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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO. 359 OF 2019
STATE
VS
TEVITA KUNAWAVE
Counsel: Ms E Rice for the State
Mr T Lee & Mr W Navuni for the Accused
Date of Hearing: 3 - 5 November, 9 – 12, 23 - 24 November 2020
Date of Summing Up : 26 November 2020
SUMMING UP
[1] Lady and Gentlemen 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 verdict or 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 regulate the procedure or the trial and 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. All matters of fact are for you to decide. 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 exhibits that have been produced. 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. If you have read, heard or come across any media publication about the proceedings during the trial or for that matter any rulings that I have made, you must ignore them 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. The law should be applied in a gender-neutral way, without any value-laden pre-conceptions about the conduct of men and women, or husbands and wives. The law does not have different rules about assaults on wives, or husbands. So you must be dispassionate and neutral in your approach to the case.
[6] The charge against the Accused is brought by the State. The onus of proving the charge rests on the prosecution from beginning to end. 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 guilty.
[7] The Accused has chosen to give evidence. The Accused 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 you have to determine. It is for you to decide whether you believe the evidence of the Accused or whether it may be true. If the account given by the Accused is or may be true, then the Accused must be acquitted of the charge. But 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.
[8] The charge before you is that the Accused on 27 October at Nabua murdered Sred Suliana Talemaitoga Kunawave.
[9] Another crime that arise from the killing of a person is manslaughter and it is appropriate that I should explain both these crimes of murder and manslaughter to you. In its simplest terms, the law is this. If a person engages in a conduct that causes the death of another person and that person either intends to cause death or is reckless as to causing death, he is guilty of murder. However, if a person engages in a conduct that causes the death of another person and that person either intends to cause serious harm or is reckless as to causing serious harm, he is guilty of manslaughter. The main difference between these two offences is the state of mind of the Accused at the relevant time. Murder requires proof of intention to cause death or recklessness as to causing death, while manslaughter requires proof of intention to cause serious harm or recklessness as to causing serious harm.
[10] To prove the charge before you, the prosecution must prove the following three ingredients beyond reasonable doubt:
the death by this conduct.
[11] I will now explain these three elements to you.
[12] The first ingredient that must be proved is that the Accused engaged in a conduct. To engage in a conduct means to do an act of one’s own free will. The prosecution alleges that the Accused deliberately threw a concrete block at his spouse, but the block hit his 4-month old daughter, the deceased, resulting in her death.
[13] The defence says the Accused did not engage in the conduct of throwing a concrete block at his wife or at any other person for that matter. It is for you to consider whether the Accused engaged in the conduct of deliberately throwing a concrete block aimed at his wife and the block missed and hit his daughter, the deceased.
[14] The second ingredient that must be proved is that the conduct of the Accused caused the death of Suliana Kunawave. The law requires a link between the conduct and the death. Usually the conduct causes some specific injury to the victim and that particular injury causes the victim’s death. Usually the conduct causes an injury which is the sole cause of death. But it is sufficient if it is an operating or substantial cause of death. Death does not have to occur immediately after the alleged conduct. The offender remains liable for that death if it occurs at any time within one year and a day of the alleged conduct provided the death is still caused by the conduct. So in this case the prosecution must prove that the Accused by his conduct of throwing a concrete block caused an injury to the deceased and that injury caused her death.
[15] The third element that must be proved for the crime of murder is that the person who caused the death of another by a conduct did so with a particular intention or state of mind. It is an intention to cause death or recklessness as to causing death. You are to consider both intention and recklessness. But you don’t need to be satisfied of both intention and recklessness. Proof of either one is sufficient.
[16] Let me explain the element of intention first. A person has intention with respect to a result if he means to bring it or is aware that it will occur in the ordinary course of events. The prosecution alleges that the Accused intended to cause the death of his wife by his conduct. To prove this specific intention to cause death of the deceased, the prosecution relies upon the doctrine of transferred intent.
[17] Transferred intent is a legal doctrine that holds that, when the intention to harm one individual inadvertently causes a second person to be hurt instead, the offender is criminally responsible. For example, if a man who shoots another intending to kill is guilty of murder of any other person who is killed by his bullet. The prosecution says that the Accused intended to cause the death of his spouse by throwing a concrete block at her, but the block landed on their child resulting in the child’s death. If you feel sure that the Accused threw a concrete block intending to kill his spouse and in the course of that action he caused the death of his child, then the intention to kill is deemed to be present.
