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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
HIGH COURT CRIMINAL CASE NO: HAC 004 OF 2008
CRIMINAL CASE NO: 2 OF 2008
BETWEEN:
STATE
PROSECUTION
AND:
ALIPATE SOWANE
ACCUSED PERSON
Counsel: State - Mr. Kaisamy and Mr. L Savou
Accused Person - Mr. Lee
Date of Hearing: 6, 7, 8, 9, and 12 April 2010
Date of Summing Up: 14 April 2010
SUMMING UP
Madam Assessor and gentlemen Assessors.
It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact. 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 form your opinion as to whether the accused is guilty or not guilty.
The Counsels for the Defence and Prosecution made submissions to you about the facts of this case. That is their duty as Defence Counsel and State Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.
You will not be asked to give reasons for your opinions but merely your opinion themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that they will carry great weight with me when I deliver my judgment.
On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty.
The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of the accused’s guilt before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt then you must express an opinion that he is not guilty.
Your decisions must be solely and exclusively upon the evidence, which you have heard in this court and upon nothing else. You must disregard anything you might have heard about this case, outside of this courtroom.
Your duty is to find the facts based on the evidence apply the Law to those facts.
The accused is charged with the offence of murder and it is alleged that he murdered Taniela Lavo Bokini on 1st January 2008. The offence of murder has three elements which prosecution must satisfy you beyond reasonable doubt.
They are:
I will now explain these three elements to you. An unlawful act is something done by a person that is against the law. A very common example of unlawful act is where a person deliberately applies force to another person without legal justification. If a person intentionally strikes another person without legal justification then that is a criminal assault. In such circumstances a person who deliberately punches, kicks or hits another person without legal justification then that is a criminal assault.
In this case state alleges that the accused threw a stone on the deceased and caused injury which caused death of the deceased.
Defence says that the accused acted in self Defence. Further prosecution alleges that right throughout the prosecution case the defence did not take the defence of self-defence but sudden provocation and for the 1st time self defence was brought by accused when giving evidence and therefore witnesses for prosecution could not reply on evidence on the self-defence.
Accused admitted that he threw a stone on Taniela in his caution interview statement. Further in the written agreed facts it is agreed that the accused threw the victim with a stone and that the stone hit the victim and the victim fell on the ground. Further that the victim became unconscious due to the impact of the rock. In evidence in Court also the accused admitted that he threw a stone on the victim.
So if you are satisfied that the accused was or may have been acting in lawful self-defence of himself you must find him not guilty. Because prosecution must prove that accused’s guilt beyond reasonable doubt. You must consider the matter of self-defence in the light of the situation on all evidence placed before you. You must first ask whether the accused honestly believed that it was necessary to use force to defend himself.
If you are sure that the accused did not believe that it was necessary to use force to defend himself, he cannot have been acting in self defence, and you need not consider this any further. But if you think that the accused did honestly believe or may have honestly believed that it was necessary to use force to defend himself, you must then decide whether the type of amount of force the accused used was reasonable.
Obviously a person who is under attack may react on the spur of the moment and he cannot be expected to work out exactly how much force he needs to use to defend himself. On the other hand if he goes over the top, uses force out of all proportion to the anticipated attack on him or more force then is really necessary to defend himself the force used would not be reasonable. So you must take into account both the nature of the attack on the accused and what he then did.
If you are sure that the force the accused used was unreasonable, then the accused cannot have been acting in Lawful Self Defence. But if you think that the force the accused used was or may have been reasonable you must find him not guilty.
The second element of the offence that must be proved is that the unlawful act caused the death of the victim. The Law requires a link between the unlawful act and the death.
As a matter of Law I must tell you that a witness can give evidence on his observations like what he heard, what he saw and what he perceived. Only on certain circumstances court would allow witnesses to give their opinions on the matter. These witnesses should be experts on that particular subject. For example you get experts on medical field. Three doctors including the pathologist gave evidence and their expertise was not challenged and therefore their opinions are admissible.
Pathologist gave evidence as to the cause of death
The 3rd element that must be proved for the crime of murder is that the person who caused the death of another by an unlawful act did so with "malice aforethought". This is legal term which describes a particular intention or state of mind.
