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State v Turagabete [2005] FJHC 735; HAC02.2005 (9 May 2005)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL ACTION NO. HAC02 OF 2005

THE STATE

V

SEMI TURAGABETE and 2 Others

Gates J

Ms. S. Shah for the State
Ms. S. Vaniqi for the 3 Accused

9 May 2005

SUMMING UP

All 3 Assessors present

[1] Lady and Gentlemen assessors, it is now my duty to sum up the case to you. We have differing roles in this trial. I have to give you directions on the law and you must accept those directions. You are to give a decision on the facts applying those directions of law and to give me your opinions as to the accuseds’ guilt or innocence.

[2] In going through the evidence I may express an opinion. If you do not agree with that opinion, you are free to ignore it and to form another view of that piece of evidence. I may omit some evidence which you think significant. Nonetheless you may give that evidence such weight as you consider appropriate. You must feel free to form your own opinions.

[3] At the end of this summing up, and after you have given your individual opinions, the final decision on the facts rests with me. I am not bound to conform to your opinions. However in arriving at my judgment I shall place much reliance upon your opinions.

[4] The burden of proof rests throughout the trial upon the State. In our system of justice there is a presumption of innocence in favour of an accused which is enshrined in the Constitution. The State brings the charge against the accused. Therefore it is for the State to prove the charge against each of the accused. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused. In summary, the Accused do not have to prove anything.

[5] The prosecution must prove its case beyond reasonable doubt. That means that before you express an opinion that any of the accused is guilty of the charge you must be satisfied so that you are sure of the guilt of the accused beyond reasonable doubt. If you consider him innocent of the charge you must give your opinion that he is not guilty. If you entertain a reasonable doubt of guilt, you must also give your opinion that the accused is not guilty.

[6] There is one charge, but three accused. Consider the evidence as it affects each accused separately. Your opinions do not have to be that they are all guilty or all not guilty. You do not lop them all in together. Your opinions could be different depending on your view of the evidence in each accused’s case, considered separately.

[7] You must decide this case from the evidence that has been presented to you. It will be your task to discover which witnesses have given honest and accurate evidence and which have not.

[8] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate amongst yourselves so as to arrive at your opinions. Upon your return to court, when you are ready, each one of you will be required to state his or her individual opinions orally on the charge against the accused, which opinions will be recorded. Your opinions need not be unanimous. You will not be asked for reasons for your opinions.

[9] However it will be helpful to you beforehand in arriving at sound and rational opinions if you ask yourselves why you have come to those opinions.

[10] Those opinions must be based solely upon the evidence. Evidence consists of sworn testimony of the witnesses, what each witness has told the court in the witness box, as well as the exhibits tendered in court, such as the photographs, the caution interview statements, the charge statements and the post mortem report of the pathologist.

[11] You should also consider as evidence the statements tendered by agreement of counsel. There were 20 in all. You have had copies given to you, and have no doubt read them already. Our Criminal Procedure Code provides for the agreement of facts or evidence. This procedure saves witnesses being called and saves time. Be aware of these statements and remember what counsel has said in connection with them.

[12] Neither speculation nor theories of one’s own constitute evidence. Media coverage, idle talk, rumours or gossip are similarly not evidence. Put out of your mind when considering your opinions, anything you may have read in the newspapers about this matter. You are to focus solely upon whether the prosecution have produced sufficient and cogent evidence to prove the charge beyond reasonable doubt. Have regard only to the evidence which you have seen, heard, or examined in this court.

[13] This summing up is not evidence either, nor are counsel’s opening or closing addresses. Naturally we hope all of these are of assistance to you, but they do not constitute evidence.

[14] If a witness is asked a question in cross-examination and agrees with what counsel is suggesting the witness’ answer is evidence. If he or she rejects the suggestion, neither the question nor the answer can become evidence for the proposition put.

[15] In arriving at your opinions, use the common sense you bring to bear in your daily lives, at home and at work. Observe and assess the witnesses’ evidence and demeanour together with all of the evidence in the case. You can accept part of a witness’s testimony and reject other parts. A witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and be wide of the mark about another.