[18] So the intention of the Accused in the course of his attack on his spouse is material to the charge of murder or manslaughter of his child. If the Accused’s intention was to kill his wife, then he is guilty of murder of the deceased under the doctrine of transferred intent. But if his intention was not to cause death but to cause serious harm to his spouse, then he is guilty of manslaughter of the deceased under the doctrine of transferred intent.
[19] Let me now explain to you the element of recklessness. Like intention, reckless is both an element of murder and manslaughter.
[20] A person is guilty of reckless murder if he was aware of a substantial risk that death will occur and having regard to the circumstances known to him he was unjustified to take that risk. The first step is to decide if there was a risk and whether the risk was “substantial”. The risk is substantial if a reasonable person, under the circumstances as they were known to the Accused, would have taken the risk to be substantial at the time it was taken. If you find a reasonable person would have taken the risk to be substantial at the time it was taken, then you must decide whether the Accused was aware of that substantial risk, that is, death will occur. If you find that the Accused was aware of a substantial risk that death will occur then go to consider whether having regard to the circumstances known to him he was unjustified to take that risk. Whether taking the risk was unjustified is a question of fact for you to determine.
[21] Let me now explain the element of recklessness as it applies to manslaughter. A person is guilty of reckless manslaughter if he was aware of a risk that serious harm will occur by his conduct and having regard to the circumstances known to him he was unjustified to take that risk. Again, whether taking the risk was unjustified is a question of fact for you to determine having regard to the circumstances known to the Accused.
[22] In deciding the fault or the mental elements of murder and manslaughter, there is a further direction that I need to give you on the relevance of intoxication. There is evidence that the Accused had consumed significant amount of alcohol before the alleged incident.
[23] When deciding the fault elements of murder, if you think that, because the Accused was so drunk, he did not intend or may not have intended to cause death, or that he was not aware or may not be aware of a substantial risk that death will occur, then he cannot be guilty of murder. This means that the Accused did engage in a conduct that caused the death of the deceased but it is not proved that the Accused had the necessary intention to cause death or was aware of a substantial risk that death will occur. But if you are sure that, despite his drunkenness, he intended to cause death or was aware of a substantial risk that death will occur then this element of the charge is proved against him.
[24] You must also take into account the evidence of intoxication in deciding the fault elements of manslaughter if you conclude that the Accused is not guilty of murder. If you decide that the Accused did not intend or may not have intended to cause serious harm or may not have been aware of the risk that serious harm will occur due to his state of intoxication at the relevant time, then the fault elements of manslaughter are not proven and he cannot be guilty of that offence. But if you are sure that, despite his drunkenness, he intended to cause serious harm or was aware of a risk that serious harm will occur then this element of the charge is proved against him and the proper opinion would of guilty of manslaughter.
[25] If you feel sure that the Accused engaged in the conduct of deliberately throwing a concrete block at his wife, either with an intention to cause her death or with the knowledge of a substantial risk that death will occur the Accused is guilty of murder unless you conclude that this was or may have been a case of provocation. In this case there is evidence that the Accused’s wife swore at him, broke the phone and threw his clothes out of the house.
[26] Provocation is not a complete defence, leading to a verdict of ‘Not guilty’. It is a partial defence, reducing what would otherwise be murder to the lesser offence of manslaughter. Because the prosecution must prove the Accused’s guilt, it is for the prosecution to make you sure that this was not a case of provocation, and not for the Accused to establish that it was.
[27] Provocation has a special legal meaning, and you must consider it in the following way. Firstly, you must ask yourselves whether the Accused was provoked in the legal sense at all. A person is provoked if he is caused suddenly and temporarily to lose his self-control by things that have been said and/or done by the complainant rather than just by his own bad temper. If you are sure that the Accused was not provoked in that sense, the defence of provocation does not arise, and the Accused is guilty of murder.
[28] But if you conclude that the Accused was or might have been provoked, in the sense which I have explained, you must then go on to weigh up how serious the provocation was for this Accused. Is there anything about this Accused which may have made what was [said and/or done] affect him more than it might have affected other people?
