State v Stevens [2010] FJHC 183; HAC011.2008 (31 May 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC011 of 2008

BETWEEN:

THE STATE

AND:

TOMASI SAVU TAREGUCI STEVENS

Counsel: Ms A. Tuiketei for the State
Ms S. Vaniqi for the Accused

Date of trial: 25th – 27th May 2010
Date of Summing Up: 31st May 2010

SUMMING UP

[1] 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.

[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 charge against the Accused, is set out in the information that you each have a copy of. This charge is brought by the State and the onus of proving it rests on the State from beginning to end. There is no onus on the Accused at any stage to prove his innocence or to prove anything else. The law is that the State 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.

[7] The Accused is charged with murder. The State alleges that the Accused on 15 December 2007 at Nasinu murdered Josefa Drugu.

[8] There are three ingredients that must be proved for the offence of murder:

1. That the Accused did an unlawful act.

2. That this unlawful act caused the death of the victim.

3. That the Accused acted with malice aforethought.

[9] I will now explain these three elements to you.

[10] 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. In such circumstances a person who deliberately punches, kicks or hits another with a weapon is committing an unlawful act.

[11] In this case the State alleges that the Accused stabbed the deceased using a knife, which caused his death. If that is what happened then that would be an unlawful act. The defence says that the Accused accidentally and in self defence stabbed the deceased and this allegation is disputed.

[12] The defence says the fatal injury may have been caused accidentally in a scuffle between the Accused and the deceased, where the Accused was acting in self defence. If you believe the Accused’s account and accept the fatal injury was caused accidently, then no crime had been committed. If so, you should find the Accused not guilty. If you are not sure whether the fatal injury was accidental, you should also find the Accused not guilty. It is not for the Accused to establish the injury was caused accidentally. The prosecution must prove that the Accused deliberately stabbed the deceased and that it was not an accident.

[13] If you are satisfied beyond reasonable that the fatal injury on the deceased was not accidental but deliberate, then you must consider whether the Accused acted in self defence. If you think that the Accused was or may have been acting in lawful self-defence of himself, you must find him not guilty. Because the prosecution must prove the Accused’s guilt, it is for the prosecution to prove that the Accused was not acting in lawful self defence. It is not for the Accused to establish that he was and you must consider the matter of self defence in the light of situation which the Accused honestly believed he faced. You must first ask whether the Accused honestly believed that it was necessary to use force to defend himself at all.

[14] If you are sure that the Accused did not honestly believe that it was necessary to use force to defend himself, he cannot have been acting in lawful self-defence, and you need consider this matter no further. But what if you think that the Accused did honestly believe or may honestly have believed that it was necessary to use force to defend himself?

[15] You must then decide whether the type and amount of force the Accused used was reasonable. Obviously, a person who is under attack may react on the spur of the moment, and he cannot be expected to work out exactly how much force he needs to use to defend himself. On the other hand, if he goes over the top and uses force out of all proportion to the anticipated attack on him, or more force than is really necessary to defend himself, the force used would not be reasonable. So you must take into account both the nature of the attack on the Accused and what he then did.

[16] If you are sure that the force the Accused used was unreasonable, then the Accused cannot have been acting in lawful self-defence; but if you think that the force the Accused used was or may have been reasonable, you must find him not guilty.

[17] 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. It not in dispute that the deceased died as a result of the stab wound inflicted on him by the Accused. This element is not in dispute.

[18] 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.

[19] It is an intention to cause death or grievous harm to the victim 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.

[20] Grievous harm means any bodily hurt which seriously or permanently injures health or which is likely to seriously or permanently injure health.

[21] Therefore the State must prove that the Accused stabbed 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.

[22] If you are sure that the Accused unlawfully killed the victim, intending to kill the victim, or to cause the victim really serious injury, the Accused is guilty of murder unless you conclude that this was or may have been a case of provocation. Provocation is not a complete defence, leading to a verdict of ‘Not guilty’. It is a partial defence, reducing what would otherwise be murder to the lesser offence of manslaughter. Because the prosecution must prove the Accused’s guilt, it is for the prosecution to make you sure that this was not a case of provocation, and not for the Accused to establish that it was.

[23] Provocation has a special legal meaning, and you must consider it in the following way.

[24] Firstly, you must ask yourselves whether the Accused was provoked in the legal sense at all. A person is provoked if he is caused suddenly and temporarily to lose his self-control by things that have been said and/or done by the deceased rather than just by his own bad temper. The defence says the Accused was provoked when the deceased swore at him (i.e Fijian swearing concerning mother and father) and accused him of stealing.

