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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 86 of 2008
BETWEEN:
THE STATE
AND:
SEMO RATUMAIYALE
Counsel: Mr. L. Fotofili for State
Mr. A. Naco for Accused
Date of Summing Up: 26th January 2010
SUMMING UP
[1] Madam and Gentlemen Assessors, it is now my duty to sum up this case to you. 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. I will then pronounce the judgment of the Court and your opinions will carry great weight with me in deciding that judgment.
[2] In coming to your opinions you must apply the law as I explain it to you. It is my duty to direct you on the law. Those directions on the law must be followed by you.
[3] However, you decide the facts of the case. As I speak to you, you may feel that I have formed some view on a particular question of fact. If you disagree, then please feel completely free to disregard my version. All matters of fact are for you and you alone. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject. You decide what facts are proved and what inferences you properly draw from those facts. You then apply the law as I explain it to you and decide whether your opinion is guilty or not guilty.
[4] You must come to that decision solely upon the evidence you have heard from the witnesses, which includes the exhibits that have been produced. If you have previously heard anything about this case or the people involved, through the media or some other source – you must ignore that completely. If you have read, heard or come across any media publication about the proceedings during the trial, you must ignore them completely.
[5] The law requires that the Accused is to be judged solely upon the evidence sworn to in this Court. In considering that evidence you are expected to apply your common sense and everyday knowledge of human nature and people. You must please put aside any feelings of prejudice or sympathy which may occur to you one way or the other and arrive at your opinions calmly and dispassionately.
[6] The prosecution tendered photographs (P2) in evidence by consent of the defence. Photographs 2 and 3 are fairly graphic. You must look at them dispassionately and objectively. They are intended only to show you the injury sustained by the deceased. Photographs 5 and 6 show a stick believed to be the weapon used in this case. However, no stick was tendered in court and there is no evidence that the stick shown in these photographs was used by the Accused to hit the deceased. You must disregard photographs 5 and 6 from your consideration.
[7] The charge against Semo Ratumaiyale (the Accused), is set out in the amended information that you each have a copy of. This charge is brought by the prosecution and the onus of proving it rests on the prosecution from beginning to end. There is no onus on the Accused at any stage to prove his innocence or to prove anything else. He does not need to give evidence. In this case he has chosen to do so but he still carries no onus. The law is that the prosecution must prove the essential ingredients of the charge beyond reasonable doubt before there can be a finding of guilty. This means that before you express an opinion that the Accused is guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt about the guilt of the Accused, then you must express an opinion of not guilty. It is only when you are satisfied so that you are sure of guilt, that you may express an opinion of guilty.
[8] The Accused is charged with murder. The prosecution alleges that the Accused on 4 December 2006 assaulted Moape Bati Koroi (the deceased) with a stick, causing fatal injury and thereby caused his death. The prosecution says that the Accused had the criminal intention at that time which makes that killing a murder.
[9] Another crime that can arise from the killing of a person is manslaughter and it is appropriate that I should explain both these crimes of murder and manslaughter to you.
[10] Under our law a person can only be criminally responsible for the death of another if his actions come within the crimes of either manslaughter or murder as descried in the Penal Code. In its simplest terms, the law is this. If a person causes the death of another person by an unlawful act, he is guilty of manslaughter. If in addition to causing the death by an unlawful act, he has what the law calls, "malice aforethought", he is guilty of murder. "Malice aforethought" is a particular criminal purpose or intention that I will shortly explain to you.
[11] In this case, the charge is murder. There are three ingredients that must be proved for this crime:
[12] 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. If a person intentionally strikes another person without legal justification then that is a criminal assault. In such circumstances a person who deliberately punches, kicks or hits another with a weapon is committing an unlawful act.
[13] In this case the prosecution alleges that the Accused hit the deceased on the head with a stick causing head injury. If that is what happened then that would be an unlawful act. The defence says that the Accused did not hit the deceased at all and this allegation is disputed.
[14] To find this element proved, you must be satisfied to the required standard that the Accused did do this unlawful act to the deceased and it was something that inevitable subjected the deceased to the risk of some physical harm.
[15] The second ingredient that must be proved is that the unlawful act caused the death of the deceased. The law requires a link between the unlawful act and the death. Usually the unlawful act causes some specific injury to the deceased and that particular injury causes the deceased’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.
