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State v Niubalavu - Summing Up [2011] FJHC 763; HAC034.2011(LBS) (24 November 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 034 of 2011 (LBS)

STATE

v

ELIA NIUBALAVU

Mr L. Sovau for the State
Mr T. Lee (LAC) for the accused

SUMMING UP

[1] Madam and gentlemen assessors

The time has come now for me to sum up the case to you and to direct you on the law involved so that you can apply those directions to the facts as you find them.

[2] I reyou thou that I am the Judge of the Law and you must accept what I tell you about the law. You in turn are the Judges of the facts and you and only you can decide where the truth lies in this If I express any particulaicular view of the facts in this summing up then you will ignore it unless of course it agrees with your view of that fact.

[4] You must judge this case solely on the evidence that you heard in this Court room. There will be no more evidence, you are not to speculate on what evidence there might havn or should have been. You judge the case solely on what yoat you have heard and seen here.

[5] The court room is no place for sympathy or prejudice. Perhaps you have strong feelings about young men getting drunk and misbehaving or about gay people, but you must not let that cloud your view.

You must judge this case solely on the evidence produced in this Court and nothing else

[6] I am not bound by your opinions but I will give them full weight when I decide the final judgment of the Court.

[7] It is most important that I remind you of what I said to you when you were being sworn in. The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you. If however you are sure that the accused murdered Hakim then you will find him guilty.

[8] The accused is charged with one count of murder. I am sure you will all have an understanding of what murder is, but it has a specific legal definition and to prove their case the prosecution has to prove to you so that you are sure, each element of the legal definition of murder.

[9] In law murder is made up of three elements;

(i) a person engages in conduct

(ii) that conducts causes the death of another person

(iii) the person intends to cause the death, or is reckless as to causing

the death of the other person by the conduct.

[10] So conduct can be anything such as stabbing, strangling, poisoning; or in
our case punching and kicking, and if that conduct causes the other person to die, then the third element comes into play. The State in this case are saying that Elia engaged in the conduct of punching and kicking so violently that it caused the death of Hakim. They also say that he was not necessarily intending to kill Hakim but that he was reckless in causing Hakim's death. Now a person is reckless with respect to causing death if he is aware of a substantial risk that death will occur by his actions and having regard to the circumstances known to him, it is unjustifiable to take that risk. So in our case you must find proved that Elia engaged in conduct that caused Hakim's death and that he knew that there was a risk that what he was doing might kill him and also that he was not justified in taking that risk.

[11] An alternative verdict to murder which is available for you to find, is guilty of the lesser offence of manslaughter. Manslaughter has the same first two ingredients of murder; that is to say that the accused engages in conduct which caused the death of another, but instead of the recklessness as to causing the death by his conduct, he just has to be reckless as to whether his conduct will cause serious harm to the victim.

[12] So once again, what does this mean for us in this case? If you find that
Elia's conduct caused the death of Hakim, you must consider Elia's recklessness. If you think that he was so reckless that there was every chance of death occurring by his actions, then he is guilty of murder; however if you think his recklessness extended only to the causing of serious harm to Hakim, then he is not guilty of murder but guilty of the lesser offence of manslaughter. It is all about the degree of the violence.

[13] Now we have heard a lot of evidence about excessive drinking that night by
Elia and his friends. Elia himself tells us that he was very drunk. 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 knowing that there was a risk death might ensue, but carried on the attack in any event, knowing that he had no justification in taking the risk. Was he so drunk that he was unable to properly assess the situation? It is not a defence for the accused to say that if he was not drunk he would have not acted in this way or that he failed to see the consequences of his act because he was drunk. You will remember that Elia told us in evidence that at the time he knew what he was doing, so he is not really asking you to consider his intoxication.

[14] The defence have raised two defences of first, self defence or if you do not
accept that, they rely secondly on the defence of provocation. I must now direct you on the law with regard to those two defences.

[15] A person is not criminally responsible for an offence if he carries out the
conduct in self defence. However he must believe that what he is doing is necessary to defend himself AND that his conduct is a reasonable response in the circumstances as he perceives them. So if you think that Elia really thought his life was in danger by being strangled and that his punches and kicks were a reasonable response to that, then you will find him not guilty of anything. However, if you think that he could not have thought his life

was in danger and that his actions were out of proportion to what was being done to him then you will not consider self defence at all. Remember again that yesterday Elia agreed with the prosecutor that his assaults on Hakim were not necessary to counter the way he was being treated by him. You might think that this is enough to negate the defence of self defence.

