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State v Vakaruru [2014] FJHC 610; HAC12.2013 (8 August 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Criminal Case No. 012 of 2013

STATE

v

SAMUELA VAKARURU

Counsel: Mr. L. Fotofili for the State
Mr. S. Waqanaibete with
Mr. M. Fesaitu (L.A.C.) for the Accused.

Date of trial: 5, 6 & 7 August 2014
Date of Summing Up: 8 August 2014

SUMMING UP

Madame and gentlemen assessors.

1. It is now my duty to sum up to you. In doing so, I will direct you on matters of law which you must accept and act on. You must apply the law as I direct you in this case.
   
2. As far as the facts of this case are concerned, what evidence to accept, what weight to put on certain evidence, which witnesses are reliable, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts, or if I appear to do so it is entirely a matter for you whether you accept what I say or form your own opinions. In other words you are masters and the judges of facts.
   
3. Counsel for the prosecution and the defence have made submissions to you about how you should find the facts of this case. They have the right to make these comments because it is part of their duties as counsel. However you are not bound by what counsel for either side has told you about the facts of the case. If you think that their comments appeal to your common sense and judgment, you may use them as you think fit. You are the representatives of the community of this trial and it is for you to decide which version of the evidence to accept or reject.
   
4. You will not be asked to give reasons for your opinions, but merely your opinions themselves, and you need not be unanimous although it would be desirable if you could agree on them. Your opinions are not binding on me and I can assure you that I will give them great weight when I come to deliver my judgment.
   
5. On the issue of proof, I must direct you as a matter of law that the onus or burden of proof lies on the prosecution to prove the case against the accused. The burden remains on the prosecution throughout the trial and never shifts. There is no obligation upon the accused to prove his innocence. Under our system of criminal justice an accused person is presumed to be innocent until is proved guilty.
   
6. The standard of proof is one of proof beyond reasonable doubt. This means that before you can find the accused guilty of the offence charged, you must be satisfied so that you are sure of his guilt. If you have a reasonable doubt about the guilt of the accused, then it is your duty to express an opinion that the accused is not guilty. It is only if you are satisfied so that you feel sure of the guilt of the accused that you can express an opinion that he is guilty.
   
7. Your opinions must be based only on the evidence you have heard in the courtroom and upon nothing else. Whatever you have read or heard about this case in the media or elsewhere you must totally disregard. Your duty is to apply the law to the evidence you have heard.
   
8. As you are aware the accused faces one count of murder. I am sure that you all know what murder is; that is that it is an unlawful taking of the life of somebody; but in law the crime of murder has strict parameters which the evidence must fit before it can be called murder.
   
9. In our law and for the purposes of this case, murder is the infliction of an unlawful act which causes the death of another and where there is either an intention to kill or conduct that is reckless as to whether death might result. Now let me break that down for you.
   
10. To prove that Samuela ("Sam") murdered Anthony Tokelau ("Tony"), the Prosecution have to prove to you so that you are sure that:
    
    1. It was definitely Sam,
    2. who engaged in conduct, that
    3. Caused the death of Tony, and
    4. Sam was reckless in causing the death by the conduct he engaged in.
       
11. Conduct can be anything such as stabbing, strangling, punching, etc., and if that conduct causes the other person to die and then the fourth element comes into play. The State in this case are saying that the accused engaged in the conduct of punching and kicking Tony and that that conduct caused his death. I do not think that you will have any trouble with the first two elements of murder. It has never been suggested that the wrong person has been charged and it has been agreed and you must accept that he beat the deceased at about 8.30 to 9.30 on the morning of the 18th. You also heard the evidence of Inise and of Asena who told us what they saw. It is from these facts and these witnesses that you will be the judges of the extent that the accused assaulted Tony that morning. It may also help you to look at the post mortem report where the Pathologist has detailed the injuries that he found on Tony's face and around his body.
    
12. It is from the evidence Madame and Gentlemen that you will decide first what was the conduct that the accused engaged in that morning, and secondly did that conduct lead to the death of Tony.
    
13. Now the cause of death is not as easy as saying that what he did to Tony must have killed him because there is some evidence before you that other people had assaulted Tony before Samuela got to him. Counsel for the accused is saying that there is no way of telling which assault, whether it was from Timoci Delai, the boys who found him stealing, or the boys who were drinking with him that night – there is no way of saying that those other three incidents of assault didn't cause the brain haemorrhage that caused the death. Of course the doctor was not able to say - any of the assaults could have. However I must direct you that the law in Fiji does assist you to some extent in this task.
    
14. The law says that a person's conduct causes death if it substantially contributes to the death. What this means in our case is that if you think what Samuela did to Tony if you find that he kicked him, punched him, stood on him; if you think that that conduct was a substantial contribution to the brain damage then it is open to you to find that his conduct caused the death of Tony. It is a matter for you.
    
15. If you were to find that his conduct didn't cause the death of Tony then you would find the accused not guilty.
    
16. The next step you must take after deciding whether Sam's actions caused the death of Tony is to decide on his intentions and degree of recklessness at the time of the assault. The State is saying that Sam was not necessarily intending to kill Tony but they say that he was reckless in causing his 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 you must find proved that he engaged in conduct that caused the 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.
    
