State v Prasad - Summing Up [2016] FJHC 41; HAC80.2014 (27 January 2016)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 80 OF 2014

STATE

-v-

NEETIN AJESH PRASAD

Counsel : Mr S. Nath for the State
Mr W. Pillay for the Accused

Dates of Trial : 18th January 2016 – 25th January 2016
Date of Summing Up : 27th January 2016

SUMMING UP

Ladies and Gentleman Assessor,

1. We have now come to the final phase of this trial. It is now my duty to sum up this case to you. I will direct you on matters of law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express any opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact.
   
2. You must take into account the manner in which the witness gave evidence. Was he/she evasive? How did he/she stand up to cross examination? You are to ask yourselves, 'was the witness honest and reliable?'.
   
3. When you have decided the truthfulness and reliability of evidence, then you can use that credible evidence to determine the questions of facts, which you have to decide in order to reach your final conclusion, whether the Accused is guilty or not to the charge. You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your own opinion as to whether the Accused person is guilty or not guilty.
   
4. A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the primary facts or circumstances as revealed from evidence before you and of any legitimate inference which could be drawn from those given sets of circumstances. You as Assessors, in determining a question of fact, should utilize your commonsense and wide experience which you have acquired living in this society.
   
5. In determining questions of fact, the evidence could be used in the following way. There are two concepts involved here. Firstly, the concept of primary facts and secondly the concept of inferences drawn from those primary facts. Let me further explain this to you. Some evidence may directly prove a thing. A person who saw, or heard, or did something, may have told you about that from the witness box. Those facts are called primary facts.
   
6. In addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from the set of primary facts which you find to be established by the evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else also occurred. That will be the process of drawing an inference from facts. However, you may only draw reasonable inferences; and your inferences must be based on facts you find proved by evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition or in guessing.
   
7. You will not be asked to give reasons for your opinions but merely your opinions themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that they will carry a great weight when I deliver my judgment.
   
8. As a matter of law, I must direct you that the onus or burden of proof lies on the Prosecution throughout the trial and it never shifts. There is no obligation on the Accused person to prove his innocence. Under our criminal justice system an Accused person is presumed to be innocent until he is proved guilty.
   
9. The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of Accused person's guilt before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion that he is not guilty.
   
10. Your decisions must solely and exclusively be based upon the evidence which you have heard in this Court and upon nothing else. You must disregard anything you might have heard about this case outside of this Courtroom. You must disregard them and your opinions should only be based on the evidence given in this Courtroom.
    
11. Your duty is to find the facts based on the evidence, apply the Law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.
    
12. The evidence is what the witnesses said from the witness box, the documents, the things received as prosecution or defence exhibits and any admissions made by the parties. Statements, arguments, questions and comments by the Counsel are not evidence. A thing suggested by a Counsel during a witness's cross- examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening and closing submissions made by both Counsels are not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you. 

    
13. Documentary evidence is important in this case. Prosecution tendered three documents in evidence; the cautioned interview, the charge statement of the Accused and the medical report of the doctor. You can take into account the contents of those documents. In the cautioned interview statement PE.1, Accused had partially admitted the allegation when he was interviewed on the 5th and 6th of June 2014. It is for you to assess what weight should be given to this document. If you are not sure, for whatever reason, that the partial confession is true, you must disregard it. If, on the other hand, you are sure that it is true, you may rely on it. To ascertain the truthfulness of the cautioned interview statement, you can compare it with other evidence led in the trial. You decide what weight you give to that evidence.
    
14. Expert evidence is also important to be borne in mind. Usually, witnesses are not allowed to express opinions. They are allowed to give evidence on what they have seen, heard or felt by physical senses only. The only exception to this rule is the opinions of experts. Experts are those who are learned in a particular science, subject or a field with experience in the field. They can come as witnesses and make their opinions expressed on a particular fact to aid Court for us to decide the issue or issues before Court on the basis of their learning, skill and experience.
    
