State v Dumukoro - Summing Up [2016] FJHC 191; HAC27.2014 (16 March 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC. 27 of 2014

STATE

V

SULIASI DUMUKURO

Counsel : Ms. P. Madanavosa for the State
Mr. T. Bukarau for the Accused

Dates of Hearing : 03rd March – 14th March 2016
Date of Summing Up : 16th March 2016

SUMMING UP

Madam and gentleman assessors;
It is now my duty to sum up the case to you.

1. I will now direct you on the law that applies for this case. You must accept my directions on law and apply those directions when you evaluate the evidence in this case in order to determine whether the accused is guilty or not guilty. During the closing address, you would remember the lawyer for the accused addressed you on a matter of law referring to certain judgments of the superior courts. You should remember that you should only accept my directions on matters of law and you should not accept any direction or submission on law which the two lawyers made when they addressed you.
   
2. During this summing up, if I express my opinion on the evidence or if I appear to do so, you are not bound accept such opinion. You should ignore any opinion of mine on the facts of this case unless it coincides with your own reasoning. You are the judges of facts.
   
3. Evidence is what the witnesses said from the witness box in this court room, the admitted facts and the exhibits tendered in this case. Your opinion should be based only on the evidence presented inside this court room. That said, please remember that I will not be reproducing the entire evidence of the case in this summing up. I would only refer to the evidence which I consider important to explain the case and the applicable legal principles. If I do not refer to certain evidence which you consider as important, you should still consider that evidence and give it such weight you may think fit.
   
4. If you have heard, read or otherwise come to know anything about this case outside this court room, you must disregard that information and must not consider such information in order to come to the conclusion whether the accused is guilty or not guilty.
   
5. A few things you heard inside this court room are not evidence. This summing up is not evidence. The arguments, questions and comments by the lawyers for the prosecution and the defence are not evidence. A suggestion made by a lawyer during the cross examination of a witness is not evidence unless the witness accepted that suggestion. You heard the opening address and you heard the closing address. Those arguments and comments made by lawyers in their addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence only to the extent you would consider appropriate.
   
6. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. Your opinion should only be based on what you heard from the witnesses in this case who gave evidence from the witness box, the exhibits tendered and the admitted facts. You must approach the evidence with detachment and objectivity and should not be guided by emotion. You should put aside all feeling of sympathy for or prejudice against, the accused or anyone else. No such emotion should influence your decision.
   
7. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court; how they conducted themselves in the witness box; how they answered the questions during examination-in-chief, cross-examination and re-examination. Applying your day to day life experience and your common sense as representatives of the society, you should decide whether you can believe what each witness said in court. Having listened to the evidence of each witness and having seen how he/she gave evidence, you may decide that the entire evidence of a particular witness can be believed; or you may decide to believe only a part of the evidence and reject the other part; or you may reject the entire evidence of a witness if you decide that the entire evidence of that particular witness is not capable of being believed.
   
8. When you assess the testimony of each witness, you should bear in mind that witnesses may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts and also the difficulties in relating those facts they remember in this environment.
   
9. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence or whether he/she had previously made a statement which conflicts with the evidence given in this court. You have to bear in mind that a previous statement made out of court is not evidence except for those parts that are put to a witness as inconsistent versions.
   
10. Obviously, you may have a difficulty in believing someone who is not consistent. In dealing with inconsistencies, first you have to be satisfied that in fact there is an inconsistency. If you are satisfied that there is an inconsistency, then you should consider whether that inconsistency is material and relevant or insignificant and irrelevant. If you find the inconsistency to be material and relevant, then you must consider whether there is any explanation given by the witness in question with regard to the inconsistency. If there is no such explanation or if you are not satisfied with the explanation, again you have two options. You may either conclude that that particular witness is generally not to be relied upon or you may decide to disregard only part of his/her evidence which you consider unreliable.
    
11. On the other hand, if you consider the inconsistencies to be insignificant and irrelevant, or if you are satisfied with the explanation given, then you may consider such witness as a reliable witness notwithstanding the inconsistency.
    
12. You may also consider the ability and the opportunity each witness had, to see, hear or perceive in any other way what he/she said in evidence.
    
13. The accused has admitted certain facts relating to this case and you have those facts before you as 'Further agreed facts'. You should consider those admitted facts as proven beyond reasonable doubt.
    
14. Based on the evidence, you decide what facts are proved and what inferences you can properly draw from those facts. What a witness told you about what he/she saw or heard and the exhibits tendered may directly prove certain facts. In addition to those facts you would consider as directly proved, you may also draw inferences from those facts. For example, when you walk out of this court room, if you see rain water around and it was not raining when you came inside, even though you did not see, you can draw the reasonable inference that it had rained while you were inside the court room. Bear in mind that the inferences you draw should be based on facts proved by the evidence and you may only draw reasonable inferences. You should then apply the law as per my directions to those facts and inferences, to form your opinion as to whether the accused is guilty or not guilty.
    
