State v Waqamailau [2010] FJHC 516; HAC006.2010 (12 November 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 006 of 2010

BETWEEN:

STATE
PROSECUTION

AND:

OSEA WAQAMAILAU
ACCUSED-PERSON

Counsel: Mr. Mosese Korovou
Assistant Director of Public Prosecutions
For State

Mr. T. Terere -For Accused

Dates of Trial: 09th and 10th November, 2010

Date of Summing Up: 12th November, 2010

SUMMING UP

Madam Assessor and Gentleman Assessors

1. Evidence in this case has now come to an end. At its conclusion, the law requires me - as the Judge who presided over this trial - to sum-up the case to you on law and evidence. Each one of you will then be called-upon by me to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing-up of the case very carefully and attentively. This will enable you to form your individual opinion as to facts in accordance with the law with regard to the innocence or guilt of the accused-person. Your individual opinions, please remember, carry a great weight and they will be considered by court in coming to the final decision of court. This tells how important your task is.
   
2. In my summing-up of the case to you, my directions on matters of law must be accepted as correct and you must act upon them. In other words, you are bound by my directions on law, because as I indicated in my introductory remarks at the commencement of the trial, I am the Judge who had to oversee that the trial is conducted according to law. I, as the Judge, also guide you on law for you to form your own independent opinion as to facts on the evidence in the case.
   
3. In as much as I am the Judge on law, each one of you is also a Judge. Each one of you is a Judge on facts; and, please bear in mind that you and you alone are the sole judges of facts. Therefore, you yourself will have to decide on facts and such decision on facts cannot be made by anyone else other than each one of you; and, no one else can influence you in the making of your opinion. And as judges of fact, you can talk, discuss and deliberate on facts of this case among yourselves only. But, each one of you must reach your own conclusion or form the opinion as to facts based on the evidence in this case. Your opinions could be unanimous or by majority; and, if the court agrees with such opinions, court will give the final judgment of the case accordingly.
   
4. Your duty, therefore, is a noble task and it will ultimately decide whether the accused-person is not-guilty or guilty of the offence, as charged, or of any other offence, on which I will deal with shortly.
   

5. Let me explain further on your role. Each one of you has attained a certain standard in life and society and possesses a wide experience in life, community and the society at large. Therefore, the reason for your selection to perform the noble task as a judge on facts is that you have a better understanding and knowledge on day-to-day happenings in the society. You can, therefore, grasp and understand them better than a court of law would do; because, what the evidence seeks to unravel are indeed the facts that come to be in existence in the course of the conduct of the people in their day-to-day life. As members of the community, you are considered to have a better opportunity and ability of assessing and appreciating such facts, which ultimately would be utilized to decide the case before you.

6. As judges of fact, it is your own duty and responsibility to decide which fact is to be true and acceptable and which one is not acceptable and should be rejected. Similarly, which witness/es to be believed; and, which version/s of the evidence is to be accepted or rejected, are entirely matters for you to decide by yourself. So, if I happen to express any opinion on facts, or if I appear to do be doing so, you must disregard that and you must form your own opinions without being influenced by such an expression of opinion by me. Please remember that, that is because you are the Judges of fact and, even as the presiding Judge, I cannot and should not, either by design or accident, do anything that would affect your opinion on facts of this case.
   
7. Counsel for the State and Counsel for the defence have both made submissions to you as to how you should find the facts of the case. They have done so in accordance with their duties as counsel for the respective party on the basis of what they perceived in their own ways of thinking and analysis. However, you do not have to accept what they say. If, what they have said, appeals to your commonsense and judgment and concurs with your own conclusions, then it is entirely a matter for you and you may accept it. Otherwise, you are not bound to accept such propositions on facts as advanced by counsel.
   

8. Your decisions must be solely and exclusively upon the evidence, which you have heard in this court, and upon nothing else. You must disregard anything that you have heard about this case, outside this courtroom. You might have seen or heard news-items in print or electronic media about this case before or during the trial. You must disregard them and your opinions should, only be based on the evidence given in this courtroom.