[29] Finally, having regard to the actual provocation and to your view of how serious that provocation was for this Accused, you must ask yourselves whether a person having the powers of self-control to be expected of an ordinary, sober person, of the Accused’s age and sex (a male in his mid-twenties), would have been provoked to lose his self-control and do as this Accused did. If you are sure that such a person would not have done so, the prosecution will have disproved provocation, and the Accused is guilty of murder. If, however, you conclude that such a person would or might have reacted and done as the Accused did, your opinion would be ‘Not guilty of murder, but guilty of manslaughter by reason of provocation’.
[30] That completes my explanation to you on the offences of murder and manslaughter.
[31] The evidence relied upon by the prosecution in this case is circumstantial evidence. A common example of circumstantial evidence is fingerprint evidence. Suppose a person’s fingerprints are found on an object at the scene of a crime, such as a murder weapon. It could be inferred that the person has handled that weapon and been present at that place. The inference could be drawn even though there is no direct evidence that the person was seen there.
[32] On some occasions evidence like fingerprints may be the only circumstance relied upon by the prosecution as proof of guilt. However, it is not unusual to find in a criminal case that evidence is given of a number of facts and circumstances. One witness proves one thing and another proves another thing. None of those things alone may be sufficient to establish guilt but, taken together, one circumstance building upon the other, they may lead to the conclusion that the Accused is guilty of the crime. In this case, the prosecution is relies upon the circumstantial evidence to prove that the Accused threw a concrete block directly at the spot where his wife was sitting intending to hit her to cause her death and that the block missed and killed the deceased.
[33] Counsel for the prosecution has directed your attention to a number of facts and circumstances which she submits have been proved by the witnesses. You are asked to draw from those facts and circumstances the inference that the Accused is guilty of the charge. Therefore, you must first consider all the evidence and decide what facts have been proved. From those facts you are entitled to draw proper inferences. An inference is a logical deduction from facts that have been proved. It must not be mere speculation or guesswork. It is not sufficient that the proved circumstances are merely consistent with the Accused having committed the crime.
[34] To find the Accused guilty you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt that the Accused committed the crime. If the inference to be drawn from the circumstantial evidence falls short of that standard then your opinion must be not guilty.
[35] One of the inferences that the prosecution asks you to draw in this case is the state of mind of the Accused. If he did attack his wife, what was his intention when he did that? The prosecution says that the Accused intended to cause his wife’s death, or at the very least, was aware of a substantial risk that death will occur.
[36] A person’s state of mind is as much a question of fact for you to determine as any other question of fact. It is not possible to have direct evidence of this. No witness can look into the Accused’s mind and describe what he was thinking at any particular time. However, it is something that can often be inferred from all the proved facts and circumstances. They include, for instance, what the Accused himself actually did. That will often be a very important matter.
[37] A person’s actions, in themselves, may clearly show his purpose or intention. Other matters that may be relevant are what the Accused said and did before the alleged offence. What the Accused said at the time of the alleged offence. What the Accused said and did after the alleged offence, including his statement to the police, and what the Accused said in evidence. You should consider all the proved facts and circumstances, including those I have just mentioned, and from them you are entitled to draw proper inferences as to the Accused’s intentions and knowledge.
[38] On the basis of these legal principles that I have explained to you, you must consider the evidence in this case and decide whether the charge of murder has been proved by the evidence led by the prosecution.
[39] In this case the following facts are not in dispute and you must treat the admitted facts as accurate and true:
[40] The prosecution led evidence from thirteen witnesses and tendered nine exhibits. The defence led evidence from the Accused.
[41] I will now remind you of the prosecution and defence cases. 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.
[42] The first witness for the prosecution was D/Cpl Inoke Kuru. On 28 October 2019, Cpl Kuru accompanied a team of police officers to the property at Mawaraka Place in Nabua where the alleged incident took place. He said he seized a concrete block from outside the property and labeled it with an exhibit number. He identified that concrete block with his markings in court and tendered it as PE 1.
[43] In cross-examination, D/Cpl Kuru agreed that the concrete block that he had seized and tendered as evidence is a 16 inch concrete block. He also agreed that when he arrived at the property, the scene of the crime had been disturbed, that is, the place had been cleaned and things had been moved around. He also agreed that the mesh grill on the window close to the porch door was hanging loose on the window frame without any nails. He said apart from visiting the alleged scene of the crime he also arrested the Accused from the army barracks and brought him to Nabua Police Station.
