside the gate, went about the width of the courtroom away. He saw Paras Ram coming to the front door. He heard his voice and he came back to the house and stood at the door. He says that the accused was still inside the house. He heard a voice and he then demonstrated in his evidence a snoring sound which he said he heard that it was coming from Paras Ram. He said he told the accused for them to run away. Paras Ram was lying in front of the open door. There was no light. He was not moving. He says the accused showed him the money $40.00 in notes. He was still holding onto the wood when he reached the road and the accused had his. They ran a few metres to a place where they tied up the horses then threw the wood. They then came back home and the $40.00 was spent for buying beer.

In cross-examination, he was asked by the accused he needed money to buy “sevusevu” for his brother-in-law and he said no. He was asked if Paras Ram owed him some money for the sale of steel and he said no. He repeated on several occasions and response to several questions that Paras Ram did not owe him money.

He was asked if he struggled with Paras Ram he said yes. He was asked if he was punched, he said he didn’t use the stick, he left the stick and captured him. He was asked the drinks were purchased from Malolo then drinking at San Bruno Hotel. It was put to him did he enter Paras Ram’s house and he said no. He said I did not enter Paras Ram’s house, I took off the louver blades. He went following the accused struggling to the house and were standing beside each other. It was put to him that he was lying as he had hit him on the road before throwing a stick away and he said no. He then said they were beside each other. It was put to him that he entered the house and he said no, I only took out the blades. He, the accused, entered the house. It was put to him that he told the accused to wait on the road and he had to check the Indian man, he said no.

Nacanieli Reya then gave evidence that on the 19^th September 2003 he was drinking grog and was returning home and noticed a wristwatch, a piece of rain tree and a flip flop on the road. He says he knew Paras Ram as Mamma. He took all these items to his wife and discussed and after a while he realized that the items belonged to Paras Ram. He was shown a wristwatch and he identified and you will have that before you as Exhibit P-2. He says that after about 1 ½ hour he went to see them and he thought that something might be wrong after the watch and slippers were found. When he arrived at Paras Ram’s house in the dark and the door was opened and that Paras Ram was lying on the floor inside his house. He thought he was drunk. He fell to the floor and was wet. He saw that the wetness was blood. He went to get some matches and a Fiji Times from the neighbour of Mammas and came back to see there was blood spattered all over. He left him and sent for a carrier and took him to Nadi Hospital. He says it was after 1.00am on the 20^th September 2003 when he went to Paras Ram’s house.

He was asked what items were on the road on cross-examination he said a watch, wood and slippers. He was shown a piece of wood and asked was the same and a little different, the other one was shown. He was asked did he give to the police he said yes.

Detective Constable 2099 Apete Visako then gave evidence. He was the officer who charged the accused of murder and he produced the charge statement to the Court. He was asked if he assaulted the accused he said no or if anybody else assaulted the accused in his presence and he said no and that the accused had made any complaint to him he said no. He was asked if the accused made a formal statement he said yes and was it read back and the accused said yes and he was asked did he wish to add or alter it and he said it was voluntarily made and signed. He then read the charge statement to the Court. You will have that charge statement in its original form and the English translation before you and you should read, it contains a confession wherein the accused says:

“I admit that I hit Paras Ram s/o Budh Ram with a stick and also assaulted him. I ask the court to pardon me and also the family of Paras Ram s/o Budh Ram for what I did. I also admitted that I committed this offence as I was under the influence of liquor and also taking drugs on that day.”

You should read the whole of the charge statement and not merely the confession that I just read through.

The next witness was Corporal 727 Senitiki Talebula who was the witnessing officer to the charge statement and he confirmed the evidence given by Detective Constable 2099 Apete Visako. He was asked in cross-examination by the accused before he was charged if he stated he was punched and he said no he wasn’t so.

Detective Constable Arvind Singh gave evidence of having arrested the accused on the 20^th September 2003 and having visited the scene. He says he recovered a white hat, he was shown Exhibit P-1 and he identified. He used the hat that he collected and he identified his initials and the date 20/9/03 inside the hat. He said he recovered the hat inside the house of Paras Ram and he handed over to the investing officer. He was not asked any questions by the accused.

The investigating officer, Detective Inspector Timoci Narova then gave evidence that and having led a search party and having found a piece of wood. He said he found in the bush and he identified a piece of wood which is Exhibit P-4 which you will have before you. He says that he confirms that the accused was charged after the deceased having died on the afternoon of the 23^rd September 2003. He was asked questions by the accused as to take him into the scene and he said he didn’t recollect having taking him to the scene. He confirmed in his cross-examination that he found a piece of wood and he said he didn’t take part in the questioning of further investigation.

