State v Atik [2010] FJHC 200; HAC045.2009 (10 June 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 045 OF 2009

STATE

vs

MOHAMMED ATIK
s/o Mohammed Hanif

Mr J. Singh for the State
Accused in person

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 have been and remain 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 have heard 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.

[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. In particular in this trial you must not have sympathy for the accused because he is unrepresented. That is his right and it was his choice so to be. And in addition, it is no business of your deliberations that the victim had deserted her family and run off with another man. It I not for us to make moral judgments on people – we are to act on the evidence alone.

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".

[11] The accused is facing one charge of attempted murder. In directing you on the law it will be helpful for me to first direct you on the offence of murder and then go on to discuss what an attempt is in law.

[12] Murder is committed when a person by an unlawful act and with malice aforethought causes the death of another person. Now let us look at those elements separately. There is no doubt that the accused in this case is the person who the State alleges hit Puspa with a cane knife on the head. The accused even admits that himself in his cautioned interview.

Chopping somebody with a cane knife, unless it is in self defence, is definitely an unlawful act.

[13] 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 in a case of murder the prosecution must prove beyond reasonable doubt either that the accused intended to kill or to do serious injury or that he knew by chopping that death or serious harm would probably be caused and not caring he went on to do the unlawful act.

[14] In this case, despite the chopping, death did not eventuate and therefore there can be no murder charge. However if you find that his intent was to commit murder and he did acts in order to carry that intent out, then you can find him guilty of the offence of an attempt to murder.

[15] So what does that mean for you, Madam and Gentlemen? It means that if you find that this accused did chop Puspa on the head then you will have no trouble in finding that that is an unlawful act. You will then go on to determine the accused’s intention in so chopping her head. If you find that in so chopping her, he intended to cause her death, or did not care whether death occurred or not, then you will find him guilty. In looking at all the circumstances pertaining at the time, and in considering his statements during the cautioned interview (if indeed you find that he did make those statements), if you feel that death would be a virtual certainty as a result of the accused’s actions and that the accused appreciated that such was the case, then you will find him guilty.

[16] Assuming that you are not satisfied about the intention to kill Puspa, then it is open to you to go on and consider the offence of doing an act to cause grievous harm. Attack with a cane knife is unlawful (except in self defence, and I will come to that later and you can surely not be in any doubt that the injuries to Puspa amounted to grievous harm. Section 224 of our Penal Code says that any person who does an unlawful act with intent to do grievous (that is serious) harm to a person is guilty of the offence. So that is the alternative for you if you find that he had no intent to murder Puspa.

The Evidence

[17] The evidence in this trial has been brief and I don’t plan to go into it in much detail, but if I don’t cover matters which you think are important, then you will gives those matters the weight that you think fit. We heard a lot of evidence from the Police who told us of going to Elevuka on the report of fighting. When they got there they saw the accused with a cane knife in his right hand and dragging a woman in his left hand They saw him strike her on the head, a blow which she defended with her arm, and then saw him once again hit her on the head, making her bleed. He was tackled from behind forcing him to fall face down onto the stony concrete ground. He was aggressive and struggled to get back hold of the knife but the Police party subdued him in a struggle on the ground. Puspa was taken to hospital and the accused to the Ba Police Station where he was interviewed under caution and made a statement in answer to charge.

[18] Kamal Goundar gave evidence as to the taking of the cautioned interview from the accused. He says that the accused was quite co-operative and willing and that his answers were written down word for word as he gave them.

The accused suggests that some of the answers were made up by the Police. That of course is a matter of fact for you to decide. You have seen the interview in which he admits hitting her with the knife "on the head, on the arms and the rest I can not recall". He then later says at Q.136: "I came to hit Puspa with the cane knife and I don’t care whether she dies or not". This answer, if you find that he indeed made it, might go to assist you with the accused’s intention at the time. We heard from the neighbours who heard the start of the fight and alerted the Police. Dr Buinimasi told us that after examining the accused at Ba Mission Hospital on 25th June 2009, she found minor injuries which were consistent with a fall and a struggle on hard stony ground.

