State v Narayan - Summing Up [2015] FJHC 587; HAC166.2013S (13 August 2015)

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Counsels : Mr. M. Delany and Mr. M. Vosawale for State
Mr. J. Waqainabete and Ms. S. Prakash for Accused
Hearings : 3 to 7, 10 and 11 August, 2015
Summing Up : 13 August, 2015

9. I will start with the "murder" charges, as they are more serious than the "arson" charges. Count No. 3, 4 and 5 involved the offence of "murder", contrary to section 237 of the Crimes Decree 2009. For the accused to be found guilty of murder, the prosecution must prove beyond reasonable doubt, the following elements:

10. On the first element of murder, a "wilful act" is a voluntary act by the accused. It is a feeling of strong determination to do something that he wanted to do. It is what he wanted to happen in a particular situation. This is the psychical element of the offence of murder. For example, A wants to shoot B with a gun. A picks up a gun, and shoots B in the heart, and as such, A did "a wilful act", by shooting B with a gun. Likewise, if A sets fire to his dwelling house, in which B was sleeping. A sets fire to his dwelling house, and B was severely burnt. A did a "wilful act" by setting fire to his dwelling house, wherein B suffered severe burns.

11. On the second element of murder, "the wilful act must cause the death of the deceased". This simply meant that the accused's wilful act, substantially contributed to the death of the deceased. The accused's wilful act must be a substantial contributor to the death of the deceased. In other words, the accused's "wilful act" was a substantial cause of the deceased's death. Continuing from the above example when A shot B in the heart, with a gun, B later died as a result of the injuries to his heart. A shooting B in the heart (wilful act), was a substantial cause of B's death. Likewise, when A sets fire to his dwelling house, wherein B was sleeping, B was severely burnt and later died as a result. A's setting fire to his house (wilful act), was a substantial contributor and cause of B's death.

12. The third element of murder concerned its fault element. There are two fault elements of murder, as described in paragraphs 9(iii)(a) and 9(iii)(b). In this case, the prosecution is running its case on both fault elements. On the fault element in paragraph 9(iii)(a), the prosecution need to prove beyond reasonable doubt that when the accused set fire to his dwelling house, at the material time, he intended to cause the deceased's death. We cannot cut open the accused's head, to find out what his intentions were, at the time he burnt the deceased to death. But you can examine his conduct at the time, that is, what he said and did, and the surrounding circumstances, to infer whether or not be intended to kill the deceased, when he set fire to his house. If you find that he intended to kill the deceased, at the material time, you do not need to examine the alternative fault element in paragraph 9(iii)(b). Because, a fault element under paragraph 9(iii)(a) is sufficient to ground a conviction for murder, if the elements in paragraph 9(i), and 9(ii) hereof are also satisfied.

13. However, if you find that the accused did not intend to kill the deceased when he burnt his dwelling house, at the material time, then you need to consider the second fault element in paragraph 9(iii)(b) hereof. The question becomes: Was the accused reckless as to causing the deceased's death, when he burnt his dwelling house, at the material time? In law, a person is reckless with respect to a result if:

(ii) 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. The following questions had to be examined and answered: Was the accused aware of a substantial risk that the deceased would die if he burnt his dwelling house at the time? And having regard to the circumstances known to him, was it justifiable to take the risk by burning his dwelling house when the deceased was in it, at the material time? If you think he was not justified in taking the risk, then he was reckless as to causing the death of the deceased. If you think he was not reckless, then he is not guilty of murder.

14. If you are sure that all the elements of murder, as expressed in paragraph 9(i), 9(ii) and 9(iii)(a) or (b) hereof, are satisfied, then you must find the accused guilty as charged. If you find that any of the above elements of murder are not satisfied beyond reasonable doubt, then you must find the accused not guilty of murder.

15. We will now consider the "arson" charge. Count No. 1 and 2 involved the offence of "arson", contrary to section 362(a) of the Crimes Decree 2009. For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:

16. It must be shown that the accused wilfully set fire to the building. In other words, it must be shown by the prosecution, beyond reasonable doubt that, the accused intended to set fire to the building ie. he deliberately set fire to the building. His intention could be inferred from his actions, words, conduct and the surrounding circumstances. In addition to the above, it must be proven by the prosecution, beyond reasonable doubt that, the accused had no legal justification or excuse, to setting fire to the building. A person may lawfully set fire to his own house, but not that of others. He may not set fire to his own house in furtherance of an unlawful purpose, that is, with an intention to injure others, or was reckless in causing others injuries.

