IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 145 OF 2010S

STATE

vs

1.	ANASA BALEINABODUA
2.	TEVITA SERU

Counsels : Mr. L. Fotofili for State
Mr. S. Waqainabete for Accused No. 1
Mr. A. Vakloloma and Mr. H. Rabuku for Accused No. 2 
Hearings : 20th to 29th February, 2012
Summing Up : 2nd March, 2012

SUMMING UP

A.	ROLE OF JUDGE AND ASSESSORS

1.	Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.

2.	State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.

3.	You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.

B.	THE BURDEN AND STANDARD OF PROOF

4.	 As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.

5.	The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that 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.

6.	Your decision must be based 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. You must decide the facts without prejudice or sympathy, to either the accuseds or the victims. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.

C.	THE INFORMATION

7.	Anasa Baleinabodua (accused No. 1) faced three counts; first; "attempted murder", contrary to section 44 and 237 of the Crimes Decree 2009 (count No. 1); second; "damaging property", contrary to section 369(1) of the Crimes Decree 2009 (count No. 2); and three; "drunk and disorderly", contrary to section 4 of the Minor Offences Act, Chapter 18 (count No. 6). Tevita Seru (accused No. 2) faced four counts; first, two "criminal intimidations" charges contrary to section 375 (1)(a) of the Crimes Decree 2009 (ie. counts Nos. 3 and 5); two; one count of "escaping from lawful custody", contrary to section 196 of the Crimes Decree 2009 (Count No. 4), and three; "drunk and disorderly", as mentioned above.

8.	On count No. 1, it was alleged that, on 22nd July 2010, at Raiwaqa in the Central Division, Anasa attempted to cause the death of police constable 3736 Alvin Prakash, and at the time, intended to cause his death. On count No. 2, it was alleged that, on 22nd July 2010, at Raiwaqa in the Central Division, Anasa willfully and unlawfully damaged 4 louver blades, worth $12, the property of Fiji Police Force. On count No. 6, it was alleged that, on 22nd July 2010, at Raiwaqa in the Central Division, Anasa and Tevita were drunk and disorderly in a public place, namely Grantham Road, Raiwaqa.

9.	For Tevita, it was alleged in count No. 3 that, on 22nd July 2012, at Raiwaqa in the Central Division, he, without lawful excuse, threatened Corporal 2646 Davendra Lal with injury, with intent to cause him alarm. On count No. 4, it was alleged that, on 22nd July 2010, Tevita, being in the lawful custody of Police Constable 3736 Alvin Prakash, escaped from his custody. On count No. 5, it was alleged that, on 22nd July 2010, at Raiwaqa in the Central Division, Tevita without lawful excuse, threatened Paulasi Lutu with injury, with intent to cause him alarm. 

D.	THE MAIN ISSUES

10.	In this case, as judges of fact, each of you will have to answer the following questions:

(i)	On count No. 1, on 22nd July 2010, at Raiwaqa in the Central Division, did Anasa attempted to cause the death of police constable 3736 Alvin Prakash, and at the time, intended to cause his death?

(ii)	On count No. 2, on 22nd July 2010, at Raiwaqa in the Central Division, did Anasa willfully and unlawfully damage 4 louvers, worth $12, the property of the Fiji Police Force?

(iii)	On count No. 3, on 22nd July 2010, at Raiwaqa in the Central Division, did Tevita, without lawful excuse, threaten Corporal 2646 Davendra Lal with injury, with intent to cause him alarm?

(iv)	On count No. 4, on 22nd July 2010, at Raiwaqa in the Central Division, did Tevita, being in the lawful custody of Police Constable 3736 Alvin Prakash, escape from his custody?

(v)	On count No. 5, on 22nd July 2010, at Raiwaqa in the Central Division, did Tevita, without lawful excuse, threaten Pauliasi Lutu with injury, with intent to cause him alarm?

