State v Moore [2012] FJHC 946; HAC173.2010S (12 March 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 114 OF 2010S

STATE

vs

ARTHUR JAMES KAMOE MOORE

Counsels : Mr. L. Fotofili for State
Ms. M. Savou for Accused
Hearings : 5th to 8th March, 2012
Summing Up : 12th March, 2012

SUMMING UP

1. ROLE OF JUDGE AND ASSESSORS
   

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.
   

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.
   

C. THE INFORMATION

7. The accused, Arthur James Kamoe Moore, was charged with "murder", contrary to section 237 of the Crimes Decree 2009. It was alleged that, on 31st May 2010, at Suva in the Central Division, he murdered Samuela Rokoyalewa Junior.
   

D. THE MAIN ISSUE

8. In this case, as judges of fact, each of you will have to answer the following question:

Did Arthur James Kamoe Moore, on 31st May 2010, at Suva in the Central Division, murder Samuela Rokoyalewa Junior?

E. THE OFFENCE AND ITS ELEMENTS

9. For the accused to be found guilty of "murder", 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:
     
     • (a) intended to cause the person's death, or
     • (b) is reckless as to causing the person's death.
       
10. We will consider the elements in paragraph 9(i) and (ii) together, that is, the phrase "the accused does an act". This phrase constitute the physical element of the offence of murder. The accused "must do an act" to constitute the physical element of the murder. In the context of this case, it was not disputed by the parties that, the accused stabbed the deceased with a kitchen knife, at the material time. In other words, the parties did not seriously contest the fact that, the accused stabbing the deceased in the left chest, at the time, constituted the physical act of "the accused does an act", and hence satisfied the element of murder, as described in paragraph 9(i) and 9(ii) hereof.
    
11. We will now consider the element in paragraph 9(iii), that is, the phrase "the act causes the death of another person". This is an important element and issue in a murder case. It is often termed the "causation issue", that is, it must be shown by the prosecution that the "act" mentioned in paragraph 9(ii) hereof, caused the death of the deceased. The "act" must be a substantial and major cause of the deceased's death. In other words, the "act" substantially contributed to the deceased's death. Without the accused's "act", the deceased would not have died. In terms of the elements of murder as described in paragraph 9(i) and 9(ii) abovementioned, in the context of this case, it was accepted that, the accused stabbed the deceased in the left chest, at the material time. Did this stab cause the deceased's death? In the context of this case, the parties agreed that the accused's stabbing the deceased in the chest, at the time, caused his death. [See paragraph 7 of the Agreed Facts]. So, in a sense, this important issue, is not disputed by the parties.
    

12. There are two fault elements in the offence of murder. The first one is that described in paragraph 9(iv)(a), and the second is that described in paragraph 9(iv)(b). The prosecution needs to prove only one of the above fault elements, to succeed on a murder charge. In any event, they are running their case on both elements, so we will need to consider both fault elements.

13. We will first consider the element in paragraphs 9(iv)(a), that is, the accused "intended to cause the person's death". As a matter of common sense, it is not possible to look into a person's brain, to find out his intention, at the time, he did the physical element of murder. In other words, in the context of this case, it is not possible to look into the accused's brain, to find out his intention, at the time he stabbed the deceased in the left chest, with a kitchen knife. However, throughout the centuries, the courts have often resolved this problem, by closely examining the accused's physical actions at the time, what he said, and the surrounding circumstances, to draw inferences of fact, as to his intentions. In other words, you must put yourselves in the shoes of the accused, and from his physical actions, spoken words and the surrounding circumstances, you should be able to find out his intentions, at the time he stabbed the deceased in the chest, with a kitchen knife.
    
14. Now we consider the fault element in paragraph 9(iv)(b), that is, the accused was "reckless as to causing the deceased's death". If you found that, the prosecution had satisfied you beyond reasonable doubt that, the accused intended to cause the deceased's death, at the time he stabbed him, with a kitchen knife, you do not need to consider the second fault element of murder. Only if you find that the prosecution had not done the above, then you move on to consider the second fault element of murder.
    
