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State v Hoi [2010] FJHC 144; HAC015.2008 (27 April 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 15 OF 2008

STATE

V

CECIL PHILIP QUAI HOI

Ms L. Tabuakuro with Ms M Fong for the State
Mr. I. Khan for the Accused

SUMMING UP

Madam and Gentlemen Assessors.

[1] It is my duty at this stage of the trial to sum up to you. In doing so, I will direct your on matters of law which you must accept and act upon. On matters of fact however, which evidence to accept or reject, which witnesses to accept as being reliable; these are matters for you to consider and decide for yourselves. So if I express my opinion on any question of fact, or I appear to do so, it is entirely a matter for you whether you accept what I say or from your own opinions. In other words, you are masters of the facts.

[2] Counsel have made submissions to you in their opening and closing addresses about how you should find the facts of this case. That is in accordance with their duties as counsel. However you do not have to accept what they say unless you think that what they say appeals to your own common sense and judgment. It is you who are the representatives of the community in this trial, and it is you who must make up your own minds about the facts of this case.

[3] I am not bound by your opinions, but I will give them the greatest weight when I come to deliver my judgment. Your opinions need not be unanimous but it would be desirable if you can agree on them.

[4] On the question of proof, I must direct you on a matter of law, that in a criminal trial the accused person is presumed to be innocent until he is proven guilty. The burden of proving his guilt rests on the prosecution and it never shifts. The standard of proof is that of proof beyond reasonable doubt. This means that before you can find the accused guilty of the offence with which he is charged, you must be satisfied so that you are sure that he is guilty. If you have any reasonable doubt about his guilt, you must return an opinion that he is not guilty.

[5] The accused person, Cecil Philip Quai Hoi is charged with the offence of murder contrary to section 199 of the Penal Code, Cap. 17 Laws of Fiji. It is alleged that on the 17th day of March 2008 he murdered Sarawan Kumar.

[6] Murder is committed when a person causes the death of another person by an unlawful act with malice aforethought. Malice aforethought is an old fashioned legal phrase which is the state of mind required to be proved in the offence of murder.

[7] The prosecution must prove beyond reasonable doubt three essential elements of the offence of murder:

1. That the accused did an unlawful act.

2. That the unlawful act caused the death of the deceased.

3. That the accused acted with malice aforethought.

[8] An unlawful act is something done by a person that is against the law. A very common example of an unlawful act is where a person deliberately applies force to another person without legal justification such as self defence. If a person intentionally strikes another person without legal justification then that is a criminal assault. In such circumstances a person who deliberately stabs another with a knife is committing an unlawful act.

[9] The second ingredient that must be proved is that the unlawful act caused the death of the victim. The law requires a link between the unlawful act and the death. Usually the unlawful act causes some specific injury to the victim and that particular injury causes the victim’s death. Usually the unlawful act causes an injury which is the sole cause of death. But it is sufficient if it is an operating or substantial cause of death. The doctor’s evidence is relevant here. Dr. Litia Tudravu gave evidence that the cause of death was excessive blood loss due to multiple stab wounds on the chest and with a punctured heart. She told us that there were 8 stab wounds altogether. Well with that medical evidence there can be little doubt that the unlawful act caused the death of Sarawan.

[10] The third element that must be proved for the crime of murder is that the person who caused the death of another by an unlawful act did so with "malice aforethought". This is an old legal term which describes a particular intention of state of mind. It is an intention to cause death or very serious harm to the victim or knowledge that death or very serious harm would probably be caused, accompanied by indifference whether it is caused or not. So the prosecution must prove beyond reasonable doubt either that the accused intended to kill the deceased or to do him serious injury. He does not have to intend death, it is enough for murder if he just intends to cause him serious harm, and death results.

[11] A person’s intention is not always capable of direct proof, because a person’s state of mind can only be known for sure by the person concerned. However ordinary human experience shows that a person’s intention can be deduced from his conduct in any given circumstances. Further, what the accused thought or intended can be gathered from the circumstances of the case, the nature of the injuries and the evidence of Dr. Tudravu, the pathologist who said that the blows inflicted on the deceased must have been with some force. The question for you is whether you are satisfied beyond reasonable doubt that the accused in assaulting the deceased did so with malice aforethought.