(vi)	On count no. 6, on 22nd July 2010, at Raiwaqa in the Central Division, were Anasa and Tevita, drunk and disorderly at Grantham Road?
 
E.	THE OFFENCES AND THEIR ELEMENTS

11.	For Anasa to be found guilty of "attempted murder" (count No. 1), the prosecution must prove beyond reasonable doubt, the following elements:

(i)	the accused
(ii)	attempted to kill
(iii)	the complainant
(iv)	with an intention to kill him.

12.	The first three elements in paragraph 11 above could be considered together, that is, "the accused attempted to kill the complainant". This is the physical element of the offence of "attempted murder". It is "conduct" or "conducts" that constitute "attempting to kill the complainant". "Conduct" in the context of this case, means "an act or an omission to perform an act". The "act or omission" must be more than merely preparatory to the commission of the offence. For example, in the context of this case, Anasa seeing his father being arrested at Grantham Road Police Post, walks to his house, looks for and finds a cane knife, brings the cane knife from his home to the Police Post, climbs up the stairs of the Police Post and positioning himself near to the complainant to be able to strike him properly, these are "merely preparatory acts" to the commission of the offence of "attempted murder". "Striking the complainant's head with a cane knife" and "omitting to take him to hospital for medical treatment" are "acts and omission" that are more than merely preparatory to the commission of the offence of "attempted murder". In fact, these are the physical act or omission that constitutes the conduct of "attempting to kill".

13.	The most important element in the offence of "attempted murder", is the element mentioned in paragraph 11 (iv) hereof, that is, the accused's intention to kill the complainant. This is the fault element in the offence of attempted murder. In the context of this case, what was Anasa's intention when he struck the complainant's head with a cane knife, and omitted to take him to hospital for medical treatment? You cannot find Anasa guilty of "attempted murder", unless you find as a matter of fact, after considering all the evidence, that when he struck the complainant's head with a cane knife, and omitted to take him to hospital, he intended to kill the complainant. Of course, it is not possible to look into Anasa's brain, at the time he did the above act or omission, to find out whether or not he intended to kill the complainant, at the time. However, throughout the centuries, the courts have often resolved the above problem, by looking at the accused's physical actions, spoken words, and the surrounding circumstances, to draw inferences about his intentions, at the time he did the act or omission. In the context of this case, you must put yourselves in the shoes of Anasa, and from his physical actions, spoken words, and the surrounding circumstances, you should be able to draw inferences of facts, to ascertain his intentions, at the time he struck the complainant's head with a cane knife, and omitted to take him to the hospital for medical treatment. If you find, as a matter of fact that, when Anasa struck the complainant's head with a cane knife and omit to take him to hospital for medical treatment, he had the intent to kill the complainant at the time, then he is guilty of attempted murder.

14.	What if you find that, at the time he did the act and the omission described above, he did not intent to kill the complainant. You are entitled to look at the lesser alternative offence of "acts intended to cause grievous harm "(section 255(a) of the Crimes Decree 2009), although he was not formally charged with it. For Anasa to be found guilty of the lesser alternative offence of "acts intended to cause grievous harm", the prosecution must prove beyond reasonable doubt, the following elements:

(i)	the accused,
(ii)	with intent to do some grievous harm,
(iii)	to the complainant,
(iv)	unlawfully wounds him,
(v)	by any means.

15.	Element (i), (ii) and (iii) abovementioned in paragraph 14, constitute the fault element of the offence of "acts intended to cause grievous harm". In finding out whether or not Anasa intended to cause grievous harm to the complainant, at the time he struck him with a cane knife and omitted to take him to hospital for medical treatment, you may draw inferences of fact from his physical acts, spoken words and the surrounding circumstances. You use the same process used in ascertaining whether or not Anasa had an intent to kill, in the "attempted murder" charge. All you need to find is whether or not, Anasa had the intent to do some grievous harm to the complainant, when he struck him with a cane knife and omitted to take him to hospital for medical treatment. Grievous harm means any harm which seriously hurts the body.

