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State v Bakata - Summing Up [2016] FJHC 181; HAC121.2014 (21 March 2016)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA


CRIMINAL CASE: HAC 121 OF 2014


BETWEEN:


STATE


AND :


NACANIELI VAKATAWA BAKATA


Counsel : Mr. A. Singh for the State
: Accused in person


Date of Hearing : 15th - 18th of March 201
Date of Closing Submissions : 18th of March 2016
Date of Summing Up : 21st of March 2016


SUMMING UP


  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 during the course of the hearing. 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 and agreed fact. 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 accused person 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, agreed facts 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.
  7. 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 advice you that I am not bound by your opinion, but I assure you that your opinion will assist me in reaching my judgment.
  8. 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.
  9. 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


  1. 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.
  2. 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.
  3. 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 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


  1. The accused is being charged with one count of " manslaughter" contrary to Section 239 of the Crimes Decree. The particulars of the offence are that;

"Nacanieli Vakatawa Bakata on the 8th day of September 2014, at Nadi in the Western Division, being reckless as to the risk that his conduct would cause serious harm, killed Aanaiasa Cavacava"


  1. Section 239 of the Crimes Decree states that;

A person Commits an indictable offence if-


(a) the person engages in conduct; and
(b) the conduct causes the death of another person; and
(c) the first-mentioned person-
  1. The prosecution alleges that the accused punched the deceased while he was having a fight with his eldest brother. The deceased and few others were trying to stop them and pushing them apart. They all had been drinking beer since the morning. The incident took place around 6.pm. The deceased had fallen down and then later found he was dead.
  2. In view of the information and the Section 239 of the Crimes Decree, the main elements that the prosecution has to prove beyond reasonable doubt are that;
  3. It is your duty as judges of the facts to determine whether the prosecution has proved these three main elements beyond reasonable doubt. In order to determine such, you must only rely on the evidence presented by the prosecution and the accused during the course of this hearing. The prosecution and the accused presented the evidence in the forms of;
  4. Direct evidence is the evidence that a witness saw, heard, felt that the offence being committed. For example, if there is reliable evidence from a witness who actually saw an accused commits a crime; if there is a video recording of an incident which plainly demonstrates his guilt; or if there is reliable evidence of the accused himself having admitted it, they would all be good example of direct evidence.
  5. On the other hand it is often the case that direct evidence of a crime is not available, and the prosecution relies upon circumstantial evidence to prove guilt. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and the accused, which they say when taken together will lead to the sure conclusion that it was the accused who committed the crime. Witness who gives evidence in this nature actually has not seen, heard or felt the offence being committed, but gives evidence of relevant circumstances and the events, from which you are able to make certain inference /conclusion of the commission of the offence. I will explain the process of forming inference or conclusion based on the circumstantial evidence later in this summing up.
  6. It is the general rule that witnesses are normally not allowed to give opinion and only allow to give evidence on what they have seen, heard, or felt by their physical sense. However, the exception is that the evidence of expert witnesses. Expert witnesses are those who are learned and experts in a particular subject or field with relevant experience. Such witnesses are allowed to give evidence of their opinion. In this case, the Doctor who conducted the post mortem of the deceased is an expert witness. The opinion she has expressed could be taken into consideration in your deliberation of evidence, if you believe and accept her evidence.
  7. The evidence presented in the form of documents is considered as documentary evidence. In this case, the prosecution presented the post mortem report of the deceased in the form of documentary evidence.
  8. In assessing evidence of the witnesses, you must consider whether the witness had the opportunity to see, hear and or feel what the witness is talking in the evidence.

You then should 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 own evidence but also with other evidence presented in the case.


  1. 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, were they evasive, in order to decide the credibility of the witness and the evidence.

