State v Raikavuka - Summing Up [2014] FJHC 673; HAC122.2013S (16 September 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 122 OF 2013S

STATE

vs

AREVAKASATE RAIKAVUKA

Counsels: Ms. S. Naidu and Ms. S. Lodhia for the State
Mr. J. Savou for Accused
Hearings: 11, 12 and 15 September, 2014
Summing Up: 16 September, 2014

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 if 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. You have a copy of the information with you, and I will now read the same to you:
   

"... [read from the information]...."

4. THE MAIN ISSUES

8. In this case, as assessors and judges of fact, each of you will have to answer the following questions:
   
   • (i) Did the accused, on 8 March 2013, at Nasinu in the Central Division, without lawful excuse, threaten to injure and cause death to his wife and children, with intent to cause alarm to his wife? (count no. 1).
     
   • (ii) Did the accused, on 8 March 2013, at Nasinu in the Central Division, with intent to insult the modesty of his father, utters the words "fuck your wife", intending such words to be heard by his father? (count no. 2).
     
   • (iii) Did the accused, on 8 March 2013, at Nasinu in the Central Division, willfully and unlawfully set fire to his own dwelling house? (count no. 3)
     

5. THE OFFENCES AND THEIR ELEMENTS

9. Count No. 1 involved the offence of "criminal intimidation". For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused

(ii) without lawful excuse

(iii) threatens

(iv) to injure and cause the death

(v) of a complainant or complainants

(vi) with intent to alarm them.

10. The conduct that triggers the offence is the accused's conduct of "threatening". The accused must threaten to injure and cause the death of the complainant or complainants. The threat could be verbal or physical. It could be uttered by word of mouth or through some physical action. The threat does not need to physically happen, that is, personal injury and death does not necessarily need to happen.

11. Furthermore, at the time of the threat, the accused must have no legal justification for doing the same. For example, in threatening the complainant or complainants, he was not acting in self-defence. In addition, for the offence to be committed, the accused, in threatening the complainant or complainants, must have the intention to cause them alarm. His intention could be inferred from his physical conduct, and the surrounding circumstances.

12. Count No. 2 involved the offence of "annoying a person". For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused

(ii) with intent to insult the modesty of the complainant

(iii) utters any word

(iv) intending that word

(v) to be heard by the complainant

13. The key to the offence is the act of insulting someone. In other words, it must be shown by the prosecution that, the accused intended to insult the complainant. It is commonly accepted that the easiest way to insult someone, is to swear at them, and intending such swear words to be heard by them, so as to insult them. In other words, if you swear at someone, intending such swear words to be heard by him, and you intended to insult him, you are guilty of the offence.

14. Count No. 3 involved the offence of "arson". For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt the following elements:

(i) the accused

(ii) wilfully and unlawfully

(iii) sets fire to

(iv) any building

15. The key words in the offence are "sets fire to any building". It must be shown by the prosecution beyond reasonable doubt that, the accused sets fire to the building, mentioned in the charge. In this case, the building was his own family house. Once you've established he had set fire to his own family house, you must find out whether or not he did so wilfully, that is, intentionally. If you decide he did it wilfully and/or intentionally, then you must find out whether or not what he did was unlawful.

16. As a matter of law, I must direct you that setting fire to one's own property is not unlawful unless it is in furtherance of an unlawful purpose, such as an intention to injure any person, or commit fraud or endanger nearby properties by the fire spreading to them. If you find he did not set his house on fire, that is the end of the matter. You don't need to carry out the additional enquires on wilfulness and unlawfulness.

17. Remember, there are three counts. You must approach them separately, in the light of the whole evidence called in the trial.

F. THE PROSECUTION'S CASE
18. The prosecution's case were as follows. On 8 March 2013, the complainant in count no. 1 (PW1) was aged 32 years and married to the accused. The accused was aged 32 years also. The two had 4 young children, and they lived in a corrugated tin house at Kalabu Nasinu. According to the prosecution, PW1 and her children had their dinner in their house on 8 March 2013. Later, they went to sleep. At about 11pm, the accused returned home drunk. According to the prosecution, the accused criminally intimated PW1 and their children, before he went out of the house.

19. According to the prosecution, the accused went to his father's (PW2) house thereafter. PW2's house was 100 meters from their house. At PW2's house, the accused joined his father and an uncle in drinking yaqona. During the yaqona session, PW2 and the accused had an argument about their cassava plantation. According to the prosecution, the accused insulted PW2 by swearing at him, hence count no. 2.

20. According to the prosecution, the accused in a state of anger, went and burn down his family's house. The matter was reported to the police. An investigation was carried out. The accused was caution interviewed by police on 9 March 2013. He admitted intimidating PW1, annoying PW2 and setting fire to his house. He was later charged with criminal intimidation, annoying PW2 and arson. He was produced in the Nasinu Magistrate Court on 11 March 2013. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged, on all counts. That was the case for the prosecution.

G. THE ACCUSED'S CASE
21. On 11 September 2014, the first day of the trial proper, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to all counts. In other words, he denied the allegations against him. At the end of the prosecution's case, a prima facie case was found against him. He choose to open his case through his counsel, give sworn evidence in his defence, and called no witness. That was his right.

22. The accused's case against the three allegations were very simple. On oath, he denied the allegations against him. He said, he did not intimidate his wife and children. He said, he did not swear at his parents. He said, he did not burn down his house.

