State v Temo - Summing Up [2012] FJHC 1138; Criminal Case060.2011 (29 May 2012)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. 060 of 2011

BETWEEN:

STATE
Prosecution

AND:

LEPANI TEMO
Accused

BEFORE : Mr. Justice Paul K. Madigan
COUNSEL : Ms. M. Fong for State
Mr. S. Waqainabete (L.A.C.) for Accused

Dates of Hearing : 21 and 22 May 2012
Date of Ruling : 22 May 2012
Date of Summing Up : 29 May 2012

SUMMING UP

[1] Ladies and gentleman assessors

The time has come now 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.

remind you thou 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 the truth lies in this case. If I express any particular view of the facts in this summing up then you will ignore it unless of course it agrees with your view of that fact.

[3] Counsel have adve addressed you on the facts but once again you need not adopt their oews of the facts unless yree with them. You will take into account all of the evidence both oral and documentary. Yoy. You can accept some of what a witness snd reject the rest. You can accept all of what he or she sahe says and you can reject all. As judges of the facts you are masters of what to accept from the evidence.

[4] You muste udge 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 might have been or should have been.

[5] The court room ioom is no place for sympathy or prejudice. 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 after you were 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 him 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 murdered Susanna then you will find him guilty.

[8] The accused is charged with one count of murder. I am sure you will all have an understanding of what murder is, but it has a specific legal definition and to prove their case the prosecution has to prove to you so that you are sure, all the elements of that definition.

[9] In law murder is made up of three elements;

(i) a person engages in conduct

(ii) that conducts causes the death of another person

(iii) the person intends to cause the death, or is reckless as to causing

the death of the other person by the conduct.

[10] So conduct can be anything such as stabbing, strangling, poisoning; or in our case slashing with a knife, and if that conduct causes the other person to die, then the third element comes into play. The State in this case are saying that Lepani engaged in the conduct of slashing Susana so violently that it caused her death. They also say that he was not necessarily intending to kill her but that he was reckless in causing her death. Now a person is reckless with respect to causing death if he is aware of a substantial risk that death will occur by his actions and having regard to the circumstances known to him, it is unjustifiable to take that risk. So in our case you must find proved that Lepani engaged in conduct that caused Susana's death and that he knew that there was a risk that what he was doing might kill her and also that he was not justified in taking that risk. You might think that a knife cut so strong and deep as to sever the respiratory organs and the vertebrae must have been recklessly administered as to whether it would cause her death or not, and that Lepani was aware of that risk and had no justification for it.

[11] So once again, what does this mean for us in this case? If you find that Lepani's conduct caused the death of Susana, you must consider Lepani's recklessness. If you think that he was so reckless that there was every chance of death occurring by his actions, then he is guilty of murder; however the accused is saying that it was not him at all who inflicted the blow so if you agree with that proposition, then there is no need to go on to consider intention or recklessness because they are not relevant.

[12] To be fair both to the prosecution and to the defence I will now go over the evidence aired in this case. There has been a lot of evidence in this case much of it unnecessary but I shall summarise the important points for you. Again I remind you that if I seem to think something is important or I leave out evidence which you think is important, then you will ignore me and act on your own good judgment for you are the masters of the facts.

[13] The deceased's cousin, Maria, told us that on the 19th November she and Susana got ready to go to a fund raiser at a nearby Gunusede and they left their home at about 6.30 to 7pm. On the track down to the main road, Maria had dropped her jacket and going back for it she saw a man coming out from their house gate. She went and caught up with Susana, looked around and saw that the man was following. He had a cane knife in his hand. Maria told Susana to run. The man was also running. He ran past Maria and Maria looked at him. She recognized him. It was Lepani, the accused. He ran after Susana towards Colin Caine's driveway. Maria did not keep up and went up to Colin's house by a different path. Maria then run across Meraia, the caretaker Matei's wife. Meraia told her that Susana was lying in Colin's compound. Maria ran there. Su's hands and legs were shaking and there was a large deep gash on her neck. Others from Colin's house had gathered around Susana. It was suggested to Maria in cross examination that she had got her times wrong and that it was getting dark and so she wouldn't not have been able to have seen these events very clearly. Mr. Waqainabete also suggested to Maria that the hat the man wearing would have obscured her view of his face and she therefore could not be sure that it was Lepani. He finally suggested to her that as she did not see any chopping, she could not then be sure that it was Lepani who had wielded the fatal blows. These are all matters for you to consider Ladies and Gentlemen.

[14] Mr. Caines (Colin) owns the property on which Susana was chopped and where she died. He was having a small party at the time and he and several others saw the chase into his compound, heard shouting and he saw a woman being hit with what he thought was a large stick. Some of his guests went down the property to Susana while he got a first aid kit and a blanket. An ambulance was called as were the Police.

