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State v Drau - Summing Up [2012] FJHC 982; HAC030.2009 (23 March 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION


HIGH COURT CRIMINAL CASE NO: HAC 030 of 2009


BETWEEN:


STATE
PROSECUTION


AND:


EPELI ULUIKAVORO DRAU
ACCUSED-PERSON


Counsel: Ms Shelyn Swastika Kiran, State Counsel For State
Mr. T. Terere For Accused


Dates of Trial : 19-21 March 2012
Date of Summing Up : 23 March 2012


SUMMING UP


Madam Assessor and Gentleman Assessors


  1. Evidence in this case has now come to an end. At its conclusion, the law requires me - as the Judge who presided over this trial - to sum-up the case to you on law and evidence. Each one of you will then be called-upon by me to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing-up of the case very carefully and attentively. This will enable you to form your individual opinion as to facts in accordance with the law with regard to the innocence or guilt of the accused-person. Your individual opinions, please remember, carry a great weight and they will be considered by court in coming to the final decision of court. This tells how important your task is.
  2. In my summing-up of the case to you, my directions on matters of law must be accepted as correct and you must act upon them. In other words, you are bound by my directions on law, because as I indicated in my introductory remarks at the commencement of the trial, I am the Judge who had to oversee that the trial is conducted according to law. I, as the Judge, also guide you on law for you to form your own independent opinion as to facts on the evidence in the case.
  3. In as much as I am the Judge on law, each one of you is also a Judge. Each one of you is a Judge on facts; and, please bear in mind that you and you alone are the sole judges of facts. Therefore, you yourself will have to decide on facts and such decision on facts cannot be made by anyone else other than each one of you; and, no one else can influence you in the making of your opinion. And as judges of fact, you can talk, discuss and deliberate on facts of this case among yourselves only. But, each one of you must reach your own conclusion or form the opinion as to facts based on the evidence in this case. Your opinions could be unanimous or by majority; and, if the court agrees with such opinions, court will give the final judgment of the case accordingly.
  4. Your duty, therefore, is a noble task and it will ultimately decide whether the accused-person is not-guilty or guilty of the offence, as charged, or of any other offence, on which I will deal with shortly.

5. Let me explain further on your role. Each one of you has attained a certain standard in life and society and possesses a wide experience in life, community and the society at large. Therefore, the reason for your selection to perform the noble task as a judge on facts is that you have a better understanding and knowledge on day-to-day happenings in the society. You can, therefore, grasp and understand them better than a court of law would do; because, what the evidence seeks to unravel are indeed the facts that come to be in existence in the course of the conduct of the people in their day-to-day life. As members of the community, you are considered to have a better opportunity and ability of assessing and appreciating such facts, which ultimately would be utilized to decide the case before you.


  1. As judges of fact, it is your own duty and responsibility to decide which fact is to be true and acceptable and which one is not acceptable and should be rejected. Similarly, which witness/es to be believed; and, which version/s of the evidence is to be accepted or rejected, are entirely matters for you to decide by yourself. So, if I happen to express any opinion on facts, or if I appear to do be doing so, you must disregard that and you must form your own opinions without being influenced by such an expression of opinion by me. Please remember that, that is because you are the Judges of fact and, even as the presiding Judge, I cannot and should not, either by design or accident, do anything that would affect your opinion on facts of this case.
  2. Counsel for the State and Counsel for the defence have both made submissions to you as to how you should find the facts of the case. They have done so in accordance with their duties as counsel for the respective party on the basis of what they perceived in their own ways of thinking and analysis. However, you do not have to accept what they say. If, what they have said, appeals to your commonsense and judgment and concurs with your own conclusions, then it is entirely a matter for you and you may accept it. Otherwise, you are not bound to accept such propositions on facts as advanced by counsel.

8. Your decisions must be solely and exclusively upon the evidence, which you have heard in this court, and upon nothing else. You must disregard anything that you have heard about this case, outside this courtroom. You might have seen or heard news-items in print or electronic media about this case before or during the trial. You must disregard them and your opinions should, only be based on the evidence given in this courtroom.


