State v Vunisa - Summing Up [2011] FJHC 150; HAC042.2010 (8 March 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 042 OF 2010

STATE

V

APIMELEKI VUNISA

Mr. L. Sovau 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 this morning 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 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 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.

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] Mr. Vunisa is charged with one offence of manslaughter. Manslaughter is the killing of somebody by an unlawful act. The information alleges that on the 15th day of July 2002 at Lautoka he unlawfully caused the death of Dharmendra Prasad s/o Moti Lal.

[12] The offence of manslaughter has two elements which the prosecution must prove to you beyond reasonable doubt. The first is that the accused did an unlawful act. The second is that he thereby caused the death of the deceased. That is, that the unlawful act caused his death. The accused's intention has nothing to do with the offence.

[13] Throwing stones at moving vehicles is an unlawful act, so if you find that the accused did thrown stones at Shalveen Krishna's car and that Dharmendra Prasad died as a result of that, then you will find him guilty of manslaughter.

[14] The fact that the accused suggests that it was an accident or that others were also throwing doesn't matter, for reasons I will now explain.

[15] First you must decide if the accused was in fact throwing stones in such a manner as to cause an obvious and serious risk of causing injury to

drivers using the road and secondly you must decide if by throwing the stones in that manner did the accused do so without having given any thought to the possibility of there being any such risk or having recognized that there was some risk involved, had nevertheless went on to take it. So it is for you to decide whether the risk created by the throwing of stones was both obvious and serious, and would have been thought to be so by the average member of our community.

[16] If you find that someone else was also throwing stones, then it doesn't matter. We have in our law a principle called "joint enterprise". That means if two or more people are doing something together then each is responsible for the acts of another in the group. What that means in our situation, is that if two people are committing an unlawful act, that is throwing stones, and someone is killed as a result – then both people are guilty of manslaughter. It is not a question of whose stone killed.

[17] The accused made certain admissions under caution, in an interview which has been read to you. You are entitled to use this interview and the answers in it, and give it the weight you wish when coming to your opinions. You may accept all of it, accept part of it, but it is all evidence for you to include in the "mix" as it were. The accused says that all of his answers were untrue but it is for you however to determine if they are or not if you think the answers are all untrue then you will not consider the interview at all. If you think it was true, then you will have regard to it in your decision.

[18] The prosecution has based its case on two main civilian witnesses and several Police Officers, along with the pathologist doctor, as well as on the admissions contained in the Police interview.

Waisale Turuva told us he had been with the accused on the evening of 15 July 2002 when they had smoked a joint of marijuana together. The accused then started throwing stones at vehicles on the Ba/Lautoka highway until they heard glass breaking and one car pulled to a stop. They both then ran away.

[19] Shalveen Krishna told us he was driving his car on that road that evening with Dharmendra Prasad as his front seat passenger. He heard a loud smashing sound and Dharmendra collapsed amid a lot of blood. He drove home and got his father to drive them to the hospital.

[20] Dharmendra's fiancée told us that over the next two days his health deteriorated and he died in the hospital.

[21] Police witnesses told us first about questioning this accused in 2002 when he denied ever throwing stones, and then in 2010 arresting him and interviewing him again when he admitted throwing the stones "for fun". He also said in answer to the formal charge that he and another were throwing stones but he didn't mean to kill anybody.

[22] Finally, you heard from the lady Doctor who said that Dharmendra died after a strong force hit the side of his head fracturing his skull and causing his brain to bleed, which eventually led to his death.

[23] You heard me explain to the accused his rights, and in response he elected to give evidence and to call two witnesses. His evidence and that of his witnesses is all evidence for you to consider.

[24] I must now give you a direction on lies. Either the accused is telling lies in the caution interview or he is telling lies in the witness box. Both stories cannot be true. It is for you to decide whether you believe the evidence of the accused in Court today or whether he lied to the Police in the interview. You must ask yourself why did the accused lie? The mere fact that an accused tells a lie is not in itself evidence of guilt. An Accused may lie for many reasons, and they may possibly be innocent one in the sense that they do not denote guilt, or he may lie out of panic, distress or confusion. It is only if you are sure that he did not lie for an innocent reason, that his lies can be regarded by you as evidence to support the prosecution case.

[25] That is all I wish to say – you may now retire and consider your opinions. When you are ready you will advise one of my staff and I will reconvene the Court.

P.K. Madigan
JUDGE

At Lautoka
8 March 2011