IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 028 OF 2013LAB

STATE

vs

SUREND CHAND

Counsels : Ms. P. Low for State
 Mr. A. Sen for Accused

Hearings : 24, 25, 26, 27 and 28 November, 2014
Summing Up : 1 December, 2014

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 if 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.	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 assessors and judges of fact, each of you will have to answer the following question:

(i)	Did the accused, on 29 March 2013, at Labasa, in the Northern Division, murder Jai Chand?
 
E.	THE OFFENCE AND IT'S ELEMENTS
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 hit B with an iron rod. When A hits B with an iron rod, A did a "wilful act" to B.

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 hits B with an iron rod, which caused internal injuries to B's heart, causing it to rupture, resulting in B's death. A's hitting B with an iron rod (willful act), set in motion a chain of events that led to B's death, and as such, 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)(b), that is, the accused was reckless as to causing the deceased's death. We will therefore concentrate on this fault element, rather than the other. In law, a person is reckless with respect to a result if: 

 (1) he is aware of a subtantiable risk that the result will occur, and 

 (2) having regard to the circumstances known to him, it is unjustifiable to take the risk. 

 The question whether taking a risk is unjustifiable is one of fact. Continuing from the examples mentioned above, when A points a gun at B, he is aware of a substantial risk that B would die if he shoots B. Being aware of the above, it was unjustifiable for A to shoot at B. Nevertheless, A shoots B, and B later died of gunshot wounds. A was reckless as to causing B's death. Likewise, A wants to hit B with an iron rod. He is aware of a substantial risk that B might die, if he hits B with the iron rod. Being aware of the above, it was unjustifiable for A to hit B with the iron rod. Nevertheless, A hits B with the iron rod, which caused rupture to his heart, resulting in B's death. A was reckless as to causing B's death.

13. In answering the question posed in paragraph 8 hereof, you will have to consider five different scenarios. The first scenario is as follows. The prosecution will have to prove beyond reasonable doubt all the elements of murder, as described in paragraph 9(i), 9(ii) and 9 iii) (b) hereof. You will have to reach a conclusion beyond a reasonable doubt that (i) the accused struck the deceased with an iron rod (willful act); (ii) that willful act caused the deceased's heart to rupture, resulting in his death and (iii) at the time, the accused was reckless as to causing the deceased's death. If you are not sure on any of the above elements of murder being proved beyond a reasonable doubt by the prosecution, then you must find the accused not guilty as charged.

14. If you have reached the above position, then you must consider scenario number two. In law, a person may be found guilty of a lesser offence, although he was not formally charged with the same. In this case, I am talking about the offence of manslaughter. For the accused to be found guilty of "manslaughter", the prosecution must prove beyond reasonable doubt, the following elements:

 (i) that the accused did a willful act; and

 (ii) that willful act caused the death of the deceased; and

(iii)	at the time of the willful act, the accused either:

(a)	intends the willful act to cause the deceased serious harm; or

(b)	is reckless as to causing serious harm to the deceased.

15. Note that the first two elements of manslaughter are similar to the first two elements of murder. The only difference between the two offences are their fault elements. In murder, the accused must intend to cause the deceased's death, or was reckless in causing the same. In manslaughter, the accused must intend to cause serious harm, not death, or was reckless as to causing serious harm, not death to the deceased. Continuing from the examples we discussed above. When A shoots B with the gun, he intended to cause B serious harm, not death. Alternatively, A was not reckless as to causing his death, but only serious harm. Likewise, when A struck B with an iron rod, he did not intend to kill him, but only to cause him serious harm. Alternatively, A was not reckless as to causing B's death, but only to cause B serious harm. If you find in scenario number 2 that the evidence satisfy the elements of manslaughter, and you are sure of the same, then you are entitled to find the accused guilty of the alternative lesser offence of manslaughter.

16. We now come to the third scenario. It is as follows. If you find that the evidence satisfy all the elements of murder, as explained in paragraphs 9, 10, 11, and 12 hereof, and you are sure of the same, then you must find the accused guilty as charged. In reaching this position, you must have found that: 

 (i) the accused struck the deceased with an iron rod, at the material time;

 (ii) that act caused the deceased's heart to rupture, leading to his death, and

 (iii) the accused was reckless as to causing the deceased's death.