[16] If you have formed a moral opinion on the conduct alleged in this case whether it is about drunkenness or violence, put that to one side. Consistent with your oath, you should put away both prejudice and sympathy. Approach your assessment of the evidence dispassionately. Bring a cool detachment to your task of examining whether the case against each of the accused has been proved before you, proved with evidence sufficient for the charge to the extent that I have already indicated.

[17] I turn now to deal with what the prosecution must prove. The Accused are charged with one count in the information, that is of murder, an offence in our Penal Code.

[18] There are four relevant elements that the prosecution must prove. First it must be proved beyond reasonable doubt that the victim Salesitino Tumeli Vukivuki died on 27th December 2004. This element has not been disputed. We heard that Tumeli as he was called, was alive and well at Chong Pong Restaurant, Savusavu on Christmas Eve, four days earlier. The same night he was found by Filipo Vonokula in the drain at Narayan’s Park, seriously injured and in pain. Filipo took him to the Savusavu Hospital.

[19] Later he was transferred to Labasa Hospital. He was operated on, but died on 27th December 2004. The pathologist testified that he died of haemorrhagic shock and septicaemia as a result of multiple impacts to his head, chest and abdomen. You also heard detailed evidence from Dr Ogale, Consultant Surgeon of Labasa Hospital, of what he tried to do to save Tumeli’s life and why Tumeli had died.

[20] The second element which the prosecution must prove is that the deceased’s death was caused by an unlawful act, an act without justification. From the evidence of the doctors from the Savusavu and Labasa Hospitals and from that of the pathologist Dr. Prashant, as well as from the photographs, you will easily conclude that Tumeli’s injuries occurred as a result of a severe and forceful assault. Clearly the cause of death was as a result of an unlawful act or several acts, and such acts could have had no justification. It is not necessary to establish that the death occurred at the same time as the unlawful acts, providing the death occurred no more than a year and a day later. Nor need such acts be the immediate or sole cause of death. For instance, you could conclude that within the constraints of the hospital service the treating doctors did their best, even if they may have been mistaken in some of their decisions. So as long as you conclude that common skill and knowledge was exercised in good faith, a mistaken medical decision will not relieve the accused of responsibility for the death of the victim. But you may find, on the evidence, that the doctors here did exercise common skill and knowledge. You will note that Ms Vaniqi in her closing address did not criticize the doctors for their treatment, and you may well agree that this is as it should be on the evidence.

[21] You could easily conclude that there was no evidence of a fall by the deceased down the stairs of the Chong Pong Restaurant which might have caused such injuries. Dr. Prashant told you why such a fall was unlikely. So the injuries to his body were neither accidental nor had they occurred lawfully. In his confused state the victim did not know what had happened to him. The medical evidence was all against the injuries being caused by a traffic accident and against the victim having been driven over by a car tyre. The deceased does not appear to have moved from the drain where he lay from the time, indisputably he was left there by the accused around 9.30pm until the time he was picked up by Filipo Vonokula and Bruce Ho and taken to hospital shortly before midnight.

[22] Thirdly, the prosecution must prove to you that these unlawful acts were the acts of the accused. This issue is to some extent disputed. I shall refer to this element further on.

[23] Fourthly and lastly, it must be proved beyond reasonable doubt, as indeed must all of the elements of murder be proved, that each of the accused killed the deceased whilst acting with malice aforethought. Malice aforethought is a legal term covering three possible intents of mind.

[24] It must be proved that the accused either intended to cause the death of the deceased, or that they intended to cause the deceased grievous bodily harm or that they knew that their acts, the continuous punching and kicking of Tumeli to the head and body whilst he was on the ground, would probably cause his death or cause him grievous bodily harm, and that they were indifferent as to whether or not death or grievous bodily harm would be caused, even they wished it would not be caused.

[25] Grievous harm is defined in the Penal Code to mean any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense.

[26] If you reject the idea that anyone intended to kill Tumeli that night, you may consider carefully whether the extent and gravity of the injuries were such that you are driven to conclude that the perpetrators of this assault must have intended to inflict grievous bodily harm. It seems beyond doubt that grievous bodily harm was caused to Tumeli, and that from those grave internal injuries he eventually died 4 days later.

