State v Vucui - Summing Up [2017] FJHC 489; HAC63.2016 (6 July 2017)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 63 OF 2016

STATE

V

SEMI VUCUI

Counsels : Mr. L. Fotofili for State
Mr. K. Ratule for Accused

Date of Trial : 03 and 04 July 2017
Summing Up : 06 July 2017

SUMMING UP

1. The hearing of this case has now reached to its conclusion. It is my duty to sum up the case to you. You will then retire to consider your respective opinions.
2. Our functions are different. It is my task to ensure that the trial is conducted according to law. As part of that, I will direct you on the law that applies in this action. You must accept the law from me and apply all directions I give you on matters of law.
3. You are to determine the facts of the case, based on the evidence that has been placed before you in this courtroom. That involves deciding what evidence you accept or refuse. You will then apply the law, as I shall explain it to you, to the facts as you find them to be, and in that way arrive at your opinion.
4. I may comment on the facts if I think it will assist you when considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the facts. Hence, it is entirely upon you to accept or disregard it unless it coincides with your own independent opinion. I say so because you are the judges of the facts.
5. You must reach your opinion on evidence, and nothing but on the evidence itself. Evidence is what the witnesses said from the witness box, documents and other materials received as exhibits. This summing up, statements, arguments, questions and comments made by the counsel of the parties are not evidence. The purposes of the opening address by the learned counsel for the prosecution is to outline the nature of evidence intended to be put before you. The closing addresses of the counsel of the prosecution and the defence are not evidence either. They are their arguments, which you may properly take into account when you evaluate the evidence, but the extent to which you do so is entirely a matter for you.
6. If you heard, or read, or otherwise learned anything about this case outside of this courtroom, you must exclude that information or opinions from your consideration. You must have regard only to the testimony and the exhibits put before you in this courtroom during the course of this trial. Ensure that no external influence plays a part in your deliberation. As judges of facts you are allowed to talk, discuss and deliberate facts of this case only among yourselves. However, each one of you must reach your own conclusion or form your own opinion. You are required to give merely your opinion but not the reasons for your opinion. Your opinion need not be unanimous. I must advice you that I am not bound by your opinion, but I assure you that I will give the greatest possible weight on your opinions when I form and deliver my judgment.
7. Moreover, I must caution you that you should dismiss all emotions of sympathy or prejudice, whether it is sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision, nor should you allow public opinion to influence you. You must approach your duty dispassionately; deciding the facts solely upon the whole of the evidence. It is your duty as judges of facts to decide the legal culpability as set down by law and not the emotional or moral culpability of the action.

Burden and Standard of Proof

8. I now draw your attention to the issue of burden and standard of proof. The accused is presumed to be innocent until he is proven guilty. The presumption of innocence is in force until you form your own opinion that the accused is guilty for the offence.
9. The burden of proof of the charge against the accused person is on the prosecution. It is because the accused is presumed to be innocent until he is proven guilty. In other words there is no burden on the accused person to prove his innocence, as his innocence is presumed by law.
10. The standard of proof in criminal trial is “proof beyond reasonable doubt”. It means that you must be satisfied in your mind that you are sure of the accused’s guilt. If there is a riddle in your mind as to the guilt of the accused after deliberating facts based on the evidence presented, that means the prosecution has failed to satisfy you the guilt of the accused beyond reasonable doubt. If you found any reasonable doubt as to the commission of the offence as charged or any other offence by the accused, such doubt should always be given in favour of the accused person.

Information

11. The accused is being charged with one count of Attempted Murder contrary to Section 44(1) and Section 237 of the Crimes Act. The particulars of the offence are that;

“Semi Vucui on the 25th day of November 2016 at Labasa in the Northern Division, attempted to murder Mareta Duibale”

12. Section 44(1) and (2) of the Crimes Act explains the definition of attempt, where it states that:
    1. A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
    2. For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence, and the question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
13. Section 237 of the Crimes Act provides the definition of murder, where it states that;

A person commits an indictable offence if —

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

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

"grievous harm" means any harm which—

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

19. Grievous harm simply means serious or dangerous or permanent harm to someone.
20. I now take your attention to the admitted facts, that are before you. They are facts that the prosecution and the defence have agreed without dispute. Therefore, you are entitled to consider them as proven fact beyond reasonable doubt.
21. Let me now remind you the evidence presented by the prosecution and the defence during the course of the hearing.

