State v Fraser [2010] FJHC 123; HAC118.2006 (14 April 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 118 OF 2006

STATE

V

JACK ANTHONY FRASER

Miss I. Whippy with Miss L. Vateitei for the State
Mr. H.A. Shah for All Accused

SUMMING UP

[1] Madam and Gentlemen assessors; we have now come to the stage in the trial where it is my duty to sum up the evidence to you; and to direct you on the law. You will then be required to deliberate together and each of you must give a separate opinion whether the accused is guilty or not guilty of the charge.

[2] Our functions in this trial have been quite different throughout this trial.The law has been my area of responsibility and I must now give you directions as to the law which applies in this case. When I do so, you must accept those directions and follow them.

[3] The facts of this case are your responsibility. You will wish to take into account the arguments in the speeches you heard yesterday but you are not bound to accept them. Equally, if in the course of my review of the evidence I appear to express any views concerning facts, or emphasise a particular aspect of the evidence, do not adopt those views unless you agree with them and if I do not mention something which you think is important you should have regard to it and give it such weight as you think fit. When it comes to the facts of this case it is your judgment alone that counts.

[4] In arriving at your conclusions you must consider only the evidence you heard in this case. You must disregard anything you heard from friends, relatives or through any media outlet about this case. You must ignore any suggestions or advice made to you by anyone, no matter how well meaning it may be.

[5] You must decide this case only on the evidence which has been placed before you that includes witnesses and exhibits which have been produced. There will be no more evidence. You are entitled to draw inferences that is to come to common sense conclusions based on the evidence which you accept, but you must not speculate about what evidence these may have been or allow yourselves to be drawn into speculation. Mr. Shah suggests that the State could have produced more evidence, for example with regard to number plates and evidence as to the contract to kill, however they didn’t and it is not for you to speculate why they did not. You must judge the facts on the evidence before you.

[6] In assessing the evidence, you are at liberty to accept the whole of a witness evidence or accept part of it and reject the other part or reject the whole. In deciding on the credibility of any witness you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness 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 reliable?

[7] As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding upon any proposition put to you and in evaluating the evidence in this trial. You are to ask yourselves whether it accords with common sense or is it contrary to common sense and experience.

[8] I ask you to please put aside any feelings of prejudice you may have against certain people and to put aside any sympathy you might feel for anyone connected with the trial. This court room has no place for sympathy or prejudices – you must arrive at your opinions calmly and dispassionately. You may feel sorry for the widow, you may think that murderers are revolting. These matters are of course irrelevant. You will look at the evidence dispassionately and come to your verdict accordingly.

Onus and Burden of Proof

[9] In this case, as in every case in Fiji, the prosecution must prove that the defendant is guilty. He does not have to prove his innocence. In a criminal trial the burden of proving the defendant’s guilt is on the prosecution.

[10] How does the prosecution succeed in proving the defendant’s guilt? The answer is – by making you sure of it. Nothing less will do. If after considering all the evidence you are sure that the defendant is guilty you must return a verdict of "Guilty". If you are not sure, your verdict must be "Not Guilty".

The Offence of Murder

[11] The accused person, Jack Fraser, is charged with the offence of murder contrary to section 199 of the Penal Code, Cap. 12 Laws of Fiji. It is alleged that on the18th day of September 2006 he murdered Kamlesh Narandass Nanda at Nadi.

[12] Murder is committed when a person causes the death of another person by an unlawful act with malice aforethought. Malice aforethought is an old fashioned legal phrase which is the state of mind required to be proved in the offence of murder.

[13] The prosecution must prove beyond reasonable doubt three essential elements of the offence of murder:

1. That the accused did an unlawful act.

2. That the unlawful act caused the death of the deceased.

3. That the accused acted with malice aforethought.

[14] An unlawful act is something done by a person that is against the law. A very common example of an unlawful act is where a person deliberately applies force to another person without legal justification such as self defence. If a person intentionally strikes another person without legal justification then that is a criminal assault. Stabbing somebody in the side with a sharp dagger is definitely an unlawful act.