15. You are not required to decide every point which has been raised by the lawyers in this case. You should only deal with the offence the accused is charged with and matters that will enable you to decide whether or not the charge has been proved.
    
16. When I say 'proved', as a matter of law you should remember that the burden of proof always lies on the prosecution. This means that it is the prosecution who should prove that the accused is guilty and the accused is not required to prove that he is innocent. Under our criminal justice system, an accused person is presumed to be innocent until proven guilty.
    
17. The next question is; what is the standard of proof or to what extent the prosecution should prove the guilt of an accused? The standard of proof in criminal trials is one of proof beyond reasonable doubt. You must be sure of the accused person's guilt.
    
18. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. Therefore, if you have a reasonable doubt in respect of any element of the offence accused is charged with, as to whether the prosecution has proved that element, then you must find the accused not guilty of the offence charged. However, if you find that the prosecution has proved all the elements beyond reasonable doubt, you should find the accused guilty of the offence charged.
    
19. You will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion where all three of you agree on whether the accused is guilty or not guilty; but it is not necessary. May I also inform you that, according to our law, I am not bound to conform to your opinion and the final decision on the facts rests with me. But, your opinion as representatives of the society will assist me immensely to arrive at my final decision.
    
20. Let us now look at the Information. DPP has charged the accused for the following offence;
    

FIRST COUNT

Statement of offence

Murder: Contrary to Section 237 (a) and (b) and (c) of the Crimes Decree No: 44 of 2009.

Particulars of offence

SULIASI DUMUKURO on the 25th day of December 2013 at Waisomo village, Tavuki, Kadavu in the Central Division, murdered SAVENACA TUINABULI.

21. The following facts are admitted in this case. Therefore, you should consider the following as proven beyond reasonable doubt.
    
    1. The deceased namely Savenaca Tuinabuli was from Waisomo Village, Kadavu and the accused namely Suliasi Dumukuro is from Natumua Village, Kadavu.
       
    2. The villages of Waisomo and Natumua are located next to each other.
       
    3. Both the deceased and the accused are known to each other.
       
    4. On 25th December 2013 at Waisomo Village, both the accused and deceased were both drunk and had an argument.
       
    5. The accused swore at the deceased then ran away to his village to Natumua.
       
    6. Tevita Kubukawa of Natumua village was chopping wood on the morning of 25th December 2013 when he saw the accused walking to his house.
       
    7. The deceased returned from Natumua to go back to his village in Waisomo with his wife when Epeli Tabuarua then invited both the deceased and Sokoveti to have tea.
       
    8. After a while Tevita Kubukawa saw the accused running towards Waisomo village and the accused jumped across a small drain and Tevita Kubukawa saw a kitchen knife on his back pocket.
       
    9. The deceased stopped at Epeli and Kelera Tabuarua's house whilst his wife Sokoveti walked straight to their home to check on her two sons.
       
    10. That the accused stabbed the deceased.
        
    11. Sokoveti Tuinabuli and deceased's wife then wrapped the kitchen knife in one plastic bag and left in the boat which was driven by Uraia Vasakula which transported the Deceased's body with others to Vunisea hospital.
        
    12. There was no movement of the deceased's body in the boat on the way to Vunisea hospital.
        
    13. The deceased was pronounced dead on arrival at Vunisea hospital on 25th December 2013.
        
    14. When Uraia and others were about to leave for the Vunisea Police Station, Uraia saw the kitchen knife used for stabbing inside the boat.
        
    15. He uplifted the kitchen knife from the boat and handed it over to Constable 2174 Viliame who was the station orderly at the Vunisea police station on 25th December 2013.
        
    16. On receipt of the kitchen knife from Uraia at Vunisea police station, Constable Viliame handed to the Crime Officer namely A/Sgt. Moape Tau.
        
    17. On 27th December 2013 the deceased's wife, Sokoveti identified the body of the deceased to be the husband's at the Vunisea hospital.
        
    18. That the accused was interviewed under caution on 27 December 2013 and formally charged on the 9th day of January 2014.
        
    19. That a post mortem was conducted on the deceased on 25th December 2013 by Dr. Avikali Mate.
        
    20. That the deceased died of Excessive Blood Loss due to a lacerated right ventricle due to a penetrating traumatic injury.
        
22. To prove the offence of Murder, the following elements must be proved beyond reasonable doubt;
    
    1. the accused
    2. engaged in a conduct
    100. that conduct caused the death of Savenaca Tuinabuli
    4. accused intended to cause the death of Savenaca Tuinabuli,

or

accused was reckless as to causing the death of Savenaca Tuinabuli by the conduct

23. The first element of the offence is concerned with the identity of the person who committed the offence. In this case, the identity of the accused is not disputed.
    