[44] The second witness for the prosecution was Mereseini Rauluni. Her nickname is Bale. She is the spouse of the Accused and the mother of the deceased. Bale said that on the afternoon of Saturday, 26 October 2019, the Accused left their home for a haircut and returned at about 8 pm. He remained at home drinking alcohol with his friends until 2 am Sunday morning when he went away with his friends. He returned home after 11 am when the alleged incident occurred. She said she was at home with her daughters, Inny and the deceased, Suliana.
[45] Bale said that when the Accused returned home, he told her that he was at the Ocean View Motel. While they were at their home, Bale’s sister and a friend arrived. She said the incident occurred when her sister and friend left for shops with Inny. Bale said that she got upset when she saw a picture of two women on the mobile phone that the Accused had brought home that day. She said that the Accused had told her that the mobile phone was given to him by a woman. She said that she damaged the phone by cracking it with a cup. She said that when the Accused saw what she did, he reacted angrily and swore at her in Itaukei which translated to “mother’s vagina” and “bad generation”. At that moment she was inside the living room. He was at the porch drinking left over liquor from the previous night with his friend, Joeli.
[46] Bale said that she locked the entrance door to the living room because she was afraid that the Accused would enter the house and assault her. She said that the Accused removed the mesh grill from the window next to the entrance door and broke the glass louver blades. He entered the living room through that window and punched her on her right arm with his fist. She fell down. He kicked her right ribs. She said that she felt pain. He dragged her by her hair and took her to their bedroom and hit her with his work belt which was thick and green in colour. She said he was yelling at her when he was assaulting her. After assaulting her he went outside through the backdoor and returned to the front porch.
[47] Bale said after the Accused had returned to the porch, she went and grabbed his clothes from his bedroom and threw it out through the broken window in the living room. When she did that the Accused entered the house from that same window for the second time and punched her on her right arm with his fist and then went outside. Bale said that when she was still crying inside the living room her sister, friend and daughter arrived back from the shops. She said that they came into the living room and that she left the door open. She said that they cleaned up the broken glass in the living room. They remained in the living room after cleaning. She said that she sat on the couch with her back towards the window while her sister and her friend sat on the floor close to the sofa with the deceased in the baby bouncer. She said her daughter Inny was walking around the house.
[48] Bale said that at around 5 pm the Accused started calling her by her name to open the front porch door. She said that she had locked the door as she didn’t want him to come back inside the house. She said that the curtains on the side windows were made of thick fabric and were down. She said that she did not respond to his calls. She said that she could see him through the lace curtains on the middle window. She said that she saw him bend down. She heard her sister shout. That’s when she realized her baby was injured. She took the deceased to the military hospital and later identified her at the mortuary.
[49] In cross examination, Bale said that she did not see a concrete block inside the living room. Bale accepted that she also swore using the same words that the Accused was using on her.
[50] The next witness was the sister of Bale, Taraivosa Raulini. She is also known by the name Vosa. Vosa said that she came to her parent’s home for a visit on Sunday, 27 August 2019. She said that after having lunch she accompanied Suli to a supermarket. They took Inny with them. When she returned to Bale’s home from the supermarket, she noticed that the mesh grill from the window nearest to the entrance door at the porch had been removed. She also noticed broken glass louver blades on the floor of the living room. She also noticed a bruise on Bale’s left arm and that she was distressed. This was around 4 pm.
[51] Vosa said that they cleared the broken glass from the living room. She said that the Accused was with Joeli at the front porch. After cleaning the mess, Vosa said that they sat down in the living room. Bale sat on the sofa in front of the broken window, while Vosa and Suli sat in front of her on the floor with the deceased in a baby bouncer. Vosa said she sat at the feet end of the baby bouncer while Suli sat on the opposite side. Vosa said she heard the Accused call Bale four to five times. When Bale did not respond, Vosa said that she heard the Accused swore at them. Vosa said that the Accused sounded angry. His tone was harsh. Vosa said that all of a sudden a concrete block came flying through the window and hit the deceased on the baby bouncer before it landed on the floor. She said that Bale then ran outside carrying the deceased and a neighbour helped them to take the baby to the hospital.
[52] The next witness was Joeli Vulavou. Joeli is the Accused’s army friend. Joeli’s evidence is that he was with the Accused on Saturday, 26 October 2019 from 11 am till 2 am Sunday, drinking alcohol at the Accused’s residence at Nabua. They drank 40 ounce rum. That morning they eventually ended up at the Ocean View Motel for more drinks after clubbing in town. From the Ocean View Motel he accompanied the Accused back to his residence at around 11 am. They continued drinking at the porch after they arrived at the Accused’s residence.
