Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Naliva - Summing Up [2015] FJHC 793; HAC21.2012 (22 October 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Crim. Case No: HAC 21 of 2012

STATE

V

KAVEKINI NALIVA

Counsel: Ms. J. Fatiaki for State
Mr. V. Sharma for Accused

Hearing: 19, 20 and 21 October 2015
Summing Up: 22 October 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 defence and the prosecution made submissions to you about the facts of this case. That is their duty as defence Counsel and state counsel. There submissions are not evidence. You heard the evidence of all witnesses adduced in court. 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 yousure of accused person's gu'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 th to those facts. Approach the evidence with detachment and objectivity. Do not get carried ried away by emotion.
   
9. You have a copy of the information with you. The accused is charged with one count of Manslaughter. The particulars of the offence say that the accused engaged in a conduct that caused the death of Vilikesa Kalou and was reckless as to a risk that the conduct will cause serious harm to Vilikesa Kalou.
   
10. For the accused to be found guilty of Manslaughter in this case, the prosecution must prove the following elements beyond reasonable doubt.
    
    1. the accused;
    2. engaged in a conduct,
    3. That conduct caused the death of the deceased,
    4. Accused was reckless as to a risk that the conduct will cause serious harm to the deceased.
       
11. The second element, 'Engages in a conduct' means to do an act or omit to perform an act. For example, if you punch a person you engaged in a conduct because you preformed an act.
    
12. The third element,' the conduct causes the death of the deceased' means; the conduct must cause a substantial cause of the death. For example, if you punch someone and due to that punch if that person falls and hits his head on the floor injuring his head and dies due to that injury, your conduct caused the death of that person. In this case there is no dispute that the accused punched the deceased. The defence says that after the accused punched the deceased, Alipate Nagata smashed the head of the deceased on the floor. Prosecution says that when the accused punched the deceased he fell on the cement floor injuring him, and that caused the death of the deceased. It is for you to decide which version you are going to accept. However I must direct you, that in law, it is enough that the accused's act contributed significantly to the death; it need not be the sole or principal cause thereof.
    
13. The fourth element, 'the accused was reckless as to a risk that the conduct will cause serious harm to the deceased' means; was the accused reckless as to the risk that it would cause serious harm to the deceased when he punched him?
    
14. As to the recklessness, you may consider whether the accused was aware of the substantial risk that his conduct would cause serious harm to the deceased when he punched him, and whether it was unjustifiable for him to take that risk.
    

EVIDENCE

15. Prosecution called Alipate Natoba to give evidence first. He said that he was drinking with Alipate Nagata, Minoni and others at Sigatoka Club on 10/12/2011 approximately at 6.00pm. Vilikesa and the Accused had also been present there.
    
16. When they were drinking, Naliva had arrived. Naliva and Vilikesa had been angry over a previous incident. Naliva had initiated the argument. Then security had asked them to go outside. They had then gone outside. He said that the accused punched Vilikesa on the mouth. Then Vilikesa lay down on his back face upwards, he said. Witness demonstrated to you how Vilikesa fell. He said that outside the building, the floor is made of concrete. Then Alipate Nagata and Luke had gone to see Vilikesa. He had told them that they have to take him to hospital.
    
17. In cross examination he said that the punching happened before 7.00pm. He was not that drunk, he said. He said Alipate did not punch the accused. He said that he knew that Vilikesa was dead by then, and that he did not go to see him. On seeing his statement to the police, he admitted thathe told the police that, ' when I saw the deceased fell down on the floor for about 5 minutes then I went to help him with few other boys try to make him sit down massaging his back but he could not recover.' He said that what he told the police was correct and that on that he lied when he said that he did not go to Vilikesa when he fell.
    
18. He said that Alipate Nagata did not punch Vilikesa. He denied that he was framing the accused to save Alipate Nagata.He said that after Vilikesa was taken to hospital, they were drinking and there were leftover beer. He said that there was no room in the car for them to go to the hospital when Vilikesa was taken to hospital.
    
