State v Rokotuiwailevu - Summing Up [2015] FJHC 765; HAC71.2015 (9 October 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 71 OF 2015

BETWEEN:

STATE

AND:

SAILOSI ROKOTUIWAILEVU

Counsel : Mr. Niudamu. J for State
Mrs. Nasedra for the Accused

Date of Hearing : 5th and 6th of October 2015
Date of Closing Submissions : 8th of October 2015
Date of Summing Up : 9th of October 2015

SUMMING UP

Madam Assessors and Gentleman Assessor.

1. The hearing of this case has now reached to its conclusion. It is my duty to sum up the case to you. You will then retire to consider your respective opinions.
   
2. Our functions are different. It is my task to ensure that the trial is conducted according to law. As part of that, I will direct you on the law that applies in this action. You must accept the law from me and apply all directions I give you on matters of law.
   
3. You are to determine the facts of the case, based on the evidence that has been placed before you in this court room. That involves deciding what evidence you accept or refuse. You will then apply the law, as I shall explain it to you, to the facts as you find them to be, and in that way arrive at your opinion.
   
4. I may comment on the facts if I think it will assist you when considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the facts. Hence, it is entirely upon you to accept or disregard it unless it coincides with your own independent opinion. I say so because you are the sole judges of the facts.
   
5. You must reach your opinion on evidence, and nothing but on the evidence itself. Evidence is what the witnesses said from the witness box, documents and other materials received as exhibits. This summing up, statements, arguments, questions and comments made by the counsel of the parties are not evidence. The purpose of the opening address by the learned counsel for the prosecution is to outline the nature of evidence intended to be put before you. The closing addresses of the counsel of the prosecution and the defence are not evidence either. They are their arguments, which you may properly take into account when you evaluate the evidence, but the extent to which you do so is entirely a matter for you.
   
6. If you heard, or read, or otherwise learned anything about this case outside of this courtroom, you must exclude that information or opinions from your consideration. You must have regard only to the testimony and the exhibits put before you in this courtroom during the course of this trial. Ensure that no external influence plays a part in your deliberation. As judges of facts you are allowed to talk, discuss and deliberate facts of this case only among yourselves. However, each one of you must reach your own conclusion or form your own opinion. You are required to give merely your opinion but not the reasons for your opinion. Your opinion need not be unanimous. I must emphasise you that I am not bound by your opinion, but I assure you that I will give the greatest possible weight on your opinions when I form and deliver my judgment.
   
7. Moreover, I must caution you that you should dismiss all emotions of sympathy or prejudice, whether it is sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision, nor should you allow public opinion to influence you. You must approach your duty dispassionately; deciding the facts solely upon the whole of the evidence. It is your duty as judges of facts to decide the legal culpability as set down by law and not the emotional or moral culpability of the action.
   
8. Matters which will concern you are the credibility of the witnesses, and the reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and is correctly recalling the facts about which he or she has testified.
   

Burden and Standard of Proof

9. I now draw your attention to the issue of burden and standard of proof. The accused is presumed to be innocent until he is proven guilty. The presumption of innocence is in force until you form your own opinion that the accused is guilty for the offence based on the evidence presented during the course of this hearing.

10. The burden of proof of the charge against the accused person is on the prosecution. It is because the accused person is presumed to be innocent until he is proven guilty. Accordingly, the burden of proof rest on the prosecution throughout the trial and it never shifts to the accused person. In other words there is no burden on the accused person to prove his innocence, as his innocence is presumed by law.
    
11. The standard of proof in criminal trial is "proof beyond reasonable doubt". It means that you must be satisfied in your mind that you are sure of the accused person's guilt. If there is a riddle in your mind as to the guilt of the accused person after deliberating facts based on the evidence presented, that means, that the prosecution has failed to satisfy you the guilt of the accused person beyond reasonable doubt. If you found any reasonable doubt as to the commission of the offence as charged or any other offence by the accused, such doubt should always be given in favour of the accused person.
    