15. The question becomes: Was the accused reckless in causing the deceased's death, by stabbing him with a kitchen knife, at the time? A person is reckless with respect to a result if: (a) he is aware of a substantial risk that the result will occur, and (b) having regard to the circumstances known to him, it is unjustifiable to take the risk. The question whether taking a risk is unjustifiable is one of fact. So, if the accused was aware that there was a substantial risk that if he stabs the deceased in the left chest with a kitchen knife, the deceased will die, it was obvious that it would unjustifiable to take the risk. If you find that the accused was reckless, when he stabbed the deceased in the chest, then the second fault element of the murder charge is satisfied.
    
16. What if you found that none of the fault element of murder, as described in paragraphs 12, 13, 14 and 15 hereof are satisfied by the prosecution. What if you found that the accused, when he stabbed the deceased in the chest with the knife, only intended to cause him serious harm, or was reckless as to a risk that the stab will cause serious harm. If you reach this position, then you are entitled to find the accused not guilty of murder, but guilty of the lesser offence of "manslaughter".
    
17. "Manslaughter" is proved, if the prosecution satisfied you beyond reasonable doubt, of the following elements:
    
    • (i) the accused
    • (ii) does an act, and
    • (iii) the act causes the death of another person, and
    • (iv) the accused:
      
      • (a) intended to cause serious harm, or
      • (b) is reckless as to a risk that the act will cause serious harm.
        

6. THE PROSECUTION'S CASE
   

18. The prosecution's case was simple. It was well summarized by paragraph 5 of the Agreed Facts, which I hereby quote in full "...The Deceased Samuela Rokoyalewa Junior, (22 years old) with his brother Lepani Soko together with 3 others on the morning of 31.5.10 (Monday) at 5am, exited from a nightclub in Suva and headed for Suva Market. The deceased, his brother and their friends had been drinking liquor on that morning in the nightclub. Upon reaching the market, the deceased and his 4 male friends bought some food from a canteen at the market and sat down to eat (this canteen is about 10 meters away from the Suva Market Police Post). Upon sitting down to eat, the accused Arthur James Kamoe approached the group. The accused was 25 years old at the time. One of the deceased's friends named Wiliame Raseru, gave the accused a parcel of food but the accused refused. A police officer Special Constable (SC) Kavaia Raga who was at the Market Police Post stepped in and seized a kitchen knife from the accused. SC Raga took the knife from the accused and gave it to one of the canteen operators. SC Raga then escorted the accused to the Market Police Post when on the way, the accused was again confronted by the deceased and his friends whereby another fight erupted where punches were thrown. The fight ended up again at the row of food stalls near the Market Police Post. A police vehicle arrived 30 minutes later and conveyed the deceased to the CWM Hospital..." The accused had stabbed Samuela in the left chest with a kitchen knife, causing his death. According to the prosecution, the accused stabbed the deceased in the chest, with a kitchen knife, causing his death, and at the time, intended to kill him, or alternatively, was reckless as to causing his death. The prosecution asks you, as assessors and judges of fact, to find him guilty as charged. That was the case for the prosecution.

G. THE ACCUSED'S CASE

19. When the information was put to the accused, on 5th March 2012, the first day of the trial, he pleaded not guilty to the charge. In other words, he denied the allegation against him.

20. At the end of the prosecution's case, he was called upon to make his defence. He was given the right to address the court, give sworn evidence and call witnesses. However, he choose to remain silent. Nothing negative whatsoever should be imputed to the accused in choosing to exercise his right to remain silent. The burden to prove the charge beyond reasonable doubt, stays with the prosecution from the start to the end of the trial. That burden never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence. He is not required to prove anything at all. He is entitled to remain silent, as he did in this case, and call upon the prosecution, to prove the charge against him, beyond reasonable doubt.