9. I must give each one of you a word of caution. This caution should be borne in mind right throughout until you reach your own opinions. That is - as you could hear from the evidence - this case involved an incident of loss of life of a man due to some violent acts as alleged by the prosecution. This certainly shocks the conscience and feelings of our hearts. It is quite natural given the inherent compassion and sympathy with which human-beings are blessed. You may, perhaps, have your own personal, cultural, spiritual and moral thoughts about such an incident. You may perhaps have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set-down by law, to which every one of us is subject to in the present day society that we live in. I will deal with the law as it is applicable to the offence with which the accused-person is charged, in a short while.
   
10. Before doing so, I must tell you about a very important principle of law in a criminal trial. This is sometimes described as the golden rule in a criminal case. That is the presumption of innocence that an accused-person is entitled to in law. The effect of the presumption is that the accused-person is considered to be innocent until he is proven 'guilty'. In other words, even though, there is an offence, with which the accused-person is charged, by law he is considered to have been innocent. This presumption is in force until you form your own opinion at the end of this case solely on evaluation of evidence that the accused-person is guilty of the offence. Therefore, your independent opinion only could remove this presumption after all these proceedings and your deliberations on evaluation of facts are over.
    
11. The presumption of innocence, which is always in favour of an accused person, brings into force another very important principle of law. That is with regard to the burden - or sometimes referred to as the onus - of proof of the case. The case, as you know, has been brought by the Director of Public Prosecutions on behalf of the State against the accused-person on the basis of an allegation of committing the offence of murder. The burden of proof of the case, in light of the presumption of innocence that I explained to you, therefore, lies always with the prosecution. Therefore, the burden of proof of the case against the accused-persons rests fairly and squarely always on the prosecution, that is the State-the complainant. The prosecution is never relieved of that responsibility and it does not shift to the accused-person at all.
    
12. In other words, if I am to put it differently from the perspective of the accused-persons, there is no burden of proof whatsoever on the accused-person that he is innocent. You will recall that the accused-person is presumed to be innocent and, therefore, there need not be any burden on him to prove his innocence. His innocence is presumed by law.
    
13. In as much as the burden of proof is on the prosecution, that burden should be discharged by the prosecution on the basis of a certain standard that has been set by law. The standard of proof set by the law is 'proof beyond reasonable doubt'. Therefore, please remember that the standard of proof in a criminal trial is proof beyond reasonable doubt. This means that the prosecution, having the burden of proof on its shoulders, should prove its case against the accused-person beyond reasonable doubt.
    
14. Proof beyond reasonable doubt, however, does not mean the proof of the case to the level of mathematical accuracy or to the level of accuracy that can be seen at a scientific test at a laboratory. Such an unrealistic standard is never meant by the standard of proof beyond reasonable doubt. What, in effect, it really means is that the prosecution must dispel any reasonably perceivable doubt in your mind as to the commission of the offence by the accused-person. When I say 'the commission of the offence, each and every element of the offence should be proved beyond reasonable doubt. I will deal with the elements of the offence of murder as I go on.
    
15. Lady and gentlemen, please note that if the prosecution has not discharged its burden of proof or has not been able to reach the standard of proof as set by law, then the case for the prosecution fails. If you find a reasonable doubt in the case for the prosecution, such doubt should always be given to the accused-person. You have to remember that, at no time the prosecution is entitled to the benefit of any doubt that may occur in the course of the prosecution case or defence case, which I will advert to when I sum-up evidence later.
    
16. Proof beyond reasonable doubt, therefore, means that before you find the accused-persons guilty of the offence charged or any other offence, you must be satisfied in your mind that you are sure of the guilt. If something puzzles in your mind as to the guilt after evaluating facts based on the evidence - that means - that the prosecution has not satisfied you on its standard of proof. In other words, there is a doubt you reasonably perceive as to the commission of the offence as charged or any other offence by the accused-person. Such doubt should always be resolved only in favour of the accused-person. You must, thereupon, express an opinion that he is not guilty.
    