[25] If you are sure that the Accused was not provoked in that sense, the defence of provocation does not arise, and the Accused is guilty of murder.

[26] But if you conclude that the Accused was or might have been provoked, in the sense which I have explained, you must then go on to weigh up how serious the provocation was for this Accused. Is there anything about this Accused which may have made what was [said and/or done] affect him more than it might have affected other people? The defence points out that the Accused was chased away from his home and had been sleeping underneath a tree at the time the incident occurred and that he has a history of mental illness. The defence further points out that the instability in his life and the manner in which he was treated by the deceased and his friends as if they were making fun of him, triggered the Accused to lose his self control.

[27] Finally, having regard to the actual provocation and to your view of how serious that provocation was for this Accused, you must ask yourselves whether a person having the powers of self-control to be expected of an ordinary, sober person, of the Accused’s age and sex (a male in his late twenties), would have been provoked to lose his self-control and do as this Accused did. If you are sure that such a person would not have done so, the prosecution will have disproved provocation, and the Accused is guilty of murder. If, however, you conclude that such a person would or might have reacted and done as the Accused did, your opinion would be ‘Not guilty of murder, but guilty of manslaughter by reason of provocation.

[28] That completes my explanation to you on the crime of murder.

[29] 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 decide who is truthful and to be believed.

[30] 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.

[31] The caution interview and the charge statement of the accused are not in dispute. What weight you give to the statements he made to the police is a matter for you.

[32] I will now remind you of the prosecution and defence cases. 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

[33] The first witness, Aminiasi Radrodro said on 15 December 2007 at around 4pm he was drinking with the deceased when he saw the Accused walking down the road. The deceased invited the Accused to the place where they were drinking. The Accused came to them and the deceased told him not to steal from the Chinese farms and not to spoil the name of the youths from the area.

[34] The Accused got angry and challenged them for a fight. The deceased stood up and confronted the Accused. They argued and started pulling each other. The Accused threw punches at the deceased. The deceased did not return punches. The Accused threw a 4x2 wood to the deceased. The deceased did not retaliate. The Accused took out a knife and threatened them. He walked to the main road and challenged them for a fight. The deceased went to the main road and confronted the Accused. The Accused threw punches at the deceased. The Accused held the deceased’s shirt to avoid the punches.

[35] When this was happening, Jonetani approached and punched the Accused. The Accused took a knife out from his back pocket and stabbed the deceased.

[36] In cross-examination Aminiasi said when Jonetani punched the Accused they all stood up and that is when the Accused stabbed the deceased.

[37] Mark Whippy said they were drinking when the Accused came and hassle them. The Accused argued with the deceased. The Accused told the deceased not to steal from the farm. The deceased and the Accused started fighting. They ended up on the main road. The deceased was pulling the Accused’s shirt. When another person approached them, the Accused stabbed the deceased with a knife.

[38] In cross examination Mark said he told a completely different story to the police which is contained in his statement (DE1).

[39] I must direct you that 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 will recall that Mark offered no explanation for his prior inconsistent statement.

[40] The next witness was Josefa Dau. He said he saw the scuffle between the deceased and the Accused when they were on the main road. The deceased was holding the collar of the Accused’s shirt when he got punched by the Accused. Jonetani came from behind and punched the Accused. At that point the Accused took a knife out from his back pocket and stabbed the deceased.

[41] Dr. Loata explained the injuries found on the deceased upon post mortem. She said the stab wound penetrated and reached the depth of the heart causing massive bleeding. The deceased died of the stab wound as a result of massive bleeding. She said considerable force was used to cause the wound of that nature.

[42] Dr. Loata also expressed an opinion of the tenderness found on the Accused’s neck. She said good amount of force was used because the injury was still evident after three days. What weight you attach to Dr. Loata’s opinion is matter for you.

[43] Jonetani Baba said he went to help the deceased because he was drunk. The Accused was punching the deceased. The deceased was holding the Accused’s collar. Jonetani punched the Accused to help the deceased. At that point Jonetani heard a stabbing sound. He saw the deceased holding his ribs and the Accused holding a knife with blood.

[44] That was the prosecution case.

Defence Case

[45] The Accused gave evidence. I must remind you that when an Accused person gives evidence he assumes no onus of proof. That remains on the State throughout.

[46] You will generally find that an Accused gives an innocent explanation and one of three situations then arises:

1. You may believe him and, if you believe him, then your opinion must be Not Guilty. He did not commit the offence.

2. Alternatively without necessarily believing him you may say ‘well that might be true’. If that is so, it means there is a reasonable doubt in your minds and so again your opinion must be not guilty.

