IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICATION
CRIMINAL CASE NO. HAC 099 OF 2017S

STATE

vs

TIMOCI LOLOHEA

Counsels		:	Ms. S. Navia and Ms. W. Elo  for State
				Mr. A. Qeitaki for Accused
Hearings		:	30 April, 1, 2 and 3 May, 2018
Summing Up		:	7 May, 2018

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 so that you are not sure 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 20 March 2017, at Nasinu in the Central Division, murder Elenoa Dicovi, by stabbing her with two knives?

E.	THE OFFENCE AND ITS ELEMENTS
9.	The accused was charged with murdering Elenoa Dicovi on 20 March 2017 at Nasinu in the Central Division, by stabbing her with two knives, contrary to section 237 of the Crimes Act 2009.  For the accused to be found guilty of “murder”, the prosecution must prove beyond reasonable doubt, the following elements:
(i)	that the accused did a willful act; and
(ii)	that willful act caused the death of the deceased; and
(iii)	at the time of the willful act, the accused either;
(a)	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 “willful 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, if A assaults B in what manner whatsoever, A thereby did a “wilful act” to B.

11.	On the second element of murder, “the willful act must cause the death of the deceased”.  This simply meant that the accused’s willful act, substantially contributed to the death of the deceased.  The accused’s willful act must be a substantial contributor to the death of the deceased.  In other words, the accused’s willful act was a substantial cause of the deceased’s death.  Continuing from the above example, when A assaulted B, it caused serious injuries to the body of B, thereby resulting in B’s death.  A’s assaulting B, set in motion a chain of events that led to B’s death, and as such, was a substantial cause of B’s death.  B would not have died, but for A’s assault.

12.	The third element of murder concerned it’s fault element.  There are two fault elements for murder, as described in paragraphs 9(iii) (a) and 9(iii) (b).  In this case, the prosecution is running it’s case on the fault element in paragraph 9 (iii) (a), that is, the accused intended to cause the deceased’s death.  We will therefore concentrate on this fault element, rather than the other.  The prosecution must make you sure that when the accused did “the willful act”, he “intended to cause the death of the deceased”.  You cannot cut open the accused’s head, to find out what his intentions were, at the time he allegedly assaulted the deceased to death.  But you can examine his conduct at the time, that is, what he said and did, and the surrounding circumstances, to infer whether or not he intended to kill the deceased, when he allegedly assaulted her.  If you find that he intended to kill the deceased, at the material time, that would be sufficient to support the third element of murder, that is, an intention to kill.

13.	If you are sure that all the elements of murder, as expressed above, are satisfied by the prosecution beyond a reasonable doubt, then you must find the accused guilty as charged.  If you find that some of the elements of murder, as described above, are not satisfied beyond a reasonable doubt by the prosecution, then you must find the accused not guilty as charged.

14.	If you find the accused guilty of murdering the deceased, you may need to consider the lesser offence of “manslaughter”.  This was because the defence, in their closing submission, appear to call in aid the defence of “provocation”.  They appear to submit that the accused was provoked by the deceased into killing her. In law, a person may be found guilty of a lesser offence, although he was not formally charged with the same.  Section 242 (1) and (2) of the Crimes Act 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 not guilty of murder, but guilty of manslaughter only.

15.	Furthermore, it would also appear from the defence’s closing submission that they said, in the alternative, that the accused was not guilty of murder and/or manslaughter, by reason of “mental impairment”, pursuant to section 28(1) of the Crimes Act 2009.  Firstly, as a matter of law, a person is presumed not to be suffering from any mental impairment.  Secondly, this presumption can be displaced by the defence if it proves on the balance of probabilities that the person was suffering from such a mental impairment.  Thirdly, a person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from mental impairment that had the effect that:
	(a)	The person did not know the nature and quality of the conduct; or
(b)	The person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or
	(c)	The person was unable to control the conduct.

16.	The question whether the person was suffering from a mental impairment is one of fact for you.  “Mental impairment”, as a concept, encompasses various types of mental conditions.  It includes “senility, intellectual disability, mental illness, brain damage and server personality disorder”.  One could easily argue that any person having any type of mental illness”, could escape criminal liability, even for an offence of murder, as in this case.  However, the law does not give a blanket cover to people suffering from any type of mental illness to escape criminal liability.