It is an intention to cause death or grievous harm to the victim or knowledge that death or grievous harm would probably be caused.
Grievous harm means any bodily hurt which seriously or permanently injures health or which is likely to seriously or permanently injure health.
Therefore the State must prove that the Accused threw the stone on the deceased causing his death and at that time he intended to cause serious or permanent injury to the deceased or he knew that serious or permanent injury would be likely to be caused to the deceased.
In this case, you heard evidence that on the day in question the Accused had been drinking. He had been drinking since 11.00a.m. the day before. In his caution interview statement which was marked as an exhibit he had said that he was blackout as he was very drunk.
You must not find the Accused guilty unless you are sure that the Accused, when he did the act, intended to kill or cause grievous harm to the deceased. In deciding whether he intended to kill or cause grievous harm you must taken into account the evidence that he was drunk. If you think that, because he was so drunk, he did not intend or may not have intended to kill or cause grievous harm, then you must find him not guilty of murder but guilty of manslaughter. This means that the Accused did an unlawful act that caused the death of the victim but it is not proved that the Accused had the necessary intention to kill or cause grievous harm. He would then be guilty of the crime of manslaughter, even though the fatal consequences or causing grievous harm was not intended or contemplated by him. But if you are sure that despite his drunkenness, he intended to kill or cause grievous harm to the deceased then this element of the charge is proved against him. A drunken intent is still intent.
If you are sure that the Accused unlawfully killed the victim, intending to kill the victim, or to cause the victim really serious injury, the Accused is guilty of murder unless you conclude that this was or may have been a case of provocation. 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.
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 deceased 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.
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?
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 (male in his early twenties), would have been provoked to lose his self-control and do as this Accused did. If you are sure that 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, your opinion would be ‘Not guilty of murder, but guilty of manslaughter by reason of provocation.
You should consider all the proved facts and circumstances, and from them you are entitled to draw proper inferences as to the Accused’s conduct, knowledge and intentions.
That completes my explanation to you on the crime of murder.
As a matter of Law may I direct you on circumstantial evidence.
In circumstantial evidence you are asked to piece the story together from witnesses who did not actually see the crime committed, but give evidence of other circumstances and events that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime.
A common example of circumstantial evidence is fingerprints evidence. Suppose a person’s finger prints are found on object at the scene of crime. It could be inferred that he had been there. If this finger prints are found on a weapon it can be inferred that he used it. One witness may prove one thing and another witness may prove another thing. None of those things separately alone may be sufficient to establish guilt but taken together may lead to the conclusion that the accused committed the crime.
Therefore you must consider all direct evidence as well as circumstantial evidence.
It must not be mere speculation guesswork. It is not sufficient that the proved circumstances are merely consistent with the Accused having committed the crime. To find him 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.
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 the deceased, what was his intention when he did that? The State says that he intended to kill him or at the very least, to cause grievous harm to the deceased.
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. A person’s actions, in themselves, may clearly show this 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 beliefs, knowledge, purposes and intentions.
On the basis of these legal principles that I have explained to you, you must consider the evidence in this case and decide what 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.
The Evidence
The first witness called by the prosecution was Iliesa Kurumaira. His evidence was that on 31st December 2007, he drank grog with Taniela and Josaia Taka till midnight. Thereafter they went to Nabouciwa as Ledua invited them to drink grog. There the generator had been off and nothing was happening. Then they met some people whom they knew before who were drinking and they were invited by those people to drink. Those people included Esita, Makitalena, Vitorina, Simeli, Alipate and Petero.
While they were drinking one of them from the other group had taken the bucket of home brew. On that Taniela started talking and swearing at the person who went with the bucket of home brew. Then they left the place and still Taniela continued to talk. Three females had wanted them to drop them at their houses. When Taniela continued to talk, Alipate the accused had told Taniela that if he disagrees with taking back the home brew then can have a fair deal meaning a fight. In between the argument Taniela had threw a punch on accused and accused ran away. Meantime, one of the female’s husband Elia had come and punched his wife and then punched all around and that had been settled.
