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State v Shaheen - Summing Up [2015] FJHC 466; HAC113.2012 (24 June 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No: HAC 113 of 2012

STATE

V

MOHAMMED SHAHEEN

Counsel : Ms. Rukalesi Uce/ Ms. Wakesa E. for State
: Ms. Safaira Ratu for the Accused

Hearing : 22nd & 23rd June, 2015.
Summing Up : 24th June, 2015

SUMMING UP

Lady Assessors and Gentleman Assessor.

1. It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.
   
2. You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused person is guilty or not guilty.
   
3. Counsel for the Prosecution and Defence made submissions to you about the facts of this case. That is their duty as State Counsel and Defence Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.
   
4. You will not be asked to give reasons for your opinions but merely your opinions themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that they will carry great weight with me when I deliver my judgment.
   
5. As a matter of law, I must direct you that the onus of burden of proof lies on the prosecution throughout the trial and it never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system an accused person is presumed to be innocent until he is proved guilty.
   
6. The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of accused person'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.
   
7. Your decisions must be solely and 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 disregard them and your opinions should only be based on the evidence given in this court room.
   
8. Your duty is to find the facts based on the evidence, apply the Law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.
   
9. You have a copy of the information with you. The accused is charged with one count of Attempt to Commit Murder. The particulars of the offence say that the accused with intent to cause the death of Rovina Lata unlawfully wounded the said Rovina Lata with a kitchen knife.
   
10. For the accused to be found guilty of Attempted Murder, the prosecution must prove the following elements beyond reasonable doubt.
    
    1. the accused;
       
    2. had the intention to kill the victim;
       
    3. with that intention he did something which was more than mere preparation to killing her.
       
11. You decide whether the accused intended to kill Rovina Lata. You decide intent by considering what the accused did or did not. You should look at his actions before, at the time of and after the act. The weapon used, the place of the body where the injury was inflicted, all these things may shed light on the intention of the accused at the crucial time.
    
12. The prosecution must also prove that with the intention to kill, the accused did something which was more than mere preparation of the offence. In this case it is said by the prosecution that the accused stabbed the victim which amounted to more than mere preparation for the offence. If you accept that the accused did this, it is for you to decide whether what he did went beyond mere preparation.
    
13. What happens if you find that the accused stabbed and wounded the complainant, but you find that he did not have the intention to kill her? Then you are entitled to look at the lesser alternative offence of Act with Intent to Cause Grievous Harm although he is not formally charged for that offence. To find the accused guilty of the offence Act with Intent to Cause Grievous Harm prosecution has to prove the following elements beyond reasonable doubt.
    
    1. The accused
       
    2. With intent to cause some grievous harm
       
    3. To the complainant
       
    4. Unlawfully wounds him by any means.
       

As I mentioned before you decide the intent of the accused by considering what the accused did or did not. His actions before, at the time and after the act, the weapon used the injuries and also the place of the body where the injuries were inflicted.

Unlawfully means simply without lawful excuse.

Grievous harm means and includes any dangerous harm to the body.

14. Therefore if you find that the accused is guilty of the offence of Attempt to

Commit Murder, you need not go on to consider a lesser offence. However if you find the accused not guilty of the offence of Attempt to commit Murder because the intention to kill was not proved, then you may go on to consider if he is guilty or not guilty of the lesser offence of Act with intent to cause Grievous harm.

EVIDENCE

15. State called Doctor Fane Lord to give evidence first. She testified about her qualifications as a medical doctor.
    
16. She had examined the alleged Victim Rovina Lata at Lautoka hospital on 7/9/2012. The medical examination form which she prepared was marked as 'Exhibit 1' in evidence.
    
17. The injuries are mentioned in paragraph 14 of the report. She said the condition of the patient could have been worse if the knife used penetrated into the chest cavity and abdominal cavity. If the knife had gone deeper, she could have injured her lungs and bowels, she said.
    
18. In cross examination she said although the injuries did not warrant surgery, she needed to be admitted for close observation. She also said that most domestic disputes she sees are of blunt trauma but this was a stabbing.

She said at that time she ruled out internal bleeding in the lung cavity.
Wounds were not deep enough to penetrate the vital organs, she said.

19. The next witness was the alleged victim Rovina Lata.

She said that on the day of the incident she was talking to her boyfriend. Accused has seen it. Accused has asked her "what is this". She had told him that she did not want him.

20. She said that the accused could not control his anger and hit her stomach.

She had got unconscious. She said that she left the accused as she had another affair. She had left because she did not want to stay with him. When she was asked how he hit her in the stomach, she said that the accused was playing around with a knife in his hand. Accidently she got injured when they were playing with each other, she said. Answering the questions posed by the State Counsel, she said that it was her fault as she was talking to that boy. She said the police would have taken her statement when she was unconscious. She identified her signatures in the statement.

21. Answering further to the questions put by State Counsel, she said that she was with her friend Reena and when accused came her boyfriend had already gone inside the restaurant. She had been with Reena outside. She denied accused kicking her leg and that she fell on the road. Denying that the accused stabbed her, she said that she got hurt while playing. She had shouted and gone to the security guard. She said she got hurt in the stomach but not on her finger. She said that she is not putting the allegation to the accused as he did not do it. She had been in hospital for 3 days. In cross examination by the Defence she said that the accused did not intend to kill her or to severely wound her.
    