16.	Element (iv) and (v) of paragraph 14 abovementioned, involved the physical elements of the offence of "acts intended to cause grievous harm". There must be a wounding of the complainant by any means whatsoever, and the wounding must be unlawful. In the context of this case, to strike someone in the head with a cane knife and causing that person serious head injuries, and that act appearing not to be justified, would seemed to fulfill elements (iv) and (v) of paragraph 14 hereof. If you find that when Anasa struck the complainant's head with a cane knife, he intended to cause grievous harm and that his act was unjustified, you may find him, as an alternative, to guilty of the offence of "acts intended to cause grievous harm".

17.	For Anasa to be found guilty of "damaging property" (count No. 2), the prosecution must prove beyond reasonable doubt, the following elements:

(i)	the accused, 
(ii)	willfully and unlawfully,
(iii)	damages,
(iv)	any property.

It must be shown by the prosecution that the accused deliberately and purposefully damaged any property, and at the time, he had no legal justification for it. In the context of this case, Anasa allegedly struck the police louver blades (4) with a cane knife. Was he willful? Was he justified in damaging the louvers? If your answer to the question is first, yes, and then second no, you are entitled to find him guilty as charged.

18.	For Tevita to be found guilty of "criminal intimidation" (counts No. 3 and 5), the prosecution must prove beyond reasonable doubt, the following elements:

(i)	the accused 
(ii)	without lawful excuse
(iii)	threatens the complainant
(iv)	with any injury to him
(v)	with intent to cause him alarm.

It must be shown by the prosecution beyond reasonable doubt, that the accused threatened the complainant with some bodily injury, and at the time, he intended to cause the complainant alarm. The threat must be done without any legal justification whatsoever. In other words, there was no lawful excuse for the threats. You must look at what the accused did, said and the surrounding circumstances to decide what he did, and what he intended, at the time. If you find that the elements of the offence are satisfied, and you are sure, you may find him guilty as charged, on count Nos. 3 and 5.

19.	For Tevita to be found guilty of "escaping from lawful custody" (count No. 4), the prosecution must prove beyond reasonable doubt, the following elements:

(i)	the accused 
(ii)	was in lawful custody, and 
(iii)	he escaped from such lawful custody.

It must be shown that the accused was arrested, then taken into lawful custody. Police officers are entitled to take people into their custody, for questioning into the possibility that a crime has been committed. You are not allowed to leave, without the permission of the police. If you leave without police permission, you have escaped from custody.

20.	For Anasa and Tevita to be found guilty of "drunk and disorderly" (count No. 6), the prosecution must prove beyond reasonable doubt, the following elements:

(i)	the accused,
(ii)	is drunk and disorderly,
(iii)	in a public place.

It must be proven that the accused was drunk and disorderly. Laughing loudly and wildly, while being drunk, is being drunk and disorderly. Likewise, unruly behavior in public, while being drunk, is drunk and disorderly.

21.	The consumption of beer had been a part of this trial. When caution interviewed by the police on 23rd and 24th July 2010, both accuseds admitted drinking beer at home, prior to the alleged offendings. The prosecution maintained the above position in court, while the two accuseds denied the same. However, if you accept that the two accuseds were drunk at the material times, I must direct you, as a matter of law, that being drunk is no defence to a criminal charge. However, you must take it into account, as one of the many factors to be considered, when ascertaining both accuseds' intentions, as mentioned in paragraphs 13, 15 and 18 hereof.

22.	Two accuseds are on trial in this case. Each of the accused is entitled to be tried solely on the evidence that is admissible against him. This means that you must consider the position of each accused separately, and come to a separate considered decision on each of them. Just because they are jointly charged, does not mean they must all be guilty or not guilty. Most evidence in this case are admissible against both accuseds. However, regarding their police caution interview statements and charge statements, which may contain some alleged confessions, the statements therein are only admissible against the maker of the statement, and on no other. In other words, in each accuseds' police caution interview statements and charge statements, you must totally disregard what the accused said about his co-accused on the commission of the offence. You can only take into account what he said about himself, regarding his role in the commission of the crime.