17. In their closing submissions to you, both parties had raised the defence of "mental impairment", as contained in section 28(1) of the Crimes Decree 2009. Firstly, as a matter of law, a person is presumed not to be suffering from any mental impairment. Secondly, this presumption can be displaced by the defence if it proves on the balance of probability that the person was suffering from such a mental impairment. Thirdly, a person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from mental impairment that had the effect that :

18. The question whether the person was suffering from a mental impairment is one of fact. "Mental impairment", as a concept, encompasses various types of mental conditions. It includes "senility, intellectual disability, mental illness, brain damage and severe personality disorder". One could easily argue that any person having any type of "mental illness", could escape criminal liability, even for an offence of murder or arson, as in this case. However, the law does not give a blanket cover to people suffering from any type of mental illness to escape criminal liability.

19. For the defence of "mental impairment" to succeed, the defence must prove, on the balance of probability that: (1) the accused is suffering from a mental illness, at the material time; (2) the accused did not know the nature and quality of the conduct, at the material time; OR (3) the accused did not know the conduct was wrong; OR (4) the accused was unable to control the conduct. If the defence succeeds on the above, then the accused is not guilty of murder or arson, because of mental impairment.

20. The prosecution's case were as follows. On 25 March 2013, the accused was aged 48 years old. He was married to Keshni Narayan, aged 48 years. They had two children, Parmesh Narayan, a 23 years old male, and Khusboo Narayan, a 25 years old female. The family resided at Nanuku Settlement at Vatuwaqa. Their family residence were made of wood and corrugated iron. Their house had two bedrooms, a sitting room, kitchen, toilet and bathroom. Attached to their house is a one bedroom flat, with a sitting room, kitchen and toilet/bathroom. Also attached to the family residence is a canteen, from which the family sells food and grocery items. They also sell gas cylinders and kerosene from the canteen.

21. The accused had been an outpatient of St. Giles Hospital, Suva, since 1995. He suffered from a mental illness known as Schizophrenia Paranoid Type. He suffers from delusions that others, including his family members were plotting to harm him, and that his wife was having extramarital affairs. Hospital records showed that the above beliefs were not based on facts. In any event, such was the condition of the accused that, at times, he resorted to violence or attempted violence, against others, including family members. However, his conditions were normally kept under control with the taking of medication, supplied by St. Giles Hospital.

22. On 25 March 2013 (Monday), the accused went with his wife to St. Giles Hospital in the morning. They were seen by Doctor Niazi (PW19). He judged the accused to be stable and sent him back home, with medication. The accused nevertheless thought his wife was having an affair and was going to bring her new man to replace him. Later at night when his wife and two children were asleep in the bedroom, the accused got hold of some kerosene, poured the same in the sitting room and set them alight. He didn't check or warn his family about the fire. He went out the front door, and locked the burglar grill with a chain and lock. He then fled the scene. He said he went to Nabua Police Station to report the fire.

23. The accused's family house was immediately engulfed in flames. Neighbours heard the accused's wife calling out for help. However, they couldn't do anything because of the heat from the fire. The fire spread to a neighbour's house and partly burn the same. The neighbor was Mohammed Azmat Ali. He suffered $35,000 worth of damage to his property. After the fire, it was discovered that the accused's wife and two children had been burnt to death, as a result of the fire. A police investigation was carried out. The accused was video caution interviewed on 26 March, 5 and 6 April 2013, and he admitted the offences.

24. On 8 April 2013, the accused was taken to the Suva Magistrate Court and charged with the offences contained in the present information. 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
25. On 5 August 2015, 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 the five counts. In other words, he denied the two arson allegations and the three murder allegations, against him. When a prima facie case was found against him, at the end of the prosecution's case, wherein he was called upon to make his defence, he choose to give sworn evidence and called no witnesses. That was his right.