24. To engage in a conduct is to do an act which is the product of the will of the accused. It is not disputed that the accused stabbed the deceased. However, you should be satisfied beyond reasonable doubt that this act of stabbing is a product of the will of the accused and it was not accidental. In this case you heard evidence to the effect that the accused had consumed liquor prior to the act of stabbing. It is a matter for you to decide whether the accused was affected by alcohol at that time and the degree of that intoxication. Law says that, in deciding whether a particular conduct is accidental, voluntary intoxication may be taken into account. In order to prove the second element, the prosecution has to prove beyond reasonable doubt that the act of stabbing is deliberate and not accidental.
    
25. When you deal with the issue whether the conduct of the accused caused the death of the deceased you should remember that, in law, the act of the accused need not be the sole or principal cause, but the act should significantly contribute to the death. Therefore, if you are satisfied beyond reasonable doubt that the accused's conduct significantly contributed to the death of the deceased, that is sufficient to satisfy the third element above.
    
26. With regard to the fourth element which concerns the state of mind of the accused, the prosecution should prove beyond reasonable doubt either, the accused intended to cause the death of the deceased or that the accused was reckless as to causing the death of the deceased. The prosecution should prove only one of the two limbs of this forth element. It is not possible to have direct evidence regarding a person's state of mind as no witness can look into the accused's mind and describe what it was at the time of the alleged incident. However, you can deduce the state of mind of an accused from the facts and circumstances you would consider as proved.
    
27. In order for you to conclude that the accused intended to cause the death of the deceased, you should be sure that he meant to bring about the death or that he was aware that death will occur in the ordinary course of events as a result of his conduct. You should consider all the evidence and draw appropriate inferences to ascertain whether the accused had the intention to cause the death of the deceased.
    
28. However, when you consider whether the accused had the intention to cause the death of the deceased you should consider the effect of the alcohol upon the accused which he says he consumed by the time he stabbed the deceased. Intoxication by alcohol is a relevant matter to be taken into account in determining whether the accused formed the intention to kill the deceased. Whether the accused was affected by alcohol at the relevant time and the degree of that intoxication are matters for you to decide. A drunken person may still be capable of forming the necessary intention to commit an offence. You should ask yourselves the question, whether you are sure that the accused did form the intention to cause the death of the deceased although he was drunk. A consideration as to whether he would have done what he did had he been sober, will not assist him. Drunkenness may only weaken one's power to resist the temptation to carry out an intent. A drunken intention is in fact an intention.
    
29. In the event you find that the accused did not have the intention to kill the deceased or you are not sure whether he had that intention, you should then consider whether the accused was reckless as to causing the death of the deceased. The accused was reckless with respect of causing the death of the deceased, if;
    
    1. He was aware of a substantial risk that the death will occur due to his conduct; and
       
    2. Having regard to the circumstances known to him, it was unjustifiable for him to take the risk.
       
30. What you have to consider with regard to this particular state of mind is whether the accused did foresee or realise that death was a probable consequence or the likely result of his conduct; and yet he decided to go ahead and engage in the conduct regardless of that consequence. Accused must foresee that death was a probable consequence or the likely result of his conduct and after realising that, if he decided to go ahead and engage in that conduct regardless of the likelihood of death resulting, then he was reckless as to causing the death of the deceased. In order to constitute the offence of murder by recklessness, actual awareness of the likelihood of death occurring must be proved beyond reasonable doubt.
    
31. Again, when you consider whether the accused was reckless as to causing the death of the deceased, you should consider the effect of alcohol upon the accused which he says he consumed by the relevant time. Intoxication by alcohol is a relevant matter to be taken into account in determining whether the accused had the knowledge that death was a probable consequence of his conduct and he decided to go ahead with the conduct, regardless of that consequence. As I mentioned earlier, a drunken person may still be capable of forming the necessary state of mind to commit an offence. You should ask yourselves the question, whether you are sure that the accused decided to go ahead with his conduct, having realised that death was a probable consequence, although he was drunk.
    
32. If you are sure that all the necessary elements of the offence of murder have been proved beyond reasonable doubt, then you must consider the defence of provocation. As provocation has been raised as a defence, the prosecution should prove beyond reasonable doubt that the accused was not acting under provocation when the accused stabbed the deceased. If you find that the accused stabbed the deceased as a result of provocation or if you have a reasonable doubt that when the accused stabbed the deceased, accused may have been acting under provocation; then, even though you are satisfied that all the other elements of the offence of murder have been proved beyond reasonable doubt, you should find the accused not guilty of murder; but guilty of manslaughter. Provocation reduces the culpability of an accused from murder to the lesser offence of manslaughter.
    
