State v Ratoa - Summing Up [2012] FJHC 924; HAC173.2010S (17 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 173 OF 2010S

STATE

vs

VILIAME RATOA

Counsels : Ms. A. Lomani for State
Mr. S. Waqainabete and Mr. N. Sharma for Accused
Hearings : 13th to 16th February, 2012
Summing Up : 17th February, 2012

SUMMING UP

1. ROLE OF JUDGE AND ASSESSORS
   

1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
   
2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
   
3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
   

2. THE BURDEN AND STANDARD OF PROOF
   

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
   
5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused'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.
   
6. Your decision must be based exclusively 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. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   

100. THE INFORMATION
     

7. The accused, Viliame Ratoa, was charged with "manslaughter", contrary to section 239(a)(b)(c)(ii) of the Crimes Decree 2009. It was alleged that, on 18th August 2010, at Bilo Road, Veisari, Lami in the Central Division, he punched Kinisimere Wati and thereby caused her death, and he was reckless to the risk that death will result.
   

4. THE MAIN ISSUE
   

8. In this case, as judges of fact, each of you will have to answer the following question:
   
   • (i) Did Viliame Ratoa, on 18th August 2010, at Lami in the Central Division, punched Kinisimere Wati and thereby caused her death, and at the time, was reckless to the risk that death will result?
     

5. THE OFFENCES AND ITS ELEMENTS
   

9. For the accused to be found guilty of "manslaughter", the prosecution must prove beyond reasonable doubt, the following elements:
   
   • (i) the accused
   • (ii) does an act, and
   • (iii) the act causes the death of another person, and
   • (iv) the accused is reckless as to a risk that the act will cause serious harm to the other person.
     
10. The phrase "does an act" in paragraph 9(ii) hereof, means "to do a physical act". For example, in the context of this case, "to punch someone in the mouth", or "to backslap someone in the mouth", is to "do an act". In this case, it was the State's contention that, the accused "punched Kinisimere in the mouth", while the defence argued that the accused "did not punch her in the mouth, but backslap her in the mouth". Both actions amount to "doing an act", and both acts, will satisfy the requirement of paragraph 9(ii) hereof.
    
11. The phrase "the act causes the death of another person", as described in paragraph 9(iii) hereof, means that the act must be a substantial and a major cause of the person's death. For example, in the context of this case, the State argued that the accused's punch to Kinisimere's mouth, caused her death. In other words, the accused's punch was a major blunt trauma to Kinisimere's mouth, which resulted in her suffering serious brain injuries, which caused breathing and heart difficulties, resulting in her death. The accused's punch to Kinisimere's mouth, was a substantial and major cause of her death. Without that punch, Kinisimere would not have died.
    
12. As to element no. (iv) in paragraph 9(iv) hereof, it must be shown that, when the accused allegedly punched Kinisimere, "he was reckless as to a risk that his punch will cause serious harm to Kinisimere". In this case, the accused heard his wife (Alisi) and Kinisimere swearing at each other. He saw Kinismere throw a cabbage at his wife. He suspected Kinisimere damaged his market produce. He said, he was very angry. He went to Kinisimere and allegedly punched her mouth. She fell to the ground and blacked out. Kinisimere was also bleeding heavily from her mouth. Was the accused reckless as to a risk that his punch will cause Kinisimere serious harm?
    
13. A person is reckless, with respect to a result, if he is aware of a substantial risk that the result will occur, and having regards to the circumstances known to him, it is unjustifiable to take the risk. The question of whether taking a risk is unjustifiable is one of the fact.
    

6. THE PROSECUTION'S CASE
   

14. The prosecution's case were as follows. On 18th August, 2010, a Wednesday, the accused and his wife, Ms. Alisi Adimailakeba, were selling vegetables, fruits and root crops from their market, at Bilo Road, Veisari. Kinisimere Wati (deceased) and Anaseini Durusolo (PW7) were passing by. Kinisimere was married to Virikoro Vola (PW1) at the time. The accused's wife, Alisi, was Kinisimere's husband's ex-wife. As Kinisimere was passing by, according to the prosecution, Alisi started passing remarks at her.
    
