IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 202 OF 2011S

STATE

vs

JITENDRA KUMAR

Counsels : Ms. A. Lomani for State
Ms. V. Ravono for Accused
Hearings : 11th to 13th February, 2013
Summing Up : 15th February, 2013

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 accused or the victim. 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.	There are two counts in the information. Please, ignore count no. 1. This trial concerned count no. 2 only, that is, arson. You are required to make a decision on the arson charge only. You have a copy of the information with you, and I will now read the same to you:

"… [read from the information]…."

D.	THE MAIN ISSUE

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

(i)	Did Jitendra Kumar, on 5th June 2011, at Raralevu Nausori in the Central Division, willfully and unlawfully set fire to his dwelling house?

E.	THE OFFENCE AND ITS ELEMENTS

9.	For the accused to be found guilty of "arson", the prosecution must prove beyond reasonable doubt, the following elements:

(i)	the accused
(ii)	willfully and unlawfully
(iii)	sets fire to 
(iv)	any building (whether completed or not).

10.	It must be shown that the accused willfully set fire to the building. In other words, it must be shown by the prosecution, beyond reasonable doubt that, the accused intended to set fire to the building ie. he deliberately set fire to the building. His intention could be inferred from his actions, words, conduct and the surrounding circumstances. In addition to the above, it must be proven by the prosecution, beyond reasonable doubt that, the accused had no legal justification or excuse, to setting fire to the building.

F.	THE PROSECUTION'S CASE

11.	The prosecution's case were as follows. On 5th June, 2011, the accused, his wife Kamla Wati, their son Rishal Kumar and his wife Shevagni Ram, resided in a two bedroom house in Vusuya Road, Nausori. According to the prosecution, the relationship between the accused and his wife was often a volatile one, and at times, descended into unpleasant verbal abuse and physical fighting. The accused said, his wife refused to cook for him, and she had numerous affairs. According to the prosecution, the relationship between the accused's son and the daughter-in-law, was also a volatile one. So, in a sense, this arson case arose out of a volatile family background.

12.	Prior to the fire, late in the morning of 5th June, 2011, the accused was with a friend painting a boat. They were also drinking grog and alcohol. Sometime after 2.30pm, the accused returned home drunk. According to the prosecution, the accused swore at his wife and his daughter-in-law, and threatened to burn the house. He came into the sitting room and lighted a blanket with a match. The blanket burnt, but his wife and daughter-in-law took the same outside the house, and put the fire on the blanket out.

13.	However, the daughter-in-law's bedroom caught fire. Her mattress caught fire. The fire rapidly spread to the other parts of the house, and completely destroyed the same. According to the prosecution, the accused set fire to his own house, and they ask you, as assessors and judges of fact, to find him guilty of arson. That was the case for the prosecution.

G.	THE ACCUSED'S CASE 
14.	When the arson charge was put to the accused on 11th February, 2013 – the first day of the trial – the accused, in the presence of his counsel, pleaded not guilty to the charge. In other words, he denied the arson allegation against him. At the end of the prosecution's case, a prima facie case was found against the accused, and he was called upon to make his defence. Through his counsel, he choose to remain silent and call no witness, in his defence.

15.	As a matter of law, I must direct you that, nothing negative whatsoever should be imputed to the accused for choosing to remain silent, and called no witness. That was his right. He was merely exercising his right to remain silent and call no witness. This is because, as I've said before, the burden to prove the accused's guilt beyond reasonable doubt stays with the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence. As he had done in this case, he was well within his rights to fold his arms, sit in the dock, and challenge the prosecution to prove his guilt beyond reasonable doubt.

16.	However, all is not lost for you, as assessors and judges of fact. The accused had already given his version of events, when he was caution interviewed by Detective Constable 3538 Parnesh [PW4], at Nausori Police Station, on 6th June, 2011 – a day after the fire. Matters must still be fresh in his mind. His caution interview was tendered as Prosecution Exhibit No. 1(a) – hand written version, and 1(b) – the typed version. You must carefully read and understand the caution interview, because it represents the accused's version of events on the arson allegation. In the caution interview, he denied the arson allegation against him. He is asking you, through his counsel, to find him not guilty as charged, and acquit him accordingly. That was the case for the defence.

H.	ANALYSIS OF THE EVIDENCE

(i)	The Amended Agreed Facts:
17.	A copy of the Amended Agreed Facts, dated 11th February, 2013, is with you. As I've said in my opening address to you, at the start of the trial, you may take the facts stated therein, from paragraphs 1 to 14 as established facts. This is because the prosecution and the defence are not disputing the above facts. So, you can take it that the prosecution had proven those facts beyond reasonable doubt.

