State v Farik [2008] FJHC 25; HAC054.07 (29 February 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 54 OF 2007

STATE

v.

MOHAMMED FARIK
DANIEL KARAN
LOUISE VALERIE

Hearing: 18th February – 29th February 2008
Summing Up: 29th February 2008

Counsel: Mr. A. Ravindra-Singh for State
Ms J. Nair for 1st & 2nd Accused
Mr. A. Naco for 3rd Accused

SUMMING UP

Madam Assessor and Gentlemen Assessors

It is now my duty to sum up to you. In doing so, I will direct you on matters of law which you must accept and act upon. On matters of fact however, which witnesses to accept as credible and reliable, what evidence to give weight to, these are entirely matters for you to consider and decide for yourselves. So if I express my opinion on matters of fact, or if I appear to do so, you may disregard what I say and form your own opinions. In other words you are the masters of fact.

Counsel have made strong submissions to you about how you should find the facts of this case. That is in accordance with their duty as counsel. If you wish to adopt their submissions you may do so, if they appeal to your own judgment and common senses. But it is open to you to form your own opinions.

In arriving at your conclusions, you should only consider the evidence led in this case. You should disregard anything you might have heard about the case outside the courtroom. You should also disregard media reports on the case. It is you who are the representatives of this community at this trial. It is you who must decide on your own opinions.

I am not bound by your opinions but I will give them the greatest weight when I come to deliver my judgment. Your opinions need not be unanimous but it is desirable that they should be.

This is a criminal trial and the Accused persons are presumed to be innocent until they are proved guilty. The burden of proving their guilt rests on the prosecution and never shifts. The standard of proof is proof beyond reasonable doubt. This means that at the end of the case, you must be satisfied so that you are sure of the guilt of the Accused before you can give me your opinions that they are guilty. If you have any reasonable doubt about either of the two elements of the offence, you must return an opinion that they are not guilty.

The Accused persons are charged with the offence of manslaughter. Manslaughter is the killing of someone by an unlawful act. The Information alleges that on the 7th of April 2007 at Caubati in Suva, the three accused unlawfully killed Sisaro Savou. However as you have heard the prosecution now concedes that there is evidence of manslaughter only against the 1st Accused.

The offence of manslaughter has two elements which the prosecution must prove to you beyond reasonable doubt.

The first is that the Accused did an unlawful act. The second is that they thereby caused the death of the deceased. An unlawful act is one which is not justified by law. So if any of the accused for instance acted in self-defence, he or she was not acting unlawfully.

In relation to the second element, that is, of causation, this term is defined by the law as meaning that the accused was responsible for the substantial or immediate cause of death. I must also define the offence of common assault, because if you find the Accused not guilty of manslaughter but guilty of common assault then you must first be satisfied so that you are sure that there was an assault. Common Assault is the assault of a person without lawful excuse. The prosecution does not have to prove that the assault resulted in any injury. But you must be satisfied so that you are sure that the Accused did assault the deceased, and that he or she did not act without lawful excuse. If the Accused acted in self-defence for instance, you cannot find them guilty of any offence.

The three Accused are jointly charged. You must consider the evidence against each separately and you must not assume that because one accused is guilty that the other two are also guilty. The facts are different for each Accused and you must consider the evidence against each separately.

Each Accused has raised the issue of self defence. In law every person is entitled to defend himself or herself, or a member of his/her family, and to do everything reasonably necessary to protect himself or herself from attack or injury. What is reasonably necessary is a matter for you to consider on the facts and the circumstances of the case. If you are of the opinion that the deceased attacked the accused, and that one or other of the Accused acted in self defence, you must ask whether the assaults on the deceased as described by the 2nd and 3rd Accused, and the other witnesses, were reasonably necessary to defend themselves. Remember that when someone is suddenly attacked he or she may not have the time to weigh up what defensive action is reasonably necessary. You must also ask whether the person attacked did what he/she did in the honest belief that the assault was necessary. The law allows us to defend ourselves. It does not allow us to take revenge or to punish others for an attack on ourselves. In considering what was reasonably necessary you should also ask yourselves what a reasonable person have done in the Accused’s shoes?

In considering self defence you must ask yourselves the following:

1. Was the Accused attacked by the deceased?

2. Did the Accused assault the deceased to defend himself or herself from attack?

3. Did the accused do what was reasonably necessary to protect himself or herself, taking into account the nature of the attack and the Accused’s own belief?