Information

12. The accused is being charged with one count of Attempted Murder contrary to Section 44(1) and Section 227 of the Crimes Decree. The particulars of the offence are that;
    

"Sailosi Rokotuiwailevu, on the 24th of April 2015, at Vitawa village, Rakiraki, in the Western Division, attempted to murder Peni Navuku".

13. Section 44(1) and (2) of the Crimes Decree states that:
    
    1. A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
       
    2. For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence, and the question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
       
14. Section 237 of the Crimes Decree states that;
    

A person commits an indictable offence if —

1. the person engages in conduct; and
   
2. the conduct causes the death of another person; and,
   
3. the first-mentioned person intends to cause, or is reckless as to causing, the death of the other person by the conduct.
   

15. Accordingly, the main elements for the offence of attempted murder are that;
    
    1. The accused person,
    2. Had the intention to kill the victim,
    3. With that intention did something which was more than merely preparatory to the killing of the victim,
       
16. According to the 3rd element the prosecution is required to prove beyond reasonable doubt that the accused has done something in order to actually execute his intention of killing the victim and not something which amount to mere preparation to execute his intention.
    
17. Accordingly, the prosecution is required to prove beyond reasonable doubt that the accused person, had an intention to kill the victim and with that intention he assaulted the victim with a cane knife.
    
18. If you found that the accused assaulted and wounded the victim as charged by the prosecution, but found he had no intention to kill the victim, you are then allowed to look at lessor offence of "Act with Intent to Cause Grievous Harm" though it is not formally charged in the information. In such circumstances, you must satisfied that the prosecution has proved beyond reasonable doubt that;
    
    1. The accused,
    2. With intent to maim, disfigure, disable or to do some grievous harm to the victim,
    3. Unlawfully wounded him by any means,
       
19. I now draw your attention to the definition of "grievous harm" as stipulated under Section 4(1) of the Crimes Decree, where it states that;
    

"grievous harm" means any harm which—

1. amounts to a maim or dangerous harm; or
2. seriously or permanently injures health or which is likely so to injure health; or
3. extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense;"
   

20. I now draw your attention to summarise the evidence presented by the parties during the course of the hearing.
    
21. The first witness of the prosecution is Mr. Peni Navuku. He is the father of the accused and the victim of this alleged incident. He stated that he was having lunch with his wife and daughter when the accused came back home on the 24th of April 2015. He asked the accused whether he came from the farm, for which the accused replied that he came after digging toilet pits. He then told the accused that he was going to Native with his wife and one of the cousins of the accused's wife. She is Kini Simere, who was staying with them, as she was schooling. Mr. Peni stated that he was getting ready to go to see his elder daughter with his wife and wanted to take Kini with them as it was the school break. He did not want to leave her alone at home as he and his wife were going. However, the accused asked Kini to stay back for a week so he could go to fishing. The accused asked Mr. Peni, is he the boss of everyone in the house, for which he replied that he is the boss and the owner of the house. The accused then went into the kitchen and took a knife. He then came back to the house and stuck on the head of the witness. Mr. Peni was drinking tea at that time. The accused then stuck again on the back of Mr. Peni. He collapsed and lost his conscious. When he gained his conscious he was in the hospital.
    
22. When he was cross examined by the learned counsel of the accused, Mr. Peni said that he did not scolded at the accused when he returned. He also stated that he did not tell the accused to pack his things and leave the house. The accused and his wife were at his wife's village, Matavikai after their marriage, but later they moved to Mr. Peni's house upon the request of Mr. Peni's wife. The accused and his family had been living with them since then. Mr. Peni further stated that he asked the permission of the wife of the accused to take Kini with him, for which she consented as the accused was not at home. Mr. Peni stated that he had no problem with Kini staying at home and only wanted to take her with him as it was a school break and not secure to leave her alone at home.
    