[19] We heard the evidence from the so-called boyfriend of the victim. He told us that he had befriended Puspa Wati at the Lautoka bus stand and then started living with her. He said that the accused told him that Puspa was his sister. The accused denies saying that, but it is a matter for you. The last evidence was from the Doctor who examined the victim Puspa. He says that she had a rather serious injury to the top of her head – he said it was life-threatening because it had gone down to the bone resulting in a fracture of the skull.

[20] At the end of the prosecution case you heard me explain the accused’s rights to him. He chose to give sworn evidence from the witness box. After a lot of irrelevant evidence about his wife’s mental and seemingly moral background he finally came to tell his side of the events of the 23rd June. He said that there was no argument but that his wife had a loud voice which led others to think that there was an argument. He left the house at one stage and saw 4 to 5 men – he didn’t know who they were; but thought from their attire that they were training. He had a knife in his right hand, given to him by his wife in case her current boyfriend came by to cause trouble. He was holding his wife in his left hand when the men started throwing stones and sticks at him. He swung the knife in self defence but just then his wife fell in front of him and by accident the knife which he was swinging glanced off her head and on to her hand, causing her the injuries. He said that if he had wanted to kill her, he could have done it much earlier or he could have done it with one swing. He then fell unconscious and they continued to attack him. He said he was taken to the police station where he was continually assaulted and kept in a cell for three days in his underwear. He was very cold. As a result of the assaults he was forced to sign his cautioned interview which as you know contains damaging admissions. The damaging answers were fabricated by the Police, while he voluntarily gave the answers which are not damaging.

[21] Well members of the panel, that is the evidence and I now wish to comment on it but will remind you of my earlier direction that whatever I say about the evidence you do not have to accept: You are judges of the fact. You may think that his evidence about the continued assaults by the Police are not borne out by his medical examination – that report refers only to facial injuries which the Doctor says could have been generated by contact on falling on the stony ground. I remind you that the accused does not have to prove anything. Even if you do not believe a word of his evidence, it is still the obligation of the State to prove to you that he committed this crime.

[22] The accused has raised the issue of self-defence. If you think that the accused was or may have been acting in lawful self defence, he is entitled to be found not guilty. Because the prosecution must prove the accused’s guilt, it is for the prosecution to prove that he was not acting in lawful self-defence not for the accused to establish that he was; and you must consider the matter of self-defence in the light of the situation which the accused honestly believed he faced. You must first ask whether he honestly believed that it was necessary to use force to defend himself at all. If you are sure that he did not honestly believe that it was necessary to use force to defend himself, he cannot have been acting in self-defence, and you need consider this matter no further. But what if you think that he did honestly believed or may honestly have believed that it was necessary to use force to defend himself? You must then decide whether the type of force he used was reasonable. You must take into account both the nature of the attack and what he did. Ask yourselves can the swinging of a cane knife be a reasonable defence from the throwing of stones and sticks (if indeed they were being thrown). Once again, if you think he honestly believed that the swinging of the knife was necessary for defence and that the blows on Puspa were accidental then you will find him not guilty.

[23] I must now give you a direction about the cautioned interview. The Prosecution says the he made this confession on which you may rely. The accused says that he did not say the inculpatory words and that they have been fabricated. You must consider whether the accused did in fact make the admissions. If you are not sure that he did, you must disregard the interview. If however you are sure that he did make it and that it was true, you may take the interview into account when coming to your opinions.

[24] Well Madam and Gentlemen: these are the questions for you to decide:

(1) If you do not think that the accused hit Puspa with the cane knife, then you will find him not guilty of any offence;

(2) If you think it was an accident while he was acting in self defence, you will again find him not guilty of any offence;

(3) If you think that he did strike her with an intention at the time to kill her, then you will find him guilty of attempted murder;

(4) If you think that he did not intend to kill her, but did intend to cause her grievous (i.e serious) harm then you will find him guilty of an act causing serious harm.

You may now retire. Re-direct Mr. Singh?

Paul K. Madigan
Judge

At Lautoka
10 June 2010