F.	THE PROSECUTION'S CASE

23.	I will deal with the charges in their chronological order. First, the "drunk and disorderly" charge (count No. 6). On 22nd July, 2010, after 3pm, according to the prosecution, Tevita bought a carton of beer. Tevita resides with his son, Anasa, at Southern Cross Building compound, at Auto City Road, next to Grantham Road. Tevita and Anasa consumed beer from then until 6pm, when they decided to go to the bread shop, at Raiwaqa market. After the bread shop, the two came towards Sigatoka Electricity Shop. According to the prosecution, the two were laughing loudly, and yelling. Each held a bottle of beer in their hands. It was alleged, they were also shouting, and they were becoming a nuisance to the public. Police Officer, PC 3736, Alvin Prakash (PW1), was in the Grantham Police Post (GPP). He saw what was happening, and walked towards the two. He saw them drinking beer from the bottles. According to PW1, they smelt of liquor and were staggering. He arrested Tevita, and took him to the GPP. Anasa fled with their two beer bottles. According to the prosecution, both Anasa and Tevita were drunk and disorderly, before PW1 came in.

24.	In the police post, PC 3736 was asking Tevita why he was drunk and disorderly. They were 2 footsteps away from the front door. They were talking for about 20 minutes. Tevita was begging PC 3736 to release him. According to the prosecution, PC 3736 heard someone coming up the front door. He turned to see the person. It was Anasa. He had a cane knife in his hand. Anasa struck PC 3736 in the head, on the front right side. PC 3736 was severely injured in the head. Blood was pouring from his head. He held on to Anasa's throat, who struck him a second time. Luckily, the second strike missed the officer, and struck part of the front door. When PC 3736 was later examined, it was found that the skin were the injury was, was cut completely, the skull bone had been penetrated, and there were some bleeding in the brain. He had 22 stitches on his wound. According to the prosecution, Anasa attempted to murder PC 3736 when he struck him on the head with a cane knife [count No. 1].

25.	When PC 3736 and Anasa were struggling in the police post, Anasa struck the police post's louver window, and damaged 4 louver blades, worth $12.00. According to the prosecution, Anasa willfully and unlawfully damaged the 4 louver blades [count No. 2]. He had no excuse in damaging the 4 louver blades.

26.	After striking the 4 louver blades, Anasa went out of the police post, and challenged all police officers to fight him. He was holding the cane knife in his hand. Tevita was also standing outside with his son. He didn't do anything to stop or discourage Anasa. According to the prosecution, Tevita later threatened Corporal 2646 Davendra Lal (PW3) that he would suffer the same fate as PC 3736 (PW1), if he tried to stop them. Corporal Lal said, he was alarmed when Tevita threatened him [count No. 3]. After issuing the threat, Tevita and Anasa fled down Auto City Road towards their house. Tevita didn't ask permission, nor was given permission to leave the police post. According to the prosecution, Tevita has, in fact, escaped from lawful custody, when he fled the police post, without any permission [count No. 4].

27.	As Tevita and Anasa fled towards their home along Auto City Road, they met some men drinking yagona, in front of their workplace. One of the men was Pauliasi Lutu. According to prosecution, Tevita yelled at the men that, "Anasa had cut a police officer. Lutu is down there. Chop him!" Pauliasi Lutu heard Tevita's threat, and was thereby alarmed. According to the prosecution, Tevita unlawfully threatened Pauliasi Lutu with injury and with intent to cause him alarm [count No. 5]. According to the prosecution, they have proven their case beyond reasonable doubt, and ask you as assessors and judges of fact, to find both accuseds guilty as charged. That was the case for the prosecution.

