IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 042 of 2007

STATE

v.

SALESH KUMAR VERMA

Hearing: 17th June – 23rd June 2008
Summing Up: 24th June 2008

Counsel: Mr. P. Bulamainaivalu for State
Mr. D. Prasad for Accused

SUMMING UP

Madam Assessor and Gentlemen 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.

On matters of fact however, which witness you consider reliable, which version of the facts to accept or reject, these are matters entirely for you to decide for yourselves.  So if I express any opinion on the facts of the case, 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.

I am not bound by your opinions, but I will give them the greatest weight when I come to deliver my judgment.

You do not have to agree with each other, but it would be better if you did agree.

On the matter of proof, I must direct you as a matter of law, that the Accused person is innocent until he is proved guilty.  The burden of proving his guilt rests on the prosecution and never shifts.

The standard of proof is that of proof beyond reasonable doubt.  This means that before you can find the Accused guilty, you must be satisfied so that you are sure of his guilt.  If you have any reasonable doubt as to his guilt, you must find him not guilty.

Both counsel in this case have made strong submissions on how you should find the facts of this case.  It is a matter for you whether you accept what they say on the facts.  On the law however, you must only accept the law as I direct you.

I must remind you again to disregard anything you might have heard about this case outside this courtroom.  Concentrate on the evidence you have heard in the course of this trial.  Approach the evidence with detachment and objectivity.  Do not get carried away by emotion.

The Information alleges that between the 17th of February 2005 and the 19th of April 2005 the Accused unlawfully killed the deceased Saiyasi Wailutu.  Section 198 of the Penal Code provides that any person who by an unlawful act or omission causes the death of another person, is guilty of the felony named manslaughter.  In this case the prosecution alleges that the unlawful act was one of gross negligence in the driving of a motor vehicle.

The elements of the offence which the prosecution must prove beyond reasonable doubt are:

1.	The Accused;
2.	Had a duty of care towards the deceased;
3.	Was in breach of that duty;
4.	That breach was grossly negligent; and
5.	That breach was the significant or operating cause of death of Saiyasi Wailutu.

In this case there is no dispute that the Accused drove the Liteace vehicle which was involved in the incident.  Nor is it in dispute that the Accused, like all road users, had a duty of care to use reasonable caution to all road users including the deceased.  Indeed the law provides that all persons in control of a car owe a duty of care to everyone else on the road including pedestrians.

What is in dispute is that the Accused was in breach of that duty, that he was grossly negligent and that his act caused the death of the deceased Saiyasi Wailutu.

In assessing whether or not the Accused was in breach of his duty of care, you must ask yourself what a reasonable man would have done in his shoes, faced with the situation he found himself in.  And, even if you find that the Accused was in breach of his duty and should have exercised greater care, you need to go on to ask whether his conduct was so grossly negligent, whether it was such an unacceptable departure from the proper and reasonable standard of care, that it deserves the sanction of the criminal law.

On the issue of causation, the law states that a person is deemed to have caused the death of another person even if his act was not the sole or the immediate cause of death, if he inflicts injury as a result of which that person undergoes surgical or medical treatment which causes death.  In such a case, it is immaterial whether the treatment was proper or mistaken, if it was employed in good faith, and with common knowledge and skill.  Therefore, if a person is assaulted on a street, and is taken to a hospital where he later dies as a result of surgery conducted on him to save his life from the effect of the assault, the person who assaulted him is deemed to have caused his death, as long as the doctors in the hospital treated him in good faith and with common knowledge and skill.

These are my directions on the law.  I now turn to the facts.

The evidence

There are certain facts in this case which are agreed to by both counsel and you can accept them as if they had been led on oath from the witness box.  It is agreed that Saiyasi Wailutu died of septicemia with bilateral bronchopneumonia in an operated case of head injury with history of trauma.  It is agreed that the deceased was born in October 1980 and the sketch plans of the scene as well as four photographs have been tendered by counsel.

The remaining evidence is in dispute.  The prosecution led evidence from Cpl. Vijendra Kumar, the barman at the Police Officers Mess.

On the 17th of February 2005, he was standing outside the Wishbone Restaurant opposite Village 6 in Suva when he saw the deceased crossing the road towards Village 6.  He was a bit drunk, and was wearing only a pair of jeans with no shirt.  He tried to stop a Liteace van with both his hands.  He was in the middle of the road.  Under cross-examination he agreed that the deceased had banged on the windscreen with both his hands, that the van then took off at high speed with the deceased hanging on to the front of it.  He agreed that he did nothing to control the deceased.

Another witness Eparama Tuberi also gave evidence.  He said he knew the deceased prior to the incident and that after 6.30pm on the 17th of February 2005 he heard a commotion outside “The Wedge” which is opposite Village 6.  He went over to the place where the commotion was and he saw Saiyasi angry and crying because he had been robbed.  He was angry.  Eparama offered to take him home but he refused.  He then crossed the road.  Halfway across the road, the Accused’s van came.  He shouted at Saiyasi telling him to get off the road, and swore at him.  Saiyasi then put his hands on the van.  The Accused started to drive the van hitting Saiyasi with it.  He hit Saiyasi three times, then took off at high speed with Saiyasi on the bonnet.  According to Eparama the Accused speeded up and braked three times past the Ganilau House and towards the bend in Edward Street going towards Stinson Parade.  The deceased fell off outside the Handicraft Centre, hit his head on the road where the island was.  Eparama who was running after the van picked him up and took him to the hospital in a taxi.