[15] Salote, a lady cooking at the party, heard a strange noise and going to investigate saw Susana running into the compound then falling. She also saw a man running and holding something in his hand. She saw him hit Susana with whatever he had in his hand. It was still daylight and she could see what was happening. The man ran away, Salote approached and recognised the girl to be Susana. Salote called out to her and her only reply was "Lepani" in a soft voice.

[16] Mataisai lived in the caretaker's house at Colin Caines' property. He was at home at 7pm on the 19th November playing with his children. He heard one or two shouts and so he ran out and ran down towards Colin's pool. He heard the noise of a punch and a "whacking" sound. It was starting to get dark and there was a little fog around but he saw someone running and saw a lady lying down. He was only 2 steps away and recognized the lady as Susanna. He saw a man running away down the driveway. Matai called out Su's name. She looked at him and said "Lepani" twice. She said it quite loudly and it was clear. She had a deep and open cut on her neck.

[17] We then heard from the lady Doctor who was summoned to the scene from Taveuni Hospital. She and a staff nurse had trouble finding Colin's place but they got there eventually after dark. A car's headlight was illuminating the scene. She checked the body for vital signs but sadly there were none. She saw the neck wound which she said was deep and probably caused by a chopper or a knife using a lot of force. She said that the wound would have destroyed the deceased's respiratory functions.

[18] P.C.Thomas arrived at the scene before the lady doctor. He heard the Doctor pronounce Susanna dead. He was also a member of the Police team that went on a reconstruction with the accused in the afternoon of the 24th November to Qacavulo and then on to Soqulu. He saw a cane knife being recovered at Qacavulo from under a tree beside the accused's house. He was present throughout the reconstruction and said that the accused was calm and conversational and co-operative. Photos were taken. In cross-examination he denied that there were any assaults on the accused during the reconstruction.

[19] D.Cpl Leone Davila is a specialist in forensic matters, including scene of crime photographs, fingerprints, blood samples, gathering exhibits etc. Based in Labasa he went to Taveuni to assist in the investigation. He took photographs of the scene at Colin Caine's house, all of which you saw. He took possession of the cane knife which he produced and he handed his duties over to another officer DC Jone.

[20] P.C. Daniele was the officer who interviewed the accused under caution. He described the process to us. The interview was conducted over three days, on Monday 21st November, Wednesday 23rd and Thursday 24th. Tuesday the 22nd was taken up with enquiries. The interview was in the Fijian vernacular, a record kept and signed by the accused. It was produced in evidence, read aloud and you have copies of the English translation. You will have heard and seen that on the Monday 21st, the accused denied all knowledge of the crime, a stance which he continued to take on Wednesday the 23rd. On the 24th however, he admitted the offence and as a consequence led a party of Police to the various scenes of interest. He told Daniele that he wanted to "relieve the pressure". At the reconstruction he was talkative, and making no complaints. More photographs were taken. He pointed out sites of his own free will with no coercion by the Police. I will later tell you how you should approach the evidence of the cautioned interview.

[21] P.C. Jone took over as scene of Crime officer from Cpl Leone. He took yet more photographs and in particular of the recovery of the weapon at Qacavulo. He too was at the reconstruction and said that the accused was co-operative and made no complaints. There were no assaults and he saw no injuries on the accused. Cpl Elia said much the same, producing yet more photographs and in particular of the reconstruction at Soqulu.

[22] Sgt Joji administered the formal charging of the accused, the charge of murder and he recorded the accused's answer to that charge. You have seen the English translation of that charge statement and you will recall that the accused said that he didn't mean to kill Su, that he struck her with the cane knife just to injure her.

[23] The evidence of Dr. Goundar provided us with information about Su's injuries. He conducted the autopsy and produced a report which you have before you. Apart from a cut on her right arm, the major injury was the neck injury which was a very deep gaping wound cutting right through the vertebrae. He said that this injury would have caused nearly instant death. The next medical witness told us he visited the accused in his cell on Friday the 25th November. He said that the accused was complaining of a knee injury and he found him with an infected knee with two small abrasions on the knee. He found no other injuries on the body. He prescribed antibiotics for him. He gave the opinion that the abrasions could have been caused by contact with any hard surface and could have been caused by a stone or stones.

[24] The final witness in the State's case was Timoci Vunituraga. He told us about events occurring in Soqulu the night before Su was killed. He said he had seen the accused outside a vehicle that he and Su were in that evening, and he was quite sure that it was the accused because he had lived with him for a while and they grew up together. He also told us of other incidents that night, and that is evidence that you should not have heard because it was highly prejudicial and did nothing to prove the accused's involvement in Su's murder. It should have been objected to at the time but it wasn't. I ask you to put that evidence from your mind and to place no weight on it whatsoever. The value to you of Timoci's evidene is that he says he saw the accused in the area the night before Su died.

