IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 226 OF 2013S

STATE

V

SELE CAUCAU

Counsels : Mr. Y. Prasad for State
 Mr. J. Savou for Accused 
Hearings : 25 and 26 May, 2015
Summing Up : 27 May, 2015

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 they 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 19 May 2013, at Nasoqo Village, Naitasiri in the Central Division, murder Maika Tuinakelo?
 
E.	THE OFFENCE AND IT'S ELEMENTS
9. The accused was charged with "murder", contrary to section 237 of the Crimes Decree 2009. For the accused to be found guilty, 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, and as such, A did "a wilful act". Likewise, if A wants to punch and kick B. A punches and kicks B, and as such, A did "wilful acts" against 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 punches and kicks B in the stomach/ribs area, causing serious internal injuries, resulting in B's death, A's punches and kicks (wilful acts), set in motion a chain of events that led to B's death, and as such, was a substantial cause of B's death. The fact that B may already have an existing heart problem, is irrelevant.

12. The third element of murder concerned its fault element. There are two fault elements of 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:

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

 (ii) 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 want to punch and kick B in the stomach/rib area. He was aware of a substantial risk that B might die, if he punches and kick B in the stomach/rib area. Being aware of the above, it was unjustifiable for A to punch and kick B in the stomach/rib area. Nevertherless, A punches and kicks B in the stomach/rib area, causing serious internal injuries, leading to 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 four 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 paragraphs 9(i), 9(ii) and 9(iii)(b) hereof. You will have to reach a conclusion beyond reasonable doubt that (i) the accused punched and kicked the deceased in the stomach/rib area (wilful acts); (ii) those wilful acts caused the deceased to suffer serious internal injuries, leading to his death (wilful acts caused deceased's 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 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 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)	intends the wilful 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 punched and kicked B in the stomach/rib area, he did not intend to kill B, 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 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 punched and kicked the deceased several times, at the material time; and

 (ii) those acts caused the deceased serious internal injuries, leading to his death; and

(ii)	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.

F. THE PROSECUTION'S CASE

18. The prosecution's case were as follows. The accused and the deceased are in their 50's, and both reside in the same village in Naitasiri. The accused had 3 cows and a bull in his farm. The cows and bull were often left unattended in the farm, and sometimes escaped and damaged other villagers' farm. It was said that the accused's cattle escaped and damaged the deceased's gardens. As a result, the deceased cut the back of the accused's bull, somewhere near its tail. According to the prosecution, the cut was 1 ½ inches in length. The accused heard about the incident.

19. On 18 May 2013, Farasiko Waikude (PW1) and Maika Tuinakelo (the deceased) were travelling on horseback towards their village. They met the accused, who had his 3 cows and bull with him. The accused confronted the deceased, and questioned him on whether or not he was the person who cut his bull on the back. The accused admitted the same. The accused was angry. He pulled the deceased off his horseback. According to the prosecution, the accused landed a punch on the deceased's right temple, as he fell from his horse to the ground. As he hit the ground, the accused kicked him twice on the left rib. It was said that the two kicks were heavy ones. Thereafter, according to the prosecution, the accused landed two combination left/right punches on his left and right ribs. It was said the punches were heavy ones. The accused, at the time, knew the deceased was a sickly person and suffered from shortness of breath.

20. The two then exchanged heated words. The accused warned the deceased not to hurt his animals any further, while the deceased told the accused to properly contain his animals in the future. Thereafter PW1 and the deceased returned on horseback to their village. PW1 said the deceased was very weak as a result of the assault. At his village, the deceased rested in his son's house. He was in pain all day. On 18 May 2013, the deceased received medical attention at the Nasoqo Nursing Station. He was attended to by Adi Keva Nakabea (PW3), a nurse, who was constantly in contact with Doctor Colin Rubben. On 20 May 2013, the accused's condition worsened. He was having breathing difficulties, and later died.

21. The matter was reported to police. An investigation was carried out. On 22 May 2013, a post-mortem was done on the deceased by Doctor Goundar (PW4). PW4 said the deceased died as a result of shock, loss of blood in the stomach cavity and a ruptured spleen on the left side of the stomach, caused by an assault. The accused was charged with murder and appeared in the Nausori Magistrate Court on 23 May 2013. Because of the above, the prosecution is 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

22. On 25 May 2015, 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 allegation against him. When a prima facie case was found against him, at the end of the prosecution's case, he choose to give sworn evidence, in his defence. He called no witness. That was his right.

