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State v Salagi [2010] FJHC 128; HAC043.2009 (14 April 2010)

IN THE HIGH COURT OF FIJI

AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC043 OF 2009

STATE

V

BENI BALEIMUALEVU SALAGI

Counsel: Ms S. Bull for State
Mr. T. Lee for Accused

Hearing: 12th-14th April 2010
Summing Up: 14th April 2010

SUMMING UP

Madam Assessor and Gentleman Assessors

[1] I am now going to sum up this case to you. I will direct you on matters of law, which you must accept and act upon. You must apply the law that I tell you in this case. As for all matters of fact, these are matters for you to decide for yourselves. So if I express any opinion on the facts, or if I appear to do so, then it is entirely a matter for you whether you wish to accept what I say or form your own opinions. You are the judges of fact.

[2] Both counsel have made submissions to you and although you are not bound by what they said, if you think their comments make good sense, you may accept them if you think fit. You are the representatives of the community in this trial and it is for you to decide what really happened in this case.

[3] You must come to that decision solely upon the evidence you have heard from the witnesses, which includes the exhibits that have been produced. 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.

[4] Some of the photographs (P3) taken during post mortem of the deceased are fairly graphic. You must look at them dispassionately and objectively. They are intended only to show you the injuries. 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 opinions calmly and dispassionately.

[5] You will not be asked to give reasons for your opinions but merely your opinions themselves and they need not be unanimous although it would be desirable if you could agree on them. Your opinions are not binding on me but I will give them great weight when I deliver my judgment.

[6] On the question of proof, I must direct you as a matter of law, that in all criminal cases the burden of proof lies on the prosecution to prove the case against the accused. This means that the accused is presumed innocent until he is proved guilty and his guilt must be proved by the prosecution 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.

[7] The accused is charged with the offence of murder. There are three elements that the prosecution must prove for the offence of murder:

1 .That the accused did an unlawful act.

2. That this unlawful act caused the death of the victim, Sadi Kuini Rasiga.

3. That the accused acted with intention to kill or to do serious harm to the victim.

[8] In this case, the defence does not dispute that the accused punched the victim several times on the head causing serious head injuries to her. Also, the defence does not dispute that those injuries caused the death of the victim. So the first two elements are not in dispute.

[9] The remaining issue is the mental element of the offence of murder. The issue is whether the act of punching the head of the victim several times with a fist was done with an intention to kill or cause serious harm to her.

[10] Intention may be inferred from the circumstances in which the injuries to the victim occurred, and from the conduct of the accused before, at the time of, or after he did the specific act which caused the injuries to the victim. Whatever a person says about his intention may be looked at for the purpose of finding out what that intention was in fact at the relevant time.

[11] In this case, the defence is one of insanity. In considering whether the prosecution has established the particular intention of the accused, you must disregard the psychiatric evidence of the accused suffering from mental illness at the time of the alleged offence. That evidence is certainly relevant later to the defence of insanity. But that is all. It is not relevant at this stage. I will explain why, in case that seems to you to be strange.

[12] The law presumes every person to be sane and to be of sufficient soundness of mind to be responsible in law for his actions until the contrary has been shown at trial. The accused is, of course, entitled to challenge that presumption and does this by establishing the defence of insanity. I will turn to that defence shortly. The presumption that he was sane and fully responsible for his actions continues to apply until you come to consider that defence.

[13] I will now deal with the defence of insanity. This defence is raised by the accused, and therefore, it is he who bears the onus of proving it, although on the lesser standard of proof on the balance of probabilities.

[14] The defence of insanity is to do with disease of the mind. If you are satisfied, on the balance of probabilities, that the accused lacked criminal responsibility by reason of disease of the mind, then your opinion must be not guilty by reason of insanity, although as I will explain, such an opinion does not mean that the accused will go free.

[15] In considering this defence, you must therefore ask yourselves if the defence has proved on a balance of probabilities that:

1. The accused at the time of killing the victim was suffering from a disease of the mind;

2. And that he either did not know what he was doing; or

3. He did not know that what he was doing was wrong.

[16] I will now summarize the evidence.

[17] Sevanaia Sedra is a police officer. The accused came to Lekutu Police Post and reported to him that he had killed his daughter. Sevanaia said the accused appeared normal. In cross examination, Sevanaia said while the accused was in his custody he shouted and at times spoke loudly when the police officers from Labasa arrived.

