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State v Tabua - Summing Up [2015] FJHC 715; HAC365.2013 (25 September 2015)
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Crim. Case No: HAC 365 of 2013
STATE
V
JOSATEKI TABUA
Counsel: Mr. M. Vosawale for State
Mr. P. Tawake for Accused
Hearing: 21st, 22nd and 23rd September 2015
Summing Up: 25th September 2015
SUMMING UP
Lady Assessor and Gentlemen Assessors.
1. It is now my duty to sum up this case to you. I will direct you on matters of law which you must accept and act upon. On matters
of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide
for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether
you accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide.
It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.
- You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to
you and form your opinion as to whether the accused person is guilty or not guilty.
- Counsel for the Prosecution and Defence made submissions to you about the facts of this case. That is their duty as State Counsel
and Defence Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.
- You will not be asked to give reasons for your opinions but merely your opinions themselves, and your opinions need not be unanimous
but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that they will carry
great weight with me when I deliver my judgment.
- As a matter of law, I must direct you that the onus of burden of proof lies on the prosecution throughout the trial and it never shifts.
There is no obligation on the accused person to prove his innocence. Under our criminal justice system an accused person is presumed
to be innocent until he is proved guilty.
tyle='text-indenindent:0pt; margin-top:0pt; margin-bottom:0pt;' value='6' value="6">The standard of proof in a criminal trial i
of proof beyond reasonable doubt. This means you must be satisfied so that you are sure ofre of accused person'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.
- 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 you might have heard about this case, outside of this courtroom. You must disregard them and your opinions should
only be based on the evidence given in this court room.
style='text-indenindent:0pt; margin-top:0pt; margin-bottom:0pt;' value='8' value="8">Your duty is to find the facts based on the
evidence, apply the Law to those facts. Approach the evidence detachment and objectivity.vity. Do not get carried away by emotion.
- You have a copy of the information with you. The accused is charged with one count of Attempted Murder. The particulars of the offence
say that the accused attempted to cause the death of Timaima Vatubua with the intention to cause death.
- For the accused to be found guilty of Attempted Murder, the prosecution must prove the following elements beyond reasonable doubt.
- the accused;
- had the intention to kill the victim;
- with that intention he did something which was more than mere preparation to killing her.
- You decide whether the accused intended to kill Timaima Vatubua. You decide intent by considering what the accused did or did not.
You should look at his actions before, at the time of and after the act. The weapon used, the number of injuries inflicted, the place
of the body where the injury was inflicted, all these things may shed light on the intention of the accused at the crucial time when
the accused caused the injuries to the complainant.
- The prosecution must also prove that with the intention to kill, the accused did something was more than mere preparation of the
offence. In this cass case it is said by the prosecution that the accused stabbed the victim which amounted to more than mere preparation
for the offence. If you accept that the accused did this, he did something more than mere preparation.
- What happens if you find that the accused stabbed and wounded the complainant, but you find that he did not have the intention to
kill her? Then you are entitled to look at the lesser alternative offence of Act with Intent to Cause Grievous Harm although he is
not formally charged for that offence. To find the accused guilty of the offence Act with Intent to Cause Grievous Harm prosecution
has to prove the following elements beyond reasonable doubt.
- The accused
- With intent to cause some grievous harm
- To the complainant
- Unlawfully wounds her by any means.
As I mentioned before you decide the intent of the accused by considering what the accused did or did not. His actions before, at
the time and after the act, the weapon used, the number and the injuries caused and also the place of the body where the injuries
were inflicted.
Unlawfully means simply without lawful excuse.
Grievous harm means and includes any dangerous harm to the body.
- Therefore if you find that the accused is guilty of the offence of Attempt to Commit Murder, you need not go on to consider a lesser
offence. However if you find the accused not guilty of the offence of Attempt to commit Murder because the intention to kill was
not proved beyond reasonable doubt, then you may go on to consider if he is guilty or not guilty of the lesser offence of Act with
intent to cause Grievous harm.