17.	For the defence of “mental impairment“ to succeed, the defence must prove, on the balance of probabilities that”:  (1)  the accused is suffering from a mental illness, at the material time;  (2)  the accused did not know the nature and quality of the conduct, at the material time;  or  (3)  the accused did not know the conduct was wrong;  or (4)  the accused was unable to control the conduct.  If the defence succeeds on the above, then the accused is not guilty of murder, and/or manslaughter because of mental impairment.

F.	THE PROSECUTION’S CASE
18.	The prosecution’s case were as follows.  On 20 March 2017, the accused was 55 years old.  He was born on 20 May 1961.  The deceased, Ms Elenoa Dicovi, was 23 years old.  She was born on 8 January 1994.  The age difference between the two was 32 years. The accused and the deceased had been living in a defacto relationship since 2012, and they had a young daughter, as a result.  This would mean that the accused started a defacto relationship with Ms. Elenoa Dicovi when she was 18 years old, and he 51 years old.

19.	According to the prosecution, the accused met his defacto wife in the following way.  He was legally married to the deceased’s aunty prior to 2012. The accused and his legal wife resided at Nadonumai, Suva, where they had their matrimonial home.  They had no child.  The deceased, who was the legal wife’s brother’s daughter, came to live with them for a while.  By marriage, she was the accused’s niece.  At the time, the accused ran his logistic company and worked as a private security officer for contracts in Iraq, Afghanistan, Somalia and other countries. He worked for the Fiji Military Force for 18 years, and retired in 1994 as a Warrant Officer Class 2.  During his career in the Military and overseas private security, he had done 30 to 40 overseas tours.

20.	According to the prosecution, the accused employed the deceased in his logistic company.  After a while, the two started a relationship.  The accused made the deceased his defacto wife and the two left Nadonumai.  The accused also left his legal wife.  A daughter arose out of this relationship.  In 2015, the accused, the deceased and their daughter rented a flat in Sawau Road, Bayview Heights.  The deceased later secured a job at Damodar cinema as an usher.  She began to work late into the night.  According to the prosecution, the deceased was having a relationship with another man, behind the accused’s back.

21.	The accused appeared suspicious of his defacto wife’s late night at work.  A month before the alleged incident on 20 March 2017, the accused found “love bites” on his defacto-wife’s breasts, while she was asleep.  Their relationship began to take a downward turn.  The accused began to assault the deceased.  She left their Bayview flat, and left the accused.  She took their child to Labasa.  According to the prosecution, she told the accused she was not returning to him and she had turned a new leaf in life by going out with her new boyfriend.  She also advised the accused that she was carrying their child.  This allegedly made the accused angry and jealous.  A few days after the above, the accused came to the deceased’s new residence at Nasilivata Road, Nadera and allegedly stabbed the deceased to death.  According to the prosecution, when he stabbed her on 20 March 2017, he intended to cause her death.

22.	The matter was reported to police.  An investigation was carried out.  The accused was caution interviewed by police on 20 and 21 March 2017 at Valelevu Police Station.  On 22 March 2017, he was taken to Nasinu Magistrate Court charged with murdering Ms. Elenoa Dicovi.  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
23.	On 30 April 2018, the first day of the trial, the information was put to the accused, in the presence of his counsel.  He pleaded not guilty to the charge.  In other words, he denied the murder allegation against him.  When a prima facie case was found against him, at the end of the prosecution’s case, wherein he was called upon to make his defence, he choose to give sworn evidence and called no witness.  That was his right.

24.	The accused’s case was very simple.  I will quote the court record on what he told the prosecution, when cross-examined:

	When with the Fiji Military Force, I went in 8 overseas tour of duty.  The rest of the tours were with private contractors i.e 30 to 40 tours of duty.  I witness atrocities i.e. cruel and wicked acts during those tours.  It has affected the way I think, act and live.  I don’t forget the experiences.  It has caused me to be violent theoretically.  When I’m provoked, it makes me violent.

	In the Fiji Military, we received $20,000 extra pay, after our tour of duty.  I never see any counsellors thereafter, be they from the church or profession.  In the Fiji Military we are medically checked physically before any tour of duty.  It includes medical assessments.  Soldiers with suspected mental problems are not allowed to go on tour.  On my tours of duty in the Fiji Military, I was fit physically and mentally.