  1. I must give each one of you a word of caution. This caution should be borne in mind right throughout until you reach your own opinions. That is - as you could hear from the evidence - this case involved an incident of loss of life of a man due to some violent acts as alleged by the prosecution. This certainly shocks the conscience and feelings of our hearts. It is quite natural given the inherent compassion and sympathy, which human-beings are blessed with. You may, perhaps, have your own personal, cultural, spiritual and moral thoughts about such an incident. You may perhaps have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and/or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set-down by law, to which every one of us is subject to in the present day society that we live in. I will deal with the law as it is applicable to the offence with which the accused-person is charged, in a short while.
  2. Before doing so, I must tell you about a very important principle of law in a criminal trial. This is sometimes described as the golden rule in a criminal case. That is the presumption of innocence that an accused-person is entitled to in law. The effect of the presumption is that the accused-person is considered to be innocent until he is proven 'guilty'. In other words, even though, there is an offence, with which the accused-person is charged, by law he is considered to have been innocent. This presumption is in force until you form your own opinion at the end of this case solely on evaluation of evidence that the accused-person is guilty of the offence. Therefore, your independent opinion only could remove this presumption after all these proceedings and your deliberations on evaluation of facts are over.
  3. The presumption of innocence, which is always in favour of an accused person, brings into force another very important principle of law. That is with regard to the burden - or sometimes referred to as the onus - of proof of the case. The case, as you know, has been brought by the Director of Public Prosecutions on behalf of the State against the accused-person on the basis of an allegation of committing the offence of manslaughter. The burden of proof of the case, in light of the presumption of innocence that I explained to you, therefore, lies always with the prosecution. Therefore, the burden of proof of the case against the accused-persons rests fairly and squarely always on the prosecution, that is the State-the complainant. The prosecution is never relieved of that responsibility and it does not shift to the accused-person at all.
  4. In other words, if I am to put it differently from the perspective of the accused-persons, there is no burden of proof whatsoever on the accused-person that he is innocent. You will recall that the accused-person was presumed to be innocent and, therefore, there need not be any burden on him to prove his innocence. His innocence is presumed by law.
  5. Inasmuch as the burden of proof is on the prosecution, that burden should be discharged by the prosecution on the basis of a certain standard that has been set by law. The standard of proof set by the law is 'proof beyond reasonable doubt'. Therefore, please remember that the standard of proof in a criminal trial is proof beyond reasonable doubt. This means that the prosecution, having the burden of proof on its shoulders, should prove its case against the accused-person beyond a reasonable doubt.
  6. Proof beyond reasonable doubt, however, does not mean the proof of the case to the level of mathematical accuracy or to the level of accuracy that can be seen at a scientific test at a laboratory. Such an unrealistic standard is never meant by the standard of proof beyond reasonable doubt. What, in effect, it really means is that the prosecution must dispel any reasonably perceivable doubt in your mind as to the commission of the offence by the accused-person. When I say 'the commission of the offence, each and every element of the offence should be proved beyond reasonable doubt. I will deal with the elements of the offence of manslaughter as I go on.
  7. Lady and gentlemen, please note that if the prosecution has not discharged its burden of proof or has not been able to reach the standard of proof as set by law, then the case for the prosecution fails. If you find a reasonable doubt in the case for the prosecution, such doubt should always be given to the accused-person. You have to remember that, at no time the prosecution is entitled to the benefit of any doubt that may occur in the course of the prosecution case or defence case, which I will advert to when I sum-up evidence later.
  8. Proof beyond reasonable doubt, therefore, means that before you find the accused-persons guilty of the offence charged or any other offence, you must be satisfied in your mind that you are sure of the guilt. If something puzzles in your mind as to the guilt after evaluating facts based on the evidence - that means - that the prosecution has not satisfied you on its standard of proof. In other words, there is a doubt you reasonably perceive as to the commission of the offence as charged by the accused-person. Such doubt should always be resolved only in favour of the accused-person. You must, thereupon, express an opinion that he is not guilty.
  9. Let us now look at the charge of manslaughter on the information, as amended on 19 March 2012, which was read over to the accused-person, upon which this trial proceeded. It was under Section 198 of the Penal Code. The particulars of the offence, as alleged by the prosecution are:

EPELI ULUIKAVORO DRAU on the 13 March 2009 at Lautoka in the Western Division by an unlawful act caused the death of Prem Narayan.