22. Prosecution called: Pita Lotu to give evidence next. When he came across Naviti Street he had seen a crowd near Chillie Tree Café. An old Fijian lady had asked for help. When he ran towards the place he had seen the accused stabbing the victim. Seeing him the victim ran towards him, he said. The accused had followed her. When he was trying to stop the accused the accused had tried to stab him too. Then he had punched him and took the knife away from him.
    
23. Then he had locked his hands at the back and handed over the accused to the police when the police vehicle arrived. He had handed over the knife also to the police. He said that when the Indian lady ran towards him there was blood all over her clothes, and she appeared frightened. He identified the accused as the person who stabbed the Indian lady and the person whom he handed over to the police.
    
24. In cross examination he said that it was after 6.00pm when the incident took place and it was not that dark. He said that before he reached the crowd complainant ran towards him. He said that when at the time he ran towards the crowd the stabbing took place and that he saw the accused stabbing the Indian lady. He demonstrated in Court how the accused stabbed the Indian lady.
    
25. The next witness was D/Cpl 2061 Salen. He said that when he was on mobile petrol in the Lautoka City, at the Naviti Street junction he notice a group of people.
    
26. An iTaukei man Mr. Pita had handed over the accused to him with a kitchen

knife stating that the accused had stabbed a lady. He had handed over the accused to D/C Tobia with the kitchen knife at the Police Station. He identified the kitchen knife in Court.

27. In cross-examination he said that he did not see what happened before he came to the scene.
    
28. The next witness was DC 3152 Tobia Matai. He had been the Investigating Officer. He has recorded the Statement of the victim at the hospital. He said the victim was calm and related to him about the incident.
    
29. He also has interviewed the suspect at Lautoka Police Station. The record of the Caution Interview was produced in Court. He said that the accused made no complaints and his rights were given. No inducement, threat or promise made to the accused and the accused was treated fairly, he said. He also identified the kitchen knife which was given to him by D/C Salen when the accused was handed over to him. It was produced in evidence. He also has charged the suspect.
    
30. In cross-examination, he said that he did not take the finger prints from the knife as the knife was recovered from the suspect himself. At the scene construction the shop from which the accused bought the knife was shown to him. He had not got the receipt for the knife as the receipt had been given to the suspect. He said he did not confirm whether the knife was bought from there.
    

That was the evidence for the prosecution.

31. Ladies and Gentleman assessors,
    

At the end of the prosecution case you heard me explain several options to the accused. He has these options because he does not have to prove anything. The burden of proving his guilt beyond reasonable doubt remains on the prosecution at all times. The accused opted to remain silent and it is his right to do so. You must not draw any adverse inference from his choice to remain silent.

32. Ladies and Gentleman assessors, you heard the evidence of many witnesses. If I did not mention a particular witness or a particular piece of evidence that does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.

33. The written agreed facts are before you. Parties have agreed to those facts.

You may consider these facts as the evidence led from the witness box unchallenged.

34. A witness can give evidence on his observations, like what he heard, what he saw, and what he perceived. Only on certain circumstances court would allow witnesses to give their opinion on a matter. Those witnesses should be experts on that particular subject. For example you get experts on medical field, experts on finger prints, experts on fire arms, drug analysis etc. Now in this case Dr. Fane Lord gave evidence. Her qualifications and the expertise as a medical doctor were not challenged by the defence. Therefore the opinions she gave on her relevant subject are admissible.

35. The medical report of the victim Rovina Lata was produced in evidence. The witness doctor said in evidence about the history related to her by the victim, which is mentioned in part 12 of the medical report. You may disregard that portion of evidence as the prosecution did not elicit that evidence of what she told the doctor from the victim. All other evidence including the injuries her observations and the diagnosis may be considered when coming to your decision.
    
36. The complainant Rovina Lata was called to give evidence by the prosecution but did not support the prosecution's case. The prosecution was allowed to treat her as a hostile witness and to cross examine her on the previous statement to police. The complainant said that she was unconscious and that she could not recall what she told the police. However she identified her signatures in the statement to the police and said that she is not aware as to when she put her signature. In her evidence she said that the accused could not control his anger and he hit on her stomach. About the injuries caused to her, she said that she got hurt accidentally. She said that the accused was playing around with her and accidentally she got injured. You heard the evidence of the other witnesses as well on the incident. Therefore you decide what weight you give to the complainant's evidence, what parts of her evidence you accept and what parts you reject.
    
37. The caution interview statement of the accused was produced in evidence.

The defence did not challenge his statement to the police. You decide on the truthfulness of his statement and what weight you give to that evidence.

38. You must decide which witnesses are reliable and which are not. You have to consider as to how the witnesses faced the examination-in-chief and how they answered the questions in cross examination. You must consider whether the witnesses were forthright in their answers, or whether they were evasive, when deciding on the reliability of witnesses and acceptability of their evidence.

39. You may use your common sense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanour in arriving at your opinions.
    

40. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

41. I have explained the legal principles to you. You will have to evaluate all the evidence and apply the law as I explained to you when you consider the charge against the accused has been proved beyond reasonable doubt

42. Your possible opinions on the charge are either guilty or not guilty. Only if you find that the accused did stab the complainant but the prosecution has failed to prove the element of the intention to kill beyond reasonable doubt, then you may consider whether the elements of the lesser offence of Act With Intent to cause Grievous Harm have been proved beyond reasonable doubt by the prosecution.

43. Ladies and Gentleman assessors, this concludes my summing up on the law. Now you may retire and deliberate together and may form your individual opinions on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.

44. You may retire to consider your opinions.

Priyantha Fernando
JUDGE

At Lautoka
24th June 2015