IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 69 of 2018

STATE

V

OLIVER WHIPPY

Counsel	:	Miss D. Rao for the State
			Mr. E. Radio with Miss K. Boseiwaqa (L.A.C.)
			for the Accused

Dates of Trial		:  	8, 9 and 10 April 2019
Date of Summing Up 	: 	10 April 2019

SUMMING UP

1.	Ladies and Gentleman assessors. It is now my duty to sum up 	to you. In doing so, I will direct you on matters of law which you 	must accept and act on. You must apply the law as I direct you 	in this case.

2.	As far as the facts of this case are concerned, what evidence to 	accept, what weight to put on certain evidence, which witnesses 	are reliable, these are matters entirely for you to decide for 	yourselves. So if I express any opinion on the facts, or if I 	appear to do so it is entirely a matter for you whether you 	accept what I say or form your own opinions. In other words 	you are masters and the judges of facts.

3.	Counsel for the prosecution and the defence have made 	submissions to you about how you should find the facts of this 	case, they have the right to make these comments because it is 	part of their duties as counsel. However you are not bound by 	what counsel for either side has told you about the facts of the 	case. If you think that their comments appeal to your common 	sense and judgment, you may use them as you think fit. You 	are the representatives of the community of this trial and it is 	for you to decide which version of the evidence to accept or 	reject.

4.	You will not be asked to give reasons for your opinions, but 	merely your opinions themselves, and you need not be 	unanimous although it would be desirable if you could agree on 	them.  Your opinions are not binding on me and I can assure 	you that I will give them great weight when I come to deliver my 	judgment.

5.	On the issue of proof, I must direct you as a matter of law that 	the onus or burden of proof lies on the prosecution to prove the 	case against the accused. The burden remains on the 	prosecution throughout the trial and never shifts. There is no 	obligation upon the accused to prove his innocence. Under our 	system of criminal justice an accused person is presumed to be 	innocent until he or she is proved guilty.

6.	The standard of proof is one of proof beyond reasonable doubt. 	This means that before you can find the accused guilty of the 	offence charged, you must be satisfied so that you are sure of 	his guilt. If you have a reasonable doubt about the guilt of the 	accused, then it is your duty to express an opinion that the 	accused is not guilty. It is only if you are satisfied so that you 	feel sure of the guilt of the accused that you can express an 	opinion that he is guilty.

7.	Your opinions must be based only on the evidence you have 	heard in the courtroom and upon nothing else. The Court Room 	is no place for sympathy or prejudice. In this regard you have 	heard a few references to the accused being known to the Police. 	I ask you to ignore that and to judge this case on the evidence 	and not on the fact that he had been escorted previously by the 	Police. 

8.	The accused faces one charge of attempted murder.

9.	In our law attempted murder is committed when the accused:

1.	Had the intention to kill the victim; and
2.	With that intention he did something which was more 	than mere preparation to killing her

10.	There is no evidence of what was in Oliver’s mind that morning 	and people don’t usually write down what they are intending to 	do, so you must discern his intention from the circumstance 	established by the evidence. Of course it is a matter for you, but 	if you believe Mela, then his dragging her around the resort 	while brandishing the cane knife and telling her multiple times 	that she was going to die that day would be a very strong 	indication of his intention to kill her and the beating her with 	the knife and holding the blade against her neck could certainly 	be seen as an act more than preparatory in his intention to kill. 

11.	Having said that Ladies and Sir, it is not for me to say or for you 	to agree with me, it is entirely your decision on the facts as you 	find them.

12.	The decision of guilty or not guilty in this case relies almost 	entirely on the circumstances surrounding the factual evidence 	you have heard.

13.	That is evidence, while not direct such as witnessed or heard, is 	evidence that the circumstances would lead you to make certain 	inferences. 

14.	Circumstantial evidence can be powerful evidence, indeed, it 	can be as powerful as, or even more powerful than, direct 	evidence, but it is important that you examine it with care — as 	with all evidence — and consider whether the evidence upon 	which the prosecution relies in proof of its case is reliable and 	whether it does prove guilt, or whether on the other hand it 	reveals any other circumstances which are or may be of 	sufficient reliability and strength to cast doubt upon or destroy 	the prosecution case. 
15.	Finally, you should be careful to distinguish between arriving at 	conclusions based on reliable circumstantial evidence, and mere 	speculation. Speculating in a case amounts to no more than 	guessing, or making up theories without good evidence to 	support them, and neither the prosecution, the defence, nor you 	should do that. 
16.	I now remind you of the evidence that could be classed as 	circumstantial evidence. You may use this evidence to make 	reasonable deductions. First and foremost are the threats 	uttered or even yelled at Mela by Oliver. His threats that he 	would kill her that day, that she better call her parents and tell 	them that this is the last time they would hear her voice; his 	dragging her to a remote bushy part of the resort. These are all 	items of circumstantial evidence which may help you in coming 	to your Decision.

17.	You will add to that mix the direct evidence that you have heard 	from the prosecution witnesses that Oliver was being reckless in 	his brandishing of the cane knife and most importantly from 	three witnesses that saw him holding the blade against her bare 	neck at the final stages of the continuous assault that day.

18.	You have heard the evidence just in the last few days and I don’t 	intend to go into detail reminding you of it. 

19.	The lady victim whom I shall call Mela works as a Manager at 	the Koro Sun Resort some 20 minutes out of Savusavu town. 	She had been in a de-facto relationship with Oliver a 	relationship that was “hot and cold”. They had one child, a 	daughter, of the relationship. They finally separated in 2017 	and thereafter according to Mela, he pestered her on weekly 	visits, often becoming violent or swearing at her in front of her 	work colleagues or even in the town. 