Next the pathologist gave evidence and you will recall his evidence and you will have before you the post mortem report. The pathologist gave evidence in accordance with the report and the described the injuries and says that those injuries and the fractures would be due to a blow or fall, that is a blow to the head. The acute blood loss was due to depressed skull fracture and as I have said you will have before you the report of the post mortem that shows the injuries sustained by the deceased.

As I said earlier the accused chose to give sworn evidence and that sworn evidence he said very briefly:

“I do not admit what the prosecution said and there is nothing else I want to say.”

He was then cross-examined by State Counsel and confirmed that he was cutting firewood at Navin’s place with chainsaw. That he was wearing the hat with “NO FEAR” on it at the time they were drinking. He confirmed that the hat belonged to Joave Kadre and also confirmed that they were drinking beer and smoking marijuana. He confirmed that Joave Kadre went away and leaving Epi and himself together. He says what Joave Kadre heard before he went away was Epi saying to find an Indian man to get some money and not him.

It was put to him that there was a suggestion that someone be robbed with money and he said it was Epi saying that he is going to collect what he was owed for steal and would be going to buy beer for his cousin brother. It was put to him that after Joave Kadre left that he and Epi decided to go and look for someone to rob and he said no. They were sitting on the road when an Indian man came and got out of the car and Epi started following him. He said there were no sticks in their possession and all, he and the accused did was to follow and he wasn’t been told and he discovered an Indian man. That there was a scuffle between Paras Ram and Epi. That Epi told him to go and wait while he, Epi, go into the house and he was sitting and waiting for Epi and he stepped. He says that the charge statement was made, he signed it and that it was read back to him by the police. He says that the contents of it though was set by Epi and not by him. He signed a blank statement. It was put to him and he didn’t put in any of those issues to the officer would he go there.

It was put to him that he agreed with the plan and he said yes. He was asked why he went towards Paras Ram’s house he said Epi told me to go. Epi took out the 3 louvres. He denied that he, the accused, entered the house instead Epi did. He says he was still wearing the hat when he went to sleep. He says he slept for quite sometime and he woke up. He says it was a lie that the hat was found in their house.

You then called Natakele to give evidence to recall that evidence that the hat was brought to the village on the 20^th September 2003 by 2 men and not policemen and that he had told him the hat belonged to Joave Kadre. He says the hat was shown to him. They brought it to him. He did not know why they brought it.

The next witness called by the accused was Josega or Joe Rodo. You will recall his evidence that he is a minister. That Epi came to his house and starting saying that Epi and the accused were best friends but he never said that Maani was the culprit in this matter. He only knows about this matter when he was told by you. That you confessed to him that you did not blame Mani. He says that last Saturday night he was asked to say what he had been told. That an aunt of his was outside cooking when he was talking to Epi and she heard the conversation and she chatted to another and that was how the accused did.

He was asked by a State Counsel that he was told by the accused to come and say what he said today, he said yes. The accused then sought that Epi be recalled and the State recalled Epi to give evidence. Epi was asked if he knew Joe, pastor, and he said he had never seen him preaching before, he did not know he was a pastor, he identified him in Court today and he only goes to his compound to get his son who plays in the compound. He was asked if he was at Joe’s house last week and he said no. He only been to the compound. He was asked if he told him something concerning the accused he said no. He was also asked if he talked about spiritual life with Joe and he said no. He was asked what he talked about and he said he never had conversation with Joe. He never heard anything about the accused. He never talked with Joe in his compound. He confirmed again that he never had conversation with Joe. He says Joe never massaged his leg. He never went to see Joe.

In cross-examination he was asked if Joe or his wife a relative and he said that his wife is his cousin sister. The wife teaches kindergarten but his child does not go to kindergarten.

To establish the charge of murder against the accused the prosecution must prove various things to you. Firstly, the death of Paras Ram 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. Thus it means the intent, the 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 only one of the following:

(i) that the accused intended to cause the death of Paras Ram; or

(ii) that the accused intended to do grievous harm to him; 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 Paras Ram died or not, nor does it matter that he might even have wished that neither death nor grievous harm were caused. I am sure you will know that grievous harm simply means a serious injury.

Therefore the prosecution must satisfy you the essential elements of murder. The death of Paras Ram occurred. The death was caused by an unlawful act, the assault, effectively in the course of the robbery.

It was the accused who committed the unlawful act and that the act was carried out with the intention of causing the death of Paras Ram or causing him serious harm or 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 Paras Ram died and that he died as a result of the injuries he sustained.

What is disputed is whether the injuries were caused by an unlawful act or whether the accused had malice aforethought, intent to do that. As I have said, it does not matter whether the accused wanted Paras Ram to die or not or whether he wanted him to suffer grievous harm. Where the unlawful application of force is the eventual act causing death are parts of the same sequence of events, the same transaction the fact that there is an interval of time between the two does not matter.