Once self-defence is raised by the defence, it is the prosecution which must prove beyond reasonable doubt that the Accused were not acting in self-defence. There is evidence that everyone involved in the incident was intoxicated. Intoxication is not a defence to a criminal charge, and in assessing whether or not a reasonable person would have done what the Accused did, you must assume that the reasonable person is a sober person. In other words, it is no excuse in law to say you are so drunk that you acted in unreasonable self-defence.

In this case both prosecution and defence rely on the contents of the Accused’s statements to the police. It is a mater for you what weight you wish to put on each statement. You will see that the statements are not entirely consistent with each other. It is for you to decide which version of the facts to accept. However, as a matter of law, I must direct you that what one accused says in his or her caution interview is not evidence against the other accused. For instance the 2nd Accused in his interview says that he saw the 1st and 3rd Accused assaulting the deceased. Well that is not evidence against the 2nd and 3rd Accused. A caution statement is only evidence against the maker of it.

However, when an accused person goes into the witness box to give sworn evidence, that is entirely a different story. In that case you can consider what one accused says about another because it is on oath. So for instance, what the 3rd Accused said in the witness box about the 1st Accused, is evidence against the 1st Accused, if you accept what she said about him.

I will now summarise the prosecution case, and then the defence case.

The prosecution evidence

The prosecution case was not long and it must still be fresh in your minds. On the 7th of April 2007, the deceased Sisaro and two of his friends were drinking at a roundabout in Veiniu. They then went to watch the Adelaide 7’s game at the house of one Varani. Fiji lost the game at about 10pm. They went to buy cigarettes. There is evidence that Sisaro was swearing because Fiji had lost the game. They went to Mama’s Place, a shop in Caubati. The 2nd Accused Danny was in his mother’s house also in the same road. He came out to see why Sisaro was swearing. Tevita Matawai saw them talking and saw them fighting each other. They threw punches to each other, then in the course of the fight they both fell into the drain. Then they both stood up and the 3rd accused came out. Tevita Matawai ran over to them. When he reached them, he saw Sisa fall to the ground. The 2nd and 3rd Accused were there with another man. Sisa fell on the footpath and there was blood coming out of his mouth. Tevita ran after Danny (the 2nd Accused) who ran back into his house and came out with a knife. The 3rd Accused then gave a bottle of water to Tevita who put the water on the deceased and tried to revive him. He agreed that he, the deceased, and the Accused were very drunk at the time.

His friend Tevita Keteca was PW2. He gave similar evidence except that he saw the 2nd Accused and Sisaro arguing and he saw Sisa threw a punch at Danny. He saw Sisa fall backwards on the footpath but he did not see who punched him. He said that Sisa spoke to him after he fell and said he want to drink water. He got water at Danny’s home and gave it to Sisa. He said that Danny came running out with a cane knife, that he pushed Tevita Keteca and that Sisa again fell to the ground. Under cross-examination, these witnesses said they did not see if any of the 2nd Accused’s punches landed on Sisa.

Then the statements of each Accused were tendered. The defence does not dispute that the Accused made those statements to the police. You may think that they give you considerable insight to the events of that night.

The 1st Accused was interviewed on the 8th of April 2007 at Valelevu Police Station. He told the police that he was employed as a taxi driver and that on the 7th of April in the evening, he went to the house of the 2nd Accused at Mama’s Place, Caubati. The 2nd Accused was his friend and there was a gathering at his home. He, the 2nd Accused and his partner the 3rd Accused were drinking beer together from 8pm, in the verandah. The 1st Accused said that some Fijian youths were swearing and shouting as they walked towards the roundabout. He said that when he heard Sisaro, the deceased swearing the 2nd Accused got up and went down the driveway into the street. The 1st Accused said he saw the 2nd and 3rd Accused were in the street and he saw the 2nd Accused fall into a drain and the 1st Accused stopped the deceased and his friends from punching the 2nd Accused where he had fallen. He told the Fijian boys to go home and they stopped fighting. While the 2nd Accused was getting out of the drain the deceased attacked Louise the 3rd Accused. His interview then reads:

"Sisa attacked Louise and started to punch her and I tried to stop Sisa from punching Louise and Sisa attacked me and after receiving 3 to 4 punches from Sisa I punched him once on the face trying to defend myself and Louise. After receiving a punch from me Sisa grabbed me and Louise and tried to drag down and in the process he fell pulling me and Louise down together. After falling down looked up and saw he was unconscious. I told Louise not to punch Sisa as he was unconscious and I took Louise up away."

