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State v Moce [1994] FJHC 70; HAC0158s.1987s (27 June 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.158 OF 1987

THE STATE

v

SAKEO MOCE

Counsel: Mr. D. Tuiqereqere for State
Accused in person

Trial: 27th June 1994
Summing Up: 27th June 1994

SUMMING UP OF PAIN J.

Madame & Gentlemen Assessors,

It is now my duty to sum up this case to you. You will then be required to consider your verdicts. Each of you must give a separate opinion whether the accused is Guilty or Not Guilty.

In coming to your decision you must apply the law as I explain it to you. It is my duty to regulate the procedure of the trial and direct you on the law. Those directions on the law must be followed by you.

However I do not decide the facts. That is for you. As I speak to you, you may feel that I have formed some view on a particular question of fact. If you disagree with the version of the facts that I appear to be expressing, then please feel completely free to disregard my opinion. All matters of fact are for you and you alone. 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. You decide what facts are proved and what inferences you can properly draw from those facts. You then apply the law as I explain it to you and decide whether the verdict should be guilty or not guilty.

You must come to that decision solely upon the evidence you have heard from the witnesses. If you have previously heard anything about this case or the people involved, through the media or some other source - you must ignore that completely. The law requires that the accused is to be judged solely upon the evidence sworn to in this Court. In considering that evidence you are expected to apply your common sense and everyday knowledge of human nature and people. You must please put aside any feelings of prejudice or sympathy which may occur to you one way or the other and arrive at your verdicts calmly and dispassionately.

The charge against the accused is set out in the information that you each have a copy of. This charge is brought by the State and the onus of proving it rests on the State from beginning to end. There is no onus on the accused at any stage to prove his innocence or to prove anything else. He does not need to give evidence. In this case he has chosen to do so but he still carries no onus. The law is that the State must prove the essential ingredients of the charge beyond reasonable doubt before there can be a verdict of guilty. That is the standard of proof I mean when I say throughout this summing up that the State must prove some matter. Proof beyond reasonable doubt. That is a classical phrase that you will have heard many times. Those words are clear and will be readily understood by you. They mean just what they say. A reasonable doubt is a doubt which you find is reasonable in the circumstances of this case. If after a full consideration of the evidence, and bearing in mind the directions I give to you, you find the charge is proved beyond reasonable doubt your opinion must be Guilty. On the other hand, if you are left with a reasonable doubt, your opinion must be Not Guilty.

The charge is doing an act to cause grievous bodily harm and I must explain this to you.
This offence is committed by a person who

-with intent to do some grievous harm to any person

-unlawfully

-attempts in any manner

-to strike any person with any kind of knife or other dangerous or offensive weapon

Applied to this case it means that the prosecution must prove that the accused

-attempted to strike Corporal Waisea with a cane knife. That is that he swung the knife at the policeman and was trying to hit him with the knife. It was not just a threat or menacing flourish with the knife. The accused was actually attempting to strike Corporal Waisea with the knife.

-It must also be proved that when he did that, the accused intended to do some grievous harm to Corporal Waisea. That is, that he intended to seriously injure him with the knife. That intention must not be confused with the purpose. The accused's purpose or reason for doing whatever he did do may have been to get away from Police and go home. But that is not important. The crucial matter and what must be proved is that, in trying to strike Corporal Waisea with the knife he intended to cause him serious injury.

-Finally it must be proved that the attempt to strike Corporal Waisea with the knife was unlawful. It is unlawful to strike or attempt to strike another person. In some circumstances it could be lawful - for instance if done in self defence. But there is nothing in this case to suggest that the accused could have had any lawful reason to strike the policeman.

Accordingly the issues in this case are whether it is proved that the accused attempted to strike Corporal Waisea with the knife and if so, whether, when he did that, he intended to do some grievous harm to the corporal.

The accused denies that this occurred and he has given evidence on his own behalf.

I must remind you that when an accused gives evidence he assumes no onus of proof. That remains on the Crown throughout. His evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.

You will generally find that an accused gives an innocent explanation and one of three situations then arises:

1. You may believe him and, if you believe him, then you must acquit him. He did not commit the offence.

2. Alternatively - without necessarily believing him you may say "Well, that might be true". If that is so, it means there is a reasonable doubt in your minds and so again you must acquit him.