17. At this point, we come to the fourth scenario. The defence had raised the defence of provocation. Section 242 (1) of the Crimes Decree 2009 reads as follows:

 "… when a person who unlawfully kills another under circumstances which, but for the provisions of this section would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation… and before there is time for the passion to cool, he is guilty of manslaughter only. Provocation means any wrongful act or insult of such a nature as to be likely when done to any ordinary person, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered…"

 So, if you find on the evidence that the accused was provoked into killing the deceased, in the sense given above, and you are sure of it, then you will have to find the accused guilty of manslaughter only.

18. At this point, we come to scenario number five. If you have found the accused not guilty as charged under scenario number 1, then you do not need to consider scenario number five. Scenario number five only comes into play if you've reached a decision that, after considering the above, the accused is either guilty of murder or manslaughter. The defence had raised the defence of self- defence. Section 42 (1) and (2) of the Crimes Decree 2009 reads as follows: 

 "…A person is not criminally responsible for an offence if he carries out the conduct constituting the offence in self-defence. A person carries out conduct in self- defence if and only if he believes the conduct is necessary: (a) to defend himself or another person; …"

 If you find on the facts that the accused was acting in self-defence, when he hit the deceased with the iron rod, and you are sure of the same, he is not guilty of murder or manslaughter. If its otherwise, then he is guilty of either murder, or alternatively, manslaughter.
 
F. THE PROSECUTION'S CASE
19. The prosecution's case were as follows. On 29 March 2013, the accused was 43 year old, married with two daughters and a son. Since birth, he had resided in Naleba No. 18, Coqeloa, Labasa. He shared a sugar cane and rice farm with his younger brother, Jai Chand, the deceased. Jai Chand was aged 35 years old, at the time. The farm previously belonged to their parents, and they had passed on. The accused had a total of five brothers and two sisters. One of the brothers had passed away. The others had moved to the urban areas. Jai Chand had his house in another part of the farm.

20. At about 1 to 1.30pm on 29 March 2013, Sushil Chand (the accused and deceased's younger brother) and Anand Goundar (PW1) arrived at the accused's house. The accused was attending a neighbour's funeral, at the time. He returned to his house, mixed some grog, and shared the same with Sushil Chand and PW1. Jai Chand, the deceased, arrived a while later, and joined them in drinking yaqona. The conversation was peaceful and friendly. At about 4pm, they finished drinking grog. Jai Chand suggested they go to a neighbor to drink homebrew (i.e. rice whisky). They didn't have lunch, and walked to Sunil to drink homebrew.

21. They were at Sunil's house for 2 to 3 hours drinking homebrew. They drank 2 bottles of 1.25 liter of rice whisky, and then returned to the accused's house. At the accused's house, they drank another bottle of rice whisky. The conversation between the three brothers (accused, Jai Chand and Sushil Chand) and PW1 was friendly until Jai Chand asked the accused's wife for some "chaser". The wife said there was none. Jai Chand told the accused he was afraid of his wife and "was living under her skirt". Jai Chand told the accused he was not capable of doing anything, and was banging the floor with this hand. The accused's wife and children were in the sitting room, and heard all the commotion

22. The accused was ashamed of what Jai Chand said, and told him to go home. He refused, and he challenged the accused to a fist fight. They fought in the accused's verandah, and out on the compound. Jai Chand broke the accused's window louvers. He was throwing several punches at the accused. Jai Chand, being 8 years younger than the accused, and being physically stronger, was getting the upper hand of the fight. He was angry and was shouting at the accused that he will "finish everybody" (i.e. to kill everybody). The accused's family were screaming in the house, terrified at what was happening. The accused told Jai Chand not to fight, and to go home, but to no avail. The accused ran to Sushil's car on the road, to avoid the fight. Jai Chand pursued him and continued to punch him. The accused ran and hid beside Sushil's car. It was dark. He felt a stone hit him in the rib. Jai Chand came to the car and repeatedly punched him. He later, ran towards his house. Jai Chand called out to him not to run away.

23. At home, the accused saw Sushil's mobile phone and called police for assistance. At this time, Jai Chand was stoning and damaging Sushil's car. The accused heard the same from his house. He grabbed an iron rod from under his settee, in the sitting room. He ran down to the road where Sushil's car was. He saw Jai Chan and PW1 standing near the car. He swung the iron rod at the side of Jai Chand's head, and he fell to the ground. He then struck Jai Chand three times while he was lying on the ground. One of his strikes ruptured Jai Chand's heart, and he later died as a result. According to the prosecution, he was reckless when he did the above.

