State v Chand - Summing Up [2012] FJHC 968; HAC032.2005 (13 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 032 OF 2005

BETWEEN:

STATE

AND:

ASHWIN CHAND

Counsels: : Ms. L. Vateitei for the State
: Accused In person

Date of Trial : 5th March 2012 – 9th March 2012.
Date of Summing Up : 13th March 2012.

SUMMING UP

1. Ladies and Gentleman Assessors. We have come to the final stage of this trial. You were listening to all witnesses, State Counsel and the accused. Now it is my duty to give the summing up to you. In the summing up I will be directing you on matters of law, which you must accept and act upon. Regarding the facts of the case, I do not wish to give an opinion, but if I give so you may accept or reject. You are not bound as in matters of law. In brief you have to accept my direction on law and you can judge independently when it comes to facts of the case. Because you are the judge of facts.

2. Both Counsel for State and the accused made their submissions. That is their duty. The prosecutor to submit how she proved the case and the accused to say that the case is not proved. You are not bound by their submission. You are the representative of this society in this trial. After assessing all evidence you must decide whether this accused is guilty or not guilty to the offence he is charged.

3. After, all these submissions you will be asked to retire for your verdict. Your verdict should be either guilty or not guilty. You will not be asked to give reasons for your decision. Your opinion can be unanimous or divided. It will be preferable if it is unanimous but the decision has to be your own decision. Your opinions are not binding on me but it will be persuasive. I will give them the greatest weight when I deliver my judgment.

4. In criminal cases the standard of proof, I must direct you as a matter of law, that the prosecution bears the burden of proof in the case. The burden remains throughout the trial and it never shifts. There is no obligation upon the accused person to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proven guilty. This is a golden rule.

5. The standard proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of guilt of the accused person before you express an opinion that he is guilty. If you have any reasonable doubt about the guilt of the accused you must express an opinion that he is not guilty. You may only express an opinion that he is guilty, if you are satisfied of that you are sure that he committed the offence alleged.

6. As I informed you in my opening address, your decision must base exclusively upon the evidence which you have heard in the Court, and upon nothing else. You must absolutely disregard anything you might have heard about this case outside of this court room. It is important that you must decide the fact without prejudice or sympathy to either accused or the State. One of my duties is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.

7. I wish to address you especially on certain incidents happened during the trial. Please do not give your attention to those incidents, those are not the evidence in this trial. You are advised to consider only the admissible evidence and decide whether the prosecution proved the charge of Murder. I request you to disregard certain conduct of the accused during the trial while considering the evidence against him.

8. The accused Ashwin Chand stand charged for the offence of Murder.

9. The offence of murder has three elements which prosecution must satisfy you beyond reasonable doubt. They are:

(i) That the accused did an unlawful act.

(ii) That this unlawful act caused the death of the victim.

(iii) That the accused acted with malice aforethought.

10. I will explain these three elements to you in simple language. Unlawful act means something done by a person that is against law. If I give you an example, you attack a person with knife or similar to that without legal justification.

11. The second element of the offence of murder is that the said unlawful act caused the death of the victim. The prosecutor should prove a death of a person and then the death was caused by the accused by an unlawful act. The law requires a link between the unlawful act and death. In other words, the victim had died of the injury caused by the accused. Usually the unlawful act causes an injury which is the sole cause of death. But it is sufficient if it is an operating or substantive cause of death.

12. The 3rd 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 a legal term which describes a particular intention or state of mind.

13. English Lexicon says malice aforethought means "with intention of committing a crime.(especially murder or grievous harm)

14. It is an intention to cause death or grievous harm to the victim or knowledge that death or grievous harm would probably be caused.

15. Prosecution must prove beyond reasonable doubt that the accused intentionally committed an unlawful act which resulted in the death of the victim.

16. In this case the prosecution did not provide any witness who had seen the incident. Even the accused did not admit that he committed the offence. I may simply summarize the evidence briefly. The belt of the accused was found on the neck of the deceased. The accused also admits that he was there at the scene of crime but he denies the involvement in murder, further he says it was done by one Pravin Kumar. State Counsel called Pravin Kumar and led the evidence to the fact that he was at Lautoka with two others at the relevant time. Others also confirmed that he was with them. In this case deceased and the accused are not strangers. All of them are known and related to each other.