21. However, you may actually discover the accused's case, if you carefully listened to his counsel's closing submission. If you look at the elements of "murder" as described in paragraph 9 hereof, the accused has admitted, by virtue of paragraph 7 of the "Agreed Facts" that, "...The deceased died as a result of the stab wound he received from the accused..." This admission is important when you relate it to the elements of murder described in paragraph 9 hereof. In effect, the accused is admitting to the elements of murder, as described in paragraph 9(i), 9(ii), and 9(iii), that is, he has admitted that he stabbed the deceased with a kitchen knife (the accused does an act), and that the act caused the death of the deceased, when the knife penetrated and seriously injured the deceased's heart (the act caused the death of another person). The accused did not admit the fault elements of murder as described in paragraph 9(iv)(a) [intention to kill] and 9(iv)(b) [recklessness as to causing death], and left these to the prosecution, to prove beyond reasonable doubt.

22. If the prosecution have proven all the elements of murder to your satisfaction beyond reasonable doubt, the defence relies on the defence of provocation. Provocation is only a partial defence in that, if the defence succeeds, it merely reduces the charge of murder to the lesser offence of manslaughter. However, we will consider this defence further when we analyze the facts later in the summing up.

23. Whether or not the prosecution proves to your satisfaction beyond reasonable doubt, the offences of murder or manslaughter, the defence relies on self-defence, as their answer to the above offences. A person is not criminally responsible for an offence if he carries out the conduct constituting the offence in self-defence. A person carries out conduct in self-defence if and only if, he believes the conduct is necessary to defend himself. If the defence succeeds on this, he is entitled to an acquittal. We will discuss this defence, further, when we analyze the facts later, in the summing up. That was the case for the defence.

H. ANALYSIS OF THE EVIDENCE

(i) The Parties' Agreed Facts:

24. The parties have agreed to the following undisputed facts:
    

1. Arthur James Kamoe Moore was born on 20.3.05.

2. He knows how to read and write in Fijian.

3. On occasions he would be around the Suva Market area doing odd jobs like scrapping coconuts and peeling root crops for food stall owners. He also engages in shoe shine and shoe repair.

4. For some food stall owners, the accused would be a familiar face considering that he usually frequents the Suva Market area.

5. [quoted in full in paragraph 18 hereof].

6. The deceased died on the same day, minutes after being admitted to the hospital.

7. The deceased died as a result of the stab wound he received from the accused.

8. Dr. Hettiyakandage Jean Marita Perera, a consultant forensic pathologist, conducted a post mortem on the body of the deceased at the Colonial War Memorial (CWM) Hospital on the same day (i.e. 31.5.10) whereby she concluded that the deceased died from "Cardiac Tamponade" as a consequence of "stab injury to the heart".

9. The accused was arrested and interviewed under caution by police, namely Detective Corporal Apisai of the Totogo City Police in relation to the death of the deceased, whereby the accused gave his statement voluntarily.

10. The accused was referred to the St. Giles Hospital for psychiatric evaluation on 15.7.10 whereby Dr. Narayan assessed the accused. Dr. Narayan was of the view that the accused was sane at the time when he stabbed the accused.

25. Because the above facts are not disputed by the parties, as a matter of law, I must direct you that you may take it that, the prosecution has proven the above facts beyond reasonable doubt. In other words, you may take the above undisputed facts, as proven facts, in your deliberation.

(ii) Arthur James (Kamoe) Moore's Police Caution Interview Statement (Prosecution Exhibit No. 4A & 4B):

26. Former D/Sgt 2094 Nacanieli Bulisea caution interviewed the accused on 31st May 2010, beginning at 5.30pm. This was approximately 10 to 11 hours after the incident. So, matters were obviously fresh in his mind. The accused was formally cautioned and given his other rights, before he was asked a total of 26 questions. He gave 26 answers. The interview continued the next day (1st June 2010), at 9am, and 27 questions were asked. Accused gave 27 answers. In paragraph 9 of the Agreed Facts, the parties agreed that the accused gave his answers to the police voluntarily. In other words, he gave his statements to the police, out of his own free will. Given that the accused choose to remain silent, when he was called upon to make his defence, after the prosecution closed their case, his police caution interview statements is important in explaining his position, visa vi the murder allegation. You must carefully read and understand his police caution interview statements, because it will assist you answer the questions of whether or not he was guilty as charged, and whether or not the defence of provocation and self-defence were available to him.

