State v Chandra [2012] FJHC 1357; HAC40.2011 (5 October 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 40 of 2011

BETWEEN:

STATE

AND:

SURESH CHANDRA

BEFORE : HON. MR. JUSTICE PAUL K. MADIGAN

Counsel : Ms T. Leweni for State
:Mr. I. Khan with Mr. M. Degei for Accused

Dates of Hearing : 2nd, 3rd, 4th October 2012
Date of Summing Up : 5th October 2012

SUMMING UP

[1] Madam and gentlemen 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.

[2] I 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 adve addressed you on the facts but once again you need not adopir views oews of the facts unless you agree with them. You will take into account all of the evidence both oral and documentary. You can accept some of what a ws says and reject the rest. You can accept all of what he o he or she says and you can reject all. As judges of the facts you are masters of what to accept from the evidence.

[4] ust judge 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 havn. You judge the case solelsolely on what you have heard and seen here.

[5] The court room 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 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 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 Farzana 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 certain elements of the offence.

[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, punching etc., 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 Suresh engaged in the conduct of strangling Farzana and 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 Suresh engaged in conduct that caused Farzana'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.

[12] So once again, what does this mean for us in this case? If you find that Suresh's conduct caused the death of Farzana, you must consider Suresh'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.

[13] The thrust of the prosecution's case is based on what we call circumstantial evidence. They ask you to infer from the circumstances that Suresh strangled Farzana. They say that the various circumstances relating to the case and the accused when taken together will lead to the sure conclusion that it was the accused who committed the crime.

[14] Circumstantial evidence can be powerful evidence; indeed it can be as powerful as, or even more powerful than direct evidence, but it is important that you examine it with care as with all evidence, and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt, or whether on the other hand it reveals any other circumstances which are or may be of sufficient reliability and strength to cast doubt upon or destroy the prosecution case.

[15] Finally you should be able to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing or making up theories without good evidence to support them and neither the Prosecution, nor the Defence, nor you should do that.

[16] So what is the evidence? Please bear in mind that whatever I say about the evidence is my opinion alone and does not have to be accepted by you unless you agree with me.

[17] We heard from Farzana's mother and father who both said she was a good daughter. She lived away from home. On 15 January she called home in the evening in some distress. She said she would come home in a day or two but never did because she died. Her father told us that their son came home very late and told them the bad news, that she had committed suicide. Father went to identify the body at the Nausori Health Centre.

[18] Sgt Rakesh went to the scene and took photographs in her flat and in premises above her flat. You have seen the photos and he went through them with you.

[19] David Singh was the main prosecution witness. He lives upstairs from Farzana's flat and was with both Suresh and Farzana that evening. The two of them came to drink with him upstairs at about 9.30pm. He says that Suresh was drunk. He and Farzana fought over something and he says Suresh punched her in the mouth. She left and went downstairs. David went into his kitchen and being asked to call her by Suresh, he called her through a hole in his kitchen floor that looked into her flat. She said she didn't want to talk - she was upset and said she would "do something to herself". He told Suresh and he said - no she won't do anything and they carried on drinking. Later when only Suresh and the witness David were drinking upstairs, David had to go into the kitchen to prepare milk for his daughter. He was about 20 minutes inside doing that and at one stage looked out to the porch and Suresh wasn't there. He heard a thump downstairs, looked through the hole and saw Suresh in Farzana's flat. She had fallen down and Suresh was holding her by the neck and covering her mouth. Suresh came back upstairs and continued drinking. Kamlesh, another tenant, came and sat on the porch. David went to the washroom and when he came back, only Kamlesh was there. Kamlesh said Suresh had gone downstairs. Suddenly Suresh called out for David. He and Kamlesh went downstairs. Suresh was holding Farzana and he said "when I came in Farzana tried to jump and I tried to save her". One cloth was tied to the rafters and she had a red sulu tied around her neck. This was untied and the Police called. Suresh was excited and "not behaving well". They checked for vital signs and tried to revive her without response. He says that when he looked through the hole he watched for about 5 minutes. There was no light downstairs but he says he could see clearly because there was light from his kitchen, from his brother's kitchen and from the neighbors flat. Anyway it was a full moon, he says.

