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State v Ratabua [2016] FJHC 627; HAC063.2013L (13 July 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
LAUTOKA CRIMINAL CASE NO. HAC 063 OF 2013L


STATE


vs


LIVAI KAIVITI RATABUA


Counsels : Ms. S. Kiran and Mr. Y. Prasad for State
Ms. C. Choy and Mr. K. Prasad for Accused
Hearings : 4, 5, 6, 7, 8, 11 and 12 July, 2016
Summing Up : 13 July, 2016


SUMMING UP


  1. ROLE OF JUDGE AND ASSESSORS
  1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
  2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
  3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and they need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
  1. THE BURDEN AND STANDARD OF PROOF
  1. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
  2. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused’s guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.
  3. Your decision must be based exclusively upon the evidence which you have heard in this court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
  1. THE INFORMATION
  1. You have a copy of the information with you, and I will now read the same to you:

“...[read from the information]...”


  1. THE MAIN ISSUE
  1. In this case, as assessors and judges of fact, each of you will have to answer the following question:
  1. THE OFFENCE AND IT’S ELEMENTS
  1. The accused was charged with “murder”, contrary to section 237 of the Crimes Decree 2009. For the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:
  2. On the first element of murder, a “wilful act” is a voluntary act by the accused. It is a feeling of strong determination to do something that he wanted to do. It is what he wanted to happen in a particular situation. This is the physical element of the offence of murder. For example, A wants to shoot B with a gun. A picks up a gun, and shoots B in the heart, and as such, A did “a wilful act”. Likewise, if A wants to kick and stomp B on the body. A kicking and stomping B on the body, A did “a wilful act” against B, by kicking and stomping on his body.
  3. On the second element of murder, “the wilful act must cause the death of the deceased”. This simply meant that the accused’s wilful act, substantially contributed to the death of the deceased. The accused’s wilful act must be a substantial contributor to the death of the deceased. In other words, the accused’s wilful act was a substantial cause of the deceased’s death. Continuing from the above examples when A shot B in the heart, with a gun, B later died as a result of the injuries to his heart. A’s shooting B in the heart (wilful act) was a substantial cause of B’s death. Likewise, when A kicks and stomps on B’s body, causing serious internal injuries, resulting in B’s death, A’s kicks and stomps (wilful acts) set in motion a chain of events that led to B’s death (A’s wilful acts causes B’s death), and as such, was a substantial cause of B’s death.
  4. The third element of murder concerned its fault element. There are two fault elements of murder, as described in paragraphs 9 (iii)(a) and 9 (iii)(b). In this case, the prosecution is not running its case on the fault element mentioned in paragraph 9 (iii)(a), that is, they are not saying that when the accused assaulted the deceased, he intended to cause his death. The prosecution was relying on the fault element described in paragraph 9 (iii)(b), that is, when the accused assaulted the deceased, he was reckless in causing his death.
  5. The question becomes. Was the accused reckless as to causing the deceased’s death, when he repeatedly kicked and stomped on the deceased’s body, at the material time? In law, a person is reckless with respect to a result if:

The question whether taking a risk is unjustifiable is one of fact. The following questions had to be examined and answered. Was the accused aware of a substantial risk that the deceased would die if he was repeatedly kicked and stomped on his body? And having regard to the circumstances known to him, was it justifiable to take the risk of repeatedly kicking and stomping on his body, at the material time? If you think he was not justified in taking the risk, then he was reckless as to causing the death of the deceased. If you think he was not reckless, then he is not guilty of murder.


  1. If you are sure that all the elements of murder, as expressed in paragraph 9(i), 9(ii) and 9(iii) (b) hereof, are satisfied; then you must find the accused guilty as charged. If you find that the accused is not guilty of murder, then you are entitled to look at the lesser offence of “manslaughter”, although he was not formally charged of the same. Manslaughter consisted of three elements:

The first and second element of manslaughter are similar to the first and second element of murder. The difference is the fault element. For manslaughter, the accused must have intended serious harm, not death, alternatively, he was reckless as to causing serious harm, not death, to the deceased.


