State v Ketenilagi - Summing Up [2020] FJHC 138; HAC051.2018 (21 February 2020)

IN THE HIGH COURT OF FIJI

AT SUVA

[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 051 OF 2018

BETWEEN : STATE

AND : MARVIN RAY KETENILAGI

Counsel : Ms S Lodhia for the State

Mr D Toganivalu for the Accused

Date of Hearing : 17 – 19 February 2020

Date of Summing Up : 21 February 2020

SUMMING UP

[1] Ladies and Gentleman Assessors, it is now my duty to sum up this case to you. You will then be required to deliberate together and each of you must give a separate opinion whether the Accused is Guilty or Not Guilty of the charge. I will then pronounce the judgment of the Court and your opinions will carry great weight with me in deciding that judgment.

[2] In coming to your opinions you must apply the law as I explain it to you. It is my duty to direct you on the law. Those directions on the law must be followed by you.

[3] However, you decide the facts of the case. As I speak to you, you may feel that I have formed some view on a particular question of fact. If you disagree, then please feel completely free to disregard my version. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject. 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 decide whether your opinion is guilty or not guilty.

[4] You must come to that decision solely upon the evidence you have heard from the witnesses, which includes the photographs, record of interview and post mortem report. If you have previously heard anything about this case or the people involved, through the media or some other source – you must ignore that completely.

[5] The law requires that the Accused is to be judged solely upon the evidence sworn to in this Court. In considering that evidence you are expected to apply your common sense and everyday knowledge of human nature and people. You must please put aside any feelings of prejudice or sympathy which may occur to you one way or the other and arrive at your opinions calmly and dispassionately.

[6] The charge against the Accused, is set out in the information that you each have a copy of. This charge is brought by the prosecution and the onus of proving it rests on the prosecution from beginning to end. There is no onus on the Accused at any stage to prove his innocence or to prove anything else. The law is that the prosecution must prove the essential ingredients of the charge beyond reasonable doubt before there can be a finding of guilty. This means that before you express an opinion that the Accused is guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt about the guilt of the Accused, then you must express an opinion of not guilty. It is only when you are satisfied so that you are sure of guilt, that you may express an opinion of guilt.

[7] The Accused is charged with manslaughter. The prosecution alleges that the Accused on 25 January 2018 at Suva assaulted one Shri Chand which caused the death of said Shri Chand and at the time of the assault was reckless as to the risk that his conduct would cause serious harm.

[8] There are three ingredients that must be proved for the offence of manslaughter:

1. That the Accused engaged in a conduct.
2. That this conduct caused the death of Mr Chand.
3. That the Accused was reckless as to a risk that the conduct will cause serious harm to Mr Chand.
   

[9] To engage in a conduct means to do an act. The act must be a voluntary act, that is, it is done willingly and consciously. You heard in court that the Accused was heavily intoxicated at the time of the alleged act. I must direct you that self-induced alcohol cannot be considered in determining whether the conduct is voluntary.

[10] In this case the prosecution alleges that the Accused engaged in an act of assault. An assault is an act that threatens physical harm to a person, whether or not actual harm is done. The prosecution alleges that the Accused threatened to physically harm the deceased by punching him in the chest and jaw. The prosecution says that apart from physically assaulting the deceased the Accused put the deceased in a state of fear causing him to run and fall twice to the ground. The Accused admits punching the deceased in the jaw and shoving him in the chest. If you accept the prosecution case and the admissions of the Accused then you may think that the Accused voluntarily engaged in an act of violence. It is for you to determine whether the Accused engaged in an act of assault. If you feel sure that the Accused engaged in an act of assault, then go on determine whether it was the Accused’s assault that caused Mr Chand’s death.

[11] An Accused’s conduct causes death if it substantially contributes to the death. Death does not have to occur immediately after the conduct. The offender remains liable for death if it occurs at any time within one year and a day of the conduct provided the death is still caused by the conduct.

