State v Aziz [2011] FJHC 636; HAC189.2010 (5 October 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO:
HAC 189 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

ABDUL AZIZ
ACCUSED PERSON

Counsel: State - Ms. T. Leweni
For Accused Person - In Person

Dates of Hearing: 26th, 27th, 28th September and 3rd October 2011
Date of Summing Up: 5th October 2011

SUMMING UP

Madam Assessor and Gentlemen Assessors.

1. It is now my duty to sum up this case to you. I will direct you on

matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so, it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

2. 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 form your opinion as to whether the accused is guilty or not guilty.
   
3. The Counsel for the Prosecution and the accused made submissions to you about the facts of this case. That is their duty as State Counsel and right of the accused. But it is a matter for you to decide which version of the facts to accept, or reject.
   
4. You will not be asked to give reasons for your opinions but merely your opinion themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me, but I can tell you that they will carry great weight with me when I deliver my judgment.
   
5. As a matter of law, I must direct you that the onus or burden of proof

rests on the prosecution and it never shifts. There is no obligation on accused person to prove his innocence. Under our criminal justice system an accused person is presumed to be innocent until he is proved guilty.

6. The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of the accused person's guilt before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt then you must express an opinion that he is not guilty.
   
7. Your decisions must be solely and exclusively based upon the evidence which you have heard in this court and upon nothing else. You must disregard anything you might have heard about this case, outside of this courtroom.
   
8. Your duty is to find the facts based on the evidence, apply the Law to

those facts.

9. The accused in this trial is charged with one count of Murder and with one count of Criminal Intimidation. In count No.1, it is alleged that on 10th September 2010 the accused murdered Abdul Rauf. In count No. 2, it is alleged that on the 10th September 2010, accused, without lawful excuse, threatened Samina Bibi to chop her with a cane knife with intent to cause alarm to said Sameena Bibi.
   
10. The offence of murder has three elements which the prosecution

must satisfy you beyond reasonable doubt.

They are:

1. That the accused engaged in conduct; and
2. That conduct caused the death of another person; and
3. That the accused intended to cause the death of the other person by that conduct, or that the accused was reckless as to causing the death of the other person by the said conduct.
   
11. I will now explain these three elements to you.
    

In this case the prosecution says that the death of the deceased was caused by assaulting the deceased with a cane knife, a sharp weapon. Post mortem report and the evidence of the pathologist

speak to the cause of death of the deceased. Prosecution relies on the evidence placed before court to prove that the conduct of the accused caused the injury on the deceased. Therefore it is for you to decide whether the conduct of the accused caused the injury on the deceased.

12. The second element of the offence of murder that must be proved is,

that the said conduct of the accused caused the death of the victim. The Law requires a link between the conduct of the accused and the death. Usually the conduct of the accused causes some specific injury to the victim and that particular injury causes the victims death. Usually the conduct of the accused causes an injury which is the sole cause of death. But it is sufficient if it is an operating or substantial cause of death. In this case the Forensic Pathologist giving evidence said, that the cause of death of the deceased was due to Deep cut injury to the head.

13. The 3rd element that must be proved for the crime of murder is, that

the accused intended to cause the death, or was reckless as to causing death of the victim by his conduct.

14. A person's intentions are locked up in his mind. The intent cannot be

physically observed. However this intent can be proved by what he said or told others including his statement to the police, or it can be inferred from his conduct prior to, during, and subsequent to the commission of the offence.

15. The other relevant factors when considering the intent to cause death, may be the weapon used, the nature of the injuries inflicted, where on the body the victim was struck. In this case according to the post mortem report, there was a 16cm long incised wound with
    

very sharp margins, 7.5cm deep in the middle on left side of face, commences 2cm behind angle of mouth across the lower third of ear lobe, directed backwards and slightly upwards. The Pathologist explained the injury to you. Therefore you decide, whether the person who caused the said cut injury on the deceased head, intended to cause death or was reckless as to causing death of the victim.