  1. The accused is charged with the offence of manslaughter. Manslaughter is causing the death of another by an unlawful act. The elements of the offence of manslaughter, which the prosecution must prove beyond reasonable doubt are:

(i) The accused-person did an unlawful act; and

(ii) That unlawful act caused the death of the deceased.


19. I will now explain these elements to you.


  1. You have to always bear in mind that all two elements should be established by the prosecution at all times together for it to succeed in the charge of manslaughter.
  2. Possibility of causing harm or grievous harm in light of the act/s or conduct of the accused-person is dependent on the circumstances of the case. And, sufficiency of such circumstances to cause death is entirely a matter for you to decide after considering the evidence before you.
  3. In a criminal trial, an accused-person or his lawyer can admit any fact and/or an element of the offence. Such admissions are required to be in writing, signed by both parties namely - the prosecution and the defence - and by the Judge. Once admissions are made after following that procedure, they are filed of record to enable court to make use of the admissions.
  4. Legal effect of such admissions is that they constitute sufficient proof of the facts. Therefore, such facts need no further proof by way of evidence by the prosecution. Record of 'AGREED FACTS' was placed before you as the trial was proceeding. You must carefully examine the record of agreed facts to identify the facts that have been admitted by the accused-person.
  5. It is now time for me to tell you about the nature of evidence that can be offered in a case. A witness can give evidence on his observations, like what he heard, what he saw, and what he perceived by his own senses. That is called direct evidence.
  6. In certain circumstances court would allow witnesses to give their opinions on a matter. These witnesses should be experts on that particular subject. For example, you get experts in medical field. The forensic-pathologist Dr K D Goundar gave evidence and his expertise was not challenged. Therefore, his opinions as to the onset of injuries and the cause of death of the deceased are admissible in evidence. Such evidence is called expert evidence. You can be guided by his opinions when you assess the facts of the case as to the cause of death of the deceased. Please remember that you are entitled to form your own opinion as to facts after considering the opinion of the expert. If you feel fit to give weight to the expert's opinion, then you can accept it.
  7. Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, the Post-Mortem Report, the sketch of the place of the crime, the photographs of the deceased taken and the cautioned-interview statements, which are before you, are documentary evidence.
  8. You must consider all direct evidence - that is what witnesses saw, heard or perceived by their senses, as well as documentary evidence and expert evidence.
  9. A case could usually depend on one or all those kinds of evidence or on a combination of two or more. Whatever the case may be, it is the value and the weight of evidence that matters.
  10. Let me remind you of the evidence very briefly in the case.
  11. Witness-Salesh Narayan giving evidence said that he recalled the incident that took place around 9.30-10.00 p.m. on 13 March 2009. He was drinking grog in the sitting room of the house with the deceased father-Prem Narayan, brother Vikash Narayan, a neighbor-Sanjiv and another man from Labasa.
  12. As he went to visit the washroom, Yaca, whom he identified as the accused in the dock, came into their house drunk. The accused was seen with the father inside the shop adjacent to the house snatching cigarette packets from his father a little later. The accused was seen taking some money from the cash till, the amount of which the witness was unaware of. The witness saw the accused, thereafter, pushing the deceased father and hitting the father twice. The witness said that the accused hit on father's chest and on the face. The deceased-Prem Narayan fell backwards and the witness rushed to the father as he lay fallen on the floor. The deceased in his last words remarked that he got sick. Thereafter, deceased-Prem Narayan was brought to the visiting room by the witness with the help of his brother-Vikash and Sanjiv. They tried to get him breath but it was unsuccessful.
  13. Answering cross-examination witness denied that the accused came into the house asking for a 'Tabua'. The witness also denied that he was trying to put the blame on the accused after his father passed away and said that he had no reason to tell lies. Answering further, witness said the punches that the accused gave on his father were strong. He said he could not exactly remember what items the accused put into a sac from the shop.