[20] In cross-examination he admitted that he never told Police when he was being interviewed or making a statement that he had seen Suresh holding her neck - he says that was because he was frightened and in any event Suresh told him not to say anything. He also admitted that he had sold some of Farzana's jewellery to a shop in Suva 2 days after she died. He said she had given it to him as a deposit for rent. He gave rather unsatisfactory evidence about the jewellery but it is all a matter for you. If you don't believe him about the jewellery, it doesn't mean necessarily that he is lying about the incident.

[21] Kamlesh, the other tenant, told us he was also there that evening. He was on the porch drinking with them all and saw Suresh slap Farzana on the face. They had been arguing about a phone. Farzana went downstairs. He had gone to the shop to get cigarettes, after Farzana had gone downstairs. When he left David and Suresh were still on the porch. When he came back and when he was only about two houses away he saw David coming on to the porch from inside and Suresh coming up from downstairs. He sat on the porch with Suresh and David went in again. Suresh said he was going to sleep and went back downstairs. After about three to four minutes, Suresh called out for David and he and David went down to see what the matter was. Kamlesh saw Farzana lying on the floor, with her clothes sodden with urine. She had no pulse, and David called the Police.

[22] In cross examination, Kamlesh said that he told the Police about the slap but they didn't write it down and he said that it was dark downstairs but they lit the scene with their mobile phone lights.

[23] Stephen, David's brother was the one who bought the beer and the cigarettes for the drinking party that night. When he got back Suresh told him to return a lighter to Farzana; he went down but Farzana would not open the door. He said "she spoke she was crying and angry". Later he heard Suresh shouting but he didn't think much of it because they were always "playing" - he thought they were joking. He added that they were drinking that night and that they fought too much.

[24] PC Gasio was the Policeman who arrived at the scene. He had received a report of suicide. When he got there he was briefed by Suresh who said that he had applied CPR. She had been hanging from the roof rafter but he had got her down because he had seen that she was still alive. When the PC arrived she was lying on the floor and he saw a sulu hanging from the rafter. After the post mortem, PC says the Police know it was not suicide but homicide because she had been strangled.

[25] PCorp Satish interviewed the accused under caution although we have not seen that interview. He also got information that some of Farzana's jewellery had been sold in Suva so he went and seized it.

[26] A very important witness for the State was Dr. Gupta, the pathologist. You will recall that Dr. Goundar had done the autopsy and prepared the report but Dr. Gupta who is also a qualified pathologist came to explain Dr. Goundar's report to us. She told us that the cause of death found by Dr. Gupta was asphyxiation caused by strangulation. She ruled out death by hanging because she said that there were no ligature marks or "furrows" on the neck - signs which are present whenever there is death by hanging. There were also contusions on the brain which she says would have been caused by impact from a blunt object.

[27] That then Madame and Gentlemen brought us to the end of the prosecution case. The accused being properly advised of his options in defence elected to give no evidence nor to call any witnesses. As I have already said to you that is his right. He does not have to prove anything to you. The burden of proof rests upon the State. You must not read anything into the fact that he has not given evidence. You must not assume that he is guilty because he has not given evidence.

[28] So that is the end of my summary to you of the evidence. You are to apply the law as I have directed you to the facts as you find them and you will reach an opinion which you will render individually to me after you deliberate. It would be far better if you can be unanimous in your opinion but that is not strictly necessary if you can't be.

[29] You will be asked for your opinion on the charge of murder and your reply will be either guilty or not guilty.

[30] You may now retire to consider your opinions. You will let my staff know as soon as you are ready and I will reconvene the Court.

[31] Redirections Counsel?

Paul K. Madigan
JUDGE
At Suva
5th October 2012