State v Dayal - Summing Up [2011] FJHC 475; HAC009.2010 (29 August 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 009 OF 2010

BETWEEN:

STATE

V.

DEWAKAR DAYAL

Counsel: Ms. M. Fong for the State
Mr. A. Sen with Mr. K. Padayachi for the for Accused

Date of Hearing: 22nd to 26th August 2011
Date of Summing Up: 29th August 2011

SUMMING UP

[1] Madam and Gentlemen Assessors, it is now time for me to sum up this case to you. 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 of murder. I will then pronounce the judgment of the Court and your opinion will carry great weight with me in deciding that judgment.
[2] In coming to your opinions, you must apply the law as I explain it to you. It is my duty to direct you on the law. Those directions on the law must be followed by you.

[3] However, you decide the facts of the case. As I speak to you, you might feel that I have formed some view on a particular question of fact. If you disagree then please feel completely free to disregard my version. All matters of fact are for you and you alone. You may take into account the arguments you heard both Counsel make to you in their closing speeches, but you don't have to accept what they say. It is for you to decide the credibility of witnesses and what parts of their evidence you accept as true and what parts you reject. You decide what facts are proved and what inferences you properly draw from those facts. You then apply the law as I explain it to you and decide whether your opinion is guilty or not guilty.

[4] You must come to that decision solely upon the evidence you have heard from witnesses, which includes the exhibits that have been produced. If you have previously heard anything about this case or the people involved, through the media or some other source, you must ignore that completely. If you have read, heard or come across any media publication about the proceedings during the trial, you must ignore them completely.

[5] The law requires the Accused be judged solely on the evidence sworn in this Court. In considering that evidence you are expected to apply your common sense and everyday knowledge of human nature and people. You must please put aside any feelings of prejudice or sympathy which may occur to you one way or the other and arrive at your opinions calmly and dispassionately.

[6] The charge against Dewakar Dayal (the accused) is set out in the information that you each have a copy of. You have heard the accused plead not guilty to this charge. The charge is brought by the State and the onus of proving it rests on the State from beginning to end. There is no onus on the accused at any stage to prove his innocence or to prove anything else. He does not need to give evidence. The law is that the State must prove the essential ingredients of the charge beyond reasonable doubt before there can be a finding of guilty. This means that for you to express an opinion that the accused is guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt about the guilt of the accused then you must express an opinion of not guilty. It is only when you are satisfied so that you are sure of guilt that you may have an opinion of guilty.

[7] The accused is charged with murder. The State alleges that on 12th March 2010 or 13th March 2010 he murdered his wife Ronita Devi at Dreketi.

[8] There are three elements that must be proved for the offence of murder:

1) that the accused engaged in conduct

2) that that conduct caused the death of another

3) he intended to cause the death of that person by that conduct.

[9] Before discussing these elements in detail, I now turn to the State's case. In this case the State do not have direct evidence that the accused did anything to his wife to cause her death with the intention to cause her death, they are basing their case on what is called "circumstantial evidence."

[10] That means that there is no direct evidence from anybody who actually saw the accused assaulting Ronita or throwing her in the river. However, it is not unusual for crimes to be committed in the absence of eye witnesses.

[11] The evidence relied upon by the prosecution in this case is circumstantial evidence. You are asked to piece the story together from witnesses who did not actually see a crime 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.

[12] A common example of circumstantial evidence is fingerprint evidence. Suppose a person's fingerprints are found on an object at the scene of a crime such as a murder weapon. It could be inferred that the person whose print it is had handled that weapon and had been present at the scene. The inference could be drawn even though that there is no direct evidence that the person was seen there.

[13] On some occasions evidence like fingerprints may be the only circumstance relied upon by the prosecution as proof of guilt. However, it is not unusual to find in a criminal case that evidence is given of a number of facts and circumstances. One witness proves one thing and another proves another thing. None of these things in themselves may be sufficient to establish guilt but, taken together, one circumstance building upon the other may lead to the conclusion that the accused is guilty of the crime.

[14] Circumstantial evidence is often likened to the strands that make up a rope. One strand of evidence may not be strong enough to carry the conclusion of guilt, but several strands will make a rope so much stronger so that you can be more certain of guilt.

[15] That is what the State is asking you to do in this case. The prosecutrix has directed your attention to a number of facts and circumstances which she submits have been proved by the witnesses. You are asked to draw from those facts and circumstances the inference that the Accused is guilty of the charge. The defence disputes some of those matters and says that the accused did not murder Ronita and no inference of guilt can be drawn from the circumstantial evidence. In fact the defence goes further than that; they say that the accused never told Ami Chand that he had murdered Ronita, and that he had never said to the father-in-law that he was going to kill her, and that brings me to direct you as follows.

[16] You must consider all the evidence and decide what facts have been proved. It must not be mere speculation or guesswork. It is not sufficient that the proved circumstances are merely consistent with the accused having committed the crime. To find him guilty, you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt that the accused committed the crime. If the inference to be drawn from the circumstantial evidence falls short of that standard then your opinion must be not guilty.

[17] One of the inferences that the State asks you to draw in this case is the state of mind of the accused and that is one of the elements of the crime of murder. If he did assault Ronita, what was his intention to do that? By assaulting her and throwing her in the river did he intend to cause her death?

[18] A person's state of mind is as much a question of fact for you to determine as any other question of fact. It is not possible to have direct evidence of this. No one can look into the accused's mind and describe what he was thinking at any particular time. However, it is something that can often be inferred from all the proven facts and circumstances.

