State v Ali [2010] FJHC 164; HAC010.2008 (18 May 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 010 OF 2008

STATE

V

TAZ LIAKAT ALI
f/n Farzan Ali

Ms L. Vateitei with Ms I. Whippy for the State
Mr. H.A. Ali Shah for the Accused

SUMMING UP

Madam and Gentlemen Assessors.

[1] 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.

[2] 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.

[3] In arriving at your conclusions, you should only consider the evidence led in this case. In this regard, Mr. Shah asks you to take into account the lack of missing medical evidence. You are not to take into account anything not before you. You are to judge the case on the evidence you have heard, alone. 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.

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

[5] This is a criminal trial and the Accused person is presumed to be innocent until he is proven guilty. The burden of proving his 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 he is 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.

[6] The Accused person is charged with the offence of manslaughter. Manslaughter is the killing of someone by an unlawful act. The Information alleges that on the 11th of October 2007 at Nadi, the Accused unlawfully killed Richard Tavua.

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

[8] The first is that the Accused did an unlawful act. The second is that he thereby caused the death of the deceased. An unlawful act is one which is not justified by law. A punch to the jaw is an unlawful act but if the Accused for instance acted in self-defence, he was not acting unlawfully.

[9] 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.

[10] The 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 Accused then acted in self defence, you must ask whether the assault on the deceased as described by the witnesses, was reasonably necessary to defend himself. Remember that when someone is suddenly attacked he or she may not have the time to weigh up what defensive action is reasonable necessary.

[11] 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 ask yourselves what a reasonable person have done in the Accused’s shoes?

[12] 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 from attack?

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

[13] Once self-defence is raised by the defence, it is the prosecution which must prove beyond reasonable doubt that the Accused was not acting in self-defence.

[14] In this case both prosecution and defence rely on the contents of the Accused’s statement to the police. It is a matter for you what weight you wish to put on the statement.

[15] I will now summarize the prosecution case, and then the defence case.

The Prosecution Evidence

[16] The prosecution case was not long and it must be still fresh in your minds. Mrs Tavua told us how her husband the deceased, had not come home on the 11th October but when she saw him on the 12th he was lying down with a swollen face. He had blood on his face – he said he had been in hospital but they did nothing. He was vomiting and his head felt it was going to burst. On the 13th she was told at work that he had passed away. In cross-examination she told us of the past criminal record of her husband and that he had a problem with alcohol and that he was a tall, heavy man.

[17] Sosiceni Koroi was at the scene and he was one of two witnesses who said he saw the Accused throw a punch at Richie. He saw no physical contact between the two of them.

[18] Pita Basaga told us of buying milk for Richie because he was sick, of going to his house where they found him on the bathroom floor. They took him to hospital where he was subsequently pronounced dead. Jone Qoro backed up this story.

[19] Inoke Waka was a second witness who said he saw the Accused punch Richie, but because big Richie was between him and the Accused he could not see where the punch landed. He saw Richie fall to the ground with blood on his mouth and an injury to the back of his head.

[20] Temesi the policeman was on patrol in Nadi town at the time. He saw a commotion and then saw Richie with blood on his face and smelling of liquor. He was unconscious. He took him to the hospital where he walked in unaided. Other police witnesses told us of the interview the Accused gave and of the formal charge that was made. You will remember that in the caution statement the Accused said that he pushed Richie and he fell on to the concrete footpath. He did that because Richie was pressing on his neck and he felt the pain. He told the same story in the answer to charge.

[21] We heard from the clinical pathologist from Lautoka Hospital. She did not prepare the report into Richie’s death because that doctor has gone to Australia for further study. Dr. Tudravu is however familiar with her work and was able to explain the post mortem report to us. She said that an internal examination revealed a blood clot at the back of the covering of the scalp, bones were fractured at the back base of the skull and around the clot brain substance was beginning to die out. She said that the cause of death was severe brain trauma secondary to a blunt force trauma to the head.

[22] You may find that these injuries are consistent with the impact of the back of the head with a concrete pavement, but Mr. Shah asks you to consider the lack of a medical report relating to the deceased’s medical condition on the 11th and 12th, and he also asks you to consider the possibility of intervening injury to the head between the fracas in Nadi town and his death.

[23] It is of course a matter for you as Judges of the facts, but you should bear in mind that the unlawful act, if indeed you find there was one, need only be the substantial cause of death. You will also bear in mind the complaints of head pain of the deceased in the couple of days between being hit and between death. If you think that the punch was not the cause of death, or if you are not sure, you will find him not guilty. If however you think that the Pathologist has persuaded you that the falling on to the pavement was the substantial cause of death with its blunt trauma, then you can go on to find him guilty if again you think he punched Richie. Bear in mind too that Richie was large and heavy so the impact of his head on to concrete would have very serious consequences.

The Defence Case

[24] At the end of the prosecution case, you heard me explain several options to the Accused. He had these options because the prosecution at all times has the burden of proving his guilt. He doesn’t have to prove anything – he could have remained silent. He chose to give sworn evidence and subject himself to cross-examination. His evidence is therefore for you to take into consideration bearing in mind however that he doesn’t have to prove anything.

[25] He told us that on the 11th October 2007, he was sitting with friends. Richie came by and was swearing at them all in general. The Accused went into an arcade and then came out when Richie grabbed his neck and he couldn’t breath. He pushed him away and then he crossed the street to evade any more aggression from him. Three days later he was charged and a medical examination revealed no bruising or swelling.

That was the case for the defence.

[26] So that is all the evidence Madam and Gentlemen. The prosecution’s case is that the deceased died of head injury as a result of the Accused’s punch on the 11th October 2007. That blow caused him to fall onto the footpath thereby causing the head injury. They say that in punching he acted unlawfully and that the Accused did not act in self-defence because Richie never touched him.

[27] The defence say that there was no unlawful act, there was no punch, and the Accused was trying to defend himself from Richie’s strangle-hold.

Issues

[28] The issue for you in this case are:

1. Did the Accused cause the death of the deceased?

2. Did the Accused act unlawfully? Or did he act in self defence? Did he honestly believe that he was defending himself and did he only do what was reasonable necessary to defend himself from attack?

[29] 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 assault.

[30] If you are satisfied beyond reasonable doubt that the Accused acted unlawfully and caused the death of Richie then you will 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. Your possible verdicts are:

1. Guilty

2. Not Guilty

You may now retire.

[31] Redirections?

Paul K. Madigan
Judge

At Lautoka
18 May 2010