EVIDENCE
- Complainant Timaima Vatubua was called to give evidence for the prosecution first. She had been a police officer for 9 years. Accused
had been his de facto partner. Both of them were living together at Charles Street, Toorak.
- On 27/10/2013 she had been at a social gathering at Nasova and then gone to the Union Club around 1.00am. At Union Club she had been
there for about 4 hours. She had met some police officers and had been drinking there. She with Josateki and 3 others from Charles
Street had left Union Club around 5.30am to Charles Street. They had been drinking at their place for about ½ hour and their
friends at the neighbourhood who were drinking with them had left.
- She then had started an argument with Josateki for calling her to come to Charles Street while she was drinking at the club. Then
she had told Josateki that she did not want him anymore and she had gone to the bedroom and locked the door inside. Josateki had
got angry when she said that she did not want him.
- In about 10 minutes she had heard a hard knocking on the door. She did not want to open the door, she said. Then Josateki had forcefully
opened the door and had come inside with the kitchen knife. Josateki had swung the knife on to her right chest and on the left lower
ribs. She had then pushed him and ran outside the bedroom and then outside to the main road. She had felt blood coming. She had gone
to the hospital in a taxi. She had collapsed as she entered the emergency unit. The knife she was struck by the accused was produced
in court. She had been admitted in the hospital, for 3 weeks in the ICU and another 2 weeks in the surgical ward.
- In cross examination she said that at the Union Club Josateki was drinking with his friends and she was drinking with her friends.
Josateki had wanted her to go with him to Charles Street. At Charles Street they had consumed another carton of beer. She said that
she was the one who started the argument. She denied that she wanted to go with the friends again to drink. She said that although
she was drunk she could control herself. She denied that the argument started when she wanted to follow her friends and when Josateki
stopped her. She denied swearing at Josateki and punching him on his face.
- She said, in 2013 her relationship with Josateki was not good. When she was asked whether he told Josateki to find another girl because
she was seeing another man, she said that she told him that she did not want him anymore. She said that Josateki got frustrated as
she brought another man home. However she denied that she was caught red handed inside the house with another man. She said that
Josateki came over to their group while they were drinking to check on her. She said that after stabbing when she ran out, Josateki
did not try to stop her.
- In re-examination she said that she told Josateki that she did not like him anymore as she no longer loved him.
- The next witness was Ilisoni Ratu. His evidence was that she was talking with his friends at the Charles Street at about 6 –
6.45am after he knocked off from work. He had heard a drinking party at Timaima's place. Timaima was Joe's girlfriend, he said. After
drinking the group had come out. He had recognized only a naval officer and another girl called Tina.
- Thereafter he had heard quarrelling and fighting. After that when he heard shouting, he had gone towards Timaima's home. He said Timaima
ran out of the house. Timaima had looked shocked crying and bleeding from the chest. He had met Josateki at the front door. He said
that Josateki looked shocked. Josetaki had been holding a knife. He had wanted Josateki to drop the knife. Josateki had dropped the
knife and apologized for what happened. His friend had taken Timaima to hospital.
- In cross examination he said that when Timaima ran out of the house Josateki did not run after her.
- The next witness was Sgt. Patricia Liga. She had drawn the sketch of the crime scene which was produced as PE2 (Prosecution Exhibit
2). She explained the plan and explained about the blood like pattern starting from the bedroom to the main drive way.
- Dr. Ronal Kumar gave evidence next. You heard his qualifications and experience as a medical doctor. On 27/10/2013 he had examined
Timaima at the Emergency Department at CWM Hospital at 9am. Patient had been bleeding profusely from her chest. He explained to you
what emergency treatment given to her at the Emergency Department and that she was taken to the Operating Theater. He also testified
as to how the surgery was done to save her life. He submitted the medical report prepared by him as Prosecution Exhibit 3. There
had been 3 stab injuries. Those stab injuries are mentioned in column (D12) of the medical report under specific medical findings.