You must not find the accused guilty for murder, unless you are sure that the accused, when he did the act, intended to cause, or was reckless as to causing the death of the deceased. In deciding whether he intended to cause or was reckless as to causing the death, you must take into account the evidence which was given in court. If you think that he did not intend or may have not intended to cause the death of the deceased, but he intended to cause serious harm or was reckless as to a risk that his conduct will cause serious harm to the deceased, then you must find him not guilty of murder, but guilty of manslaughter. That means that the accused engaged in conduct that caused the death of the deceased, but it is not proved that the accused had the necessary intention to kill, however he intended to cause serious harm or was reckless as to a risk that the conduct will cause serious harm to the deceased.

16. You should consider all the proved facts and circumstances, and from them you are entitled to draw proper inferences as to the Accused person's conduct, and intentions.
    
17. The accused in his evidence said that Abdul Rauf threw a stone at him, which struck his head and he got injured. He said that he then swung the knife and it hit Abdul Rauf.
    
18. On the above evidence I must direct you on the law of self-defence. You must first consider whether you believe or accept the truthfulness of the above piece of evidence of the accused. If you believe the said evidence, then you must consider whether the accused acted in self-defence.
    
19. As a matter of law I must direct you, that when a man or a woman acts in self-defence to protect himself, he or she is not acting unlawfully. The law defines self-defence as a legal right to defend oneself and to do anything that is reasonably necessary to protect oneself from attack or injury. The law on self-defence is not a charter for revenge or retaliation. So you should think carefully about whether the deceased Abdul Rauf, attacked or tried to attack the accused, and whether in assaulting the deceased with the cane knife, the accused was doing what was necessary to protect himself or whether he was acting out of anger and retaliation. In considering whether the accused acted reasonably, you must ask yourselves what a reasonable man in the accused's shoes would have done to defend himself. You need to ask yourselves the following questions:
    
    1. Did the deceased attack or assault the accused?
       
    2. Did the accused believe that he was under attack?
       
    3. Did the accused assault the deceased with the cane knife in order to defend himself?
       
    4. Was his assault on the deceased reasonably necessary to defend himself? Was it proportionate to what the deceased was doing to him?
       
    5. In considering whether the accused acted reasonably, ask yourselves what a reasonable person in the accused's shoes would have done? Would he assault the deceased in the way that he did? Could he have removed himself from the situation instead of inflicting the said injury?
       

You may also consider the nature of the injury the deceased Abdul Rauf, had received.

20. However in considering self-defence, think of the deceased's conduct and the accused's conduct. Was the accused acting in retaliation? Was it natural for the accused to fear the deceased's assault? These are the questions you must ask yourselves.
    
21. As a matter of law, once the accused raises the issue of self-defence as he has done in this case, the burden is on the prosecution to prove that the accused was not acting in self-defence and you must be satisfied of this beyond reasonable doubt. Because self-defence is a complete defence, if you believe that the accused assaulted the deceased in self-defence, or if you have a reasonable doubt about it you must give your opinions that the accused is not guilty of any offence. If you are sure that the force the accused used was unreasonable, then the accused cannot have been acting in lawful self defence.
    
22. I must also direct you on Killing with Provocation.
    
23. If you are sure that the Accused killed the victim, intending to kill the victim, the Accused is guilty of murder unless you conclude that this was or may have been a case of provocation. Provocation is not a complete defence, leading to a verdict of 'Not guilty'. It is a partial defence, reducing what would otherwise be murder to the lesser offence of manslaughter. Because the prosecution must prove the Accused's guilt, it is for the prosecution to make you sure that this was not a case of provocation, and not for the Accused to establish that it was.
    
24. Provocation has a special legal meaning, and you must consider it in the following way.
    
25. Firstly, you must ask yourselves whether the Accused was provoked in the legal sense at all. A person is provoked if he is caused suddenly and temporarily to lose his self–control by things that have been said and/or done by the deceased rather than just by his own bad temper. The Accused says that the deceased threw a stone at him.
    