  1. Furthermore, both the deceased and the accused appeared to be drunk at the time of the incident. In law, self-induced intoxication is no defence to a criminal charge. This is especially so, when the fault element relied on by the prosecution is recklessness.
  1. THE PROSECUTION’S CASE
  1. The prosecution’s case were as follows. On 7 January 2013, between 4 pm and 7 pm, the accused (DW1), Elia (PW1), the deceased and one Navitalai were drinking liquor near Balawa Cemetery in Lautoka. They were drinking rum, that is, three bottle of 26 ounce rum. At about 9 pm, Elia returned home with the deceased and the two continued drinking at Elia’s house. The accused also joined the two a while later. An argument erupted between Elia and his wife.
  2. According to the prosecution, the deceased took Elia’s side during the argument, while the accused took Elia’s wife’s side in the argument. Elia and the deceased later “ganged up” on the accused and later jointly assaulted him. The parties were somewhat related. The accused however managed to free himself and fled to Navutu Village. He later returned to the scene with one Etonia Bose. The accused told Bose about Elia and the deceased jointly assaulting him. At the scene, the accused repeatedly swore at the deceased. There was bad blood between the two.
  3. According to the prosecution, the deceased approached Bose and the accused. The deceased threw a punch at Bose. Bose avoided the punch and countered with a right hand punch to the deceased’s nose and mouth. The deceased fell backwards with his head hitting the ground. According to the prosecution, the deceased tried to get up from the ground. The accused suddenly appeared and stomped four times on the deceased’s head, while simultaneously delivering three kicks to his forehead. According to the prosecution the stomps and the kicks were hard ones. The deceased was unconscious and bleeding severely from the head.
  4. Bystanders stopped the accused from further assaulting the deceased. The deceased was later taken to Lautoka Hospital. He died 10 minutes after arriving at the hospital. On 8 January 2013, the day after the accused’s alleged assault, a post-mortem was done on the deceased. Visible external injuries were found on the deceased’s forehead, right side of the head, middle of the head and on the left ear region. The cause of death was “compression of medulla oblongata” (brain injuries) due to assault. The matter was reported to police. An investigation was carried out. Accused was caution interviewed by police on 8 and 9 January 2013. He admitted stomping and kicking the deceased on the head at the material time. On 10 January 2013, the accused appeared in the Lautoka Magistrate Court charged with murdering the deceased on 7 January 2013.
  5. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.
  1. THE ACCUSED’S CASE
  1. On 5 July 2016, the first day of the trial proper, the information was read to the accused in the presence of his counsel. He pleaded not guilty to the charge. In other words, he denied the allegation against him. When a prima facie case was found against him, at the end of the prosecution’s case, he choose to give sworn evidence, in his defence. He called two witnesses. That was his right.
  2. The defence’s case was very simple. The accused (DW1) admitted he was at the crime scene at the material time. He admitted he was with Etonia Bose at the material time. He admitted he swore at the deceased before he confronted them. He admitted Bose punched the deceased on the right jaw at the material time, wherein he fell to the ground. He admitted he then kicked and stomped on the deceased when he was lying on the ground. He admitted he kicked and stomped on the deceased’s right hip, mid-section and left shoulder. He admitted he kicked the deceased on the chest and twice on the stomach.
  3. Note that Doctor Gounder (PW9), the pathologist who conducted the post mortem on the deceased on 8 January 2013 at Lautoka Hospital, found no injuries on the deceased, on the areas that the accused said he stomped and kicked on. Doctor Goundar found the deceased largely injured on the forehead, the right side of the head, left ear region and middle of the head. So, it would appear that the accused’s case was that his assaults on the deceased did not cause his death. In his evidence, he appeared to deny kicking and stomping on the deceased’s head, at the material time. As a result, he appeared to be saying he was not liable for the deceased’s murder.
  4. In his police caution interview statements, which were tendered as Prosecution Exhibit 2 (A) and 2 (B), the accused was said to have admitted stomping and kicking the deceased’s head, when he was lying on the ground, at the material time. The accused asks you to disregard his alleged admissions because these were police fabrications. He said, he did not give the above admissions. As a result of the above, the accused is asking you, as assessors and judges of fact, to find him not guilty as charged and acquit him accordingly. That was the case for the defence.
  1. ANALYSIS OF THE EVIDENCE
  1. In analysing the evidence, please bear in mind the directions I gave you in paragraph 4, 5 and 6 hereof on the burden and standard of proof. In the acceptance and/or rejection of the evidence presented at the trial and your role as assessors, please bear in mind the directions I gave you in paragraphs 1, 2 and 3 hereof. In analysing the evidence, we will in turn discuss the elements of murder as described in paragraphs 9(i), 9(ii) and 9(iii)(b), and the evidence presented by the prosecution to satisfy those elements. Then we will discuss the defence’s case, and finally the need to look at all the evidence.
  2. In their closing submission, the prosecution said, the accused stomped and kicked the deceased repeatedly in the head, at the material time. They were relying on the above as the “wilful act done by the accused, at the material time”, to constitute the first element of murder, as described in paragraphs 9(i) and 10 hereof. In supporting their theory, the prosecution basically relied on the evidence of Seremaia Radaroro (PW3); Joseva Naikere (PW4) and the accused’s caution interview statements, as recorded in Questions and Answers 80 and 81 in Prosecution Exhibit 2 (A) and 2 (B). These statements were taken by DC 3466, Marika Qolocava (PW7). We will now discuss these evidence.
  3. In his evidence, Seremaia (PW3) said, he saw Etonia Bose punched the deceased on the face, and the deceased fell backwards hitting his head on the ground, at the material time. PW3 said, the deceased tried to get up. PW3 said, the accused then delivered four hard stomps on the deceased’s head, and followed up with three strong kicks to the deceased’s forehead. According to PW3, the accused’s stomps and kicks were “very hard and strong”. PW3 said, they managed to stop the accused from further assaulting the deceased at the time.