G.	THE ACCUSED'S CASE 
28.	When the information was put to both accuseds, at the beginning of the trial, both pleaded not guilty, to all the offences. In other words, Anasa denied "attempting to murder PC 3736 Alvin Prakash" [count No. 1]; denied "damaging the 4 police louver blades" [count No. 2]; and denied "being drunk and disorderly" on 22nd July 2010. Tevita likewise denied "criminally intimidating" Corporal 2646 Davendra Lal [count No. 3] and Pauliasi Lutu [count No. 5]; denied "escaping from police custody" [count No. 4]; and denied "being drunk and disorderly", on 22nd July 2010. In other words, both accused denied all the allegations against them.

29.	Anasa and Tevita choose to given sworn evidence in court. In discussing the accuseds' cases, I will start with Anasa's. He did not deny striking PC 3736 Alvin Prakash's head with a cane knife in the police post, on 22nd July 2010. However, his answer to the charges against him, on 22nd July 2010 was that, he was "mentally impaired", at the time. As a matter of law, I must direct you that, a person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, he was suffering from a mental impairment that had the effect that, he did not know the nature and quality of the conduct. (Section 28(1)(a) of the Crimes Decree 2009). This defence will be further looked into, when we analyze the evidence, later. However, if he is successful in this defence, Anasa is entitled to an acquittal on all the counts ie. not guilty by reason of mental impairment. That basically was the case for Anasa. 

30.	As for Tevita, he said, he did not have the criminal intention to criminally intimidate Corporal Davendra Lal and Pauliasi Lutu, on 22nd July 2010. He said, he was trying to warn Corporal Lal to stay away from Anasa, as he might be injured by him. He said, his intention was not to threaten, but to save Mr. Lal, from Anasa's possible attack. He said, Anasa was his son, and he knew him very well. On Pauliasi Lutu, Tevita said, he was only joking to Pauliasi, as he was his "Tau-Vu". He said, his intention was not to threaten Mr. Lutu, but to joke to him. As for escaping from custody, Tevita said, his intention was not to escape, but to safeguard the police by taking Anasa away, so he couldn't hurt anyone else. He denied being drunk and disorderly, at the time. He said, he was not drinking. That was the case for Tevita.

H.	ANALYSIS OF THE EVIDENCE

(i)	The Agreed Facts

31.	The parties have agreed to the following facts:

1.	On 22nd July, 2010 at approximately 7.30pm at Grantham road Police Post (hereinafter referred to as the "Post"), PC3736 Alvin Hemant Prakash (hereinafter referred to as "PW1") came out of the Post and saw Accused 2, who was holding the bottle of beer, standing with Accused 1 in front of the Sigatoka Electric Building, just beside the Post.

2.	When PW1 approached the Accused persons, Accused 2 gave the opened bottle of beer to Accused 1 who later fled from the scene.

3.	PW1 arrested Accused 2 and proceeded to escort him, with the help of CPL 2646 Davendra Lal (PW2) and Special Sergeant 917 Jacob Joseph (PW3), into the Police Post for questioning.

4.	In the Post PW1 proceeded to question Accused 2 while PW2, PW3 and Sera Mavoa (PW4) were also seated inside.

5.	Accused 1 suddenly appeared at the door of the Police Post with a cane knife and struck PW1 on the head with it.

6.	Accused 2 did not take any action to stop Accused 1 from striking PW1 with the cane knife.

7.	The cane knife was recovered from the house of Marika Yalimaiwai (PW6) at Jittu Estate by Cpl. 2991 Clint (PW7).

8.	DC3036 Amani arrested Accused 2 from his residence and Accused 1 was arrested by S/CPL Rusiate.

9.	Accused 1 was interviewed under caution whereby he admitted committing the offences.

10.	Re-construction of the scene was conducted at the Grantham Police Post and at the Accused person's house, where he got the cane knife from…"

32.	Because the parties have agreed to the above facts, as a matter of law, I must direct you that, you can take it that, the prosecutions have proven the above facts beyond reasonable doubt. In other words, the above agreed facts, are established facts, in this case.