26. If you believe the story of the Accused and if you are sure that the Accused was or might have been provoked, in the sense which I have explained, you must then go on to weigh up how serious the provocation was for this Accused. Is there anything about this Accused which may have made what was [said and/or done] affected him more than it might have affected other people?
    
27. Finally, having regard to the actual provocation and to your view of how serious that provocation was for this Accused, you must ask yourselves whether a person having the powers of self-control to be expected of an ordinary, sober person, of the Accused's age and sex, would have been provoked to lose his self-control and do as this Accused did. If you are sure that a person would not have done so, the prosecution has disproved provocation, and the Accused is guilty of murder. If, however, you conclude that such a person would or might have reacted and done as the Accused, your opinion would be 'Not guilty of murder, but guilty of manslaughter by reason of provocation.'
    
28. You should consider all the proved facts and circumstances, and from them you are entitled to draw proper inferences as to the Accused"s conduct, knowledge and intentions.
    

In count No. 2 the accused is charged with the offence of Criminal Intimidation. The elements of the offence of Criminal Intimidation that the prosecution has to prove beyond reasonable doubt are;

1. The Accused,
2. Threatens another person with any injury to him
3. To cause alarm to that person.
   

In this case prosecution says that the Accused after striking the deceased with the knife, chased after Sameena Bibi threatening to chop her. The Accused says that he went and told Sameena not to bring any notice or anybody. You decide which version you accept as true.

The Accused is charged with two separate counts in the Information. You must consider the evidence on each count separately and must not assume that if the Accused person is guilty on one count, that he must be guilty on the other as well. It is your duty to consider whether the prosecution has proven the Accused person's guilt beyond reasonable doubt on each count separately.

29. As a matter of Law, I must tell you that a witness can give evidence on his observations like what he heard, what he saw, and what he perceived. Only on certain circumstances court would allow witnesses to give their opinions on the matter. These witnesses should be experts on that particular subject. For example you get experts on medical field. Two expert witnesses, Forensic Pathologist Dr. Goundar and Dr. Alipate Vakamocea gave evidence, and their expertise in their respective fields, were not challenged and therefore their opinions are admissible.
    
30. On the basis of these legal principles that I have explained to you,

you must consider the evidence in the case and decide what has been proved. As I said earlier it is your function to assess the credibility of witnesses. You decide who is truthful and to be believed.

The Evidence

31. Prosecution called 14 witnesses to give evidence.
    
32. The first witness was Samina Bibi. She had lived with the accused as husband and wife since year 1981 to 2006. Thereafter she had lived with Henry Raj for 2 years and Abdul Rauf for 1 year.
    
33. On 10/9/2010 it had been Eid Festival and she had gone to her sister Amina Bibi's place with Abdul Rauf. From there she had come back with Abdul Rauf and her daughter. Then Abdul Aziz had come to them carrying a cane knife. Then they had stopped walking. Accused Abdul Aziz, had asked Abdul Rauf "why did you come to my land" and struck Abdul Rauf with the cane knife, she said. Her daughter had been with them at that time. Then Accused had chased her. Witness had run to the sister Amina's house and locked the door. She had heard Accused striking the knife on the front door and asking her to come out of the house. She said that Accused wanted to chop her off. Accused had shouted, that he wanted to chop her off. She said that before this date she had been in talking terms with the Accused.
    
34. In cross-examination she denied that she came 5 minutes after Abdul Rauf came. She said that she did not hear Accused asking Abdul Rauf as to why he took his wife away.
    
35. It was put to the witness that Abdul Rauf told the Accused that he was keeping the accused's wife. Also she denied that Abdul Rauf threw a stone on Accused. Also witness denied that the Accused swung the knife when he was hit with the stone.
    
36. Witness admitted that on the 8th February she went with Abdul Rauf to Accused's house to ask for the title of the house. She also admitted that she with Abdul Rauf met Colonel Aziz on the house issue.
    
