State v Wati - Summing Up [2011] FJHC 575; HAC020.2010 (22 September 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC F 2010

STATE

vs

GYAN WATI

Ms.ng for State
Mr T.Lee [L.A.C.] for the Accused

SUMMING UP

[1] Ladies and gentleman assessors

The time has come now assessors for me to sum up the case to you and to direct you on the law involved so that you can apply those directions to the facts as you find them.

[2] I remind you that I am the Judge of the Law and you must accept what I tell you about the law. You in turn are the Judges of the facts and you and only you can decide where theh lies in this case. If I express any particular view of thof the facts in this summing up then you will ignore it unless of course it agrees with your view of that fact.

[3] Counsel hddressdressed you on the facts but once again you need not adoptr views oews of the facts unless you agree with them. You will take into account all of the evidence both oral and documentYou ccept some of what what a witness says and reject the rest. You can accept all of what he orhe or she says and you can reject all. As judges of the facts you are masters of what to accept from the evidence.

[4] You mudge this this case solely on the evidence that you heard in this Court room. There will be no more evidence, you are not to speculate on what evidence there migve been or should have been. You judge the case solely on w on what you have heard and seen here.

[5] The court room is no place for sympathy or prejudice. Perhaps you have strong views on marriage infidelity, but you must not let things like that cloud your view. Nor must you feel sorry for Gyan because her husband was cheating on her. You must judge this case solely on the evidence produced in this Court and nothing else

[6] I am not bound by your opinions but I will give them full weight when I decide the final judgment of the Court.

[7] It is most important that I remind you of what I said to you when you were being sworn in. The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find her not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you. If however you are sure that the accused counseled Saula Jr. to murder Shila then you will find her guilty.

[8] The accused is charged with one count of counseling murder which I assure you is a crime under the Laws of Fiji. I think you will all

understand what murder is; it is the taking of another's life unlawfully and intentionally. I will not go into detail on the law of murder because it is unnecessary in this case. Gyan is not accused of murdering anybody. What she is accused of is counseling another to murder.

[9] It is the prosecution's case that the accused was not present when the offence of murder was committed, but that she is nevertheless guilty of the offence because she counseled its commission. Counseling means that a person advised, encouraged or persuaded another to commit an offence.

[10] Before you can convict the accused of this offence you must be sure:

(i) That Saula Jr in fact committed the offence of murder;

(ii) That the accused counselled Saula Jr. to do it in the sense that she ordered advised, encouraged or persuaded him to do it AND;

(iii) That the offence which Saula Jr committed was within the scope of what the accused counseled him to do.

[11] You have heard the evidence over the last few days and it will be fresh in your minds. I don't then intend to cover it in much detail but I will remind you of what I think are the most important pieces of evidence. But bear in mind what I told you in the beginning; if I express a view on the evidence you do not have to accept that view unless it accords with your own view. Also, if I do not mention something which you think is important, then you will give that fact the weight which you think it deserves.

[12] We heard from the accused's husband who admitted to us that he was having an affair with Sushila and that his wife didn't know about it. Well that is a matter for you whether you believe that or not.

[13] Kamlesh and Ronald told us about finding Sushila's body on the morning of April 29th when they went there in reply to Sanus cries for help.

[14] You will remember the crucial evidence of the two girls. Poonam was a student staying with Sushila for a couple of years and she knew that Nirbhay was having an affair with Sushila and that he used to come to the house nearly every day. She told us that she would have conversations on the road with the accused and recalls that on 7 to 8 occasions Gyan told her that she(Poonam) was to tell Sushila to stop "seeing" her husband, and if she didn't stop seeing him she would arrange for someone to kill her.

[15] Ashweta or Sonu is the daughter of the deceased. She and Sushila were alone in the house when they went to bed on the night of the 28th. During the night (she didn't say what time) Vijay came and knocked on the door. She said that Vijay was Saula Rokobukai Jr. and that he had been to the house that afternoon with her Aunty. When he came in the night, Sushila didn't want to let him in but he threatened to break the louvres if she didn't. Sushila let him in and at first Sonu watching from the bedroom door saw them talking and then she saw Vijay putting a wire around Sushila's neck. There was light from a kerosene lamp and she was sure that it was Vijay. The post mortem report is part of the agreed facts and we can see from that the cause of death for Sushila was asphyxia due to strangulation. There was a deep groove around her neck which can again be seen in the report and also in the photos. You might have no difficulty in finding that because this is in consistent with a wire being pulled around her neck.

[16] We then heard from some Police witnesses. Corp Gyan Singh was one of the first officers at the scene. He took the photographs which you have seen. He said that there were three suspects for the murder, but that eventually Saula Jr. was charged and convicted of Sushila's murder.

[17] Faradan Bi was the Police lady who interviewed the accused under caution. You have seen that interview and heard it read to you. You will know that towards the end of the interview the accused has made admissions to counseling Saula Jr. to murder Sushila. Now the defence says that those answers were made in response to threats and duress. She was threatened with rolled up documents and told that if she did not admit she would have to sleep in the deceased's clothes. WPC Faradan said there was nothing of the sort and that the accused gave all her answers voluntarily. It is again a matter for you. If you think that the answers in the interview were given as a result of threats or intimidation, then you must discard the whole interview and not take it into account. If however you think that the answers were given quite voluntarily and are true, then the interview becomes part of the evidence for you to consider in the normal way. If you think that the answers Gyan gave are true then you can rely on them. You have also seen the accused's answer to her formal charge where she said that she did not kill Sushila, she did not plan to kill her nor did she ask anybody to kill her.

[18] The accused gave evidence in her own defence. She did not have to give evidence because she does not have to prove anything. But you are to consider her evidence along with all the other evidence. She told you that she and her husband used to fight over his visits to Sushila and she felt very bad about that. She also said that she did not send Saula Jr. to kill Sushila. When she made her admissions in the Police interview, she had been threatened by the Woman Police Constable with rolled up papers and with having to sleep naked. It is of course a matter for you whether you believe her evidence or not, but if you do not believe her that still does not relieve the burden on the State to prove to you that you are sure that Gyan committed the offence of counseling to murder.

[19] I come back now to the elements of the charge which you have to find have been proved to you beyond reasonable doubt.

[20] First that Saula Jr. did in fact murder Gyan. Well you have heard evidence from the Police witnesses about him being convicted of her murder, but I can go further than that. You can accept the fact that he has been convicted of Sushila's murder: his conviction and sentence are matters in the public arena.

[21] Secondly you have to make a finding of fact whether Gyan counseled Saula Jr. to commit the murder. In this regard you have the evidence of Poonam and her conversations with the accused; you have the cautioned interview answers given by Gyan if you find that the interview wasn't generated by threats or intimidation.

[22] Lastly you have to find whether what Saula Jr. did was within the scope of what Gyan counseled him to do. That is to say, did he do exactly what she encouraged him to do, or did he go beyond what she was expecting of him.

[23] Well that is all I wish to say to you on the law and the facts Ladies and Gentleman. You may now retire to consider your individual opinions. You need not be all agreed but it would be better if you are. When you are ready you will tell one of my staff and I will reconvene the Court.

[24] Any redirections Counsel?

Paul K. Madigan
JUDGE

At Labasa
22 September 2011