[12] I must at this stage direct you on intoxication (that is drunkenness) and malice aforethought. There is evidence that the accused was very drunk on beer and perhaps high on marijuana when the incident happened. You must not convict unless you are sure that the accused when he did stab intended to do so. In deciding whether he intended to murder you must take into account the evidence that he was drunk and drugged. If you think that because he was so drunk and high he did not intend to murder then you must find him not guilty. But if you are sure that, despite his drunkenness he intended to murder then this part of the case is proved against him. A drunken intent is still an intent. What is more it is not a defence for the accused to say that he would not have behaved in this way had he not been drunk and affected by drugs. It is highly relevant that the accused was threatening to kill members of the family before he got drunk, so this may help you with the question of intent.

[13] The evidence in this trial has been aired before you in the last few days and it must be fresh in your mind. I don’t therefore plan to go over it in great detail.

[14] The witnesses can be grouped into three categories. There were the good folk of Korovuto who described the events of that day. There were the Police witnesses and then there were the two "medical" witnesses.

[15] The wife of the accused told us of her very unhappy marriage to Cecil. They had fights, he beat her. She would run away, but she always reconciled with him. She finally left him on the 12th March after she says that she had been locked in the house and Cecil had demonstrated an obsessive jealousy when she spoke to people or did things. She went to her Mum and on the 17th went up to Tavua. The next day she found out that her Dad had been killed.

[16] She rushed back to Nadi after that and helped the Police with their investigations. She noticed at the house search that two of the knives from the kitchen drawer were missing. She went on to tell us of the drinking problems of the accused. Alcohol abuse appears to figure largely in all the evidence before you. She told us that he used to wear an earring with a stud.

[17] In cross-examination it was suggested that she was not confined to the house and that she was as big a drinker as the accused but she denied this. It was suggested that he was a kindly man who would buy groceries for the in-laws.

[18] Padmani was a neighbour and the sister of the deceased’s wife. She remembers that the accused and his wife came to stay with her in 2008, until she kicked them out. They would fight and swear and once she saw Cecil hit Arvina. He even once threatened to kill everybody, however as Mr. Khan pointed out this was never before told to the Police

[19] The wife of the deceased, Tara Wati, gave evidence. She gave us background information about the accused and her daughter and their tempestuous relationship. She had seen the accused hit Arvina and Arvina had told her that she had been locked in the house. She confirmed that Arvina had finally run away on the 12th March and that the witness had taken her to Tavua on the 17th. That evening the witness and her husband (the deceased) went to Padmina’s house. They walked home at about 7.45pm. They ran into Cecil who had been hiding in the long grass. The couple went onto visit others but then at about 8pm they met Cecil again. He was with a Fijian boy. Cecil asked where Arvina was and both the husband and Tara Wati said they did not know. Tara said she was scared - they went home and called the Police to tell them what had happened. She was worried that Cecil and the boy (she said it was Amena) might come and fight. Her husband went out to mix the grog and Tara stayed inside. At about 10pm she heard her husband go outside near the wash-tub; heard him cough and gargle. The she heard him call her name. She got up and looked outside and saw that Cecile had grabbed her husband. They were near the wash-tub and the cement porch. She had a clear view through the curtains with 2 louvres missing. A 2 foot tube light was on. She said Cecil had grabbed him around the neck and was pulling him down to the ground. There was a Fiji boy with him side on but she did not recognize him. She watched for about 4 to 5 minutes, then ran away to the neighbour’s house. She was in a state and told the neighbours that Cecil had killed her husband. The Police arrived and they discovered the body. She did not see any knife nor any stabbing – she was too scared and just ran away. You will remember that in cross-examination she was very evasive about the "other man", and furthermore she admitted that in her statement she never said that she told the neighbours that it was Cecil who had killed her husband.

[20] The neighbours then gave evidence of Tara Wati arriving in great distress and they confirmed that she said "China" (Philip’s nickname) had killed my husband". She was sobbing uncontrollably. They went and saw the body on the ground where Tara said it was.

[21] Much was made in this trial by Counsel for the Defence that the witnesses’ oral testimony differed greatly from what was contained in their statements. You may take into account any inconsistency (and the witness’ explanation for it) when considering the witness’ reliability. It is for you to judge the extent and importance of any inconsistency. If you conclude that he or she has been inconsistent on an important matter, you should treat both his accounts with considerable care. If however you are sure that one of the witnesses’ accounts is true (in whole or part) then it is evidence you may consider when deciding upon your verdict.