(ii)	Anasa and Tevita's Police Caution Interview Statements, and Anasa's Charge Statements:

33.	Anasa's police caution interview statements, were tendered as Prosecution Exhibits 5A (I taukei hand written version), 5B (English handwritten version) and 5C (English typed version). We will use Prosecution Exhibit 5C, for ease of reference. These are Anasa's statement to the police, concerning his offendings. You will note from paragraph 9 of the Agreed Facts that Anasa has "admitted committing the offences". By virtue of the parties' agreement, this is an established fact. The caution interview statement merely tells you how Anasa committed the offences and what was going through his mind, at the time. In his police charge statement (Prosecution Exhibit No. 8A (I taukei handwritten version) and 8B (English typed version), Anasa admitted all the offences, thus further confirming paragraph 9 of the Agreed Facts. Thus, the fact that Anasa has confessed to all the offences in this case, it therefore becomes an undisputed matter in this proceeding.

34.	As for Tevita, his police caution interview statement, were tendered as Prosecution Exhibit No. 7A (I-taukei hand written version) and 7B (typed English version). For ease of reference, we will use Prosecution Exhibit No. 7B. Tevita's caution interview statements, tell us about his position on the case, as he described it to the police. In Questions and Answers 68 and 69, he said he gave his statements voluntarily to the police ie. he gave the statements out of his own free will. If you are sure that Tevita gave his statements voluntarily and out of his own free will to the police, you may use his statements as evidence for or against him. If you are sure he didn't give his statements voluntarily, you may disregard them.

(iii)	Doctor S. Narayan's St. Giles Hospital Reports [Prosecution Exhibits 2 (24.9.10); 3 (28.2.11) and 4 (16.2.12) and his evidence:

35.	Doctor Narayan's above reports and evidence will be thoroughly analyzed by us, when we consider Anasa's defence of "mental impairment", later in the summing up. Doctor Narayan's evidence will be absolutely crucial to the success or otherwise of Anasa's defence.

36.	We will not consider count No. 1, 2 and 6 of the information because Anasa, by virtue of paragraph 9 of the Agreed Facts, has admitted count No. 1, 2 and 6. As a result, we will only consider Tevita's case first, and then Anasa's defence of "mental impairment".

(iv)	Count No. 6: Drunk and Disorderly: Tevita's Case:

37.	From Questions and Answers 20 to 37 of Prosecution Exhibit No. 7B, Tevita admitted drinking Fiji Bitter at home on 22nd July 2010 from 5pm to about 6.30pm, when he left for the Bread Shop at Raiwaqa Market. He admitted, he was carrying a bottle of beer near Raiwaqa Market, and was laughing. PC 3736 (PW1) said, he saw Tevita drinking in the streets and annoying the public. He said, Tevita was yelling and shouting in the street, and was also staggering. Corporal Davendra Lal (PW3) said, he heard Tevita shouting from the Sigatoka Electric Shop. He said, he approached Tevita and he smelt heavily of liquor. Tevita, on the other hand, denied being drunk and disorderly, at the time. He admitted he went to the Bread Shop, at the time. He said, he was only laughing. Which version of events to accept, is a matter for you, as assessors and judges of fact.

(v)	Counts No. 3 and 5: Criminal Intimidation: Tevita's Case:

38.	PC 3736 Alvin Prakash (PW1), Corporal Davendra Lal (PW3), Sergeant 971 Jacob Joseph and Seru Mavoa (PW8) were in the Police Post before Anasa arrived. When Anasa arrived, he struck PC 3736 in the head with a cane knife. Corporal Lal said Anasa and his father, Tevita, went out of the police post. He said, Anasa was threatening police officers with the cane knife. According to Corporal Lal, instead of stopping Anasa, Tevita threatened all police officers, including him that they will suffer the same fact as PC 3736, if they tried to intervene. Corporal Lal said, he was alarmed when he heard Tevita's threat. They all saw what Anasa did to PC 3736. Tevita denied the above. He said, he was not threatening them, but was trying to save them by warning them, and taking his son away. Tevita said, he had no intent to alarm the police officers, in particular, Corporal Lal. Which version of events to accept, is a matter for you, as assessors and judges of fact.