[27] Before referring to the significant evidence which you should consider, I must first mention three other matters.

[28] First, defence counsel raised the question of the three accused not having given evidence before you. In making their defence they elected to remain silent. I must direct you that that is their right and nothing adverse can be drawn from such election. There is no legal obligation for an accused to give evidence in his own defence. The fact that an accused has not given evidence himself proves nothing one way or the other. It does nothing to establish his guilt. On the other hand it does nothing to rebut, contradict or explain the evidence put before you by the State.

[29] However in this case each of the accused agreed to be interviewed by the police. Those caution interview statements have been exhibited, and as we heard from defence counsel though sometimes contradictory, they set out the separate cases for each accused. So, in a sense each accused has provided you with his own story of events that night for you to consider.

[30] The second matter is the use to which you can put an accused’s interview statement. It is evidence only against the accused who makes the statement. If the statement refers to conduct of a co-accused, disregard it when considering the case of the co-accused. It is not evidence against the co-accused.

[31] Thirdly, you may ask what difference does it make if one of the three accused is not as much involved in the assault as the others? If one person assaults another he will be guilty of assault. Similarly anyone who actively assists that person assaulting to carry out the assault he also will be guilty, even if he only gives 2 kicks whilst the person assaulting gives 5, or if he merely prevents the victim from escaping. Here all three were said to have both punched and kicked the victim. A person who aids and abets another to commit an offence is similarly held to be guilty of the same offence.

[32] You will ask yourself why did accused 1 and accused 2, that is Semi and Jone, go and get their father Nemani Accused 3 from the Waitui Marina? What was their purpose in all three going together to look for Tumeli? What did they intend to do when they met up with Tumeli? Did they intend to give him a good lesson so that he would not try to punch Semi again? Were they intending to carry out revenge on him as Ms. Shah suggested to you? In their statements they do not say. If you found that they were responsible for giving the injuries to Tumeli, you could infer from such action what their true intentions had been.

[33] On Christmas Eve last, the deceased went to the Chong Pong Restaurant. He arrived at about 11am. Later he was joined by his girlfriend Varanisese or Vara as she was called. Vara does not appear to have been drinking.

[34] It seems common ground that the deceased was a heavy drinker. You might think on the evidence of his girlfriend that his drinking was a problem. By the time he left the restaurant late in the afternoon he was very drunk.

[35] The restaurant normally closes at 9.30 pm. On this day because some of the customers were getting rowdy, the owner closed early. The deceased was involved in an argument. There was pushing and pulling by him in his drunken state, but no actual fight. All of his group were drinking heavily.

[36] The deceased and his girlfriend then went and bought some more beer from the bowser and they sat down near Narain’s Park. Two other men joined them. They shared 5 bottles in all. Vara said Tumeli was really drunk after that.

[37] They went up to her brother’s place. Tumeli was staggering. He could not walk straight. They drank some grog at the brother’s house. The brother tried to persuade him to rest. Vara said Tumeli did not like that idea. He wanted to go on drinking. Vara remonstrated with him about the drinking. It ended up into an argument. Tumeli got hold of a stick. Vara said " I have told him before. When he got drunk he starts fighting with me. He gets angry with me. But he loved me. He took care of me." In effect, in drink, he was violent and possessive.

[38] Vara ran off in the direction of the copra shed to hide. She hid near a rain tree and sat on a bench. One of her friends Lania joined her, and they passed the time talking until midnight when they returned to Vara’s brother’s house for the night. They did not come across Tumeli again that night.

[39] From Vara’s evidence you may feel satisfied that Tumeli did not fall down the stairs at the Chong Pong Restaurant nor did he suffer his injuries that way. She also said she did not see any drunk people around when she was sitting near the rain tree, although she confirmed people were walking around that area.

[40] Inoke you will remember was the 17 year old youth who was with the mute man called Samu. Inoke saw the start of the chase from Vara’s brother’s place, whereby Vara ran off in the direction of the bowser pursued by Tumeli. He said it was about 8.30pm or so. For a while they lost sight of them and so sat down at the Hot Springs in the bure. Tumeli came towards them. They could see he was drunk. He was looking for Auntie Vara, said Inoke. He was frightened of him, in case he did something to them.