[22] We then heard from a few witnesses as to the drinking that had gone on that day in Korovuto settlement; how Cecil had been upset and angry at the fact that his wife had run away – Salesh Kumar saw China talking to the deceased and his wife at about 8pm, and his tone of voice was angry. Aminiasi then told us of his day of drinking alcohol and grog, and how despite being a suspect initially, his alibi checked out and he was released. He was adamant that he had never accompanied anybody to Sarawan’s house that night. This alibi was subsequently supported by Detective Corporal Yagavito.

The medical evidence came from the Pathologist, her assistant and the pathology photographer. Apart from the evidence of cause of death, which I have already referred to, the assistant told us that when he was cleaning the body he dislodged a small silver earring stud stopper, which you all saw as an exhibit. The Prosecution say that this can only have come from the accused’s earring; the defence say that it could have come from anywhere and that there is no forensic evidence to prove its provenance. It is entirely a matter for you as to what you make of this evidence.

[24] We then came to the evidence of Mr Isei Tuidraki. His evidence is crucial and if it is believed directly implicates the accused. However before you consider the evidence of this witness, I wish to give you two directions. These directions are not given because I wish to convey to you any view of the credibility of this witness, but because in every such case the law requires that I give you these directions.

[25] The first is that you must treat this witness as an accomplice. The law says that it is dangerous to convict on the evidence of an accomplice, unless it is corroborated, although you may do so. Corroboration means some independent testimony which affects the accused by connecting him or tending to connect him with the crime. In other words it must be evidence which implicates him, that is which confirms in some material particular not only that the crime has been committed but also that the accused committed it.

[26] In this case the evidence of Tara Wati who saw the accused holding the deceased outside her window when he was pleading for help; and the evidence of the accused’s earring stud in the deceased’s hair are pieces of evidence which are capable of providing corroboration, if you choose to accept those pieces of evidence. It is for you to decide whether in fact they do corroborate or not.

[27] Therefore members of the panel, it is your task to decide whether Isei’s evidence is capable of belief and then whether having regard to the corroborating evidence you accept it as true and then you may rely on it.

[28] The second direction is this: you must be aware that Isei was granted immunity. The grant of immunity is quite legal. It is not uncommon, and it is often given to a lesser player in any crime in order to bring the main perpetrator to justice. But it can happen that a person to attract immunity may falsely implicate another or have a motive for telling lies. You must therefore scrutinize his evidence with great care.

[29] Mukesh Chand was another witness who came to us after two years. He told us that the accused confessed to the murder in a conversation with him. He is not an accomplice but the defence says that you must treat his evidence with the greatest of caution because he has a grudge against the accused for very personal reasons and because it is most improbable that someone in the accused’s shoes would ever volunteer this confession. Well there is not one piece of evidence before you about the grudge and it is entirely a matter for you what you make of this evidence.

That was the end of the Prosecution case. You heard me tell the accused his rights in our law. He chose to remain silent. That is his right and you must not read anything into that. He is entitled to sit back and "say" that the State has not proved his guilt beyond reasonable doubt. He does not have to prove anything.

[30] It is of course the defence position that the accused was never there at all when Sarawan was killed. If you agree with that you will find the accused not guilty but if you do not agree with that preposition you would take everything else I have said in this summing up into consideration.

[31] Now just before I send you out to consider your opinions, there are a couple of things that Mr. Khan told you yesterday that I want to deal with. Firstly he mentioned Isei’s previous conviction for larceny, or theft, which is categorized as an offence of dishonesty; because obviously it is dishonest to steal from somebody. The State concedes that that conviction does in fact exist, from 2002, some 8 years ago. However Mr. Khan quite outrageously in my view told you yesterday that that makes him a liar, which of course is not logical. A conviction for theft does not mean that you are a liar for the rest of your life; so I ask you to put that assertion from your minds Madam and gentlemen.

[32] Secondly Mr. Khan suggests to you that Isei and Mukesh plotted together to frame the accused. That is a theory and it is merely speculation on the defence part: there is no evidence for it whatsoever and I remind you that you are not here to speculate and nor should anybody else in this Court Room speculate. You are to judge this case on the evidence you have heard in this court room alone and on nothing else.

Well there you have it Madam and Gentlemen. You may now retire and consider your opinions. Let my clerk know when you are ready and I will reconvene the Court.

[33] Redirections?

Paul K. Madigan
Judge

At Lautoka
27 April 2010