He then said that as he left, he was again attacked by Sisa’s friends and he punched them to defend himself. They then went away. Later he said that when Sisa fell, he fell on a concrete footpath.

The 2nd Accused Daniel Karan told the police that he heard people swearing near the footpath at Mama’s Place and he shouted at them telling them not to swear. He said the deceased started coming up the driveway, and the deceased struck a punch at the 3rd Accused. The 2nd Accused struck a punch at the deceased when he was himself punched by Sisa’s friend. Danny fell in the drain. Sisa then attacked the 3rd Accused. The 1st Accused defended her and punched Sisa. The 2nd Accused then said he went to his mother’s house and brought out a knife to threaten Sisa. He saw Sisa lying on the footpath. His friend ran away and another boy stood by and watched. The police then came. Later he said that he had not punched Sisa at all and that none of his punches landed on him.

The 3rd Accused said that she followed Daniel down the driveway when she heard the sound of swearing. Sisa came and punched Daniel and Daniel fell into the drain. The deceased then attacked the 3rd Accused who received injuries to her cheek. Then the 1st Accused came and started to fight with Sisa. She saw the 1st Accused punch Sisa, and she saw Sisa fell onto the footpath. He did not move but she was still angry so she punched him on the head. She realized that he was unconscious and went to get water for him. Later in the interview, she said she punched him twice.

The 3 Accused also gave charge statements. The 1st Accused said that he had no intention of hurting anyone but that he had been trying to stop a fight. The 2nd Accused said that when he went down the driveway to ask the deceased and his friends why they were swearing, one of them punched the 3rd Accused. The 2nd Accused threw a punch at the deceased which missed him, then another boy punched him causing him to fall into the drain. When he fell down Sisa was punched by the 1st Accused and he fell down on the footpath.

The 3rd Accused said that it was the deceased who had started the fight and that he had punched the 1st Accused and her partner the 2nd Accused. She said that the deceased was punched by the 1st Accused and that she had also punched him on his side but that was not strong.

Remember what I said earlier about these statements. What one accused says about another in an out-of-court statement is not evidence against the co-accused. It is only evidence against the maker of the statement.

You also heard evidence from the consultant forensic pathologist Dr. Prashant Samberkar. The post mortem examination of the deceased showed no skull fracture but showed haemorrage with blood clots around the brain stem. There were no external marks of injury and the cause of death was traumatic intracranial haemorrage. If you recall, the doctor said that this injury was caused either by a single blow or multiple blows on the head. These blows, or blow caused the haemorrage and caused the brain to swell and bleed around the brain stem. This caused the death of the deceased. It is not in dispute that this was the cause of the deceased’s death.

The prosecution called several witnesses who helped to load the deceased into the police van which conveyed him to hospital. The defence suggested that the deceased was thrown into the van, perhaps accounting for some or all of the trauma. However these witnesses denied that and described the way the deceased was taken into the van. According to their evidence the deceased was lying motionless on his back and that his pulse stopped while he was still lying on the road.

That was the case for the prosecution.

The defence case

At the end of the prosecution case you heard me explain several options to the accused persons. They had these options because the prosecution at all times has the burden of proving their guilt. They don’t have to prove anything they could have remained silent, they could have made unsworn statements or given sworn evidence. They chose to give sworn evidence and to subject themselves to cross-examination. You must give their evidence careful consideration.

The 1st Accused Mohammed Farik said that he had been drinking at Daniel’s mother’s house with Daniel and Louise. He heard swearing from the footpath and thought that the swears were directed at them. Daniel got up and walked down the driveway followed closely by Louise. Farik tried to stop them and followed them to stop any fight. He saw Sisa assaulting Louise and he punched Sisa to protect her. Sisa fell down trying to drag both of them and lay motionless. Louise punched him and then went to get water for him. He said that he only punched Sisa in self-defence.

The 2nd Accused Daniel said that when he heard the swearing he believed it was directed at them and that Sisa and his friend were coming up his driveway. He went down to intercept them and asked them why they were swearing. He threw a punch at Sisa after Sisa hit Louise. Sisa’s friend hit Daniel causing him to fall into the drain. When Daniel climbed out of the drain Sisa was lying on the footpath.