17. Let us now look at the charge of murder on the information dated 11th March, 2010, which was read over to the accused-person, upon which this trial proceeded. It was under Sections 199 of the Penal Code. The particulars of the offence, as alleged by the prosecution are:
    

'OSEA WAQAMAILAU on the 26th day of September, 2009 in the Western Division murdered PRASAD AMIT SINGH s/o Sudandra Prasad.'

18. The accused is charged with murder. Murder is the unlawful killing of someone with malice aforethought. The elements of the offence of murder, which the prosecution must prove beyond reasonable doubt are:
    

(i) The accused-person did an unlawful act;

(ii) That unlawful act caused the death of the deceased; and,

(iii) That the accused-person acted with malice aforethought.

19. I will now explain these three elements to you.

• Firstly, an unlawful act is an act which is done with no lawful excuse. An example would be, if A hits B with fists or with a weapon, that act will be an unlawful act if such act is not excused by law. Law could excuse such an act only if A had hit B in the exercise of A's right of self defence, which I will further explain as I go on.
  
• The second element of the offence of murder is that the unlawful act caused the death of the victim-the deceased in this case. The law requires a link between the unlawful act and the death. Usually, unlawful act causes some specific injury to the victim and that particular injury causes the victim's death. Or, the cause of death could be a combination of other factors resulted directly from the unlawful act. It is also sufficient if the act or the conduct of the person concerned has contributed to cause the death; or, such act or conduct is substantial in its degree in the circumstances to cause the death.
  
• Thirdly, the accused-person should have acted or conducted himself with malice aforethought. Malice aforethought in law is to have thought about the act or conduct in question and carried out the act of causing death of someone or causing injury.
  

20. Lady and gentlemen, the first element is called the physical element of the offence, while the second element indicates the causal link. The third is called the mental element. You have to always bear in mind that all three elements should be established by the prosecution at all times together for it to succeed in the charge of murder. It must be absolutely clear in your mind that the act or the conduct of the accused-person was accompanied by malice aforethought, which is the necessary mental state or the faulty intention to complete the offence of murder.
    
21. In a criminal trial, an accused-person or his lawyer can admit any fact and/or an element of the offence. Such admissions are required to be in writing, signed by both parties namely - the prosecution and the defence - and by the Judge. Once admissions are made after following that procedure, they are filed of record to enable court to make use of the admissions.
    
22. Legal effect of such admissions is that they constitute sufficient proof of the facts and elements of the offence. Therefore, such facts or elements of the offence need no further proof by way of evidence by the prosecution. Record of 'AGREED FACTS' was placed before you as the trial was proceeding. You must carefully examine the record of agreed facts to identify the facts and the elements of the offence that have been admitted by the accused-person. I will reproduce some matters that have been admitted by the accused as follows in the record of the agreed facts:
    

'...[3] The accused then entered the Austech laboratory again on 26/9/09 and walked up to the deceased who was sitting on his table and wrapped his left hand around his neck and demanded for money.

[4] The deceased tried to defend himself by striking the accused on the knee with a knife from his table after which the accused grabbed the knife from the deceased and threw it on the floor.

[5] The accused then pulled out his kitchen knife and stabbed the deceased once on the neck before stabbing him twice on the body.

[6] The deceased tried to stand from his chair but the accused punched him twice on the face and as deceased tried to run to the door the accused pulled the collar of his shirt and punched him on the face causing the deceased to fall on the floor...'

[7] The accused then picked a stool and struck the deceased twice on the head dropping him to the floor...

... [11] The deceased body was found by his wife Asha Lata who then asked for assistance from Vijen Prasad s/o Phalad who reported the matter to police.

[12] The post mortem was conducted by Dr Ramaswamy Ponnu Swamy Gounder on 28th September 2009 at Lautoka hospital after deceased body was identified by his brother, Prasad Chitra.

[14] The cause of death as recorded in the post mortem report is 'excessive loss of blood from injuries and into left plural cavity.'

[15] The pathologist was able to find and record the following injuries on the deceased. They include:

1. A sharp cut below the left nipple 42mm along the mid clavicula line 21mm x 6mm.
   
2. 8mm above the left clavicle, a cut measuring 15mm x10mm.
   