37. Witness denied that the Accused told her not to bring any notice or

anybody to the house. Witness said that when she came out of the house, she saw him going towards the car. However she admitted telling the police that she saw Accused going to the car through the window of Amina's house.

38. The next witness was Gulnaz Bibi. She is the daughter of Samina

Bibi and Abdul Aziz. On 10/09/2011 when she was at home at about 2pm, she had seen her mother and Abdul Rauf coming. Seeing them coming, her father Abdul Aziz had asked for the knife and the file. Abdul Aziz had gone under the guava tree and started filing the knife. Her mother and Rauf had gone to Amina's house passing their house.

39. Then the witness Gulnaz had gone to her mother at Amina's house

and had told her that Aziz started filing the knife after seeing them. Abdul Rauf had said that "He won't do anything to us".

40. At about 2.00pm she had left Amina's house with the mother and Abdul Rauf.
    
41. Then Abdul Aziz had gone towards Abdul Rauf and had asked him "Why did you take my wife?" Then he had struck the knife on Abdul Rauf.
    
42. After striking Abdul Rauf, Aziz had chased her mother. Rauf had walked a little distance and had fallen. Aziz had followed her mother to Amina's house.
    
43. Amina's son-in-law threw a piece of wood on Aziz, she said. The piece of wood had struck the knife Aziz was carrying and the knife had struck Aziz's forehead.
    
44. Aziz had asked her mother to come out of the house, telling that he wanted to chop her. Then Aziz had come and asked the witness about Rauf. She had said that she did not know. She had asked Aziz to go to the police station and report, as he hit Rauf with the knife and chased her mother.
    
45. Amina then had called Farook and Shameem to take the body of Rauf. She said that when the police came, the body of Abdul Rauf was already taken to hospital.
    
46. The next witness was Amina Bibi.
    
47. She is the sister of Sameena. She said that her sister Sameena came to the house with Karamulla.
    
48. When they left, she had gone up to the gate to drop them. She had seen Abdul Aziz carrying a knife and striking Karamulla with it. Gulnaz had told her mother Sameena to run away. Sameena had come running towards her house, had gone inside her house and closed the door.
    
49. Abdul Aziz had come to the boundary and when she tried to stop him, he had shown her the knife. She said that she got scared and she ran away. She had told her son-in-law Adam Dean, to stop Abdul Aziz. She said that Adam then threw a piece of wood at Abdul Aziz. The wood hit the knife Abdul Aziz was carrying and the knife hit Abdul Aziz's head and got injured. She said that she did not see any injury on Abdul Aziz when he came to the compound.
    
50. Adam Dean had called the police station but there was no answer, she said.
    
51. In cross examination she denied that she was not there and she confirmed that the Accused was carrying the knife and that she ran away.
    
52. The next witness was Adam Dean. He is the son-in-law of Amina Bibi.
    

He had been drinking grog with his father-in-law, when Amina Bibi called him and informed that Abdul Aziz was carrying a knife. Before that Karamulla had been drinking grog with them and had gone to the mother-in-law's place. When he was told that Abdul Aziz was carrying a knife, he had stood up from where he was sitting. He had seen Abdul Rauf walking for a little distance and falling down. Then Gulnaz's mother Sameena had come running towards Amina's house and had gone inside Amina's house.

Abdul Aziz had been coming towards Amina's house carrying a knife. When the Accused showed the knife to his mother-in-law, to save her he said, that he threw a piece of wood at the Accused. The piece of wood he threw had hit the knife and the knife had hit the head of the Accused and the Accused got injured, he said. He identified the piece of wood he threw and also the knife the Accused was carrying.

53. The next witness was Mohammed Haroon, the husband of Amina Bibi. His evidence was that he was drinking grog with Adam and Karamulla. Karamulla had left saying he was going to his house. He had heard his wife shouting that Karamulla had been hit by a knife and whether somebody could save him. He had seen Abdul Aziz holding the knife. He also had seen Karamulla falling down. Accused had chased Sameena Bibi up to their compound. He said Karamulla was already on the ground where he was struck. He had not seen the injury but seen blood on Karamulla's neck. Jimmy had loaded Karamulla on the vehicle and taken him to hospital.
    
