State v Darshani [2006] FJHC 24; HAC0007S.2005 (26 January 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Action HAC0007.2005

THE STATE

V

PRIYA DARSHANI

Fiji High Court, Suva
26 January 2006
Gates J

SUMMING UP

Mr A. Rayawa, and Ms Puamau for the State
Ms. B. Malimali and Mr Maitava 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 give a decision on the facts applying those directions of law 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 shall not refer to all of the evidence, and as a result I may omit some evidence which you think significant. Nonetheless you may give that evidence such weight as you consider appropriate. You must feel 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 weigh carefully and place much reliance upon your 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 the charge against the accused. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused. In summary, the Accused does not have to prove anything.

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

[6] You must decide this case from the evidence that has been presented to you. It will be your task to discover which witnesses have given honest and accurate evidence and which have not.

[7] 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 opinions orally on the charge against the accused, which opinions will be recorded. Your opinions need not be unanimous. You will not be asked for reasons for your opinions.

[8] However it will be helpful to you beforehand in arriving at sound and rational opinions if you ask yourselves why you have come to those opinions.

[9] Those opinions 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 photographs, the caution interview statement, the charge statement and the post mortem report of the pathologist.

[10] You should also consider as evidence the statements tendered by agreement of counsel. There were 21 in all. You have had copies given to you, and have no doubt read them already. Our Criminal Procedure Code provides for the agreement of facts or evidence. This procedure saves witnesses being called and saves time. Be aware of these statements and remember what counsel has said in connection with them. These statements accompanied the Agreed Facts consisting of 6 pages and 28 paragraphs. These issues and facts are therefore not in dispute. Concentrate on what is disputed and what you have to decide. I shall deal with this further on.

[11] Neither speculation nor theories of one’s own constitute evidence. Media coverage, idle talk, rumours or gossip are similarly not evidence. Put out of your mind when considering your opinions, anything you may have read in the newspapers or seen on the television about this matter. You are to focus solely upon whether the prosecution have produced sufficient and cogent evidence to prove the charge beyond reasonable doubt. Have regard only to 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 what is suggested.

[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’s testimony and reject other parts. A witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and be wide of the mark about another.

[15] If you have formed a moral opinion on the conduct alleged in this case whether it is concerning drunkenness or violence, put that to one side. Consistent with your oath, you should 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 against the accused has been proved before you, proved with evidence sufficient for the charge to the extent that I have already indicated.

[16] I turn now to deal with what the prosecution must prove. The Accused is charged with one count in the information, that is of murder, an offence in our Penal Code. It is alleged that on 25^th January 2005 she murdered Richard Anil Kumar Singh, who has been referred to throughout the case as Anil.

[17] In this case, there are five relevant elements that the prosecution must prove. First it must be proved beyond reasonable doubt that the victim Richard Anil Kumar Singh died on 25^th January 2005. This fact has not been disputed. We heard from the Accused as well as from Shalen Kumar that Anil was alive, though drunk, on Vuci Road that night, of how he was struck with a cane knife by the Accused, that he fell down bleeding, and of how he was taken in a taxi to the hospital. He was seen by Dr Kailawakoro at approximately 9 pm that evening who recorded there were no clinical signs of life. He was certified dead. After Anil’s death, his body was examined by the pathologist Dr Samberker to discover why he had died.

[18] Though the element of death is not specifically admitted in the agreed facts, by inference it is accepted that Anil had died, and you can be satisfied that this element has been proved on the evidence also.

[19] The second element which the prosecution must prove is that the deceased’s death was caused by an unlawful act, an act without justification. It is clear from the evidence of the Accused as to what she did to the Accused with the cane knife, confirmed by the neighbours in their statements in the Agreed Facts bundle, that from this attack the deceased suffered grievous knife wounds to his body.

[20] Again the Accused herself told the police in her caution interview how Anil came by his injuries and why. She struck four blows, three causing injuries, one to the neck two to the head. She said she did this with all her strength so that Anil would not survive. Her intention was to kill Anil, to finish him that day, as she put it.

[21] Besides certifying that Anil was dead when he went to examine him, Dr Kailawakoro said in his statement his initial examination revealed massive bleeding all over. He noticed a deep laceration on the parieto-occipital skull which had penetrated right through the bone into the cranial vault. He certified that death had resulted from excessive blood loss.

[22] In his post mortem report tendered to the court as an exhibit, Dr Samberker had found the cause of death to be the cranio-cerebral injury (the head injury) resulting from the blows to the head and neck by a sharp edged weapon. You will easily conclude the cane knife blows made by the Accused to Anil’s head caused his death.