[16] So in this case the prosecution must prove that by an unlawful act in hitting the deceased on the head the Accused caused head injury to the deceased and that injury caused his death.
[17] 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 or state of mind.
[18] It is an intention to cause death or grievous harm to the deceased or knowledge that death or grievous harm would probably be caused, accompanied by indifference whether it is caused or not, or by a wish that it may not be caused.
[19] In the present case the prosecution alleges that the Accused intended to at least do grievous harm to the deceased. Grievous harm means any bodily hurt which seriously or permanently injures health or which is likely to seriously or permanently injure health.
[20] Therefore the prosecution must prove that the Accused hit the deceased causing his death and at that time he intended to cause serious or permanent injury to the deceased or he knew that serious or permanent injury would be likely to be caused to the deceased and he nevertheless went ahead and did it being indifferent, that is having no concern one way or the other, whether serious or permanent injury was caused or not or that he did it wishing or hoping that such injury would not be caused.
[21] An Accused’s state of mind is a question of fact for you to determine as any other question of fact. It is not possible to have direct evidence of this. No witness can look into the Accused’s mind and describe what he was thinking at any particular time. However, it is something that can often be inferred from all the proved facts and circumstances. They include, for instance, what the Accused himself actually did. That will often be a very important matter. A person’s actions, in themselves, may clearly show his purpose or intention. Other matters that may be relevant are what the Accused said and did before the alleged offence. What the Accused said at the time of the alleged offence. What the Accused said and did after the alleged offence, including his statement to the police, and what the Accused said in evidence.
[22] You should consider all the proved facts and circumstances, including those I have just mentioned, and from them you are entitled to draw proper inferences as to the Accused’s beliefs, knowledge, purposes and intentions.
[23] That completes my explanation to you on the crime of murder.
[24] To summarise there are three elements to be proved for the crime of murder. First, an unlawful act. Second, that the unlawful act caused the death of the deceased. The third element of murder is proof of malice aforethought which is the specific intention or knowledge that I have just explained to you.
[25] On the basis of these legal principles that I have explained to you, you must consider the evidence in this case and decide what has been proved. As I said earlier, it is your job to assess the credibility of the witnesses. You recall the witnesses including the Accused were crossed examined on their statements to the police. A previous statement made by a witness is not evidence. What a witness says in court is evidence. However, previous inconsistent statement may be used to cross-examine a witness to show that because he made an inconsistent statement previously, that his evidence in court should not be believed. In assessing the credibility of a witness on the basis of previous inconsistent statement, you may consider whether the inconsistency is on a material issue and the explanation offered by the witness for the inconsistency. You decide who is truthful and to be believed.
[26] In this case the prosecution and the defence have agreed to certain facts. You have been given copies of the Agreed Facts. The Agreed Facts are part of the evidence and you should accept these Agreed Facts as accurate and the truth. They are, of course, an important part of the case. The agreement of these facts has avoided the calling of a number of witnesses, and thereby saved a lot of court time.
[27] I will now remind you of the case for the prosecution and the defence. In doing this it would be tedious and impractical for me to go through the evidence of every witness in detail and repeat every submission made by counsel. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence or a particular submission of counsel, that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.
Prosecution Case
[28] The prosecution called seven witnesses and tendered three exhibits by consent.
[29] The first witness was Josaia Taka. Josaia along with the deceased and two other boys went across the Laqere River to the Nepani side on the night of 4 December 2006. The four boys crossed the river in the deceased’s boat. As they approached the rubbish dump across the river, the settlement along the river were alerted by the barking of dogs. The boys tried to escape in their boat. Josaia said he saw two Indian men coming towards them in a boat. The boys jumped into the river. Josaia and Sireli managed to swim across the river and hid in the mangroves while the deceased and Matai cling to the boat they came in. While Josaia was hiding in the mangroves he heard a Fijian man saying why they were stealing. He could hear the sound of an outboard engine coming from the river. Josaia could not identify the Fijian man because it was dark.