(ii)	The Undisputed Fact: The Accused's House caught fire:
18.	After listening to the prosecution's witnesses' evidence, their cross-examination by the defence, and the parties' closing submissions, it would appear that the parties do not dispute the fact that, the accused's dwelling house, at Vusuya Road, Nausori, was burnt down on 5th June, 2011, after 2.30 pm. The parties also did not dispute the contents of the National Fire Authority Report, dated 8th June, 2011 [Prosecution Exhibit No. 2], including the photographs of the house [Prosecution Exhibit No. 3]. As assessors and judges of fact, you must carefully consider and understand the contents of the above Prosecution Exhibits. If anything, the above Exhibits prove beyond any doubt that, someone set fire to the accused's house on 5th June, 2011. So, in terms of the elements of arson, as described in paragraph 9(i) to (iv) hereof, elements 9(iii) and 9(iv) are not disputed by the parties. You can take it that the above elements have been proven by the prosecution beyond reasonable doubt, that is, someone set fire to the accused's dwelling house, on 5th June, 2011. The only question now is: Did the accused set fire to his house? If the answer is no, that's the end of the matter, and you must find the accused not guilty as charged. If the answer is yes, then you move on to the question, whether he did it willfully and unlawfully? If he did, you must find him guilty as charged. If he didn't, you must find him not guilty as charged.
(ii)	Did the Accused set fire to his house on 5th June, 2011?

(a)	Direct Evidence – Lack of the same:
19.	The National Fire Authority Report, dated 8th June, 2011 – 3 days after the fire – was tendered as Prosecution Exhibit No.2. On the prosecution's own evidence, the official position was that the fire, that burnt the house down, started in Bedroom No. 1, that is, in the daughter-in-law's bedroom. None of the prosecution's witnesses saw anyone starting the fire in Bedroom No. 1 – see the sketch on page 1 of Prosecution Exhibit No. 2. This was obviously a difficulty for the prosecution. They were unable to provide any direct evidence, by seeing and naming the person, who started the fire in Bedroom No. 1. Prior to the fire, the daughter-in-law's evidence, if it is to be accepted, and the accused's caution interview statement, appear to say that three people were in Bedroom No. 1 before the fire, that is, the accused, his wife and his daughter-in-law. Wasn't it possible that any of the three could have started the fire? Wasn't that a logical possibility?

(b)	Circumstantial Evidence – How strong was it?:
20.	Being unable to provide any direct evidence to connect the accused to the crime of arson, the State relied on what is often called "circumstantial evidence". That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and the defendant which they say when taken together will lead to the sure conclusion that it was the defendant who committed the crime. It is not necessary for the evidence to provide an answer to all the questions raised in a case. You may think it would be an unusual case indeed in which a jury can say "We now know everything there is to know about this case". But the evidence must lead you to the sure conclusion that the charge which the defendant faces is proved against him. Circumstantial evidence can be powerful evidence, but it is important that you examine it with care, and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore, before convicting on circumstantial evidence you should consider whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution case. Finally, you should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing, or making up theories without good evidence to support them, and neither the prosecution, the defence nor you should do that.

21.	The only witness who provided the above circumstantial evidence was the accused's daughter-in-law [PW1]. The circumstantial evidence would only stand as a piece of evidence, if you accept PW1's evidence as credible. Remember, the defence was asking you to disregard PW1's evidence, because she was not a credible witness. If you accept the defence's submission, then the circumstantial evidence would fall apart. However, assuming that PW1's evidence was credible, she said, the accused came home after lunch on 5th June, 2011 drunk, and swearing at his wife and her. According to PW1, the accused was threatening to burn his home down. Later PW1 said, she saw the accused lighting a blanket, in the sitting room, not in Bedroom No. 1, with a match, and the blanket was on fire. However, she said, she and the accused's wife took the blanket out of the house, and put the fire out. So, the fire from the blanket did not cause the fire that burnt the house down. What the State was saying was that, the above circumstantial evidence seemed to show, the accused's intention to burn the house down on 5th June, 2011, and the likelihood that he started the fire in Bedroom No. 1, because he was prepared to burn the blanket in the sitting room.

