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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
HIGH COURT CRIMINAL CASE NO: HAC 044 of 2009
BETWEEN:
STATE
PROSECUTION
AND:
FILIPE GLENVILLE
ACCUSED PERSON
Counsel: State - Mr. Qica
Accused Person - Mr. A. Sen
Date of Hearing: 16th, 17th, 18th, 19th August 2010
Date of Summing Up: 19th August 2010
SUMMING UP
[1] Madam Assessor and gentleman Assessors,
[2] It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you, whether you accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide. 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.
[3] You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.
[4] The Counsels for the Defence and Prosecution made submissions to you about the facts of this case. That is their duty as Defence Counsel and State Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.
[5] You will not be asked to give reasons for your opinions but merely your opinion themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me, but I can tell you that they will carry great weight with me, when I deliver my judgment.
[6] On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty.
[7] The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion that he is not guilty.
[8] Your decisions must be solely and exclusively upon the evidence which you have heard in this court, and upon nothing else. You must disregard anything you might have heard about this case, outside of this courtroom. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.
[9] Your duty is to find the facts based on the evidence apply the Law to those facts.
[10] The accused is charged with the offence of manslaughter by an unlawful act. Manslaughter is the killing of someone by an unlawful act. In this case the prosecution alleges that the unlawful act was, that the accused, while having under his control a boat powered with an out board engine, and without taking due care in it's use or management, ran over a swimmer, the deceased in this case.
[11] An unlawful act is an act, which is not justified by law. Where the unlawful act, at the same time, if it is a dangerous act, that is an act, which is likely to injure another person, and quite inadvertently the doer of the act causes the death of that other person by that act, he is guilty of manslaughter. For such a verdict (guilty of manslaughter) the unlawful act must be such as all sober and reasonable people would inevitably recognize must subject the other person to, at least, the risk of some harm resulting therefrom, albeit not serious harm.
[12] There is no dispute that the boat which was driven by the accused, ran over the deceased. The prosecution alleges that the accused breached the duty of care which he owed to the deceased, when he ran over the deceased.
[13] The elements of the offence of Manslaughter that the prosecution must prove beyond reasonable doubt are;
[14] What is duty of care? Whether the accused had a duty of care towards the deceased? The rule, that you are to love your neighbor becomes in law, you must not injure your neighbour. You must take reasonable care to avoid acts which you can reasonably foresee, would be likely to injure your neighbor.
Then who is your neighbour? The answer is, persons who are so closely and directly affected by your act, which you ought reasonably to have them in contemplation as being so affected when you are directing your mind to the acts which are called in question.
[15] When you decide on the existence of a duty of care on the accused to the deceased, you have to consider all the circumstances, existed. In this case the evidence is that, the deceased had gone snorkeling. The accused navigated the boat towards the Naivivi village, to buy food. When he went pass the resort at Qamae he felt something caught the engine shaft. Then he moved forward and turned back, where he saw a Europian lady sitting on the beach. Then he saw a body floating on the surface of the sea. This was, what the accused said in his caution interview statement. So you have to consider all the evidence including the evidence of other witnesses, who testified on the circumstances, when deciding the existence of the duty of care.
[16] 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.
[17] On the act of negligence you must ask yourselves whether the conduct of the accused was so grossly negligent, and therefore a crime. It is for you to decide, whether having regard to the risk involved, the conduct of the accused was so bad in all circumstances as to amount to a criminal act.
[18] In relation to the final element, that is of causation, this term is defined by the law as meaning that the accused was responsible for the substantial or immediate cause of death. The post mortem report which was prepared by the Pathologist Dr. Goundar on the post mortem he held on the body of the deceased, was admitted in evidence without objection. Dr. Goundar's opinion on the cause of death is admissible, as an expert opinion on the subject. In his opinion the cause of death was Excessive loss of blood and shock from multiple injuries, which is not in dispute.
[19] If you are not satisfied that the prosecution has proved any one of the above elements beyond reasonable doubt you must find the accused not guilty. If you are satisfied that the prosecution has proved all the elements beyond reasonable doubt you may find the accused guilty of manslaughter.