Evidence of the Prosecution and the Defence


  1. I now draw your attention to the evidence presented by the prosecution and the defence.
  2. The first witness of the prosecution is Mr. Mikaele Tagicakiverata. He is the eldest brother of the accused person. He stated in his evidence that on the 8th of September 2014, he started to drink beer with his father, three of his brothers including the accused, the deceased Mr. Cavacava, a friend of his father and another cousin brother called Joseph Simpson. They started to drink beer at around 10 a.m. and it went on till the evening. Mr. Mikaele had an argument with the accused over their origin at around 6 to 7 pm. They were drinking beer under the mango tree which is situated in front of their house. The argument led to an exchange of punches. The deceased and others intervened and tried to stop the fight. His brother Domisio hold him from his back and tried to push him away. At that time Deceased and another person were trying to push the accused away. While he was pushed back by his brother Domisio, he saw the accused threw a punch towards him . At the same time he was pushed back while he was struggling to get himself free as he wanted to get to the accused. He did not see at where the said punch was landed. He only saw the accused threw a punch towards him and the deceased was standing between them. The deceased was standing in front of the accused at that time. Another person, whose name the witness could not recall was also standing close to the deceased at that time. He then saw the deceased had fallen down and lying on the ground. Mr. Mikaele specifically stated that he did not see that the accused punched the deceased. He had only saw the accused threw a punch toward him while the deceased was standing between them with another.
  3. Mr. Mikaele was dragged away to his boat. He then saw the accused was going to the back side of the house, where his wife was cooking. He then went to him and they again started to exchange punches. His father-in-law Timoci Koroi intervened and tried to stop them fighting. The accused then punched Mr. Timoci. Mr. Mikaele then got a stick and started to beat the accused with it. He beat the accused on the back of his head. He then went to his neighbours as he wanted to call the police.
  4. During his cross examination, Mr. Mikaele stated that they had consumed nearly five carton of 750 ml bottles of Beer by the time this incident erupted. He stated that he was drunk at that time. He has made his statement to the police on 8th of September 2014, while he was drunk. The ground that the deceased fallen down is covered with the roots of the mango tree as they were on the surface of the ground.
  5. The second witness of the prosecution is Meresamuave Rokotubu. She is the mother of the accused person. She stated in her evidence that her husband's cousin died on 8th of September 2014. She could recalled that she heard the sound of voices coming from the side of mango tree where the accused and others were drinking beer. She was cleaning the house at that time. Time was around 5.30 p.m. She then went to the mango three and found that the accused and his eldest brother Mikaele was arguing. She was standing between them and tried to stop them. Mr. Cavacava was also standing at the Mikaele' side and tried to stop them. The accused and Mikaele then got up and started to exchange punches. She also tried to stop them so did Mr. Cavacava and Domisio. No one was able to stop them. She then went to her neighbour, Sofia's place and asked her to call the police about the fight. After Sofia made the call to the police she came out and found Mikaele had also followed her. She then went back home with him. The two brothers again fought behind the house. The father-in-law of Mikaele tried to stop them but failed. Mikaele then took an iron rod and started to beat the accused on the back of his head. He fell down. She ran to him and though he was dead. She again ran back to Sofia's place and asked her to call for an ambulance.