3. The third possibility is that you reject his evidence as being untrue. If that is so then he has not discredited the evidence of the Crown witnesses in any way. If their evidence proves the charge then you must convict him.

It is for you to evaluate the accused's evidence and decide what reliance you can place on it weighing it up against other evidence and proved facts and circumstances in this case.

You must consider all the evidence and in relation to that there are two things I must mention. The first is to tell you to ignore the fact that the accused happened to be with the Police officer at this particular time. Certainly do not speculate about that. You must not draw any adverse conclusion from it. Start your consideration from the stage where they were at Mr. Narayan's property together. Never mind what may or may not transpired before that. The second matter is the accused's complaint that he was beaten up. He did not object to the evidence of the interview. My direction to you is that having considered the evidence it is admissible in this trial. However you will consider all the evidence to see what reliance you can place on the evidence of what was said at the interview. You determine what was said and whether did it advances the prosecution's case in any way.

Those are the legal matters that arise from this particular case. I have a duty also to put to you the cases for the prosecution and the accused. I don't propose going through all the evidence it will be fresh in your minds. I will merely be reminding you of some of the salient features relied upon by the prosecution and the defence.If I omit to mention some parts of the evidence it is not because that is unimportant. I ask you to consider all the evidence before coming to your conclusion.

The prosecution relies upon the evidence of Corporal Waisea the complainant in this matter. He says that he was talking to Mr. Narayan and the accused was beside him. The accused bent down, picked up a cane knife and swung it at the Corporal. You will recall that he indicated the manner in which the accused bent down and then straightened up and swung the knife. Corporal Waisea said that the knife could have struck his head off if he did not dodge. He said if he had not dodged the knife would have struck him. You will recall that when questioned later about this he says that he dodged and at the same time jumped. He then gives evidence of the accused charging towards him. He ran away and said that happened on two occasions. The prosecution relies on the evidence of Mr. Narayan to support these allegations. You will recall that Mr. Narayan also said that the Fijian man with the Police Officer lifted up the knife and swung it at the Policeman. He agreed that it was a cane knife and he said that the knife would have hit the Policeman if the Policeman hadn't ducked. He also gave evidence of the Police Officer then running away and being chased by the Fijian man and confirmed what the Corporal said that this actually happened twice. So that's the basic evidence relied upon by the prosecution. The prosecution also relies upon the interview of the accused by Sgt. Waisake and submits to you that there is clearly in the interview a voluntary admission by the accused. So the prosecution says to you that this evidence is very clear, it is consistent and it establishes an attempt made by this accused to strike Corporal Waisea and when that was done the nature of the blow was such that the accused must have intended to cause grievous harm. Both the witnesses say that if the Policeman hadn't dodged he would have been struck by the cane knife and the blow illustrated to you, the prosecution says, would undoubtedly have caused grievous harm and that is the proved intention that the accused had.

However the accused denies that this occurred. He says that the prosecution evidence is false and is not to be believed. He gave evidence to you and he said, "Yes, I admit that I escaped from the Police Officer and when I did that I did have the cane knife in my hand. But I didn't swing it at the Police Officer as they say. What he is telling you is that he decided that he would get away. When he started to go he said the cane knife was lying there and he decided to pick it up thinking that if he didn't, then the Policeman might pick it up and chase after him with it. And he says that he never swung it at the Policeman.

After he'd gone not far he just threw the cane knife over into the kasava patch and then he went on home.

So that is the evidence and there are two completely conflicting versions of what occurred. So you must consider the evidence and bear in mind and evaluate what each of the witnesses had said. If you reject the accused's evidence as being untrue and the evidence of the other witnesses for the prosecution establish the offence as I have explained it to you then your verdict must be guilty. On the other hand, if you are left in a reasonable doubt. If what the accused told you, you think may be true then he would be entitled to the benefit of that reasonable doubt and your verdict would be not guilty.

Madame and Gentlemen Assessors that concludes my summing up of the law and the evidence in this particular trial. We have now reached the stage where you must deliberate together and form your individual opinions on whether the charge has been proved against the accused. On your return you will be asked separately to state in court your opinions as to whether the accused is Guilty or Not Guilty of the charge. Would you please now retire to consider your opinions. When you have made your decisions would you please advise the Court Officer and the Court will reconvene to receive your opinions. Thank You.

JUSTICE D.B. PAIN

HAC0158S.87S