39.	As for count No. 5, Pauliasi Lutu (PW14) said, he was drinking yaqona with some work mates on 22nd July 2010, after 7.40pm, at Lot 14 Auto City Road, Raiwaqa. He saw Anasa taking a cane knife up Auto City Road and dragging the same on the road. A while later, Lutu said, Anasa returned with his dad, Tevita. Anasa was leading holding a cane knife. Tevita was following him. Mr. Lutu said, he heard Tevita yelled, "…Lutu is staying down there. Lutu to be chopped with the cane knife…" Lutu said, Tevita and Anasa were 4 footsteps away when he said the above. He said, he didn't think Tevita was joking, and he was frightened and alarmed, when he heard Tevita said the above. Tevita confirmed what Lutu said. However, he said, he was only joking to Lutu, because he is his "Tau-Vu" ie. they are traditionally related. He said, he had no intention of intimidating him. Which version of events to accept, is a matter for you.

(vi)	Count No. 4: Escaping from Lawful Custody: Tevita's Case:

40.	 PC 3736 Alvin Prakash (PW1) said, he arrested Tevita for drunk and disorderly on 22nd July, 2010, and brought him into the Grantham Police Post. He said, he gave Tevita no permission to leave the police post. When Anasa attacked PC 3736, Tevita went out of the police post. Corporal Davendra Lal (PW3) said, he saw Tevita and his son Anasa, fleeing down Grantham Road, and down Auto City Road. Tevita said, he went to contain Anasa so no-one could be hurt, and he took him home.
Which version of events to accept is a matter for you.

(vii)	Anasa's Defence: Mental Impairment

41.	As a matter of law, I must direct you that, a person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:

(i)	the person did not know the nature and quality of the conduct; or 
(ii)	the person did not know that the conduct was wrong ie. the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong; or
(iii)	the person was unable to control the conduct.

42.	The question whether the person was suffering from a mental impairment is one of fact. Also, as a matter of law, I must direct you that, a person is presumed not to have been suffering from such a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment.

43.	It is apparent that not all types of mental impairment could be used by an accused person as a defence to committing crimes. The only mental impairment capable of a amounting to a defence, are those that strictly comply with the requirements mentioned in paragraph 41 hereof. And in this proceeding, there was only one expert witness who could speak on the issue of "mental impairment", and that was Doctor S. Narayan (PW2), Medical Superintendent and Consultant Psychiatrist of St. Giles Hospital. Doctor Narayan was not only a highly educated man; he has also served in the field of mental health for 28 years. He wrote three reports on this case, which were tendered as Prosecution Exhibit Nos. 2, dated 24th September 2010; Prosecution Exhibit No. 3, dated 28th February, 2011 and Prosecution Exhibit No. 4, dated 16th February, 2012. You must carefully read and understand these reports, because they will assist you answer the question of whether or not, Anasa was suffering from a mental impairment when he committed the offences, he had admitted to. Remember, not all types of mental impairments will offer an accused person a way out for committing crimes. Only the "mental impairment" described in paragraph 41 hereof will suffice.