23. He admitted he was caution interviewed by PW4, at Nasinu Police Station, on 9 March 2013. However, he said, he is not well educated. He said, he can't read and write. He admitted, he signed the interview notes. He said, the answers to the interview notes were a fabrication by police. He said, he does not understand anything in the interview notes. As a result of the above, he is asking you, as assessors and judges of fact, to find him not guilty as charged on all counts, and acquit him accordingly. That was the case for the accused.

H. ANALYSIS OF THE EVIDENCE
(a) COUNT NO. 1: CRIMINAL INTIMIDATION:
24. The complainant in count no. 1 is the accused's wife, PW1. I have carefully read all her evidence. In her sworn evidence, she said, she saw her husband, the accused, on 8 March 2013 at 11pm, when he came to ask her for his taxi fare. She said, she gave him $10. She said, her husband left their house at 2am, the next morning. So, the two were together from 11pm on 8 March 2013 to 2am on 9 March 2013. Nowhere during that time did PW1 say her husband threatened to injure and cause her and their children's death, with intent to cause them alarm. As far as PW1 was concerned, she gave no evidence to support the prosecution's case on count no. 1.

(b) COUNT NO. 2: ANNOYING ANY PERSON:
25. The complainant in count no. 2 is the accused's father, PW2. I have carefully read his evidence. He said, in his evidence that, the accused came to his house on 8 March 2013. He said, the accused joined him and his elder brother in a grog session. He said, the accused was sober, and respectful to them, when he was with them. He admitted he talked to the accused, his son, about their cassava plantation. He said, the accused later left and returned. However, in his evidence, he said nothing about the accused annoying him by swearing at him on 8 March 2013. As far as PW2 was concerned, he gave no evidence to support the prosecution's case on count no. 2.

(c) COUNT NO. 3: ARSON:
26. In the evidence given by the witnesses, only four of them saw the accused's house burning, at the material time. The witnesses were PW1, PW2, PW6 and the accused. PW1 said, at the material time, she saw their house was on fire, while she was at her grandmother's house. She said, the distance between their house and her grandmother's house, was like from the witness box to Suvavou House.

27. PW2 said, he saw his son's house on fire from his house, which was 100 meters away. PW6, the police investigation officer said, he visited the crime scene at the material time, and saw the accused's house on fire. The accused himself said, he went to his house when it was on fire, and he could not do anything to put out the fire. The important point in the above evidence was that, the parties agree the accused's house was on fire, at the material time. Who set the same on fire? None of the prosecution's witnesses, mentioned above, could answer the above question. The accused, in his evidence, denied setting fire to his house.

(d) The Accused's Police Caution Interview Statements – Prosecution Exhibit No. 3 (hand written version) and 4 (typed version):
28. The accused was cautioned interviewed by DC 3704 Temesi Saladuadua (PW4) at Nasinu Police Station on 9 March 2013, between 1.23 pm and 3.30pm. The interview went on for about 2 hours 7 minutes. During the interview, the accused allegedly confessed to the crimes, for example, for count no. 1, see questions and answers 20 to 22; for count no. 2, see questions and answers 14 to 19 and for count no. 3, see questions and answers 23 to 28 and 33 to 35. On its face, these alleged confessions by the accused, if accepted by the court, are enough to convict the accused for the three counts, ie. count no. 1, 2 and 3.

29. However, before you can consider the above alleged confessions, I must, as a matter of law, direct you as follows. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, before you can accept a confession, you must be satisfied beyond reasonable that it was given voluntarily by its maker. The prosecution must satisfy you beyond reasonable doubt that the accused gave his statement voluntarily, that is, he gave his statements out of his own free will. Evidence that the accused had been assaulted, threatened or unfairly induced into giving those statements, will negate free will, and as judges of fact, you are entitled to disregard them. However, if you are satisfied beyond reasonable doubt, so that you are sure, that the accused gave those statements voluntarily, as judges of facts, you are entitled to rely on them for or against the accused.

30. In this case, the caution interview police officer, PW4, said he did not assault or threaten the accused during the caution interview. He admitted, he didn't asked the accused his standard of education before the interview. It could he said, he assumed the accused was educated, as he proceeded to interview the accused in the English language. When cross-examined, PW4 said, he interviewed the accused in English and in the "i-taukei" language, but recorded the interview only in English. He said, he signed and the accused counter-signed after questions and answers 2, 4, 6 and 39.

31. The accused, on the other hand, said, he does not understand English. He said, he is not properly educated, and he can't read and write in "i-taukei" or English. He admitted PW4 caution interviewed him, at the material time. He admitted he signed the interview notes after questions and answers 2, 4, 6 and 39, including at the bottom of pages 2 to 6 of Prosecution Exhibit No. 3. He said, the answers to the questions were a fabrication by PW4. He said, he denied all three allegations to the police.

32. You have heard PW4 and the accused give evidence on the caution interview. You have watched them in the courtroom while they were giving evidence. Who was the more credible to you, as a witness? Was it PW4 or the accused? Even if PW4 was the credible witness, did the accused's evidence create some doubt in your mind as to the voluntariness of his caution interview statements? If you find that the accused was not a credible witness, and that you accept that he gave his caution interview statements voluntarily, you may find him guilty as charged on all counts, given his alleged confession. If you find the accused was a credible witness, and that you accept that he gave his caution interview statements involuntarily, you may find him not guilty as charged on all counts. It is a matter entirely for you.

I. SUMMARY
33. 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.

34. Your possible opinions are as follows:

(i) Count No. 1 : Criminal Intimidation : Guilty or Not Guilty

(ii) Count No. 2 : Annoying a Person : Guilty or Not Guilty

(iii) Count No. 3 : Arson : Guilty or Not Guilty

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

Salesi Temo
JUDGE

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