State v Cama - Summing Up [2015] FJHC 759; HAC079.2013S (21 May 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 079 OF 2013S

STATE

V

NAIBUKA CAMA

Counsels : Mr. M. Vosawale and Ms. M. Khan for State
Mr. J. Savou for Accused
Hearings : 19 and 20 May, 2015
Summing Up : 21 May, 2015

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 they 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 ISSUE

8. In this case, as assessors and judges of fact, each of you will have to answer the following question:
   
   • (i) Did the accused, on 9 February 2013, at Suva in the Central Division, commit manslaughter against Netava Buke Draunidalo, when he assaulted him, and which later led to his death?
     

5. THE OFFENCE AND THEIR ELEMENTS

9. The accused was charged with manslaughter, contrary to section 239 of the Crimes Decree 2009. For the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:

(a) the accused engages in conduct; and

(b) the conduct causes the death of the deceased; and

(c) the accused was reckless as to a risk that the conduct will cause serious harm to the deceased.

10. The phrase "engages in conduct" in paragraph 9(i) above means "to do an act or omit to perform an act". For example, if you hit someone with a stick, or punches someone with your hand, that is, to "engage in conduct" because you have "performed an act". Similarly, if you hit someone with a stick and the victim is seriously injured, and you fail or omit to take him to hospital, that is, to "engage in conduct" by "omitting to take him to hospital" for medical treatment. The above is the first element of manslaughter.

11. "The conduct must cause the death of the deceased" means "the conduct must be a substantial cause of the deceased's death". For example, you hit someone with a baseball bat (engages in conduct), and the person falls on the ground hitting his head on a stone, which fractured his skull. The fractured skull lead to serious brain injuries, which later caused the decased's death (conduct causes death of deceased). The assault set in motion a chain of events that lead to the deceased's death. Without the assault, the deceased would not have died. So the assault was a major and/or substantial cause of the deceased's death. That is the second element of manslaughter.

12. The third element of manslaughter involved its fault element. The accused must be shown beyond reasonable doubt "to be reckless as to a risk that his conduct will cause serious harm to the deceased". A person is reckless with respect to a result if – (a) he is aware of a substantial risk that the result will occur; and (b) 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. You must consider the parties' conduct, and the surrounding circumstances, to decide whether or not the accused was reckless. Was he reckless to the risk that his conduct will cause serious harm to the deceased? Was he aware of a substantial risk that the deceased would suffer serious harm, as a result of his conduct? If so, was it justifiable for him to take the risk? If you find him reckless, than the third element of manslaughter is satisfied. If its otherwise, then the third element of manslaughter is not satisfied.

13. If you find that all the three elements of manslaughter were satisfied by the prosecution beyond a reasonable doubt, then you must find the accused guilty as charged. If you find that some of the element of manslaughter are not satisfied by the prosecution beyond reasonable doubt, then you must find the accused not guilty as charged. It is a matter entirely for you.

F. THE PROSECUTION'S CASE
14. The prosecution's case were as follows. The 8th February 2013 was a Friday. The night club "Club Victoria", which previously was "the Islanders Night club" was open for business. The consumption of liquor and dancing was the order of the day in the night club. In the night club drinking with his wife and friends was the accused. He was 23 years old at the time. Also at the nightclub consuming liquor was the deceased, Netava Buke Draunidalo. He was aged about 21 years old, at the time. Approaching midnight, the commotion started when one Salote Kacivi (PW1) complained that Netava (deceased) snatched her gold chain from around her neck. PW1 later complained to the accused about the matter. The accused was PW1's cousin and relative. The matter was referred to the Night club bouncers, and PW1, Netava, the accused and a bouncer went out through the front door, to try and settle the matter outside.

15. The bouncers questioned Netava (deceased) about the alleged gold chain theft, but he denied the same. Netava, according to the on-lookers, appeared agitated and began swearing at some of the bouncers, and wanted to fight some of them. He appeared very drunk at the time. The accused moved towards Netava and questioned him on the alleged gold chain theft. He asked Netava to return the gold chain to PW1, and that would be the end of the matter. It was said that Netava continued to deny the alleged theft. The accused approached Netava from the back, and felt his pockets in an attempt to find the gold chain. It was 9 February 2013 now, in the early morning.

16. Netava, in his drunken state, swore at the accused and his family. He swung his right hand backwards to stop the accused touching his pockets. According to the prosecution, the accused was hurt by Netava's swear words, and he punched Netava on the chin with his left hand. Netava fell on the concrete pavement and was unconscious. The accused went back into the nightclub. A friend of Netava, Usaia Duguca (PW5), later carried Netava to friends at the Handicraft Centre, near Westpac Bank. PW5 said Netava was having breathing difficulties, and was bleeding from the head.

17. On 9 February 2013, at about 5pm, Netava's conditions were brought to the attention of his uncle, Mosese Luvu (PW6). PW6 immediately took Netava to the CWM Hospital. Netava was seen by hospital doctors, and was seen in the surgery section. He was later taken to the intensive care unit. PW6 returned home between 10 to 11pm. On 11 February, 2013 Netava died from his injuries. The CWM Hospital post-mortem report said Netava died from serious brain injuries due to an assault.