Evidence of the Prosecution

22. The first witness of the prosecution is Lusia Vuetilaucala. She is the mother of the victim. She came to her house at Delailabasa from Suva on the 25th of November 2016. In the evening, around 7 p.m. her daughter Mareta came and told her that she is no longer interested about the accused. Mareta was living with her three children at Lusia’s house. Mareta was having a relationship with the accused before 25th of November 2016.
23. Lusia had told her daughter to call the police about the accused as it was the best option. Lusia heard the accused was requesting Mareta to get his clothes. Mareta went and gave his clothes. She then came and seated in the sitting area. The accused called her again, asking her about his towel. Mareta then went and gave him the towel. At that time, the accused came forward and stabbed her with a kitchen knife. They both were standing near the table. The accused stabbed her using the knife downward. He raised his hand up and stabbed her. Mareta sat down touching her wound. Lusia saw the accused was trying to stab her again. She ran in between them and pleaded with the accused to stop now and its enough. Lusia in her evidence said that the accused listened to her. He stopped and went out of the house. She could not tell whether the knife used by the accused was in the kitchen or accused brought it with him.
24. During the cross examination, Lusia said that she was not shocked when the accused stabbed Mareta. But when she saw the blood, she felt different. She said that she was still in shocked when she made the statement to the Police on the same day. According to the evidence given by Lusia, that she was not cooking in the kitchen with Mareta when the accused came. She said that most things that have been recorded in the statement made to the police are correct. Lusia in her evidence said that she told Mareta to call police, though that part has not been recorded in the statement.
25. Lusia said that she did not hear the conversation between Mareta and the accused. They did not talk loudly. The accused was still sitting when Mareta went and gave him the towel. At that point, he got up and stabbed on the left side of Mareta’s flank. The accused did not try to punch Mareta when she gave the towel. Mareta did not try to cover her face as accused did not punch her. She cannot recall whether the knife was on the dining table.
26. The second witness of the prosecution is Mareta Duibale. She is the complainant of this matter. She was in a de-facto relationship with the accused. She had ended the relationship with him before the 25th of November 2016. She had an argument with him over the issue of his commitment to his work at the Saw Mill. His employment at the Saw Mill was arranged by a relative. The owner of the Saw Mill is a very good friend of her father. The accused failed to give good excuses for not attending work regularly. Mareta said that he usually drinks grog all over the night till early morning and finds many excuses to avoid his work. She is a single mother with three children. The accused is not the biological father of her three children. She did not want to depend on her father financially. That was the reasons she was concern about the employment of the accused. She has her own yagona plantation, which provides finance for her to look after her three children. Apart from that her sister who lives in overseas also financially supports her.
27. Because of these reasons, she wanted to end the de-facto relationship that she had with the accused. She communicated this message to the accused. However, he was not ready to accept it. He kept on calling and sending messages to her. Both of them have their own Facebook accounts. She had been communicating with him on Facebook before and after the breakup of their relationship. Mareta had changed her password for her Facebook account, for which the accused was angry. He had access to her Facebook account before, but after the change of the password, he could not access to her Facebook account.
28. On the 25th of November 2016, the accused sent her messages on Facebook, for which she did not respond. He then called her on her phone and cried, asking her to give him another chance. They then communicated on Facebook messenger. She knew it was the accused who was on Facebook and communicating with her. He had been referring to a movie “wedding crash” where he says that the husband can do anything to kill his wife. He asked her forgiveness and another chance as he want to change. Mareta did not want to resume her relationship with the accused. He then threatened her that he will kill both of them. This exchange of messages on Facebook took place two hours before this alleged incident took place.
29. The accused then came to her house around 6 p.m. She was cooking inside the kitchen. The accused looked angry and upset. She then went and asked him what he was doing at her place. Mareta had informed one woman police officer about him and she had advised the accused not to go to Mareta’s place. The accused asked her why she had blocked him on Facebook Messenger. He asked her to give him another chance and he would change. He asked the forgiveness. Mareta asked him to go back as she and her mother was frightened to the accused. He refused to go. Mareta and the accused conversed there for a while. She then gave him his clothes and asked him to leave. The accused entered into the house, while she went in to the house to get the clothes. Mareta in her evidence said that neither she nor anyone in the family invited the accused into house. He sat in the dining area. After handing him over the clothes, she went into house and asked her mother who was in the sitting room, to go and tell him to leave. Her mother refused to do so, saying that she does not want to involve in their personal matters.