15. The doctor in this case, came before Court as an expert witness. He, unlike any other witness, gave his opinion based on examination of the victim. If you believe that the medical report he perused to refresh his memory contained contemporaneous recordings made by the doctor at the relevant time upon examination of the victim, then you can act on such evidence. Part 'D 10' of the medical examination form refers to the history related to the doctor by the victim. You may disregard that portion of evidence as the Prosecution did not elicit that evidence of what she told the doctor from the victim. All other evidence including his observations and the diagnosis may be considered when coming to your decision.
    
16. However, doctor's evidence is not accepted blindly. You will have to decide the issue before you by yourself and you can make use of doctor's opinion if his reasons are convincing and acceptable to you; and, if such opinion is reached by considering all necessary matters that you think fit. In accepting doctor's opinion, you are bound to take into account the rest of the evidence led in the trial.
    
17. The parties consented to have the charge statement of the Accused to be treated as "agreed fact" of the case. The agreed facts are part of evidence.
    
18. You should accept that agreed fact as accurate and truth. They are of course an important part of the case. The agreement of these facts has avoided the calling of number of witnesses and thereby saved a lot of time of this Court.
    
19. Now I draw your attention to the information with which the Accused is charged. You have a copy of the information with you. The Accused is charged with one count of Attempted Murder. The particulars of the offence say that the Accused attempted to cause the death of his wife Irene Rita Raju by hacking her with a cane knife.
    
20. For the Accused to be found guilty of Attempted Murder, the Prosecution must prove the following elements beyond reasonable doubt.
    

I. The Accused;

II. Had the intention to kill the victim;

III. With that intention he did something which was more than mere preparation to killing her.

21. You decide whether the Accused intended to kill Irene Rita Raju. People don't usually write down what they are intending to do, so you must discern his intention from the circumstances established by evidence. You decide intent by considering what the Accused did or did not. You should look at his actions before, at the time of and after the act. The weapon used, the number of injuries inflicted, the place of the body where the injuries were inflicted, all these things may shed light on the intention of the Accused at the crucial time when the injuries were caused to the victim.
    
22. The Prosecution must also prove that with the intention to kill, the Accused did something which was more than mere preparation of the offence. In this case it is the Prosecution case that the Accused attempted to kill Irene Rita Raju by striking her with a cane knife which amounted to more than mere preparation for the offence. If you accept that the Accused did this, he did something more than mere preparation.
    
23. What happens if you find that the Accused struck her with a cane knife and wounded the victim, but you find that he did not have the intention to kill her? Then you are entitled to look at the lesser alternative offence of Act with Intent to Cause Grievous Harm although the Accused is not formally charged for that offence.
    
24. To find the Accused guilty of the offence, Act with Intent to Cause Grievous Harm, Prosecution has to prove the following elements beyond reasonable doubt.
    

I. The Accused

II. With intent to cause some grievous harm

III. To the Complainant

IV. Unlawfully wounds her by any means.

25. As I mentioned before, you decide the intent of the Accused by considering what the Accused did or did not. His actions before, at the time and after the act, the weapon used, the number and the injuries caused and also the place of the body where the injuries were inflicted.
    
26. Unlawfully means simply without lawful excuse. Grievous harm means and includes any dangerous harm to the body.
    
27. If you find that the Accused is guilty of the offence of Attempt to Commit Murder, you need not go on to consider a lesser offence. However, if you find the Accused not guilty of the offence of Attempt to commit Murder because the intention to kill was not proved beyond reasonable doubt, then you may go on to consider if he is guilty or not guilty of the lesser offence of Act with Intent to Cause Grievous Harm.
    
28. Apart from the elements of the offence, the identity of the person who alleged to have committed the offence is very important. There must be positive evidence beyond reasonable doubt on identification of the Accused-person and connect him to the offence that he is alleged to have committed.
    