The Accused was interviewed under caution on the 18th of February 2005.  The Accused agrees to the contents of the interview and you may give to it any weight you think fit.  You may think that because it was given only a day after the incident, it gives an important insight into the events from the Accused’s point of view.  In it the Accused said that at about 7.40pm he was following the road in front of Ganilau House when he saw a Fijian man standing in front of his van without a shirt.  He tooted his horn then stopped the van.   The Fijian man who was drunk said “Come kill me.  I want to die.”  He then hit the front windscreen hard with both his hands then climbed up to the roof of the van.  The Accused tried to push his hands off the vehicle but without success.  The Accused then drove off towards the police station at 30kmph.  On the way towards the junction at Stinson Parade, the deceased fell off.  He said he did not stop because he knew some Fijian boys were around and they were going to hit him.

Apart from this evidence, you have access to the photographs, sketch plans and post mortem report.

Giving evidence on cause of death was Dr. Prashant Samberkar.  He told the court that he conducted the post mortem of the deceased and that the cause of death was septicemia as a result of bronchopneumonia.  This was related to head injuries which were consistent with trauma of a motor vehicle accident.  He mentioned a motor vehicle accident because that was the history given to him by the police.

He gave evidence of congestion of the lungs and surgical scars on the skull.  There was no skull fracture.  He said that the head injuries were followed by a sequel of disease and illness which were a result of the trauma.

Under cross-examination Dr. Prashant was asked whether pneumonia could have been cured.  He said that pneumonia had no cure as it could always recur but that doctors could bring relief to the symptoms.

He agreed that there were no marks of injuries to the legs consistent with being dragged along a rough surface, but said that with time any such marks would have healed especially when the patient had been on antibiotics.

That was the case for the prosecution.  You then heard me explain several options to the Accused.  He could have made an unsworn statement, remained silent or given sworn evidence.  He was given these options because he does not have to prove anything.  The burden of proving his guilt rests on the prosecution at all times.

He chose to give sworn evidence and to subject himself to cross-examination and you must give his evidence careful consideration.  He said that when he saw the deceased, he was approaching the pedestrian crossing outside Ganilau House.  He stopped his vehicle because the deceased was in his path.  He said to the Accused “Come kill me, I want to die.”  Then he came onto the front of the vehicle and banged on the windscreen.  He was drunk.  Then he climbed over the bull bar and hung on to the car with his stomach on the windscreen and his hands on the top of the vehicle.  The Accused panicked and drove off with the intention to drive to the Central Police Station.  He was driving at 30kmph but speeded up to 40-45kmph.  The deceased fell off as he approached the bend to Stinson Parade.  The Accused then drove to the Station.  He said he was too afraid to stop because there were Fijian boys in the area and he thought they would come after him.  He checked at the hospital later with the police to see how the deceased was.  He gave his statement the next day.

Under cross-examination he agreed that as the driver of a van he owed a duty of care to all road users, including the deceased and agreed that a reasonable driver should have stopped and sought help rather than drive off.  However he said he drove off because he panicked and wanted to take the deceased to the station.

That was the case for the Accused.

Summary

In summary the prosecution says that in driving off in the way that he did, the Accused acted in such a grossly negligent way that his conduct deserves criminal sanction.  The prosecution says that the Accused’s gross negligence encompassed the entire incident from the time the deceased crossed the road.  The prosecution says that the only reason the deceased was taken to hospital was because of the injuries received from this incident and that his death two months later was directly caused by his fall on the road.

The defence says that the deceased died not of his head injuries but of pneumonia which could have been treated with proper care.  The defence says there is reasonable doubt as to what was the real cause of the deceased’s death.

The defence further says that in driving off in the way he did, the Accused acted in a way that any reasonable driver would have when a drunk man climbs on to his vehicle at night damaging his windscreen.  The defence says that the Accused was justifiably scared of stopping the vehicle and that there is no breach of the duty of care, nor any gross negligence on the part of the Accused.

The issues for you to consider are very simple.  Did the Accused person, on an objective test act unreasonably and in breach of his duty of care towards other road users? If he acted unreasonably, was his conduct so serious that it justifies criminal punishment? And lastly did the deceased die as a result of injuries he received in this incident? Or did he die because of a lack of proper medical care not exercised in good faith and with common knowledge and skill?

If you are satisfied beyond reasonable doubt that the accused caused the death of the deceased by an act of gross negligence then you must find him guilty as charged.  If you have any reasonable doubt either about whether he acted with gross negligence or that he caused the death of the deceased you must find him not guilty.

Your possible opinions are guilty or not guilty.  You may now retire.

Nazhat Shameem
JUDGE

At Suva
24th June 2008