54. The next witness was Mohammed Shameem. While he was drinking grog on 10th September, 2010 at about 2:55pm, one of the boys had come and told him that somebody is fighting at the back of the house. When he came out of the house he had seen the Accused walking and carrying a knife. Aziz has told Karamulla that "you are roaming around with my wife and that is why I chopped you". After the Accused went to the Police Station they had gone to Karamulla. He had seen a cut under Karamulla's left ear and bleeding. He said, a person named Faruk Zhim Azim had got one vehicle and loaded Karamulla into the vehicle and taken to the hospital.
    
55. Prosecution called WPC Raksha to give evidence next. When she was on duty on 10th September 2011 at Navua Police Station, Abdul Aziz had come to the station saying "put me inside the cell". She said, at that time at 3pm she was taking over the shift and then she questioned him asking, why to put him inside the cell. Then the Accused had said that he had killed Karamulla and Karamulla is lying at his door step. She had informed her unit in charge and thereafter the Accused was taken to hospital.
    
56. When the Accused came to the station she said there was blood on his shirt and the forehead and was holding a cane knife. She had handed over the cane knife to her crime officer IP Levani.
    
57. The next witness was WSC Mereia Naisilisili. She too had been there at the Police Station when the Accused came with the cane knife. She said that the Accused spoke to WPC Raksha in Hindi. She said the Accused was taken to hospital by Corporal Silio.
    
58. The next witness was Dr. Alipate Navakamocea. He had been attached to the Navua Hospital on 10th September, 2010. Just after lunch a patient was brought in lying down on an emergency trolley. There had been a big injury and he said that they did the ABC assessment where they found that air way was not established. He said the injury was so serious that the patient had already passed away before he was brought to hospital. The injury was on the right side of the neck and it had severed the major arteries.
    
59. He also had examined Abdul Aziz. The Medical Examination reports were produced as Exhibits 1 and 2. He has examined the same person Abdul Aziz on 11/09/2010 at 10am and also at 5:30pm. When the patient was seen at 10am when giving the history the patient Abdul Aziz has said, that he was assaulted with a heavy rock on his head yesterday after an argument. However, in his professional opinion he said, the nature of injury Abdul Aziz had was consistent with a sharp object and assault with a heavy rock was questionable.
    
60. When Abdul Aziz was seen at 5.30pm, the patient has said that he was assaulted by the deceased and that he hit the deceased with a knife striking him in the neck. In his evidence he said that when Abdul Aziz initially presented himself to the Health Centre on the 10th of September 2010, he came without a Police report. On the 10th of September, 2010 when he presented himself Abdul Aziz has said that he was hit with a stick by someone other than the person that he allegedly struck with the knife. He said the injury was consistent with a sharp object being struck on the head.
    
61. In cross examination he said that in his opinion, a heavy rock could have caused other injuries like localized tissue swelling and bruises and that there were no such injuries.
    
62. The next witness was Niko Tawayaga. On 11th September 2010 evening he had gone to Navua Police Station and interviewed Abdul Aziz. He had gone there as a Justice of Peace. He said that Abdul Aziz has no complaints on how the police treated him. He had seen one injury on Abdul Aziz on his forehead. Abdul Aziz has told him that the injury was caused by the other guy who was killed. And also the Accused had told him that he swung the knife and hit the gentlemen who struck the stone on him and had said that he regretted for what he has done.
    
63. The next witness was PC 3052 Pram Siwam who recorded the caution interview statement of the Accused at Navua Police Station. He has recorded it in Hindi language and Crime Sergeant Pradeep had been the witnessing officer. He said that when recording the interview he never threatened him or gave him false promises. The caution interview statement was read before you.
    