29. Now I draw your attention to the salient evidence led in the trial and remind you of the Prosecution and defence cases. In doing this, it would not be practical for me to go through the evidence of every witness in detail and repeat every submission made by Counsel. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence or a particular submission of Counsel that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.
    

Case for the Prosecution

Evidence of DC Amendra Gupta

30. DC Gupta was called as the first witness for the Prosecution. He is the Police Officer who conducted the cautioned interview of the Accused.
    
31. When he was based at the Nadi Police Station, he started the cautioned interview of the Accused on the 05th June 2014 and continued it to the following day at the Crimes Office. Accused was mentally and physical fit to face the interview. He did not receive any complaint from the Accused before or during the interview to which the Accused cooperated. Accused answered the questions voluntarily.
    
32. Accused was given his constitutional rights, Judge's Rules were followed and adequate rest time was given during the interview. Accused was not assaulted, threatened or coerced nor was any inducement offered. Record of the interview which he read in evidence was marked as Prosecution Exhibit 1.
    
33. Under cross examination, he denied that the Accused was not fit to be interviewed after sleepless work shift. When he was asked about the knife and other exhibits that were allegedly taken into custody during the investigation, he admitted that he was unable to tender them in evidence as those exhibits were handed over to the Investigating Officer. He was not sure if the knife was owned by the Accused. However, referring to the interview, he later admitted that the Accused had not brought the knife to the scene.
    
34. Referring to the interview statement, DC Gupta told us what the Accused had told Police about the dispute accused was having with his wife over the denial of access to children and the suspicion that had aroused in him about her having an affair with her uncle's son.
    
35. DC Gupta admitted that the Accused, at the interview, had told Police that he had no intention to strike his wife with the cane knife and he does not know what came to his mind at the particular point of time.
    

Evidence of Irene Rita Raju

36. Next witness for the Prosecution was Irene Rita Raju. She is the wife of the Accused and the victim of this case. She said that on the 5th of June 2014 her husband Neetin Prasad was trying to call on her phone but she did not answer. Then he came to her house at Nadovi and was having a talk with her. She said she can't recall what had happened to her after that. When she regained consciousness she was in the hospital. She admitted having given a statement to police when they visited her at home and having placed her thumb impression on the statement.
    
37. She further said that she did not want to give evidence and spoil his children's future. "I do not want to proceed with this case anymore and I want to withdraw my case" she said.
    

Evidence of Reena Devi

38. When Reena Devi was sitting in the porch of her house at Nadovi on the 5th of June 2014 around 9 a.m. with her daughter, Meenal Raju, she heard Neetin and Irene talking to each other in a normal way. From the porch where they were sitting, Irene's house which was situated within 7-8 meters distance was clearly visible.
    
39. Then Irene came to her place and asked for a phone to call her mother. Irene said that her phone and money were all inside the house and, because Neetin was inside she did not want to go inside. Then she left and was having a talk again with Neetin in a normal way.
    
40. After a short while, she heard Irene shouting asking for help. She told daughter, Meenal, 'it is normal thing they often do that, just leave it'. They heard a sound of a flat knife. Then Meenal went closer to have a better look.
    
41. Reena Devi first told us what she heard from her daughter, Meenal Raju, whilst she was watching the incident at Irene's place.
    
42. Meenal had seen Neetin pulling the hair of Irene while she was shouting. Neetin was holding a knife with blood and trying to hit it again. Meenal had told her, 'Neetin was cutting Irene', and pleaded her to go and save her. Then she ran to Irene.
    
43. Reena Devi then described what she saw when she arrived at Irene's place. Neetin was about to hit again. She (Reena) got hold of Neetin's hand. Irene's body was full of blood with cut injuries. Injuries were on her face, fingers, arms. Neetin was holding a thin, old cane knife.
    