[16] When a person does the act or acts which cause the death of another in
the heat of passion caused by sudden provocation and before there is time for the passion to cool, he is guilty of the lesser offence of manslaughter rather than murder. So what is provocation? It is an act or insult of such a nature as to be likely when done to an ordinary person to deprive him of the power of self- control and to induce him to commit an assault of the kind which Elia committed on Hakim who made the insult. Let me explain that to you. To find that there was provocation you must find:

(i) that the insult or wrongful act which the defence says was

done by Hakim would cause an ordinary person the same age and sex to "snap", and

(ii) would make that ordinary person do what Elia did to Hakim.

[17] If you think that an ordinary person of Elia's sex and age would not react to
the strangling in that way then the defence of provocation is not available to this accused and he would still be guilty of murder. But if you think that the assault was enough to cause the ordinary person to lose self- control and do what Elia did then you will find him not guilty of murder but guilty of the lesser offence of manslaughter. It is for the prosecution to prove to you that the accused Elia was not provoked in the manner he alleges. These are the questions you should ask yourselves:

1. Was there an act or words of provocation committed by the deceased

towards the accused?

2. Did that act or words cause the accused to lose self control?

3. Did the act or words cause the accused to assault the deceased?

4. Was the assault proportionate to the provocation claimed?

5. Would an ordinary person, the same age and sex, have behaved in

such a way when faced with such provocation?

[18] If your answers to all of these questions is yes, you will find him not guilty of murder but guilty of manslaughter

[19] Bear in mind that Elia started the attacks and that he admitted that his
assaults, including the kick, were "over the top". You might think that by that evidence the prosecution has negated provocation, but it is of course a matter for you.

[20] I am now going to talk to you about the evidence, but I will come back to
your available verdicts at the end of my summing up. I do not propose to go over the evidence in great detail because you have only heard it in the last couple of days. We heard first from the deceased's family and staff who told us of the last movements of Hakim on the night of 24/25 June of this year, and of their desperate attempts to contact him the following day. His nephew said that after visiting the deceased on the evening of the 24th, he took him home in his vehicle. They stopped near Courts so that the nephew could buy a coke and when he came back to the car the accused was sitting in the back seat. Roneel, the young farm lad told us he was cycling at 10am on the 26th June, saw a white car parked and a body about 5m away underneath a mango tree. Where the car was parked was he said a
popular "drinking spot". A Policeman told of going to the "scene" at Wailevu. He saw the body was decomposing; it was swollen with blood stains on the face. It was shirtless, underpants on but trousers were down to the ankle. Two of the accused's friends told us of the drinking party on the 24th, of how they arrived in Labasa in the early evening, drank rum at a private house, then went to Pontoon night club where the group split up. Manoa said Elia was taken out of the club by security because he was too drunk. He spoke to him outside and Elia said that he wanted to drink some more. He next saw him the next morning with a torn T-shirt and he had said that he had been in a fight far away.

[21] Dr Nadeem Farooq was one of the first medical witnesses. Both medical
witnesses are very important to this case, because they both give us clues as to what might have happened that night in the cane field. Dr Farooq conducted a medical examination on the accused. He found lacerations on his back as well as finding injuries on the back of hands of his hands. He found no injuries on his neck, a fact you might find interesting. The accused admitted to Dr Farooq that he injured his hands in punching the deceased. The Doctor said that the back injuries could have been produced from falling on a hard surface.

[22] Dr. Goundar was the pathologist who conducted the post mortem
examination. His report and his evidence are vitally important in giving us clues as to what happened to Hakim that night. He said that the deceased's nasal bones were fractured, that he had bruises over his arms, chest and legs, including a large bruise over his left shoulder. There were extensive bruises over the right side of the face which the doctor said could have been caused by "heavy" punches or kicks. There was extensive bleeding in the soft tissue of the scalp around the whole head but the most serious injury was bleeding between the second and third layers of the brain covering, which the Doctor said would have been caused by very heavy impact either by several kicks or multiple punches. His findings were that this brain bleeding caused by multiple injuries was the cause of death.

