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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
Criminal Case No. HAC 21 of 2009
STATE
vs
LUKE DIKEVI TUKANA
Mr. T. Qalinauci for the State
Mr. T. Terere for the Accused
SUMMING UP
[1] Madam and Gentlemen assessors; we have now come to the stage in the trial where it is my duty to sum up the evidence to you; and to direct you on the law. 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.
[2] Our functions have been and remain quite different throughout this trial. The law has been my area of responsibility and I must now give you directions as to the law which applies in this case. When I do so, you must accept those directions and follow them.
[3] The facts of this case are your responsibility. You will wish to take into account the arguments in the speeches you have heard this morning but you are not bound to accept them. Equally, if in the course of my review of the evidence I appear to express any views concerning facts, or emphasize a particular aspect of the evidence, do not adopt those views unless you agree with them and if I do not mention something which you think is important you should have regard to it and give it such weight as you think fit. When it comes to the facts of this case it is your judgment alone that counts.
[4] In arriving at your conclusions you must consider only the evidence you heard in this case. You must disregard anything you heard from friends, relatives or through any media outlet about this case. You must ignore any suggestions or advice made to you by anyone, no matter how well meaning it may be.
[5] You must decide this case only on the evidence which has been placed before you that includes witnesses and exhibits which have been produced. There will be no more evidence. You are entitled to draw inferences; that is to come to common sense conclusions based on the evidence which you accept, but you must not speculate about what evidence there may have been or allow yourselves to be drawn into speculation.
[6] In assessing the evidence, you are at liberty to accept the whole of a witness' evidence or accept part of it and reject the other part or reject the whole. In deciding on the credibility of any witness you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he or she evasive? How did he or she stand up to cross examination? You are to ask yourselves was the witness honest and reliable?
[7] As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding upon any proposition put to you and in evaluating the evidence in this trial. You are to ask yourselves whether it accords with common sense or is it contrary to common sense and experience.
[8] I ask you to please put aside any feelings of prejudice you may have against certain people and to put aside any sympathy you might feel for anyone connected with the trial. This court room has no place for sympathy or prejudices – you must arrive at your opinions calmly and dispassionately. In that regard I ask you to ignore what Defence Counsel said about the penalty for murder. That is my province not yours and he should never have tried to arouse your sympathy by saying that.
Onus and Burden of Proof
[9] In this case, as in every case in Fiji, the prosecution must prove that the defendant is guilty. He does not have to prove his innocence. In a criminal trial the burden of proving the defendant's guilt is on the prosecution.
[10] How does the prosecution succeed in proving the defendant's guilt? The answer is – by making you sure of it. Nothing less will do. If after considering all the evidence you are sure that the defendant is guilty you must return a verdict of "Guilty". If you are not sure, your verdict must be "Not Guilty".
[11] You have a copy of the charge that the accused faces. The formal name for this document is an information. As you know, the accused has pleaded not guilty to this charge and it is for you to tell me whether you think he is guilty or not guilty.
[12] The accused is charged with one count of murder. The offence of murder has three essential elements that the State must prove to you beyond reasonable doubt. They are:
(i) That the accused did an unlawful act;
(ii) That the unlawful act caused the death of the deceased;
(iii) That at the time of the unlawful act the accused either –
- (a) Intended to kill the deceased, or
- (b) Intended to cause him serious harm, or
- (c) That he knew that death or serious harm would be caused on the deceased but nevertheless went on to do the act regardless.
[13] An unlawful act is simply an act not justified in law. Punching, without any legal justification is an assault and is an unlawful act.
[14] The unlawful act must cause the death of the deceased. This is the second element of murder. If, following the punching example, the punching caused so much damage to the victim's head that the victim suffered bleeding in the brain and as a result he died, then the punching would be said to cause the deceased's death – because it was a substantial cause of the injuries to his brain. Without the punch, he wouldn't have had a brain injury, and therefore would not die.
[15] The third element of murder is intention and concerns the accused's mental state at the time of committing the unlawful act. As a matter of common sense, no one can look into a person's brain to ascertain a person's intention at the time he is committing an unlawful act. Nevertheless, his intentions can be inferred from his physical actions and the surrounding circumstances. You must put yourselves in the shoes of the accused, and from his physical actions, spoken words, and the surrounding circumstances, you will be able to ascertain his intentions at the time he was doing the unlawful act.
[16] The question of recklessness in this situation is very relevant. If the prosecution has proved to you that when the accused threw the punches, he knew at the time that death or serious injury would be caused to Nelson, but nevertheless and recklessly carried on punching and kicking anyway, then he would be guilty of murder.
[17] If on the other hand, the prosecution has failed to prove to you beyond reasonable doubt the mental element required but have only proved to you that –
(i) An illegal act was done.
(ii) That act resulted in Nelson's death.
Then you are entitled to find the accused guilty of the lesser offence of manslaughter. The elements of manslaughter are the first two elements of murder, without proving the intention to kill or to cause very serious harm, so if you find that Luke did the acts which caused Nelson's death but he had no intentions to kill or cause serious harm to Nelson, you will find him not guilty of murder but guilty of manslaughter.