30. At that time, the accused shouted her to bring his towel. She accordingly brought him his towel. While she was trying to hand it over, the accused suddenly stood up and moved towards her. She tried to move back. At the same time, she felt something hard on her left side of flank and on the chest. With that, she fell down. The accused did not say anything. He was standing against the kitchen wall. She looked up and saw the accused had raised his hand over his shoulder and holding a knife in his hand. The knife was pointed downwards. At the same time, she heard her mother was screaming at the accused and asking him to stop. Her 9 years old daughter ran to her and covered her. The daughter was crying at that time. Mareta then realized that she was bleeding and injured. She further realized that the accused had stabbed her on the left side of her flank with a knife. Her neighbors came and pressed the wound with the towel in order to stop the bleeding. She was then taken to Labasa Hospital. She was first treated at the emergency unit, and then taken to a surgery.
31. Mareta identified in the court the knife used by the accused. She said that it was not belonged to them. It was not in the kitchen before this incident took place. Mareta showed her injuries to the court while giving her evidence.
32. Mareta said that on the morning of the second day of this trial, the accused approached her while she was sitting outside the court. He came and sat beside her and asked her to change her evidence and inform the court that she wants to drop the charge and forgive the accused. He had further told her that her evidence is not in consistence with her mother’s evidence.
33. In the cross examination, Mareta said that she came out when she saw the accused was coming to her house. They talked for a while outside the house. The accused left for the funeral of Tui-Labasa on the 21st of November 2016, that was a Monday. He had to perform his traditional duties at the funeral. She cannot remember whether the accused had a phone during the period between 21st to 25th of November 2016.
34. The accused and Mareta have Facebook account. They had been communicating via Facebook when the accused was in Canada. They both had shared the user names and passwords for their respective Facebook accounts. She had access to his Facebook account.
35. On the 20th of November 2016, the accused went to drink grog at Vunivau with the brother of Mareta. He then came back on the following morning and said that he was sick and could not go to work. That was the only time he drank grog till late night and failed to go to work. He took half of his clothing when he left the house on 21st of November 2016. Mareta said that she did not complaint to the Police about the accused. He had been abusive to her over a period of two years. However, he was not abusive towards her children. She did not make any complaint about the abusive conduct of the accused as she was frighten to him. She had not made any compliant about the messages sent to her by the accused via Facebook. She blocked him on her Facebook messenger after the exchange of messages on the 25th of November 2016.
36. Mareta in her evidence said that she did not complaint to anyone when the accused came to her house in the evening of 25th. During that time, neither he behaved strangely nor threatened her. He did not follow her when she went into the house to bring his clothes. She did not tell him that she was in that relationship with him because of money and he was in Canada. She further said that she did not push him down when he tried to stand up. The knife was not belonged to her house. It was not on the dining table when the accused came into the house. The accused was standing when he stabbed her. His hand came horizontally when he stabbed her. At that point of time, her children and mother were watching movies in the sitting room. Her daughter came and covered her. Her mother came in between Mareta and the accused. That prevent him to stab her further. Mareta said that she was not aware that she was stabbed as she did not see him stabbing her. When she fell down, the accused had a chance to stab her more. He would have stabbed her to death before her mother and daughter ran to her.
37. The next witness of the prosecution is Doctor Abogun Idris. You have heard him explaining about his educational and professional experience. He is a medical doctor, presently working at the Labasa Hospital. He was at the Emergency Unit, when the victim was taken to the hospital after this incident. He explained that the stabbing wound was located close to the left side kidney. According to his medical opinion, such a stabbing could have damaged the left kidney. Moreover, if the bleeding was not managed and controlled, the victim could have died.

