State v Tuinakelo - Summing Up [2015] FJHC 148; HAC025.2014 (4 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION.

Criminal Case No. HAC 025 of 2014

STATE

V

APETE LIU SERU TUINAKELO

Counsel: Ms S. Kant for State.
Mr. J. Savou (L.A.C.) for the accused.

Dates of hearing. 2 and 4 March 2015.
Date of Summing Up: 4 March 2015.

SUMMING UP

Ladies and Gentleman assessors. It is now my duty to sum up to you. In doing so, I will direct you on matters of law which you must accept and act on. You must apply the law as I direct you in this case.

2. As far as the facts of this case are concerned, what evidence to accept, what weight to put on certain evidence, which witnesses are reliable, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts, or if I appear to do so it is entirely a matter for you whether you accept what I say or form your own opinions. In other words you are masters and the judges of facts.

3. Counsel for the prosecution and the defence have just made submissions to you about how you should find the facts of this case. They have the right to make these comments because it is part of their duties as counsel. However you are not bound by what counsel for either side has told you about the facts of the case. If you think that their comments appeal to your common sense and judgment, you may use them as you think fit. You are the representatives of the community in this trial and it is for you to decide which version of the evidence to accept or reject.

4. You will not be asked to give reasons for your opinions, but merely your opinions themselves, and you need not be unanimous although it would be desirable if you could all agree on them. Your opinions are not binding on me and I can assure you that I will give them great weight when I come to deliver my judgment.

5. I ask you to make your decisions free of any prejudice or sympathy you might have against or have for the accused.You must approach your task dispassionately and decide the issues only on the law and on nothing else.

6. On the issue of proof, I must direct you as a matter of law that the onus or burden of truth lies on the prosecution to prove the case against the accused. The burden remains on the prosecution throughout the trial and never shifts. There is no obligation upon the accused to prove his innocence. Under our system of criminal justice an accused person is presumed to be innocent until is proved guilty.

7. The standard of proof is one of proof beyond reasonable doubt. This means that before you can find the accused guilty of the offence charged, you must be satisfied so that you are sure of his guilt. If you have a reasonable doubt about the guilt of the accused, then it is your duty to express an opinion that the accused is not guilty. It is only if you are satisfied so that you feel sure of the guilt of the accused that you can express an opinion that he is guilty.

8. Your opinions must be based only on the evidence you have heard in the courtroom and upon nothing else.

9. The accused is charged, as you know, with one charge of arson. Arson is committed in our law when a personwilfully and unlawfully sets fire to any building or part of a building.

10. It is therefore for you to decide ladies and gentlemen whether it was this accused Apete who started the fire that burnt the building that CDP was occupying. You have heard that he went outside to smoke with others, that he was seen to discard a match still burning. You have heard evidence that there was a strong smell of solvent in the air and you have heard that there was a leaking "FINA" drum in the area, FINA being a highly inflammable liquid. It is for you on this evidence and on any other evidence you might think to be important, to decide whether this action by Apete started the fire.

11. If you decide that the discarding of the match did start the fire, then you must go on to decide whether by dong so he did it unlawfully and willfully. There is certainly no evidence before you that he had a legal right to set a fire and so you should have no trouble in deciding that it was unlawful.

12. The remaining question to be decided and one that is quite complex in law is; if you find he did start the fire, did he do so "willfully"?

13. The term willfully in our law can mean one of two things. It can mean either intentionally, that is meaning to do something, or it can mean recklessly.

14. The law says that a person is reckless if he or she is aware that a substantial risk of a result might occur, and having regard to the circumstances known to him or her, it is unjustifiable to take that risk.

15. Let me try to break that down for you and relate it to our case.

16. If you decide that the actions of Apete caused the fire that night you must decide, did he light it intentionally? If so he is guilty. I would add that there is really no evidence before you that he intended to burn the premises. If not intentionally, then you must go on to decide whether he was in the circumstances reckless in doing what he did. In that process, it is for you to decide whether he was aware that there was a substantial risk of fire in the compound that night if he were to throw a lit match on the ground, and having regard to the circumstances at the time that were known to him was he unjustified in taking the risk of throwing a lit match on the ground. If you think he was reckless in terms of these directions (that is that he knew there was a risk and that he had no justification in taking that risk) then that is enough for you to find him guilty of the offence of arson.

17. That is all I wish to say about the law in this case.

18. I am aware that you only heard the evidence on Monday and that you have heard Counsel refer to it this morning, but it is my duty to remind you of the important parts of the evidence; however I must stress that what I think is important, you don't have to give weight to if you think it is not, and similarly if I do not stress something or I do not refer to something which you think is important, then you will give it the weight that you think fit.