15. Kinisimere responded with swear words. According to the prosecution, this was not the first time the two argued. The verbal fight between the two took another turn. Kinisimere went to Alisi's market, picked up a cabbage and threw it at her. It was alleged by the defence that Kinisimere damaged and scattered the couple's market produce. Alisi then called her husband. The accused heard the arguing between the two, and saw what Kinisimere allegedly did. He punched Kinisimere in the mouth, and seriously injured her as a result. Kinisimere fell after having being punched, and then blackout. She bled heavily from the mouth.
    
16. Kinisimere later reported the matter to police. She was taken to Lami Health Centre. She was medically examined. It was found, she had a deep cut in her upper lip. She was treated and sent home. On Saturday, the 21st August 2010, Kinisimere was complaining of headache to her husband. They bought a packet of panadol for her. They didn't go to CWM Hospital. On the next day, Kinisimere collapsed at her home. She was taken to CWM Hospital. The doctors examined her. They concluded she died on her way to hospital. On 24th August 2010, a post mortem was done on Kinisimere. The pathologist, Doctor Perera, concluded that, the cause of Kinisimere's death was "cerebellar contusions due to blunt trauma to the head". According to the prosecution, Kinisimere died as a result of the accused punching her on the mouth, on 18th August 2010, which caused her serious brain injuries, resulting in her death on 22nd August 2010. According to the prosecution, the accused was reckless, when he punched Kinisimere in the mouth. The prosecution asks you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.
    

7. THE ACCUSED'S CASE
   

17. When the trial began on 13th February 2012, the information was put to the accused. He pleaded not guilty to the charge. In other words, he denied the manslaughter charge against him. He denied the allegation against him. He admitted that he was at the crime scene, at the material time. He admitted, he was angry at Kinisimere, for damaging his market produce, on 18th August 2010. He admitted he backslapped Kinisimere, as a result. However, he denied punching Kinisimere on the mouth.
    
18. On whether or not, the alleged punch or the accused's backslap to Kinisimere's mouth caused her death, the defence appear not to dispute the contents of Dr. Perera's post-mortein report, that is, Prosecution Exhibit No. 5. They also appear not to dispute Doctor Goundar's (PW6) evidence, concerning the post-mortem report. All they said that, there was no burden on them to prove anything at all. On this, they are correct. The burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial
    
19. On whether or not the accused was reckless, when he allegedly punched Kinisimere or backslapped her, the defence say, the accused was not reckless. In any event, they said, the prosecution has not proven beyond reasonable doubt that the accused was reckless when he allegedly punched or backslapped Kinisimere, at the material time. Consequently, according to the defence, an essential ingredient of the offence have not been made out, and the accused is entitled to an acquittal. The defence ask you, as assessors and judges of fact, to find the accused not guilty as charged. That was the case for the defence.
    

8. ANALYSIS OF THE EVIDENCE
   

The Agreed Facts

20. The parties have agreed to the following facts:
    
    1. It is agreed that Kinisimere Wati aged 29 years, Unemployed of Lot 1 Bilo Road, Veisari, is the deceased in this case.
       
    2. It is agreed that the Deceased and the Defendant were both at Bilo Road, Veisari on the 18th day of August 2010 at about 12.33pm.
       
    3. It is agreed that the Deceased died on 22nd August 2010 at her residence in Lot 1, Bilo Road, Veisari as per the Deceased's Death Certificate No. 25608.
       
21. As a matter of law, I must direct you that, you may take it that, the prosecution has proven the above agreed facts beyond reasonable doubt. This is because the parties are not disputing them. It is confirmed that, Kinisimere is the deceased in this case. It is also confirmed that, Kinisimere Wati and the accused, were at Bilo Road, Veisari, on 18th August 2010, at about 12.33pm, when the alleged "manslaughter" occurred.
    

Viliame Ratoa's Police Caution Interview Statement, dated 19th August, 2010

22. As assessors and judges of fact, you may rely on the accused's police caution interview

statements [ie. Prosecution Exhibit No. 1A (handwritten version) and 1B (typed version], as evidence, in this case. As a matter of law, you can only rely on the above statements if you are sure that the accused gave the same to the police voluntarily and out of his own free will. If it was given involuntarily, you may reject the same. However, it would appear during the hearing that, the defence did not seriously challenge the caution interview statements. This was not at all surprising because, from Questions and Answers 7 to 17, the accused's answer appear to reflect his position, in this case.