[20] As a matter of law may I direct you on circumstantial evidence. In this case the prosecution relies on direct evidence as well as on circumstantial evidence. In circumstantial evidence you are asked to piece the story together from witnesses who did not actually see the crime committed, but give evidence of other circumstances and events that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime.
[21] I cite the following situation as an example for circumstantial evidence. In a silent night, you hear cries of a man from a neighboring house. You come out to see that a man named 'X' is running away from that house with an object in his hand. Out of curiosity you go inside the house to see what really had happened. You see your neighbor 'Y' lying fallen with injuries. Here you don't see 'X' committing any act on 'Y'. The two independent things you saw were the circumstances of a given situation. You can connect the two things that you saw, and draw certain inferences. An inference you may draw would be that X caused the injury on Y. In drawing that inference you must make sure that it is the only inference that could be drawn, and no other inferences that could have been possibly drawn from the said circumstances. That should be the inescapable inference that could be drawn against X in the circumstances. Further in evidence one witness may prove one thing, and another witness may prove another thing. None of those things separately alone may be sufficient to establish guilt, but taken together may lead to the conclusion that the accused committed the crime.
[22] Therefore you must consider all direct evidence as well as circumstantial evidence.
[23] It must not be mere speculation guesswork. It is not sufficient that the proved circumstances are merely consistent with the accused having committed the crime. To find him guilty you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt that the accused person committed the crime. Before you can draw any reasonable inferences you must first be satisfied beyond reasonable doubt, that the evidence given by witnesses relating to the circumstances giving rise to the issues of fact to be proven, is credible and truthful.
[24] On the basis of these legal principles that I have explained to you, you must consider the evidence in this case and decide what has been proved. As I said earlier, it is your job to assess the credibility of the witnesses. You decide who is truthful and to be believed.
[25] These are my directions on the law. Now I turn to the facts.
The Evidence
[26] The 1st witness called to give evidence for the prosecution was Jamie Quesenberry, who is the diving instructor of the Qamea Resort. Her evidence was that the decease Thaddeus and his wife Andrea were guests in the resort. They arrived on 7th November 2009. She issued them with the snorkeling equipment. They have said that they knew how to use the equipment. Further she said that she warned them about the change of tides, ways to enter snorkeling, and be aware not to touch or stand on corrals. She said that guests used to do snorkeling around the resort, and also in the area of Yaragau. Apart from these places they used to take guests to other places in a boat.
[27] There are no particular bounders or markers to show the area in which the guests snorkel. On 13th November 2009, resort manager had told her, that a guest had been hit by a boat. She went to the beach and saw Thaddeus's body inside a boat. She tried to check pulse, and she was told that Tracy had already tried to give him CPR. She said that she too had snorkeled in Yaragau, and that she never told Thaddeus not to go there.
[28] In cross examination she said that other than the resort, there are villages in the Island. People used to go in boats to buy their provisions. Power boats are used by residents almost everyday. She said that nobody owns the sea or beaches. She said that there is no requirement by law to put up notices to show the places where people snorkel. It is standard knowledge, that guests do snorkeling close to the resort, she said. Also she said that it's standard knowledge, that others use boats to go to the other Islands.
[29] The next witness was Petero Riqa. On 13.11 2009 He was working with Filipe. Floid came and gave money to buy their lunch. Filipe went in the boat alone to buy lunch. Filipe came back, and being still in the boat had said, that there was an accident. They got into the boat and went to see, and when they reached the place, they saw the European man. Then they went and brought Kai, and they loaded the European man to the boat and was brought to the hotel. He said that Filipe was supposed to go to Naivivi village to get lunch. He said that you have to go pass the resort, to go from Nukubalau to Naivivi.
[30] Filipe had said that he had an accident with a European man. The place of accident had been at Yaragau. When they lifted the body, he saw the injuries, and the man was dead. The resort the manager came, and she gave mouth to mouth resuscitation. The body was loaded to a boat belonged to the hotel, and they waited for the police.
[31] In cross examination he said that the only way to access the Qamea Island, is by boat. As there are no roads in the island, to go to the villages in the Island, people have to go by boats. Further he said, that to go to Naivivi, the only route the accused had to take when it is high tide, was that route. He said that he saw the place of accident, and that was not a place where tourists snorkel.