[12] A person is deemed to cause another person’s death if his conduct leads to the death of the deceased even if his conduct or act is not the sole or immediate cause of death. For instance if I were to punch someone, and that person were to fall and hit his head on the concrete floor and dies as a result of the head injury, I am deemed to have caused his death, because his fall was caused by my punch. This is so even if the deceased is not taken to the hospital in time to save his life, or even if he refused medical treatment himself.

[13] A person is also deemed to have caused another person’s death if his conduct hastened or accelerated the death of a person suffering under any disease or medical condition which apart from such act would have caused death. In this case it is not in dispute that Mr Chand had a pre-existing heart disease and that the primary cause of death was the pre-existing heart disease. It is for you to decide whether it was the assault of the Accused that hastened or accelerated the death of Mr Chand who was suffering from a heart disease. It is not necessary for the prosecution to prove that the Accused was aware of Mr Chand’s pre-existing medical condition when he engaged in the alleged conduct that accelerated Mr Chand’s death and it does not matter if Mr Chand would have died in any event due to his pre-existing heart condition.

[14] If you feel sure that it was the Accused’s assault that hastened or accelerated Mr Chand’s death, then go on to decide whether the Accused was reckless as to a risk his conduct will cause serious harm to Mr Chand. The element of recklessness is made out if you feel sure that the Accused realized that his conduct might cause serious harm to Mr Chand yet he went ahead and acted as he did. What was in the mind of a person is not always capable of direct proof because a person’s state of mind can only be known for sure by the person concerned. However, ordinary experience shows that a person’s intention or knowledge can be inferred by his conduct in any given circumstances. An inference is a logical deduction from proved facts. Whether the Accused realized the consequences of his conduct on the night in question is a matter for you to decide. For that you may look at what the Accused did and said and the reactions of the victim to the circumstances created by the Accused.

[15] If you feel sure that the Accused realized the possibility of causing serious harm to Mr Chand and yet went ahead to assault him in the manner as alleged then the element of recklessness is proven. But if you are not sure that the Accused realized the possibility of a serious harm when he engaged in the alleged act of assault on Mr Chand, then the element of recklessness has not been proven and the Accused cannot be liable for the death of the deceased.

[16] That completes my explanation to you on the crime of manslaughter.

[17] I will now remind you of the evidence led at the trial. In doing this it would be tedious and impractical 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.

[18] You have been presented with a set of Admitted Facts. You must accept the Admitted Facts as true when you determine the charge against the Accused.

[19] There is no dispute that the deceased is Shri Chand who at the time of his death was 56 years old and was a taxi driver. The Accused at the time was 39 years old and a medical doctor by profession. The charged offence occurred on 25 January 2018 at around 3.30am at Regal Lane – a no through road between the Suva Handicraft Centre and Westpac Building in the city. The Accused in his caution interview and in his evidence in court admits that he was involved in a commotion with the deceased over the presence of a child at that time of the night and in that particular location. The prosecution witnesses in their evidence referred to the deceased as an old Indian man and the Accused as an Itaukei man.

[20] The first prosecution witness was Mr Atama Volitivuravura. This witness was a security guard based at the Post Fiji car park in the city. He heard somebody shouting. The noise came from the direction of the TFL building. When he came to the TFL building he saw the Accused standing beside a parked taxi at the Regal Lane. As he approached the taxi, he saw a child of Indian decent sitting in the front passenger seat. He heard the Accused shouting at the deceased and accusing him of abducting the child. The child was distressed- crying, shaking and couldn’t talk to the witness. At the same time the Accused approached the witness and told him to do something about the child by shouting at him. The witness tried to calm the Accused down and brought him towards the TFL building. The witness said the Accused smelt heavily of liquor, his speech was slow, he was staggering and his eyes were red. When the witness told the Accused that this was a police case, the Accused got abusive, used vulgar language on him and challenged him for a fight. He saw the deceased was frightened and shaken. While the Accused was shouting at the witness another security guard by the name Semi arrived at the scene. He requested Semi to look after the child while he went to the Central Police Station to report the incident.