- 1st stab injury was bleeding the most, he said. It had been on her right upper chest just below the right collar bone. It had been
2cm cut with 5cm depth and it had cut through the subclavian vein, he said. Surgical intervention was needed to stop bleeding, he
said. The patient was given a total of 13 units of blood, he said.
- 2nd stab wound was on her left lower chest between 10th and 11th rib space. 3rd stab injury had been on her left breast which was
1cm wide and about 4cm deep.
- He said in his professional opinion the injuries would have caused by a kitchen knife. Patient was admitted on 27/10/2013 and discharged
on 29/11/2013. Out of that 33 days 2 ½ weeks she had been in the ICU and thereafter in the surgical ward.
- In his opinion he said the wounds were serious enough for her to die because of severe bleeding. The patient also had undergone a
2nd operation on 13/11/2013 where her abdominal wounds burst open. She had undergone a 3rd operation in November 2014 where the repair
on her diaphragm gave away during labour where she would have lost her life, he said.
- In cross examination he said at CWM hospital they face 1 – 2 trauma cases per week. He also said that Timaima was lucky to survive
with all the injuries and complications.
- About the 3rd operation in 2014, he said that during the contractions the diaphragm repairs done in 2013 gave away and that all her
small intestines had got herniated. The repair had to be done due to the abdominal pressures during the child birth, he said.
- The next witness was DC 2627 Nakibo. He had been the Investigating officer of this case and also the Interviewing officer of the accused.
He had cautioned interviewed the accused on 28/10/2013. Accused had been brought to the Police Station on 27/10/2013. Accused had
been under the influence of liquor. He said that the accused was kept under safe custody at the cell block and caution interview
was recorded on the 28th.
- He said that the accused made the caution interview statement voluntarily. Caution interview statement was produced in evidence marked
as P4.
- In cross examination he said that the accused answering Q.86 when he was questioned "What was that knife for" The accused answered
"To frighten her".
That was the evidence for the prosecution.
- Lady and Gentlemen assessors,
At the end of the prosecution case you heard me explain several options to the accused. He has these options because he does not have
to prove anything. The burden of proving his guilt beyond reasonable doubt remains on the prosecution at all times. The accused opted
give sworn evidence and subject himself to cross examination. You must give his evidence careful consideration.
- The accused giving evidence said that he was in a de facto relationship with Timaima for 6 years. Most of the time the relationship
was rocky when the complainant was drunk, he said.
- Between the period 2011 – 2013 Timaima had got angry and had left to live in her village with her father, he said. He also told
about another incident where they separated. She had told him to look for another woman. He also said in evidence about an incident
when Timaima came and pushed his female friend when he was drinking with her at Deep Sea night club. Then Timaima had forced him
to live with her again.
- Again on one Saturday morning when he was staying in Toorak flat with a lady friend, Timaima had come drunk. She had told him that
she is the only woman who is supposed to be with him. Then he had accepted her again, he said.
- About the incident in question he said that on 27/10/2013 he was at Birdland night club. After he got to know that Timaima was drinking
at Union Club he had gone there and spoken to her. Timaima had told him before, that she was going to a volleyball camp. At Union
Club he had told Timaima to come and see him at Birdland if she wanted to leave. He had again gone to Union Club. From there they
had come to Toorak with Timaima and friends. They were drinking in the flat and Timaima had started talking loudly drunk and there
had been 2 naval officers and she had not paid much attention to him. He said that Timaima flirts when drunk.
- It was daylight and one of the naval officers had told to buy another carton of beer. He had asked them to stop as another family
was living with them in the flat. When the friends left, Timaima had wanted to follow them to drink more, he said. He had told her
that they can drink on another day. Timaima had got angry and they had an argument, he said. He said he stopped her from going as
he was embarrassed as they were surrounded by barracks and neighbours could see that she was drunk. Timaima had started swearing
at him.