	On private contractors tour of duty, we receive a lot of money.  Thereafter, I don’t visit any psychiatrist.  Instead, I drown my problems in consuming liquor with my friends.  I don’t feel any psychiatric problems, when I return from tours.  I have not visited the Saint Giles Hospital whatsoever.

	The victim is smaller than me.  During our relationship, I do not assault the victim.  I begin to assault her, when I found out she was having an affair.  She ran away after I assaulted her.  She found a new job while she was still with me at Damodar City.  That’s when the problem started.  I assaulted Elenoa after I found love bites on her.  These love bites occurred while she was working at Damodar Cinema.  She later left me.  I later started looking around for her.   I found out she was at Lot 26 Nasilivat Road, Nadera.  I persuaded her to return to me sometime.  I called her by phone.  I went to Nasilivata Road to ask her to return because she had moved on with her life.  I made various phone calls to her to return to me.  She refused to return to me.  Because of that, I partly became jealous.

	Because of my jealousy, I planned to kill Elenoa.  On 20 March 2017, I went to Lot 26 Nasilivata Road.  I was interviewed by Detective Constable Taitusi.  I gave the 240 answers voluntarily.

	On 20 March 2017, I stabbed Elenoa Dicovi with 2 kitchen knives.  She received 12 stab wounds.  I agree she died from the stab wounds.  At the time I stabbed her, I intended to kill her.

25.	The accused’s above statements were consistent with what he told the police when caution interviewed on 20 and 21 March 2017 at Valelevu Police Station.  Please, refer to question and answers 97, 139, 141, 147, 149, 150, 156, 162, 167, 168, 170, 171, 174, 175, 176, 178, 180, 183, 185 and 187 of Prosecution Exhibit No. 6 [Accused’s police caution interview statement]

26.	When looking at the above evidence, it would appear that the accused had admitted murder.  However, in his counsel’s closing submission, be submitted that he was provoked into killing the deceased because of what she had previously done to him, thus he was not guilty of murder but of manslaughter.  He also appeared to have submitted that even if he was guilty of murder or manslaughter, he was not guilty of either because he was mentally impaired at the time.  We will discuss these later when we analyse the evidence.

27.	In any event, the accused pleaded not guilty to the charge.  He denied the murder allegation against him.  Because of the above, he is asking you, as assessors and judges of facts, to find him not guilty as charged.  That was the case for the defence.

H.	ANALYSIS OF THE EVIDENCE
(a)	Introduction:
28.	In analysing the evidence, please bear in mind the directions I gave you in paragraphs 4, 5 and 6 hereof on the burden and standard of proof.  In the acceptance and/or rejection of the evidence presented at the trial and your role as assessors and judges of fact, please bear in mind the directions I gave you in paragraphs 1, 2 and 3 hereof.  In analyzing the evidence, we will first discuss the “Agreed Facts” and it’s significance.  Then we will discuss the State’s case against the Accused with reference to the three elements of murder as described in paragraphs 9(i), 9(ii) and 9(iii)(a) hereof.  Then we will discuss the defence’s case, and the need to look at all the evidence.

(b)	The Agreed Facts:
29.	The parties submitted an “Agreed Facts”, dated 30 April 2018.  There are 12 paragraphs of “Agreed Facts”.  Because the parties are not disputing those twelve paragraphs of “Agreed Facts”, you may take it that the prosecution had proven those 12 paragraphs of “Agreed Facts” beyond a reasonable doubt.  As such, you may treat them as established facts.

30.	The significance of the “Agreed Facts” was that it provided background information about the case.  It stated who the parties were to this proceeding, and their relationships.  It somehow sets the stage for what allegedly unfolded on 20 March 2017, the date of the alleged murder.  You must read the “Agreed Facts” carefully.

	(c)	The State’s Case Against the Accused:
31.	Under this head, we will discuss the three elements of the offence of murder, as described in paragraphs 9(i), 9(ii) and 9(iii)(a) hereof, and the type of evidence the prosecution had called upon to prove those elements beyond a reasonable doubt.