Then Alipate had come with a group. In between the altercation Taniela had punched Elia and the witness Iliesa went between them and it was settled.
In the process accused Alipate had come and shouted stating that Taniela should be punched. When the witness trying to stop them he had felt blood coming from Taniela’s head. He looked for Alipate and seen Alipate using a spoon.
Further he said that there was a stone throwing incident. He said Alipate the accused threw stones. A stone hit Josaia Taka and he had knelt down. Then he was shocked to see Taniela was knocked out. He said Alipate threw stones and said that he believed a stone which was thrown at Taniela hit him. After that the other group had gone away. Injured Taniela was taken to Luisa and Makitalena place and tried to contact a nurse who did not come. They could not stop bleeding from Taniela’s head. Taniela was taken to hospital around 5.00am.
In cross-examination he said the two groups had drinks for about 30 minutes without any argument and in a happy mood. Taniela was not drunk and was a little bit angry for taking away the home brew bucket. When he was shown that he had told Police in his statement that Pete held the spoon he said that Alipate was holding the spoon. Answering the questions from the defence counsel he further said in that commotion between accused Alipate, Elia, witness and Taniela no other person was standing with accused.
But he further said what he told the police that Pete and pate were standing at the back was true.
Further he said that after Taniela was injured Makitalena used Fijian medicine on Taniela. Answering further the questions he said that he recognized Alipate throwing stones and that one stone hit Taniela.
The 2nd witness for the prosecution was Luisa Waqanitabua. She said that she was there when the fight was on. Pate (accused), Dan (deceased Taniela) and Iliesa had been there. She said Pate swore at Taniela and Taniela ran back and punched Pate. Iliesa and one of his friends managed to stop the fight and they have gone away with Taniela’s group. Pate had then called Taniela (Dan) and Pate had come running towards them.
On his way accused (Pate) picked something and when Dan turned as he was called, Pate had thrown what he picked towards the direction of Taniela. Taniela fell down and started bleeding from his forehead. Then Pate had been standing close to Taniela and said "let him die" and Pate went back and joined the group. She had applied herbal medicine to stop bleeding without success. She had gone to village nurse and nurse had refused to come as she had no medication. Iliesa’s brother had taken Taniela to hospital around 7.00a.m.
In cross-examination she said that Alipate threw one stone and no stone hit Josaia Taka. Further she said Alipate was the only person who approached Taniela before he fell and she did not give Pete’s name to Police as read in the statement.
Further she said she did not see Alipate holding anything before he picked up something and she did not see a spoon. She further said that she could say certainly that Pate is the person who said "leave him to die".
The 3rd witness prosecution called to give evidence was Dr. Asinate Boladuadua. She is a graduate from Fiji School of Medicine and specialized in Public Health. Further she has a post graduate Diploma in Tropical Public Health from Sydney University and Masters in Business Administration in Health.
On the 1st January 2008 she was the doctor on call at Waimaqera Health Centre when the patient was brought by 7.15a.m. She noticed two injuries. One on the left side of the temple and bruises on the right elbow. As the head injury was a serious one she contacted the doctor on call at Waiyevo Hospital and referred the patient to the hospital. For that ambulance was sent with a nurse and she said that they did not have facilities to treat head injuries. Further she said she followed the proper procedure in the best interest of the patient.
The next witness was Dr. Salome Muavono.
On 1/1/2008 she had been the Doctor on call in the Taveuni Sub-Division Hospital and the patient was brought to hospital by ambulance. She confirmed the evidence of Dr. Asinate as how the patient was transferred to her hospital. The patient had head injury, he was disoriented and has been in pain. She also noticed a swelling on left temple and light laceration on right elbow. As the patient had a head injury and on investigation for any neurological signs she had to refer the patient to Labasa Hospital to be treated by a neurological expert. Proper procedure had been followed and she said she did everything necessary with the available resources. Patient was transferred on the same day.
The next witness was Vani Tinaikoro.
