IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 117 OF 2012

STATE

vs

SAMUELA LEDUA

Counsel: Mr. S. Babitu with Ms W. Elo for State
Ms. J. Lagi for Accused

Date of Trial : 11th August – 13th August 2015
Date of Summing Up : 17th August, 2015

SUMMING UP

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 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 but it would be desirable if you could agree on them. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.

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 innocent until he is proved guilty.

5.	The standard of proof in a criminal trial is one that 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.

7	In this case the Prosecution and the Defence have agreed on certain facts. The agreed facts are part of evidence. You should accept those agreed facts as accurate and truth. They are of course an important part of the case. The agreement of these facts has avoided the calling of number of witnesses and thereby saved a lot of time of this Court.

Agreed Facts

1.	IT IS AGREED that the Accused is Samuela Ledua.
2.	IT IS AGREED that the deceased name is Viliame Baranage also known as Viliame Satala.
3.	IT IS AGREED that the Accused, Samuela Ledua, told his wife Seini Ledua, that the deceased was leaning on the settee at their home and he fell down on the floor and he is dead.
4.	IT IS AGREED that the body was taken to the Lautoka Hospital.
5.	IT IS AGREED that the Jolame Vuluma identified the body of the deceased as Viliame Satala.
6.	IT IS AGREED that a post mortem was conducted on the deceased at Lautoka Hospital.
7.	IT IS AGREED that the matter was reported to the police on the same day.
8.	IT IS AGREED that on the 14th of September, 2012, the Accused was interviewed under caution at Lautoka Police Station.

8.	You have a copy of the information with you, and I will now read the same to you:

The charges against the Accused are:

FIRST COUNT
Statement of Offence

Assault Occasioning Actual Bodily Harm: Contrary to Section 275 of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

Samuela Ledua, on the 8th day of September 2012 at Nadi in the Western Division, unlawfully and repeatedly slapped Viliame Baranage also known as Viliame Satala, an infant, on the cheeks, which caused bruises to form on the said Viliame Baranage also known as Viliame Satala's cheeks.

SECOND COUNT
Statement of Offence

Murder: Contrary to Section 237 of the Crimes Decree, No. 44 of 2009.

Particulars of Offence

Samuela Ledua, on the 8th day of September 2012 at Nadi in the Western Division, being reckless as to whether death would occur or not, suffocated Viliame Baranage also known as Viliame Satala, an infant, which act caused Viliame Baranage also known as Viliame Satala's death.

9.	The Accused has already pleaded guilty to the 1st Count. Hence you are not required to express any opinion on the 1st Count.
 
10.	In this case, as judges of fact, each of you will have to answer the following question:

Did the Accused Mr. Samuela Ledua, on 8th September 2012 murder Viliame Baranage alias Viliame Satala?

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

(i)	that the accused; 
(ii)	did an unlawful act;
(iii)	that act caused the death of the deceased;
(iv)	at the time of the act the accused:

(a) 	intended to kill the deceased; or
(b) 	intended to cause him very serious bodily harm, or
(c) 	knew what he was doing would cause death OR very serious harm but went on to do it regardless.

12.	An unlawful act is simply an act not justified in law, for example punching, stabbing, strangling, suffocating are all unlawful acts. This is the physical element of the offence of murder. In this case the Prosecution alleges that the death of Viliame was caused by suffocation. 

13.	The second element the State must prove is that the unlawful act caused the death. This simply meant that the unlawful act, substantially contributed to the death of the deceased. In this case the pathologist said that Viliame died from asphyxiation and it would almost certainly have been caused by the pressure applied on to Viliame nose and mouth. If you accept Doctor's evidence, you decide whether the blocking of Viliame's mouth and respiratory system caused the death.

14. 	The third element of murder concerned its fault/ mental element. As I described earlier, there are two fault elements for murder. In this case, the prosecution is running its case not on the basis that the Accused intended to kill Viliame but he was reckless as to causing his death. You will therefore have to concentrate on this fault element, rather than the other. In law, 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.

15.	In other words, the Prosecution is saying that Samuela was not necessarily intending to kill Viliame but they say in the alternative, that he was nevertheless 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 in our case you must find proved that the Samuela engaged in conduct that caused the death and that he knew that there was a risk that what he was doing might kill Viliame and also that he was not justified in taking that risk.

16.	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. Manslaughter has the same first two ingredients of murder; that is to say that the accused engages in conduct which caused the death of another, but instead of the recklessness as to causing the death by his conduct, he just has to be reckless as to whether his conduct will cause serious harm to the victim.

17.	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. If you find 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 .