44.	After gathering information from the court, the police, the Director of Public Prosecution, the accused's father, St. Giles Hospital Records, interviews of Anasa, observation and assessment, Doctor Narayan concluded, on 24th September 2010 as follows, "… I am of the opinion that the accused was aware of his action at the time of the commission of the alleged crime. As such he should be held responsible for his action. At present, he is fit to plead…" [Prosecution Exhibit No. 2]. Doctor Narayan wrote another report on 28th February, 2011. [Prosecution Exhibit No. 3]. At no time in the report, did the doctor retract the conclusion he had come to on 24th September 2010. On 16th February, 2012, 4 days away from trial time, Doctor Narayan wrote another report. He concluded, at the end that, "…based on the history and observation in the ward, I conclude that he is mentally stable at present. He is fit to plead…" [Prosecution Exhibit No. 4]. Again, at no time, did Doctor Narayan retract his conclusion in his first report in Prosecution Exhibit No. 2. 

45.	Doctor Narayan was thoroughly cross-examined by Defence Counsel, Mr. S. Waqainabete, but he at no time retracted his conclusion reached on 24th September 2010 in Prosecution Exhibit No. 2. He may have admitted to some "mental impairment" during cross-examination, but not of the variety required by that explained in paragraph 41 hereof. Even when we heard the witnesses' evidence, Anasa was obviously upset, when his father was arrested by police and taken into the police post. He made his way home. He avoided Corporal Lal who chased after him. He went home, found a cane knife, and brought it with him. He dragged the cane knife up Auto City Road towards Grantham Road. He went to the police post. He climbed up the steps. He struck PC 3736 on the head. He tried to strike him a second time with the cane knife, but it hit the door. He later struck the louver blades. He went outside and challenged the police officers, while holding the cane knife. He escaped from the police post, aided by his father. He went home and hid the knife. When the police arrested him, he knew the police officers were not from the police post. He appeared to understand the legal proceeding. Given his difficulties, he behaved well in the courtroom. In my view, looking at what the witnesses said about him during the offending, and his behavior in the courtroom, it can hardly be said that Doctor Narayan was wrong in his conclusion on 24th September 2010 in Prosecution Exhibit No. 2. However, this is a matter for you.

46.	You have heard all the witnesses. You have observed them while they were giving evidence. Were they forthright, evasive or argumentative when examined-in-chief, cross-examined and re-examined? How did they behave or dress to court? The question of whether a witness is credible or not, is a matter for you. You have heard my direction on the law. Given your life experiences and common sense, you should be able to decide which witnesses' evidence or part of his evidence is reliable, and therefore to accept, and which witnesses' evidence or part of his evidence is unreliable and therefore to reject, in your deliberation. 

I	SUMMARY

47.	Remember, the burden to prove the accuseds' guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accuseds, at any stage of the trial. The accuseds are not required to prove their innocence, or prove anything at all. In fact, they are presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accuseds' guilt, you must find them guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accuseds' guilt, you must find them not guilty as charged.

48.	Your possible opinions are as follows:

Count No. 1: 	Attempted Murder -	Accused No. 1	Guilty or Not Guilty	
				
Alternative to 				
Count No.1:	Acts Intended to Cause Grievous Harm-	Accused No. 1	Guilty or Not Guilty	
Count No. 2:	Damaging Property-	Accused No. 1	Guilty or Not Guilty	
				
Count No. 3:	Criminal Intimidation-	Accused No. 2	Guilty or Not Guilty	
				
Count No. 4:	Escaping from Lawful Custody-	Accused No. 2	Guilty or Not Guilty	
				
Count No.5:	Criminal Intimidation	- 	Accused No. 2	Guilty or Not Guilty	
				
Count No. 6:	Drunk and Disorderly-	Accused No. 1	Guilty or Not Guilty	
		Accused No. 2	Guilty or Not Guilty	

49.	You may now retire to deliberate on the case. Once you have reached your decision, you may inform our clerk, so that we could reconvene to receive them.

Salesi Temo
JUDGE

Solicitor for the State : Office of Director of Public Prosecutions, Suva 
Solicitor for Accused No. 1 : Legal Aid Commission, Suva 
Solicitor for Accused No. 2 : A. Vakaloloma, Barrister & Solicitor, Suva