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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 052 OF 2013S
STATE
vs
SAILASA MOCIU
Counsels : Mr. Y. Prasad and Ms. V. Prasad for the State
Mr. T. Tawake and Ms. P. Chand for Accused
Hearings : 27 to 30 October and 3 November, 2014
Summing Up : 4 November, 2014
SUMMING UP
"... [read from the information]...."
9. "Murder", as a criminal offence, has three essential elements. For the accused to be found guilty of "murder", the prosecution must prove beyond reasonable doubt, the following elements:
(i) that the accused did a wilful act; and
(ii) that wilful act caused the death of the deceased; and
(iii) at the time of the wilful act, the accused either;
(a) intended to cause the death of the deceased; or
(b) is reckless as to causing the death of the deceased.
10. On the first element of murder, a "wilful act" is a voluntary act by the accused. It is a feeling of strong determination to do something that he wanted to do. It is what he wanted to happen in a particular situation. This is the physical element of the offence of murder. For example, A wants to shoot B with a gun. A picks up a gun, and shoots B in the heart, A did a "wilful act". Likewise, if A wants to stab B with a kitchen knife. When A stabs B's shoulder with a kitchen knife, A did a "wilful act".
11. On the second element of murder, "the wilful act must cause the death of the deceased". This simply meant that the accused's wilful act, substantially contributed to the death of the deceased. The accused's wilful act must be a substantial contributor to the death of the deceased. In other words, the accused's wilful act was a substantial cause of the deceased's death. Continuing from the above examples when A shot B in the heart, with a gun, B later died as a result of the injuries to his heart. A's shooting B in the heart (wilful act) was a substantial cause of B's death. Likewise, when A stabs B's shoulder with a kitchen knife. B later died as a result of severe loss of blood due to a severed artery. A's stabbing B with a kitchen knife (wilful act) was a substantial cause of B's death.
12. The third element of murder concerned its fault element. There are two fault elements for murder, as described in paragraphs 9(iii)(a) and 9(iii)(b). In this case, the prosecution is running its case on the fault element in paragraph 9(iii)(a), that is, the accused "intended to cause the death of the deceased". We will therefore concentrate on this fault element, rather than the other. As a matter of common sense, it is not possible to look into a person's brain, to find out his intention, at the time, he did the physical element of murder. In other words, in the context of this case, it is not possible to look into the accused's brain, to find out his intention, at the time he stabbed the deceased. However, throughout the centuries, the courts have often resolved this problem, by closely examining the accused's physical actions at the time, what he said, and the surrounding circumstances, to draw inferences of fact, as to his intentions. In other words, you must put yourselves in the shoes of the accused, and from his physical actions, spoken words and the surrounding circumstances, you should be able to find out his intentions, at the time he stabbed the deceased.
13. If one of the elements of murder is not proven by the prosecution beyond a reasonable doubt, then you must find the accused not guilty as charged. If you find that the prosecution had proven all three elements of murder beyond a reasonable doubt, you must then pause, and consider whether or not the defence of provocation, is available or not.
14. Provocation is a partial defence. If it is made out, it reduces an offence of murder to manslaughter. If an accused person does an act which causes death, in the heat of passion, caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter. Provocation is any wrongful act or insult of such nature, when done to an ordinary person, deprives him of the power of self-control, and induces him to assault the deceased. If you find that the above defence is available to the accused, then you must find him not guilty of murder, but guilty of manslaughter. However, if you find that the defence is not available to the accused, and all the three elements of murder had been proven by the prosecution beyond a reasonable doubt, then you must find the accused guilty as charged.
F. THE PROSECUTION'S CASE
15. The prosecution's case were as follows. On 9 January 2013, the accused was aged 42 years. His wife, the deceased, was aged 33
years old. They had been married for 17 years, and had four children aged between 6 years and 14 years old. Three of the children
are boys, aged 14, 11 and 9 years old. The youngest is a girl, aged 6 years. The accused earns his living through farming. According
to the prosecution, the family lived together happily, until September 2012, when the accused was released from prison.
16. According to the prosecution, the accused and his wife's marriage began to experience some difficulties. The wife began going out, without the accused's blessing. At times, she went out night clubbing with her friends, and on one occasion, the accused rang from Nadi, to hear a man answering from her mobile phone, at her village. Suspicion and mistrust began to crip into their marriage. At times, the deceased swore at the accused.