[53] Joeli said when Vosa and Suli left for shops, the Accused and Bale got into an argument. They both swore at each in Fijian. He said that the Accused was on the porch and Bale was inside the house. He said that the Accused got angry when Bale broke the phone. He said he saw the Accused enter the living room after removing the mesh grill and louver blades from a window at the porch. Joeli said that he heard the Accused punch Bale, but he did not see the incident because he was sitting down. He heard Bale crying and shouting for help. He said that he told the Accused to calm down and return to the porch to drink with him. The Accused returned to the porch and they continued drinking. He said that before Vosa and Suli returned home from the shops, he saw Bale throwing out the Accused’s clothes through the broken porch window and the back entrance door.
[54] Joeli said that when Vosa and Suli returned, they cleaned the house and replaced the broken louver blades. After replacing the louver blades they closed the window and also closed the curtains. Joeli said that at about 5 pm, he heard Bale and her friends swear at the Accused from inside the house. He said that the Accused swore back and tried to enter the house but the door was locked. Joeli said that he heard the windows smash or break and Bale running out to the yard from inside the house. He said that he did not see the incident because he was very drunk and was dozing off to sleep. He said that he saw the concrete block outside at the entrance of the veranda about 5 minutes after the incident.
[55] The next witness was Dr Ilaitia Tuisese. Dr Tuisese attended to the deceased on Sunday at about 5.30 pm at the military hospital. Dr Tuisese said he did conduct a CPR on the deceased but there was no pulse or breath. He said that the deceased was clinically dead. He noted swelling and bruises on the left cheek of the deceased. He transferred the deceased to the CWM hospital.
[56] The next witness was Suliano Nayago. She is a friend of Bale and is also known by the name Suli. Suli’s evidence is that she was at Bale’s residence on Sunday 27 October 2019 when the incident occurred. When Suli returned from the shops, she learnt that Bale and the Accused had an argument. She saw broken louver glass scattered inside the living room. She helped to clean up the broken glass. After that she sat on the floor of the living room next to the deceased in the baby bouncer. She said that Vosa sat opposite her at the other end of the baby bouncer while Bale sat on the Sofa next to the broken window.
[57] You will recall the prosecution was allowed to treat Suli as a hostile witness - a witness who had in effect changed sides and cross-examine her on her police statement dated 28 October 2019 to show that she had given an account on a previous occasion which was inconsistent with the account which she gave in court.
[58] Suli’s evidence on oath is that she did not see anything coming through the window and hit the deceased. In her police statement, which is marked PE 2, Suli said that she saw something fly from the window and when she heard Mereseini shout she then saw a piece of concrete block had hit the face of the deceased while she was lying on the bouncer.
[59] When cross-examined, Suli maintained that her evidence on oath is correct and not what she had said in her police statement about something flying through the window and hitting the deceased while she was in the bouncer. Suli’s evidence is that when Vosa screamed suddenly everyone in the living room went frantic and the next thing she remembered was that Bale was holding the deceased. Suli said that when she heard Vosa scream she knew something bad had happened to the baby. Suli said that she saw broken glasses and a concrete block in the living room next to the baby bouncer.
[60] You may take into account any inconsistency and Suli’s explanation for it when considering her reliability as a witness. It is for you to judge the extent and importance of any inconsistency. If you conclude that there is a serious conflict between the account Suli gave in court and her police statement, you may think that you should reject her evidence altogether and not rely on anything said by her either on the previous occasion or when giving evidence. However, if after careful consideration, you are sure that you can rely on all or part of what she said on previous occasion or when giving evidence, you take it into consideration in reaching your opinion.
[61] Witness number seven was Sowane Lesibobo, the next door neighbour of the Accused at Marakawa Place. Sowane’s evidence is that on 27 October 2019 at around 5 pm, he heard arguments and sounds of glass breaking coming from his neighbour and then he saw Bale running towards him crying and holding the deceased. He said that the Accused came and asked Bale to forgive him, but he had to rush the mother and the child to the hospital on his vehicle.