She went to Bill Low’s house to drink grog with her husband when she was coming, husband wanted to go back to drink grog again. So when she was coming back with her son some males had been drinking by the side of the road. When she met the incident of throwing stones she went and hid in the bushes of Makarita’s compound. She said on the road were Luisa, Makitalena, Petero, Iliesa the people she knew. She had hid infront of Makarita’s house after the throwing incident. She heard Luisa saying stop throwing stones. When she was hiding infront of Makarita's house Pate (the accused) had come and asked for a knife from Makarita. Makarita had said there is no knife. After that Makarita has closed the door. Further she said in answering the questions by the defence that she saw Pate picking up a spoon from Makarita’s house. Further she said when Pate asked for a knife from Makarita, Taniela was already thrown with the stone.
In cross-examination although she said she doesn’t know she admitted stating in her statement to the Police "I was there when one Pate was swearing at Dan. Then there was a fight between Pate, Pete and Dan. Pate went and called Bill Low to fight Dan. One boy Iliesa stopped the fight". She admitted that this part of the statement to police was true.
The next witness was Dr. Ramaswamy Ponn Swamy Goundar.
He is a qualified Pathologist and his qualifications and experience was not challenged by the defence and C.V. filed was admittedly by Defence. He gave evidence based on the post mortem report prepared by the Consultant Forensic Pathologist Dr. Prashant or Samberker as Dr. Prashant is no more residing in Fiji. Therefore we did not have the advantage of hearing Dr. Prashant’s evidence on oath and the defence did not have the opportunity of cross-examining him on his findings. But those findings was not challenged by the defence and in the agreed facts before your parties have agreed that the doctor Prashant conducted the post mortem and the cause of death is due to cranio-cerebral injury as a result of a blunt impact. Dr. Goundar giving evidence on this post-mortem report which was marked and produced as prosecution exhibit 1 said that the cranio-cerebral injury was of serious nature and according to the Post Mortem Report some surgical intervention had been there on the head injury. Further he said in his opinion this injury may cause by a punch or by throwing a stone on the deceased.
Next witness for the prosecution was Makarita Low.
She had been at home alone on the day of the incident. She heard some voices like people fighting and she had come out holding a torch. Then she saw Pate running towards her and he had asked "Anything there a stick or a knife". Then she has said "None" and closed the door. Further during cross-examination she said that the accused was drunk at that time. Further she said that there are flower plants infront of her house and can’t see anybody hiding there when it is dark.
The next witness was Makitalena Qativi.
On 1/1/2008 early hours she had been drinking on the road with Pate, Vitorina and Asita after some time Simeli, Iliesa, Taka, Petero and her sister and Dan (Taniela) had joined them. By the time they came she and Pate had left and they met Dan at Makarita's Drive way. Dan had told Pate not to act like people from jungle. Dan wanted to talk to her but Pate didn’t want Dan to talk to her. Then Dan punched Pate. Pate ran to Bill Low’s residence and then ran to Makarita’s Place. Meantime Iliesa’s group had been fighting. They were Iliesa, Taka, Pete and some others. She has noticed Bill Low lying on the ground and his wife crying and calling to stop the fight. Then Luisa had called them to go home. Himself, Taka, Dan and Iliesa were to go home. Then Luisa looked back as Dan was lying on the ground with an injury on the head.
In cross-examination she said at the drinking session they were in a happy mood and accused was not abusive and when the other group joined they were greeted happily. Further she said after one drink each the bucket of home brew was taken away.
Further she said Dan punched the accused after accused swore at him. She confirmed that Fijian medicine was applied on Taniela to stop bleeding but without success.
Prosecution then called the witness Detective Inspector William Lomani. He was the Investigating Officer of the case. He has 32 years experience in the Police Force. He recorded the caution interview statement of the accused which was marked and produced as prosecution exhibit No. 2A and the translation as 2B. The stone pointed out by Alipate was marked and produced as prosecution exhibit No. 3. He said when accused was caution interviewed he didn’t make any complaint and accused understood the interview. During the interview with out any force accused has fully cooperated with the investigation and in his interview answering the questions accused had said that he never intended to kill Alipate. In re-examination witness admitted that in question – 58 and the answer to that question in the caution interview accused said that a person can die from being thrown at with a stone.
