State v Rokosuka - Summing Up [2011] FJHC 397; HAC144.2007 (14 July 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 144 OF 2007

STATE

vs

KITIONE ROKOSUKA

Ms M. Fong for the State
Mr. T. Terere for the Accused

SUMMING UP

[1] Ladies and Gentleman 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 from Counsel 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] This accused person is charged with manslaughter by an unlawful omission. Manslaughter is the taking of a life without intending to take someone's life. It will be helpful for you to look at the offence in two "bites". First, the basic elements of manslaughter and secondly the unlawful omission amounting to negligence. Let me assist you in those two tasks.

[12] The basic elements of manslaughter are as follows:

(1) the accused committed an act which caused the victim's death; and

(2) the act was unlawful.

[13] The State in this case is going further than that by basing their case not an act that the accused may have done, but on an omission to do something he should be doing. They say that the omission was a matter of negligence in that he failed to take reasonable precautions in securing a live electrically charged wife. This the State is entitled to do under the law that was relevant at the time of the accident. The law at that time said this:

"an unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm."

[14] Before you may convict the accused of the offence of manslaughter by reason of omission or negligence in respect of the count he is facing, you must be satisfied, so you are sure of the following ingredients:

(1) that the accused owed a duty of care to the deceased.

(2) The accused was in breach of that duty.

(3) The breach of the duty caused the death of the deceased; and

(4) That the breach of the duty of care constituted gross negligence, in that the circumstances were such that a reasonably prudent person would have foreseen a serious and obvious risk not merely of injury, even serious injury but of death, so that you, as assessors consider the accused's actions justify a criminal conviction.[1]

[15] What then is a duty of care? A duty of care is a legal term which means bearing some degree of responsibility to another or others for your actions. Good examples are a doctor attending to his patients or a gym instructor coaching athletes. In this case the question of a duty of care arises when an electrician, or somebody acting as an electrician, does electrical work in a place. He is presumed to have a responsibility to others so that his electrical works do not pose a threat to people in or near the vicinity of the electrical works he has done. This then is a duty of care. So you are to ask yourselves was Kitione Rokosuka responsible for ensuring that staff and tourists at Tokoriki Resort were safe from injury from electrical installations. If you think yes then he has a duty of care to the deceased. Then you must ask given that that he had that duty of care, did he breach it; that is was he in default of that responsibility and if so did that breach or default lead to the death of Luke?

Lastly you must then ask yourselves, would any prudent or reasonable electrician have recognized that injury to life or limb would occur if works were done in that way and if so was it so bad that it should be classified as criminal?

[16] You must be satisfied, so you are sure, that the way the electric wire was installed was a major departure from the standard of care expected of an electrician; that this departure was dangerous in that it was likely to cause harm to people in and about the vicinity of the clothes line, and that this major departure was a substantial cause of death of the deceased.

[17] The State must show you that the accused's conduct involved actual foresight of risk or a culpable indifference to an obvious risk of injury to life.

[18] You must then consider, if you find all of that proved so you are sure, whether this conduct was such, that given the risks to life and limb that it posed, is it appropriate to consider it a crime.

[19] You have heard the evidence touching on this very unfortunate accident in August, 2006. You heard from Luke Chapman by way of "skype" evidence from Nottingham who told us what happened that morning. How he had some days earlier arrived in a small party of volunteers exploring and mapping the coral reefs near the Tokoriki Resort. When they woke up on the morning of 9 August, there was a storm with heavy rain and strong winds. They were meant to go diving on a reef that day so he went with another to check if the dive boat was still going out. It was cancelled so he walked back in the rain and got very wet. Because his T-shirt was wet he took it off and hung it on the clothes-line and in doing so he got an electric shock that threw him about 1½ feet away. He then had a gap in his memory, understandably, but he then remembers seeing his friend Luke Molnar lying on the ground holding onto the clothes line. Chapman then called for help and other volunteers came out. Luke Chapman went to reception where a kindly couple of New Zealand guests helped him with a towel and a drink. Luke Molnars body was taken away by sea to a hospital ship.

[20] In cross-examination by Mr. Young, Luke said that all the volunteers came out but didn't come near him or Molnar because he warned them not to. He said the ground was flat with a hill at the back. He said it was a rule that they had to wear shoes but can't remember if the group was following the rule that morning. The others were moving about; some at 3 metres distance some at 5 metres distant.

[21] The FEA senior installation inspector told us that he went to the site on the 11th August 5 days after the incident. He gave rather technical evidence as a result of which we are now probably much more knowledgeable about how electricity is conducted in a particular installation. He says that when he got there everything had been cleared away. There was no clothes line, shed, or T.P.S. line for him to see, but he did inspect the general electrical works in the staff quarters. All of his conclusions were on the basis of what the Police had told him. He did a computer aided sketch of what the scene would have been like on the day. He showed us his sketch and explained it. You have seen it and heard him and I don't need to go over that. He said that power of 50 milliamps could kill a man, yet the distributor for this temporary light installed was 20 amps and as a result it would not be easy to "trip" it off. He concluded that the 20 amp device was too big for the task and also that there were not enough protective devices to prevent the victim completing the path from that large amount of 20 amp power.