[41] From Inoke’s description of Tumeli running after them and then stopping, you may deduct that Tumeli in his drunkenness was also very confused. Inoke and Samu ran from the bure to the FEA pole with its light shining on the road.

[42] Inoke said he saw 3 figures arriving. They came from the Morris Hedstrom, Webster Construction side. One of them saw Tumeli standing on the road and said " He’s there". At that time Inoke said that he and Samu were about 30 feet away from where Tumeli was standing.

[43] He said the three punched and kicked Tumeli. All of them took part and were kicking him when he was lying down. He repeated in his evidence that all three of them had done the kicking. It took about 5 minutes he said. Tumeli lay in the drain near the goal mouth, where Inoke approached afterwards to see him, but did not get close.

[44] When the three went past them, Inoke recognised Semi by his big hair. He called Semi’s name and Semi turned around and smiled at him. At the time Inoke did not recognize the other two.

[45] But Inoke knew Semi’s father Nemani, when he said he always sees him at Valeni. Inoke said Nemani came home and asked him to change his police statement, and for him "not to tell the truth to the police." Inoke did not say anything in reply.

[46] First, you need to decide if Inoke is an honest witness, and second if his evidence is accurate such that that you can place reliance on it. He was questioned about distances, about hedges obscuring his view, and about the steam rising from the Hot Springs. He was adamant in a quiet way that all three of the accused had joined in the assault, and that each had done the kicking.

[47] Losana Teresia gave a similar account of the chase to Inoke. She followed them down the road after the end of the Shortland Street programe on the television. She went about 15 minutes later than Inoke and Samu. She was going to buy a telecard from the bowser. She met them at the Nakama shop. They told her what they had just witnessed. With that the three accused passed by near the light. She heard Inoke call out Semi’s name, calling "Tusemi ". When Semi, Accused 1, looked back, Losana recognized him as the security who worked for the store Bargain Box in Savusavu. She also recognized Nemani, accused 3, whom she also knew to be a security guard who worked at Waitui Marina. She did not identify accused 2, Jone.

[48] The identity of the three accused involved with Tumeli is not in dispute. In his interview, Semi admits he was there, and he admits that he had punched Tumeli. Jone, accused 2, also admitted he was there at Narain’s park when there was an incident with Tumeli. Nemani, accused 3, also admitted being there and seeing a fight which he says he stopped. It has been suggested that such assault that Semi gave Tumeli was only minor, and that therefore some other person or persons must have come along later and given some kicks whilst Tumeli was lying in the drain. It is suggested that this will explain Tumeli’s fatal injuries.

[49] It was not until the former soldier Filipo Vonokula and his group passed by that anyone saw or took pity on Tumeli lying coiled up on his side in the drain. You will note that Filipo was able to see in the light available that Tumeli had marks above his eye and upper lips. That light to which he turned Tumeli’s body must have been the same light, from the FEA pole, from which place Inoke had seen the assault. Filipo said Tumeli was unable to stand up or walk by himself, and had to be carried.

[50] Semi admits in his charge statement punching, but not kicking Tumeli. In his caution interview he said that he was going that evening to the Hot Springs Hotel to listen to the live band. His elder brother Jone came with him. At around 8.00pm they met a man in the middle of Narain’s park, whilst they were taking a shortcut. He followed them and whispered something.

[51] The man asked "Did you see one boy come this way?" Semi said that he told him he had not seen anyone. The man was very drunk and staggering and did not appear to believe Semi. The man then punched Semi on his chest. Semi said he fell to the ground. Semi and Jone moved away and the man staggered off.

[52] Instead Semi and Jone went off to get their father Nemani. Semi was asked why, and he said "to inform him about the matter". You will need to consider this explanation carefully. Accused 3 returned to Narain’s park "to check for the man". They managed to locate him at the Hot Springs. Semi approached him from behind and his father and his brother were there to stop him moving any further. Presumably he meant, to prevent Tumeli escaping.