24. The matter was referred to the police. An investigation was carried out. The accused was caution interviewed on 30, 31 March and 2 April 2013. He was charged with murdering Jai Chand on 29 March 2013, and appeared in the Labasa Magistrate Court on 3 April 2013. According to the prosecution, the accused struck Jai Chand to death with an iron rod, and he was reckless in doing so. Because of the above, they are asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.

G. THE ACCUSED'S CASE
25. On 24 November 2014, the first day of the trial, 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.

26. In his evidence, the accused admitted he was at the crime scene, at the material time. He also admitted that, at the material time, he took out an iron rod from his sitting room, ran to the crime scene, and struck Jai Chand four times; first, to the right side of his head, wherein Jai Chand fell to the ground; and then three more strikes to the stomach – two to the left side of the stomach slightly above the belly button, and one on the right side of the ribs [see Prosecution Exhibit No. 9]. In his police caution interview statement [i.e. Prosecution Exhibit No. 7 – English version], the admissibility of which was not contested by the defence, in Question and Answer 228, the accused admitted that when he struck Jai Chand on the chest with the iron rod, that caused his heart to rupture, leading to his death.

27. However, he said he was not reckless in doing the above, because Jai Chand would get up and kill him. He admitted, when he hit Jai Chand with the iron rod, he intended to cause him serious harm. In a sense, the accused was admitting the elements of the offence of manslaughter. However, he did not admit murdering Jai Chand. He also appeared to say that, even if you find him guilty of murdering Jai Chand, he was not guilty of murder but guilty of manslaughter, because Jai Chand provoked him into hitting him with the iron rod. He said, Jai Chand was his younger brother, 8 years his junior. He came to his house to drink yaqona and homebrew, but later threw his weight around when there was no "chaser". He abused him for no reason, insulted him in front of his wife and children, in his own house. He deliberately showed him disrespect in his own home, punched him repeatedly, and broke his louvers. He later damaged his younger brother's car. He threatened to kill him and his family, including anyone who crossed his path. He not only punched him, he also threw stones at him. He said, because of the above, he kill Jai Chand under extreme provocation.

28. Alternatively, the accused said, he was justified in striking Jai Chand to death with the iron rod to protect himself and his family. He said, if he didn't succeed in putting Jai Chand down, he would rise up and kill himself and his family. To him, it was a question of Jai Chand or himself and his family. He said, he acted in self-defence to protect himself and his family. Because of the above, he is asking you, as assessors and judges of fact, to find him not guilty as charged, but guilty of manslaughter, or alternatively, not guilty of murder and/or manslaughter, on the grounds of self-defence. That was the case for the defence.

H. ANALYSIS OF THE EVIDENCE
 (a) Introduction:
29. In analyzing the evidence, we will first consider the accused's alleged confessions in his police interview statement, which were tendered in evidence as Prosecution No. 6 (Hindi version) and Prosecution Exhibit No. 7 (English version). Then, we will examine the three elements of murder, as explained in paragraphs 9 (i), 9 (ii) and 9 (iii) (b) 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 defences of provocation and self-defence are available to the accused, in this case.

(b) The Accused's Alleged Confession – Prosecution Exhibit No. 6 (Hindi version) and Prosecution Exhibit No. 7 (English version):
30. The alleged murder occurred on 29 March 2013. The accused was caution interviewed by police at Labasa Police Station on 30, 31 March and 2 April 2013. The accused was given the standard caution, his right to counsel and the standard rest and meal breaks. He was asked a total of 233 questions, and he gave 233 answers In Question and Answer 232, the accused admitted that his caution interview statements were given voluntarily by him, and no force, threats or promises were done to him to give his statements. The defence did not challenge the admissibility of the caution interview statements in "a trial within a trial."

31. In his caution interview statement, the accused allegedly confessed to some elements of murder, as described in paragraphs 9 (i), 9 (ii) and 9 (iii) (b) 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 doubt 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. The acceptance or otherwise of his alleged confessions is entirely a matter for you.