23. The second witness of the prosecution is Dr. Shradah Shilta. She stated in her evidence that she treated Mr. Peni when he was brought into the Rakiraki hospital with injuries on the 24th of April 2015. She treated the victim at the emergency unit of the hospital. She made a medical report for the victim, which she explained during her evidence.
    
24. She explained in her evidence that her team managed to stop the bleeding and made the victim stable, but his head injury could be fatal and could be deteriorated. They first had to stop the bleedings and taking of x-ray was not important at that time. Once the victim was stable, he was admitted to the hospital and kept under neuro observation. Painkillers were given to the victim as he was in lot of pain. She further stated that the victim was given antibiotic in order to prevent the injuries getting infected. It took nearly an hour to stop the bleedings of the victim. She had to give him intravenous fluid in order to compromise the blood he lost during the bleeding.
    
25. Dr. Shilta explained the nature of the two injuries, one on the head and other one on the left side of the back shoulder. She stated that the cut on the head was deep enough to cause severe injuries as it had cut a chip of the bone of scalp. She further stated that any one coming to emergency unit is considered as a serious case and there was no need to transfer the victim as she and her team managed to stop the bleeding and made him stable at the Rakiraki hospital.
    
26. The third witness of the prosecution is Merewalesi Moi, who is one of the elder sisters of the accused. She stated in her evidence that she came to her father's house on 23rd April 2015 and stayed there overnight. On the 24th April 2015, at around midday, the accused came home when they were about to finish their lunch and leave. Mrs. Moi, was at the sitting room with her father and mother. Her father asked the accused from where he came and told him that he was taking Kini with him. The accused had asked him that, if they could stay today, he can go fishing and catch some fish, which Kini can take with her. Her father wanted to go on that day and did not want to stay back. The accused then said that you were the one called us to come here as we were staying at Matavikai. He then went into the kitchen and got a cane knife. He straight away came to the sitting room and raised it and stuck on the head of her father. He struck again on the back side of her father. She noticed that her father wanted to go to the road side with those injuries but could not make it and collapsed in front of her. Mrs. Moi was not cross examined by the learned counsel for the accused person.
    
27. The fourth prosecution witness is PC Akei Uluibau. He stated in his evidence that he visited the scene of this incident on 24th of April 2015. He found that the victim was lying beside a flower bed with injuries. He had two cuts, one was on his head and other was at his back. He was motionless and bleeding. He took the victim to the emergency unit of the Rakiraki Hospital. He further stated that he uplifted the cane knife which was used by the accused to commit this crime.
    
28. The next witness of the prosecution is DC Sailosi Bawaqa. He is the charging officer of the accused person. He stated in his evidence that he formally charged the accused on 24th of April 2015 at the crime office of the Rakiraki Police Station. The accused was properly cautioned and was given his rights during the charging.
    
29. DC Bawaqa stated in his cross examination, that the accused was not informed that he was charged for attempted murder during the charging.
    
30. The sixth witness of the prosecution is DC Isoa Delaivatanawa. He has visited the scene of the crime and recorded statements of the witnesses. D.C. Isoa then arrested the accused when he was at the main road. DC Isoa stated in his evidence that the accused looked normal and was sweating on his head, when he was arrested. He then escorted the accused to the police station. DC Isoa conducted the caution interview of the accused, which was done in English language. Accused appeared like that he was regretting for what he did to his father, but did not appear that he was in anger. The caution interview was conducted few hours after this alleged incident. DC Isoa stated that the accused was interviewed for an offence of grievous harm and not for attempted murder on that day.
    
31. At the conclusion of the prosecution case, the accused was explained of his rights in his defence. The accused gave evidence on oath and did not call any other witness for the defence.
    