As I have said, Epi was given a certain privilege by the Director of Public Prosecutions and Epi is a person who might reasonably be supposed to have been criminally concerned in the events that are before you.

The law requires when give you certain warnings and directions concerning his evidence. They are given in every case in which the State relies upon the evidence of a witness who might reasonably be supposed to have been criminally concerned in the events giving rise to the proceedings before the Court. They are not given in this case because of any view which I have formed concerning the evidence. The need to give such direction arises because the Courts have over the years accumulated great deal of experience concerning the reliability of evidence given by the witness who might reasonably be supposed to have been criminally concerned and the events due to rise in the proceedings of the Court. That experience has shown that the evidence given by such a witness is often unreliable. I do not intend to suggest however that such evidence is always unreliable.

My purpose in giving you this direction is only to warn you that the evidence of such a witness may be unreliable and for that reason alone, you must approach that evidence with considerable caution.

There are no doubt many reasons why the evidence of such a person is said may be unreliable. Possible reasons are: it is only natural you might think that the witness who might be reasonably supposed to have been criminally concerned in the events may want to shift the blame from himself onto others and to justify his own conduct. In the process the witness may construct through his stories which tend to play down his own part in the crime to play up the part of others.

Persons reasonably supposed to be involved in the commission of the offence may make false claims as to the involvement of others and motives of revenge or a feeling of dislike. Such a person may be motivated to give false evidence in order to qualify for reduction of sentence.

Experience has shown once such a witness has given a version to police, he may feel lock into that version and contained the accuracies or even substantiate. When you assess the evidence today you should remember the warnings and directions that I have just given to you. In addition to those warnings I must state a warning that it would be dangerous for you to be satisfied beyond reasonable doubt of the guilt of the accused on the evidence of Epi, unless you are satisfied that his evidence is supported or confirmed by other evidence which indicates that such evidence is true. In this respect what you must look for is the evidence from an independent source which tends to show not only that the crime was committed but the accused was implicated in the way alleged by the State.

There is evidence before you such as the confession of the accused, finding the hat, finding the watch, the shoes and the stick and evidence from Joave Kadre as to discussions he overhead. He heard before he left the others to go home.

Whether the matters I have just mentioned or any of them provides support or confirmation of the evidence, is a matter for you as it would depend on whether you accept as reliable the relevant evidence and what if any significance you attach to it.

Finally even if you do not find any other relevant evidence which supports or confirms the evidence of Epi, you may still convict on that evidence if, after taking into account the warnings I have given you, you are nevertheless satisfied beyond reasonable doubt, after scrutinizing the evidence with great care, that it is truthful and reliable.

You must also consider the effect of the liquor and drugs consumed by the accused. In doing so you must have regard to the whole of the evidence including that which relates to the consumption of alcohol and marijuana and you must draw such inferences from the evidence as you see fit. You must thereupon ask yourselves whether you are satisfied beyond reasonable doubt that at the time the accused hit Paras Ram with a piece of wood he had the requisite intent to kill him or to cause grievous harm.

The accused could not be convicted of murder unless there is a proved beyond reasonable doubt he inflicted the blows with intent to murder or to cause grievous harm.

The extent or degree of the intoxication or impact of the drugs is for you to determine and then to express your opinions as to whether it has been proved to your satisfaction that the accused, despite the affect of the intoxicating liquor or drugs which he had admittedly consumed, was capable of forming any intent to kill or to do grievous harm. In forming this opinion you must look at the whole of the evidence. If you are of the opinion that the accused was incapable due to intoxication or the influence of the drugs of forming the necessary intent to kill or cause grievous harm then you must acquit him of murder but may convict him of manslaughter. In forming that opinion, I stress that you must look at the totality of the evidence to be satisfied as to whether the accused display the indicia of being unable to form the intent as a result of the ingestion of the liquor and drugs.

The comments and directions that I have given are focused dominantly on the charge of murder. They apply also to the second count and that is robbery with violence.

If you are not satisfied beyond a reasonable doubt that the accused had malice aforethought, had the intent to cause serious injury, you would then render an opinion that the accused be guilty of manslaughter. If you are however satisfied, that is satisfied beyond reasonable doubt that the accused acted with malice aforethought with intent to ill or cause serious injury and he had the capacity to form the necessary intent despite the ingestion of alcohol and drugs and you would advise that the accused is guilty of murder.

Similarly, if you are satisfied as to the intent and as to the other relevance beyond reasonable doubt with respect to the robbery with violence you will advise me that the accused is guilty of the second count.

The elements of robbery with violence I will put briefly that the deceased was robbed of his wristwatch and cash and that in the course of that robbery, violence was used. That violence does not have to be violence to cause death but separate and distinct issues.

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. The evidence includes the exhibits and you will have them with you.

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

Mr. Tunidau: No My Lord.

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
15 November 2005