IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 29 of 2014

STATE

V

ALIPATE RARAWA

Counsel: Mr. Y Prasad with Ms. S. Naibe for the State
Ms. P. Chand (L.A.C.) for the accused.

Dates of trial: 5,6, 7 October 2015
Dates of Summing Up:7 October 2015

SUMMING UP

[1] It is now time for me to sum up this case to you, Ladies and Gentleman. By that I mean I will tell you exactly what the law is that you need to know for your deliberations and I will do my best to sum up the relevant evidence for you. We have different roles now in this process. I am the Judge of the law and you must accept what I say about the law. You are the Judges of the facts and you must decide the issues of fact in this case. I do not have to accept your final verdict but I will give it the greatest possible weight when I come to decide the final judgment of the Court. 

[2] Counsel for the prosecution and the defence have 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 of this trial and it is for you to decide which version of the evidence to accept or reject.

[3] You must try this case solely on the law. Do not let sympathy for any one party or prejudice play any part in your deliberations. 

[4] It is most important that I remind you of what I said at the beginning of this trial and that is that you cannot convict the accused in this case of anything unless you are sure of it. If you have any reasonable doubt (and it must be reasonable not fanciful) then you will give the accused the benefit of that doubt in the way that I will later direct you. 

[5] The accused, as you are well aware, is charged with murder.

[6] Murder is made up of three elements each of which must be proved by the State to the required standard. These three elements are:

(i) a person engages in conduct;

(ii) that conduct causes the death of another person;

(iii) the person intends to cause the death, or is reckless as to causing the death of the other person by that conduct.

[7] Conduct can be anything such as stabbing, strangling, poisoning, punching chopping etc., and if that conduct causes the other person to die, then the third element comes into play. 

[8] The State in this case is saying that the accused engaged in the conduct of kicking a lit kerosene stove on to the victim and that severely burnt her which caused her death. I do not think that you will have any trouble with these first two elements of murder. There is ample evidence that the accused engaged in conduct that resulted in Dulcie's death. Moreover, the accused himself tells us that he used violence against the deceased and the defence concede that that violence caused Dulcie's death. The State is saying that he was not necessarily intending to kill Dulcie but they say in the alternative, that he was nevertheless reckless in causing her death. Now a person is reckless with respect to causing death if he is aware of a substantial risk that death will occur by his actions and having regard to the circumstances known to him, it is unjustifiable to take that risk. So in our case you must find proof that, he engaged in conduct that caused the death and that he knew that there was a risk that what he was doing might kill her and also that he was not justified in taking that risk.

[9] An alternative verdict to murder, which is available for you to find, is guilty of the lesser offence of manslaughter. Manslaughter has the same first two ingredients of murder; that is to say that the accused engages in conduct which caused the death of another, but instead of the recklessness as to causing the death by his conduct, he just has to be reckless as to whether his conduct will cause serious harm to the victim.

[10] So, what does this mean for us in this case? The only issue in this case for you to decide and it is a rather big issue is what was in Alipate's mind at the time of the attack. We start from the premise of the agreement between the parties that he had no intention to kill Dulcie. You must therefore consider his recklessness in what he did. If you think that he was so reckless that there was every chance of death occurring by his actions, then he is guilty of murder; however if you think his recklessness extended only to the causing of serious harm to Dulcie, then he is not guilty of murder but guilty of the lesser offence of manslaughter. It is all about the extent and severity of the conduct, and I think that the post-mortem evidence and the answers in the cautioned interview may help you there. 

[11] Apart from the post mortem evidence which shows the degree of the burns to Dulcie's body, the answers in the interview (if you accept them) will tell you what was going through his mind at the time. I will later direct you as to how to approach the interview. 

[12] Another defence that you need to consider if you find it to be relevant is the defence of provocation. Provocation is not a complete defence leading to a verdict of not guilty. It is a partial defence reducing what would otherwise be murder to the lesser offence of manslaughter. Because the prosecution must prove the accused's guilt, it is for the prosecution to make you sure that this was not a case of provocation and not for the accused to establish that it was. 

[13] Provocation has a special legal meaning and you must consider it in the following way. First you must ask yourselves whether Alipate, the accused, was provoked in the legal sense at all. A person is provoked if he is caused suddenly and temporarily to lose his self-control by things that had been done and said by the deceased, rather than just by his own bad temper. There is a suggestion in the caution interview that Alipate was very angry and he tells us in his evidence that when Dulcie started to call him useless and lazy and swore at him, then he got really angry and couldn't control himself. 