[25] That Ladies and Gentleman, was the end of the prosecution case. You heard me explain to the accused his rights in defence and he chose to go into the witness box and give evidence under oath. Now the accused did not have to give evidence because he has nothing to prove. He could sit back and say that the State has not proved its case. His giving evidence does not relieve the State of the burden on them to prove to you so that you are sure that Lepani murdered Susana. However he having given evidence you must consider it and give it the weight you think fit. If you don't believe his evidence that doesn't make him guilty. It just means that you will discard it and concentrate solely on the strength of the State's case.

[26] Lepani told us of how he had been farming in the Qacavulo and Soqulu areas starting from January 2010. He had rented property from Su's sister and he worked for Su who was the caretaker of the property for her sister. He paid ground rent to lease the land. he farmed dalo and yaqona. There were several instances of aggression from outsiders on his property all it appears over the ownership of various plantings of dalo. First there was an aggressive villager who challenged him while holding a spade and a cane knife, and then there was a confrontation with three members of a youth camp near his property. In one of the confrontations the leader of the Youth Group had savagely knifed Su's dog. The Youth Leader was violent and was trying at times to get to Su with his knife. Lepani warned Su against him. There was an incident over the arson of a house and the accused was suspected. He even had to go to Court several times in connection with the allegation.

[27] Lepani told us that he and Su, who was separated from her husband Ioane, were having an affair. This relationship led to tensions when Ioane came back and they were having fights over each other's new relationships. One night Su came injured to his camp. She said that Ioane had beaten her with a rope and with a stick. Lepani said that Ioane kept beating her.

[28] Everybody in Soqulu had turned against him because of the affair and because of the land disputes. They all hated him. He was even accused of being a robber and a thief and had to go to Court. In September 2011 people had even destroyed his "camp" at Soqulu and also at Qacavulo. He decided to keep working at Qacavulo and vowed never to return to Soqulu because of the tension there - the tension being first from the aggressive farmers of illegal dalo patches and also from Su's husband and family over their affair.

[29] On the 19th November 2011, the night Su died, he was at his camp in Qacavulo. The next day Police came for him and took him to Taveuni Police station for enquiries. On the 21st November they took a statement from him and a Legal Aid Counsel came to see him. That afternoon at about 3pm the Police got "strong in tone" and took him to a room where they assaulted him. He was handcuffed, they hit his knees with a stone, they made him lie down, stripped him and rubbed chilies all over his body. He was punched on the head and one officer stomped on his body while he was lying down,

[30] In the afternoon of the 24th November he was taken by a group of officers to Qacavulo and to Soqulu. He was again assaulted at the scene. He was punched from the front and from behind. At Soqulu he was made to point out scenes of interest at the Police's direction. He was taken back to the station where his statement was completed. he was in so much pain from the Monday assaults that he admitted the offence to the Police.

[40] The accused called one witness, a Ms Lemaki who is an officer with the Legal Aid Commission here in Labasa. She was in Taveuni for a week from 21November 2011 attending to Court cases. At the request of the Police she visited the accused in the Police Station on the first day he was being interviewed. He looked "alright" and had no injuries. He told Ms Lemaki that the Police were pressuring him to admit the allegation of murder. She gave him legal advice including the advice that he need not say anything. She said that she did not advise him that he could have a lawyer with him throughout the interview nor did she consider that it be necessary that she stay with him.

[41] Well Ladies and Gentleman that was the case for the defence. You will give it whatever weight you think fit.

[42] I must now give you directions on how to approach the accused's confession in his caution interview. The State says that after two days of denial the admissions to the murder were made quite voluntarily and of his own free will and should be considered by you. The accused says that he was assaulted at the Police Station and because of great pain from those assaults he confessed in desperation. Now if you think that the accused was assaulted or may have been assaulted then you will discard the interview and give it no weight whatsoever. If on the other hand you don't believe he was assaulted, the answers in the interview become evidence in the normal way for you to consider. It is all a matter for you.

[43] The defence case is that the accused had nothing to do with the murder - it wasn't him at all in Soqulu that evening. If you believe this or think it may have been true, then you will find him not guilty. If however you think he was there, he chased Su with the knife and chopped her neck, then you will find him guilty of murder as charged.

[44] You may now retire and consider your verdict. You will be asked to each return an opinion to me on the evidence, opinions to which I will give great weight in coming to the final judgment of the Court. It is best if you can all be agreed on your opinions but that is not strictly necessary if you can't agree. Please let one of my staff know when you are ready and I will reconvene the Court.

Redirections Counsel?

P.K. Madigan
Judge

At Labasa
29 May 2012.