Evidence of the Defence

38. At the conclusion of the prosecution case, you have heard that I explained the accused about his rights in defence. The accused opted to give evidence on oath and informed the court that he does not wish to call any witness for his defence.
39. The accused in his evidence said that his relationship with Mareta came to end on a Monday. That Monday was in the same week of 25th of November 2016. He left to funeral of Tui-Labasa on the 21st. He took half of his clothing with him when he left her house on the 21st. During the time between 21st to 25th, he did not contact Mareta. He said that he had no phone or access to computers to communicate with her via Facebook. He further said that he did not communicate and threatened her that he will kill both of them via Facebook messenger. Mareta had access to his Facebook account and she had changed the password of it, preventing him to access his Facebook account.
40. He went to her house in the evening of 25th of November 2016 around 6.30 p.m. He then met Mareta. They talked about one hour near the kitchen. She then went into the house and he followed her. He went and sat on a chair at the dining area. Her voice increased and she looked angry. She told him to take his left over clothes. She then came and threw them on the table. She told him that she only had this relationship because of his money and he was in Canada. She used ugly words against him. He got angry and wanted to stand up and punch her. She pushed him back when he tried to get up from the chair. He then stood up and found the knife was on the table. He took the knife in order to threaten her. She covered her face with her hands thinking that the accused was going to punch her. He moved towards her and tried to stab her arm. But she lifted her hand to cover her face and he accidentally stabbed her left side of her flank. She felt down with that. He moved back to the same place where he was seated before. He was still holding the knife. He then called her mother who was in the sitting room and informed her that Mareta was injured. He further told her to take Mareta to Hospital in a taxi. He then realized that he had done something wrong. He then went to the police and surrendered himself with the knife.
41. The accused said that he never had an intention to kill Mareta. If he really had such an intention he would have stabbed her to death.
42. During the cross examination, the accused denied that he send those messages via Facebook messenger. He said Mareta had changed the password of his Facebook account. He did not bring the knife concealing it in his clothes. He further said that he had no intention to kill her. He stabbed her because she provoked him. She uttered ugly words and that made him angry and felt sad. It was an accident that he stabbed on the left side of her flank as he actually tried to stab on her arm.
43. In cross examination, the accused said that he approached Mareta in the court house because he saw her sitting on the bench when he was walking in to the court. She told him that she tried to talk to his lawyer. That was the reasons he spoke to Mareta about this case.
44. I have summarised the evidence presented during the course of this hearing. However, I might have missed some. It is not because they are not important. You have heard every items of evidence and reminded yourselves of all of them. What I did only to draw your attention to the main items of evidence and help you in reminding yourselves of the evidence.

Analysis

45. In view of the evidence presented by the parties and the agreed facts, the main dispute in this matter is whether the accused had an intention to kill the victim when he stabbed her in the night of 25th of November 2016.
46. The prosecution alleges that the accused send messages via Facebook messenger threatening the victim that he will kill both of them if she refuses to continue their relationship. She then blocked him on Facebook messenger. In a while, the accused came to her house and requested her to give him another chance for him to change. She refused and asked him to leave. She gave him clothes back. At that point of time, the accused stabbed her on her left side of the flank with a knife. The prosecution alleges that the accused brought the knife with him.
47. Meanwhile, the accused denies this allegation and states that he never had any intention to kill her. He said that he did not send any such messages on Facebook messenger. He came to her home and talked to her for a while. She was angry and threw his clothes at him. She then uttered some ugly words, which made him angry and upset. He then wanted to punch and stab her on her arm in order to threaten her. But accidentally he stabbed on her left side of the flank. He then voluntarily went to the police and surrendered himself with the knife.
    

Expert Evidence

48. It is the general rule that witnesses are normally not allowed to give opinion and only allow to give evidence on what they have seen, heard, or felt by their physical sense. However, the exception is that the evidence of expert witnesses. Expert witnesses are those who are learned and experts in a particular subject or field with relevant experience. Such witnesses are allowed to give evidence of their opinion.
49. In this case you have heard the evidence of Dr Abogun Idris. He is a medical doctor and gave his professional opinion about the injuries sustained by the victim.
50. Expert evidence is permitted in a criminal trial to provide you with scientific and professional information and opinion, which is within the witness' expertise, but which is likely to be outside your experience and knowledge. It is by no means unusual for evidence of this nature to be called; and it is important that you should see it in its proper perspective, which is that it is before you as part of the evidence as a whole to assist you with regard to the injuries, the physical and medical condition of the victim subsequent to this alleged offence.
51. With regard to these particular aspects of the evidence you are not experts; and it would be quite wrong for you as assessors to attempt to and/or to come to any conclusions on those issues on the basis of your own observations or experiences. However you are entitled to come to a conclusion based on the whole of the evidence which you have heard, and that of course includes the expert evidence. You should bear in mind that, having carefully considered, if you do not accept the evidence of the expert, you do not have to act upon it.