[53] This was the moment Semi punched him on the chin. The man, Tumeli as we now know, moved back. He was clearly not engaging in this fight. Semi said "I continued to rain punches on him". These were to the head, ribs, and chest. It stopped when Tumeli fell into the drain. According to Semi he was the only one involved, and he did not kick Tumeli. He said his father and Jone were only with him because he thought that there was a group with Tumeli at the ground.

[54] There is no evidence for this from the first encounter at Narain’s park when Tumeli was on his own. But that is Semi’s explanation for involving his father. With this explanation, you need to consider how Tumeli came by those very serious injuries from just a few punches. Did someone else come along whilst Tumeli was unconscious in the drain and kick him repeatedly?

[55] Not only was Tumeli very drunk and staggering he appears on both Inoke’s account and on Semi’s to have offered no resistance in what was on Semi’s account a one to one fight. Inoke of course said all three accused punched and then kicked Tumeli on the ground for almost 5 minutes. Was there realistically a need to obtain help from two others to subdue a man who was so weakened and confused by drink that he was milling around the ground not knowing what he was doing? Remember none of the accused had started drinking that night and all would have been physically much more alert and fit than the victim who was obviously debilitated by many hours of heavy drinking.

[56] In his charge statement Jone, accused 2, denied any involvement in the punch up. In his caution interview statement he told the police he was going to town with Semi to drink at the Tavern. He said they walked across the ground to the Orchid Bar. On their way they met Tumeli. His account of the punch from Tumeli to Semi is almost the same as Semi’s. But he gave as the reason for going to the Waitui marina that they were going to drink there; presumably also to avoid Tumeli who was in their path.

[57] But he said that they did not drink there, though Jone said he himself went to the bar. He said Semi then left and that he Jone went towards MH’s looking for him. He met up with him there together with Nemani their father. They told him they were looking for Tumeli. He went on to look for Tumeli at Narain’s park. He did not explain why he did this. He said when the fight was on he was standing by the goal mouth and his only action was to intervene to stop the fight. You may ask yourselves why they were looking for Tumeli, and why was it necessary for Jone to stop the fight? Was it intended for all of them to teach Tumeli a lesson, and if so why would that ‘lesson’ need to be stopped by Jone?

[58] Jone said it ended when he dragged Tumeli’s body off the road and left him in the drain. On this account, there does not seem to be much fight or life left in Tumeli when he was put there. Jone said Tumeli did not move. Was that the reason that Jone felt he had to move him off the road? Jone claims to have stopped his father from kicking Tumeli. Remember you consider Jone’s account only when considering the case against Jone, and not when considering the case against Nemani. The comments for instance about Nemani or Semi in Jone’s statement are not evidence against Nemani or Semi.

[59] In his charge statement Nemani denies any involvement in the punching. He says he only went to stop his son Semi from fighting with Tumeli. In his caution interview statement he says that he went to work early. Around 8.00pm Semi came and told him to go and see a man who had punched him at the Kamendra School ground. Jone and Semi went with him. Apparently this was not the first time this man had punched Semi. They all went quickly, running at times. Nemani said he knew Tumeli well and had known him a long time. Nemani said he was worried Semi "might have been assaulted again by some others."

[60] Nemani also did not tell the police what he intended to do when he met up with Tumeli. But he says he immediately told Semi to stop punching Tumeli. He says Tumeli fell down on the road after Semi punched him. If Semi was able to fight and to deal with Tumeli on his own why did he need to go back and to fetch his father? Nemani said Tumeli was very drunk. He does not say that Tumeli offered any resistance to these punches. Nemani explains the injuries by saying Tumeli hit himself against the road surface.

[61] He also says after Tumeli fell down that Tumeli was still being punched. You will have to consider this claim carefully. Can a person be punched by a man who is standing when the victim is on the ground? You may think that would be difficult. Is it not more likely that the assault of the man on the ground would have to be by another method? Could it have been by kicking?

[62] At any rate, Nemani says the assault on Tumeli took about 4 minutes. This estimate is very similar to that given by Inoke.