Kinisimere's Post-Mortem Report [Prosecution Exhibit No. 5]

23. This is a very important piece of evidence. You have copies of the same, and the original will be given to you to consider, during your deliberation. You must carefully read it and understand it, and consider it carefully in the light of Doctor Goundar's evidence. Your understanding of this report will assist you answer the second element of manslaughter, that is, whether or not the accused's actions caused Kinisimere's death?
    
24. We will now examine the evidence, and how well it satisfies the four elements of manslaughter.
    

First and Second Elements: The accused does an act:

25. In paragraph 2 of the Agreed Facts, the parties agreed that Kinisimere and the accused were at Bilo Road, Veisari, on 18th August 2010, a Wednesday, at about 12.33pm. The prosecution's case is based on the assertion that, the accused delivered a very hard punch on Kinisimere's mouth, at the time. The circumstances surrounding why the accused did the above, were explained by him, when he was caution interviewed by the police, on 19th August 2010. Please refer to Questions and Answers 7 to 17 of his caution interview statements, Prosecution Exhibit No. 1A and 1B. The accused repeated his position to the police, when he gave evidence in court.
    
26. Briefly, it was something like this. Kinisimere went past the accused and his wife's market at Bilo Road, Veisari. Alisi, the accused's wife, passed certain remarks, at Kinisimere. Kinisimere retaliated with some swear words. The argument continued. Kinisimere walked to their market, picked up a cabbage and threw it at Alisi. According to the defence, Kinisimere also scattered their market produce, on display to potential customers. Alisi called the accused, her husband. The accused heard the commotion. On seeing what occurred, he got very angry and annoyed. He responded to Alisi's call, went to Kinisimere, and threw a punch at her mouth. Kinisimere fell on the floor, in a sitting position. She blackedout, and blood was coming out her mouth.
    
27. The above summary was not seriously disputed by the parties. They appear to differ only on whether or not, the accused punched or backslapped Kinisimere, at the time. Anaseini Durusolo (PW7) said, she saw the accused punched Kinisimere, in the mouth. She was 15 footsteps away. The accused was her cousin brother. She said, there was no impediment in the way, to block her view. The accused said, he backslapped Kinisimere. Which version of events to accept is a matter for you, as assessors and judges of fact.
    

Third Element: Did the accused's punch/backslap caused the death of Kinisimere?

28. In describing Kinisimere's post-mortem report [ie. Prosecution Exhibit No. 5], Doctor R. P. S. Goundar (PW6), said the following, "...The brain was swollen, due to accumulation of fluid within the brain substance. The brain has 3 coverings...No bleeding between the skull and the first covering. There was bleeding between the first covering and second covering...There was hemorrhage between second and third layer of brain cover. There was approximately 50 ml of blood. The third layer was stretched. There was streaky hemorrhage within the brain substances and pons... In a normal situation, there should be no bleeding in those areas. A skull is not an expendable bone. The space within the skull is restricted. When there's bleeding, the brain will remain within the confined space within the skull. There's bleeding in the skull cavity. This will push the brain upward and downward. Downwards, the brain will be pushed downwards to the base of the skull. Upwards, into a restricted space. The brain produces a fluid, will remain in the upper part, and accumulates, and produces a swelling of the brain substances. When the brain is pushed downwards, the medulla oblongata is pushed down, it is squeezed into a small space and they are strangulated in a way, and they affect the heart function, and breathing function, and it could be fatal..."
    
29. Doctor Goundar continued, "...Any blow applied to the head or head area can result in bleeding inside the skull, in the brain and its coverings. Great force is required to cause the above bleedings. The breathing will be irregular, while the bleeding in the brain is applying pressure to the medulla oblongata..."
    
30. It was stated in the post mortem report that, the cause of Kinisimere's death was "cerebellar contusions due to blunt trauma to the head". Doctor Goundar said, "...cerebellar contusion ie. injury to the brain substance at the back of the head. This is a result of a blunt trauma injury to the head ie. injury No. 1 on page 1 of the post-mortem report, at the bottom. The injury is in the front, but the impact is at the back ie. counter-coup injury ie. the force from the front sends a shockwave to the back, and results in the brain been pushed back to the skull, and forward again, resulting in the blood vessels rupturing, and therefore bleeding, and it creates pressure on the brain, resulting in the medula oblongata getting strangled etc., and the heart and breathing affected. The trauma from the front, causes the bleeding at the back. A punch on the mouth could cause the above internal injuries..."
    