17. Briefly saying there are evidence to say that the accused was at the scene of crime and his waist belt had been used as a tool apart from the knife. But there is no direct evidence that the accused committed the act of murder.

18. The accused totally denies the incident but when cross-examining the witness Pravin Kumar he said that he was there and the act was done by Pravin Kumar.

19. This is a case where you don't find an eye witness but the prosecution depends on circumstantial evidence. It is like a jigsaw puzzle. A single piece will not give you a whole picture but if you put all together you may see a picture. Prosecution submitted that she had arranged all the pieces and invite you to see a full picture. But the accused says that he is not in the picture. It is up to you to arrange all the evidence before you and come to a conclusion whether there is evidence against the accused for murder or not.

20. In this trial the accused completely denies his involvement in the act of murder. Further there is no evidence before the court to

discuss about other mitigating circumstances such as grave and sudden provocation, sudden fight, self defence, knowledge, etc thus I will not discuss and address about those defences to you.

21. Now I will briefly summarize the evidence of the witnesses who gave evidence in court.

22. State called 19 witnesses to establish their case.

23. Gyan Chand was the 1st witness called by the State. He was the brother of the deceased Premila Wati. He had identified the body of deceased at the Post Mortem. He had not seen any incident relevant to the case.

24. Jaineel Sharma is the 2nd witness. He was the son of the deceased. On the 13/10/2005 he was 10 years old and gone to visit Mr Faruk uncle's (Dada) with his father and his younger brother. All of them returned at about 12 midnight. When they opened the house he had found a red mark, he had thought it was Sindhur (a red colour powder which Hindu ladies wear on their forehead). His father went into the house then all of them went back to Faruk's house and came back with them and found his mother is dead. He said that they went to the Police and reported the incident. He knows the accused and they all related. He had not seen anyone causing injury to his mother.

25. Third witness called by the State was Shaheed Riyazud Dean. He was the son of Faruk, and he confirmed to court that Mr Jai Ram the husband of the deceased and his two sons came to his house and was talking to his father till late. They had returned very late to their home. It was a fasting month (Ramazan) he went to bed early. When he was sleeping he was put up and told that Jai Ram is back, then he got to know the incident and went to Jai Ram's house in the midnight, there he didn't see the body but heard the death of the deceased. Thereafter all of them had gone to the Police.

26. Fourth witness is the Police Officer who was attached to the Forensic Division. Mr Kekelemete Vueti. He said he visited the scene of crime and attended the Post Mortem of the deceased. He had taken photograph of the scene of crime and the post mortem.

27. 5th witness called by the State was Ulamila Nai. She told court she was the partner of the accused at the relevant time. She had identified the belt in question. She said that she used to wash the clothes of the accused and she knows that belt. When the accused suggested that she was assaulted by her brother to make a statement she denied the allegation.

28. Pravin Kumar was the 6th witness called by the State. As you know that accused said in his interview statement that he was the one who committed the offence in his presence. But the witness submitted a clear account of his whereabout on the 13/10/2005 especially in the evening he had gone to Lautoka with two other to settle a loan of Uday Kumar and returned midnight. When accused suggested that he committed the crime he vehemently denied the allegation. He further submitted he is related to the deceased family and knows the accused very well.

29. Police Officer Daniel Naidu was called as seventh witness. He was the arresting officer in this case. He told Court that he arrested the accused at about 5.00am on the 15/10/2005. He was assisted by the Police Dogs and Dog handlers. He said that the accused was very co-operative and he was not assaulted or threatened. Further he said that the accused was explained of his constitutional rights to have his Counsel or relative with him.

30. Dr. R. Ponnu Swamy Goundar was called as the 8th witness. He is a qualified and experienced Pathologist. He has more than 40 years experience in giving evidence in court and done more than 3000 Post Mortem Examinations. He has not done this post mortem. He was brought by the Prosecution to produce and explain the report of Dr. Pandurang Badami who conducted the post mortem. Dr Goundar said that Dr. Badami is no more with the Fiji Health Authority and he had left Fiji.