 (c) First Element of Murder – That the Accused did a Wilful Act [paragraph 9(i) hereof):
32. On this issue, the prosecution's case was that, the accused struck Jai Chand four times with an iron rod, at the material time. The iron rod was tendered as Prosecution Exhibit No. 3, and you must personally feel the iron rod to understand its weight and strength and to get a feel of what Jai Chand went through. You heard and saw the accused in the witness box demonstrated how he hit Jai Chand when he was on the ground. He first hit him on the right side of the head, and Jai Chand fell to the ground. Then, he proceeded to hit him three times, when he was on the ground – two was aimed at his stomach on the left above his belly button. One was aimed at his right chest. Please, refer to photo No. 3 and 4, tendered as Prosecution Exhibit No. 9. Out of the four strikes, the prosecution is relying on the strike to the right chest that allegedly caused the damage. It is the prosecution's case that, the hit to the right chest, was the "wilful act" that later cause the damage to Jai Chand, and they are relying on the same, as the "wilful act' that constitute the first element of murder, in this case. Evidence to support the above assertions come from Anand Goundar (PW1), who saw the accused hit Jai Chand with the iron rod. Also, refer to Question and Answers 132, 133 and 134 of the accused's caution interview statements (Prosecution Exhibit No. 7). The accused in his sworn evidence admitted the above facts. 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 – The Accused's Wilful Act caused the deceased's death (paragraph 9(ii) hereof):
33. It was the prosecution's case that when the accused struck Jai Chand on the right chest with the iron rod, at the bottom of the right rib cage [see Photo No. 4, Prosecution Exhibit No. 9], this caused an internal injury in the chest and the blunt trauma ruptured the right ventricle to the heart, leading to the deceased's death. This fact was confirmed by Doctor R. P. S. Goundar (PW2), who conducted the post mortem on Jai Chad, at Labasa Hospital, on 2 April 2013. He submitted his post-mortem report as Prosecution Exhibit No. 2. You must carefully read and understand this report, because it is important in proving or otherwise the second element of murder in this case. In the report, Doctor Goundar said, the cause of Jai Chand's death was the rupture of the right ventricle of the heart due to an assault. He said, in his evidence that, when the accused struck Jai Chand on the right rib cage [see Photo No. 4, Prosecution Exhibit No. 9], it injured the inside of his chest and the force ruptured Jai Chand's heart in the right ventricle. Even the accused himself admitted the above to police when caution interviewed on 2 April 2013 – see Question and Answer 228 of Prosecution Exhibit no. 7. Questions were raised by the defence in their submission that the body at the Labasa Hospital mortuary was not Jai Chand's. However, police photographer PC 4840 Tomasi (PW7) said he photographed Jai Chand's body at the crime scene and the Labasa Hospital mortuary. He said, they were one and the same. He tendered the photographs in evidence as Prosecution Exhibit No. 8 and 9. On the evidence, it would appear that the prosecution had proven the second element of murder beyond a reasonable doubt. However, whether you accept the same is a matter entirely for you.

(e) Third Element of Murder – That at the time of the Wilful Act, the accused was reckless as to causing the deceased's death (paragraph 9(iii)(b) hereof):
34. It was the prosecution's case that, at the time the accused struck Jai Chand with the iron rod on his right chest near the right rib cage, he was reckless as to causing his death. You must consider this issue in the light of the directions I gave you in paragraph 12 hereof. As we have said before, a person is reckless with respect to a result if – 

 (a) he is aware of a substantial risk that the result will occur; and 

 (b) having regard to the circumstances known to him, it is unjustifiable to take the risk. 

 The question whether taking a risk is unjustifiable is one of fact. In this case, in his evidence, the accused admitted he was aware that there was a substantial risk that Jai Chand could die if he struck him with the iron rod. He said, he was aware of the above, but nevertheless proceeded to strike him four times with the iron rod. The first hit was to the right side of Jai Chand's head. The force of this hit fell Jai Chand to the ground. The accused said, to make sure Jai Chand stays on the ground, he delivered three more blows – two to the left of his stomach above the belly button, and one to the right chest at the bottom of the right rib cage. His intention was to make sure Jai Chand does not stand up again. He said, he intended to cause Jai Chand serious harm. Was the accused justified in taking the risk of Jai Chand dying by striking him four times? Note that Anand Goundar (PW1) suffered a broken arm, spent 5 days at Labasa Hospital and his arm was "cemented," when one of the accused's hit strayed onto him. In my view, on the facts, it was certainly unjustifiable for the accused to strike Jai Chand four times with the iron rod, at the material time. In my view, the prosecution appeared to have satisfied element No. 3 of murder beyond a reasonable doubt. However, it is a matter entirely to you.