64. The next witness was Pradeep Kumar who was the witnessing officer when the caution interview statement was recorded. He said that the Accused cooperated at the time of interview. In cross examination he denied the Accused showing them a stone. He said he could remember that the Accused brought a caveat copy of title to his office. He said that there was a land dispute and that he went to investigate the land dispute. He also said that the Accused told him, that he would remain in the property until High Court Orders come on the advice by Col. Aziz.
    
65. The next witness was Corporal Umesh Raj who was the investigating officer in the case. He said that the exhibits cane knife, a piece of firewood, a file and a 1/3 pant were handed over to him by the crime Sgt. Iokobo. He had taken those to the forensic office and from there to the Navua Police Station. He had attended the post mortem examination of the body of the deceased at C.W.M. Hospital mortuary. In cross examination he said that the Accused was in the Police cell at Navua Police Station from Friday to Tuesday.
    
66. The last witness for the prosecution was the Forensic Pathologist Dr. Ramasamy Ponnusamy Goundar. He is the Forensic Pathologist attached to the Fiji Police Force. Dr. Jean Perera Forensic Pathologist had conducted the post mortem examination on the body of the deceased. He identified the signature of Dr. Jean Perera in the post mortem report. The post mortem report was produced in evidence. The cause of death of the deceased Abdul Rahoop is, Deep cut injury to the head. He said that he agrees with the said finding of Dr. Jean Perera. He said in his opinion, the injury would have caused by a sharp weapon. Further he said that a severe force would have to be used to cause the injury.
    

That was the evidence for the prosecution.

Madam and Gentlemen Assessors,

67. At the end of the prosecution case, you heard me explain several options to the Accused. He has these options because he does not have to prove anything. The Accused chose to give sworn evidence and to subject him to cross examination. You must give his evidence careful consideration.
    

The Accused giving evidence said that Abdul Rauf threw a stone at him, which hit his head and got injured. Then he swung the knife he had and it hit Abdul Rauf, he said.

Before the incident he had reported the matter about the vacation of the land to Col. Aziz in the Prime Minister's Office and twice at Navua Police Station.

In cross examination he said that he saw Sameena running into Amina's house from the gate. He said that Abdul Rauf came alone and not with Sameena and Gulnaz. He said that when he swung the knife, he did not see where it hit the deceased. He said that he chased Sameena when she ran from the gate to Amina's house. However, he denied that he used the same knife on Amina's door. He denied that he wanted to chop Sameena. He said that he went there and told Sameena not to bring any notice. He said that nobody hit him with a wood, but with a stone. However he said that at the interview by the police, he gave the answers voluntarily.

Madam and Gentlemen assessors,

You heard the evidence of many witnesses for several days on behalf of the prosecution and the accused. If I did not mention a particular witness or a particular piece of evidence, that does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.

68. You must decide which witnesses are reliable and which are not.
    
69. Prosecution says that the Accused is guilty of murder of the deceased Abdul Rauf and also he is guilty of criminally intimidating Sameena Bibi. The Accused says that the deceased threw a stone at him which struck his head, and then he swung the knife and that he did not know where it hit on the deceased. Further the Accused says that he went to Amina's house to tell Sameena not to bring any notice or anybody home. You decide which version you accept as true.
    
70. You may use your commonsense when deciding on the facts.
    
71. Approach the evidence with detachment and objectivity. Do not get

carried away by emotion.

72. I have explained the legal principles to you. You will have to evaluate all the evidence and apply the law as I explained to you when you consider the charges against the Accused has been proved beyond reasonable doubt.
    
73. Your possible opinions on Accused on count No. 1 are either;
    

Guilty of Murder or Guilty of Manslaughter or not guilty.
Your possible opinions on Accused on count No. 2 are either;
Guilty,or not guilty.

74. Madam and Gentlemen assessors, this concludes my summing up on

the law. Now you may retire and deliberate together and may form your individual opinions on the charges against the Accused person. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.

75. You may retire to consider your opinions.
    

Priyantha Fernando
JUDGE

At Suva
5th October 2011