3. A cut above the cut describe under 2 above and lateral to it measuring 18mm x 10mm.
   
4. 20mm above the left acrimonial process is a cut 20mm x 7mm.
   
5. 5mm above the left ear is a cut measuring 40mm x 11mm in the front – temporal area.
   
6. A bruise over the left ear is a cut measuring 57mm x 15mm.
   
7. A cut below the left brow 7mm below brow measuring 37mm x 7mm. The edges are rough there is a hematoma over the left upper and lower eye lids. There is a bruise over the bridge of the nose measuring 15mm x 8mm.
   

The deceased lung was punctured and collapsed and there was 1.5 litres of blood in the left pleural cavity.

23. Lady and gentlemen, you will now see, that in view of the above factual admissions, the physical element or the act is admitted. Similarly, causal link or that the death was caused by the act is also admitted. Admissions of these two elements of the offence should be borne in mind when you proceed to consider the facts of the case in order to decide whether the accused-person is guilty of the offence as charged because the offence is still not complete without the 3rd element-the mental element.
    
24. You must, therefore, consider whether the accused did have the malice aforethought or the faulty intent or the intention to commit the death of the deceased or to cause bodily injury so as to cause the death of the deceased. The prosecution must prove beyond all reasonable doubt on the available material before you that the accused did intend the death or the bodily injury that could cause death of the deceased for the offence of murder to be complete against the accused.
    
25. You must remember, if the accused-person did not have the malice aforethought or, in simple language, the intention to cause the death or any bodily harm, which could cause death, then the accused-person cannot be found guilty of murder. Because, without malice aforethought the offence of murder cannot be committed. You must be clear on this.
    
26. Malice aforethought, therefore, is a legal term which describes a particular intention or state of mind. It is an intention in this case to cause the death or 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.
    
27. In law 'malice aforethought' is deemed to have been established by evidence proving any one or more of the following circumstances:
    
    • (a) An intention to cause the death of or to do grievous harm to any person;
      
    • (b) Knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not.
      
28. Possibility of causing harm or grievous harm in light of the act/s or conduct of the accused-person is dependent on the circumstances of the case. And, sufficiency of such circumstances to cause death is entirely a matter for you to decide after considering the evidence before you.
    
29. You must also bear in mind that a person's intention is locked up in mind. It is not often spoken out. The intent, therefore, cannot be physically observed. However, this intent can be proved by what one tells others, or it can be inferred from one's conduct prior to, during or subsequent to the act or the conduct in question. And, also on the circumstances that prevailed before and/or after the act. You must also know on application of your commonsense that such an intention can spring-up on the spur of the moment with or without any act/s manifesting the intention.
    
30. This case proceeded to trial solely on the issue of the presence or the absence of malice forethought or the intention to cause the death of the deceased or such bodily injury to cause death. This issue is a question of fact to be determined by you on the available evidence and documentary material before you. You have to be extremely careful in making the correct decision and forming your individual opinion.
    
31. If you conclude that there was no malice aforethought for the act of the accused or if you have any reasonable doubt about it, then you must find the accused-person not guilty of murder.
    
32. However, if you consider that the accused did have only the knowledge that the death could ensue as a result of his act, then you can find the accused-person guilty only of manslaughter. If you entertain any reasonable doubt between the presence of the malice aforethought and knowledge, you must resolve that doubt in favour of the accused and find the accused guilty of manslaughter.
    
33. I will now explain what manslaughter is. Manslaughter is a lesser offence that stands very close to the offence of murder. It is the killing of someone by an unlawful act or omission without necessary intention or malice aforethought. If you consider that the accused did not have the necessary intention of committing the death of the deceased or the malice aforethought, but he had only the knowledge that the death would be caused by his act or conduct, then you must find the accused guilty not of murder but of manslaughter only. Whether the accused had knowledge only or whether they had the intention to cause the death of the deceased is a matter entirely for you to decide on the basis of facts and circumstances of the case.
    