17. An alternative verdict to murder which is available for you to find is not guilty of murder but guilty of the lesser offence of manslaughter. Manslaughter has the same first two elements of murder; that is to say that the accused engaged in conduct which caused the death of another but instead of recklessness as to causing death by that conduct he just has to be reckless as to whether his conduct will cause serious harm to the victim.
    
18. So what does this mean in our case? If you find that Sam's conduct was a substantial cause of Tony's death, you must consider his intentions. If you think he was reckless in what he did, and was so reckless that there was every chance of death occurring by his actions, and knowing that he pressed on regardless then he is guilty of murder: however if you think that his recklessness extended only to the causing of serious harm to Tony, then he is not guilty of murder but guilty of the lesser offence of manslaughter.
    
19. Another direction in law that I must give you Madame and Gentlemen is a direction on self defence. Self defence if validly made out is a complete defence to the charge of murder, so if you think Sam was acting in self defence then you will find him not guilty of the crime of murder. Because the prosecution must prove Sam's guilt it is for the prosecution to prove by their evidence that Sam was not acting in lawful self defence; it is not for Sam to establish that he was; and you must consider the matter of self-defence in the light of the situation which Sam honestly believed he faced. You must first ask whether Sam honestly believed that it was necessary to use force to defend himself.
    
20. There is evidence from Sam in his cautioned interview that when he first went in to find Tony on the morning of the 18th, Tony woke up from sleeping, swore at him and punched him. Sam says at Q.65 that he acted in self defence and punched him back. He then punched him on his face 5 times and when he fell down he kicked him or perhaps "pushed" him with his foot. You must decide whether the type and amount of force Sam 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 and uses force out of all proportion to the anticipated attack on him or more force than 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 Sam and what Sam did as a result.
    
21. If you are sure that the force Sam used was unreasonable then Sam cannot have been acting in lawful self-defence, but if you think that the force used by Sam was or may have been reasonable the he is entitled to be acquitted.
    
22. Another defence that you need to consider if you find it to be relevant is the defence 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.
    
23. Provocation has a special legal meaning and you must consider it in the following way.
    
24. First you must ask yourselves whether Sam, 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 had been done and said by the deceased, rather than just by his own bad temper. There is a suggestion in the caution interview that Sam was very angry but he doesn't really say why he was angry or when he got angry. There is very little if any evidence before you then to assess whether the accused was provoked.
    
25. If you are sure that the accused was not provoked in that sense the defence of provocation does not arise and he is guilty of murder.
    
26. But if you do conclude that Sam was or might have been provoked in the sense which I have explained, you must go on to weigh up how serious the provocation was for him. Was there anything about this accused which may have made was what said and done affect him more than it might have affected other people? You must also ask yourselves whether a person having the powers of self control to be expected of an ordinary sober person of Sam's age and sex would have been provoked to lose his self control and act in the way that Sam did that morning. If you are sure that such a person would not have done so, the prosecution will have disproved provocation and Sam is guilty of murder. If, however you conclude that such a person would or might have reacted and done as Sam did, your verdict would be one of not guilty of murder, but guilty of manslaughter.
    
27. The last direction of a legal nature I must give you Madame and Gentlemen is about circumstantial evidence a concept that you might find useful in this case.
    
28. Often in a case direct evidence of a crime is not available and the prosecution relies on circumstantial evidence to prove guilt. That simply means that the prosecution is relying on evidence of various circumstances relating to the crime and the accused which they say when taken together will lead to the sure conclusion that it was the accused who committed the crime.
    
29. For example in this case we have evidence that before Sam visited Tony in the morning of the 18th, he was not injured apart from the policeman seeing that he had a swollen forehead. Also his flatmate, Asena, told us that when they had a brief talk at 7am on the morning of the 18th, She saw no injuries on him. She said he said that he had a headache, which she thought might have been a hangover. There were certainly no injuries on his face and head that the Pathologist found in his examination. These are all circumstances that you may want to put together to come to the finding that the injuries found were caused by Samuela. It is of course a matter entirely for you.
    
30. 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.
    
31. This has been a very short case, and for a murder case exceedingly short but that does not mean that it is not a serious matter and I direct you that there is enough evidence before you to come to an informed decision. The reason that the case has been so brief is that most of the evidence that would ordinarily have come before you in the way of witness testimony has been agreed between the prosecution and the defence. Agreed evidence is not in any way inferior evidence. In fact it is stronger evidence for you to consider because there is no dispute about it and you must accept it. The reason it is agreed is that the two experienced counsel presenting this case recognize that there are only two factual issues in dispute and they are for you to decide. First is the issue of whether what Sam did to Tony caused his death, and secondly what was the degree of recklessness entered into by Sam when he was assaulting Tony. The defence say that there are two auxiliary issues of self defence and provocation that must also be deliberated on which is correct and you may wish to decide on those first before you go on to decide the main issues. I will come back to those questions at the end of this summing up.
    