[32] Prosecution called the Resort Manager, Tracy Purcell to give evidence next. On 13.11 2009 when she was in office, her bar manager had told her, that one of their guests were in a village boat injured. She went and applied CPR to him on the boat. Arthur Mitchel had told her that he had already applied CPR, and that he was already dead. So she went to office and informed the police. She told Jamie to find the deceased's wife, and they found her. On police advice the body was taken to the land and was taken to the morgue. She went back to the resort with the deceased's wife. On 14.11 2009 she identified the body of the deceased at Taveuni Hospital, as the wife couldn't view the body. She didn't know the exact place the deceased snorkeled. She said that she never forbid the tourists from snorkeling at Yaragau. After the incident the current practice is that the snorkelers carry a boyar which is visible on the water surface, but it wasn't compulsory then. She said some snorkelers don't like it, but they make sure that they take it now.
[33] In cross examination she said that access to the Island is generally by power boats. She said, that they have not put any signs to say 'Snorkelers, be aware'. She said on that day, the deceased didn't carry a floating devise, which they carry now. Yaragau is not visible to the resort, she said. When guests go snorkeling the resort will not send staff to watch, but they never allow them to go alone. This time the deceased's wife had been there. She said that there is a care taker at Yaragau named Sathar, who will keep an eye on guests.
[34] The next witness was Cpl Gayan Singh, the police officer who took the photographs of the scene, and the body of the deceased at the post mortem. The booklet containing the photographs was marked and produced in evidence.
[35] In cross examination he said, that he didn't notice any damage or fresh marks in the boat engine to show that it hit a rock.
[36] The next witness was Detective Cpl. Manoa. He was stationed at Taveuni Police station, when he received the phone call from Qamea resort, stating that there was an accident, and that a tourist was hit by a fiber glass boat. On 14th November on instructions he went with the accused to identify the place where he hit the deceased. Accused showed the place of accident and they took photographs. Thereafter they went to the settlement and took photographs of the boat. He caution interviewed the accused. Interview was in Fijian language, which was later translated to English by Cpl. Tupici. The voluntariness of the interview was not challenged by the defence. Caution interview statement was produced in evidence.
[37] In cross examination he said, although he put in question No. 70 of the interview on the illegality of using the route, that he didn't have any evidence to that effect. He said that, 99% of the people in Qamea Island use power boats, and the accused has used the route many a times.
[38] The next witness was Cpl. Petero Tupici, who was the Investigating Officer. On the information on the incident he went to the Qamea Island resort, with a team of officers, and recorded the statements of witnesses. He then went to the scene, and drew a rough sketch plan. He arranged the scene of crime officers from Labasa Police Station, to carry out their investigation on the scene. He also arranged the Pathologist to conduct the post mortem.
[39] He said that he was the witnessing officer at the caution interview. He did the English translation of the interview, which was produced in evidence.
[40] In cross examination, you remember he admitted that he had made mistakes in translating the Question No.62, and the answer to question No.63, which was corrected in evidence. He said the passage in which the accused navigated the boat is used by the resort, to navigate their boats, and also villagers use the same route. Further he said that in his investigation he ascertained, that the deceased was snorkeling and also taking photographs under water on the seabed. The deceased was snorkeling unsupervised.
[41] The next witness was Dr. Goundar, the Forensic Pathologist who conducted the post mortem on the body of the deceased. His qualifications, experience and the expertise on the subject was unchallenged. The post mortem report was submitted in evidence. In his expert opinion the cause of death of the deceased was excessive loss of blood and shock from multiple injuries. He said that the injuries are consistent with the clinical history given. His evidence was unchallenged.
That was the case for the prosecution.
[42] At the end of the prosecution case you heard me explain several options to the accused. He could have remained silent, or given sworn evidence. He had these options because he did not have to prove anything. The burden remains on the prosecution at all times to prove his guilt.
[43] He chose to give sworn evidence, and also to call witnesses on his behalf, and you must carefully consider their evidence.