44. In cross examination, Reena admitted that the actual hitting was not seen either by her or her daughter.
    

Evidence of Meenal Raju

45. Prosecution called Reena Devi's daughter, Meenal Raju, as the next witness. When Meenal was in the porch with her mother she heard an argument between Neetin and Irene. They ignored it because it was normal for them to argue. Suddenly, she heard Irene calling for help. Then she slowly moved on the porch to have a better look at Irene's house to see Irene was being dragged on the ground by her hair and blood dripping from the knife Neetin was holding. Then she called out her mother who went there and held Neetin and prevented him from hitting the 'final strike'. She described the knife as an old cane knife. Neetin's eyes were red and watery. He shook himself and ran away with the knife, like he was crying.
    
46. In cross examination, Meenal Raju admitted that she did not see any hitting with a cane knife.
    

Evidence of Lata Kumari

47. Lata Kumari was the next witness called by the Prosecution. She is the mother of the accused. On the 5th June, 2014, around 2 p.m., his son, Neetin, came to her house with a thin, old knife that is used to cut grass. She asked him who did the knife belong to. He did not say anything and wanted to have a shower. He only said that Irene was injured and he is going to police station. He did not say how Irene got injured. Then the police came. Neetin went with the police. He gave the knife to police and went with them saying sorry.
    

Evidence of Doctor Samuela

48. Doctor Samuela is a MBBS qualified doctor attached to CWM Hospital, Suva, with 7 years of experience. He obtained a Post Graduate Diploma in Surgery. When he was attached to the Lautoka Hospital as the Surgical Registrar, he had examined the victim of this case on the 5th of June, 2014 when she was referred to the Surgical Department. He examined the patient because the injuries were severe enough to need the assessment of the Surgical Registrar.
    
49. He noted multiple injuries on her body when specific wound examination was done in the operation theater and noted them down in her hospital folder. Police Medical Examination Form which he later tendered as PE. 2 was filled sometimes after surgery was done. Referring to the Medical Examination Form, doctor described his specific medical findings. On her head and face, there were 5 lacerations including a 10 cm. laceration on the back of the head with underlying open fracture of the scull caused by a blade of a knife which was fully penetrated through the skin into the skull. He described the multiple lacerations on both her hands, including the amputated ring finger, as 'defence wounds' which would have been resulted from her trying to protect herself from the knife.
    
50. Expressing his professional opinion, the doctor said that the severity of the injuries caused to the head and the hands showed that those injuries were intended to cause severe devastating effect and the possibility of death was evident.
    
51. Under cross examination, the doctor admitted that he filled out and signed the Medical Form on the 30th of July 2014, and the date he had put after the declaration part is incorrect. He said, by an oversight he had put a wrong date. Further explaining the process he followed he said that the wound notes were put on the patient's folder at the operation theater whilst doing the specific wound inspection on the 5th of June, 2014. The medical form was filled referring to those notes on the 30th of July, 2014. He did not rule out the possibility of having material difference in filling out process of the medical report. Doctor conceded that, by looking at the wounds, he can't really say the intention of the person who inflicted those injuries.
    
52. Under re-examination the doctor explained the types of material differences that could occur in the paraphrasing process. He emphasized that medical report and everything that is documented in it with regard to injuries are correct.
    
53. That was the case for the prosecution. You then heard me explain several options to the Accused. I explained to him that he could remain silent or give sworn evidence and call witnesses on his behalf. He could also address Court. He was given these options as those were his legal rights. He need not prove anything. The burden of proving his guilt rests on prosecution at all times.
    
54. Accused opted to remain silent. It is his right. You must not draw any negative inference and think that he offered no evidence and opted to remain silent because he is guilty.
    

Analysis

55. The Prosecution relied on the evidence of DC Gupta, Reena Devi, Meenal Raju, Lata Kumari, Doctor Samuela and his report, cautioned interview and the charge statement of the Accused to prove its case.
    