  6. She found the accused was moving his body. She called his wife and asked her to take him to the house. She then went around the house and found that Mr. Cavacava was lying on the ground under the mango tree. Sofia told her that he was dead. Mrs. Rokotubu stated in her evidence that she did not see the accused punched the deceased. The ground where the deceased had fallen down is not even as the roots of the mango tree are on the surface. She found the deceased was lying on one of the roots of the mango tree.
  7. The third witness of the prosecution is Dr. Avikali Mate. She is the senior forensic pathologist at the Pathology Unit of the Forensic Department of Fiji Police Force. She conducted the post mortem of the deceased at the Lautoka Hospital on 9th of September 2014. She explained her finding both on external and internal. She has found a swelling on the left auricular area. It was 3.2cm x 1.4 cm. It was at the left side of the face closing to the left side ear. When she cut opened the swelling, she found blood clout inside it.
  8. In respect of the internal findings, she found that blood had leaked into the pericardial sac of the heart. The pericardial sac was contained approximately 420ml of blood and blood clouts. She explained that the cause for the leak of blood to the pericardial sac was the tear at the anterior aspect of the left atrium. She has concluded that the cause of death was haemopericardium as a consequence of ruptured left atrium. She went further and explained that she recorded the alleged assault as for the other significant contribution to the death because it was the history given by the investigating police officers. She stated that the conclusion she reached in respect of the alleged assault was not based on any medical or scientific findings but only on the history given to her by the investigators.
  9. Dr. Mate explained the possible causes or linkage of the internal findings with the external findings. She said that the swelling on the left side of the face close to the ear could have caused by either a punch or a fall. If the deceased fall due to a punch and if that fall caused a blunt trauma that could have possibly caused the ruptured at left atrium.
  10. The fourth witness of the prosecution is Sofia Nisha, who is the neighbour of the Bakata family. She stated in her evidence that the mother of the accused, Mere, came to her house around 6.30 p.m on the 8th of September 2014, requesting her phone to make a call to the police. She has told the witness that a fight was going on at her place and she wanted to call the police. Mrs. Nisha gave her phone to Mere to make the call. Subsequent of making the phone call, Mere went back to her house. In a while, Mere came back stating that she wanted to call an ambulance as one of her sons was injured. Mrs. Nisha also went to Bakata's house with Mere and found a person was lying under the mango tree. She checked the pulse of the said person and found that he was dead.
  11. At the conclusion of the prosecution case, the accused person was explained about his rights in defence. The accused person opted to give evidence on oaths. However, he advised the court that he does not wish to call any other witnesses for his defence.
  12. The accused person in his evidence denied the allegation and stated that he was heavily drunk at that time as they had been drinking beer since the morning. He stated that he could only recall that he had an argument with his eldest brother Mikeale, which led to exchange of punches. He could only recall up to that point. In his cross examination, the accused stated that it was impossible that he could have punched the deceased during the quarrel he had with his eldest brother.
  13. I have summarised the evidence presented during the cause of this hearing. However, I might have missed some. It is not because they are not important. You have heard every items of evidence and reminded yourselves of all of them. What I did only to draw your attention to the main items of evidence and help you in reminding yourselves of the evidence.