[44] Accused giving evidence said that he was navigating the boat from Nukubalau to Naivivi. He had to go pass the resort. He was driving at a speed of about less than half speed. The sea was windy, there were waves but not big ones. Between the coast line and the reef, there is a passage and they go more close to the reef. When he passed the hotel he didn't see any activity. When he came to the point Yaragau he was in the passage more close to the reef. This passage is used by him about 4 times a week, and also used by other villagers. When he went pass the hotel and went towards Yaragau he felt the engine jerked. He continued for about 10 meters, and when he looked towards the beach he saw a European lady sitting. That place the engine will never jerk as there is only sand in the bottom. When he saw the lady, it came to his mind that he ran onto some one. At that place he didn't see any flags, boyars or floaters. Then he came back to the spot, and saw a European man floating. He was not moving. He could have lifted him up, but he didn't do anything as he was frightened. He went to look for 2 other people to lift him up. Within 5 minutes he came back with Floid and Riqa. From there they went to get Kai on the beach. He told Kai that one of their guests were floating on the sea. They came back, found the man, and he was dead. They brought the body back to resort.
[45] He said that at Yaragau, he had never seen people snorkeling. He said when villagers dive, they put a 20 liter plastic container to sea on the surface. He didn't see anything visible when he drove the boat.
[46] In cross examination he said, on that day it was high tide. Further he said that he could have carried the European man, but he was frightened. In re examination he said, that he had never seen people snorkeling at Yaragau.
[47] Then the defence called Taniela Caunavou, a village chief in Naivivi to give evidence. He said that the Qamea Island resort doesn't own the sea in front of it. In Naivivi there are about 200 houses and about 20 boats. People use the passage in front of the resort to go to other villagers and that is their only route.
His evidence was unchallenged.
[48] Finally defence called the witness Floid Lockington. He said his boat was taken by the accused that day to go to another village. Accused was sober, and he left in less than half speed. The boat can be navigated by one person safely. The accused came back 5 minutes later. He went back with the accused to the spot where he hit the tourist. They didn't find the tourist. The body had drifted away from the spot. He saw the body when he got to the beach. He said that he had never seen tourists snorkeling in this area. He got off the shore for Kai to get in. He didn't see anybody else on the shore.
[49] In cross examination he said that the accused is his cousin. He said that he believe that, it was an accident. In re examination he said, that the accused is a distant cousin, and that he gave truthful evidence.
That was the evidence for defence.
[50] Madam assessor and gentlemen assessors, you heard the evidence of many witnesses for several days on behalf of the prosecution and the defence. If I did not mention a particular witness or a particular piece of evidence that does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.
[51] Which version you are going to accept whether it is the prosecution version or the accused's version is a matter for you.
[52] You must decide which witnesses are reliable and which are not.
[53] Prosecution says that the accused is guilty of manslaughter. That the accused was negligent, and that the unlawful act was that the accused without taking due care ran over the deceased. The defence says that it was an accident, which he was not responsible, he was not negligent and that no snorkeling was done in that area. Further the defence says that as no signs, floaters or boyars were visible, and that the deceased was not visible, and therefore the accused could not have seen the deceased. Further the defence says that his act in any event is not an act of gross negligence which amounts to a crime in given circumstances.
[54] The questions for you in this case are whether the state has proved beyond reasonable doubt that the accused was so negligent which amounts to a criminal act, when he drove the boat over the deceased, and that his act was unlawful. When deciding on that, you may consider the evidence placed before you. Whether the route taken by the accused, was a route normally used by the villagers? Whether the deceased used any signs, floaters or boyars, so that the accused could have reasonably seen, that there was some activity going on? Whether a reasonable man could have foreseen or expected, that a person was snorkeling, or that a person was under water, in the given circumstances? The position of the accused is that he never saw the deceased before the accident.
[55] You may use your commonsense when deciding on the facts.
[56] If you are satisfied that the prosecution has proved all elements which I explained beyond reasonable doubt you may find the accused guilty of the charge. If you are not satisfied that the prosecution has proved beyond reasonable doubt any one of the elements which I explained you must find the accused not guilty of the charge.
[57] I have explained the legal principles to you. You will have to evaluate all the evidence and apply the law as I explained to you when you consider the charge against the accused has been proved.
Your possible opinions are either;
[58] Madam assessor Gentlemen assessors, this concludes my summing up of the law. Now you may retire and deliberate together and may form your individual opinions on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.
[59] You may retire to consider your opinions.
Priyantha Fernando
Puisne Judge
At Labasa
19th August 2010
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