Documentary Evidence

52. The evidence presented in the form of documents is considered as documentary evidence. In this case, the prosecution tendered the medical report and the statement made to the police by Dr. Abogun Idris in the form of documentary evidence. You are allowed to consider the contents of those documents as evidence.

Evidence of Provocation

53. You have heard evidence of the accused, where he said that he was provoked by the victim uttering bad things about him. That made him angry and provoked. However, sudden provocation is not a defence for an offence of this nature.

Evaluation of Evidence

54. In order to determine whether the prosecution has proven beyond reasonable doubt that the accused is guilty for the offence as charged, you have to consider the credibility of the witnesses, and the reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and is correctly recalling the facts about which he or she has testified. You can accept part of a witness’s evidence and reject other parts. A witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and not accurate in another thing.
55. In assessing evidence of the witnesses, you must consider whether the witness had the opportunity to see, hear and or feel what the witness is testifying in the evidence. You then should consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Apart from that, you are required to consider the consistency of the witness not only with his or her own evidence but also with other evidence presented in the case.
56. It is your duty as judges of facts to consider the demeanor of the witnesses, how they react to being cross examined and re-examined, whether they were evasive, in order to decide the credibility of the witness and the evidence.
    

Inconsistency and Omissions

57. You may recall that the learned counsel for the defence questioned Lusia Vuetilaucala and Mareta regarding the inconsistence nature of their evidence given in the court with the statements they made to the police.
58. You are allowed to take into consideration about such inconsistencies and the omissions when you consider credibility and reliability of the evidence given by the witness.
59. The evidence is what a witness told us in court on oath/affirmation. If you are satisfied that a witness has made a statement which is in conflict with his evidence given in court, you may take into account that inconsistency when you determine the credibility and reliability of the evidence given by the witness.
60. In examining suggested inconsistencies, you have to first determine whether there is in fact and in true context, an inconsistency; and if you decide that there is one, then you have to decide whether it is material and relevant or, on the other hand insignificant or irrelevant. If there is an inconsistency, it might lead you to conclude that the witness is generally not to be relied upon; alternatively, that a part only of his/ her evidence is inaccurate; or you may accept the reason he/she has provided for the inconsistency and consider him to be reliable as a witness.

Evidence of the Defence

61. I now kindly draw your attention to the evidence adduced by the defence. The accused elected to give evidence on oath. The accused is not obliged to give evidence. He is not obliged to call any other witnesses. He does not have to prove his innocence.
62. However, the accused decided to give evidence. Therefore, you have to take into consideration the evidence adduced by him when determining the issues of fact of this case.
63. Accordingly, it is for you to decide whether you believe the evidence given by the accused. If you consider that the account given by the accused is or may be true, then the accused must be acquitted.
64. If you neither believe nor disbelieve the version of the accused, yet, it creates a reasonable doubt in your mind about the prosecution case. You must then acquit the accused from this charge.
65. Even if you reject the version of the accused that does not mean that the prosecution has established that the accused is guilty for this offence. Still you have to satisfy that the prosecution has established on its own evidence beyond reasonable doubt that the accused has committed this offence as charged in the information.

Final Directions

66. Upon consideration of whole of the evidence adduced during the course of the hearing, if you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of attempted murder as charged, you can find the accused is guilty for the said offence of Attempted Murder.
67. If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Attempted Murder as charged, you must find the accused is not guilty for the said count of Attempted Murder.
68. If you found him not guilty for the offence of Attempted Murder, you are then allowed to consider the alternative count of Act Intend to Cause Grievous Harm. If you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Act Intend to Cause Grievous Harm, you can find him guilty of the alternative count of Act Intend to Cause Grievous Harm.
69. If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Act Intend to Cause Grievous Harm, you must find the accused is not guilty for the said count of Act Intend to Cause Grievous Harm.

Conclusion

70. Madam and Gentleman assessors, I now conclude my summing up. It is time for you to retire and deliberate in order to form your individual opinions. You will be asked individually for your opinion and will not require to give reasons for your opinion. When you have reached to your opinion, you may please inform the clerks, so that the court could reconvene.
71. Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?
    

Thushara Rajasinghe

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Labasa

Solicitor for the Accused : Messrs Gibson & Company, Barristers & Solicitors, Labasa