	First Element:  The Accused did a Wilful Act (Paragraph 9(i) and 10 hereof):
32.	It was the prosecution’s case that the accused stabbed the deceased with two knives, at the material time.  On this issue, the prosecution called two eye witnesses, who allegedly saw the accused, at the material time, stabbing the deceased.  In addition to the above, the prosecution relied on the accused’s alleged admission in his police caution interview statements (i.e. Prosecution Exhibit No. 6).  Thirdly, the prosecution relied on paragraph 12 of the “Agreed Facts”, where the accused admitted to police that he had killed the deceased.  Finally, you can also rely on the accused’s sworn evidence, in which he admitted stabbing the deceased to death, with two knives.  We will discuss the above evidence in turn.

33.	Ms. Rasha Ali (PW1) said, on 20 March 2017, she was at Lot 26 Nasilivata Street, Nadera, with the deceased.  The deceased was working for her as her babysitter to her young son.  She said, at about 8.15 am, she saw the accused outside the front door, in her porch.  He asked to see the deceased.  She said, they were both shocked to see the accused.  PW1 said, the deceased and the accused later talked.  PW1 said, a while later, she saw the deceased punched and stabbed the deceased in the front left chest.  PW1 said, the deceased later fell on their grass compound.  She said, she saw the accused stabbing her repeatedly while on the ground.  PW1 said, the accused broke the first knife and later got a second knife.  PW1 said, she saw the deceased limped to the main gate.  PW1 said, she saw the accused follow the deceased to the main gate and stabbed her on the back.  PW1 said, the deceased went out of the gate and fell on the ground.  PW1 said, she saw the accused repeatedly stabbed her while she was on the ground.

34.	PW1 said, the accused was 4 to 10 footsteps away from her when she was observing him stab the deceased.  She said, she observed him for a total of 20 minutes.  It was broad daylight and it was sunny that morning.  She said there was no impediment when she saw the accused stab the deceased at the material time.  PW1 said, she has met the accused before as her mum’s tenant at Bayview Heights.  She identified the accused in court as the person she saw on 20 March 2017

35.	The next eye witness was Litiana Ratavoka (PW2).  PW2 said, she passed through Nasilivata Street on 20 March 2017 at about 8.05 am.  PW2 said, she saw a man and woman standing and talking in a porch of a house at Nasilivata Street.  PW2 said, she later heard the woman scream.  PW2 said, she saw the man punch the woman’s jaw and later stabbed her with a knife repeatedly.  PW2 said, the lady fell on the grass compound.  PW2 said, she saw the lady later limped to the front gate.  PW2 said, the man followed her to the gate and stabbed her on the back twice.  PW2 said, the lady fled outside the gate and fell on the grass.  PW2 said, she saw the man later drove away in a vehicle.

36.	PW2 said, it was fine morning and there was bright sunlight.  She said, she observed the man for about 20 minutes and he was about 10 to 15 footsteps away from her.  She said, nothing obstructed her view when watching the man stab the deceased.  She pointed the accused out in the courtroom as the man she saw on 20 March 2017 stab the woman repeatedly with two knives.

37.	The prosecution next relied on the accused’s police caution interview statements to prove its case.  On 20 and 21 March 2017, Detective Constable 4663 Taitusi Lualala (PW8) caution interviewed the accused at Valelevu Police Station in the English language.  He asked the accused 240 questions and he gave 240 answers.  His right to counsel and other rights was given to him.  He was formally cautioned and given the standard meal and rest breaks.  The caution interview statement was tendered in evidence as Prosecution Exhibit No. 6.  In questions and answers 171, 174, 176, 178, 179, 180, 183, 185 and 187, the accused admitted stabbing the deceased repeatedly at the material time.  The accused, during the trial, did not dispute the admissibility of the above admissions.  In his sworn evidence, the accused admitted stabbing the deceased repeatedly, at the material time.

38.	Lastly, the prosecution relied on paragraph 12 of the parties “Agreed Facts”, dated 30 April 2018.  On 20 March 2017, after the alleged incident, the accused admitted to the police, that is, Corporal Talikai Kava, that he had killed the deceased.  After considering all the above evidence together, it was obvious that the prosecution had proven the first element of murder beyond a reasonable doubt.  In any event, how you treat the above evidence is entirely a matter for you.