(iii) Deceased's Post Mortem Report [Prosecution Exhibit No. 1]:

27. The deceased's post mortem report is relevant to answering the questions raised by paragraph 9(iii) and 9(iv) hereof. As to paragraph 9(iii) hereof; did the accused's stab (the act) cause the deceased's death? The parties have by consent, agreed to the answer to this question – see paragraph 7 of the Agreed Facts ie. "the deceased died as a result of the stab wound he received from the accused". As to paragraph 9(iv) hereof, the post mortem report, as described by Doctor Ponsami Goundar (PW1) in his evidence, is one of the many factors, you as assessors and judges of fact, have to take into account, in answering the question of whether or not the accused had the intention to kill, or was reckless as to causing the deceased's death, when he stabbed the deceased in the left chest with a kitchen knife. You will have to look at the injury, how it was caused, the vital parts of the body, how death was caused, what the accused and the deceased did, and how the events unfolded, to answer the questions posed above.

28. We will now discuss the elements of murder, and how the evidence relates to them. Then we will consider provocation, and self-defence.

(iv) Paragraph 9(i) and (ii): The accused does an act; First two elements of Murder.

29. Lepani Soro (PW2) said, he saw the accused stab his elder brother, the deceased, at the material time. In his police caution interview statement [Prosecution Exhibit No. 4B], from Questions and Answers 33 to 39, the accused admitted how he got a kitchen knife and stabbed the deceased. So, as far as the evidence was concerned, the first two elements of murder were proven beyond reasonable doubt by the prosecution.

(v) Paragraph 9(iii): The act causes the death of another person: Third Element of Murder

30. This element was not disputed by the parties. In paragraph 7 of the Agreed Facts, the parties agreed that, "... The deceased died as a result of the stab wound he received from the accused..." Dr. Ponsami Goundar (PW1) described in his evidence how the knife penetrated the chest, and then struck and wounded the heart, leading to massive loss of blood, resulting in the death of the deceased. So, as far as the third element of murder was concerned, the evidence appear to show that the prosecution has proven this element beyond reasonable doubt.

(vi) Paragraph 9(iv)(a): The accused intended to cause the deceased's death: Fourth Element of Murder

31. In order to prove this element, the prosecution principally relied on the accused's police caution interview statement [Prosecution Exhibit No. 4B]. From Questions and Answers 28 to 41, the following were recorded:

Q28: Why did you bring the kitchen knife?

A: Because I was punched by them and I want to pay them back.

Q29: Why did you kick the food that was given to you?

A: Just because.

Q30: Can you tell me how many kitchen knives did you bring?

A: Two.

Q31: Can you explain what did you do when you brought the knife?

A: The first knife that I brought I did not use because the police Kavaia came and arrested me.

Q32: What happened when the police (Kavaia) took you?

A: They then hassled me again.

Q33: What did you do then?

A: I pushed Kavaia and went inside another stall and brought another knife.

Q34. Then what happened?

A: I then used the knife to defend myself so that they can go away.

Q35: Do you remember that when you used the knife to defend yourself you stabbed one of them?

A: Yes.

Q36. Can you explain how did you stab that person?

A: I only know that I punched him first and he fell backwards and I stabbed him with the knife.

Q37: Do you know which place did you stab him?

A: Yes, on the side of his chest.

Q38: Look at this knife. Exhibit shown – Is this the knife that you used during the stabbing?

A: Yes.

Q39: Do you know whose knife it is that you used to stab that boy?

A: Its for the Naitasiri woman in stall No. 5/3.

Q40: Did you know that when you use that knife you can cause the death of someone?

A: Yes.

Q41: Do you know that you have caused the death of one of those that you fought with and his name is Samuela Roko?

A: Yes.

32. According to the prosecution, when reading the above questions and answers together, it showed a clear intention on the part of the accused, to kill the deceased. Of course, his reason was to save himself. This we will examine later. According to Lepani Soro (PW2), Simione Macanaqio (PW3), Sokoveti Uluivutia (PW4) and Ledua Qalo (PW5), the deceased and his four or five friends were engaged in a fight with the accused. They were shouting at each other, and were exchanging punches with one another. It was more like five people (ie. the deceased and his friends) punching and attacking Kamoe (ie. one person). Kamoe was looking for a knife. He got one, and stabbed the deceased, while he and his friends, were chasing after the accused. According to the prosecution, the accused had the intent to kill the deceased, when he stabbed his chest with a kitchen knife. This is a matter for you, to decide.