[21] The second witness for the prosecution was Mr Semi Veimateyaki. He was a security guard at the TFL building. He was having a conversation with his friends Vuli and Koroi at the walkway of the TFL building when he heard somebody shouting and yelling. When he walked towards the commotion, he saw the Accused, the deceased and Atama. He saw the Accused was trying to assault the deceased but Atama was stopping him. Semi heard the Accused yell to the deceased for bringing a child to that location at that time of the night. He saw the Accused throw two punches at the deceased – the first landed on the chest and the second landed on his jaw. He said the punch on the chest was a hard punch. The deceased was frightened or scared and weak. After punching the deceased the Accused chased him and while being chased the deceased fell down to the ground twice. The deceased appeared weak after the fall. Semi went back to his guard room when he saw Atama return to the scene from the police station.

[22] The third witness for the prosecution was Mr Jone Koroi. Jone was in the company of Semi and Vuli when he heard somebody yelling or screaming. When he went to enquire he saw the Accused involved in a scuffle with the deceased. He saw the Accused holding and pulling the deceased. He saw the Accused punch the deceased in the chest once. The Accused was heavily drunk while the deceased was frightened or scared. After punching the deceased the Accused chased him. The deceased ran towards the Handicraft Centre and threw stones at the Accused to deflect him from attacking him.

[23] The fourth witness for the prosecution was Digitaki Vuli. He attended to the commotion with Semi and Jone Koroi. He saw the Accused chasing the deceased around a taxi with a child sitting and crying inside the taxi. The Accused heavily smelt of alcohol and was drunk. Vuli saw the deceased was tired while running around the taxi. Vuli was focusing on the distressed child. He saw the Accused punch the deceased on the jaw. It was a hard punch. He saw the deceased had short breath and was unstable. The deceased run towards a passage between the buildings.

[24] The fifth witness for the prosecution was Koroi Tukai, a security guard at the Handicraft Centre. He saw the deceased being chased by the Accused. The deceased was scared, frightened and asking for help. While the deceased was running away from the Accused he fell twice to the ground. The deceased was staggering. The deceased ran towards a BBQ stall owner Jone Vakarisi for help and he threw stones at the Accused in order to deflect him.

[25] The sixth witness for the prosecution was PC Rokouso. When he arrived at the scene of the alleged incident he saw the Accused and the deceased outside a parked taxi and a distressed child inside the taxi. The Accused was angry and aggressive while the deceased was distressed - face and body shaking. The officer told the Accused to go to Totogo Police Station while he accompanied the deceased and the child to the station in the taxi. While on their way to the station, the deceased lost control of the vehicle at the Vodafone triangle. The officer was sitting behind the deceased. He saw the deceased’s hands were off the steering wheel and he was breathing heavily. The officer pulled the deceased’s legs back and pushed him forward and gave him two knocks on his back in the form of CPR. The deceased responded once with his breath. The officer managed to take control of the vehicle and stop it. He called for assistance and transported the deceased to the CWM hospital in a police vehicle. When they arrived at the hospital at around 4am the deceased was unconscious. He handed the deceased to a nurse at the emergency ward and returned to his station.

[26] The seventh witness was PC Nasau. He arrested the Accused when he was brought to the station by some Fijian youths.

[27] The eight witness was Dr Salote who attended to the deceased at the emergency ward. When the deceased arrived at the hospital he was unresponsive and without any pulse. She said the patient had an irregular heartbeat which could have been caused by lack of blood supply to the heart or by some form of stress on the heart as result of an impact. They immediately administered a CPR but the patient did not respond. She called off the CPR at around 4.50am as there were no signs of life.