[18] Mosese Tokailagi witnessed the caution interview of the accused. He said the accused appeared normal.

[19] Tevita Savou recorded the caution interview of the accused (P1). In his interview, the accused admitted punching the victim until she stopped breathing. The accused said he killed his daughter to offer as a sacrifice to God. He said he lifted his daughter to God to witness what he had done because his pastor had not set them free. He said he wanted to reveal a message from God by killing his daughter. He said it will be a miracle to the government of Fiji.

[20] Dimae Valetina is the wife of the accused and the mother of the deceased. She said the accused was very fond of his daughter. On 8 August 2009, the accused, his aunty and she woke up at 3am for devotion. The accused told them to pray while he went to deliver a message about a vision to their pastor. The accused returned at 7am. He got them into their bedroom and locked it. He started singing and praising. He preached to them. The accused said an evil spirit has entered their home. Their daughter was crying. The accused told Dimae to feed her. The accused said the baby was possessed with an evil spirit. He took the baby from Dimae and placed her on a mattress. He yelled out at the baby. The accused said the baby was possessed with a devil. He said he was going to kill the devil. He punched the baby several times on the head until the baby stopped breathing. He said they should praise God for the sacrifice he had made. He asked them to continue to pray and thank God that his daughter is in heaven.

[21] Dr. Frank Underwood medically examined the accused on 9 August 2009. The accused told him what he did was for deliverance of his people. The doctor said the accused was aware of his surroundings but exhibited signs of delusions and hallucinations that required further psychiatric evaluation.

[22] Alumeci Dyer is the staff nurse at Lekutu Health Centre. She confirmed the victim was dead when brought to the centre.

[23] Sefanaia Keni is a police officer who witnessed the charge statement of the accused (P5).

[24] Sabina Miriama took the photographs (P3).

[25] Dr. Gupta carried out the post mortem of the deceased. The post mortem report is (P4). Dr. Gupta said the deceased died of excessive bleeding inside the skull. The victim’s skull was fractured and her brain was damaged.

[26] Jimone Waqala recorded the charge statement of the accused (P5). In his charge statement the accused said he killed his daughter on his religious faith that it would save Fiji and the world.

[27] You also heard expert evidence of Dr. Narayan. Expert evidence is permitted in a criminal trial to provide you with scientific opinion, which is within the witness’s expertise but which is likely to be outside your experience and knowledge. Dr. Narayan’s qualifications in the field of mental illness are not in dispute.

[28] On 15 August 2009, the accused was admitted to St Giles Hospital. Dr Narayan carried out a psychiatric evaluation of the accused and compiled a report (D2). Dr. Narayan’s opinion is that the accused suffered from a disease of the mind at the time of the alleged killing of his daughter, namely, Mania with psychotic symptoms like hearing voices that others do not hear. Dr Narayan ruled out the possibility of the accused faking his symptoms. The Narayan said the accused knew what he did but he did not know what he did was wrong. In other words, the accused did not know the difference between right and wrong when he killed his daughter.

[29] In this case it is not suggested that the accused did not know what he was doing when he killed the deceased. It is submitted that the mental illness of Mania with psychotic symptoms prevented him from knowing that what he did was wrong. The question for you is whether in killing the deceased, he was suffering from a disease of mind and consequently he did not know that it was wrong.

[30] You may think, that on the basis of the medical evidence, that there is no doubt at all that the accused killed the victim while suffering from a disease of mind and with the effect that he could not tell right from wrong. You may think that the defence has shown you on the basis of expert evidence, that it is more likely than not the accused committed the offence whilst insane. However, this is a matter for you to decide for yourselves.

[31] If you are of the view that it is more likely than not that he was sane at the time he killed the deceased then the proper opinions would be guilty of murder.

[32] If you agree with the medical evidence that the accused was insane at the time that he killed the deceased and are satisfied of that on a balance of probabilities then your opinions must be not guilty by reason of insanity.

[33] Your possible opinions are guilty of murder or not guilty by reason of insanity.

[34] If you decide that the accused is not guilty by reason of insanity, he will be committed to custody during the President’s pleasure and will be kept at special facilities for the criminally insane.

[35] I do not consider that I can assist you further. You may now retire to consider your opinions. When you have reached your opinions, please, advise my clerk and the court will reconvene to receive your opinions.

Daniel Goundar
JUDGE

At Labasa
14th April 2010