CASE FOR THE PROSECUTION 

18.	Prosecution called Varanisese Nayara as its first witness. She is the only eye witness in this case. She was staying with his uncle Samuela and his wife Seini in Barara. She was a class 4 student at the time of the incident. Samuela's brother-in-law's one year old grandson Viliame, (the deceased child), was also living with them in Samuela's house. On 8th September 2012, Varanisese's aunt had gone to Lomolomo. Only Samuela, Varanisese and Viliame were at home. 

19.	When Varanisese was studying in the bedroom, she saw uncle Samuela bathing baby Viliame in the bathroom. Then Samuela brought Viliame to the settee in the sitting room and dressed him up. Viliame was crying. Then Samuela slapped him with his hand on the cheek. After that Samuela carried the baby. Baby stopped breathing. Samuela asked her to bring some water. He made the baby drink water. But Viliame did not drink. He had stopped breathing. Samuela put him in a pram and went towards the road. He came back and asked her to go to Lomolomo and inform his wife. Varanises went to Lomolomo and told her aunt that Viliame had stopped breathing. 

20.	Under cross examination, Varanisese said that her uncle was cooking in the kitchen when Viliame started crying. He had come to the sitting room to attend to Viliame as he had urinated in his pants. She also said that Viliame fell on the floor from the settee and hit his head on the floor. He was still crying when Samuela carried him. She said that she could witness everything from the bedroom.

21.	She said in re-examination that his uncle slapped Viliame hard; he pinched his thighs with his hand and slapped his mouth.
	
22.	Jolame Vuluma then gave evidence. He is the brother-in-law of Samuela and a Police officer by profession. On 8th September, 2012 when he was at home in Lomolomo his younger brother called him and wanted him to come to Nadi as his rented car had run out of fuel and stopped. While he was on his way to Nadi by bus he was informed that baby Viliame had passed away. After filling petrol they went to Barara to see baby Viliame. Baby Viliame's body was lying on a bed. He noticed bruises on Viliame's face; his face was red. Both Samuela and her sister told him that Viliame had fallen from the settee. 

23.	He said that on the day before baby Viliame passed away, Viliame was at his home playing with him. He did not see any injury on Viliame's face. He was suspicious of Viliame's death and wanted a post mortem conducted on his body when he went the Lautoka Hospital on 13th of September 2015. At the mortuary he saw the body and saw all the injuries on the body; hand marks on cheeks and bruises on his thighs. 

24.	Viliame's grandfather, Peniasi Vuluma gave evidence next. He said that he was staying in Samuela's hose in Barara for three days from 3rd September 2012 while going to Tailevu for a funeral. During his stay there he noticed a black mark on Viliame's cheek. He saw, on one occasion, Samuela pinching and slapping Viliame. But he did not raise any concern with Samuela because he did not want them to have problems in their family. But he did raise concerns with his sister, Samuela's wife. 

25.	Madam and gentlemen, you remember Inspector Tuitai gave evidence next. He talked about the interview conducted with the Accused on 14th and 15th of September 2015 at the Crime Branch of the Lautoka Police Station. Before or during the interview, Accused did not complain of anything. He answered all the questions voluntarily. Accused was not forced or threatened to sign the interview. Interview statement was tendered marked as P1. He read out the whole interview statement. Under cross examination Inspector Tuitai denied forcing the Accused to sign the interview statement or fabricating some of the answers. 

26.	Mr. Selva Rajan Naicker was then called by the Prosecution. He is a Justice of Peace. On a request by the Crime Officer of the Lautoka Police Station, he went to the Crimes Branch of the Lautoka Police Station on 16th September, 2012 and was asked to talk to the Accused with regard to the interview. He introduced himself to the Accused and asked a few questions regarding the interview. The Accused had told him that the answers to questions put to him at the interview were given on his own free will; no one forced him to sign; Policemen looked after him well; he was not threatened. He appeared normal when he met Samuela. Accused made no complaint regarding the interview or against Police Officers.

27.	Police photographer Josateki was called by the Prosecution. He vividly described the photographs he had taken at the post mortem and the sketch prepared after the reconstruction of the scene. You were given a copy of the sketch and each of the photographs tendered in evidence by the Prosecution. 

28.	Dr. Gounder was the last witness for the Prosecution. He was an associate professor of pathology at the Pathology Department of College of Medicine. He had been a Pathologist since 1975 and had conducted more than 5000 post mortem examinations. He gave evidence on the post mortem report, marked P4, he had prepared after the examination of the body of Viliame on the 13th of September 2012 at the Lautoka Hospital. 