33. If an accused does the act which caused the death of the deceased in the heat of passion caused by sudden provocation and before there was time for the passion to cool, then the accused is guilty of manslaughter.
    
34. In this case, 'provocation' means any wrongful act or insult of such a nature as to be likely when done to an ordinary person to deprive such ordinary person of his power of self-control and to induce him to commit an assault of the kind which the accused committed on the deceased. When I say 'ordinary person', you should think of an ordinary sober person of the accused's age who has ordinary powers of self-control expected from a person of that age. Question of drunkenness is irrelevant to this defence.
    
35. The source of provocation can be just one incident or can comprise of several incidents. In this case, the defence says that there were several incidents in the past which contributed to the loss of self-control on the day of the incident. It is a matter for you to decide to what extent you would consider the past history when you consider the issue of provocation.
    
36. You should also remember that it is not up to the accused to prove that he was provoked and it is for the prosecution to prove beyond reasonable doubt that the accused was not acting under provocation when he committed the offence.
    
37. The offence of manslaughter has the same first three elements of murder. But it is an offence having a lesser culpability than murder. The distinction between the two offences is found in the fourth element which concerns the state of mind of the accused. When it comes to the offence of manslaughter, what is required to be proved is that the accused intended or was reckless as to the risk, that the conduct will cause serious harm. Further, evidence of voluntary intoxication cannot be considered in determining the state of mind of an accused concerning a manslaughter charge.
    
38. When an accused is charged for murder as in this case, and when you consider the state of mind of the accused, you are not sure that the accused intended or was reckless as to causing the death, but you are sure that the accused intended or was reckless as to the risk that the conduct will cause serious harm, then it is open for you to find the accused not guilty of murder; but guilty of manslaughter even though the accused is not charged for manslaughter.
39. Now let me direct you on how to deal with the cautioned interview and the charge statement of the accused which were tendered as exhibits. The cautioned interview of the accused was tendered by the prosecution as PE3A and the English translation as PE 3B. The accused says that he did not make the admissions recorded in that statement in answer to questions 101 and 140. Therefore, it is a matter for you to decide whether he made those admissions and whether those admissions are true. If you are not sure that the accused made the admissions recorded in answer to questions 101 and 140 then you should disregard those admissions. If you are sure that those admissions were made by the accused, then you should consider whether those admissions are true and what weight you should give to those admissions. The accused did not dispute the rest of the contents in his cautioned interview. Therefore, with regard to the rest of the contents, what weight you choose to give is a matter for you.
    
40. The prosecution also tendered the charge statement of the accused as PE2A and the English translation as PE2B. Accused did not dispute the contents of the charge statement. Again, what weight you choose to give the contents of the charge statement is a matter for you.
    

Case for the prosecution

41. The first prosecution witness Sokoveti Tuinabuli said, on 25/12/2013 her husband Savenaca Tuinabuli ("deceased"), was drinking in their house at Waisomo with the accused, Sireli, Sailasa and Apolosi from around 7.30am. She said that the accused and the deceased started to quarrel and subsequently the accused started swearing at the deceased. Then the accused left the house and went towards his village which is Natumua. The deceased chased the accused but couldn't catch him. She was also following the deceased. When they were at the Natumua village, the accused came and punched the deceased. The accused's uncle, Manueli Navono then stopped the fight and chased the accused. Then she came back towards Waisomo with the deceased. On their way the deceased stopped at Epeli's house for breakfast where she went to her house to see the children. After 2 minutes she ran back towards Epeli's house as she heard a shout from that house. As she was approaching Epeli's house, she saw the accused running after the deceased with a kitchen knife. Just as she came closer to the two, she saw the accused stab the deceased on the left side of his chest. The accused then ran away leaving the knife on the deceased's body. She said the deceased walked 3 steps with the knife, then pulled the knife out and walked another 5 steps and he fell on the ground. She took steps to take the deceased to the Vunisea Hospital. She identified the knife which was used to stab the deceased and it was tendered as PE 1.
    
42. Under cross examination, she said the distance between Waisomo and Natumua is the distance between the Court and the Holiday Inn. She said the deceased and others were drinking rum that morning, and she does not know whether they were drinking before they came to her house at 7.30am. She said, before the accused ran off to Natumua, he uttered a swear word to the deceased concerning mother. She said the deceased wanted to catch the accused because, the accused continued to swear at the deceased whilst running towards Natumua. She denied the suggestion that the deceased punched the accused at Natumua while the accused was lying down. She said the reason she followed the accused and the deceased was because she knew that the fight was not over and because the deceased was very drunk. She said the deceased was angry because the accused was swearing at him. She first said that the deceased did not swear at the accused, but when she was shown her statement made to the Police, she admitted that the deceased also did swear at the accused using the same swear word the accused used.
    