Louise, the 3rd Accused said that it was she who asked Sisa why he was swearing, and that she did that to deflect tension because she is a Fijian woman. However after Sisa and Daniel had an exchange causing Daniel to fall into a drain, Farik arrived. He saw Sisa hitting her and had an exchange of blows with Sisa. Sisa fell down and lay motionless. Louise was angry and slid down the slope after him. She punched him but when she realized he was seriously hurt she ran to get water for him. She said that there were some inconsistencies in her caution interview because she was shocked the day after the incident and her recollection was patchy.

The three Accused tendered medical reports which showed that each of them received injuries as a result of the incident.

That was the case for the defence.

Summary of the Prosecution Case

The prosecution case is that the deceased died of head injury and brain haemorrage as a result of the 1st Accused’s assault on him on the 7th of April 2007.

The prosecution case is that each accused person assaulted the deceased but that it was the 1st Accused’s punch causing Sisa to fall onto the footpath where he lay motionless which caused death.

The prosecution says that each accused person punched Sisa, that they acted unlawfully, that the incident had occurred because the 1st Accused had challenged Sisaro and that the accused did not act in self defence but in anger and in retaliation for the swearing.

The prosecution asks you to convict the 2nd and 3rd Accused of common assault, and the 1st Accused of manslaughter.

A summary of the defence cases

The defence position is that there was no unlawful act, that Sisaro was the author of his own misfortune, that he was the aggressor and was coming to attack the 3 Accused and that the Accused had tried to prevent a fight.

The 1st Accused’s position is that he only exchanged punches with the deceased to defend himself and Louise and that the deceased fell while trying to drag the 1st and 3rd Accused down. The 1st Accused denies any unlawful act, and denies causing the deceased’s death.

The 2nd Accused says that he never assaulted the deceased at all and that he fell into the drain after he was assaulted by the deceased’s friend. The 2nd Accused’s position is that he tried to hit Sisa to protect his wife, that he did not assault him, and that he is not guilty of any offence.

The 3rd Accused admits punching the deceased but says she only punched in anger after he was already lying motionless on the footpath. Her counsel agrees that she is guilty only of common assault.

The Issues

The issues for you in this case are:

1. Did the 1st Accused cause the death of the deceased? Did the 2nd Accused assault Sisaro? Did the 3rd Accused assault Sisa in self defence? Was Sisaro’s death caused solely and substantially by the way the defence says he was loaded into the police van?

2. Next you must ask yourselves whether each acted unlawfully? Or did they act in self-defence? Did Sisaro attack the 2nd and 3rd Accused? Did they honestly believe that they were defending themselves and did they only do what was reasonably necessary to defend themselves from attack?

Did Sisaro attack the 3rd Accused and did the 1st Accused come to defend her? In defending her and himself did Sisaro drag them down and hit his head by accident? Or did the 1st Accused punch Sisaro in anger causing him to fall backwards and hit his head on the footpath? Was the 1st Accused acting in lawful self defence or was he acting in anger and revenge?

Once the defence raises the issue of self- defence, it is for the prosecution to prove beyond reasonable doubt that self-defence is not the motivation behind the assaults.

3. If you are satisfied beyond reasonable doubt that the 1st Accused acted unlawfully and caused the death of Sisaro, then you may find him guilty of manslaughter. If you have any reasonable doubt about whether he caused his death, or whether he acted unlawfully, you must find him not guilty of manslaughter. If you have a reasonable doubt that he caused Sisa’s death, but are satisfied beyond reasonable doubt that he assaulted the deceased in anger and not in self-defence you may find him guilty instead of common assault.

4. In relation to the 2nd and 3rd Accused, if you are satisfied beyond reasonable doubt that each assaulted the deceased, and did so not in self-defence, you may find them guilty of common assault.

Your possible opinions for the 1st Accused are:

1. Guilty of manslaughter; or
2. Not guilty of manslaughter but guilty of common assault; or
3. Not guilty of any offence.
   

For the 2nd Accused your possible opinions are:

1. Guilty of common assault; or
2. Not guilty of common assault.
   

For the 3rd Accused your possible opinions are:

1. Guilty of common assault; or
2. Not guilty of common assault.
   

Remember to consider the case of each Accused separately. You may now retire.

Nazhat Shameem
JUDGE

At Suva
29th February 2008