State v Nasila - Summing Up [2010] FJHC 528; HAC093.2009 (19 November 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 093 OF 2009

STATE

V

SAIRUSI NASILA

Ms I. Whippy for the State
Mr T. Terere (LAC) for the Accused

SUMMING UP

[1] 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 two charges.

[2] Our functions in this trial 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 State's closing speech you heard yesterday afternoon but you are not bound to accept them. What counsel said to you is not evidence. Equally, if in the course of my review of the evidence I appear to express any views concerning facts, or emphasize 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 there 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 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 that regard please do not be prejudiced by the unpleasant nature of the facts this case. You should try to put that aside and look at the evidence alone when deciding. In this regard I ask you to totally ignore Mr. Terere's reference to his little daughter. I am not sure what his motive was in referring to her but it was quite improper and you must ignore it.

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 charged with one count of abducting in order to subject a person to unnatural lust; and secondly with murder of same little girl.

[12] You must consider the case against and for the defendant on each count separately. Just because you think he might be guilty on one count does not mean he is necessarily guilty on the other count.

[13] The crime of abduction is committed when any person forces, or by deceit induces another person to go from any place, and in this case if he forces another to leave anywhere for unnatural lust, which means for his own sexual gratification.

So what you have to find in the first count, gentlemen is that –

(i) this accused;

(ii) took Unise away from her settlement;

(iii) by force or by trickery;

(iv) for his own sexual purpose.

[14] You will probably have no difficulty in finding that it was this accused, his identity never having been called into question, nor is it in dispute that it was he who took her away from her home. Nobody else was seen in the vicinity that evening and he was the last person seen with her before she disappeared. He said in his interview (if you accept that he did make that interview) that he carried Unise away telling her not to speak and he carried her to his house to have sex with her. You may think that that's enough to prove the first charge against him.

[15] As Ms Whippy told you in her opening address, the offence of murder is committed when –

(a) this particular accused

(b) did an unlawful act

(c) resulting in the death of the victim

(d) with malice aforethought

[16] 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 deliberately prevents another from breathing then that is an unlawful act. The defence suggests that the girl died of an epileptic fit, although there is no evidence of that.

[17] The unlawful act must result in the death. The law requires this link. The pathologist's evidence is relevant here. He says that Unise died of asphyxiation, that is lack of breath, which could be caused by strangulation or a blockage of air passages. It is a matter for you, but you might find that taping of her nose and mouth and or holding a shirt over her nose and mouth to prevent her crying out may have been the cause of the asphyxiation which killed her.

[18] The final element to be proved in the offence of murder is "with malice aforethought". This is an old legal term to describe the intention of the assailant. It is an intention to cause death or an intention to cause very serious harm to the victim or knowledge that death or serious harm would probably be caused, accompanied by indifference whether it is caused or not.

[19] So the prosecution must prove beyond reasonable doubt either that this accused intended to kill Unise or to cause her serious harm, or that by holding a shirt over her nose and mouth that death or serious harm would probably be caused. I will come back to this point after I discuss the evidence.

[20] You only heard the evidence in the last couple of days, so I do not intend to dwell on it, but I will mention what I think is important. Remember whatever I say about the facts is not important at this stage, it is what you think of the facts that matters; so again, if I emphasize something do not accept that if you do not think it is important.

[21] You are aware that the prosecution is relying chiefly on the 3 confessions of this accused. These three are:

1. the confession in the car;
2. the interview at the Police Station; and
3. the answer to the formal charge.
   

You have seen these and the State says that there were all voluntarily made and freely given up by the accused.

[22] It has been suggested in cross-examination that the confessions were obtained by force and violence behaviour towards the accused. I must now direct you that anything put to a witness in cross-examination is not evidence unless the witness agrees to it. She when Mr. Terere said to a witness that the accused was assaulted and the police officer said "no" – then that does not become evidence of assault. Never did a police witness agree that there was any assault and so therefore there is no evidence that the interview and answer to charge were both fabricated as suggested in cross-examination: it was denied.

[23] However despite the lack of evidence, if you think the confessions might have been produced by assaults then you must disregard them and if you think they may have been fabricated, then again you will disregard them. However if you are sure that he did make these confessions, and that they were true then you may take them into account when coming to your opinions.

[24] You will see when reading the interview that most of the information he gives is borne out by the other evidence called by the State – the missing girl – the finding of cellotape and wire – the trip to the scene of crime. These are all things you can take into account.

[25] You may want to take into account the medical evidence of Dr. Raqona who said the only injuries to the accused were abrasions on his back which is borne out by the evidence of the fall on the gravel.

[26] At the end of the prosecution case you heard me tell the accused his rights. He elected to remain silent. That is his right. He is entitled to remain silent and to require the prosecution to make you sure of his guilt. You must not assume he is guilty because he has not given evidence.

[27] I must now say something about insanity.

[28] Every person, unless the contrary is proved; is presumed by law to be sane and to be accountable for his actions. The onus is on the defence to establish such insanity. Be mindful that there is no evidence whatsoever before you that the accused was insane. For a defence of insanity to be established, it must be clearly proved that, at the time of committing the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing or, if he did know it, that he did not know what he was doing was wrong.

[29] There is no evidence before you that the accused was influenced by drugs or drink at the time of the offence, even though he did have a previous history of polysubstance abuse.

[30] You will recall the evidence of Dr. Narayan the psychiatrist. He said he examined the accused at St. Giles and that although he was restricted emotionally, he knew what he had done and knew the consequences. Although he had a history of dissocial personality traits and of poly substance abuse, the Doctor was of the opinion that the accused was mentally well enough to know what he was doing at the time of the commission of the alleged crime.

[31] The defence counsel pressed the Doctor on what effect substance abuse would have had on the accused on the day of the alleged offence. The doctor said it depended on many factors and in event there is absolutely no evidence of substance abuse before you in September 2009. You must judge this case on the evidence before you and the psychiatric evidence is of sanity.

[32] I must say something to you about the sexual elements in this case. It is most important that you bear in mind that he is not charged with any sexual offence such as rape, indecent assault etc. You are to judge the accused on the evidence and only on the two charges he faces, looking as I said at each charge separately.

[33] There is however a sexual element in the first count as you now realize. He is charged with abducting Unise for the purposes of unnatural lust. He has said that he wanted to have sex with her, and later said the same thing in much more vulgar terms, and this evidence (if you believe he said it and it was true) is relevant to the first count.

[34] The Doctor's evidence that her genitalia had been abused in some way is totally irrelevant to your deliberations on abduction and murder. Please remember that.

P.K. Madigan
Judge

At Lautoka
19 November 2010