29.	Doctor identified the photographs tendered by the Police photographer and confirmed that photograph P3 depicted the body of Viliame on which he conducted the post mortem. 

30.	You will remember, the Doctor explained in detail the five abrasions, 1 to 5 in the external examination section of the report. He said that an abrasion can be caused by applying pressure over the skin or applying heavy force like hitting with a blunt object or even by falling on to a hard surface. He ruled out any possibility of two abrasions on either side of the face having been being caused by slapping. He also ruled out the possibility of those abrasions having been caused by a fall from a settee. He said that those abrasions could have been caused by a heavy pressure or force applied in the form of a finger or hand itself over the mouth. 

31.	Explaining the large abrasions on thighs and the two abrasions on the forehead, the Doctor said that a quite a severe force should have been applied to cause such abrasions. Those abrasions on the thighs could not have been caused by grabbing and throwing but by a pressure applied on to the thighs to restrain the child from moving. Even though extensive haemorrhages could lead to one's death, abrasions seen on thighs were not so extensive as to cause extensive haemorrhage leading to death, he opined.

32.	Moving on to the internal examination section of the post mortem report, he described the reasons for subdural haemorrhage in the brain and congestion in the lung blood vessels. He attributed the death of Viliame to asphyxia caused by smothering. Asphyxia happens when oxygen supply to lungs and to the tissues is hampered due to various conditions like smothering. He agreed that smothering or suffocating the mouth of a child by an adult could cause asphyxia. In cross examination, he ruled out any possibility of asphyxia being caused by slapping on the mouth. 

33.	That Madam and Gentleman was the end of the prosecution case.

34.	You heard me explain to the accused what his rights were in defence and how he could remain silent and say that the State had not proved the case against him to the requisite standard or he could give evidence in which case he would be cross-examined. As you know the accused elected to give sworn evidence.

35.	Now I must tell you that the fact that an accused gives evidence in his own defence does not relieve the State of the burden to prove their case to you beyond reasonable doubt. Even if you don't believe a word an accused person says, you must still be sure that he is guilty of the crime that he is charged with. 

 Defence Case

36.	Accused, Samuela said that when he was cooking in the kitchen, he heard Viliame crying. Varanisese also called him and told that Viliame is crying. He went to see Viliame and found that he had urinated. He took him to the bathroom and washed. Then he dressed Viliame up in the bedroom and left him in the sitting room where he usually crawls. He went back to the kitchen. When he was in the kitchen he heard Varanisese yelling. He rushed to the sitting room to find Viliame lying on the floor. Varanisese told him that Viliame fell from the settee. He picked him up. Viliame was still crying but weak. He shook him but did not wake up. He came to know Viliame had passed away. 

37.	Samuela admitted slapping Viliame on the cheek but denied throwing him on to the bed or blocking his mouth with hands. When inquired about the answer to question No.35 of the cautioned interview where he had admitted Viliame being thrown on to the bed, Samuela said that he was in a shock during the cautioned interview and did not answer the questions voluntarily.

38.	When questioned about the answer to question No.39 of the cautioned interview where he had admitted blocking Viliame's mouth from crying, he denied giving such an answer and said that he did it only to stop him from crying. 

39.	In cross examination, Samuela denied giving that answer to question No.42 where he had told Police that Viliame stopped crying when his mouth was crushed. 

40.	That was the case for the defence.

41.	I have summarized all the evidence before you. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should be reminded yourselves of all that evidence and from your opinions on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourselves of the evidence.

Analysis

42.	There is no dispute in regard to the identity of the accused. It is agreed that the Accused is Samuela Ledua. It is also agreed that the deceased in this case Viliame Baranage alias Viliame Satala. 

43.	Accused admitted that he slapped Viliame on his cheek and pleaded guilty to the First Count, Count of Assaults Occasioning Actual Bodily Harm. From that you must not draw a negative inference and think that the Accused is also guilty of Murder. 

44.	In deciding cause of death, you will find the Doctor's evidence helpful. The doctor in this case, came before Court as an expert witness. Expert evidence is not accepted blindly. You will have to decide the cause of death of Viliame by yourself and you can make use of doctor's opinion, if his reasons are convincing and acceptable to you; and, if such opinion is reached by considering all necessary matters that you think fit. In accepting doctor's opinion, you must take into account the rest of the evidence led in the case.

45.	According to the Doctor's evidence, Viliame's cause of death was asphyxia or subdural haemorrhage due to smothering or suffocation. He ruled out any possibility of asphyxia being caused by slapping. So the Prosecution must prove beyond reasonable doubt that the suffocation was caused by an act other than slapping, in this case, blocking the mouth by hands and that act was done by the Accused. 