43. In re-examination, she said when she was coming towards Epeli's house after she heard the shouting, she saw the deceased and the accused beside one corner of Epeli's house.
    
44. Second prosecution witness was Kelera Tabuarua. She saw the accused and the deceased following each other in the morning on 25/12/13 and she said they were swearing at each other. Thereafter, while she and her husband were having tea they saw the deceased and Sokoveti coming towards their house and Epeli invited the deceased to have tea. While she was preparing the breakfast there was a noise and when she came out, she heard Epeli telling the deceased to be careful, as the accused is having a knife. She said Epeli was telling the accused to drop the knife. She said that the accused was trying to strike the deceased, but the deceased was avoiding the knife. When at one point the deceased moved back and was trying to hide behind the Ivi tree in their compound, Epeli gave a bamboo stick to the deceased to protect himself from the accused. She said the deceased was really drunk at the time. The deceased tried once to poke the accused with the bamboo and it fell from his hands. Then the deceased ran towards their house and the accused ran behind him. Just as the deceased turned to check on the accused, the accused was right next to him and then the accused stabbed the deceased once. Then the accused ran towards Natumua, leaving the knife on the deceased's body.
    
45. Next witness was Epeli Tabuarua, the husband of the second prosecution witness. While he was waiting to have his breakfast on 25/12/2013, he heard someone shouting and he ran outside to check. He said the accused was swearing at the deceased and they were chasing each other to Natumua. After about ten to twenty minutes he saw Sokoveti and the deceased coming towards his house. He told his wife to make breakfast for the deceased. While they were waiting till the breakfast is prepared, the accused came towards his house from Natumua and the accused was swearing. The deceased went towards the accused and wanted to have a fist fight and the accused attacked the deceased with a knife. He yelled at the accused to drop the knife. Accused did not drop the knife. The accused and the deceased were moving around trying to fight with each other. At one point the deceased ran and hid behind the Ivi tree. At this time he gave the bamboo stick which was used for the clothes line to the deceased to protect himself from the accused. The deceased then speared the accused with the bamboo but it did not hit the accused. He said after that, the deceased ran towards the back of his house. The accused ran after the deceased. The deceased then paused just beside his house and looked at the accused. At this point, he ran towards the accused to get hold of him. The accused then ran towards Natumua, and at the same time, deceased's wife yelled saying that the deceased has been stabbed. He then ran after the accused and punched him.
    
46. During cross examination he said that in August 2013, he had to go and present 'bulubulu' and seek forgiveness from the accused's parents on behalf of the deceased and his brother. He said at that reconciliation, both brothers said there will be no more fights but he heard that after 2 months the deceased's brother, Seci, assaulted the accused at Vunisea. He also heard that the accused was hospitalised for 2 days following that assault. He said the bamboo stick was about 6 feet long and it was on the ground near the Ivi tree when he tried to grab the accused from behind. He said when the deceased speared the bamboo at the accused, it could not have caused a big injury because the deceased was very drunk. He did not know whether the accused was drunk or not. He also said that he did not see the actual stabbing.
    
47. During re-examination he said he tried to grab the accused because he did not want the accused to use the knife on the deceased.
    
48. Police Witness Moape Tau gave evidence and said that he was the investigating officer of the case. He tendered the charge statement of the accused. The iTaukei version was tendered as PE2A and the typed English version as PE2B. He conducted the cautioned interview of the accused and the original interview which was recorded in iTaukei language was tendered as PE3A and the English translation was tendered as PE3B. He read PE3B in Court.
    
49. During cross examination he said the accused was capable of understanding the nature of the interview. He said the deceased's brother, Seci, was charged and was bound over for 2 years concerning the assault on the accused in November 2013.
    
50. The final prosecution witness was Doctor Avikali Mate. She conducted the post mortem examination of the deceased on 27/12/13 and she tendered her report as PE4. She said the cause of death was excessive blood loss due to the injury caused to the lower chamber of the heart which could have been caused by a kitchen knife. According to her, this type of an injury would result in the death of the individual even though first aid is given as Fiji does not have the facilities to repair such an injury. She was not cross examined.
    

Case for the Defence
54. At the end of the prosecution case you heard me explain several options to the accused. He had those 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 chose to give sworn evidence and to call witnesses.