17. On 8 January, 2013, the family was at Naisaumua Village in Tailevu. Husband and wife had a grog session with relatives at the wife's village, starting at 9pm. It went on until 1am, the next morning. The wife wanted to go out with friends, but was stopped by an uncle. The accused and his wife retired to sleep. However, the two argued throughout the night until 5am, when the accused decided to go to his village in Nadi. The accused was not happy because of the arguments.
18. After 5am on 9 January 2013, the accused, his wife and two female relatives went to the main road. They were taking the accused to catch a vehicle to Nadi. The accused was walking in front, followed by his wife and the two female relatives. When they reached the bridge near the village, the accused suddenly took out a kitchen knife and repeatedly stabbed the deceased. In fact, he stabbed his wife three times. The most serious stab wound was to her right top shoulder, which severed a major artery, causing excessive bleeding. She was rushed to Korovou Hospital, but died a few minutes later. The accused fled the crime scene. According to the prosecution, the accused stabbed his wife to death, and had the intention to kill her. Because of the above, the prosecution is asking you, as assessor and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.
G. THE ACCUSED'S CASE
19. On 28 October 2014, the first day of the trial proper, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to the charge. In other words, he denied the murder allegation against him. When a prima facie case was found against him, at the end of the prosecution's case, wherein he was put to his defence, he choose to give sworn evidence and called no witness. That was his right.
20. In his evidence, the accused admitted he was at the crime scene, at the material time. He also admitted that, he took out a kitchen knife and stabbed his wife on the right shoulder. He admitted that, he did the above because he wanted to teach his wife a lesson "for neglecting the children and drinking excessively". He said, he did not intend to kill his wife. If he did so, he said, he would have stabbed her on the neck, stomach or from the back. When cross-examined, the accused admitted that he stabbed his wife on the right shoulder with a knife, and this caused a massive wound and injury. He also said, he gave his caution interview statements to the police voluntarily.
21. He said, because he did not intent to kill his wife, when stabbing her, he is not guilty as charged. He asks you, as assessors and judges of fact, to find him not guilty as charged, and acquit him accordingly. That was the case for the accused.
H. ANALYSIS OF THE EVIDENCE
(a) Introduction
22. In analysing the evidence, we will first consider the accused's alleged confessions in his police caution interview statements, which were tendered in evidence as Prosecution Exhibit 5(a) – the "i-taukei" version, and Prosecution Exhibit 5(b) – the English version. Then, we will examine the three elements of murder, as explained in paragraphs 9(i), 9(ii) and 9(iii)(a) hereof, and the issue of whether or not, the prosecution had provided enough evidence, to prove those elements to you beyond a reasonable doubt. Finally, we will examine whether or not, the defence of provocation is available to the accused, in this case.
(b) The Accused's Alleged Confession – Prosecution Exhibit 5(a) – "i-taukei" version, and Prosecution Exhibit 5(b) – English version:
23. The alleged murder occurred on 9 January 2013. Thereafter, the accused was on the run from police for about 13 days. He surrendered himself to police via his counsel, and was taken to Lautoka Police Station, then Nadi Police Station, and then to Nausori Police Station. On 24 January 2013, at the crime office in Nausori Police Station, Corporal 2254 Alipate Rayasi (PW11) caution interviewed the accused. PW11 gave the accused the standard caution. He also gave the accused his right to counsel. He was also given the standard rest and meal breaks. PW11 asked the accused 124 questions and he gave 124 answers. [see Prosecution Exhibit 5(b)]. Note that in Questions and Answers 122 and 123, the accused said he gave his caution interview statements voluntarily and out of his own free will, and that no force, promise or threats, were given to him to give his police caution interview statements. In the original "i-taukei" version of the caution interview (ie. Prosecution Exhibit No. 5(a), he signed all the pages.
24. In his caution interview statements, the accused allegedly confessed to some elements of murder, as described in paragraph 9(i), 9(ii) and 9(iii)(a) hereof. But before you can consider the above 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 that it was given voluntarily by its maker. The prosecution must satisfy you beyond reasonable doubt that the accused gave his statement 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 facts, you are entitled to rely on them for or against the accused.