34. It is now time for me to tell you about the nature of evidence that can be offered in a case. A witness can give evidence on his observations, like what he heard, what he saw, and what he perceived by his own senses. That is called direct evidence.
    
35. In certain circumstances court would allow witnesses to give their opinions on a matter. These witnesses should be experts on that particular subject. For example, you get experts on medical field. The consultant forensic-pathologist Dr Ponnu Swamy Goundar gave evidence and his expertise was not challenged. Therefore, his opinions as to the onset of injuries and the cause of death of the deceased are admissible in evidence. Such evidence is called expert evidence. You can be guided by his opinions when you assess the facts of the case as to the cause of death of the deceased. Please remember that you are entitled to form your own opinion as to facts after considering the opinion of the expert. If you feel fit to give weight to the expert's opinion, then you can accept it.
    
36. Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, the Post-Mortem Report, the sketch of the place of the crime, the photographs of the deceased taken at the scene and at the post-mortem and the cautioned-interview statements, which are before you, are documentary evidence.
    
37. Real evidence is the material objects that are used to commit the offence and/or those recovered from the scene of the crime. In this case, kitchen knife blade (PE-3), Rubbish Bin (PE-4), towel (PE-5), foot-stool (PE-6), black knife handle (PE-7) and the wallet (PE-8) are examples for real evidence. They can be used to support the evidence of a witness and to advance one's case. You must consider whether the material objects were, in fact, used or found from the scene before you accept them as relevant real evidence in the case.
    
38. As a matter of law I must direct you on circumstantial evidence. In this case, the prosecution relies on certain circumstantial evidence. In circumstantial evidence, you are asked to piece the story together from witnesses who did not actually see the crime being committed, but give evidence of other circumstances and events that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime.
    
39. I cite the following situation as an example for circumstantial evidence. In a silent night, you hear cries of a man from a neighboring house. You come out to see that a man named 'X' is running away from that house with an object in his hand. Out of curiosity you go inside the house to see what really had happened. You see your neighbor 'Y' lying fallen with injuries. Here you don't see "X' committing any act on 'Y'. The two independent things you saw were the circumstances of a given situation. You can connect the two things that you saw, and draw certain inferences. An inference you may draw would be that X caused the injury on Y. In drawing that inference you must make sure that it is the only inference that could be drawn, and no other inferences that could have been possibly drawn from the said circumstances. That should be the inescapable inference that could be drawn against X in the circumstances. Further in evidence one witness may prove one thing, and another witness may prove another thing. None of those things separately alone may be sufficient to establish guilt, but taken together may lead to the conclusion that the accused committed the crime.
    
40. You must consider all direct evidence - that is what witnesses saw, heard or perceived by their senses, as well as circumstantial evidence, documentary evidence, real evidence and expert evidence.
    

41. A case could usually depend on all those kinds of evidence or on a combination of two or more or even on one kind of evidence. Whatever the case may be, it is the value and the weight of evidence that matters.

42. Cautioned-interview statements are before you. You must read them very carefully. These are statements made to police under the caution that they will be used as evidence against the maker of such statement. The statement was admitted as evidence without
any objection from the accused. The statement, therefore, is evidence in the case if you feel sure that the statement was freely made by the accused without any influence. In the cautioned-interview statement, the act of attacking the deceased was admitted as stated in the agreed facts.

43. It was also admitted by both parties that the deceased got armed himself with a knife as the accused set upon the deceased and had, in fact, injured the accused in the knee. The accused, thereupon, got into a scuffle with the deceased, grabbed the knife by holding it from the blade and threw it away according to the cautioned interview statements. The accused specifically relied on the following questions and answers in the cautioned interview statement.
    

' ...Q51 Then what happened there?

A Inside the office as he was alone I went towards him and grab hold his neck from the back using my left hand.

Q52 What happened next?

A ....[he] stabbed me on my right knee.

Q87 What type of blade was it?

A It is a silver blade about 3 inches.

Q97 Did that technician assault you?

A Whilst I grab his neck from behind he took his knife from the table and stab me above my right knee.