55. The accused said that around 12.00am on 25/12/13 he started drinking with one Tevita and his cousin at Natumua. The deceased also joined later. He said initially he did not want to drink as he was building his house at that time. After they consumed four 'half bottles' of rum, he left to go home. The deceased followed him and asked him whether he has money to go to Vunisea. He then sold three bundles of grog to the grog shop and got $350. Then they went to "Tutu Bai" at Vunisea and drank there. Thereafter they came back to Natumua and started drinking at one Isoa's house. At that place, the deceased started growling at him, and started to talk about their fights. Then he wanted to leave but the deceased came and hugged him and suggested him to go to Waisomo. Then they got on a boat and again drank on their way. When they reached Waisomo, they went to the deceased's house and continued drinking the two 40oz Rum bottles they bought from Vuinisea that morning. He said there was an argument between the deceased and one Masi where he was preventing the deceased from reaching Masi. Masi then ran away and the deceased followed Masi. He and Apolosi went behind the deceased. Then the deceased started swearing at Masi near the church steward's house and Apolosi pulled the deceased. At this point they fell on the steps and the deceased punched him. He then stood up and swore at the deceased and left for Natumua. He was walking very fast but the deceased and Apolosi came behind him and he could hear swears. He said he only saw Sokoveti when they were close to Natumua. At Natumua, deceased and Apolosi came to the place where he was lying down on bricks. There he had a fist fight with the deceased. He ran from there when his uncle Manueli Navonu came with a stick. He said he was frightened that the deceased will punch him when he heard swears. So he ran home, took the kitchen knife and ran back to the deceased. He said he took the knife to hurt the deceased but not to kill him. He could only see the deceased, but could hear screaming and yelling inside his ears. He started striking the deceased with the knife where the deceased was moving backwards. When he came near an Ivi tree, the deceased threw a bamboo stick at him and he ducked. He said after the deceased speared the bamboo at him, they bumped into each other.

56. He first said that the deceased was standing when the deceased threw the bamboo, then again he said the deceased was running before he threw it. He also said the deceased was at the upper side of the slope and he was at the lower side when the deceased came running towards him. He said the last thing he could recall is that they collided with each other. Then he can remember being assaulted by the villagers. He said he became unconscious when he collided with the deceased and when he woke up, he saw his mother touching his face and he passed out again. He couldn't recall what happened to the knife or who assaulted him. He said, after that he could remember being in the cell. Then he said he can recall being taken to Natumua before that. He said at Natumua his mother was wiping his face because there was blood due to injuries on his face. Then he was taken to the Vunisea Police Station in a police vehicle. He said he did not know what happened to the deceased until he over-heard a police woman saying "Suli doesn't know that Save had passed away".

57. He said he got angry when the deceased swore at him on the way to Natumua because his relatives and other people were around. He said he was assaulted by the deceased in August 2012, August 2013 and on the day of the incident. Deceased's brother Seci assaulted him in November 2013. He said, as he had mentioned in his answer to question 53 of his cautioned interview, because he had a relationship with deceased's sister, the deceased and deceased's brother Seci always punched him and threatened him whenever they meet him. This continued even after the reconciliation. He said he did not give the answer at question 101 of his interview. He said he did not want to kill the deceased but thought of only injuring the deceased. He also said he did not give the answer to question 140 as it was just the doctor's version.

58. During cross examination he said the police told him to start his story from 7.00am on the day of the incident and not from the time he was awaken around 12.00am. He said, after the interview he wanted the police to read back the statement to him, and after it was read, he confirmed that it is his statement as recorded in questions and answers 153 and 154. He said he swore at the deceased because the deceased punched him. He admitted that the deceased asked him to stop so that the two of them can converse, but he kept on running. He said though it is not written in his cautioned interview, he did lie down on a pile of bricks when he went to Natumua. He said he did not see his mother when he went inside his house to take the knife. He said when he came out from his house with the knife he could hear people talking but he did not see them. He said he did not want to kill the deceased and he just wanted to injure him. He said when the deceased speared the bamboo at him, they collided at the corner of the house. When it was suggested to him that he ran after the deceased and when the deceased turned he was right next to him, he said the only thing he knew was that they collided. Then again when it was suggested to him that when the deceased turned, he stabbed the deceased, he said "yes". He said he stopped the relationship with the deceased's sister because the deceased repeatedly assaulted him and that he started hating the deceased because of the assaults. He admitted that the last time the deceased assaulted him was in August 2013. He also admitted that the deceased died as a result of his stabbing.

59. In re-examination when he was asked by his counsel what caused him to stab Savenaca he said, "he had come to the village, spoke against me, spoke stuff about me in front of my cousins, he swore at me when my cousin sisters heard. I was angry".

60. The second defence witness was Elenoa Buasali. She said she met the accused on 25/12/2013 around 8.00am and she saw one Masi and Apolosi who had been drinking with the accused, pulling the accused into a boat when the accused was telling them that he had enough and he want to sleep. She also related to an incident in November same year where Seci assaulted the accused when the accused was speaking to a girl named Ulamila. She said as a result of the assault, the accused became unconscious and there was blood all over his face.