[62] The next witness was Maciu Saqivere, a soldier based at the Military Police, Nabua. The officer said that on 27 October 2019 at about 6 pm he brought the Accused from his residence in Nabua and placed him in a cell at the military base for his personal safety. The officer said that when he arrived at Mawaraka place the Accused was standing with Joeli on the driveway of his residence. He said that the Accused went inside the house to change his clothes before he was brought to the military base. He said the military officers train two days in a week for their fitness.
[63] The next witness was Taraivini Waseiyaroi, a medical doctor who examined the Accused on 30 October 2019 at the Raiwaqa Health Centre. The purpose of the examination was to look for injuries that might have been caused while the Accused was in police custody. After examining the Accused the doctor noted her findings in a report which was tendered in evidence as PE 3. The doctor noted that the Accused had nil injuries and that he was able to recall everything that happened leading to the incident.
[64] The next witness was Detective Sergeant Loraini Chang. Sgt Chang was assigned as the investigating officer in this case. She told the court that that she drew sketch plans of the scene where the alleged incident took place. The sketch plans are marked PE 6. Sgt Chang also took measurements of the living room and the porch and the distance from the window to the baby bouncer. The size of the living room was about 3.5 by 4.8 meters and the distance from the window to the baby bouncer was about two meters.
[65] Sgt Chang also caution interviewed the Accused. The Record of Interview is an agreed document and is marked PE 4.
[66] In his interview (PE 4), the Accused answered questions 1-109, and thereafter exercised his right to remain silent. In his interview, the Accused admitted entering his house through the window by removing the mesh grill but says be accidently broke two louver blades while trying to gain entering through already damaged louver blades. He said after gaining entry into the living room he punched Bale three times on her arm and slapped both her ears. He said that he could not recall using a belt on her. After that he returned to the porch and continued drinking with Joeli. He said that when Bale threw his clothes outside, she swore at him when he asked her to open the door for him to put his clothes back inside the house. He said that he swore back at Bale. He said that Bale continued swearing at him and Joeli his friend looked at him and made fun of him.
[67] The Accused’s statement to the police contains both incriminating parts and excuses or explanations. The weight you give to the answers he gave up to question 109 is a matter for you. It is for you decide whether the Accused gave those answers and the answers are true. For the other part of the interview he either refused to answer questions or remained silent. You must not hold his silence or refusal to answer questions against him. This means that it cannot, by itself, provide any additional support for the prosecution case.
[68] The next witness was Dr Avikali Mate, forensic pathologist who conducted the post-mortem examination on the deceased. The post-mortem examination was conducted on 29 October 2019 at the CWM Hospital. After conducting the examination Dr Mate recorded her findings in a report which was tendered in evidence as PE 8. The doctor noted that the deceased had irregular bruised abrasions of varying sizes over the left side of the forehead. The doctor also noted significant injuries to the deceased’s scalp, skull and brain. The deceased’s skull had multiple fractures showing internal bleeding and brain tissues coming through the opening of the bone.
[69] Dr Mate said that in her opinion the deceased died of brain injury linked to multiple skull fractures caused by blunt force trauma to the head. She said that hitting a baby or an adult with a concrete block like the one tendered as PE 1 could cause the type of injuries found on the deceased, depending on the size and weight of the block and how it lands on the person. In cross-examination, the doctor said she would have come to the conclusion that the injuries on the deceased were consistent with a blunt force trauma if the investigating officer would not have informed her that a concrete block had landed on the deceased.
[70] In this case, Dr Mate was called as an expert on behalf of the prosecution as a forensic pathologist. Expert evidence is permitted in a criminal trial to provide you with medical opinion, which is within the witness’s 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 one particular aspect of the evidence namely the cause of death.
[71] A witness called as an expert is entitled to express an opinion in respect of her findings or the matters which are put to her and you are entitled and would no doubt wish to have regard to this evidence and to the opinions expressed by the expert when coming to your own conclusions about this aspect of the case. You should bear in mind that, if having given the matter careful consideration, you don’t accept the evidence of the expert, you do not have to act upon it. It is for you to decide whose evidence you accept, if any. You should remember that this evidence relates only to part of the case, and whilst it may be of assistance to you in reaching your opinion, you must reach your opinion having considered all the evidence.
[72] The final two witnesses for the prosecution were Sergeant Laisa Kuiyaca and PC Aceni Toga. These two police officers were involved in the recording of the Accused’s charge statement which was tendered in evidence as PE 9. This charge statement was recorded on 30 October 2019 at the Nabua Police Station by Sgt Kuiyaca and witnessed by PC Toga.