46.	Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence of a person who saw or heard the offence being committed. In this case, for example, Varanisese offered direct evidence, if you believe her as to what she saw, heard and felt.

47.	Varanisese told us that Samuela slapped Viliame on his cheeks and mouth. She also told us that Viliame fell from the settee and hit back of his head on the floor. She said she saw everything happened on that day. You will find she is straightforward in her evidence and did not encounter much challenge when she was crossed examined. It's up to you to decide how credible she is and what weight you attach to her evidence. 

48.	You saw the photographs and the sketch prepared by Josateki. Josateki gave evidence in Court. If you believe that the photographs were authentic and the sketch was prepared by the witness upon a true reconstruction of the scene you can safely rely on those exhibits.

49.	You heard the doctor's evidence as to Viliame's cause of death. He specifically ruled out the possibility of death being caused by a fall from a settee. He gave reasons for his opinion. You saw the sketch and photographs produced by the Josateki. You heard evidence of Varanisese who saw the incident. Having considered all the evidence, you decide whether it is possible to come to the conclusion that Viliame died as a result of a fall from a settee.

50.	May I now direct you on circumstantial evidence.

51.	In circumstantial evidence you are asked to piece the story together from witnesses who did not actually see the crime committed, but give evidence of other circumstances and events that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime.

52.	I cite the following situation as an example for circumstantial evidence. In a silent night you hear cries of a man from a neighbouring house. You come out to see that a man named 'X' is running away from that house with an object in his hand. Out of curiosity you go inside the house to see what really had happened. You see your neighbour 'Y' lying fallen with injuries. Here you didn't see 'X' committing any act on 'Y'. The two independent things you saw were the circumstances of the given situation. You can connect the two things that you saw and draw certain inferences. An inference you may draw would be, that 'X' caused the injury on 'Y'. In drawing that inference you must make sure that it is the only inference that could be drawn and no other inferences that could have been possibly drawn from the said circumstances. That should also be the inescapable inference that could be drawn against 'X' in the circumstances. Further in evidence, one witness may prove one thing and another witness may prove another thing. None of those things separately alone may be sufficient to establish guilt, but taken together may lead to the conclusion that the accused committed the crime. Therefore you must consider all direct evidence as well as circumstantial evidence.

53.	It must not be mere speculation guesswork. It is not sufficient that the proved circumstances are merely consistent with the Accused persons having committed the crime. To find him guilty you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt that the Accused persons committed the crime.

54.	Before you can draw any reasonable inferences you must first be satisfied beyond reasonable doubt that the evidence given by witnesses relating to the circumstances giving rise to the issues of fact to be proven is credible and truthful.

55.	In this case, Jolame Vuluma had not seen any injury on Viliame's face on the day prior to his death when he was playing with him. Soon after the death Jolame sees reddish bruises on Viliame's face. Doctor discovers, at the post mortem examination, five external abrasions on different places of Viliame's body that are not compatible with a fall from a settee. According to Varanisese evidence, only person who handled Viliame was Samuela. You consider what inference can be drawn from this scenario. 

56.	Samuela had admitted certain things to Police in his cautioned interview statement. You heard what Samuela told in Court in his evidence about those admissions. Having considered all the evidence led in this case, it is for you to assess what weight should be given to those statements. You decide whether facts in his caution interview statement are truthful. If you are sure that the facts in the caution interview statement are truthful then you can safely act upon it. If you are not sure, for whatever reason, that the confession is true, you must disregard it. If, on the other hand, you are sure that it is true, you may rely on it. 

57.	If you come to the conclusion that Viliame's death was by a fall from the settee or you are not sure of his cause of death you must not find the Accused guilty.

58.	If you come to the conclusion that it was the act of Samuela that had caused the death of the deceased; then you have to ask yourselves whether Samuela was reckless in causing Viliame's death. He 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 in this case you must find proved that the Samuela engaged in a 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.

59.	If you find that Samuela was reckless as to causing serious harm, not death to the deceased and 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. 

60.	If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of accused's guilt you must find him guilty for the charge. 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. 

61.	Your possible opinions are as follows:

(i)	Murder Guilty or Not Guilty?
(ii)	Manslaughter Guilty or Not guilty? 

62.	You may now retire to deliberate on the case, and once you have reached your decisions, you may inform our clerks, so that we could reconvene.

63.	Any re-directions?

Aruna Aluthge JUDGE

At Lautoka
17th August 2015

Solicitors: Office of the Director of Public Prosecutions for State
 Office of the Legal Aid Commission for the Accused