(vii) Paragraph 9(iv)(b): The accused was reckless as to causing the deceased's death: Alternative Fourth Element of Murder.

33. If you find that the accused, at the time he stabbed the deceased in the chest, with a kitchen knife, had the intention to kill him, you do not need to consider the above alternative fourth element of murder. You only consider the above, if you find that the accused did not intent to kill the deceased, at the time he stabbed the chest with a kitchen knife. The question then becomes: Was the accused reckless as to causing the deceased's death, when he stabbed his chest with a kitchen knife? Was he aware of a substantial risk that the deceased will die if he stabs his left chest with a kitchen knife, and having regard to the circumstance known to him, it was unjustifiable to take the risk? According to the prosecution, the accused was reckless as to causing the deceased's death, when he stabbed his left chest with a kitchen knife. However, this is a matter for you.

34. If you think that the prosecution had proven to you the elements of murder, as described in paragraphs 9(i), 9(ii), 9(iii) and 9(iv)(a) or (iv)(b), beyond reasonable doubt, then we are obliged to consider the defence's case of provocation.

(viii) Killing with Provocation:

35. If you are sure that the accused unlawfully killed the deceased, intending to kill him or was reckless as to causing his death, 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.

36. Provocation has a special legal meaning, and you must consider it in the following way. 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 and others, rather than just by his own bad temper. In this case, the accused treats ladies selling food at the market as if they were his mother. He normally frequents the area in the week. He often helped the women scrape their coconuts, peel root crops and do other odd jobs, in return for meals and some pocket money. At times, he sleeps in their stall. On 30th May 2010, between 8pm and 9pm, the deceased and his four friends stole food from Sokoveti Uluivutia (PW4). The accused must have heard about this. On 31st May 2010, after 5am, the deceased and his four friends came to Ledua Qalo (PW5), after drinking at a night club. They bought some food from her. The deceased then began to hassle PW5 continuously for a while. Kamoe woke up from a nearby stall, and saw what the deceased was doing to PW5. Kamoe didn't like what he saw. He later picked a fight with one of the deceased's friend. The deceased, and his other friends jumped in, and attacked Kamoe, as a group. The deceased was approximately 6 feet 2 inches in height, and well built. Heavy punches were traded between the two groups – Kamoe on one side, and the deceased and his friends on the other side. An off duty policeman, Netava Vulagi (PW7), came and stopped the fight. When the situation calmed down, PW7 left for Central Police Station. The two groups resumed fighting again – the deceased and his four friends against the accused. Kamoe ran and got a kitchen knife from a stall, and threaten the deceased and his friends with it. It had no effect. The deceased and his friends were still advancing against the accused. A police officer, Kavaia Raga (PW6), came and disarmed the accused, and took him to Market Police Post. While on their way, the deceased came and punched the accused on the back of his head. The accused fled to a stall and got a knife. The deceased and his friends chased him, and cornered him behind a food stall. The accused then stabbed the deceased in the chest, with a kitchen knife. The deceased fell down bleeding. He later died as a result.

37. If you are sure that the accused was not provoked in the legal sense, the defence of provocation does not arise, and the accused is guilty of murder. But if you conclude that the accused was or might have been provoked, in the sense in 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 or done affect him more that it might have affected other people? The accused obviously treats the women market food vendors as his adopted mother. It appears, the accused lived in the streets and in the market. The women market vendors were his source of livelihood. He scrapes their coconuts and peels their cassava and dalo, in return for food and money. There was a special bond between the accused and the women market vendors. It would appear that the accused, by virtue of this special relationship, saw it as follows, that is, an attack on these women were an attack on him. Any slight on these women was a slight on him. The women market vendors were his family. It would appear, he felt it was his duty, to stand up for these women, if their interests were undermined.