25. As shown in paragraph 23 hereof, PW11 gave the accused the standard caution, his right to counsel, and the standard rest and meal breaks. Although when giving evidence, the accused seemed to say that the police assaulted him in Lautoka and Nadi Police Station, when cross-examined, he said he gave his statements to police voluntarily. When medically examined by Doctor Ilisapeci Lasaro (PW8) on 24 January 2013, he complained to her about the above alleged police assault – see Prosecution Exhibit No. 2, Section D(10) of his medical report. However, the doctor said, the injuries found on him was not consistent with police assault. Whether or not to accept his alleged confessions in his caution interview statements, is entirely a matter for you.
26. We will now examine each of the elements of murder as described in paragraph 9 hereof, and whether or not the prosecution had proven each element beyond a reasonable doubt.
(c) First Element of Murder – That the Accused did a Wilful Act [paragraph 9(i) hereof):
27. On this issue, the prosecution's case was that the accused stabbed his wife, the deceased, on the right shoulder, on 9 January 2013. This was the "wilful act that the accused did", that forms and constitute the prosecution's case, on the first element of murder. In questions and answers 89, 90, 91, 92 and 93 of Prosecution Exhibit No. 5(b), this is what the accused told police, when caution interviewed:
"...Q89: Can you tell me what then happened?
A: My intention was to stab Kasaya, upon reaching the Naisaumua bridge I told her to take me right to the bus stop on the Kings Road but she refused and told me to go alone, at that point of time I took out the knife and stab Kasaya.
Q90: Which part of the body you stab?
A: On the right shoulder.
Q91: How many times have you stab her?
A : Two (2) times.
Q92 : What happened then?
A : She fell by herself into the creek.
Q93 : Did you see any injury on her?
A : Yes, I did..."
28. When giving sworn evidence in court, in his defence, the accused admitted he stabbed his wife in the shoulder, at the material time. He admitted he stabbed his wife twice in the shoulder and the arm. This sworn evidence confirmed what he told the police in his above-mentioned caution interview.
29. The above position was further confirmed by Aliti Racule (PW1). She was one of the ladies accompanying the accused and his wife to the crime scene, at the material time. In her evidence, she said, she saw the accused repeatedly stab his wife, at the material time. The above evidence seemed to collectively confirmed that the accused stabbed his wife in the shoulder, at the material time. On the evidence, it appeared that the prosecution had proven the first element of murder beyond a reasonable doubt. However, it is matter entirely for you.
(d) Second Element of Murder – That the accused's wilful act caused the death of the deceased (paragraph 9(ii) hereof):
30. It was the prosecution's case that, by stabbing his wife in the right shoulder, at the material time, he set in motion a chain of events (eg. severing an artery leading to excessive loss of blood) that ultimately caused the deceased's death. The answer to this issue is fundamentally a medical matter. In providing answers to this issue, the prosecution tendered in evidence the deceased's post-mortem report, Prosecution Exhibit No. 3. You must carefully read and understand the report. Doctor R. P. S Goundar (PW9) did the post-mortem on the deceased. PW9 had previously done more than 5,000 post mortem examinations. In this report, PW9 concluded that the deceased died as a result of shock due to excessive lost of blood due to the severing of a major artery that supplies blood to the right upper limp. In Doctor Goundar's view, a sharp object like a knife, when applied with force on the artery, could severe it. It would appear that Doctor's Goundar's conclusion as to the cause of the deceased's death, supports the prosecution's theory that, the accused by stabbing the deceased's right shoulder, with a knife, severed her artery leading to excessive loss of blood and her consequent death. It would appear that the prosecution had proven the second element of murder beyond a reasonable doubt. In any event, it is a matter entirely for you.
(e) Third Element of Murder – That at the time of the wilful act, the accused intended to cause the deceased's death (paragraph 9(iii)(a) hereof):
31. It was the prosecution's case that, at the time the accused stabbed his wife in the right shoulder with a knife, he intended to cause her death. As we have said before, we cannot cut open the accused's head and examine his brain, to find out his intention, at the time he stabbed his wife in the shoulder. We must look to his physical actions at the time, what he said and the surrounding circumstances, to draw inferences of fact, as to his intention. In other words, we must put ourselves in his shoes, and from his physical actions, spoken words and the surrounding circumstance, we should be able to find out his intention.