[73] Both of these police officers gave evidence of the procedure and the manner in which the statement of the Accused was recorded. They have said that the statement of the Accused was accurately recorded. PE 9 contains a statement, which is relied upon by the prosecution to suggest that the Accused had something do with the death of the deceased for him to seek forgiveness and state that it was not his intention to kill his daughter.
[74] The defence says that this charge statement (PE 9) was never made by the Accused but was fabricated by the police. Before you rely on the Accused’s charge statement you must feel sure that the Accused did in fact make the statement and that the statement is true. If you conclude that the Accused either did not make the statement or that the statement is not true, then you must disregard the statement.
[75] That is a summary of the evidence of the prosecution witnesses.
[76] I will now summarize the evidence of the Accused.
[77] The Accused in his evidence said that on Saturday 26 October 2019, he drank two cartons of Joskee and then a forty ounce rum with his army friends. He left his home with his friends for a nightclub in town. At around 5 am he accompanied his friends to the Ocean View Motel where they continued drinking. He said that while he was at the motel he met some people including two women and one of the boys in that group handed him a mobile phone. The Accused said that he took the phone thinking it was his, as it was the same colour as his phone. He remained at the motel drinking until midday when he returned home with his friends.
[78] The Accused said that when he arrived home, Bale questioned him as to why he did not answer his phone when she called him. He said that he handed over his phone to Bale when she gave him the leftover bottle of rum from the previous night. He said that he did not know that the phone he handed to Bale was not his. He said that he continued drinking on the porch the leftover rum with his friends. He said he fixed a broken door and then had his shower. After that he returned to the porch and continued drinking with his friends.
[79] In relating to the incidents of assault the Accused said that when Bale found picture of two women on the phone she questioned him about it and when he told her that the phone did not belong to him, she came out with a bucket of water and poured it on him. He said that he got angry as he just had his shower. He said that Bale went inside the house from the back entrance door and locked it. He called out to Bale to open the door but she did not open. He said that he returned to the porch and continued drinking with Joeli, as his other friend had left by then. He said that when he returned to the porch he swore at Bale, calling her ‘Cicilevu’ meaning big ass. He said that Bale came close to the windows near the porch, showed him the phone and then damaged it in front of him.
[80] The Accused said that he was angry because he thought Bale had damaged his phone. He said that he went to the backdoor and when Bale refused to open it he returned to the porch. He said that he heard Bale swore at him. He said that he pulled the mesh grill from the window and forced himself inside through the two missing louvers. He said that he saw Bale standing in front of him. He said that he was angry because she was screaming and yelling. He said that he threw two punches that landed on her shoulder and then he slapped her on the ear. He said that after punching and slapping Bale he returned to the porch through the backdoor. He said that while he was drinking on the porch, Bale threw his clothes through the backdoor and also the window which he had used to get inside the house. He said that after his clothes were thrown out by Bale, Vosa and Suli returned home from the shops and went inside the house. He said that he saw Vosa replace the missing louvers from the broken window and close the curtains.
[81] The Accused said that he called out to the three women inside the house to put back his clothes inside the house, but they swore at him calling him “mother’s vagina, bad generation, go to your house’. He said that he went to the backdoor to get inside the house but the door was locked. He said that he swore at them to open the door but when they didn’t open he went back to the porch. He said that as he sat down he heard Bale swore at him.
[82] The Accused said that there was a concrete block used to barricade the entrance of the porch. He said that he picked the block with one hand and swung it towards the frame of the middle window. He said that the block missed the window frame and hit the mesh grill on the window next to the door. He said that the glass louvers on that window got smashed and the block fell down on the porch and cracked.
[83] After that the Accused said that he called out to them to open the door. He saw Bale running out of the house screaming and carrying the deceased. He said that he went to Bale and asked her to allow him to hold the deceased but she refused. He said that he asked her for forgiveness when he saw that there was a swelling at the back of the head of his child. He said after that the military arrived and he was taken to the military camp. He said before being taken to the military camp he went inside the house to change his clothes. He said that when he went to change his clothes he didn’t see any concrete block inside the house.
[84] The Accused said that when he was taken to Nabua Police Station he answered the questions under caution until he had a conversation with a fellow cellmate, after which he said he told the police that he will not answer any more questions. He said when he told the police that he was not going to answer any more questions, the police got angry with him. The Accused said that when he was charged he did not make the statement contained in PE 9.