22.	However, the defence asks you to disregard PW1's evidence, because, according to them, she was not a credible witness. First of all, they said that, when PW1 gave her statement to police on 5th June, 2011, she said she was 18 years old. When giving evidence in court on 11th February, 2013, PW1 said, she was still 18 years old. Was this answer correct? Second, PW1 admitted in court she gave two inconsistent statements to police on 5th and 6th June 2011. On the 5th June, 2011 police statement, she admitted in court that she told police, "I was still in my room when I saw something burning on the settee in the sitting room". On 6th June, 2011 police statement, she admitted in court she told police, "I was on the verandah when I saw the accused light the blanket with a match in the sitting room". She admitted in court she made two inconsistent statements to police, at the time, but she said, she was in a state of shock, at the time. She said, her 6th June, 2011 statement was the correct version. The defence said, PW1's evidence is not credible, given the above, and therefore you must reject it. You must treat PW1's evidence in court as her evidence, and not what she told the police in her statements. The conflicting police statements on 5th and 6th June, 2011 merely gives you the platform on which to consider whether to accept her evidence in court as credible or not. Furthermore, the defence said, PW1 said, she and the accused's wife took the burning blanket out of the house, and put out the fire. The defence complained that the remains of the blanket was not brought to court, as a piece of evidence, to verify PW1's evidence. They alleged that PW1's evidence was all made up. However, the question of whether or not you accept PW1 as a credible witness, is entirely a matter for you. 

23.	Assuming that you accept PW1 as a credible witness, and thereby accept her circumstantial evidence, you must still ask yourselves the following questions: Does the circumstantial evidence lead you to the sure conclusion that the arson charge is proved against the accused? Have you examine the circumstantial evidence with care, and do you consider it reliable and that it proved the accused's guilt? Given the volatile nature of the accused and his wife's marital life, are you absolutely sure the accused would burn down his own house? Are you sure you are not speculating or guessing in deciding on the question of the accused's guilt? These are matters for you to decide.

(c )	Alleged Verbal Confession by Accused:
24.	In addition to the above, the State also relies on the accused's alleged verbal confession to SC 851 B. Chand [PW2] and SC 2413 Nemani [PW3], to connect the accused to the arson charge. Both PW2 and PW3 were the first police officers on the crime scene. They searched for the accused and found him in the bush. According to them, the accused smelt heavily of liquor, had bloodshot eyes and was unsteady on his feet. They said, he was also crying. According to them, the accused verbally admitted to them that, he burn his house down. In considering the accused's alleged confession, I must, as a matter of law, direct you as follows. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, before you can accept a confession, you must be satisfied beyond reasonable doubt that it was given voluntarily by its maker. The prosecution must satisfy you beyond reasonable doubt that the accused gave his statements voluntarily, that is, he gave his statements out of his own free will. Evidence that the accused had been assaulted, threatened or unfairly induced into giving those statements, will negate free will, and as judges of fact, you are entitled to disregard them. However, if you are satisfied beyond reasonable doubt, so that you are sure, that the accused gave those statements voluntarily, as judges of fact, you are entitled to rely on them against the accused.

25.	The defence is asking you to disregard PW2 and PW3's evidence. They said, the two officers' evidence are not credible. Even if you find the officers' evidence credible, the defence is asking you, to carefully consider the circumstances in which they received the alleged verbal confession. First, the accused was heavily intoxicated. Both officers admitted, the accused had bloodshot eyes, unsteady on his feet, and was crying. He had been arguing and fighting with his wife. He appeared to be in shock because his house was on fire. Both officers agreed they didn't caution him in accordance with the Judge's Rules. They also did not give him his right to counsel. As assessors and judges of fact, given the above conditions, do you think the accused gave his confession voluntarily? Were the surrounding circumstances such that he was unfairly induced into making the above alleged verbal confession? When he sobered up, and was caution interviewed by DC 3538 Parnesh [PW4] of Nausori Police Station, on 6th June, 2011 – a day after the fire – he denied the arson allegation against him. So, in a sense, the prosecution's own witnesses, that is, PW2, PW3 and PW4, were inconsistent with each other. PW2 and PW3 said, the accused verbally confessed, while PW4 said, the accused did not confess. This inconsistencies obviously give rise to a reasonable doubt on the prosecution's case of a so called verbal confession from the accused. It appeared that the prosecution had not proven beyond reasonable doubt, that the accused voluntarily gave the alleged confession to PW2 and PW3, because when caution interviewed by PW4, he denied the alleged confession. However, the acceptance or otherwise of the alleged confession, is entirely a matter for you, after considering the above.

I	SUMMARY

26.	Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is 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 accused's guilt, you must find him 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 accused's guilt, you must find him not guilty as charged.

27.	Your possible opinions are as follows:

Arson:	Accused:	Guilty or Not Guilty

28.	You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerk, so that we could reconvene, to receive your decisions.

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecutions, Suva.-
Solicitor for Accused : Ms. V. Ravono, Barristers & Solicitors, Nausori.