20.	In the time leading up to the 25th August he was threatening 	her with phone calls, that he would burn her parents’ house 	down and that he was coming to the office to cut her head off

21.	You know well the events of 25 August 2018. He arrived 	unexpectedly in Mela’s office with the knife. He was angry, 	grabbed her by the collar and said today will be your last day. 	He was very aggressive. He pulled out a cane knife from behind 	his back. He hit her back and head with it. She thought she was 	going to die. He was swinging the blade at her. She stopped that 	swing with her hand which caused her the serious upper palm 	and finger injury that she was hospitalized for. That was an 	upwards swing to her neck which she fended off. He then 	dragged her out of the office and through the resort. You have 	seen the map of the resort and followed the route of their 	struggle. You have also 	seen the video, which is also evidence 	for you to take into account in the normal way. On the way he 	was saying: “You are seeing other boys. So today is your final 	day. If I can’t have you, no one else can. Tell your Dad that this 	is the last day he will ever hear from you. “ 

22.	Mela tried to calm him down by reminding him of his children. 

23.	Her colleague Ally was following them and filming it on her 	phone as you know. Mela was feeling weak because she was 	bleeding. The Police arrived and at that stage he put the blade of 	the knife against her neck. She fainted. 

24.	Ally was the second witness. In essence she backed up the story 	told by Mela. She is not a fluent Fijian dialect speaker but she 	did hear the words for death and today. She arranged for the 	Police to be called. She filmed the struggle through the resort 	grounds. He threatened her to stop filming. She tried to get 	Oliver to focus on the children. She stayed there until the Police 	arrived. She didn’t have a clear view but at that time he 	appeared to have the knife at Mela’s neck. The Police quickly 	diffused the situation. Mela’s hand was bleeding.

25.	In cross-examination, Ally confirmed that at the end, Oliver was 	holding the blade of the knife up against her neck. 
	
26.	We heard from Inspector Singh. He was the first at the scene. 	He saw Mela in a blood stained top, covered in blood from her 	hands to her feet. Oliver said that if they came any closer he 	would kill her. He put the blade of the knife against her bare 	neck. He remained threatening in his behaviour but eventually 	he surrendered and dropped the knife. Mela was loaded into a 	vehicle and sent to hospital and Oliver was arrested and also 	taken to hospital. 

27.	The final witness for the Prosecution was the medical officer 	from Savusavu Divisional hospital. She examined Mela on the 	25th August at about midday. She had multiple hand injuries on 	her left hand. The lacerations were deep and required surgery. 	Savusavu hospital was not equipped to deal with such a serious 	case so she was stabilized and transferred to Labasa Hospital. It 	was a fresh injury. She also examined Oliver who had a 	superficial injury to his left eyebrow. It was not bleeding.

28.	That was the end of the prosecution case and you heard me 	explain to the accused what his rights are in defence. He could 	remain silent and say that the State had not proved the case 	beyond reasonable doubt or he could give sworn evidence from 	the witness stand. In either case he was entitled to call 	witnesses. As you know he elected to give sworn evidence from 	the witness stand .You must consider his evidence in the 	normal way and give it the weight that you think fit. Even if you 	don’t believe him it doesn’t necessarily make him guilty. The 	prosecution must still prove to you so that you are sure that he 	committed the crimes. 
29.	You will recall the thrust of his evidence that he was acting in 	response to what he perceived to be provocation from Mela. 
30.	Let me immediately direct you now that while provocation is a 	limited defence in cases of murder, it is totally irrelevant to 	cases of attempted murder. 
31.	In addition to that the matters that he gave in evidence relating 	to Facebook and indecent photographs were not put to Mela 	and that evidence must be put to one side and not considered 	by you. He interrupted his intended visit to the farm to confront 	her. He went into her office carrying the cane knife wrapped in 	a garbage bag. He assaulted her with the wooden handle. There 	was a scuffle and she grabbed the knife where the handle meets 	the metal blade. They struggled and at one point the knife 	bounced back, injuring his eye. He dragged her outside. He still 	loved her. He admitted the threatening words evidenced earlier 	but he had no intention of killing her, just to teach her a lesson. 	He doesn’t recall holding the sharp edge to her bare neck in the 	final stages of the struggle. The Police arrived and soon after 	that he surrendered. 
32.	Well Ladies and Sir that was all the evidence and you will 	consider it ALL when reaching your verdict. Your possible 	opinions will be guilty or not guilty. 
33.	However there is still another opinion available to you. If you 	conclude that he is not guilty of attempted murder it is open to 	you to find him guilty of the alternative count of an act to cause 	grievous  harm. By swinging the knife at Mela and  her 	fending it off, she was quite seriously wounded. That wound is 	grievous harm and if you find that it was caused by an act of 	Oliver, then you are entitled to find him guilty of that alternative 	offence. But that is only if you find him not guilty of attempted 	murder. 
34.	You will be first asked for your opinion on the count of 	attempted murder and if you find him not guilty, then you will 	be asked for your opinion on the crime of causing grievous 	harm.
	 ___________________ 
	1. s.258

35.	You may leave us now, but first I will ask counsel if they wish 	me to add or alter any direction on the law in this summing up. 	The facts of course are for you to decide.

		P. K. Madigan
          Judge
At Labasa
10 April 2019