[85] When the Accused was cross-examined on his version of the events, he implied that one of the women who was present inside the house at the relevant time caused the fatal injury to the deceased. He maintained that the concrete block hit the mesh grill and fell down on the porch and broke.
[86] That is a summary of the evidence of the Accused.
[87] Since the Accused in his evidence introduced a new matter which the prosecutor could not have foreseen, the court allowed the prosecutor to adduce evidence in reply to rebut the matters raised by the defence. You heard Mereseini Raulini (the mother of the deceased), Taraivosa Raulini (the aunt of the deceased) and Suliana Nayago recalled and questioned whether they caused the death of Suliana Kunawave or were responsible for the injuries that the deceased sustained while she was under their care on 27 October 2019. All three witnesses said that they did not cause any injuries to the deceased while she was under their care on 27 October 2019. The defence did not cross-examine the witnesses on their rebuttal evidence, and the prosecutor invites you to consider whether the Accused’s evidence that the concrete block did not enter the house but fell outside on the porch is credible. That is a matter, of course, for you to consider.
[88] You have been presented with two different versions. The prosecution says that the Accused deliberately threw a concrete block into a small size room aiming at his wife with the intention to hit her with the block and cause her death or with the knowledge of a substantial risk that death will occur. The prosecution says that the concrete block missed the Accused’s wife but hit the deceased on the head resulting in a brain injury that caused her death. The prosecution says that the Accused is guilty of murder.
[89] The defence says that the Accused swung the concrete block at the window frame and not at his wife or any other person for that matter. The defence says that the concrete block hit the mesh grill and fell down on the porch and broke. The defence says that the concrete block did not enter the house at any time. The defence says that the Accused is not criminally responsible for the injuries or death of the deceased.
[90] You will have to evaluate all the evidence when you consider the charge against the Accused has been proved. As I said earlier, it is your job to assess the credibility of the witnesses. You decide who is truthful and to be believed.
[91] Let me sum up for you the various steps you are to follow.
[92] You must first of all consider whether the Accused of his own free will engaged in the alleged conduct that caused the death of the deceased. If you feel unsure that the Accused engaged in the alleged conduct that caused the death of the deceased then you must find the Accused not guilty and the matter end there.
[93] If you feel sure that the death of the deceased was caused and that it was caused by the conduct of the Accused, then go to consider whether the Accused either intended to cause the death of his wife or was aware of a substantial risk that death will occur at the time he took the risk and that having regard to the circumstances known to him he was unjustified to take that risk.
[94] If you feel unsure whether the Accused intended to cause death by his conduct or was aware of a substantial risk that death will occur, then go on to consider whether the Accused is guilty of manslaughter. If feel sure that the Accused by his conduct caused the death of the deceased and that he intended to cause serious harm or was aware of a risk serious harm will occur then you render opinion of guilty of manslaughter.
[95] If you feel sure that the Accused acted with intent to cause death or was aware of a substantial risk that death will occur you will go on to consider provocation. If you feel unsure that there was no provocation, or accept that there was provocation, then you will render opinion of guilty of manslaughter.
[96] If you feel sure that the Accused engaged in a conduct that caused the death of the deceased and that despite being drunk he either intended to cause death by his conduct or was aware of a substantial risk that death will occur when he engaged in the conduct, and you also feel sure that there was no provocation, you will advise me that the Accused is guilty of murder.
[97] Your possible opinions are, guilty of murder, or guilty of manslaughter, or not guilty of any offence.
[98] Lady and Gentlemen assessors, that concludes my summing up of the law and the evidence in this particular trial.
[99] We have now reached the stage where you must retire to your room to deliberate together and form your individual opinions on the charge against the Accused. You may have with you any of the exhibits that you would like to consider.
[100] When you have reached your separate decisions you will all come back into Court and you will each be asked to state your separate opinion.
[101] Would you please now retire to consider your opinions? When you have made your decisions would you please advise the court clerk and the Court will reconvene to receive your opinions?
Thank you.
. ...........................................
Hon. Mr Justice Daniel Goundar
Solicitors:
Office of the Director of Public Prosecutions for the State
Legal Aid Commission for the Accused
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URL: http://www.paclii.org/fj/cases/FJHC/2020/998.html