	Second Element:  The Wilful Act caused the Death of the Deceased (Paragraphs 9(ii) and 11 hereof):
39.	It was the prosecution’s case that the accused repeatedly stabbing of the deceased, at the material time, caused her serious injuries that led to her death.  To prove this point beyond reasonable doubt, the prosecution relied primarily on the evidence of Doctor James Kalougivaki (PW3).  PW3 did a post mortem examination on the deceased on 21 March 2017.  He tendered his post mortem examination report in evidence as Prosecution Exhibit No. 3.  PW3 is a forensic pathologist and had done more than 800 post mortem examination.  PW3 located and identified twelve (12) stab wounds on the deceased’s body.  PW3 said, the concentration of the stab wounds were at the upper back area of the deceased, that is, 8 out of 12 stab wounds.  He said, 2 stab wounds were in the front, that is, one on the left and the other near the right arm pit.  Another stab wound was on the back of the right hand.

40. 	PW3 said, the first stab to the front left chest penetrated the rib cage, the heart covering and penetrated the right side of the heart, causing massive bleeding.  Blood poured through that opening to the heart covering, which contained 200 mills of blood, and into the chest cavity, which contained 1,700 mills of blood.  PW3 said, stab two was near the right armpit.  This partially cut the main artery that supplies blood to the entire right arm.  It causes massive bleeding.  PW3 said, the cause of the deceased’s death was severe presence of blood in the chest cavity (1,700 mills) and 100 grams of blood clot, which was brought about by the rupturing of the right side of the heart, due to the first stab to the front left chest.  The other stab wounds also contributed to the death of the deceased.  It would appear from the above evidence that the accused’s wilful stabbing actions on the deceased, caused her serious injuries, that led to her death.  In any event, how you treat Doctor James Kalougivaki’s evidence, is entirely a matter for you.

	Third Element:  At the Time of the Wilful Act, the Accused Intended to Cause the Death of the Deceased (Paragraph 9(iii)(a) and 12 hereof):
41.	It was the prosecution’s case that when the accused repeatedly stabbed the deceased, at the material time, he intended to cause the deceased’s death.  When considering this issue, please take on board the directions I gave you in paragraphs 9(iii)(a) and 12 hereof.  As I have said before, you cannot cut open the accused’s head, to find out what his intentions were, at the time he repeatedly stabbed the deceased to death.  However, you will have to examine his conduct at the time, that is, what he said and did, and the surrounding circumstances, to infer whether or not he intended to kill the deceased, when he allegedly stabbed her twelve (12) times.  On this issue, the evidence and witnesses relied upon to prove the first element of murder in paragraph 32 to 38 hereof are also relevant in discussing the third element of murder under this heading.

42.	You have heard the evidence of Ms Rasha Ali (PW1) described how she saw the accused repeatedly stabbed the deceased on 20 March 2017.  PW1 said, he first punched her and then stabbed her on the front chest on the left side.  When she fell on the grass compound, PW1 said she saw the accused repeatedly stabbed her.  PW1 said, she saw the deceased limped to the front gate severely wounded.  PW1 said, she saw the accused stabbed her on the back.  PW1 said, she saw the deceased flee to the outside of the gate.  PW1 said, she saw the accused pursued her and repeatedly stabbed her again.  Ms Litiana Ratavoka (PW2) basically repeated the above evidence when she gave evidence.  She saw the accused repeatedly stabbed the deceased at the material time.  In his police caution interview statements, he admitted repeatedly stabbing the deceased at the material time.  In paragraph 12 of the Agreed Facts, the accused admitted killing the deceased, at the material time.  In his sworn evidence, the accused admitted that, at the time he repeatedly stabbed the deceased, he intended to cause her death.  From the above evidence, it would appear that when the accused repeatedly stabbed the deceased, at the material time, he intended to cause the deceased’s death.  However, it is entirely a matter for you.

43.	If you find that the prosecution had proven all the elements of murder beyond a reasonable doubt, then you must find the accused guilty as charged. If otherwise, you must find the accused not guilty as charged.  It is a matter entirely for you.