26. In his evidence, the accused said, he was lying down on his bed on 25 March 2013 late in the evening. He saw smoke and then fire coming out of the "prayer section" of his sitting room. He said, he yelled out to his family in the bedroom, especially his wife, and ran out of the house. He said, he opened the front door, jumped the fence and ran away. He went to Nabua Police Station to report the fire. He said, he was mentally sick. He was later arrested by police. He recalled been caution interviewed by police on 26 March, 5 and 6 April 2013. The interview was video recorded. During the interview, he admitted the offences. However, he said in evidence that, Inspector Ali (PW17) threatened to kill him if he did not admit the offences. As a result, he told the police what they wanted to hear.

27. He said, he was mentally sick on 25 March 2013, and thus was not liable for anything. Because of the above, the accused is asking you, as assessors and judges of fact, to find him not guilty as charged on all counts. That was the case for the accused.

28. The parties had submitted two "Agreed Facts", dated 25 May, 2015 and 10 August, 2015. The first "Agreed Facts" contained 9 paragraphs, while the second "Agreed Facts" contained 3 paragraphs. So, in total, there are 12 paragraphs of "Agreed Facts:. A copy of the same is with you. Please, read it carefully and understand the same. Because the parties are not disputing the above "Agreed Facts", you may take it that the prosecution had proven those facts beyond a reasonable doubt. You may treat the "Agreed Facts" as established facts, because the parties are not disputing the same.

(b) The Video Interview of the Accused and his alleged confession in the same, as recorded in writing in the written transcript of the same, tendered as Prosecution Exhibit No. 7:

29. You have watched the video interview of the accused by Inspector Aiyaz Ali (PW17), on 26 March, 5 and 6 April 2013, at C.I.D Headquarters, Toorak, Suva. You also saw Detective Sergeant 1910 Rajesh Kumar in the video, as the witnessing police officer. Inspector Ali prepared a written transcript of the interview, which consisted of 676 of questions and answers, and the same was tendered as Prosecution Exhibit No.7. A copy of the same is with you, and please read and understand the same, because the prosecution relies heavily on this piece of evidence to prove its case.

30. In discussing the accused's alleged confession in his caution interview, we will approach the same in two parts. First, we will identify the parts where he is taken to have admitted some of the elements of the offence of arson (Counts No.1 and 2) and murder (Counts No. 3,4 and 5). Second, we will consider the issue of whether or not the accused gave his caution interview statements voluntarily and how you approach that issue.

31. It was the prosecution's case that the accused willfully set fire to his dwelling house on 25 March 2013. In terms of the elements of "arson" as discussed in paragraphs 15(i), 15(ii), 15(iii) and 15(iv) hereof, it was this alleged act of arson that the prosecution says, constituted the first element of murder, as described in paragraph 9(i) hereof. The first element of murder was "the accused did a wilful act". According to the prosecution, the "wilful act" the accused did on 25 March, 2013, was to set fire to his dwelling house. Did the accused, in his caution interview, admitted to wilfully setting fire to his dwelling house on 25 March, 2013? (Count No.1)..

32. The answers to the above questions were found in questions and answers 383 to 393, 405 to 409, 413 to 414, 417 to 427, 430 to 440, 504 to 521, 540 to 546, 552 to 558, 562 to 570, 637, 639 to 646 and 650 of Prosecution Exhibit No. 7. In the above questions and answers, the accused admitted to wilfully setting fire to his dwelling house on 25 March, 2015. Did he wilfully set fire to Mohammed Azmat Ali's house? (Count No.2). The answers to the above question were found in questions and answers 435 to 440, 504 to 521, 632 to 634, 664 and 665 of Prosecution Exhibit No. 7. In the above questions and answers, the accused admitted that by setting fire to his own house, he also caused the burning of Mr. Ali's home. Did he unlawfully set fire to his and Mr. Ali's home? In paragraph 16 hereof, it was established as a matter of law that, a person may not set fire to his own house in furtherance of an unlawful purpose, and also he may not set fire to other people's house. In this case, the accused was also charged with the murder of his wife and two children (Counts No. 3,4 and 5). If he's found guilty of murdering any of the above people, then he would be unlawfully setting fire to his house. He had admitted allegedly burning Mr. Ali's house, as a result of allegedly setting fire to his own house. So, it would appear, if you accept his alleged confessions, in his video caution interview, you would find the accused guilty as charged on both arson charges (ie. Counts No. 1 and 2).