19. State called Inoke Nasivi to give evidence next. He had been working at True Blue Nightclub, Sigatoka on 10/12/2011 in the night shift. Vilikesa had come and asked him whether some guys from Navosa were drinking downstairs. He had told him that some guys were drinking outside, porch. Then he had seen Vilikesa drinking with them. After a while he had heard shouting from downstairs. When he came to the balcony, he had seen the accused punched Vilikesa. Vilikesa fell down, he said. Then the accused had pulled Vilikesa up and smashed his head on the concrete floor. Then he had shouted from upstairs. He said that the incident happened around 9.15 – 9.30pm. He said that the lighting condition were not that bright. Then when he came back to the front gate he had seen some of the men carrying Vilikesa. Out of those men he only knew one Luke and 2 other guys, he said.
    
20. In cross examination, he said that Vilikesa fell down face upwards when he was punched. He had not seen anyone coming to help Vilikesa after he was pulled up and smashed his head on the floor. When he was asked whether Alipate Nagata punched Vilikesa, he said that Alipate was in the toilet. He said Alipate was not there and that he had asked Alipate about that. He said that the lights in the night club were not bright and on the top it was bright.
    
21. He said that when Vilikesa was carried, he was told that Alipate had punched the accused. When he was asked that he had not told the police that Vilikesa came to meet him, he said, the police only asked about the incident. He said that he cannot recall whether he bothered to tell the police that Vilikesa came to meet him and that he directed him outside.
    
22. He said that the accused punched Vilikesa straight on the face. He denied that Alipate was working at True Blue at the time of the incident. He denied that he tried to frame the accused.
    
23. In re-examination he said that Alipate Nagata punched the accused after Vilikesa was lying on the ground.
    
24. The next witness for the prosecution was Ulaiasi Vuasa. He had been a security officer at Sigatoka Club. On 10/12/2011 at about 9.00pm he had decided to close the bar and had told people to move outside. When he was trying to close the main entrance, a boy had informed him that a boy was lying on the floor. He closed the door and ran outside, he said. He had seen a boy lying on the floor and some group of men standing beside him. He had checked the boy's pulse and heart beat and found him dead. He had called the security to look for transport to take the boy to hospital.
    
25. In cross-examination, he said that the other persons were not allowed inside when the door is locked. He said that there is another entry from the back. No one else had entered the club after the door was locked. Alipate Nagata whom he knew had been a security officer at the club and that at the time of the incident he was working there. Only security personnel had been there inside the club when the incident happened. He said that he cannot recall whether Alipate Nagata was at the scene where Vilikesa was lying. Alipate Nagata is related to him, he said. He said that he did not know whether Joji Navabale was there. He said that he did not know a person called Tipola Ranadi. He said that he did not know whether Alipate Nagata was drinking in the club.
    
26. The next witness was Luke Navuwai. He had gone to Sigatoka Club to meet his friend Etuate. Security had informed him that his cousin Vilikesa was lying. He had gone down and checked his heartbeat. He had carried him and taken him to the hospital. He said that he did not see anything else.
    
27. In cross examination he said that Alipate Nagata who is his cousin had invited him in the club. He said that he went to the club by 4.00 pm and had been drinking since then. He said that he went to the club to drink with Alipate Nagata.
    
28. He said that when he went to Vilikesa, Naliva was standing beside Vilikesa. He had been there when Naliva punched Vilikesa, he said. When he held Vilikesa, Alipate Nagata had punched Naliva. The security and a group of men had been there at the scene.
    
29. He said that Alipate Nagata was still on the ground floor when he went upstairs to meet Etuate. He said that when he was at the scene, Alipate Nagata arrived. He denied that Alipate Nagata was already there when he arrived.
    