3. The third possibility is that you reject his evidence as being untrue. That does not mean that he is automatically guilty of the offence. The situation would then be the same as if he had not given any evidence at all. He would not have discredited the evidence of the prosecution witnesses in any way. If prosecution evidence proves that he committed the offence then the proper opinion would be guilty.

[47] The Accused said he was walking along the road when the deceased called him. When he went to him the deceased swore at him and accused him of stealing from the area. The Accused said he challenged him for a fight on the road.

[48] The deceased stood up and came to his face. He punched the deceased twice. Mark stood up holding a bottle. The deceased got hold of a wood and when the Accused turned around to walk away the deceased threw the wood at him. The Accused said he went to the main road and challenged the deceased and his friends. The deceased came down and got hold of the Accused’s neck. The deceased tried to choke the Accused by pulling his neck. The Accused got the knife out to threaten the deceased and his friends. The Accused said he accidently stabbed the deceased. He said he did not know that he had stabbed the deceased. When the deceased let go his neck and the Accused ran away from the scene when he heard other boys were getting a cane knife. He went straight home and then accompanied his parents to the police station and explained what happened. The Accused said he acted in self-defence to protect himself.

[49] That was the defence case.

Analysis

[50] It is not in dispute that the Accused stabbed the deceased with a knife in a scuffle between them. Nor is it in dispute that the deceased died as a result of the stab wound caused by the Accused.

[51] What is in dispute is whether the fatal injury was deliberately caused and without legal justification of self defence.

[52] The prosecution says that gravity of the stab wound proves the stabbing was deliberate and not accidental. The prosecution says that the Accused used force out of all proportion to the anticipated attack on him, or more force than is really necessary to defend himself. The prosecution points out that the deceased was unarmed and drunk and the Accused could have walked away. The prosecution says that the attack on the deceased was not accidental or in self-defence and was without provocation.

[53] The prosecution submits the Accused is guilty of murder.

[54] The defence says that the deceased was the aggressor. He started the fight. The defence points out that the Accused was minding his own business when the deceased called him from the road side and accused him of stealing and swore at him.

[55] The defence invites you to accept the statement of the Accused that he acted in his self defence when the deceased tried to choke him and that the fatal injury may have been caused accidentally during the scuffle. The defence says the Accused honestly feared for his safety when he saw the deceased’s friends approaching him during the scuffle. The defence invites you to view the situation as perceived by the Accused.

[56] The defence says if you reject self defence or accident, then you should consider whether the Accused was provoked and find the Accused guilty of manslaughter.

[57] You will have to evaluate all the evidence when you consider the charge against the Accused has been proved.

[58] Let me sum up for you the various steps you are to follow:

(1) You must first of all consider whether the act of the Accused that caused death was deliberate and not an accident. If you are not satisfied beyond a reasonable doubt that the act of the Accused was deliberate or if you are satisfied beyond a reasonable doubt that the act was an accident, then you must find the Accused not guilty and the matter ends there.

(2) If you are satisfied beyond a reasonable doubt that the act of the Accused was deliberate and not an accident, then you will consider the question of self-defence.

(3) If you are not satisfied beyond a reasonable doubt that death was not due the Accused acting in self-defence as I have defined it, you will deliver opinions finding the Accused not guilty and the matter ends there.

(4) If you are satisfied beyond a reasonable doubt that it was not in self-defence you will go on to consider the charge.

(5) In this case if you reject self-defence then there is little doubt, you may think, that the death of the deceased was caused and that it was caused by an unlawful act of the Accused. Therefore the real question you have to decide is whether it was done with malice aforethought i.e. 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.

(6) If you are not satisfied beyond a reasonable doubt that the Accused had malice aforethought, you will render opinions of manslaughter.

(7) If you are satisfied beyond a reasonable doubt that the Accused acted with malice aforethought, you will go on to consider provocation.

(8) If you are not satisfied beyond a reasonable doubt that there was no provocation or accept that there was provocation then you will render opinion of guilty of manslaughter.

(9) If you are satisfied beyond a reasonable doubt that he acted with malice aforethought and are also satisfied beyond a reasonable doubt that there was no provocation, you will advise me that the Accused is guilty of murder.

[59] Your possible opinions are, guilty of murder, or guilty of manslaughter, or not guilty of any offence.

Conclusion

[60] Gentlemen assessors, that concludes my summing up of the law and the evidence in this particular trial.

[61] 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.

[62] When you have reached your separate decisions you will all come back into Court and you will each be asked to state your separate opinion.

[63] 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?

[64] Thank you.

Daniel Goundar
JUDGE

At Suva
31st May 2010

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