State v Shaw - Summing Up [2012] FJHC 34; HAC001.2009 (23 January 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 001 of 2009

STATE

v

1. TRACY BERNADETTE SHAW
(1st accused)

2. VARASIKO TUWAI
(2nd accused)

Mr F. Lacanivalu (with Mr T. Qalinauci) for the State
Mr T. Terere (LAC) for the first accused
Mr A. J. Singh (LAC) for the second accused

Date of Hearing : 16th January – 20th January 2012, 23rd January 2012.
Date of Summing Up: 23rd January, 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.

[3] Counsel have addressed you on the facts but once again you need not
adopt vier views of the facts unless you agree with them and I will say more about that a littler. You will take into account all of the evidence both oral oral and documentary. You can accept some of what a witness says and reject the rest. You can accept all of what 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] You must judge udge this case solely on the evidence that you heard in this Court room. It is not for the defence to tell you who should have given evidence in this case. The prosecution can call whoever they wish and you must judge the case on that. There will be no more evidence, you are not to speculate on what evidence there might have been or should have been. You judge the case solely 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. You cannot feel sorry for anybody and let that cloud your view of the evidence.

[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 these two 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 or her not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused do not have to prove anything to you. If however you are sure that either of the two accused murdered Mohammed Nasir then you will find him or her guilty.

[8] The two accused are charged with the offence of murder contrary to Section
199 of the Penal Code. It is alleged that they murdered Mohammed Nasir on the 17th December 2008 at or near Cuvu, Sigatoka. I am sure you all know what murder is, but in law it has specific elements which the prosecution must satisfy.

[9] Murder is committed when a person causes the death of another person by an unlawful act with malice aforethought. Malice aforethought is an old fashioned legal phrase which is the state of mind required to be proved in the offence of murder.

[10] The prosecution must prove beyond reasonable doubt three essential elements of the offence of murder

(i) that the accused did an unlawful act

(ii) that the unlawful act caused the death of the deceased

(iii) that the accused acted with malice aforethought.

[11] An unlawful act is something done by a person against the law. A very common example of an unlawful act is where a person deliberately applies force to another person without legal justification such as self-defence. If a person intentionally punches or kicks another without legal justification then that is a criminal assault and therefore an unlawful act.

[12] The second ingredient that must be proved is that the unlawful act caused the death of the victim. The law requires a link between the unlawful act and the death. Usually the unlawful act causes some specific injury to the victim and that particular injury causes the victim's death. Usually the unlawful act causes an injury or injuries which are the sole cause of death. But it is sufficient if it is an operating or substantial cause of death. The pathologist's evidence is relevant here. She says that the death was caused by extensive haemorrhages within the brain caused by severe blunt trauma to the head. You will therefore probably have no trouble in finding that the punches and kicks to Mohammed Nasir were the unlawful acts which led to his death. Even if you accept the submissions of the defence that he died because he was pushed out of a vehicle; that does not absolve the accused if you find that they punched him and kicked him so much to cause the brain injuries. Those kicks and punches are the substantial cause of death and even if he was alive when pushed out of the vehicle, it doesn't matter. If you find that between them Tracy and Varasiko did these acts which led to his death then the state would have proved to you the first two elements of murder.

[13] The third element that must be proved for the crime of murder is that the person who caused the death of another by an unlawful act did so with "malice aforethought". This is an old legal term which describes a particular intention or state of mind. It is an intention to cause death or an intention to cause very serious harm to the victim or in knowledge that death or very serious harm would probably be caused, accompanied by an indifference whether it is caused or not. So the prosecution must prove beyond reasonable doubt that either of the accused whose case you are considering intended to kill the deceased or do him serious injury. He does not have to intend death, it is enough for murder if he just intends to cause him serious harm and death results.

[14] There are two accused in the dock in this case and because there are two that gives rise to two important directions on the law: first you must consider the case against each accused separately and he or she is entitled to be tried solely on the evidence that has been adduced against him or her. You may come to a separate considered opinion on each of the two
accused. Just because they are jointly charged does not mean that they are both guilty or both innocent; you must look at each accused in turn.

[15] Secondly when it is alleged, as it is by the State in this case, that the offence is committed by two persons, each of them may play a different part, but if they are in it together as part of a joint plan or agreement to commit it, then they are both guilty. An agreement can be inferred by the behavior of the parties or by some other evidence. The essence of joint responsibility for a criminal offence is that each accused shared the intention to commit the offence and took some part in it (however great or small) so as to achieve that aim.

[16] What all that means in this case is, that if you believe the cautioned interviews (and I will come to them later), and you believe that both Tracy & Varasiko had agreed to kill Nasir, then whoever throws the killing punches or kicks is not important. They are both guilty of murder because one of them has punched or kicked, assisted by the other – it is all part of the joint agreement to kill and both play a role.

[17] I don't propose to go over the evidence in great detail; it still being fresh in your minds, but it is my duty to remind you of the main points of the prosecution case and also of the defence case.