56. First of all, you must consider the evidence of the Prosecution to satisfy yourselves whether their evidence is truthful and, reliable. If you are satisfied that the evidence of the Prosecution is credible, then you must be satisfied that each element of the offence has been proved by the Prosecution beyond reasonable doubt.
    
57. There is no dispute in this case about the identity of the Accused. He was known to the main eye witnesses of this case, Reena Devi and Meenal Raju prior to the incident. Both of them had recognized the Accused and positively identified the Accused in Court.
    
58. The crucial issue to be resolved in this case is whether the Accused intended to kill Irene Rita Raju. Before coming to that issue, I draw your attention to the third element that is whether, Accused did something which was more than mere preparation to killing her. If you believe that the Accused did strike Rita Raju with a cane knife, you will find no difficulty in coming to the conclusion that the Accused did something more than mere preparation.
59. Both eye witnesses, Reena Devi and Meenal Raju said that they saw that the Accused was holding an old cane knife when she was shouting for help with cut injuries.
    
60. According to Reena Devi's evidence, this is what Reena Devi heard from Meenal Raju ....
    

"Meenal had seen Neetin pulling the hair of Irene while she was shouting. Neetin was holding a knife with blood and trying to hit it again. Meenal had told her, 'Neetin was cutting Irene', and pleaded her to go and save her. Then she ran to her".

61. According to Reena Devi's evidence, this is what she saw when she arrived at Irene's place....
    

"Neetin was hitting again. She (Reena Devi) got hold of his hand. Irene's body was full of blood with cut injuries. Injuries were on her face, fingers and arms. Neetin was holding a thin, old cane knife".

62. Meenal Raju said:
    

"Irene was being dragged on the ground by her hair and blood dripping from the knife Neetin was holding. Then she called out her mother who went there and held Neetin and prevented him from hitting the 'final strike".

63. None of the Prosecution witnesses had seen Neetin cutting or striking with a cane knife. If you believe the evidence of the Prosecution witnesses credible and truthful, you consider, in light of evidence I just highlighted, what reasonable and logical inferences you could draw from the facts proved by the Prosecution.
    
64. In the cautioned interview the Accused had admitted that he struck Irene with a cane knife. In the charge statement, which was tendered as an agreed fact, he had specifically admitted striking his wife with a cane knife.
    
65. Having considered all these pieces of evidence, if you believe Neetin struck Irene with a cane knife, you have no difficulty in coming to the conclusion that Neetin's act is something more than mere preparation.
    
66. If you believe that Neetin struck Irene with a cane knife, then you must consider whether he did so with the intention of killing Irene. As I said before, this is the most crucial issue you have to resolve in this case before coming to your final conclusion.
    
67. To facilitate your task, I will refresh your memory on relevant evidence which I thought would be helpful to you in determining the state of mind of the Accused at the time of the alleged act. Remember however, you are the judges of fact and you are free to consider all the evidence led in the trial in coming to your own conclusions.
    

Cautioned Interview

68. If you believe what Neetin had said to police is truthful, you may consider the cautioned interview to determine his intention and perhaps the motive of the accused. Remember, you have to determine his intention not the motive. If there is evidence of motive, you may be able to draw certain inferences with regard to his intention.
    
    • Neetin and Irene, after an argument, were living separately for six months prior to the incident. She was not on good terms with him because she was evading and stopping him from accessing his two sons.
      
    • He was suspecting her for having an affair with her uncle's son.
      
    • He had used a different SIM card to call her impersonating himself as Raju and had come to know that she is going to accompany her uncle's son to lodge a complaint with police for harassment.
      
    • There was a family case before court where a Domestic Violence Restraining Order was pending against him.
      
    • On the day of the incident, Irene was evading him and wanted to go somewhere which act he says had angered him to strike her with a cane knife.
      
    • He had struck the cane knife thrice at her. First one on the face causing deep cuts, second strike was defended with her hands causing cut injuries on her hands and the third one he was not aware where it landed causing her to fall down.
      