61. Next witness was one Jekesoni Rasai. Both the accused and the deceased are his cousins. He said the two always fight when they get drunk. On 25/12/13 morning he was awaken by a conversation between the accused, Apolosi and Masi. Masi and Apolosi wanted to get some more drinks where the accused was saying he had enough. Then they pulled the accused into a boat and left. He said they were talking about going to Waisomo. Again he saw the accused that day when the accused came running from Waisomo towards Natumua where the deceased was chasing the accused. He said they were arguing. There was a scuffle between the two at Natumua until his uncle, Manueli Navono intervened. Thereafter, he was told by his uncle to follow the accused to Waisomo. Near Epeli's house he saw Epeli giving a bamboo to the deceased and the deceased speared that bamboo at the accused.
    
62. The fourth defence witness was Nemani Vesavesa. He is related to both the accused and the deceased. On 25/12/13 he saw the deceased chasing the accused. He said the deceased was swearing at the accused using swear words concerning mother, father and the cast. He said the accused just laughed and ran away when his uncle tried to whack him with a stick.
    
63. During cross examination he said he only heard the deceased swearing at the accused.
    
64. The final witness for the defence was Emi Logaivau, accused's mother. She recalled an incident in August 2013 where the accused came home with injuries and the accused told her that he was punched by the deceased. She called the police. She said the deceased and his brother presented yaqona to her husband as reconciliation on that day. In November 2013, she recalled visiting the accused in the hospital after being assaulted by Seci. On the day the accused stabbed the deceased, before entering the house, the accused asked about his younger brother, Manu. Then he came inside and took the knife which was on the sink and went out. She followed him. When she reached Waisomo, she saw Epeli punching the accused.
    

Analysis

65. The prosecution says that the accused is guilty of murder as the accused had the intention to cause the death of the deceased, Savenaca Tuinabuli and the accused was also reckless as to causing the death of the deceased. According to the prosecution this is a case of revenge and not of provocation.
    
66. Defence says that the accused stabbed the deceased as a result of provocation and therefore the accused should be convicted for manslaughter and not murder.
    
67. As I mentioned earlier, there is no dispute with regard to the identity of the accused.
    
68. With regard to the second element, 1st and 2nd prosecution witnesses said that they saw the accused stab the deceased at the corner of Epeli's house after chasing the deceased. The accused initially said in his examination in chief that, after the deceased threw the bamboo at him, he and the deceased bumped into each other and the next thing he remember is being assaulted by the villagers. You would find that the accused had admitted in the agreed fact No. 10 that he stabbed the deceased. There are answers given by the accused during his cautioned interview which was tendered as PE3A and PE3B and in his charge statement tendered as PE2A and PE2B in relation to this issue whether the stabbing was accidental or whether it was a product of his will. Based on what evidence you may decide to accept, you should consider whether the prosecution has proved beyond reasonable doubt that the conduct of stabbing the deceased with the kitchen knife was a deliberate act done by the accused. If you are not sure that this element is proved, then you should find the accused not guilty of murder and the matter ends there.
    
69. If you are satisfied that the second element above has been proved beyond reasonable doubt, then you should consider the third element which is; whether the conduct of the accused caused the death of the deceased. As I mentioned to you, if you are sure that the conduct of the accused significantly contributed to the death of the deceased, this element is established. There was evidence that the accused stabbed the deceased on the left side of the chest. Dr. Mate who was not cross examined by the defence said that the injury found in the heart of the deceased which could be caused by a kitchen knife was fatal. According to the agreed fact No. 20, it is admitted that the deceased died of excessive blood loss due to a lacerated right ventricle due to a penetrating traumatic injury. During cross examination, the accused admitted that the deceased died as a result of him stabbing the deeased. Based on the evidence you may decide to accept, you should consider whether the prosecution has proved beyond reasonable doubt whether the conduct of accused caused the death of the deceased. If you are not sure, then you should find the accused not guilty of murder and the matter ends there.
    
70. If you are satisfied that the prosecution has proved the third element beyond reasonable doubt, then you should consider whether the prosecution has proved either the accused intended to cause the death of the deceased or whether the accused was reckless as to causing the death of the deceased.
    
71. Prosecution Witness Sokoveti said that the accused started swearing at the deceased after the two had a quarrel. As mentioned before, there is evidence that the accused stabbed the deceased on the left side of the chest, he left the knife on the deceased body and ran away. After his encounter with the deceased at Natamua he went to his house to get the kitchen knife and came to Waisomo to confront the deceased. There was evidence that the accused continued to attack with the knife when the deceased tried to hide behind an Ivi tree and then when the deceased ran towards Epeli's house the accused chased the deceased and finally stabbed the deceased on the chest.
    
72. There was evidence that the accused had been drinking. The accused said in his evidence that he brought the knife to hurt the deceased but not to kill him. He gave evidence to the effect that he cannot remember stabbing the deceased. However, he had given a detailed account of what happened on the day of the incident, in the cautioned interview. There are answers recorded in PE3A (& PE3B) and in PE2A (& PE2B) which are relevant to the accused's state of mind at the time of the incident. Let me remind you that though the answer the accused had given to question 101 of the cautioned interview may be directly relevant in determining this element, you should only consider that answer in your deliberations only if you are sure that the accused made that admission and that it is true.
    