- He had tried to make her sit on the bed to make her go to sleep. Then she had punched him, he said. She had told him to look for another
woman as she was talking to another man. When she said that, he had got frustrated and was very painful, he said. He said a week
before he found her sleeping with another man. He had gone to the kitchen to get a knife to frighten her. He said he was very angry
and hurt. He said his hand just struck her. He said because of the anger and the pain and because he had no peace his hand just struck
her. Then she ran out of the room, he said. He had not tried to stop her running out. He had followed her. He said that when he realized
that she got injured he had stopped striking her with the knife. She ran out of the house and he had followed her to see what happened
to her as she was injured, he said.
- He said he accepted her even after she brought another man into the house as he wanted to change her to prove what others say was
wrong. He said he cooperated with the police and he told the police in his caution interview statement what actually happened.
- In cross examination he said that he really loved her. He said he could have forgiven her on 27/10/2013 but the anger that he felt
at that time was too much. He said everything had built up to that moment. He said he used the knife to frighten her and he did not
see any stick or broom around instead of the knife. He said he broke down the locked door to do that. He said that he did not see
blood coming out at that time after he struck her. He said that he knew that using a knife would cause injuries.
- In re-examination he said that he did not know that it would be this serious. It happened out of his anger and he did not even realize
that he had injured her.
That was the evidence for defence.
- Lady and Gentlemen assessors, you heard the evidence of many witnesses. If I did not mention a particular witness or a particular
piece of evidence that does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.
- The written agreed facts are before you. Parties have agreed to those facts. You may consider those facts as the evidence led from
the witness box unchallenged.
- In agreed facts No. 8 and 9 parties have agreed that the complainant wanted to follow her friends to continue drinking and when the
accused stopped her from leaving they had an argument. Accused in his evidence was consistent with the said agreed fact. However,
the complainant denied that position in her evidence. You decide what weight you give to that part of her evidence as the parties
have agreed to that.
- A witness can give evidence on his observations, like what he heard, what he saw, and what he perceived. Only on certain circumstances
court would allow witnesses to give their opinion on a matter. Those witnesses should be experts on that particular subject. For
example you get experts on medical field, experts on finger prints, experts on fire arms, drug analysis etc. Now in this case Dr.
Ronal Kumar gave evidence. His qualifications and the expertise as a medical doctor were not challenged by the defence. Therefore
the medical opinions he gave are admissible in evidence.
- The medical report of the victim Timaima was produced in evidence. Part 'D 10' of the medical examination form refers to the history
related to the doctor by the victim. You may disregard that portion of evidence as the prosecution did not elicit that evidence of
what she told the doctor from the victim. All other evidence including the injuries, his observations and the diagnosis may be considered
when coming to your decision.
- The caution interview statement of the accused was produced in evidence. The defence did not challenge his statement to the police.
You decide on the truthfulness of his statement and what weight you give to that evidence.
- Prosecution says that the accused by stabbing the complainant causing grievous injuries attempted to kill her. The accused admitting
causing the injuries to the complainant says that he did not intend to kill her but wanted to frighten her. He also said that he
did it because of the anger and the pain he was going through at that time and that he had no peace.
- You must decide which witnesses are reliable and which are not. You have to consider as to how the witnesses faced the examination-in-chief
and how they answered the questions in cross examination. You must consider whether the witnesses were forthright in their answers,
or whether they were evasive, when deciding on the reliability of witnesses and acceptability of their evidence.
- You may use your common sense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanour in
arriving at your opinions.
- Approach the evidence with detachment and objectivity. Do not get carried away by emotion.
- 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 has been proved beyond reasonable doubt.
- Your possible opinions on the charges are either guilty or not guilty. Only if you find that the accused did stab the complainant
but the prosecution has failed to prove the element of the intention to kill beyond reasonable doubt, then you may consider whether
the elements of the lesser offence of Act With Intent to cause Grievous Harm have been proved beyond reasonable doubt by the prosecution.
- Lady and Gentlemen assessors, this concludes my summing up on 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.
- You may retire to consider your opinions.
Priyantha Fernando
Judge
At Suva
25th September 2015
Solicitors
Office of the Director of Public Prosecution for State
Office of the Legal Aid Commission for Accused
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