30. He said that he was drunk and that he cannot remember whether a person called Tipola Ranadi was there. He said that when he was holding Vilikesa, Alipate arrived later. When it was put to him that he was trying to save Alipate Nagata by framing the accused, he said that he does not know. He denied that Alipate Nagata punched or assaulted Vilikesa whilst he was on the ground.
    
31. The next witness was Alipate Nagata. He had been drinking at Sigatoka Club with Luke. There had been a fight at the club. He said that when he went to the washroom and came, he saw Vilikesa lying on the floor. He said that he did not see anything else.
    
32. In cross examination he said that he was a security officer in True Blue Hotel and that day it was his day off. He said that Alipate Natoba was his nephew. Inoke Nasivi had been his chief security.
    
33. He said that when Vilikesa was lying, Luke and Ulai were trying to wake him up. Accused had been standing beside Vilikesa. He said that he punched the accused and that the accused fell unconscious.
    
34. He said that Joji Navabale was there at the scene. He denied assaulting Vilikesa. He denied that he was part of the fight. He said that he never talked to accused. However after showing his statement to the police where he had said that he had told the accused that "this is a very serious case and that he is now in problem with the law", he said that he cannot recall as its being long time.
    
35. He said that Joji Navabale was there. He did not know who Tipola Ranadi was. He said that he was a serving prisoner for an assault case.
    
36. In re-examination he said that the last time he spoke to Alipate Natoba was the next day after the incident. Last time he spoke to Inoke Nasivi was few days after the incident, he said.
    
37. Prosecution called Mereseini Naqiri, Woman Constable 4217 next. She had recorded the caution interview statement of the accused. She said that she advised about the accused's rights.Caution interview statement which was recorded in i-Taukei language was tendered in evidence as Exhibit P1 and the English translation was tendered as P1(a). Caution interview statement was read over to you in Court.
    
38. In cross examination she said that she asked the accused for the interview to be read out to him. She said she asked it verbally, but never wrote it down. She said that she recorded the interview in i-Taukei language and that he fully understood the questions asked. She denied infringing the accused's rights.
    
39. She said that she recorded the statement of Tipola Ranadi, when the statement was shown to her. It was recorded on 12/12/2011.
    
40. She said that she was only instructed to record the interview and that she had no idea about other investigations.
    
41. Post Mortem Report of the deceased Vilikesa, the crime scene photographs and the Autopsy photographs were produced in evidence with consent of the parties.
    
42. That was the evidence for the Prosecution.
    
43. 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 give sworn evidence and subject himself to cross examination. He also called two witnesses to give evidence for the defence. You must give their evidence careful consideration.
    
44. Accused in his evidence said that he was at Sigatoka Club at about 5.00pm. He had been drinking with Vilikesa, Luke and Natoba. They drank till about 8.30, he said. He said that he argued with his uncle Vilikesa. It was about Vilikesa punching his brother some time ago. Vilikesa had started swearing at him. Vilikesa had told him 'that's finished' and had called him 'arsehole'. They had argued and had gone outside. He said that Vilikesa punched him. He had dodged the punch and had punched Vilikesa. Vilikesa fell on the ground, he said. Then he had received a punch, where he had got unconscious. He said that later he heard that Alipate Nagata had punched him. When he regained consciousness, he had been at the same place. Then he had gone home. He said that next morning Police came and took him. Police have caution interviewed him. Interview statement was not read back to him, he said.
    
45. In cross examination he denied that he had gone to Sigatoka Club more than one occasion. He said that the porch of Sigatoka Club is closer to the place where incident occurred than to the Sigatoka Bridge. He also said that the balcony of the True Blue hotel is closer to the place of incident than to the bridge. He said that his brother Mele Miki was a Police Constable at that time.
    
46. He said that he was not asked if he wished to read the interview statement when it was ended. He had signed the interview, but he said that he did not read.
    