[23] You will go on to conclude that such blows were also unlawful and that there was no justification for inflicting them. For instance, Priya was not acting in self-defence wielding off an attack being made upon her by Anil. From her account to the police the final straw seems to have been that Anil having made the insulting suggestion that she had spent the morning in a guesthouse with another man, then refused to state in which guesthouse she had gone when she challenged him. She was very angry because of his allegation and since he had refused to answer. Her attack was not precipitated by self-defence. The attack had no justification in law. It was unlawful.

[24] Thirdly it must be proved to you that the unlawful acts which led to the deceased’s death were the acts of the Accused. There is no challenge to this fact. The Accused admits she was the one who struck the blows and killed him.

[25] Fourthly, it must be proved beyond reasonable doubt, as indeed must all elements of murder be so proved, that the Accused killed the deceased whilst acting with malice aforethought. Malice aforethought is a legal term covering three possible intents of mind.

[26] It must be proved that the Accused either intended to cause the death of Anil or that she intended to cause grievous bodily harm or that she knew her acts, the blows with the cane knife to the head and neck, would probably cause his death or grievous bodily harm, and that she was indifferent as to whether or not death or grievous bodily harm would be caused, even if she wished it would not be caused.

[27] In this case the Accused told the police in interview her intent was to finish Anil that night so that he would not survive. Two more blows after the neck injury were inflicted she said “to make sure that he is dead.” In his statement in the agreed bundle DC Pradeep Lal remarks at the scene the Accused had said that if Anil was not already dead she will go and kill him. She said if Anil had not been taken to hospital she would have cut off his head and taken it to the police station.

[28] The Accused said in her own evidence to you that she had hit Anil to save her daughters from having their lives spoiled. She knew she said that if she used the knife it might cause serious injury or death. There is sufficient evidence here for you to conclude that she intended at the very least to cause the deceased grievous harm and evidence also that she hit him in order to kill him.

[29] The final element which the prosecution must prove is that she was not acting as a result of being provoked when she struck the blow. The defence of provocation is the litigation issue for your main consideration in this case. Provocation has been raised, and therefore the prosecution must disprove it to the same standard as all of the other elements of the offence, that is to the standard beyond reasonable doubt.

[30] If the prosecution fails to prove to you that the Accused was not acting under provocation or you have a reasonable doubt on this issue, your opinions must be, not guilty of murder but guilty of manslaughter.

[31] The defence is provided for by section 203 of the Penal Code. It reads:

“When a person who unlawfully kills another under circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as hereinafter defined, and before there is time for his passion to cool, he is guilty of manslaughter only.”

[32] If this defence were accepted, it would mean that the killing was still unlawful but that the circumstances of the provocation were such as to reduce the charge from Murder to Manslaughter. Provocation is defined in our Penal Code as “any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self control to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered”.

[33] The provocation is said to have consisted of several years of abuse and ill-treatment by the deceased of the Accused and of her three children. In addition it is said that on the evening in question she and her son were in fear of a beating as a result of his violent and drunken behaviour directed at them, that a beating of the son was attempted on the road, and that she was shamed and enraged in front of her neighbours by the Accused’s loud and obscene taunts and accusations.

[34] It is not just the wrongful acts or insults offered to the Accused that can amount to provocation to the Accused but also what the deceased had been doing to her three children, and was doing that night to her small son, that can amount to provocation to the Accused. You can consider what happened to the children, if you accept it, as part of the build-up of provocation gathering in the Accused’s mind.

[35] You can consider whether or not she snapped that night, bearing in mind the background nature and extent of the abuse meted out to her and to her children before, together with what took place on the night. What might have been contained or absorbed if it had been an unusual or isolated incident might assume greater importance following such a history of events. Was the final abuse, the allegation of her going off to the guesthouse with another man, indeed the last straw?

[36] Next you must consider whether the striking with the cane knife was done in the heat of passion before there was time for her passion, her anger and shame, had had time to cool. When you consider all of the history and the facts, together with the various shameful and violent incidents on that night, was this a piece of cold deliberate planning to do away with Anil, or was it as Ms Malimali has urged on you, a sudden response, a snapping? The facts could fit in with an act done in the heat of the moment, if you accept there was the provocation.

[37] Before considering the evidence dealing with provocation and the necessary questions you must ask yourselves, I will deal with certain matters mentioned in counsel’s addresses.