  4. Joseva Naikere (PW4) next gave evidence. He said he was at the crime scene at the material time. PW4 said, he saw Etonia Bose punched the deceased in the mouth. PW4 said, the deceased fell on the ground. PW4 said, the deceased wanted to get up. PW4 said, the accused came and stomped four times on the deceased’s head. PW4 said, he followed up with three kicks to the deceased’s head. PW4 said, the stomps and kicks to the deceased’s head were strong and hard. PW4 said, he was three footsteps away when he saw the above.
  5. On 8 and 9 January 2013, DC 3466 Marika Qolocava (PW7) caution interviewed the accused at the crime office in Lautoka Police Station. The accused was given his right to counsel and other rights. He was formally cautioned and given the standard rest and meal breaks. He was asked a total of 111 questions and he gave 111 answers. The caution interview statements were tendered in evidence as Prosecution Exhibit 2 (A) – hand written version, and 2 (B) – typed version. In questions and answers 80 and 81, the accused admitted kicking and stomping on the deceased’s heard, at the material time.
  6. When considering the above evidence. I must direct you as follows, as a matter of law. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, in deciding whether or not you can rely on a confession, you will have to decide two questions. First, whether or not the accused did in fact make the statements contained in his police caution statements? If your answer is no, then you have to disregard the statements. If your answer is yes, then you have to answer the second question. Are the confessions true? In answering the above questions, the prosecution must make you sure that the confessions were made and they were true. You will have to examine the circumstances surrounding the taking of the statements from the time of his arrest to when he was first produced in court. If you find he gave his statements voluntarily and the police did not assault, threaten or made false promises to him, while in their custody, then you might give more weight and value to those statements. If it’s otherwise, you may give it less weight and value. It is a matter entirely for you.
  7. The above caution interview was witnessed by Acting Sergeant 2933 Isoa Delaivatunawa (PW8). Both PW7 and PW8 said they did not assault, threaten or made promises to the accused while he was in their custody. They said, the accused gave his statements voluntarily. The accused, on the other hand, said the police fabricated his answers to questions 80 and 81. He said, he did not make those statements. In any event, if you accept that the accused voluntarily gave his above admissions, then the same would strengthen PW3 and PW4’s evidence that the accused stomped and kicked the deceased’s head, at the material time. If you reject the accused’s confession, then you will have to work on PW3 and PW4’s evidence. It is a matter entirely for you.
  8. If you accept PW3 and PW4’s evidence, including the accused’s above alleged confession, then you will have to find that the prosecution had made you sure of element No. 1 of murder as described in paragraphs 9(i) and 10 hereof. If otherwise, you will have to find the accused not guilty as charged. It is a matter entirely for you.
  9. On this issue, the evidence of Doctor R. P. S Goundar (PW9) is very important. PW9 did the post-mortem on the deceased on 8 January 2013 – a day after the incident. PW9 tendered in evidence the post mortem report of the deceased, as Prosecution Exhibit No. 3. You will have to carefully read and understand this report. Please, bear in mind the directions I gave in paragraphs 9 (ii) and 11 hereof. In the report, Doctor Goundar referred to his external and internal examination. On the external examination, Doctor Goundar identified five major areas of abrasions and lacerations on the forehead, right side of the head, right temporal area, middle of head and the left ear region. Doctor Goundar also found a collection of blood in the tissue of the scalp on the areas identified above. Doctor Goundar said the deceased’s brain had swollen and this was due to the compression of the medulla oblongata.
  10. Doctor Goundar said, the cause of the deceased’s death was the compression of the medulla oblongata and the dislocation of atlanto - occiptal joint due to an assault. Doctor Goundar said, “the medulla oblongata contains the centre that controls the heart and breathing. When it is compressed, the function of the heart and lungs are affected and can result in death. The cause is due to dislocation of atlanto – occipital joint. The injury from the assault could cause the dislocation of atlanto – occiptal joint. The force used must be very severe. Severe stomping and kicking on the injured area could cause the injuries”. When cross-examined, Doctor Goundar said, “ the stomps and kicks to the head, if severe, could cause dislocation of atlanto – occipital joint and compression of medulla oblongata, leading to death”.
  11. When you put the evidence of Seremaia Radaroro (PW3), Joseva Naikere (PW4) and the accused’s alleged confession to stomping and kicking the deceased’s head at the material time, with the evidence of Doctor Goundar above mentioned, the irresistible inferences was that the accused’s stomping and kicking of the deceased’s head on 7 January 2013 set in motion a chain of events that led to the deceased’s death. If you accept the above, you will have to examine Element No. 3 of murder. If you don’t accept the above, you have to find the accused not guilty of murder.
  12. When considering this issue, you must take on board the directions I gave you in paragraphs 9 (iii) (b), 12 and 13 hereof. If you accept that the accused’s stomping and kicking of deceased’s head on 7 January 2013 caused serious brain injuries leading to his death, then you will have to consider the following questions: Was he reckless in causing the deceased’s death, when he repeatedly kicked and stomped his head at the material time? Was the accused aware of a substantial risk that the deceased would die if he repeatedly stomped and kicked his head on 7 January 2013? Having regard to the circumstances known to him, was it justifiable to take the risk of repeatedly stomping and kicking his head on 7 January 2013?
  13. The accused, according to the evidence of Seremaia (PW3) and Joseva (PW4), was determined to “knock out” the deceased when he delivered four strong and hard stomps and three hard and strong kicks to the deceased head. The head of a person contains his or her brain, and certainly, the accused was aware that Maciu would die if he repeatedly stomped and kicked his head on 7 January 2013. The accused knew Maciu had fallen to the ground after been punched by Bose, and he knew he was helpless and no threat to him. There was no need to stomp or kick Maciu’s head at the time, because he was helpless. Yet the accused proceeded to stomp him 4 times and kicked his head 3 times. It would appear, he was reckless as to causing the deceased’s death, at the time. It was not justifiable for him to take the risk. If you agree with the above, you must find the accused guilty as charged. If otherwise, you must find him not guilty as charged. It is a matter entirely for you.