[18] The two accused first came to the attention of the authorities after the injured body of Mohammed Nasir was found. A mobile phone belonging to the deceased was being used and Asinate told us that Tracy had called her in the evening of 18th December and she noted the number calling being 9947081. She was sure it was Tracy. Inspector Aliposo told us that that number was the number of Nasir's phone. He saw a print-out of Vodaphone records for the relevant period and saw that the victim's phone [phone]) had indeed called Asinate on her number 7155247.

[19] Several witnesses told us they went to search Phillip Shaw's house where Tracy was reportedly staying. They had a search warrant and went to the house where they found a red Nokia phone (Ex. 2) and Sunglasses (Ex. 3) both of which were identified by the deceased's wife as belonging to the deceased.

[20] Etuate told us that when walking to meet his wife at about 8.00pm on the evening of the 17th December, he saw Tracy and the man he assumed to be her husband first at the store and then a little later sitting in a taxi being driven by the deceased. This was the last time anyone saw the deceased, apart from Tracy and Varasiko.

[21] We heard about the taxi being found abandoned near the Cuvu Police Post and the body being found in Ciri near Semo village. The body was found by Panapasa a witness whose statement is agreed. He found the body lying on a creek bed and he alerted the Police. He saw black insulation tape around the fingers.

[22] The major part of the evidence relied on by the prosecution are the caution interview and the charge statement made by each of the two accused. You have seen these and heard them read to you so you will be familiar with the content, but I must tell you how in law you should deal with this evidence. All of these four documents contain confessions to the crime: Firstly Tracy saying she stood and watched while Varasiko punched and kicked him after tying his hands with black tape and then she changed her story to say it was all her doing, dragging Nasir out of the taxi and taking him up the hill for a "chat" about how he was spreading gossip. After that her husband Varasiko came and started punching Nasir until he was unconscious. They put him in the car, drove around and then dumped Nasir at Ciri Road. She admitted taking the sunglasses and stereo face and she admitted that she wanted Nasir dead. She further said that when going out that night it was her intention to kill Nasir.

[23] In her answer to charge, Tracy said she had been planning to kill Nasir ever since she had his baby and he didn't contribute or care for the child; and that she had killed him all for the sake of her baby.

[24] I must direct you ladies and gentleman that anything a person says in a caution interview is evidence against that person alone and anything said about any other person is not evidence against that person.

[25] In his caution interview, Varasiko said that on the night of the 17th December "we both agreed to kill a taxi driver from Naidovi namely Nasir" and he admitted that he had assaulted and stabbed the deceased. At Ciri Road he was pushed out of the taxi and onto the stony ground. When he did that "we really want him to die so that he won't reveal the incident to anyone".

[26] In his answer to charge Varasiko said that he used a pen knife, not a kitchen knife.

[27] It is the first accused's case that she made none of these admissions and that they were fabricated by the Police but that to the extent that she is said to have adopted the admissions by appending her signature to those documents she was forced to do so; that the signatures are therefore worthless; and that the admissions are untrue.

[28] Varasiko did not give evidence which is his right, he does not have to prove anything to you, but it also means that he has provided you no help as to how his confession in the caution interview came about. Counsel for the second accused told you in his closing speech that his confession was extracted by unfair means and by force. Well there is no evidence of that at all.

[29] In deciding whether you can safely rely upon the admissions, you must decide two issues;

(i) did each of the accused in fact make the admissions? If you are not sure that she or he did you must ignore them. If however you are sure that he or she did then;

(ii) are you sure that the admissions are true?

In addressing that issue (whether the answers are true) then you should decide whether they were or may have been made or given as a result of something said or done which was likely to render them unreliable. If you conclude that that answers were or may have been obtained by the Police as a result of something said or done which was likely to render them unreliable then you must disregard the admissions.

[30] In this case, in respect of the first accused she alleges that she agreed to anything the Police said because she wanted to see her baby. If you conclude that that allegations is or may be correct and the confession was obtained as a result of that then you must disregard the confession.

[31] Varasiko has said nothing.

[32] If however, you are sure that the first accused made the admissions and that they were not obtained in that way, you must nevertheless decide whether you are sure that the admissions are true. If, for whatever reason, you are not sure that the admissions are true, you must disregard them. If on the other hand, you are sure that they are true, you may rely on them.

[33] That then is all I wish to say. Remember whatever Tracy says in her interview about Varasiko is not evidence against him, but what he himself says in his caution interview is evidence if you accept that he said it and if you accept that it is true.

[34] So to conclude; if you think Tracy and Varasiko acted together jointly intending to kill Nasir and that they assaulted him to cause his death; then you will find each of them guilty of murder. If you do not think so, or if you are not sure you will find each of them not guilty. Remember to look at each accused separately.

[35] You need not be all agreed, but it would be better if you are.

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

[37] Any redirections Counsel?

P.K. Madigan
JUDGE

At Lautoka

23rd January, 2012.