[28] The last witness for the prosecution was a forensic pathologist, Dr Mate. After conducting post mortem, Dr Mate compiled a report that is in evidence before you. It is not in dispute that the primary cause of death was a severe coronary artery disease that is, narrowing of blood vessels that pumps blood into the heart. In other words, Mr Chand had blocked arteries. The primary cause of death was significantly contributed by two other pre-existing conditions that is, fat buildup within the walls of the blood vessels and a previous heart attack, and a fresh antecedent cause was multiple traumatic injuries to the jaw and chest, both knees and the liver. Dr Mate said that these injuries could have been caused by use of moderate force. The injuries were not severe in the sense that they did not affect the vital organs accept the liver. Dr Mate said that there was a high chance that the multiple traumatic injuries led to Mr Chand’s heart not to function properly leading to his death.

[29] That is a summary of evidence of the prosecution witnesses.

[30] The Accused has elected to give evidence. He was not obliged to give evidence. He does not have to prove his innocence. He does not have to prove anything. However, he has chosen to give evidence. You must take what he has said into account when considering the issues of fact which to determine. Even if you entirely reject the account given by the Accused, that would not relieve the prosecution of its burden of making you sure by evidence of the Accused’s guilt in respect of the charge which you have to consider.

[31] The Accused in his evidence admits being involved in an argument with the deceased on the night in question. He said he was drunk but capable of making decisions. He said that he got into an argument out of concern for the safety of the young child who had accompanied the deceased at that time of the night and at that particular location. He said that the deceased was the aggressor and swore at his mother. He said he punched the deceased on the jaw and may have shoved him and ran after him when he falsely accused him of theft. He said he did not know about the deceased’s medical condition.

[32] The defence case is that it was not the assault of the Accused that significantly caused the death of Mr Chand. The defence says that the Accused is not guilty of manslaughter. The defence says that if the Accused is guilty of anything he is guilty of the alternative offence of assault occasioning actual bodily harm. You may consider an alternative offence even if the Accused is not charged with the offence in the Information.

[33] Assault occasioning actual bodily harm is an offence contrary to section 275 of the Crimes Act. It is an alternative offence to manslaughter.

[34] To establish Assault Occasioning Actual Bodily Harm the prosecution must prove each of the following matters beyond reasonable doubt:

1. The Accused applied force, hit or touched another;
2. He did so intentionally or recklessly;
3. Without consent or lawful excuse; and
4. That action caused bodily harm to the other person.
   

[35] Actual bodily harm is hurt or injury that interferes with the health or comfort of the person assaulted.

[36] Let me summarize the steps for you to determine the charge. Firstly, you must consider the charge of manslaughter. If you feel sure that the Accused voluntarily engaged in use of force or violence against the deceased by physically assaulting him and that it was the conduct of the Accused that significantly contributed to the death or accelerated the death of the deceased suffering from a heart disease and that the Accused realized the possibility of causing serious harm to the deceased and yet went ahead with his assault, then the proper opinion is guilty of manslaughter.

[37] But if you are not sure whether it was the conduct of the Accused that significantly contributed or accelerated the death of the deceased suffering from a heart disease, or if you are not sure if he realized the possibility of causing serious harm to the deceased, then you may consider the alternative offence of assault occasioning actual bodily harm. The Accused is guilty of assault occasioning actual bodily harm if he intentionally or recklessly applied force without the consent, causing hurt or injury to the victim. You will only be asked for your opinion on the alternative offence if your opinion is not guilty of manslaughter.

[38] That concludes my summ> up of the lahe law and the evidence in this particular trial.

[39] We have now reached the stage where you must retire to your room to deliberate together and form yourviduanions on the char charge against the Accused.

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[40] When you have reached your separate decisions you will all come back into Court and you will each be asked to state your opinions. You will not be asked for the reasons for your opinions.

[41] When you have made your decisions would you please advise the Court officer and the Court will reconvene to receive your opinions? Would you please now retire to consider your opinions?

............................................

Hon. Mr Justice Daniel Goundar

Solicitors: Office of the Director of Public Prosecutions for the State
Toganivalu & Valenitabua for the Accused