[23] Another major piece of the prosecution's case was the interview conducted by the accused with the Police. It is said to be "under caution" because in it he is cautioned that anything he says may be used in evidence against him; and so it is. In the interview the accused relates the whole story of events of that night. You followed it when it was being read to you and you are clearly aware if its contents, so I will not repeat that evidence here. The answers given in an interview are all evidence for you to consider in the normal way if those answers are given voluntarily, and the defence admit that the answers were voluntary. In addition to that interview there is an answer to charge in which the accused admits punching and kicking the deceased "and as a result he has passed away".

[24] At the end of the prosecution case, you heard me explain to the accused his
rights in defence. He elected to give sworn evidence. Now the accused is not under any obligation to give evidence; he can remain silent and say that the prosecution has not proved their case against him. He does not have to prove anything and his giving of evidence does not relieve the prosecution of its burden to prove to you beyond reasonable doubt that the accused is guilty of murder. His evidence however should be taken into account when you are considering the factual issues in this case.

[25] You heard his evidence yesterday afternoon and I am sure you remember it well, but it is only fair to him that I remind you of the salient points of his evidence. Please remember that if I express a view in the evidence you do not have to accept that view unless you agree with it.

[26] The accused came to town together with his friends for "shopping" on the 24th June. On arrival they immediately embarked on an alcoholic drinking "spree". The accused was at Pontoon night club but was asked to leave for anti-social behaviour. He was outside alone and wanted to go to the Bounty nightclub which he had heard a lot about. After failing to stop several taxis, a white car stopped where he was standing in the main street. He asked the driver to drop him at Bounty. He sat in the back seat of the car until the driver dropped off a young passenger somewhere out of town. He then was invited to sit in the front seat. More beer was suggested and the driver stopped to buy four bottles. The driver drove out of town and on to a gravel road and he stopped in a remote cane field and they drank in the car. The accused says that the driver made sexual advances to him and he rebuffed him saying he was not gay. He was obviously not particularly upset because he said that he "laughed" and they continued drinking. The accused reclined his seat to be more comfortable. After some inappropriate touching of thighs the matter got out of control. The driver grabbed the accused's shirt and the accused punched his face. A scuffle occurred and they both fell out of the car with the driver trying to punch him unsuccessfully. It was when the driver grabbed his neck strangling him with both hands that he "got angry" and he continually punched his face and only stopped punching him when he felt that the other stopped pulling his shirt. The man tried to stand up and Elia told us that he kicked his chest 3 to 4 times and kicked his face once. He then left him on the ground "snoring", and went to try and start the car to drive away. He couldn't start it so walked all the way back to town, hiding from a vehicle when it passed. He said that when he was later arrested he was assaulted in the Crime Office by being punched in the stomach and slapped on the cheek, but despite that he gave the answers in the interview quite voluntarily. He said that he did not intend to kill Hakim but punched him out of anger.

[27] In cross-examination Elia admitted that some of his answers in the
interview were not true. He said that at the time of the attack he thought that he could be causing him serious injury but he didn't care. He agreed that he did more to Hakim than was necessary in the circumstances.

[28] Well that was Elia's evidence. It is up to you what you make of it, but I remind you that he does not have to prove anything to you.

[29] I wish to mention one small thing. One of the Police Officers said in his evidence that Elia was at the station in regard to another matter. We don't know what that other matter is, nor should we know because it is entirely irrelevant to these proceedings and I ask you to put it from your minds and make your deliberations without reference to that piece of evidence.

[30] Well members of the panel, that is all I wish to say about the evidence. I will now be asking you to retire and come back with your opinions. You don't have to be all agreed, but it would be much better if you can be. I remind you that if you think he was acting in self defence and his actions were reasonable to defend himself, you will find him not guilty of anything.

If you think that he was provoked by the strangling which he says made him angry and that his actions were an appropriate response to that provocation, then you will find him not guilty of murder but guilty of manslaughter. Lastly, having discarded self defence and provocation, you think that by his actions Elia unjustifiably knowingly ran the risk of causing serious harm to Hakim rather than unjustifiably running the risk of killing him, you will find him not guilty of murder but guilty of manslaughter.

So your possible verdicts are:

(a) guilty of murder.

(b) not guilty

(c) not guilty of murder, but guilty of manslaughter.

[31] You may now retire and you will let one of the staff know when you are ready with your opinions.

Any redirections, Counsel?

Paul K. Madigan
JUDGE

At Labasa
24 November 2011