 (f) The defence of Provocation:
35. The defence has raised the defence that the accused was provoked into killing Jai Chand. You will have to consider this issue in the light of the direction I gave you in paragraph 17 hereof. You have already heard the story of what transpired before the accused struck Jai Chand with the iron rod. On 29 March 2013, they started off on a friendly grog session between 1.30pm to 4pm. They later drank homebrew at Sunil's house for 2 to 3 hours. The homebrew was rice whisky, reputed to be a strong brew. They returned home and drank a bottle of rice whisky. The accused, Jai Chand, Sushil Chand and Anand Goundar were extremely drunk. Jai Chand asked for a "chaser". It was not available. Fighting started between the accused and Jai Chand. Jai Chand broke the accused's window louver blades, and continued to punch and threw stones at the accused. In his drunken state, he threatened to kill the accused and his family i.e. his wife, 2 daughters and a son. That was the background to the accused's violence concerning the iron rod.

36. If you are sure that the accused unlawfully killed Jai Chand, being reckless as to causing his death, the accused is guilty of murder, unless you conclude that this was or may have been a case 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. Provocation has a special legal meaning, and you must consider it in the following way. First, you must ask yourselves whether 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 have been said and done to him by the deceased, rather than just by his own bad temper. Please, refer to the matters said in paragraph 35 above. If you are sure that the accused was not provoked in that sense, the defence of provocation does not arise, and the accused is guilty of murder. But if you conclude that the accused was or might have been provoked, in the sense which I have explained, you must then go on to weigh up how serious the provocation was for the accused. Is there anything about the accused which may have made what was said or done affect him more than it might have affected other people? Finally, having regard to the actual provocation and to your view of how serious that provocation was for the accused, you must ask yourselves whether a person having the powers of self-control to be expected of an ordinary sober person, of the accused's age and sex, would have been provoked to lose his self-control and do as the accused did. If you are sure that such a person would not have done so, the prosecution will have disproved provocation, and the accused is guilty of murder. If, however, you conclude that such person would or might have reacted and done as the accused did, your verdict would be "not guilty of murder, but guilty of manslaughter." In any event, it is a matter entirely for you.

 (g) The Defence of Self-Defence:
37. The defence also relied on the defence of self-defence. They said, when the accused struck Jai Chand with the iron rod, at the material time, he was doing no more than defending himself and his wife and children. On this issue, you must take on board the direction I gave you in paragraph 18 hereof. If you think that the accused was or may have been acting in lawful self-defence, he is entitled to be found not guilty of murder and/or manslaughter. Because the prosecution must prove the accused's guilt, it is for the prosecution to prove that the accused was not acting in lawful self-defence, not for the accused to establish that he was; and you must consider the matter of self-defence in the light of the situation which the accused honestly believed he faced. You must first ask whether the accused honestly believe it was necessary to use force to defend himself at all. This would not be the case if the accused was the aggressor. If you are sure that the accused did not honestly believe that it was necessary to use force to defend himself and his family, he cannot have been acting in lawful self-defence, and you need consider this matter no further. But what if you think that the accused did honestly believe that it was necessary to use force to defend himself and his family. You must then decide whether the type and amount of force the accused 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 and his family. 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 and his family, the force used would not be reasonable. So you must take into account the nature of the attack on the accused and what he did. Please, take note of what I said in paragraph 35 above. If you are sure that the force the accused used was unreasonable, then the accused cannot be acting in lawful self-defence; but if you think that the force the accused used was or may have been reasonable, he is entitled to be acquitted of murder and/or manslaughter. However, it is a matter entirely for you.

I. SUMMARY
38. 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.

39. Your possible opinions are as follows:

 (i) Murder : Accused : Guilty or Not Guilty

 Alternative of Manslaughter if not guilty of 

Murder : Accused : Guilty or Not Guilty

40. 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, Labasa.
Solicitor for the Accused : Maqbool & Company, Solicitor, Labasa.