Dr. Goundar produced the post mortem report and explain that the deceased was Premila Wati and she had died on 13/10/2005. The deceased had 5 injuries. One injury on the neck virtually severing the neck. It was a deep cut injury from one ear to other ear.

2nd, 3rd, 4th and 5th injuries were on the mid of the chest. Those are incised wounds caused by stabbing. He submitted to court that these are not self inflicted or accidental injuries. Considering the nature of the injuries the Doctor is of the view that Death is very very imminent. When questioned, the Pathologist said the assailant who cause these injuries had the intention to kill.

According to the post mortem report the cause of death are:

"(i) Asphyxia and Exsanguinating

(ii) Haemorrhage due to cut throat wound

(iii) Penetrating Heart Wound".

31. The next witness called was Mr Prem Singh. He told Court that he is a Justice of Peace and Commissioner of Oaths. He visited Nadi Police on the 17/10/2005 to see the accused on the invitation of the Police. He had met the accused in a private room and had spoken to the accused in Hindustani. The accused had told that he was subject to medical examination. Further accused had complained that he was assaulted by the Police Officer. He then took up this complaint with the Divisional Crime Officer Mr Vijay Sigh. He told court that he is an independent person and he doesn't work for the Police Force.

32. Sunil Kumar was called as 10th witness. He corroborated Pravin Kumar and said he was with Pravin Kumar and all of them visited Lautoka on the 13/10/2005.

33. Eleventh witness called by the State was Ashran Kumari. She was the wife of Uday Kumar. She said her husband had passed away in 2008. She also corroborated Pravin Kumar and Sunil Kumar. She submitted to court that on 13/10/2005 Praveen and Sunil went to Lautoka with her husband Uday Kumar to settle a loan. She submitted the receipt of repayment of loan dated 13/10/2005 to Court.

34. Police Officer Penaia Drauna was the 12th witness for the prosecution. He told court that on receiving a complaint he visited the scene of crime on the 14/10/2005 very early morning. He had seen the deceased lying in a pool of blood. He also identified the photos taken at the scene of crime.

35. Mosese Rokobura was the 13th witness called by the prosecution. He was attached to the Forensic Division of the Fiji Police Force. He told court that he visited the scene of crime and they could not find finger prints with details to match. In other words prints found was inadequate/illegible to compare.

36. Venktesh Permal was the 14th witness. He submitted to court that on the 16th October 2005 he got the accused released from the cell and took him to the Interview Bure- (Room). The distance between the cell and the Bure is about 20 meters. After the interview he had escorted the accused to the cell and locked him up. He told court that the accused was not assaulted, threatened or forced by him or any others. Further he did not receive any complaint from the accused.

37. 15th witness called by the Prosecution was Police Officer Semi Meru. On the 16/10/2005 at about 6.50pm he had taken the accused for medical examination at the Nadi Hospital. He said the accused was examined by a lady Doctor whom he identifies as Rotuman lady. He had obtained a medical report and produced in court marking P12.

According to the medical report dated 16/10/2005 the accused, Ashwin Chand was examined by Dr. Lisepi Tabaka, the accused was examined on 16/10/2005 at 6.50pm at Nadi Hospital. She had noted at Column 13(a) "the Patient is calm, aware of why he is being examined". General Health is satisfactory.

The medical practitioner had noted specific findings at 13(b)(11) "only old scars noted on the left forehead 2cm length. No other injury, scar noted on the body".

The Doctor had noted tattoo on the left forearm, hand and chest. At Column 14 Under Diagnosis she had mentioned as "no injury noted".

38. The next witness called was Police Officer Meli Doughty. He told court that he is not involved in any part of investigation in this case. On the 17/10/2005 he was attending to another investigation at the Police Station when he was seated in a bench this accused who had come from the Magistrate Court also sat on the same bench. At one point this witness had noticed that the accused was pricking (poking) his finger nails with a paper clip. He immediately called the escort officer and got the clips removed. He told court he made a statement to the Police.