33. What of the murder charges in Count No. 3, 4 and 5? If you accept his alleged confession in his video caution interview that he set fire to his own dwelling home on 25 March 2013, that in itself would constitute the first element of murder, as discussed in paragraph 9(i) hereof, that is, "he did a wilful act". Did that wilful act cause the death of his wife and two children? Although we are discussing the accused's alleged confession under this heading, it is prudent to introduce the parties "Agreed Facts", at this stage of the discussion. In paragraph 1, 2 and 3 of the Agreed Facts dated 10 August, 2015, the parties agreed that the accused's wife and two children died in the family house at 155 Nanuku Settlement, Vatuwaqa, after receiving 100% burns to their body surface. As previously discussed, the accused admitted he set his dwelling on fire on 25 March 2013, while his wife and two children were still in the same. He did nothing to warn them to get out of the burning house. He even heard his wife yelling for help, but he did nothing to save her, or his children. See questions and answers 383, 394, 395, 415, 416, 430, 489 to 494 and 667 of Prosecution Exhibit No. 7. If you accept the above "Agreed Facts" and the accused's above alleged admission, then you will have to find that the accused alleged burning of his dwelling house on 25 March, 2013, caused the deaths of his wife and two children, when they were burnt to death in the fire.

34. Did the accused intend to cause the death of his wife and two children, when he burnt his house down. Alternatively, was he reckless as to causing their deaths when he burnt his house down on 25 March, 2013? When considering this question, bear in mind my directions in paragraphs 12 and 13 hereof. As we have said before, "we cannot cut open the accused's head, to find out what his intentions were, at the time he burnt the deceaseds to death". We will have to examine his conduct at the time, that is, what he said and did, and the surrounding circumstances, to infer whether or not he intended to kill the deceased, when he set fire to his house.

35. In the questions and answers we discussed above, the accused told police he set his house on fire while his wife and children were sleeping in their bedroom. He said, he did not warn his wife and children about the fire. He poured kerosene in the sitting room, which was adjacent to their bedroom. He appeared angry that his wife was planning to bring another man to replace him in his house. He said, his wife and two children were not supportive of him. After setting his house on fire, he went out the front door, and locked the door and burglar grill with a chain and padlock. This front door was the only entrance and exit from the house. The windows were covered with iron burglar grills. As he came out of the house, he heard his wife calling out for help. He did not assist her. He ran away to Nabua Police Station to report the fire. Do you think that given the above, the accused intended to cause his wife and two children's death by burning the house? If you accept that he intended to cause his family's death, then you don't need to consider the next fault element of murder, that is recklessness. If you accept that the accused burnt his house down, and that caused his wife and two children's death, and he intended their deaths, you will have find the accused guilty as charged on Count No. 3, 4 and 5.

36. But say, you find he did not intend to cause his family's death, then you must deal with the second fault element of murder, that is, recklessness. Bear in mind the directive I gave you in paragraph 13 hereof. Was the accused reckless as to causing his wife and two children's death, when he burnt his home on 25 March 2013? Was he aware that there was a substantial risk that his wife and two children would burnt to death, if he sets his house on fire? Having regard to the circumstances known to him, at the time, was it unjustifiable to take the risk of setting his house on fire? He knew that his wife and two children were in their bedroom. He started the fire in his sitting room with the aid of kerosene. The sitting room was adjacent to the bedroom. He went away. He didn't warn his family about the fire. He opened the front door. He padlocked the same with a chain. He heard his wife shouting for help. He did nothing. It would appear that the accused was reckless. If you accept the above, and accept that he set fire to his home and that caused his wife and children's death on 25 March, 2013, you may find him guilty of murder.

37. We now come to the issue of whether or not the accused gave his statements to the police voluntarily when he was video caution interviewed. Before, you consider the accused's above alleged confession, 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 accussed 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 and the same are the truth, as judges of facts, you are entitled to rely on them for or against the accused. The acceptance or otherwise of his alleged confessions is entirely a matter for you"

38. You have heard the parties' version of events on whether or not the accused gave his statements to the police voluntarily. The accused said Inspector Ali threatened to kill him if he did not answer in the way police wanted. He said, he was afraid so he gave them what they wanted. He answered the interview questions in the way police wanted. Inspector Ali, on the other hand, said he and other police officers did not assault, threatened or made promises to the accused, while he was in their custody. He said, he was treated well while he was in police custody. You had the benefit of watching the accused's police caution interview on video. Did you see Inspector Ali or other police officers assaulting him during the interview? Which version of events to accept on the voluntariness of the accused's caution interview is a matter entirely for you.