[18] The consumption of alcohol whether it be beer, "hot stuff" or methylated spirits has been a major part of the evidence in this case. All of the witnesses have said how drunk everybody was and the accused himself told you that he was very drunk. Apart from the fact that there is no evidence as to how much they drank, the state of intoxication is something that you must take into account as one of the many factors when ascertaining the accused's intentions as mentioned earlier. A drunken intention is still an intention but you must ask, did the accused really do the unlawful act with the intention to kill or cause very serious harm, or did he do it knowing that death might ensue, but carried on the attack in any event. Was he so drunk that he was unable to form those intentions?
[19] The accused has raised the issues of self defence and provocation in his evidence. He says that Nelson hit him first, and it is for you to find whether Luke's actions were merely to defend himself from an attack by Nelson. In law any person is entitled to defend himself and to do everything reasonably necessary to protect himself from attack or injury. What is reasonably necessary is a matter for you to consider on the facts. If you think that everything Luke did was to defend himself from attack, and it was all necessary in the circumstances, then you will find him not guilty of murder and not guilty of manslaughter. If however you find that whatever actions he took were not to defend himself, then you will carry on to consider his intentions on the basis that I have already directed you.
[20] Luke says in evidence that he was angry that Nelson had taken his phone. He says in his caution interview that he was angry that Nelson was interfering with his advances to one of the girls.
[21] Such issues are in law "provocation"; and once the accused raises that, you must consider it. The burden of proving that the accused was not provoked when he attacked Nelson is on the prosecution and you must ask yourselves whether the prosecution has proved beyond reasonable doubt that he did not act under provocation. Provocation is a defence to murder because it is a reasonable explanation for the lack of intent to kill or to cause really serious harm to the victim. You must look at all of the evidence and ask yourselves whether the deceased's behaviour which if done to a reasonable man of the accused's age and physical characteristics, would have caused the reasonable person to assault the deceased in the way he did. These are the questions you should ask yourselves:
[22] If you think he was provoked, you must ask yourselves would that swearing and going on about the mobile phone have caused a reasonable person in the accused's position to repeatedly punch and kick the deceased. If you think yes, you will find him guilty of manslaughter. If you think no, then you will still consider the mental element of murder and decide whether in the circumstances he intended to kill or cause very serious harm to Nelson.
[23] The evidence in this trial was very short and I don't propose to go through it at length. I will summarise it for you however, and in doing so I remind you that you are masters of the fact and whatever I say about the facts you don't have to accept, unless it accords with your own views.
[24] Friends of the accused (and the deceased) told us about a drinking party at Votua housing on the night of the 25th February 2009. Rusiate said that Luke was warning Manasa not to talk to the girls or he would be punched. He later went outside and saw Luke throwing punches and swearing. Matai told us that at the party Luke told him that Nelson was unconscious outside and took him to "have a look". Luke kicked Nelson, lifted him up and let him back down on the ground. He then kicked him again. The police officer told us of finding Nelson's body, of the injuries he saw and the amount of blood around.
[25] The evidence of the pathologist is probably the most important in this trial. He fixes the causes of death as being subarachnoid haemorrhage with cerebral oedema which is bleeding around the outside brain tissue and swelling of the brain. The doctor says that this could be brought about by blunt force trauma such as punches and would not be caused by a normal fall.
[26] The accused gave evidence but he did not have to. No matter what the accused said, or no matter what you think of his evidence, it is still for the State to prove to you that he committed the offence. Luke told you he was very drunk and angry with Nelson for going on about the phone. He met Nelson on the footpath when he went to buy cigarettes. Nelson punched him on the chest and he (the accused) fell down. Nelson threw more punches and they both ended up the ground. Luke punched him and then went back to the party. When he went outside again to relieve himself, he heard coughing and saw Nelson sitting up. He was still angry so he punched him downwards. He agrees that he took Matai to see Nelson, he kicked him in the ribs when he was "snoring" or unconscious. He held him up, released him, then kicked him again. He told the Court that he kicked his head, his jaw and the ribs. He also relies on his caution interview which gives a rather different version of the events. But that is a matter in you to determine where the truth lies. But you might think that kicking somebody in the head is a very dangerous act indeed.
[27] So with that evidence, Madam and Gentlemen, I suggest your approach to the case be this:
If yes – then (1) did he intend to kill or to do serious harm to Nelson. If yes – then guilty of murder. If no – then guilty of manslaughter.
[28] Ladies and gentleman; that this is the end of my Summing Up to you on the law, the charges, and aspects of the evidence. Before I send you out to deliberate however, I must remind you of two very important principles:
(1) You must be sure before you find the accused guilty.
(2) You do not have to accept or agree with anything I have said about the facts.
[29] Redirections Counsel?
Paul K. Madigan
Judge
At Lautoka
4 May 2011
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