Q100 What happened when he injured your knee?

A As soon as he tried to hit me for the second time I got hold of the blade of the knife and pull it away from him.

Q.101 Then what happened after that?

A I threw the knife somewhere on the floor and when the knife was in my hand I also receive a big cut.

Q102 How did that blade of the knife got bent? [Showed him the bent kitchen knife]

A It got bent when I was trying to pull it from the person I stabbed.

Q.135 Osea do you wish to say anything further in regards to this matter?

A My intention was only to rob and not to kill Amit.'

44. The accused takes up the position that he did not have the intention to kill but only to rob. If you accept that position or if you have a reasonable doubt in view of that admission after evaluation of all the attending circumstances, then you must find the accused not guilty of murder. In coming to your conclusion, you must also consider the following admissions, which are based on caution interview statement namely:
    

'(a) The accused then pulled out his kitchen knife and stabbed the deceased once on the neck before stabbing him twice on the body.

(b) The deceased tried to stand from his chair but the accused punched him twice on the face and as deceased tried to run to the door the accused pulled the collar of his shirt and punched him on the face causing the deceased to fall on the floor...'

(c) The accused then picked a stool and struck the deceased twice on the head dropping him to the floor'

45. The above contents of the caution interview and the admissions also bring into focus two important issues for you to consider.
    
46. Firstly, it is for you to consider whether the accused got provoked as a result of the deceased arming himself with a knife and thereafter stabbing in the knee followed by a scuffle in the course of which the accused got injured in his right hand as he grabbed the knife from the deceased.
    
47. In considering whether the deceased had offered provocation, you need to consider that, the act or the conduct of the deceased was wrongful, which deprived the accused of the power of self control and induced him [the accused] to commit the acts by the accused for which he has now been charged.
    
48. When a person unlawfully kills another in the heat of passion caused by sudden provocation and before there is time for passion to cool, then he is guilty not of murder but of manslaughter. That is so even if he committed the murder with intent as the presence of provocation reduces the culpability of the accused to manslaughter.
    
49. As a matter of law, you must bear in mind that:
    

(i) A lawful act is not provocation to any person for an assault; and,

(ii) If the act, which the deceased did, was in consequence of incitement given by the accused then the accused is not entitled to excuse his act of attack on the deceased on the ground of provocation.

50. Secondly, it is also open for you to consider whether the accused had acted in self-defence as a result of the deceased arming himself with a knife and thereafter stabbing in the knee followed by a scuffle in the course of which the accused got injured in his right hand as he grabbed the knife from the deceased.
    
51. You may recall that, as admitted by the accused, the deceased was at his work in the laboratory when the deceased entered and attacked the deceased. Under law, any person has the right to defend himself or his property against such an act of attack or on attempt on property. The right has to be exercised only to the extent that it was reasonable and proportionate in the circumstances that the deceased was in at that point of time. If you consider that the deceased attacking the accused as he invaded him[the deceased] with a kitchen knife was reasonable and proportionate and not excessive or aggressive in the circumstances that the deceased was in at that time, then his [deceased's] act of injuring the accused is not unlawful. You must consider the circumstances and decide whether the conduct of the deceased was reasonable, proportionate and not excessive or aggressive in coming to the conclusion that such conduct of the deceased was not unlawful.
    
52. If it is so, the accused is not entitled to the defence of provocation to reduce his culpability to that of manslaughter as I said earlier that a lawful act cannot in law give provocation to anyone to justify his attack.
    
53. In the same vein, you must consider whether the acts of the accused were carried out in his self-defence of person in the course of the sudden turn of events as the deceased stabbed with randomly picked-up knife. In deciding that issue too, you must bear in mind that even the killing of the deceased was not unlawful in self-defence, if you consider that the accused on the spur of the moment perceived that the threat at the hands of the deceased was such that the accused had to reasonably use force. You have to consider whether the accused believed, based on the circumstances as he perceived, that his acts of attack on the deceased were reasonable and proportionate and not excessive and aggressive.
    