Analyses of the Evidence


  1. According to the evidence presented by the prosecution, there is no direct evidence to prove that the accused punched the deceased. However, Mr. Mikaele stated in his evidence that he saw the accused threw a punch towards him and the deceased was standing in front of the accused at that time. The deceased was trying to stop and pulled the accused away from exchanging punches. Michele was pulled back by his other brother as the accused threw the punch towards him. He did not see at where the said punch was landed. He stated in his evidence that he did not see the accused punched the deceased. In a while Mikaele saw the deceased had fallen down and lying on the ground.
  2. The prosecution has not presented direct evidence to prove that the said punch has substantially contributed the death of the deceased. Doctor Mate stated in her evidence that the cause of the death is haemopericardium as a consequence of ruptured left atrium. She further stated that the raptured atrium could have been caused by a fall. The swelling that she found on the left side of the face close to the ear could have been caused by either a punch or a fall. She further stated that the size of the swelling is smaller than a fist.
  3. Having presented the above mentioned evidence, the learned counsel for the prosecution submitted that the effect of that evidence, when considered as a whole, leads to the indisputable and inescapable conclusion that the accused person is guilty for the offence as charged. In other words, the prosecution case is founded on circumstantial evidence. A circumstantial case is one that depends for its cogency on the unlikelihood of coincidence. In such cases, the prosecution seeks to prove separate facts, incidents and circumstances which cannot be explained as coincidence, but the only rational explanation when it is considered as a whole, is the guilt of the accused person. Circumstantial evidence can be powerful evidence but it needs to be examined with care to assure whether it actually has such effect.
  4. Ladies and Gentleman, it is your duty to consider whether the evidence presented by the prosecution is reliable and truthful. If you decide it as reliable and truthful, then you can consider whether you accept then as proven facts. It is permissible to draw an inference of the existence of another fact from the facts that you consider as proven. It is the process of drawing inference from the proven facts.
  5. Drawing of inference is a process by which you find from evidence which you regard as proven, that you are driven to a further conclusion of the existence of another fact. You need to be careful to ensure that the evidence really lead to the conclusion, that the prosecution propose you to reach.
  6. Let me give you an example of drawing or forming an inference or a conclusion, which does not arise out of the facts of this case, but it will illustrate the need of care in judging whether the facts proved supports the inference of guilt. If my finger print is found in the living room of my neighbour's home, it is a sound inference that at some stage I have been in his living room. It would not, however, support an inference that I was the burglar who stole his DVD recorder from his living room. If you accept my neighbour's evidence that I have never been invited into his home, then, in the absence of some acceptable explanation from me, you might infer that at some stage I had been in my neighbour's home uninvited. You may or may not be driven to the further conclusion that I was the burglar. But, if you also accept that there was a second fingerprint of mine found at the point of entry or, that in my shed there was a DVD recorder found, which my neighbour recognises as the one stolen from his living room, you, would, no doubt, conclude that you are sure that I was the burglar. You will notice how the inference of guilt becomes more compelling depending upon the nature and number of the facts and incidents proved.
  7. What conclusion or inference you reach from the evidence is entirely for you to decide. However, in considering what inference you should draw or what conclusion you should reach, it is important to be mindful that speculation has no part in this process. Speculation in a case amounts to no more than guessing, or making up theories without good evidence to support them. The conclusion or the inference must be the only and certain rational conclusion or inference of the guilt of the accused persons. If the evidence that you accepted or considered as proven, suggest you some other probable inferences or conclusions, which show the innocence of the accused or create a doubt as to the guilt of the accused, you are then not entitled to draw any inference or form any conclusion of guilt of the accused person.
  8. In respect of the third element of the offence, it is your duty to consider whether the prosecution has presented either any direct evidence or circumstantial evidence to prove that the accused was aware of substantial risk that if he punched the deceased under the circumstance that was prevailed at the time of this incident took place, would cause the deceased serious harm. If so, you are then required to consider whether the prosecution presented evidence either in the form of direct or circumstantial to prove that the accused took that risk and punched the deceased without any justification. If you are satisfied the existence of such evidence, then you could proceed to consider whether those evidence is reliable and truthful. You could then proceed to consider whether those evidence has proved the third element of the offence beyond reasonable doubt.
  9. The accused stated in his evidence that he was heavily drunk at the time of this incident took place. The fault element of this offence that is the recklessness is a basic intent. Hence, the accused's intoxication provides no defence for him. The intent form under the influence of alcohol or drugs is still an intent.
  10. The accused in his evidence only stated that he could not recall any incident that were allegedly taken place after he started to exchange punches with his eldest brother. However, he further stated in his evidence, that according to the evidence given by the prosecution witnesses, it was impossible that he could have punched the deceased. This is actually not what the accused saw, felt or did. It is an opinion that he formed from the evidence presented by the prosecution. The accused is not an expert witness who is allowed to present evidence in the form of opinion. Hence, I direct you to disregard that portion of the evidence of the accused where he stated that it was impossible that he could have punched the deceased according to the evidence presented by the prosecution.
  11. Upon consideration of the evidence presented by the prosecution and the accused, if you are satisfied that the prosecution has proved all the main elements of the offence of manslaughter as charged, you can then find the accused is guilty for the charge of manslaughter. If you believe that that charge is not proved beyond reasonable doubt, then you must find the accused person is not guilty.
  12. Madam and gentleman assessors, I now conclude my summing up. It is the 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 will not require to give reasons for your opinion. When you have reached to your opinion, you may please inform the clerks, so that the court could reconvene.
  13. Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?

R. D. R. ThusharaRajasinghe
Judge


At Lautoka
21st of March 2016


Solicitors : Office of the Director of Public Prosecutions for Respondent,
Accused in person

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