23. The accused's case was simple. He admitted he confronted the deceased, at the material time. He admitted, he threw 3 punches at the deceased, at the material time. He said, one punch landed on the deceased's mouth, and two landed on his hand. He also admitted kicking the deceased once in the stomach, on the right side. After assaulting the deceased, he said, they exchanged "a few words", and then he departed the crime scene, with his cattle.

24. In his closing submission, counsel for the defence submitted, he was provoked into assaulting the deceased, at the material time, because he admitted injuring his bull. He appeared to be saying that he was not guilty of murder, but guilty of the lesser offence of manslaughter. Because of the above, the accused appeared to be asking you, as assessors and judges of fact, to find him not guilty of murder, but guilty of manslaughter. That was the case for the defence.

H. ANALYSIS OF THE EVIDENCE
 (a) Agreed Facts:

25. The parties had submitted an "Agreed Facts". A copy is with you. There are 3 paragraphs of Agreed Facts. You may take it that the prosecution had proven those facts beyond reasonable doubts, and you may treat the same as established facts, because the parties do not dispute the same.

 (b) The Information: 

26. You will see in the information that the prosecution had stated that the accused allegedly murdered Maika Tuinakelo on 19 May 2013. The evidence showed that the accused assaulted the deceased on 18 May 2013, and the deceased died on 20 May 2013. The date that should be in the information is the 20th May 2013, since that was the date the deceased died. However, as a matter of law, you may convict on a date other than that mentioned in the information, given the 19th May 2013 is not material to the charge, and there is no prejudice to the defence, as they are not contesting the date of the assault (18 May 2013) and the date of death (20th May 2013).

 (c) Approach to Analysing the Evidence:

27. We will analyze the evidence by referring to all the elements of murder, and whether or not the prosecution had discharged its burden of proof, by providing the necessary evidence to support each element of the offence of murder. Then we will consider the defence of provocation, and the alternative charge of manslaughter.

 (d) First Element of Murder – The Accused did a Wilful Act [paragraph 9(i) hereof]:

28. The version of events of the parties on this element are somewhat different. The prosecution's case was based on what it's witness, Farasiko Waikude (PW1) said and observed, at the material time. He witnessed the whole incident. According to PW1, he and the deceased were travelling on horseback, at the material time. They met the accused. He was taking his 3 cows and a bull somewhere. According to PW1, the accused asked the deceased "Who cut his bull?" The deceased said, it was him. PW1 said, the cut was 1 ½ inches in length, whereas the defence said, it was 3 ½ inches long. The deceased then told the accused he cut the bull because it damaged his plantation.

29. PW1 said, the accused demanded the deceased get down from the horse. The deceased refused. The accused then pulled the deceased down by holding the neck of his shirt. The deceased held on to the horse's neck. PW1 said, the accused gave a right hand punch to the deceased's right temple. The deceased fell heavily to the ground. PW1 said, the accused then kicked the deceased twice on the left rib. PW1 said, the two kicks were hard ones, and they landed on the same spot. PW1 said, the accused then threw two hard left/right combinations to the deceased's ribs. The deceased told the accused to contain his cattle within their fences. After the assault, the accused left the crime scene, with his cattle.

30. The defence's version of the assault was that stated by the accused. He said, he only punched the deceased once on the mouth, and two of his punches landed on his hand. He said, he only kicked the deceased once on the right side of the stomach. Which version of events to accept is entirely a matter for you. In any event, on the evidence, the prosecution, if you accept their version, appeared to have provided enough evidence, to support the first element of murder, that is, the accused punched and kicked the deceased on the stomach/rib area several times, at the material time (the accused did wilful acts). However, it is a matter entirely for you.