31. When cross-examined by the defence, Doctor Goundar said, "...A blow from the front could cause the cerebellar contusions ie. a punch to the mouth could cause the cerebellar contusion. A forceful slap could also do the above. The injury to the lip was deep, and it shows a forceful blow to the lip was done, which caused the brain injury at the back. There was only one injury to the face, and that was the injury to the lip..." According to Doctor Goundar, while describing Kinisimere's post mortem report that, a forceful punch or slap to Kinisimere's mouth, caused the brain injuries, which ultimately killed Kinisimere. This is a matter for you, as assessors and judges of fact.
    

Element Four: Was the accused reckless as to a risk that his punch/backslap would cause serious harm to Kinisimere?

32. In this case, the events unfolding before the accused punched/backslapped Kinisimere appeared not to be disputed by the parties. It would appear that, there were unresolved issues between Kinisimere and the accused's wife, Alisi. Alisi was previously the wife of Kinisimere's husband at the time, that is, Virikoro Vola (PW1). It was accepted that, the two have often quarreled before, and their fights were often verbal. On 18th August, 2010, the accused and his wife (Alisi) were selling their market produce to the public, at Bilo Road, Veisari, at about 12.33pm. The accused started early that day. He got up well before 4am, and went to Suva Market to buy his produce. So when the trouble started between Kinisimere and his wife, the accused had been working for more than 8 hours.
    
33. The accused admitted that he heard the verbal fight between Kinisimere and his wife. He said, he took no notice. However, when he saw Kinisimere pick up a cabbage and threw it at his wife, and saw his market produce ransacked in the market, he got angry and annoyed. His wife called him for assistance. He admitted, he went up to Kinisimere and backslapped her mouth. On this issue, the prosecution differed with him. Anaseini Durusolo (PW7) said, she saw the accused punched Kinisimere in the mouth. She fell down, blackedout, and blood was coming of her mouth. The question is why didn't the accused take a non-violent way to resolve the problem he was confronted with that day? Why didn't he tell Kinisimere to go away, and that he was reporting the matter to police? Why didn't he tell Kinisimere that he was taking her to court to claim damages for her damaging his market produce? Why didn't he tell Kinisimere that he was going to report her to her husband, and claim damages from him, for damaging his market produce?
    
34. Instead of doing the above, and being angry and annoyed at the time, the accused decided to punch/backslap Kinisimere. Was he reckless in doing so? Was he reckless as to a risk that his punch/backslap will cause Kinisimere serious harm? Was he aware of a substantial risk that Kinisimere will be harmed, if he punch/backslap her? Was it unjustifiable for him to take the risk of harming Kinisimere with his punch/backslap? These are matters for you?
    
35. You have heard all the prosecution and defence witnesses, in this matter. You have observed them give evidence in the courtroom. You have observed their behavior in the courtroom – were they well mannered or otherwise? Were they evasive while giving evidence? Were they argumentative, while giving evidence? How did they dress to court? Given the above, my direction on the law, your life experiences and common sense, you should be able to decide which witness's evicence or part of his evidence you consider reliable, and therefore to accept, and which witness's evidence or part of his evidence, you consider unreliable, and therefore to reject.
    

I SUMMARY

36. Remember, it is for the prosecution to prove the accused's guilt beyond reasonable doubt. It is not for the accused to prove his innocence. The burden of proof lies on the prosecution to prove the accused's guilt beyond reasonable doubt, and that burden stays with her throughout the trial. If you accept the prosecution's version of events and you are satisfied beyond reasonable doubt and are sure of his guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt and are not sure of his guilt, you must find him not guilty as charged.

37. Your possible opinions are as follows:
    
    • (i) Manslaughter - Accused: Guilty or Not Guilty
      
38. You may now retire to deliberate. The clerks will advise me when you have reached your decisions, and we will reconvene, to receive them.
    

Salesi Temo
JUDGE

Solicitor for the State : Office of Director of Public Prosecutions, Suva
Solicitor for Accused : Legal Aid Commission, Suva