32. As to the surrounding circumstances, this was a case involving a married couple, with four young children. The background to the turmoil in this family is well documented in the accused's caution interview statements, from Questions and Answers 9 to 118 of Prosecution Exhibit No. 5(b). The accused was 42 years old, his wife was about 33 years old. They have been married for 17 years. They had three boys aged 14, 11 and 9 years old. Their youngest is a girl aged 6 years old. The family lived a happy life, until the accused came out of prison in September 2012. The wife's attitude changed towards her husband - the accused. It appeared she didn't want to spend time with her husband. According to the accused, she went night clubbing, and he suspected her of having extra marital affairs. The accused wanted to hold his family together. He took his children to Nadi for Christmas in 2012 and New Year in 2013. He was already seen to be sharpening the knife, which he used in the alleged murder. His son (PW11) saw him sharpening the knife one week before the alleged murder.
33. On 8 January 2013, the couple had grog with relatives from 9pm to 1am on 9 January 2013. The wife wanted to go out, but was stopped by her uncle. The couple slept at Unaisi Kasinalevu's (PW3) house, in the sitting room, after 1am. The accused wanted to discuss family matters with his wife. However, the two argued all night. According to the accused, his wife pulled a knife on him, and chased him away from PW3's house. The accused admitted he was angry. He asked his wife to accompany him to the main road. He took the knife with him. Between 5am and 6am on 9 January, the accused, his wife, and two relatives (PW1 and PW2) walked towards the main road.
34. In his caution interview, the accused admitted he was planning to stab his wife, when they were walking to the main road. He was planning to stab her when they reached the Naisaumua bridge. Upon reaching the bridge, he took out the knife and stabbed his wife in the right shoulder. He saw that she was injured, and he ran away. [see Questions and Answers 86 to 94 of Prosecution Exhibit No. 5(b)]. In Question and Answer 109 to 111 of Prosecution Exhibit No. 5(b), the accused admitted that he knew his knife could kill a person because it was very sharp.
35. In his sworn evidence, the accused admitted he was angry with his wife prior to stabbing her. He suspected she was having extra-marital affairs and was disrespectful of him. He said, he wanted to teach her a lesson for neglecting their children and drinking excessively. He admitted he pulled her towards him and stabbed her twice. In the post-mortem report, it was stated, she was stabbed three times, the most fatal of which was the stab to the right shoulder. He said, he did not intend to kill her. He said, if he wanted to kill her, he would stab her on the neck, stomach or the back. However, note the biggest stab wound was on her right shoulder, a few inches from the neck. PW1, who was watching the couple, at the material time, said that, the accused forcefully pulled his wife towards him from the back, held her tightly and repeatedly stabbed her. What do the above facts and surrounding circumstances tell you? Did the accused had the intention to stab his wife to death, at the material time? He did not rush her to hospital? He ran away. It would appear, given the above that, the accused had the intention to stab his wife to death, at the material time. However, it is a matter entirely for you.
(f) Is the defence of provocation available to the accused?
36. You will have to consider the above defence, if you have reached the conclusion at this stage that, the accused is guilty of murdering his wife, at the material time. Please, examine this defence of provocation in the light of the direction I gave you at paragraph 14 hereof. Was the accused provoked by the wife to the extent that he subsequently stabbed her? Was the provocation by the wife of such a nature as to cause him to lose his power of self-control? Was the stabbing done in the heat of passion, caused by sudden provocation, and before there was time for his passion to cool? Was the retaliation proportionate to the provocation? In my view, the surrounding circumstances and the previous verbal arguments between the accused and his wife from 1am to 5am on 9 January 2013, was not sudden provocation. There was enough time for his anger etc to cool down as they walked to the bridge. In his own evidence, he wanted to teach her a lesson. In my view, the defence of provocation is not available to the accused. In any event, it is entirely a matter for you.
I. SUMMARY
37. Remember, the burden to prove the accused's guilt beyond a 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.
(i) Murder : Accused : Guilty or Not Guilty
Alternative of Manslaughter if not guilty of Murder : Accused : Guilty or Not Guilty
39. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerks, so that we could reconvene, to receive your decisions.
Salesi Temo
JUDGE
Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Legal Aid Commission, Suva.
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