    • The cane knife was on the ground. When he first saw it, he thought of threatening her to keep her quiet.
      
    • He says, he was 'out of mind' when he was swinging the cane knife. He further says he had no intention to strike her with the cane knife but what came to his mind he did not know.
      
    • Irene's aunty, Reena came running and held him from the back and pulled him away.
      
69. In the charge statement which was tendered as an agreed fact, Accused says "I admit striking my wife Irene with the cane knife but my intention was not to kill her".
    
70. The Accused had given the partial confession to police in his interview and charging on 6th of June 2014, that is the day after the alleged incident.
    
71. Meenal Raju described his appearance before he left the scene and said. "Neetin's eyes were red and watery. He shook himself and ran away with the knife, like he was crying".
    

Eye Witness Account

72. You can take Meenal Raju's and her mother's evidence to determine Neetin's intention if you are satisfied that they are truthful and honest witnesses. You can consider other evidence including the accused's statements to police to determine their credibility.
    

Weapon Used

73. You can take into consideration the type of weapon used to determine the intention of the accused in a case of this nature.
    
74. Prosecution failed to tender the cane knife in evidence as an exhibit. However, Accused had identified the cane knife at the reconstruction of the scene, if you believe his statement to be truthful. According to him, it is a long cane knife with a brown handle. The point of the blade had a 'sharp cut'. Both the eye witnesses said that they saw Neetin holding a thin old cane knife. Accused's mother described the knife which his son had brought around 2 p.m. on the day of the incident as an old knife which is used to cut grass. Dr. Samuela was of the opinion that the injuries could have been caused by a knife.
    

Injuries

75. You can also take into consideration the number and nature of injuries and the place of the body where the injuries were inflicted to determine the intention of the Accused. According to Dr. Samuela, Irene had, on her head and face, 5 lacerations including a 10 cm. long laceration on the back of the head with underlying open fracture of the scull caused by a blade of a knife which was fully penetrated through the skin and into the skull. He described the multiple lacerations on both her hands including the amputated ring finger as 'defence wounds' which would have been resulted from her trying to protect herself from the knife.
    
76. Expressing his professional opinion, the doctor said that the severity of the injuries caused to the head and the hands indicated that those injuries were intended to cause severe devastating effect and possibility of death was evident. You observed Irene giving evidence. Her appearance can also be considered.
    
77. The Prosecution says that the accused by striking Irene with a cane knife several times on most vulnerable parts of her body, causing grievous injuries, attempted to kill her. Defence version is that the Accused did not intend to kill her. He was angry at her avoidance to talk to him and he was out of his mind at the time of the incident. Accused made the partial confession on the 6th of June 2014, a day after the incident. You have to consider whether the accused had the murderous intention at the time of the alleged act.
    
78. You can form your own opinion after considering all evidence led in the trial and conclude whether the accused had the murderous intention at the time of the offending and with that intention he carried out the attack.
    
79. Your possible opinions on the charges are either guilty or not guilty. Only if you find that the Accused did strike the complainant with a cane knife but the prosecution has failed to prove the element of the intention to kill beyond reasonable doubt, then you may consider whether the elements of the lesser offence of Act With Intent to cause Grievous Harm have been proved beyond reasonable doubt by the Prosecution.
    
80. Ladies and Gentleman Assessor, this concludes my summing up. Now you may retire and deliberate together and may form your individual opinions on the charge against the Accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.
    
81. Your possible opinions would be.
    
    1. Charge of Attempted Murder guilty or not guilty? or
    2. Charge of Act With Intent to Cause Grievous Harm guilty or not guilty?
       
82. Any redirections?
    
83. You may now retire to consider your opinions.
    

Aruna Aluthge
Judge

At Lautoka
27th January 2016

Solicitors: Office of the Director of Public Prosecution for State
Office of Gordon & Company for Accused