[14] If you are sure that the accused was not provoked in that sense, but just acting out of bad temper, the defence of provocation does not arise and you are then left to decide the degree of recklessness undertaken by the accused in doing what he did to Dulcie. 

[15] But if you do conclude that Alipate was or might have been provoked in the sense which I have explained, you must go on to weigh up how serious the provocation was for him. Was there anything about this accused which may have made was what said and done affect him more than it might have affected other people? You must also ask yourselves whether a person having the powers of self control to be expected of an ordinary sober person of Alipate's age and sex would have been provoked to lose his self control and act in the way that he did that evening. If you are sure that such a person would not have done so, the prosecution will have disproved provocation and you will consider the reckless point to decide whether it is murder or manslaughter. If, however you conclude that such a person would or might have reacted and done as he did, your verdict would be one of not guilty of murder, but guilty of manslaughter. 

[16] If you think that what Alipate says is true or may be true about Dulcie coming in the door unseen when he kicked the stove, then you will find him not guilty of murder and not guilty of manslaughter. The reason for this is that although the first two elements are proved (that is the he was responsible for conduct which caused her death) he cannot be said to have any reckless intent to cause her death or to cause her harm, if he doesn't know she is there.

[17] That is all that I wish to say about the law at this stage. I now turn to the evidence. It is my duty to sum up this evidence to you so that you can apply it to the law as I have directed you. Please remember that whatever I say about the evidence is not a matter which you must accept. You and only you will determine what evidence is important.

[18] We first heard from Susana who saw what transpired that evening in her home. It was her Mother that later died as a result of what happened that night. 

[19] It was the 6th January 2014 at about 9pm. She was at home with her mother, Dulcie, her brother and her grandmother. Her Uncle Alipate Rarawa came; he sat in the sitting room and asked the grandmother (who was his mother); "who told you to go to my uncle?" He sat down and beat his hands on the floor. He was angry, Susana said because her mother had gone to his uncle to get the mat. He then went outside and Grandma called him back in after two minutes. Alipate went to the kitchen and said to Dulcie; "Today you will be punched". He tried to punch Dulcie but he hit the frying pan with his hand. The pan had hot oil and pancakes in it. She said he hit it towards her mother and mother cried out "Please help me!" He then kicked the kerosene stove and it landed on Dulcie's stomach. Mother stood up and ran around the kitchen and she asked Grandma for help. Grandma went to get some water and poured it on the area where the fire had started in the kitchen. Susana saw that her mother's clothes were burning and she called out: "please can I have some clothes". They stuck to her skin. Dulcie asked Susana to get a bed sheet which she did but when she saw her she feinted. Susana identified the accused as Alipate. 

[20] In cross-examination it was established that there was a family feud between the accused's and his sister's (the deceased) mother's side of the family and their fathers side of the family. It would appear that the accused was aggrieved that his sister Dulcie had made contact with the estranged father's brother, thereby breaking 21 years of silence. 

[21] Susana said in cross examination that her mother had not said bad words to Alipate and she had not said that he was lazy and good for nothing. There was nothing said that made him angry and cry. She did not run outside when hit by the frying pan. She tried to stand up but Alipate kicked the stove on to her. She agreed that it was Alipate who called the Police. 

[22] Mr Tawake (PW2) told us that on the 6th January his grandson came to him screaming for help. He said that his mother (PW2's daughter –in-law) needed to be taken to the hospital. When he got to Dulcie's house he saw that she was burning and her skin was peeling off. She was covered in a bed sheet. PW2 eventually got her to hospital. He gave a little family history telling of the family feud and of Dulcie marrying his son. 

[23] PW3 the Police officer told us about the investigation and about interviewing Alipate. You have a copy of the transcript of the interview. And you heard it read to you. Now the defence have no objection to the interview being before you, so it is evidence for you to consider in the normal way. It has never been said by the accused that the answers are not his so you may accept all of what he says. However in his own evidence he does resile from that position in respect of two particular answers Q.58 and Q.78.

[24] The State relies on that interview to show that Alipate went to Dulcie's house that night, and he had seen Dulcie sitting cooking with oil in a frypan. He said he could see that the oil was hot. He could see fire around the sides of the pan. He told of arguing with Dulcie until he lost his temper and hit the pan so that the oil splashed over her body. She ran outside and he said she came back in again and he kicked the stove towards her setting her clothes alight. He admitted that he was the cause of Dulcie catching fire.

[25] That is all evidence for you to consider; however bear in mind what Alipate says in his evidence in Court. He says that the answer to Q.58 has not been interpreted properly – Dulcie had gone out but when he kicked the stove he didn't know she was coming in the door.