[30] The second witness was Pradeep Kumar. Pradeep resides along the banks of Laqere River. At around 8pm on 4 December 2006 he was at home with his tenant Bhim Deo when he heard a commotion. He went out and saw an outboard boat being driven in the river. At that time he could not recognize who was driving the boat. He said people from the Nepani side were throwing big stones into the river. Pradeep and Bhim Deo got into the river in their boat. He found a boy drowning. Bhim Deo pulled the boy into the boat. After the boy was pulled into the boat, the Accused approached them in his boat and asked him to hand over the boy to him because he knew him.
[31] The third witness was Bhim Deo. He gave a similar account as given by Pradeep. He said he slapped the boy he pulled out because he wanted to jump again into the river. You may think that the evidence of Pradeep and Bhim Deo did not implicate the Accused.
[32] The fourth witness was Malakai Lagi. He is a crucial witness for the prosecution because only his evidence implicates the Accused. The prosecution substantially relies upon the accuracy of the identification of the Accused by Malakai. The defence disputes the identification of the Accused and says that Malakai is mistaken in his identification. I must warn you of the special need for caution before relying on Malakai’s evidence of identification alone as the basis for a conviction. A witness who is convinced in his own mind may as a result be a convincing witness, but may nevertheless be mistaken. Bear in mind that we all make mistakes in thinking that we recognize people even those we know well. That is not to say that you cannot rely on identification evidence. Of course you may, but you need to be careful in deciding whether the evidence is good enough to be relied upon. You should therefore examine carefully the circumstances in which the identification of the Accused by Malakai was made. In assessing the evidence you must consider the following: For how long did he have the person he says was the Accused under observation? At what distance? In what light? Did anything interfere with the observation? Had the witness ever seen the person he observed before? If so, how often? If only occasionally, had he any special reason for remembering him?
[33] Malakai said on the evening of 4 December 2006 he was visiting a house near Laqere River when he heard a commotion from the opposite side of the river. He went to the river bank. The width of the river is about 20 metres. While he was standing at the river bank he saw the deceased near a boat on the Nepani side of the river. He knew the deceased for about 8 months. They played touch rugby together. Malakai said the deceased was about 18 metres away from where he was standing. Malakai said the Accused approached the deceased in his boat. He could recognize the Accused because they played touch rugby before. Malakai had known the Accused for six months. When the Accused approached the deceased, he hit the deceased three times on the head with a stick. The Accused said to the deceased "this is what you Fijians do to the Indians." Malakai said he did not see the deceased again. The Accused had a torch with him. There was light coming from the house on the cliff on the Nepani side and he recognized the Accused in the moonlight. In cross-examination Malakai said he did not hear the deceased scream when the Accused hit him. He did not go to the police for nine months because he thought the Accused was already charged. The inherent weakness in the evidence is that the identification was made in the dark with only moonlight and light coming from the houses along the river bank and from a distance of 18 meters. Against these matters you must weigh the warning that I earlier gave about the possibility of identification witness being perfectly honest and convinced but nonetheless mistaken.
[34] The sixth witness was Ana Hoit Ratu. She identified the deceased body when it was found floating in Laqere River on 6 December 2006.
[35] The seventh witness was DC Puamau who interviewed the Accused under caution. The caution interview (P1) is not in dispute. The caution statements are both evidence against and for the Accused. What weight you attach to the caution statements of the Accused is a matter for you. In his interview the Accused said on the evening of 4 December 2006 he was at one Tarik’s house near the banks of Laqere River watching a movie when he heard a commotion. He showed his torchlight towards the river and saw a punt with three people in the river trying to hide by the side of a boat. He said that it was a clear night with moonlight. The Accused got into his boat and after starting the outboard engine drove towards the spot he saw the boys. As he was about to reach the spot, he saw two boys swimming towards the mangrove. He could not see where the third boy had gone. He then proceeded to Pradeep’s boat who had got hold of Matai. He knew Matai and asked Pradeep to hand over the boy to him. The Accused said he did not see the deceased at all on that night. He said he never hit the deceased.
[36] You also have before you the post mortem report (P3) of the deceased which was tendered by consent. The post mortem examination of the deceased revealed that he had sustained a 6 x 1cm tear on the front surface of the skull. The deceased died of raised intra-cranial tension due to intracranial haemorrhage as a complication of blunt impact to the head.
[37] That was the prosecution case.