18. The matter was reported to police. An investigation was carried out. Accused was caution interviewed by police on 12 and 13 February 2013. On 13 February 2013, the accused appeared in the Suva Magistrate Court, charged with the murder of Netava. The charge was amended to manslaughter in the High Court. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.

G. THE ACCUSED'S CASE
19. On 19 May 2015, the first day of the trial, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to the charge. In other words, he denied the allegation against him. When a prima facie case was found against him, at the end of the prosecution's case, he choose to give sworn evidence, in his defence. He called no witness. That was his right.

20. The accused's case was simple. He admitted on oath that he punched Netava on the chin, with his left hand, at the material time. However, he denied the crime of manslaughter. He appeared to say that, when he punched Netava, at the material time, he was doing so in self-defence. We will discuss the accused's defence later, when we analyse the evidence. If he succeed on the defence of self-defence, you will have to find him not guilty as charged.

21. Because of the above, the accused is asking you, as assessors and judges of fact, to find him not guilty as charged. That was the case for the defence.

H. ANALYSIS OF THE EVIDENCE
(a) The Agreed Facts:

22. The parties had submitted an "Agreed Facts". A copy of the same is with you. Please, read it carefully. There are five paragraphs of facts. Because the parties are not disputing the same, you may take it that the prosecution had proven those facts beyond a reasonable doubt, and you may treat the same as established facts.

(b) Approach to Analyzing the Evidence and the Law:

23. In analysizing the evidence, we will consider each element of manslaughter as discussed in paragraph 9 hereof, and whether or not the prosecution had discharged its burden of proving the accused's guilt beyond reasonable doubt, by providing the necessary evidence to support each element of the offence of manslaughter. Then we will consider whether or not the defence of self-defence is available to the accused.

(c) Element No. 1: The Accused Engages in Conduct:

24. The accused, in his own sworn evidence, admitted he punched the deceased's chin with his left hand, at the material time. This was at the time he was questioning Netava about PW1's stolen gold chain, and asking him to return the same, if he had actually taken it. In his police caution interview statements, which were tendered as Prosecution Exhibit No. 4(a) and 4(b), the accused in question and answer 35, admitted punching Netava in the chin with his left hand, at the material time. Mikaele Lomaloma (PW4), a bouncer at the nightclub at the material time said, he saw the accused punched Netava in the chin, with his left hand, at the material time. It would appear from the above that, the evidence was overwhelming in supporting the prosecution's case that "the accused engaged in conduct" at the material time, that is, he punched the deceased's chin with his left hand. It would appear therefore that the prosecution had proven the first element of manslaughter beyond a reasonable doubt. However, it is a matter entirely for you.

(d) Element No. 2: The Conduct Causes the Death of the Deceased:

25. Under this heading, please bear in mind the directions I gave you in paragraphs 9, 10 and 11 hereof. Element No. 1 of manslaughter is accepted by the accused when we consider what we discussed in paragraph 24 hereof. In other words, the accused admitted, in his sworn evidence, that he punched the deceased in the chin, with his left hand, at the material time.

26. However, on the second element of manslaughter, the accused, in his sworn evidence, was not clear on this issue. He merely said, when re-examined by the prosecutor that, what he told the court is what he told the police. In his police caution interview notes [ie. Prosecution Exhibit No. 4(b)], he said the following:

Question 35: As this bouncers Tevita and Drua have been stopped from their fight then what happen to Drua?

Answer : As I know that he was left alone I then asked him of the gold chain and if possible to return it back to my cousin. He then abused me saying "kania na magaitinamu, caiti tamamu, meaning eat your mother's cun and fuck your father". But I was hurt of that remarks. Where I than searched his two pocket than all of sudden he pushed me backward, than all of a sudden, I threw one left punch to him and it landed right on his chin. The impact of that punch forced him to fall backwards whereby he hit his head on the foot path and it bounce twice. He was lying unconscious on the foot path where I tried to revive and woke him up but couldn't. So one boy came and took him across the road and put him lie down there for a while.

Question 36: When he was lying down on the foot path what you than do?

Answer : I tried to wake him up, where I then properly searched his pocket but couldn't find anything.

Question 37: When you punched Drua who was there?

Answer : The bouncer

Question 44: I was at the post mortem of Netava and there was big injuries on Netava right side of head, before being post mortem this morning 13/02/13, at 11.00am. Do you believed that injuries was caused by you when you punched him on that Saturday morning 09/02/13?

Answer : Yes that injuries was caused by when his head was hit by the foot path from the impact of my punch.

Question 45: Take a look at the post mortem result No. 48600 also the cause of death (shown to him). The cause of death is Intra Cerebral Haemorrage, Extra Dural Haemorrage, and fractured skull. Do you understand the cause of death?

Answer : Yes

Question 46 : I put to you that those injuries were received when he fell down were received when he fell down on the footpath where he hit his head against the foot path from the very impact of your left punch that landed on his chin, whereby he falls backward. What can you say?

Answer : Yes that is true.

Question 51 : Can you inform me as actually how many punched you give Netava?