[63] Sometimes an innocent person may try to make the evidence look more favourable as far as he or she is concerned. Some try to persuade others to give more favourable evidence, and some simply tell lies. Before you take into account what Inoke said of Nemani’s approach to him to change his evidence, be sure first that this was done by Nemani out of a sense of his own guilt. You should be satisfied that Nemani made the approach because he knew he was guilty of this assault, and that he knew that he had indeed taken part in the punching and kicking. Obviously Inoke’s evidence was very material to the allegations. Similarly if you felt that Nemani or the other accused told lies in their police statements about their involvement. You would have to be satisfied also that the lies about their extent of involvement in the assault and about the punching and kicking were material. If you find they were material are you satisfied they were told out of the sense of their own guilt in the matter and that they were told deliberately?

[64] There has been no evidence to contradict what Inoke said about Nemani’s approach to him to change his evidence. Nor has there been any evidence to contradict what Aseri said of the conversation he had with Nemani on Christmas Day during the night shift. Aseri, you may remember, was the watchman at Government Supplies. Nemani told him about the punch Tumeli had given his son and said that he Nemani had punched Tumeli in return. When Aseri informed Nemani that Tumeli had been admitted to hospital, Aseri said that that appeared to stop the conversation. This is not a detailed piece of evidence. It was suggested that since Aseri was related as a cousin to the victim that he had made up this account. Aseri denied that vehemently. You will have to decide whether you believe Aseri’s evidence concerning Nemani’s admission that he had in fact assaulted Tumeli on Christmas Eve.

[65] If you are satisfied beyond reasonable doubt that all the accused were acting together to assault Tumeli to cause him grievous bodily harm, no matter who did the punching, the kicking, or who the blocking of an escape route, you need next to consider whether the issue of provocation has been disproved by the prosecution. If you find the State has failed to disprove provocation your opinion should be one of Manslaughter.

[66] This would mean that the killing was still unlawful but that the circumstances of the provocation were such as to reduce the charge from Murder to Manslaughter. Provocation is defined in our Penal Code as "any wrongful act or insult of such a nature as to be likely, when done to an ordinary person, or in the presence of an ordinary person to another person who is under his immediate care, or to whom he stands in a conjugal, parental, filial or fraternal relation, or in the relation of master or servant, to deprive him of the power of self control 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".

[67] You can disregard the punch alleged to have been given by Tumeli a month or so prior to this incident, since sufficient time had passed for passions to cool. But you can consider the single punch given by Tumeli to Semi on the same night. You will need to consider that punch in its context, meted out irrationally at the ground by the confused and staggering Tumeli. To what extent and how serious was that provocation?

[68] It produced no immediate reaction from either Semi or Jone. There was no instantaneous loss of self control in response. Both retreated. If you accept Inoke’s account of the punishing attack by all three accused, are you satisfied that all 3 had lost their self control as a result of the single punch to Semi? The final consideration is to examine objectively whether that first punch from Tumeli was enough to make a reasonable man do as the accused did. There has been no evidence from the accused that this is what happened, nor did any of the accused give such explanation in their police statement. Nonetheless you should consider this issue when you retire to deliberate on your opinions.

[69] If you are not satisfied that the accused, or any one of them intended to cause grievous bodily harm, or that the combined assault would probably cause such harm and that they were indifferent to the consequences, you should bring in an opinion of not guilty of Murder. You should then go on to consider Manslaughter. If you are satisfied that any one of them was responsible for the unlawful killing either on their own or from taking part in a joint enterprise as a matter of revenge or for teaching Tumeli a lesson, you could find such accused guilty of Manslaughter. If the prosecution have not proved their case to you against any of the accused beyond reasonable doubt of either Murder or Manslaughter your opinion should be one of not guilty. However if you are satisfied beyond reasonable doubt that all or anyone of the accused is guilty of Murder it is your duty to tender your opinion accordingly.

Please now retire to consider your opinions.

A. H. C. T. Gates
Judge

At Labasa
9th May 2005

Solicitors for the Accused: Legal Aid Commission, Labasa
Solicitors for the State: Office of the Director of Public Prosecutions, Labasa