47. He said that he was not angry with Vilikesa. He said that when he punched Vilikesa, he sat but did not fall. He said that he got unconscious when he got the punch. He had punched Vilikesa on his face. He demonstrated the side of the face he punched. He also said that Vilikesa was drunk. He had been physically bigger than Vilikesa. He said that he wanted to weaken Vilikesa. Vilikesa led outside to fight and initiated the fight, he said. He said that he brought up the issue about Miki Mele, but did not mean to fight.
    
48. Defence called Joji Navabale to give evidence next. He had been in Sigatoka Club at about 8.30pm. Naliva, Natoba, Alipate and Vili had been drinking when he entered the Club. He said that Vili and Naliva argued and Vili punched Naliva. He said that Naliva asked Vili, why he punched Miki his brother. Vili had said that 'it is an old incident and why you bring it up' and had punched Naliva. Then Naliva had punched Vili. Then he said Vili fell and he ran and held Vili.
    
49. He said that he was drunk. He had made Vili lay down and had gone to look for transport to take Vili to hospital. He had not seen any injury in Vili's face. Referring to photograph no. 2, he said that the injury shown there was not there on Vili.
    
50. When he arrived from looking for a taxi, he had seen 4 men carrying Vili, two from hands and two from legs, and Vili's head had been hanging. They had taken Vili to hospital. He said that only he was there when the punching incident happened.
    
51. In cross examination he said that there were no other people at the area that the incident happened. However, he said that there were people sitting on the porch which was 3-4 meters away and that they could see the area that the incident happened.
    
52. He said that Naliva is his cousin, and Naliva had asked him to come and give evidence. He said that he knew that the Police were investigating Naliva, but he did not tell the police what he said in Court. He said that he did not tell the police as police did not come. He said that Vilikesa was unconscious because he was drunk. He denied that it was because Vilikesa hit his head on the cement floor after he got punched.
    
53. The last witness for the Defence was Tipola Ranadi. She said that she was travelling across the Sigatoka bridge at about 8-9pm after dropping her children in the town. She had seen a man lying on the cement floor of Sigatoka Club. Two men had been standing beside him. Then she had seen Alipate coming and kicking the man who was lying. She said, that after Alipate kicked the man, he held the man's head and smashed his head on the floor 3 times.
    
54. After sometime she had seen the accused coming out from the club. Accused had come towards the man who had been lying. Then Alipate had punched the accused and the accused had then fallen. She said that she saw all these clearly. She then said that she saw the accused lay on the ground. His clothes had been wet and had injuries on his upper lips, she said. Then the accused had told her that he was alright. Some men made him stand, she said. She said that she was not contacted by the police. She had made a statement to police.
    
55. In cross examination she said, that there are trees between the Sigatoka Club and the bridge. She said that the accused is his cousin. She said that the accused called her to come and give evidence. She said that she and Naliva never spoke about the matter after the incident. When she heard that Accused was taken to Police Station, she had gone to the Police Station to see if she could help Naliva.
    
56. She said that Alipate kicked the man who was lying on the ground. She said that she told that to the police. After showing her the statement to the police, she admitted that she had not mentioned to police that Alipate kicked Vilikesa. She admitted that she lied when she said that she told that to the Police.
    
57. She also admitted that she had not told the police that Alipate lifted Vilikesa's head and smashed on the floor 3 times according to her statement. However she said that she told that to the police and that they have not recorded it. She said that the statement was not read back to her. Police just gave it for her to sign, she said.
    
58. She said that when Alipate was with the man who was lying, the accused came out of the club and therefore accused was nowhere in the sight when Alipate assaulted the man lying. She said that she was telling the truth. She said that the balcony of the True Blue hotel was closer to the place of the incident than to the Sigatoka bridge. Porch outside the club is also closer to the place of incident than to the bridge, she said.
    
59. That was the evidence for Defence.
    
60. 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 is unimportant. You should consider and evaluate all the evidence in coming to your decision.
    
61. The written agreed facts are before you. Parties have agreed to those facts. You may consider those facts as the evidence led from the witness box unchallenged.
    