At the end of the prosecution case you heard me explain several options to the accused. He had these options because the prosecution at all times has the burden of proving his guilt. Accused doesn’t have to prove anything and he could have remained silent. He chose to give evidence and to subject himself to cross examination. You must give his evidence careful consideration. Further the accused called another witness to give evidence on his behalf who was originally named in the list of witnesses for the prosecution where you have to give careful consideration.
Accused said in evidence that on 31.12.2007 he started drinking with Elia at 11.00a.m. and Elia Manoa joined later. They finished drinking by 6.00p.m. and then he had met Esita, Makitalena and Vitorina and started drinking with them again. After midnight Iliesa, Taka and Taniela had joined them and they have greeted each other for New Year. Then another group including Petero, Simeli and Suli also had joined they had a bucket of home brew. They all started drinking and somebody had run away with the bucket of home brew. Then they have dispersed and at Korotolu accused had met Taniela. Taniela had said "you called us to drink and then you took it away" and had punched the accused. He then fell down and stood up and ran away. He had called Bill Low and told him that Taniela punched him. Then Bill Low went to Taniela and had a fight, and Bill Low fell over. Then Taniela ran after him he said, Taniela had said "you are the one" and chased the accused about 10 metres and further said "today you will die". Then accused had picked up a stone and threw at him and he said he did it for self defence.
He further said he did not see where the stone landed because it was night.
In cross-examination accused admitted that he went and brought Bill Low to fight Taniela. Further admitted that he told Bill that Taniela was the person to be punched. He admitted that he meant the stone to hit Taniela and he knew that by throwing a stone on Taniela would cause him injury. But he said he did not want Taniela to die.
In cross-examination you will remember by an oversight the accused was shown the translated copy of the accused caution statement instead of the original statement and therefore accused denied his signature. But when the original was shown to him he admitted his signature. He admitted that he told the truth in the caution interview statement. In that he admitted stating that he knew throwing a stone would cause injury. Further he admitted that he knew it would also cause death. But he said he did not want Taniela to die.
Accused further admitted that he went to Makarita’s house and asked for a knife or a stick and denied taking a spoon from there. Further he said he asked for a knife to frighten Taniela.
Finally Petero Vasuinadi was called to give evidence on behalf of the Defence. He said new year’s eve Alipate, Makitalena and Vitorina were drinking with him and after midnight Taniela, Iliesa and some others joined. Somebody took the bucket of home brew away and he with Iliesa, Vitorina walked along the road in looking for the bucket. Alipate, Taniela and Makitalena had been ahead of them. He saw Taniela punching Alipate. He had felt Taniela punching him and said he fell down.
In cross-examination he admitted stating in his statement to police that suddenly he was shocked when someone hit my right eye using a fist. Further he said that 7 days after the incident he could not remember who hit him, but two years and four months after suddenly he remembered.
If I did not mention a particular witness or a particular piece of evidence that does not mean it’s unimportant. You should consider and evaluate all the evidence in coming to your decision.
The written agreed facts are before you. Those facts are agreed and you may accept them as if you had heard them led in evidence from the witness box.
Which version you are going to accept whether it is the prosecution version or the accused’s version is a matter for you.
You must decide which witnesses are reliable and which are not.
You may have observed that when some witnesses gave evidence there were some inconsistencies between the evidence before this Court and the statement given to police.
What you should take into consideration is only the evidence given by the witness in Court and not any other previous statement given by the witness.
However you should also take into consideration the fact that such inconsistencies between the evidence before Court and the statement to Police can affect the credibility of the witness.
The prosecution says that the accused is guilty of murder.
The defence invites you to accept the evidence of accused that he acted in his self defence.
You will have to evaluate all the evidence when you consider the charge against the accused has been proved.
Let me sum up your various steps you are to follow:
Your possible opinions are, guilty of murder, or guilty of manslaughter, or not guilty of any offence.
Madam and gentlemen assessors, this concludes my summing up of the Law.
Now you may retire and deliberate together and may form your individual opinions on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.
You may retire to consider your opinions.
Priyantha Fernando
Puisne Judge
At Labasa
14 April 2010
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