[19] Of course in this case, what the accused said and did before and after Ronita died is highly relevant to his intentions. The State relies on his telephone call to the father-in-law in which he complained about Ronita and his statement that he was going to kill her, they rely on the admission to his friend Ami Chand that he had killed her and on later telling Ami not to tell anyone.

[20] I come now to tell you about the elements of murder.

Firstly that the person engages in an act - well once more as I have said there is no direct evidence of an act but the State is saying that the assault's on Ronita which Mr. Goundar says would have been of some force and then the throwing in the river of the body whether she is conscious or not are the acts that they allege the accused engaged in.

Secondly that that conduct caused the death – again we rely on the evidence of the pathologist, who says that the head injuries would have caused unconsciousness but the actual cause of death was drowning; and thirdly that the person who did the conduct causing the death intended to take the life of the victim.

[21] I have already talked to you about intention, and how it is something you can infer from all the proven facts and circumstances.

[22] You have heard a lot of evidence over the past days, some of it relevant, some of it not relevant at all. It will not be helpful for me to go over all the evidence and I am sure you would not want me to do that, but what I am now going to do is to set out the evidence which the State says forms the basis of their circumstantial case against the accused, and then I will remind you of what the defence says about this evidence. Remember that you don't have to accept what I say about the facts. They are for you. If I mention something that you don't think important, then you can disregard it and if I don't mention something you thing is important then you must give it the weight you wish to place upon it.

[23] The State's circumstantial case is this:

1) The accused was the last person known to be with Ronita at 10pm on the 12th March before she died.

2) At 7 or 7.30pm that evening (that is the 12th March) the accused rang Ronita's father and said that Ronita was talking too much, she couldn't cook and that "I am gonna kill her", and then the call was terminated.

3) At 6.05am he called Ami Chand and told Ami that he had had a dispute with his wife and that he had killed her. They then met a little later at Daloko roundabout and with others present, the accused whispered to him not to tell anybody.

4) Later when searching for Ronita and the body, the accused asked Ami if she had been thrown in the water, would the body dissolve in 2 to 3 days.

5) A fifth point the State relies on is the evidence of a vehicle being at the accused's house during the night of 12th and 13th and a vehicle moving oddly up and down the main road. However, you may think that that evidence is not very helpful, there being no evidence connecting the accused with the vehicle and no evidence even that the two "sightings" were even the same vehicle.

[24] Those points of circumstantial evidence if you find them proved beyond reasonable doubt form the basis of the State's case. However you will have heard the defence strenuously denies that evidence. They say:

1. There is no evidence of any fight or dispute between the couple, and they were in fact on good terms.
   
2. There is no evidence of the accused taking the body to the river; there are no footprints in the boggy river bank nor any items linking the accused to the area.
   
3. They say that the accused never said the killing words to his father-in-law, and to contradict the reported conversation, they produce evidence that Ronita was a good cook.
   
4. They deny that the report of killing was made to Ami Chand and that he was told not to tell anybody. They say that it is unbelievable that Mr. Chand, being a responsible citizen and a member of the Crime committee would not report the crime to the police as soon as possible, and that by reporting it five days later he was just trying to save his own skin.
   

[25] At the end of the prosecution case, you heard me explain to the accused his rights in law. He elected to give evidence which you heard. Now he did not have to give evidence because he does not have to prove anything. The burden of proving the case remains on the State whether he gives evidence or not. However, he did give evidence which is evidence you must consider and give it the weight you think it deserves. You will recall the accused's evidence where he told us in details about the happy relationship he had with Ronita – there were never fights or assaults. He had no reason to kill her – there was no insurance policy and he would in no way benefit from her death. He adopted everything that he said in his caution interview as being true and correct; and in particular he confirmed that he went to bed at 10pm with medication and awoke at 5am to find her missing. He has no idea at all how she came to be in the river dead. He denied saying anything incriminating to his father-in-law or to Ami Chand. He even said that Ami Chand couldn't face him when he made his allegations.

[26] The accused does not have a criminal record and has given evidence of his good character, although that is disputed by the State with their allegations of abuse made to the Ministry of Education. However, if you think that he is of good character then that is evidence you should take into account when assessing whether or not you believe his evidence and secondly the fact that he is of good character may mean that he is less likely than otherwise might be the case, to have committed the crime.

[27] You have seen the cautioned interview that the accused conducted with the police after he was arrested. That is evidence for you to assess in the normal way. You will recall that in the interview the accused denied all knowledge of assaults on Ronita and had absolutely no idea of how she had come to be in the river. He said that they went to bed together at 10pm and when he woke up at 5am she had disappeared.

[28] During the course of the evidence, Counsel for the accused has pointed out at least once a variation between what a witness has said in the witness box and what he had said on an earlier occasion to the police. These discrepancies were seen to be insignificant, however if you think that they were very significant differences, then I must direct you as a matter of law that whatever a witness says in Court is his true evidence not what he says in an earlier statement. If you think that the differences are enormous, then you might doubt the credibility of his evidence in Court, there being two totally different versions afloat. It is entirely a matter for you, but you might not think that you have been pointed to huge differences to warrant that.

[29] That is all I wish to say to you on the law and the evidence; the time has now come for you to retire. You will consider your opinions and you must each tell me your separate opinion when you return. You do not have to be all agreed but it would be better if you are. When you are ready, please let a member of the staff know I will reconvene the Court.

[30] However, just before your leave, I will ask Counsel now if they wish for me to make any redirections to you.

Paul K. Madigan
Judge

At Labasa
29th August 2011