40. The Sketch Layout on page 10 of Prosecution Exhibit No. 1 is important when you consider the accused's alleged admission in his video interview statements when he said he poured kerosene in the sitting room, and set fire to the same. The sketch will assist you consider the surrounding circumstances of the case, at the time of the alleged offences. Prosecution Exhibit No.2 shows you the aftermath of the fire. Prosecution Exhibit No.3 helps you get a feel of what the house looked like before and after the fire. Prosecution Exhibit No.4, page 6, Internal Remarks, showed the heavy smell of kerosene in the sitting room, detected by police, after the fire. Prosecution Exhibit No.8, 9 and 10 make you get a feel of what this case was all about. Prosecution Exhibit No.11 showed the accused drawing of the house. If you accept the accused's alleged confession in his video caution interview statements, as transcribed in Prosecution Exhibit No.7, the above evidence will assist you understand the case from various angles.

41. In their closing submission, the defence's line of defence were as follows. They say, the accused is not guilty of murder or arson because, at the material time, he was mentally impaired. When considering this defence, you must take on board my directions in paragraphs 17, 18 and 19. Put bluntly, the accused is not criminally responsible for arson and murder if, at the time of setting fire to his house, and the subsequent burning to death therein of his wife and two children, he was suffering from mental impairment THAT HAD THE EFFECT THAT:

42. Three reports on the accused's mental state from St.Giles Hospital were tendered by prosecution as follows:

Prosecution Exhibit No.12 and 13 were prepared by Doctor Peni Biukoto, and Prosecution Exhibit No. 14 was prepared by Doctor L.H.K. Niazi. A copy of the reports are with you, and you must read and carefully understand them. The success or otherwise of the defence depends on the contents of these reports. "Mental impairment" as such is really a medical question. The reports themselves were not seriously questioned by the parties. It appeared that they accepted their contents, but in the examination of the witness, the parties tried to get the meaning of "mental impairment" that best advanced their case.

43. It was accepted by the parties that the accused had been a patient of St. Giles Hospital since 1995. He had been consistently attended to by St. Giles Hospital over the years, and had been given his medication. It was also not disputed that he suffered from a severe mental illness, known as "schizophreni paranoid type". At times he is paranoid. He is paranoid that others are out to harm him, including his family. At times, he is paranoid that his wife is having an affair, and she wants to bring another man to replace him. Hospital records showed that those delusions were not based on facts.

44. The most important part of the reports coming from St.Giles Hospital was Doctor Peni Biukoto's report dated 8 August 2013, which is Prosecution Exhibit No.13. On pages 4 and 5 of the report, he wrote under three headings; knowledge of the nature and quality of the conduct; knowledge that the conduct was wrong and capacity to control the conduct. After writing his report, Doctor Biukoto concluded as follows:

45. It would appear that, given Doctor Peni Biukoto's opinion, the accused knew the nature and quality of his conduct; knew that his conduct was wrong and was able to control his conduct, at the material time, although he was suffering from a mental illness. The defence provided no evidence to rebut what Doctor Biukoto said above, although the burden to prove the case against the accused beyond reasonable doubt stays with the prosecution throughout the trial. Given the above, it would appear the defence of mental impairment is available to the defence. However, it is a matter entirely for you whether or not you accept the defence's position.

You may consider all the evidence together. You have watched the witnesses give evidence. You have heard them answer questions. Who do you think was forthright? Who was evasive? Who do you think was telling you the truth? Which version of events to accept and/or reject is entirely a matter for you.

47. 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.

(i) Count No. 1 :

(ii) Count No. 2 :

(iii) Count No. 3 :

(iv) Count No. 5 :

(v) Count No. 5 :

Arson

Murder

: Guilty or Not Guilty

49. 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 the same.

Solicitor for the State : Office of the Director of Public Prosecution, Suva.

High Court of Fiji

State v Narayan - Summing Up [2015] FJHC 587; HAC166.2013S (13 August 2015)