	(d)    The Accused’s Case:
44.	I had summarized to you the accused’s case from paragraphs 23 to 27 hereof.  I repeat the same here.  You have heard the accused give evidence on 3 May 2018, and I am sure his evidence is still fresh in your minds.  On the defence of provocation, I direct you as follows.  If you are sure that the accused unlawfully killed the deceased, intending to kill him, the accused is guilty of murder unless you conclude that this was or may have been a case of provocation.  Provocation is not a complete defence, leading to a verdict of “not guilty”.  It is a partial defence, reducing what would otherwise be murder to the lesser offence of manslaughter.  Because the prosecution must prove the accused’s guilt, it is for the prosecution to make you sure that this was not a case of provocation, and not for the accused to establish that it was. Provocation has a special legal meaning, and you must consider it in the following way.  Firstly, you must ask yourself whether the accused was provoked in the legal sense at all.  A person is provoked if he is caused suddenly and temporarily to lose his self-control by things that have been said or done by the deceased, rather than just by his own bad temper.

45.	In the “Agreed Facts”, you had seen the detail history of how the deceased and the accused met each other.  They started a relationship.  They lived as husband and wife.  They had a daughter.  The age difference between them was 32 years.  The accused was very much in love with the deceased.  The accused later found out that the deceased was going out with a new boyfriend.  He wanted her back.  But she told him she would not return to him.  The accused was jealous.  He planned to kill her.  On 20 March 2017, he brought 2 knives to kill the deceased, if she did not return to him.  The deceased would not return to him.  As a result, the accused stabbed her repeatedly.  If you are sure that the accused was not provoked in the sense described above, the defence of provocation does not arise, and the accused is guilty of murder.

46.	But if you conclude that the accused was or might have been provoked, in the sense which I had explained, you must then go on to weigh up how serious the provocation was for this accused.  Is there anything about this accused which may have made what was said or done affect him more than it might have affected other people?  Finally, having regard to the actual provocation and to your view of how serious that provocation was for this accused, you must ask yourselves whether a person having the power of self-control to be expected of an ordinary, sober person of the accused’s age and sex, would have been provoked to lose his self-control and do as this accused did.  If you are sure that such person would not have done so, the prosecution will have disproved provocation, and the accused is guilty of murder.  If, however, you conclude that such a person would or might have reacted and done as the accused did, your verdict would be “not guilty of murder but guilty of manslaughter”.  It is a matter entirely for you.

47.	On the defence of “mental impairment”, I direct you to take on board the directions I gave you in paragraphs 15, 16 and 17 hereof.  You have heard the accused’s evidence, as I summarized in paragraph 24 hereof.  As a matter of law, the accused, on 20 March 2017, was presumed not to be suffering from any mental impairment.  In his evidence, he said, he had not suffered from any mental impairment while in the Fiji Military Force.  He said, he had never been a patient of Saint Giles Hospital before.  It is noted that the above presumption can be displaced, if the defence proves on the balance of probabilities, that the accused was suffering from mental impairment, at the time he stabbed the deceased to death.  Was he aware of the nature and quality of the conduct, at the time he repeatedly stabbed the deceased?  Alternatively, did the accused know that repeatedly stabbing someone to death was wrong?  Alternatively, was the accused able to control his conduct, at the material time?  Your answers to the above question will determine whether or not the accused was mentally impaired at the time.  If you think he was mentally impaired, he is not guilty of either murder or manslaughter.  He will be found not guilty by reasons of mental impairment.  If you think he was not mentally impaired, then your decision will depend on whether or not the prosecution had proven their case against the accused beyond a reasonable doubt.  It is a matter entirely for you.

	(e)   The Need to Consider all the Evidence:
48.	Eight witnesses gave evidence for the prosecution – three civilians and five police officers.  The accused gave sworn evidence.  Six exhibits were tendered by the prosecution.  Altogether, you have a total of 9 witnesses, on whose evidence, you will have to make a decision.  You must compare and analyse all the witnesses’ evidence together.  If I didn’t mention a piece of evidence you consider important, please take it on board in your deliberation.  If you find a witness credible, you are entitled to accept the whole or some of his/her evidence in your deliberation.  If you find a witness not credible, you are entitled to reject the whole or some of his/her evidence, in your deliberation.  You are the judges of facts.

I.	SUMMARY 
49.	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.

50.	Your possible opinions are as follows:
	(i)	Murder		:	Accused		:	Guilty or Not Guilty
	(ii)	If not guilty of murder,
Lesser offence of Manslaughter			:	Guilty or Not Guilty
(iii) 	If not guilty of murder or
Manslaughter by reason of 
Mental impairment				:	Yes or No.

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