39. Dr. Osea Tuidraki was the 17th witness called by the Prosecution. He is practicing medicine for more than 52 years and he was in Government Service till December 2010. On the 17/10/2005 when he was attached to Nadi Hospital, the Police produced the accused Ashwin Chand for medical examination. The medical report is produced and marked in court as P13. According to the report the accused was examined at 1.00pm.

The Doctor had noted the patient history as follows:

"Says was assaulted by some Indian Police Officers at Namaka Police Station. Saturday 15/10/2005 He was punched and his fingers stepped on with their boots."

The witness had examined the accused and found two injuries on the accused.

(i) A small laceration under left upper lip.

(ii) Appears to be slight haemotoma under nail of middle and index finger and thumb.

When the Doctor explaining the possibility of causing these injury he said the 1st injury could be possible by a punch and the 2nd injury could be possible by a blunt object.

When the State Counsel questioned the Doctor explained that if it is caused by stepping on the fingers with boots it could have caused related injuries on the skin around and could have caused unbearable pain. Since the accused was not with such pain and could be more possible with the paper clip.

It is up to you to use your common sense and experience to decide how the injuries were caused.

40. The 18th witness called was Police Officer Wasu Dewan Nair. He was the witnessing officer at the charging session. According to him on the 16/10/2005 Police Officer Karam Chand had charged the accused formerly. This witness has took part as witnessing officer. This witness claims that the accused was given all his rights and entitlement but the accused suggested that he was not given all the rights. The witness said once the charging is done the accused voluntarily made a statement. This statement is marked as P14 and the translation marked as P14A. According to the statement the accused does not admit that he committed the offence but he was there at the scene with one Praveen.

I want you all, to consider this statement, with his statement made at the Caution interview and Evidence of others including Pravin Kumar.

41. 19th and the last witness called by the Prosecution was Police Officer Davendra Vijay. He was the witnessing officer at the Caution Interview. This witness told Court that he had assisted in the investigation by visiting the scene of crime. He had seen the knife at the scene of crime and identified the broken knife in this court. The interview was conducted by Police Officer Sushil Deo and it was in Hindustani language. This witness submitted to court that the accused made the statement voluntarily. No one assaulted, threatened or forced him to make a statement.

The witness heard the accused saying "Hum Jan Ke Nehe Mara Kaki Ki" meaning I did not mean to kill.

When the accused suggested that he was assaulted by this witness and Sushil the interviewing officer, witness completely denied the suggestions.

42. With these 19 witnesses, Prosecutor closed the case for the Prosecution. Since there is no application made by the accused defence called and the accused was explained of his Rights. The accused exercised his Rights and elected to remain silent.

43. Further I wish to tell you that you are not entitled to draw any adverse inference against the accused Ashwin Chand for exercising his right to remain silent.

44. I have explained you the law and legal principles. Further I have summarized the evidence as I see. It doesn't mean that you have to consider only my summary. You have to consider the entire evidence of all witnesses and come to your own conclusion.

45. You may use your common sense in evaluating the evidence and deciding the facts of the case.

46. I have explained the legal principles to you. You will have to evaluate all the evidence and apply the law as I explained to you when you consider the charge against the Accused.

47. I humbly request you to consider all evidence before the Court and come your own conclusion. If you are satisfied beyond reasonable doubt of the accused's guilt and you are sure of it. You must find the accused guilty as charged. If you are not satisfied beyond reasonable doubt of the accused's guilt, and you are not sure of it. You must find the accused not guilty as charged.

48. As I explained to you in my opening address and at the beginning of the summing up you have to take your own decision after considering the evidence before the court. You will not be asked for the reasons for your decision. Your possible verdict will be guilty or not guilty.

49. Let me ask the State Counsel and the accused Ashwin Chand whether they have anything to be addressed to you.

SC : Nothing for re-direction.

A : No my Lord. I am happy with the Summing Up.

50. Now let me ask the Assessors whether they need any clarification.

Assessors informs the Court that they are satisfied with the summing up.

51. You may retire to deliberate. I may request you to take all the documents marked before the Court and your notes. You should consider all documents and evidence and come to your own conclusion. Once you have reached your decision, please advice the Court Clerk so that we can reconvene the Court to receive them.

S. Thurairaja
JUDGE

At Lautoka
13th March, 2012