54. If you come to the finding that it was reasonable, proportionate and not excessive and aggressive, or you have a reasonable doubt on that, then you can find the accused not guilty of murder but of manslaughter. If you consider that, at the sudden turn of events at the hands of the deceased, the conduct of the accused was not reasonable and proportionate but it was excessive, revengeful and excessive, then he is not entitled to the right of self defence in order to mitigate his culpability. Then, he can be found guilty of murder as charged.
    

55. In deciding the issue whether the conduct of the accused was reasonable, proportionate or excessive or revengeful you must consider:

(i) the medical evidence where three major injuries were shown by the doctor as a result of repeated attacks with a knife in injuring vital parts of the body;

(ii) the number of attacks inflicted on the deceased;

(iii) The attack with a foot-stool twice on the head when he lay fallen causing serious head injuries;

(iv) Opinion of the doctor that any medical intervention could hardly have saved the life of the deceased.

(v) The conduct of the accused in trying to treat his injuries while leaving the deceased all alone when he was profusely bleeding;

(vi) The fact that the accused did not bother to see what had happened to him after he unleashed the series of attacks.

56. You must consider all those factors and circumstances in deciding whether the accused had the malice aforethought in causing the death of the deceased and whether he was entitled to the right of self defence in the circumstances. If you conclude that in the circumstances he did have the malice aforethought and he is not entitled to the right of self defence, you can find him guilty of murder.
    

57. The case for the prosecution was closed with the evidence of those witnesses and exhibits marked as Exhibits PE -1(a)– PE-12.

58. After the case for the prosecution was closed, you may recall, that I explained the rights available to the accused. I was under duty to do so. You must not misunderstand that that exercise of my power under law as a call to answer the charges and to prove the innocence. There is no such compulsion and the accused decided to remain silent. That is his legal right and you must not draw any adverse inference on their silence. He is well within his right in making that choice.

59. I have summarized all the evidence before you. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should reminded yourself of all that evidence and form you opinion on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourself of the evidence.

60. In summary the prosecution says that the unlawful act committed by the accused and his conduct was with malice aforethought to cause the death of the deceased. The accused says that his acts were not accompanied by malice aforethought in the circumstances.

61. In considering what to accept you must look at the evidence objectively and not to be swayed by emotion. This is indeed a tragic case, and says more about the shortcomings of society than it does about the accused.

62. Remember that the burden of proving the accused's guilt rested on the prosecution at all times. If you find that the act of the accused or the conduct in issue was accompanied by malice aforethought then you can find him guilty for murder. If you think that that the accused could have only the knowledge of a possible death of the deceased on account of his acts or conduct, then you cannot find the accused guilty of murder. Instead, you can find the accused guilty only of manslaughter, which is an offence less in gravity than the murder, as I indicated before. Manslaughter is the killing of a person without malice aforethought. If you consider that the accused did the acts with malice aforethought but he was acting on provocation and/or in self-defence, then again he is guilty of manslaughter.

63. If you are of the view that the Accused did nothing unlawful by their acts or conduct or you have a reasonable doubt about that, then you must find the Accused not guilty of any offence.

64. Remember that the onus of proving the Accused's guilt rests on the prosecution at all times.

65. You may also recall that after the charges were read out, the accused pleaded guilty to a charge of robbery with violence. You should not get prejudiced by his plea for that charge and you must consider the evidence in this case to decide whether the accused was guilty of murder or any other lesser offence as I explained before. You must remember that the guilty plea for the offence of robbery with violence does not make you entitled to find the accused guilty for murder or its lesser offence. These are two different offences and as the accused frankly admitted his responsibility for that offence, he pleaded guilty. You must totally forget that charge now as it is not before you for your deliberations.

66. Your possible opinions are:

1. Guilty of murder; or
   
2. Guilty of manslaughter; or
   
3. Not guilty of any offence.
   

67. Madam assessor and Gentleman assessors, this concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court, and you will be asked to state your separate opinion.

68. I thank you for your patient hearing to my summing-up.
You may retire to consider your opinions now.

Priyantha Nawana
Puisne Judge

At Lautoka
12 November 2010