(e) Second Element of Murder: The Wilful Acts caused the death of the Deceased [paragraph 9(ii):

31. It was the prosecution's case that the accused's punches and kicks to the deceased's stomach/rib area that caused serious internal injuries, which led to his death. PW1 said, the deceased was weak after the assault. When they rode home on their horses, PW1 observed the deceased was lying face forward on the horse' neck. At home, his wife, Adi Maopa Tuinakelo (PW2) said, on 18 and 19 May 2013, the deceased was lying at home, in great pain. He was holding onto his left side. He was weak and could not eat properly. He was also having breathing difficulties. Adi Keva Nakabea (PW3), a registered nurse at the Nasoqo Nursing Station, attended to the deceased from 18 to 20 May 2013. She was in contact with doctors. PW3 observed that the deceased was not in a good condition. She tried everything possible to revive the deceased, but to no avail. On 20 May 2013, the deceased died.

32. Doctor R. P. S. Goundar (PW4) did the post-mortem on the deceased on 22 May 2013. He submitted his post-mortem report as Prosecution Exhibit No. 2. In the post-mortem report, PW4 described the injuries the deceased suffered that lead to his death. He found multiple collection of blood in the deceased's small intestine, his spleen was ruptured, and there was a lot of blood in his liver. He said, the cause of the deceased's death was shock, due to loss of blood in the stomach cavity and ruptured spleen, which were brought about by assault. The deceased already had a coronary artery disease. He said, the injuries were brought about by severe blows to the stomach area, its sides and back. Putting all the prosecution's witnesses' (PW1, PW2, PW3 and PW4) evidence together, it would appear to show that, the accused's punches and kicks to the deceased (wilful acts) delivered at the material time, caused the death of the deceased. However, it is a matter entirely for you.

(f) Third Element of Murder: At the time of the Wilful Acts, the accused was reckless at to causing the deceased's death [paragraph 9(iii) (b)]:

33. You must take on board the directions I gave you in paragraph 12 hereof. Was the accused aware of a substantial risk that the deceased may die, if he kicked him hard twice on the left ribs, and two hard left/right combinations to his ribs, at the material time? Having regard to the circumstances known to him, for example, that the deceased was a sickly person and suffered from breathing difficulties, and was over 50 years old, was it unjustifiable to take the risk, by punching and kicking him several times? The question whether taking a risk is justifiable is one of fact. After looking at all the evidence, it would appear that, the accused was not justified in taking the risk of the deceased dying, when he repeatedly assaulted him with punches and kicks, at the material time. However, it is a matter entirely for you.

 (g) Conclusion on Murder:

34. Given the above discussion, it would appear that the prosecution had satisfied all elements of murder. However, it is a matter entirely for you.

 (h) The Defence of Provocation:

35. Please take on board the direction I gave you in paragraph 17 hereof. If you find the accused guilty of murder, then you must consider the accused's defence of provocation. If the accused succeeds on provocation, it merely reduces the charge of murder to manslaughter. When considering the defence, you must answer the following questions:

(i) Were the accused's punches and kicks to the deceased done in the heat of passion caused by sudden provocation?

(ii) Were the deceased's wrongful acts or insults of such a nature as to be likely, when done to an ordinary person, deprive him of the power of self-control, and to induce him to punch and kick the deceased several time?

(iii)	Was there enough time for his passion to cool?

If you think, on the evidence that, the defence had succeeded on the defence of provocation, then you must find him not guilty of murder, but guilty of manslaughter. It is a matter entirely for you.

(i)	Alternative of Manslaughter:

36. Under this heading, please take on board my directions in paragraphs 14 and 15 hereof. If you are not sure that the prosecution had proven all elements of murder, you may consider the alternative charge of manslaughter. Remember, the first and second elements of murder are the first and second element of manslaughter. The difference lies in their fault elements. If you find, on the evidence that, the accused when he kicked and punched the deceased several times intended to cause him serious harm or was reckless as to causing him serious harm, you may find the accused guilty of the alternative charge of manslaughter. It is entirely a matter for you.

(j) Evidence in Caution and Interview Statements: Prosecution Exhibit No. 3(a), 3(b) and 3(c); 4(a), 4(b) and 4(c):

37. You may use the accused's statements in his police caution interview ad charge statements to assist you in your deliberation. It is a matter entirely for you.

I. SUMMARY

38. Remember, the burden to prove the accused's guilt beyond 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 : 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 the same.

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Legal Aid Commission, Suva.