73. Considering all the evidence you may decide to accept, you should decide whether you are sure that the prosecution has proved that the accused intended to kill the deceased or whether you are sure that the accused was reckless as to causing the death of the deceased.
    
    1. If you are not sure that the accused intended to cause the death and not sure that the accused was reckless as to causing the death then you should find the accused not guilty of murder and consider whether he is guilty of the lesser offence of manslaughter;
       
       • (i) Accordingly, you should consider whether the accused either intended or was reckless as to the risk that his conduct will cause serious harm to the deceased. If you are not sure that the accused intended to cause serious harm and not sure that he was reckless as to the risk that his conduct will cause serious harm, then you should find him not guilty of manslaughter as well.
         
       • (ii) If you are sure that the accused intended to cause serious harm or you are sure that he was reckless as to the risk that his conduct will cause serious harm, then you should find him guilty for manslaughter.
         
    2. In the event you are sure that accused intended to cause the death although he was drunk or if you are sure that he was reckless as to causing the death of the deceased although he was drunk, then you should consider whether the prosecution has proved that the accused was not acting under provocation.
       
       • (i) If you find that the accused was acting under provocation or you have a reasonable doubt that he may have been provoked, even though you are sure that the prosecution has proved all the required elements of murder, you should find the accused not guilty of murder and should find him guilty of manslaughter.
         
       • (ii) If you are sure that the prosecution has proved that the accused either intended or was reckless as to causing the death of the deceased and you are also sure that the accused was not acting under provocation, then you should find the accused guilty of murder.
         
74. When you deal with the defence of provocation, you should ask yourselves four questions.
    
75. First question you should ask yourselves is; was a wrongful act or insult done by the deceased towards the accused.
    
    • - According to the manner in which the defence of provocation is raised in this case, the provocative act was the swear words used by the deceased at Natumua in front of accused's cousins.
      
76. Second question is whether that act or insult caused the accused to lose self-control.
    
    • - In his examination in chief, the accused said that he was frightened of being 'punched by the deceased' when he heard the deceased swearing at him at Natamua. On this, the defence asks you to consider the past history where the accused was repeatedly assaulted by the deceased over a relationship the accused had with the deceased's sister. During re-examination the accused said that when the deceased came to his village and spoke against him in front of the cousins and swore at him in front of his cousin sisters, he was angry.
      
    • - According to 4th Defence Witness Nemani Vesavesa, the deceased used swear words concerning mother, father and low cast. Accused said that there was a brief fight till his uncle intervened. This was the final encounter with the deceased before the accused went home and picked the knife. According to the Witness Nemani Vesavesa, when accused's uncle came with a stick, the accused just laughed and ran away.
      
    • - You may consider what the accused said or did after the alleged act or insult of the deceased, when you look for the answer to this question.
      
77. Third question is; was or may that conduct of the deceased had been such as to cause an ordinary and sober person of the accused's age to commit the assault on the deceased in the manner which the accused did?
    
    • - An ordinary person as I explained before would be simply a person who has the powers of self-control to be expected of an ordinary, sober person who is of the accused's age. Therefore, you should consider whether, the nature of the assault carried out was proportionate to the act done or insult offered considering the standard of a 25 year old ordinary sober person.
      
78. Fourth and final question in relation to the issue of provocation is; was the act which caused the death was done in the heat of passion caused by sudden provocation and before there was time for the passion to cool.
    
79. I must again remind you that even though an accused person gives evidence, he does not assume any burden of proving his case. The burden of proving the case beyond reasonable doubt remains on the prosecution throughout. Accused's evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
    
80. You must remember to assess the evidence for the prosecution and defence using the same yardstick but bearing in mind that it is always the prosecution who should prove the case.
    
81. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise:
    
    • (i) You may believe him and, if you believe him, then your opinion must be that the accused is 'not guilty'.
      
    • (ii) Without necessarily believing him you may think, 'well that might be true'. If that is so, it means that there is reasonable doubt in your mind and therefore, again your opinion must be 'not guilty'.
      
    • (iii) The third possibility is that you reject his evidence. But if you disbelieve him, that itself does not make him guilty of the offence charged. The situation would then be the same as if he had not given any evidence at all. You should still consider whether prosecution has proven the case beyond reasonable doubt. If you are sure that the prosecution has proven all the necessary elements, then your proper opinion would be that the accused is 'guilty' of the offence charged.
      
82. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
    
83. Your possible opinions are;
    

Murder – guilty or not guilty

Manslaughter – guilty or not guilty

84. Any re-directions?
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Muskits Law, Suva