[38] You were told by prosecution counsel in his opening speech and I have already advised you to rely on facts not speculation. Inferences can only be drawn from proven facts. You were told of “dark secrets” and “subtle facts” and that the Accused was determined that those secrets should not come out.

[39] I must tell you that there is no evidence of any dark secrets concerning the Accused. There was no evidence of any visit to a guesthouse in the morning by the Accused with a councillor or with anybody else. Nor is there any evidence of men visiting her at her house in Vuci Road or at any of the 7 other places where she had stayed with the deceased in the previous 4 years. Nor is there any evidence of her entertaining another man in her upstairs flat for the half hour Anil was away. The evidence points to her being solely with her son.

[40] You may think that if such goings-on had happened, the neighbours would have noticed the comings and goings of such visitors. In view of the unchallenged evidence of sexual misbehaviour by the deceased, the touching of the breasts of the young stepdaughters at night, and the insistence that the Accused sit in the house without her dress reduced to her bra and panties, the suggestion of the Accused’s sexual misconduct was strange. But I must tell you it was a theory without any evidential basis and you should ignore it.

[41] The provocation evidence falls into two categories. First there is the history of abuse over the 4 years when the Accused and her 3 children were living with the deceased. This evidence dealt with the various incidents, the sexual abuse of the young daughters, the beatings administered to all of them, the inadequate support given to them, the failure to pay the rent, the lack of groceries whilst at the same time indulging in excessive daily drinking, the deceased’s degenerate and violent behaviour when drunk, his swearing and verbal abuse, his accusations, his disrespect to the Accused, constant abuse and fighting with the Accused, improper behaviour in front of the children, his disregard for the children, throwing out their clothes, and not wishing to send them to school.

[42] The second category is the evidence of what happened on the day. That day started well and the Accused told you of how they had a good morning at the cinema and of how Anil unusually bought her a few presents. Things went wrong when they got home and he started drinking again. It was after young Krishneel aged 11 had arrived home from school, that the deceased first swore at the boy and chased him away and then ordered his wife to sit before him in the small house just in her panties and bra. The Accused said she could not do this. After more beer he wanted her to go with him and visit his own son. Because their house had no electricity the Accused did not want to leave the house. Her son would have been on his own in the dark.

[43] The next but one neighbour, Shalen Kumar, gave evidence of having heard the Accused’s son on the road “yelling and screaming that this person is hitting me.” Shalen was drinking grog with his brothers when he heard this. He went and intervened and protected the boy and took him next door. Meanwhile he heard the offensive swearing to and about the Accused, and he heard the deceased say he was coming inside the house to beat her up, referring to the Accused.

[44] He accused her of intending to bring boyfriends inside the house if he left. When he returned he started shouting out loudly for the neighbours to hear that she had been with a man to the guesthouse. He also accused her of sleeping with another man whilst he had been away.

[45] Then he broke the louvre blades. She thought he was going to get inside and assault both herself and her son. She broke the louvres on the side so that she and her son could make their escape by jumping out of the first floor window. You may consider this was not a rational step. Undoubtedly both would have been injured by the glass or by the fall if they had jumped.

[46] When the deceased moved away into the compound she let her son out to call for help. He was captured on the road however by the deceased who attempted to assault him. The Accused came out onto the road having seized the knife. She remonstrated but briefly with him asking him which guesthouse had he seen her in, before launching her attack.

[47] The two questions you must answer in considering all of this material including the opinions of the experienced interventionist and the psychiatrist, are as follows. First did deceased’s conduct both on the night and cumulatively during their stormy relationship cause the Accused to lose her self-control? Second, would a reasonable woman with the Accused’s characteristics have reacted to the provocative conduct so as to do what the Accused did that night? You can take into account the deprived and poor upbringing of the Accused, her unhappy background, marriage, and the four years with the deceased, and what had happened to her children at his hands. You may be assisted also in marking the effect all of these occurrences had had upon the children which you would have seen during the course of the children’s evidence. Were they genuine or had they colluded simply to support the mother? The key may lie with the evidence of Krishneel, the 11 year old boy.

[48] The two experts considered this was a typical case of intimate partner violence, sometimes known as battered wife syndrome. They gave their reasons, though they only saw the Accused, not surprisingly, after the event.

[49] In view of the way in which this case has been conducted by the defence, your opinions will be either guilty or not guilty of murder, or not guilty of murder but guilty of manslaughter.

Please now retire to consider your opinions.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused: Legal Aid Commission, Suva