32. The agreed facts are important and you must take these into account. You have copies of them and they have been read to you and I am not going to go over them again. Please take them with you when you deliberate, read them and accept them. In addition to the agreed facts, the prosecution also called two eye-witnesses, Inise and Asena.
    
33. Inise told us that in the morning of the 18th at about 8.30am to 9.30 am she heard and saw the accused outside calling to Tony and knocking on his door. He was holding a knife in his hand. She saw him push the door open and go in. She heard him ask "Tony, why did you go into my house?"and she heard Tony reply "Fuck – can't you wait? Having chow and then I will come." When Tony replied she heard three punches. She saw Tony lying down and Sam was punching him – he was punching him on the head. She never saw Tony hit Sam. She was watching all the time until Sam left carrying his bag. It was no more than 5 minutes. About 30 minutes later she saw Tony smoking a cigarette with two other boys. When she saw him then his face was swollen.
    
34. Asena lived in the same house as the deceased. She and the deceased met on the morning of the 18th at about 7am and talked for a bit. She said that he was alright and there was nothing unusual about their conversation. Tony did say that he had a headache and in cross-examination she said she thought he was referring to his drinking the day before. She said that at about mid-day Sam (the accused) came in and was calling for Tony. They didn't get up or reply but he kicked the door in and she heard the sound of boots walking on the floor into the room. She heard punching and kicking. She heard Tony telling Sam to wait and then they would talk but Sam didn't want to listen. She heard Sam swear at Tony and say to him that if he wants a radio he has to sweat for it. She got up and peeked inside Tony's room. She saw Sam kicking Tony in his face. It happened so fast – Sam would not have been inside for more than about one minute. When Sam had left she went back to Tony. He was lying down - his face was injured and there was blood coming from his nose.
    
35. The Policeman gave evidence and told us about the interview the Police had with Sam on the same day as the assault. He also produced the gum boots which Sam said he was wearing that night. You will remember that they were heavy boots which the Police Officer said had steel toecaps. That may be another piece of circumstantial evidence you may wish to consider.
    
36. I must now tell you Madame and Gentlemen how you are to use this. There are no objections to the interview from the defence and consequently it is evidence which you can accept or reject in the normal way. You will note that he admits punching and kicking Tony, kicking him on the face, nose and forehead. He even admits stamping on his face and chest. He does say that Tony punched him once and that he was acting in self defence, but you will recall what I told you about self defence and whether what Sam did to defend himself was reasonable in the circumstances.
    
37. There is his charge statement and you may make of that what you will.
    
38. The final witness for the prosecution was Dr. Goundar, the pathologist and his evidence in this case is extremely important. He examined the body of Tony and compiled a post mortem report which was produced and which you have a copy of.
    
39. He told us that the cause of death was a left subdural haemorrhage consequent to assault. He noted rather extensive injuries around the face and forehead; his lower lip was cut and there were blood collections around both eyes and the cheeks.
    
40. Of course he was not able to say who was responsible for the injuries (how could he?) but he was certain that the extensive injuries on and around the face were the cause of the brain damage which was the cause of death.
    
41. That was the end of the prosecution case and you heard me explain to the accused his rights in defence. He took time to be advised by his counsel and he told us the next day that he was not giving evidence and was not calling any witnesses,
    
42. I must advise you Madame and Gentlemen that the accused does not have to give evidence. He is entitled to sit in the dock and require the prosecution to prove its case. You must not assume that he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing, one way or the other. It does nothing to establish his guilt. On the other hand, it means that there is no evidence from the accused to undermine, contradict or explain the evidence put before you by the prosecution. However, you still have to decide whether, on the prosecution's evidence you are sure of the accused's guilt.
    
43. That is all I wish to say to you and to sum up your tasks, I would first suggest that you decide on the auxiliary question of self defence. If he was acting in self defence then he will be not guilty of anything, but if was not or he did far more than was reasonable to defend himself then you will put that defence to one side and go on to deliberate on the main issues.
    
44. First you can decide on the question of causation. Was it the assaults of Sam that caused the death? Or did they contribute to and hasten the death of an already ailing person? If you decide no then again you will find him not guilty of anything.
    
45. If you think that Sam did cause the death or he did contribute substantially to Tony's demise then you will go on to consider the question of his recklessness. If you think he was so reckless in his assaults that he knew that there was a substantial risk that Tony would be killed and that he knew he was not justified in taking that risk you will find him guilty of murder. If however you think he was reckless only to the extent of what he was doing would only cause serious bodily harm to Tony, then you will find him not guilty of murder, but guilty of manslaughter.
    
46. You may now retire. When you are ready you will let one of my staff know and I will reconvene the Court. You will be asked individually if you find the accused guilty of murder. You may say guilty or not guilty. If you say not guilty, you will be asked if you find him guilty of manslaughter. You may then say guilty or not guilty. You will find him not guilty of anything only if you think he was acting in self defence or you think that his actions did not substantially contribute to Tony's death.
    
47. Please now retire.
    
48. Re-directions, Counsel?
    

P.K. Madigan
Judge

At Suva
8 August 2014.