[26] The Police Officer produced the stove, the frying pan and some burnt female clothing. 

[27] He confirmed that Dulcie died on the 12th January 2014, which is the date of the charge on the information. No one is murdered or alleged to be murdered until the victim dies, hence the date of the offence. 

[28] The last prosecution witness was the Pathologist Dr. Goundar. In summary his evidence was that after examining the body of Dulcie he concluded that the cause of death was First degree burns over 70% of her body. He said that when a person is severely burnt there is a loss of fluid to the body both externally and internally leading to death. There were burns over her face, chest, stomach, arms and both thighs. 

[29] Well Ladies and Sir, that was the end of the prosecution evidence. You heard me telling the accused of his rights in defence. His counsel had also advised him of his rights and he elected to give sworn evidence in his defence. 

[30] I must advise you that an accused is not obliged to give evidence. He has nothing to prove to you. He is perfectly at liberty to tell you that the State has not proved its case against him. 

[31] In his evidence he told us that he is unemployed but had previously worked as a salesman. In January 2014 his brother was going to get married and he was helping to organize the wedding. He had heard that Dulcie his sister had approached their father's brother to borrow a mat and he was not happy. He decided to go to his Mum's house and ask her why she had allowed Dulcie to approach that side of the family that had not talked to them for 22 years. 

[32] At the house he says, they started to get angry when he asked for the reason. Things appeared to get out of hand with arguments between him, the sister and the mother. 

[33] He said he punched the floor because he was angry – he couldn't control himself. Dulcie said he was good for nothing, lazy lad and then swore at both him and his mother. He boiled over, went to the kitchen where Dulcie was sitting cooking pancakes, he took the fry pan and hit Dulcie with it. The oil spilt on her. She was burnt and ran outside. Still angry he kicked the stove but just at that very minute Dulcie came in the door and she caught alight from the flames of the stove. He didn't mean for the stove to hit her, and when he kicked it he never thought it would land on her. He wasn't able to see anyone come in the outside door because there was a thin partition in the way. He took his phone, went outside and called the Police. He had earlier told his mother not to put water on Dulcie because that would make the burns worse. 

[34] When he was interviewed under caution by the Police, his answers to questions 58, 61 and 78 were misconstrued. He never thought for a minute that Dulcie would die and he wasn't in a right frame of mind

[35] He agreed in cross-examination that he went to the house that evening to confront Dulcie, but he only intended to ask Mum about the mat. 

[36] He admitted that in the circumstances of Dulcie being covered in hot oil it was dangerous in the circumstances to be near fire. He admitted that he was aware of the dangers to a person of hot oil and the danger of adding fire to that mix.

[37] The accused called his mother as his witness. She said that Alipate and Dulcie had been on good terms prior to January 2014. On the 6th January 2014 she was at home with Dulcie and the children. She sent someone to get Alipate because she wanted him to take the mat to the wedding site. As soon as he arrived he said that he didn't like the fact that the mat had been borrowed from their father's side of the family. The mother told him to shut up. He got very angry. Dulcie told him that his father is a useless person and Alipate said that then he must be useless too. She swore at Alipate. When he heard this he stood up and went to where she was cooking.His mother tried to stop him but then she was trapped and couldn't see what was happening. She later saw Dulcie burning outside the house. She had never seen what Alipate did. 

[38] Well Ladies and Gentlemen, that was all of the evidence. There will be no more evidence and you must come to your opinions on the evidence you have heard in these last three days. 

[39] I suggest that your approach to your task should be:

1.	Decide if you believe Alipate's story that when he kicked the stove Dulcie was coming in the door from outside but he couldn't see her. If you think this is true or might be true then you will find him not guilty of murder and not guilty of manslaughter.

2.	If you think that is not true then you will consider the degree of recklessness on Alipate's part when assessing the risk of what he did and whether he was aware of that risk. If you think it was a risk of causing death you will find him guilty of murder. If you think it was not a risk of death but a risk of causing her serious harm, then you will find him not guilty of murder but guilty of manslaughter.

3.	If you have found him guilty of murder then you will go on to assess whether the defence of provocation is available to him. If you think it is, on the directions that I have earlier given you, you will find him not guilty of murder, but guilty of manslaughter.

[40] You may now retire and consider your opinions. When you are ready please let a member of my staff know and I will reconvene the Court. However just before you do retire I am about to ask counsel if there is anything they wish me to amend or add to this summing up.

[41] Counsel?

P.K. Madigan
Judge

At Suva
7 October, 2015