(g) Defence’s Case:

  1. The accused (DW1), in his evidence, did not deny he was at the crime scene, at the material time. He did not deny that Bose punched Maciu to the ground. He did not deny stomping and kicking Maciu when he was on the ground. He said, he kicked, and stomped on Maciu’s right hip, mid-section and left shoulder. He said, he also kicked Maciu in the chest and twice on the stomach. The accused called two witnesses, Senileba Vosamacala (DW2) and Asilika Silovate (DW3).
  2. DW2 said, she saw Bose punched Maciu to the ground on 7 January 2013. She said, she saw the accused kicked Maciu 3 times on the right chest. DW3 confirmed what DW2 said above. Lavenia Baleilomaloma (PW2) said, she was at the crime scene, at the material time. She said she saw Bose punched Maciu to the ground. She said, she saw the accused kicked Maciu on the left rib and stomped on his mid-section. Doctor Goundar (PW9) said, he found no injuries on Maciu on the places the accused, DW2, DW3 and PW2 said the accused allegedly assaulted. As a result, the defence appeared to be saying that, the accused’s alleged assaults on Maciu, did not cause his death. If you accept the above, you have to find the accused not guilty as charged. It is a matter entirely for you.
  3. There were 9 witnesses for the prosecution and 3 witnesses for the defence. You will have to consider all the evidence together. You will have to compare them and analyse them together. You have heard and watched the witnesses give evidence in the courtroom. You had observed their demeanour. Who do you think was forthright as a witness? Who do you think was evasive as a witness? Who do you think is the credible witness? Who do you think, from your point of view, was telling the truth? If you accept the prosecution’s witnesses as credible, and you accept their version of events, you must find the accused guilty as charged. If otherwise, you must find the accused not guilty as charged. It is a matter entirely for you.
  1. SUMMARY
  1. Remember, the burden to prove the accused’s guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution’s version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused’s guilt, you must find him guilty as charged. If you do not accept the prosecution’s version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused’s guilt, you must find him not guilty as charged.
  2. Your possible opinions are as follows:

Manslaughter : Guilty or Not Guilty


  1. You may now retire to deliberate on the case, and once you’re reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.

Salesi Temo
JUDGE


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

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