19. The first three prosecution witnesses, Luke, Isimeli, and Vijay told us what happened in the very early hours of the 12th December 2013 in the premises that the CDP were renting at Walu Bay. A truck was being loaded with cartons. The truck was outside but backed up to the door of the warehouse or the "bulk" as the workers termed it. The security man saw the accused and one other go outside to the left of the truck. He saw them doing something with their hands and then he saw the accused bend down and put a lit match on the ground. The fire then started. He had no trouble seeing, but he only saw the match, he didn't see any cigarette. The security man said he smelled something in the air that night and there were a lot of drums in the compound but he didn't know if any of them were leaking. When the fire was ablaze, the accused tried to move the truck away.

20. Isimeli was one of the boys loading. He said that during the loading he could smell thinner. It was a strong smell. The boys wanted to have a smoke but they were not allowed to smoke inside so they went outside. When he got out, he saw the accused holding a cigarette and a match. He lit the cigarette and dropped the match and that started the fire. They never meant for it to happen. He dropped the match in the drain. There were many drums around but he did not know which ones had thinner in them. He could smell what was either thinner or benzene. When the fire was blazing the accused went to move one of the trucks.

21. Vijay was the Operations Manager and had worked there for 38 years. On that night he was supervising while the boys were loading the truck. It was nearly the end of loading and the accused was outside resting. There is no smoking allowed inside but only one step outside is the smoking zone. At the premises, they often deal with inflammable items, (for example chemicals) but the company will only deal with them if they are sealed properly. When they are received, they are checked and he as supervisor would check them at night when the loading was in progress. At the time of the fire, there were a few drums outside that were destined for Labasa. He didn't know the contents. He didn't know how the fire started. He called the fire brigade.

22. He didn't smell anything that night, but he was aware that one of the drivers, Kavinesh, had seen a drum leaking out side and had shifted it. He had rushed in to wash his face. Kavinesh said that there was something like thinner leaking from the drum. Vijay told the boys not to go there. He told them not to light any flames and not to smoke. The smoking area was on the left and the leaking drum was on the right. Kavinesh had moved the drum away from the drain. The leaking liquid could have gone into the drain but he didn't see that.

23. The Fire Department Officer who investigated the fire gave evidence and he produced his written report. He gave evidence of his qualifications and experience that qualified him to be an expert in his field. As an expert he is able to give opinion evidence to the court on the cause of the fire, the progress of the fire and any other recommendations. Bear in mind that his deductions and conclusions are opinions only, which you may accept or discard. It is a matter for you.

24. He attended the scene soon after 8 am on the 12thDecember, about 7 hours after the fire started. He interviewed all the staff . They told him that they could smell something strange but they were not aware that it was thinner liquid.

25. His conclusion as stated in the report as to the suspected cause of the fire was:

"Two staffs are loading, lit a cigarette then threw the lit matchstick into the drain without realizing the drain contains thinner content."

26. The last witness for the prosecution was the Police Officer who interviewed the accused under caution. That means that he was warned that anything he said could be used in evidence against him. The accused did answer the questions and the record of interview is before you. Ladies and Gentleman, the defence have made no objection to your seeing the record and they do not say that the interview was unfair or tainted in any way. It therefore becomes evidence for you to consider in the normal way. If you think that the answers he gave are true (and there is no evidence that they are not) then you can accept them or reject them, the same as with any other evidence. I remind you of the salient points of the interview.

27. The accused admitted his presence there that night working as a loading boy and that during the loading he went out and smoked several times. They had smoked twice in the area where the fire started. When they had nearly finished he smelt "flammable liquids", it was the thinner he said.The smell was strong. He knew that one driver had shaken a drum and the liquid splashed into his eyesand he had to wash.

28. He lit one cigarette and threw the match into the drain and all of a sudden the flame run or spread on the drain beside the bulk. (Q62)

29. He says from Q 67 to Q 73that the thinner smell was strong, he knew it was thinner, he thought the drum was punctured or open, it was nearby and that he should smoke far away from there.

30. He did say that he was sorry for the "negligence or recklessness I have done".

31. Well ladies and Gentleman that was the end of the prosecution case. You heard me explain to the accused what his rights are in defence and after consulting with his counsel he elected not to give evidence nor to call any witnesses. Now I must direct you that the fact the accused did not give evidence means nothing at all. It is his right. He is entitled to remain silent and to require the prosecution make you sure of his guilt You must not assume he is guilty because he has not given evidence.

32. Well there it is. You are to judge the case on the prosecutions evidence which includes the accused's answers in the interview and on that evidence you must find him guilty beyond reasonable doubt.

33. Your main task, if you find that his actions were the cause of the fire, is to decide whether he was reckless in terms of the legal definition I gave you; that is was he reckless knowing by the circumstances that there was a risk of fire, and knowing that did he act without justification in discarding the lit match?

34. You may now retire. When you are ready with your opinions, please let a member of my staff know and I will reconvene the Court.

35. However just before you go I am going to ask Counsel if there are any additions or alterations they would have me make in these directions.

36. Counsel??

P.K. Madigan
Judge

At Suva
4 March, 2015.