Answer : It was only one left punch

Question 53 : Can you confirmed that when you punched him at the same time he hit his head on the footpath, he was unconscious?

Answer : Yes, when he fall down he was unconscious.

Question 54 : I put it to you that the impact of your punch where caused him to fall down and severely injured his head and also cause him to die?

Answer : Yes, I don't believe that he will die of that.

Question 55 : Do you know it's an offence to assault someone?

Answer : Yes

27. It would appear from the questions and answers mentioned in paragraph 26 hereof that the accused admitted that his conduct (ie. punching Netava on the chin with his left hand, wherein he fell on the concrete footpath) caused the death of the deceased. He appeared to admit that his conduct was a substantial cause of the deceased's death. In other words, he appeared to admit that his punch started a chain of events from punching, falling on the concrete footpath, fractured skull, serious brain issues, difficulties in breathing, and finally death.

28. To further support the above position, the prosecution called Doctor R. P. S. Goundar (PW7). PW7 is a doctor and had performed more than 5,000 post mortems. He conducted the post-mortem of Netava. He submitted the post-mortem report as Prosecution Exhibit No. 3. In the report, he said the cause of Netava's death was intra-cerebral haemorrhage (blood in the brain substance), extra-dural and subdural haemorrhages (blood between skull and first brain covering and between first and second brain covering) and fractured skull, which was due to an assault. PW7 said, he discovered that Netava's skull was fractured at the back, the fractures continued through the right side of the skull, and into the top of the eye sockets and nose. PW7 said, Netava died on 11 February 2013, but the injuries occurred much earlier. PW7 said the injuries would be caused by a heavy fall on a pavement.

29. When you combine what the accused said in his police caution interview statements, as discussed in paragraph 26 hereof, with Doctor Goundar's sworn evidence and post-mortem report, it was obvious that the accused's conduct (punching) was a substantial and major cause of Netava's death. However, on whether or not to accept this position, is entirely a matter for you.

(e) Element No. 3: The Accused is reckless as to a risk that the conduct will cause serious harm to Netava:

30. Please, bear in mind the directions I gave you in paragraph 12 hereof. Was the accused reckless as to a risk that his punch will cause serious harm to Netava? Was he aware of a substantial risk that Netava would suffer serious harm if he punches him as he did, and having regard to the circumstances known to him, it was unjustifiable to take the risk? Remember, the question whether taking a risk is unjustifiable is one of fact. In answering the above questions, you will have to carefully look at the parties conduct and the surrounding circumstances. The accused and the deceased were drinking at the time. There was swearing going around. Netava appeared to be challenging a bouncer. Allegation of gold chain stealing was thrown around. Netava denied the allegation. He was not happy about the allegation thrown at him. No gold chain was recovered from him. Was the accused aware of a substantial risk that Netava would suffer serious harm if he punches him, as he did? If so, was it justifiable for him to take the risk? If you find he was not justified in taking the risk, then he was reckless. If you find he was justified, then he was not reckless. It is a matter entirely for you.

(f) Has Manslaughter been proven beyond a reasonable doubt?:

31. If you are satisfied beyond reasonable doubt that all the three elements of manslaughter had been proven beyond reasonable doubt by the prosecution, you must find the accused guilty as charged. If its otherwise, you must find him not guilty as charged. It is a matter entirely for you.

(g) The Defence of Self-Defence:

32. If you think that the accused was or may have been acting in lawful self-defence, he is entitled to be found not guilty. Because the prosecution must prove the accused's guilt, it is for the prosecution to prove that the accused was not acting in lawful self-defence, not for the accused to establish that he was; and you must consider the matter of self-defence in the light of the situation which the accused honestly believed he faced.

33. You must first ask whether the accused honestly believed that it was necessary to use force to defend himself at all. This would not be the case if the accused was the aggressor, or acted in revenge, or he knew that he did not need to resort to violence. If you are sure that the accused did not honestly believe that it was necessary to use force to defend himself at all, he cannot have been acting in lawful self-defence, and you need consider this matter no further. But what if you think that the accused did honestly believe or may honestly have believed that it was necessary to use force to defend himself.

34. You must then decide whether the type and amount of force the accused used was reasonable. Obviously, a person who is under attack may react on the spur of the moment, and he cannot be expected to work out exactly how much force he needs to use to defend himself. On the other hand, if he goes over the top and uses force out of all proportion to the anticipated attack on him, or more force than is really necessary to defend himself, the force used would not be reasonable. So you must take into account both the nature of the attack on the accused, and what he then did. The accused said, he was searching Netava's pocket from the back. Netava back swung his right hand to him to prevent him searching his pocket, and it hit his shoulder. The accused said Netava held up both hands in a defensive position. The accused punched him on the jaw with his left hand. Netava fell to the ground.

35. If you are sure that the force the accused used was unreasonable, then the accused cannot have been acting in lawful self-defece: but if you think that the force the accused used was or may have been reasonable, he is entitled to be acquitted.

I. SUMMARY

36. 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.

37. Your possible opinions are as follows:

(i) Manslaughter : Accused : Guilty or Not Guilty

38. 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.

Salesi Temo
JUDGE

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