[22] He completed a report for his superiors which you have seen – in which he concluded that there were not enough safety devices provided and that the whole wiring was substandard. You will recall that he was cross-examined at length by Mr. Young and he gave us more instructions on how electricity works. He said in his cross examination that even if the storm had not blown the temporary shed onto the live wire forcing it to enliven the clothes line, a hazard would still have existed given the nature of the temporary installation. He described what voltage gradient is and how voltage radiates out from a point of contact. He described how different currents, different reactions and different times of reaction would affect the degree of shock a victim might receive. He said tests proved that one had to be 8 metres away from a point of live contact before you could be safe; and that therefore there could have been no electricity through the wet ground when the volunteers came out. Finally he had to admit that it was a possibility that lightening could have caused the clothes line to be electrically charged. That Ladies and Gentleman is a matter for your determination.

[23] The pathologist told us about her colleagues examination of the body and explained the report to us. She said that there were blisters and burns on both palms of hand as well as burns with bruises on the base of neck, the upper chest and upper left arm. The cause of death was a finding that it was consistent with electrocution.

[24] Niumaia Waqatabu was working as a room manager and duty manager at the resort from the year 2000. He remembers Kitione the accused who he said was the electrician there in 2005 and 2006. There was only one electrician. He told us in cross examination that the weather on 9 August 2006 was very bad with rain and wind but couldn't recall if there were thunderstorms. He agreed with Mr. Terere that Kitione had to report to the Chief Engineer who in his day was Mr. Lee Guard.

[25] Romanu Nagata said he was at Tokoriki the same time as Kitione – they were roommates. They had the room at the end of staff quarters. They both started work at Tokoriki in December 2005. He said that in December 2005 Kitione installed electric wires. He joined wires from the tube light in their quarters to the clothes line and from there to the temporary shed. The line from the clothes line to the shed was a different wire. One bulb was put in the shed and it was switched on. These wires were not taken down: they were left there, up until the time that the boy got electrocuted. In cross-examination he said that a switch for the light was installed on the verandah of the quarters and that if any staff wanted work done they had to go through the Turaga-ni-Koro, Apisai.

[26] Ulita Temo was a security officer at Tokoriki at the time. He also said that Kitione did the wiring to the shed and he had seen lights in the shed in the evening and people were drinking kava there. He agreed that he did not personally see Kitione fixing the electrical wire to the line, but he knew that it was Kitione's idea and he thought he had fixed it on his own accord.

[27] You will remember hearing evidence from the OHS witness and the Police witness who made records of interviews held with Kitione. First we heard the interview with OHS inspector Lui Mario read. In that interview Kitione said he was the electrician at Tokoriki for a few months from November 2005. He admitted that he connected the wire from the tube light to the temporary shed for the Christmas party. He said he left the job because he was worried about safety standards with the electrical work there. Well Ladies and gentleman that is all evidence for you to consider in the usual way either for or against Kitione, the accused.

[28] You saw photographs which you might think are not very helpful, but they do show wires trailing and wires tied to trees and what looks like a collapsed shed. It is again up to you what you make of them.

[29] We heard from the Police about an interview they conducted with Kitione on the 7th November 2006. Once again it is evidence for you to accept either for him or against him. I remind you that in this interview he said that he had a Trade Certificate in Electricity from F.I.T and after getting experience at several resorts and hotels he arrived at Tokoriki in November 2005, as an electrician. Again he admitted doing the wiring from the bathroom of his quarters to the temporary shed. He had no idea who fitted his temporary line to the galvanized wire used as a clothes line. He reminded the Police that the incident happened 8 months after he had left the resort.

[30] Sergeant Seruvi said that after the fatality he went to the island and took away the wires and tube light and kept them at Nadi Police Station where they went missing.

[31] Finally for the prosecution we heard from the "Turaga-ni-Koro", Mr. Bavadra who threw more light, (or not) on what happened on the day of the incident. You heard him recently so I won't go right through it.

Most importantly he saw Luke on the ground with the wire running through his fingers, smoke coming out of his body, and he followed the wire up to the tube light. Although there was heavy rain for a couple of hours that morning, he did not see any lightening. He switched the mains off immediately after seeing Luke on the ground.

[32] That then was the case for the prosecution. You heard me explain to Kitione his rights in law. He elected to remain silent which of course is his right. He is entitled to say nothing and thereby say that the State has not proved the case against him. You must not assume that he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing, one way or the other. It does nothing to establish his guilt.

[33] That then Ladies and Gentleman is all I wish to say to you on the law and the facts. Please remember you don't have to accept what I say about the facts – they are a matter for you.

[34] You will each be asked to give a separate opinion either guilty or not guilty, and it is preferable if you are unanimous, but that need not be so. Please advise one of my staff when you are ready and I will reconvene the Court.

[35] Redirections?

Paul K. Madigan
JUDGE

At Lautoka
14 July 2011

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^[1] See R v Misra (CA) [2005] 1 Cr. App. R.21 at para 52
R v Yaqoob [2005] EWCA Cr. 2169 at paras 28 and 29