62. The caution interview statement of the accused was produced inevidence. The defence did not challenge the admissibility of the caution interview statement. However, the accused said in evidence that the police officer who recorded the statement did not read the statement back to him. The police officer said that she told him verbally and that the accused understood every question put to him as it was recorded in i-Taukei language. The accused never said that the contents of the statement were not what he said. You decide on the truthfulness of his statement and what weight you give to that evidence.
    
63. You may have noticed that when some witnesses gave evidence, there were inconsistencies between their evidence and their statements to the police. What you have to take into account is the evidence given in court, not what the witness said in the statement to the police. However, the fact that there were such inconsistencies may affect the credibility of the witness. Inconsistencies per say within their own evidence also may affect the credibility of a witness.
    
64. You may remember that some of the witnesses were questioned about the brightness of the lights inside and outside the club. The incident had taken place in the night time. In assessing the evidence of the witnesses whether they saw the incident properly without making a mistake you must take the following matters into account.
    
    1. Whether the witness has known the accused and the other persons that he is said to have seen before?
       
    2. For how long did the witness have those persons under observation and from what distance? Was it more than a fleeting glance?
       
    3. Did the witness have any special reason to remember?
       
    4. In what light was the observation made?
       
    5. The distance to the place of incident and the witness.
       
    6. Whether there was any obstacle to obstruct the view?
       
65. However, when you consider these questions when assessing the evidence of the witnesses, you must also consider the reliability and the credibility of the above witnesses.
    
66. You may remember the accused said in evidence that the deceased punched him first. He said that he dodged the punch and then he punched him once. Although the defence did not take up the position that the accused punched the deceased in exercising his right of self defence, I may direct you on the law of self defence.
    
67. The law says that a person is not criminally responsible for an offence if he carries out a conduct constituting the offence in self defence. A person carries out a conduct in self defence, if and only if he believes that the conduct is necessary to defend himself.
    
68. If you find that the accused made the first punch on the deceased in this case, then he had not acted in self defence. If you find that the deceased made the first punch, then what you need to resolve is whether the accused did or may have believed that he needed to use force to defend himself. You must see whether the accused had no option but to punch as he did.
    
69. A person is entitled to use reasonable force to defend himself. Reasonable force means proportionate force. It means not going completely over the top in your response to the threat you honestly think you face. Use your common sense. You do not have to be hit before you defend yourself.
    
70. If you conclude that the accused honestly believed that he had to use force and that the punch was a reasonable response then you must find the accused not guilty. However, in this case if you find that the accused initiated the fight then he cannot raise self defence.
    
71. In his caution interview statement, the accused had said that they challenged to a fight. If you find that it was the truth, then the accused is not entitled to take up the defence of self defence. You again have to decide who is telling the truth.
    
72. The post mortem report is before you. It is unchallenged evidence. The doctor has mentioned the injuries on the body of the deceased. The cause of death in doctor's opinion was Subdural Haemorrhage – Posterior Fossa of Skull. Antecedent Causes are Subarachnoid Haemorrhage over the Pons, Medulla Oblongata and Cerebellum Bilaterally.
    
73. The prosecution says the accused punched the deceased on his face, the deceased fell, hitting his head on the cement floor.
    
74. The defence says that the accused punched the deceased; however, the above injuries were caused not by the conduct of the accused but by the conduct of Alipate Nagata.
    
75. You heard all the evidence of the prosecution and the defence and it is for you to decide whether the conduct of the accused caused the injuries. You have to decide, whether the accused, when he punched the deceased, was aware of a substantial risk that his conduct will cause serious harm to the deceased.
    
76. 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.
    
77. 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.
    
78. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.
    
79. 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.
    
80. Your possible opinions on the charge of manslaughter are either guilty or not guilty.
    
81. 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.
    
82. You may retire to consider your opinions.
    

Priyantha Fernando
Judge

At Lautoka
22October 2015

Solicitors
Office of the Director of the Public Prosecutions for State.
Mr. V. Sharma for Accused.