  14. Witness-Vikash Narayan recalling the date of the incident, being 13 March 2009, said that he returned home around 6.00 p.m. from work and saw his father (the deceased), Sanjiv, brother-Salesh and an uncle from Labasa were at home drinking grog. Around 10.00 p.m. he saw the accused who was a frequent visitor to this house coming. As the witness joined drinking grog, the accused started swearing at the uncle from Labasa. Later, the witness heard that someone being hit and that the one who got hit was in pain.
  15. He saw the accused asking for money from the deceased father and saw the uncle from Labasa holding his head. The accused was seen inside the shop and later going out of the shop with a bag carrying with him. As the witness went inside the shop, he saw the deceased father lying fallen on the floor. The witness checked whether the father was still breathing and tried to revive him as he did not feel the beat of the heart or the pulse. He then got down and asked neighbor-Jiten to check on the father who said that his father was no more.
  16. Answering cross-examination the witness said that the accused was a friend of his father who used to visit his place frequently. He denied that he was trying to put the blame on the accused over the death of his father. He also denied that his father hurt himself as he fell on the ground.
  17. Sanjiv Mani giving evidence said that he visited the deceased's house on 13 March 2009. As they were drinking grog around 10.00 p.m. the accused came in and gave a punch at a man from Labasa stating, "was this the way to sit and drink grog?" Accused then asked for a packet of cigarette; and, after giving the packet of cigarette he got scared and hid behind the temple, which was in the premises.
  18. Answering cross-examination the witness said that the deceased had been sick for about a week and said that he did not see the accused carrying the bag full of items.
  19. Isoa Usanavatu giving evidence said that he was married to the sister of the wife of the accused. The accused came to his house and said that he had punched an Indian man on that day. By about 8.00 a.m. on the following day, he had left.
  20. Dr K D Goundar in his evidence said that the deceased had some ailment in heart but he very clearly said that the deceased died of the very serious head injuries that he had suffered. He said that there were injuries in and around the mouth and the face due to a blunt force. And, the head injuries could have resulted as the head struck on a hard surface.
  21. The case for the prosecution was closed with the evidence of those witnesses and exhibits marked as Exhibits PE-1– PE-2. PE-1 was the Post Mortem Report of the deceased.
  22. After the case for the prosecution was closed, you may recall, that I explained the rights available to the accused. I was under duty to do so. You must not misunderstand that that exercise of my power under law as a call to answer the charges and to prove the innocence of the accused. There is no such compulsion and the accused decided to remain silent and tendered his cautioned-interview statement as DE-1 in support. You must not draw any adverse inference on his silence. He is well within his right in making that choice.
  23. Cautioned-interview statement is before you. You must read that very carefully. This is a statement made to police under caution that it could be used as evidence against the maker of such statement.
  24. I have summarized all the evidence before you. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should reminded yourself of all that evidence and form you opinion on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourself of the evidence.
  25. In summary the prosecution says that the unlawful act was committed by the accused by hitting the deceased twice and making him fall as a result and that conduct of the accused caused the death of the deceased. The accused denies it and says that the deceased died of a heart-attack. The doctor very clearly said that he observed no signs of a heart attack to be the cause of the death even though the deceased had had an ailing heart. He, instead, said that the cause of death was the serious head injuries and excessive internal bleeding within the brain that caused the death. You are to consider whether any severity of blow/s dealt by the accused had made the deceased fall with a high velocity and whether the resultant impact had caused the extensive head injuries leading to his death. If so, it is open for you to consider that the fall was directly resulted from the unlawful act of hitting the deceased and contributed to the cause of death under the law relating to causation.
  26. If you are of the view that the Accused did nothing unlawful by his act or conduct or you have a reasonable doubt about that, then you must find the accused not guilty of the offence.
  27. Madam assessor and Gentleman assessors, this concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court, and you will be asked to state your separate opinion.
  28. I thank you for your patient hearing to my summing-up.

You may retire for your opinions now.


Priyantha Nāwāna
Judge
High Court
At Lautoka
23 March 2012

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