[15] The second ingredient that must be proved is that the unlawful act caused the death of the victim. The law requires a link between the unlawful act and the death. Usually the unlawful act causes some specific injury to the victim and that particular injury causes the victim’s death. Usually the unlawful act causes an injury which is the sole cause of death. But it is sufficient if it is an operating or substantial cause of death. The doctor’s evidence is relevant here. She says that the death was caused by excessive blood loss due to multiple stab wounds on the left lateral chest and on the upper back (left side). You will probably have no trouble in finding that the stabbing, that is the unlawful act was the cause of death.

[16] The third element that must be proved for the crime of murder is that the person who caused the death of another by an unlawful act did so with "malice aforethought". This is an old legal term which describes a particular intention of state of mind. It is an intention to cause death or very serious harm to the victim or knowledge that death or very serious harm would probably be caused, accompanied by indifference whether it is caused or not. So the prosecution must prove beyond reasonable doubt either that the accused intended to kill the deceased or to do him serious injury or that he knew by stabbing Kamlesh in the side that death or serious harm would probably be caused. He does not have to intend death, it is enough for murder if he just intends to cause him serious harm, and death results.

[17] This has not been a very long case and I am sure that the evidence is still fresh in your minds but I am going to remind you of the thrust of the Prosecution case. We heard first from the family and friends of the deceased. His employer and close father figure gave us background information then told us of hearing a scream when he was watching TV. He looked over to the deceased’s house and saw a car backing off and taking off at great speed. It was about 8.00 to 8.10pm. When he got there he saw that Kamlesh was bleeding. He and the neighbours managed to get him into a car and take him to hospital where he was pronounced dead. The deceased’s wife tragically gave us more background. I remind you here again that you must not judge this case on sympathy for the family – it is to be judged solely on the evidence. Eramasi told us about Jack coming to him at about 8pm on the 18th September asking him to dispose of bloody clothes, number plates and a bloody dagger knife. He bent the number plate and threw it into the river with the knife. He kept the canvas shoes and pants but burnt the jacket and the cardboard number plate.

[18] We then heard from a series of Police witnesses who told us about the arrest of Jack Fraser, his holding in the Police Cells in Nadi and his cautioned interviews over 4 to 5 days in early October 2006.

[19] The Prosecution says that the defendant made a confession on which you can rely. The defence says that although he made the confession it was obtained by oppression and assaults and that it is not true. They say that the accused was held so long in the cells at Nadi Police Station that it was oppressive and he therefore made up this story. The prosecution says that he had to be kept for 4 to 5 days because new evidence came to light which needed explanation. The defence suggests that with proof that he lied in his first statement, you cannot be sure that he is not lying in these confession statements. If you think that the confession was or might have been obtained by oppression or assaults you must disregard it even if you think it was or may have been true. If however, you are sure that the confession was not obtained in this way, and that it was true, you will take it into account when considering your verdict.

[20] The accused did not give evidence. That is his right. He is entitled to remain silent and to require the prosecution to make you sure of his guilt. You must not assume he is guilty because he has not given evidence. However, having said that, the answers in the statement under caution are evidence for you to consider in the normal way, if as I have said you think they were not obtained by oppression or assaults.

[21] You will see in the statement, and Mr. Shah has drawn this to your attention, that the accused was very drunk on rum and high on marijuana when he stabbed Kamlesh. You must not convict unless you are sure that the accused when he did stab intended to do so. In deciding whether he intended to murder you must take into account the evidence that he was drunk and drugged. If you think that because he was so drunk and high he did not intend to murder then you must find him not guilty. But if you are sure that, despite his drunkenness he intended to murder then this part of the case is proved against him. A drunken intent is still an intent. What is more it is not a defence for the accused to say that he would not have behaved in this way had he not been drunk and affected by drugs. If you accept the statement as true you will be helped on the matter of intent from that. There is evidence in the statement that he formed the intent to kill long before he got drunk but then again it is intent at the time of stabbing that is relevant. It is a matter for you to decide.

[22] You will now retire to consider you opinions. I am not bound by your opinions but I will give them the utmost weight when I come to the final judgment of the Court.

[23] The opinions that you can return are only guilty or not guilty. Let the clerks know when you are ready and I will reconvene the Court.

Paul K. Madigan
Judge

At Lautoka
14 April 2010