32. The accused stated in his evidence that he saw his father, mother and cousins Kini were getting ready to go somewhere. He then found that they were going to Nativi. He asked Kini to stay back a day, then he can catch some fish. Kini can take them with her. The accused's elder sister lives at Nativi. The father did not agree with it and said that Kini has nothing to do at home as it was school's break and must go with them. The accused then told his father that everyone knows that it is you house and he will chop someone. He then went to the kitchen and got a knife. He came back to his father and struck on his head. He again struck on his back. The accused then left the knife and went to the main road and stayed there until Police came and arrested him.
    
33. The accused stated in his evidence that he freely answered to the questions during the caution interview. He further stated that he understood the questions and answered them accordingly. He specially stated that he answered that he had an intention to kill his father inside the house. He later stated that he answered in that way because he was angry. However, during his cross examination he stated that he was not angry during the record of his caution interview. The accused then stated that he did not intend to kill his father and his relationship with the father was bad as he always treated him badly and angrily.
    
34. In view of the evidence presented by the prosecution and the defence, the main contentious issues of this matter is that whether the accused had an intention to kill the victim. The accused in his evidence admitted that he struck the victim two times with the cane knife, causing injuries on his head and back. The doctor in her evidence explained the nature and seriousness of the injuries that the victim sustained due to this assault.
    
35. The prosecution tendered the caution interview of the accused person in order to prove that the accused had the intention to kill the victim. DC Isoa stated in his evidence that the accused stated that he had an intention to kill the victim inside the house in his caution interview. The accused in his evidence stated that he freely gave his answers during the record of his caution interview. He then stated that he was angry when he said that. He further stated in his evidence that he was angry when he stuck the victim but was not angry at the caution interview.
    
36. The prosecution tendered a copy of the caution interview as one of the exhibits of the prosecution. In respect of the caution interview, you can act upon it, if you are sure that it is true. If you are not sure of the confession is true, then you should not place any reliance upon it.
    
37. You observed and witnessed that all the witnesses gave evidence in court. It is your duty as judges of facts to consider the demeanour of the witnesses, how they react to being cross examined and re-examined, whether they were evasive, in order to decide the credibility of the witness and the evidence. You should then consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Apart from that you are required to consider the consistency of the witness, not only with his/her evidence, but also with other evidence presented in the case. It will assist you in assessing the evidence presented in the case and forming your decision to accept or refuse the evidence or witnesses or part of them.
    
38. You have heard the evidence presented by the accused, where he denied this allegation and stated that he had no intention to kill his father. If you accepted the version of the accused person that he did not commit this offence, then the case of the prosecution fails. You must then acquit the accused from this charge.
    
39. If you neither believe nor disbelieve the version of the accused, yet, it creates a reasonable doubt in your mind about the prosecution case. You must then acquit the accused from this charge.
    
40. Even if you reject the version of the accused person that does not mean that the prosecution has established that the accused is guilty for this offence. Still you have to satisfy that the prosecution has established on its own evidence beyond reasonable doubt that the accused committed this offence as charged in the information.
    
41. Upon consideration of all evidence, if you believe that the count of attempted murder is proved beyond reasonable doubt, you can find the accused is guilty of the charge. If you believe that that charge is not proved beyond reasonable doubt, then you must find the accused not guilty for the offence as charged in the information.
    
42. If you are satisfied beyond reasonable doubt that the accused has struck the victim on his head and on his back with the cane knife, causing the injuries as stated in the medical report, but not satisfied that the accused had intention to kill the victim, you may then consider whether the prosecution has proved beyond reasonable doubt the elements of lessor offence of "Act with intend to cause grievous harm" as I explained above.
    
43. Madam and gentleman assessors, I now conclude my summing up. It is time for you to retire and deliberate in order to form your individual opinions on the charge against the accused person. You will be asked individually for your opinion and are not required to give reasons for your opinion. Once you have reached your opinion, you may please inform the clerks, so that the court could be reconvened.
    
44. Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?
    

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
9th of October 2015

Solicitors : Office of the Director of Public Prosecutions
Office of the Legal Aid Commission