Defence Case
[38] The Accused gave evidence, mostly consistent with his caution statements. The Accused said he did not see the deceased at all on the night in question and he did not assault him. In cross-examination the Accused said he was forced by the police to implicate Pradeep. His evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
[39] You will generally find that an Accused gives an innocent explanation and one of three situations then arises:
[40] The second witness for the defence was Mataiasi Nakaulave. Matai said he was in the river on the night in question with the deceased and two other boys. He said that people from the Nepani side of the river threw stones at them. He saw the Accused got into his boat and come straight to him. He only recognized the Accused when his boat came closer to him. He did not see the Accused hitting the deceased. He did not hear the deceased scream. Matai said he was pulled out of the water by two Indians and was assaulted by them. The Accused intervened and stopped the assault.
[41] That was the defence case.
Analysis
[42] It is not in dispute that on the night of 4 December 2006 the deceased sustained a head injury while he was in the Laqere River with his friends and that injury caused his death. It is not in dispute that the Accused was present in the river when the deceased got injured. What is in dispute is whether the Accused caused the fatal injury to the deceased by an unlawful act and whether he did so with malice aforethought.
[43] The prosecution is asking you to accept the evidence of Malakai Lagi as credible and reliable. Malakai saw the Accused hit the deceased three times on the head with a stick. The prosecution says that the lightening condition in the river was sufficient for Malakai to recognize the Accused. The prosecution says Malakai is not mistaken about the identity of the Accused because he had known him from before.
[44] The defence says Malakai is mistaken about the identity of the Accused. His identification was made in dark and in circumstances that make the identification unreliable. The defence says other witnesses who were present in the river and who gave evidence did not see the Accused assault the deceased nor did they hear the deceased scream if he indeed was assaulted by the Accused. The defence is asking you to reject Malakai’s evidence as being unreliable.
[45] You must first of all consider whether you accept the identification evidence bearing in mind the direction I gave earlier on the need for special care before acting on such evidence alone to convict. If you are not satisfied beyond a reasonable doubt that the Accused assaulted the deceased in the manner described by Malakai Lagi, then there is no unlawful act and your opinion must be not guilty.
[46] If you are satisfied beyond a reasonable doubt that the Accused committed an unlawful act by assaulting the deceased in the manner described by Malakai Lagi, then go on to consider whether the deceased’s death was caused by the unlawful act of the Accused. If you accept the medical evidence of cause of death, then you can have no doubt that the deceased sustained a blow to his head that led to his death.
[47] If you are satisfied beyond a reasonable doubt that the death of the deceased was caused and that it was caused by an unlawful act of the Accused, then you must decide whether it was done with malice aforethought, that is, whether the Accused either -
(a) Intended to cause the death of the deceased or
(b) Intended to cause him serious injury or
(c) Knew that his act would probably cause death or
(d) Knew that his act would probably cause serious injury.
[48] If you are not satisfied beyond a reasonable doubt that the Accused had malice aforethought you will render opinions of manslaughter.
[49] If you are satisfied beyond a reasonable doubt that the Accused acted with malice aforethought you will advise me that he is guilty of murder.
[50] You will have to evaluate all the evidence when you consider the charge against the Accused has been proved. Remember the Accused carries no burden to prove anything. The burden is on the prosecution to satisfy guilt beyond a reasonable doubt.
Conclusion
[51] Madam and Gentlemen assessors, that concludes my summing up of the law and the evidence in this particular trial.
[52] We have now reached the stage where you must retire to your room to deliberate together and form your individual opinions on the charge against the Accused. You may have with you any of the exhibits that you would like to consider.
[53] When you have reached your separate decisions you will all come back into Court and you will each be asked to state your opinion as to whether the Accused is guilty or not guilty of the charge. The possible opinions you could have in this case as I have already explained to you are that the Accused is guilty of murder or guilty of manslaughter or not guilty of any offence.
[54] Would you please now retire to consider your opinions? When you have made your decisions would you please advise the Court officer and the Court will reconvene to receive your opinions?
[55] Thank you.
........................................
Daniel Goundar
JUDGE
At Suva
Tuesday 26th January 2010
Solicitors:
Office of the Director of Public Prosecutions, Suva for the State
Naco Chambers for the Accused
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