38. 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 such a person should not have done so, the prosecution will have 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 did, your opinion would be "not guilty of murder, but guilty of manslaughter", by reason of provocation.

39. Whether or not you reached an opinion that the accused is guilty of murder or of manslaughter, we must nevertheless look at the defence of self-defence.

(ix) Was the accused acting in self defence when he stabbed the deceased to death?

40. On the issue of self-defence, if you think that the accused was or may have been acting in self-defence, he is entitled to be found not guilty of murder or manslaughter. Because the prosecution must prove the accused's guilt, it is for the prosecution to prove that the accused was not acting in lawful self-defence, not for the accused to establish he was, and you must consider the matter of self defence in the light of the situation which the accused honestly believed he faced.

41. You must first ask whether the accused honestly believe that it was necessary to use force to defend himself at all. This would not be the case if the accused was the aggressor, or acted in revenge, or knew that he did not need to resort to violence. If you are sure that the accused did not honestly believe that it was necessary to use force to defend himself, he cannot have been acting in lawful self-defence, and you need consider this matter no further. But if you think that the accused did honestly believe or may honestly believe, that it was necessary to use force to defend himself.

42. You must then decide whether the type and amount of force the accused used was reasonable. Obviously, a person who is under attack may react on the spur of the moment, and he cannot be expected to work out exactly how much force he needs to use to defend himself. On the other hand, if he goes over the top and uses force out of all proportion to the attack on him, or more force than is really necessary to defend himself, the force used would not be reasonable. So you must take into account both the nature of the attack on the accused, and what he then did. In this case, the deceased and his four friends started the problem, when they first allegedly stole food from Sokoveti Uluiviti (PW4) on 30th May 2010, between 8pm to 9pm, when they were going to a nightclub. They drank at the nightclub, and returned to the food stalls, after 5am on 31st May 2010. The deceased bought food from Ledua Qalo (PW5). However, the deceased thereafter began to abuse PW5. He was drunk at the time. His friends were also drunk at the time. The accused awoke from his sleep next to PW5's food stall. He heard the deceased abusing PW5. He must also have known about the theft of food from PW4. The accused started the fight with one of the deceased's friend, but it soon developed into a one-sided affair against the accused. The deceased, 6 feet 2 inches tall and well built, led his group against the accused. Hard punches were thrown by the deceased and his friends at the accused's face and head. The fight was stopped by Netava Vulagi (PW7), a police officer. However, it flared up again. Punches were further thrown at the accused. He feared for his life and ran for a kitchen knife, apparently to scare the deceased and his friends away, but to no avail. Police Officer Kavaia Raga (PW6), came and took the knife away from the accused. PW6 then escorted the accused to the Market Police Post. The deceased went and threw a hard punch on the accused's head. The accused fled for his safety behind a food stall. The deceased and his group ran after him. The accused, in order to save his life, stabbed the deceased in the chest with a kitchen knife. The deceased later died. According to the accused, when he was caution interviewed by police, he stabbed the deceased to save his life.

43. If you are sure that the force the accused used was unreasonable, then the accused cannot have been acting as lawful self-defence; but if you think the force the accused used was or may have been reasonable, he is entitled to be acquitted of murder or manslaughter.

44. You have heard the evidence of the 9 prosecution witnesses. You have observed their demeanour in the courtroom, while they were giving evidence. Were they forthright, evasive or argumentative, while giving evidence? I have addressed you on the law. Given your experiences and common sense, you should be able to decide which witnesses' evidence or part of his evidence is reliable and therefore to accept, and which witnesses' evidence or part of his evidence is unreliable and therefore to reject, during your deliberation.

1. SUMMARY
   

45. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's 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 so that you are not sure of the accused's guilt, you must find him not guilty as charged.

46. Your possible opinions are as follows:

(i) Murder: Accused - Guilty or Not Guilty
(ii) Alternative lesser offence of

Manslaughter: Accused - Guilty or Not Guilty

47. You may now retire to deliberate on the case, and once you have reached your decision, you may inform our clerks, so that we could reconvene to receive your decisions.

Salesi Temo

JUDGE

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