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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 024 OF 2006S
STATE
V
VAIONE TEGU
Counsels: Mr. S. Vodokisolomolone for the State
Ms. S. Vaniqi for the Accused
Hearings: 18th to 29th October, 2010
Summing Up: 3rd November, 2010
SUMMING UP
7. In this case, we are only concerned with count No. 2. Vaione Tegu was charged with "murder", contrary to sections 199 and 200 of the Penal Code, Chapter 17. It was alleged that, on 27th May 2006, at Navua in the Central Division, Vaione murdered Sairusi Seganaluvena.
D. THE MAIN ISSUE
8. The task for you, in this case, is to answer the following question: Did Vaione Tegu murder Sairusi Seganaluvena, at Navua in the Central Division, on 27th May 2006?
E. THE OFFENCE AND IT'S ELEMENT
9. "Murder", has three essential elements. For the accuseds to be found guilty of "murder", the prosecution must prove beyond reasonable doubt, the following elements:
(i) that the accused did an unlawful act;
(ii) that the unlawful act caused the death of the deceased;
(iii) that at the time of the unlawful act, the accused either:
(a) intended to kill the deceased, or
(b) intended to cause him some serious harm, or
(c) that he knew that death or serious injury would be caused on the deceased, but nevertheless went on to do the act.
10. An "unlawful act", is simply an act not justified in law. For example, during a drinking party, if A and B had a dispute, and A punched and kicked B in the head, or body, without any justification, that punching and kicking would be "unlawful acts". They are "unlawful acts" because they are assaults in law, that is, they are an unlawful application of force to the person of another, and therefore unlawful. Likewise, if A later stomped on B's head, after punching him to the ground, that "stomping" would also be an "unlawful act", because it is an unlawful application of force to the person of another, and thus an assault, in law. As explained in paragraph 9(i) hereof, this is the first legal hurdle the prosecution must overcome, before it can ground a murder conviction against Vaione Tegu. The question therefore becomes: Did Vaione Tegu commit an unlawful act or acts against Sairusi Seganaluvena on 27th May 2006?
11. The accused's "unlawful act or acts must cause the deceased's death". This is explained in paragraph 9(ii) hereof, and it is the second legal hurdle the prosecution must overcome, to ground a murder conviction against Vaione Tegu. Continuing from the above example, it must be established by the prosecution that A's punching, kicking and stomping of B's head and body must be the substantial and major cause of B's death. If A's punching, kicking and stomping of B's head and body, at the drinking party, was found to be a substantial and major cause of B's subsequent brain injuries resulting in his death, A's "unlawful acts" thereby caused B's death. This is the second element of murder, that is, the accused's unlawful act caused the deceased's death.
12. The above is so, even if B had already being injured, before A punched, kicked and stomped his head and body at the drinking party. Continuing from the above example, before A and B had a dispute, B was already injured as a result of fights he had earlier. Before the dispute, B had a black eye, and other injuries to his body. As a result of A's unlawful acts (ie. punching, kicking and stomping), B suffered brain injuries and subsequently died. A's unlawful acts would still be deemed to be a substantial cause of B's death, if his unlawful acts hastened the death of the injured B. So, in this case, the question becomes: Did Vaione's unlawful acts (ie. punching, kicking and stomping), on 27th May 2006, caused Sairusi Seganaluvena's death?
13. The third element of murder is outlined in paragraphs 9(iii) (a), (b) and (c) which concerned the accused's mental state at the time of committing the unlawful act. As a matter of common sense, no one can look into a person's brain, to ascertain the person's intention, at the time of him doing the unlawful act. Nevertheless, his intentions could be inferred from his physical actions and spoken words, and the surrounding circumstances. You must put yourselves in the shoes of the accuseds, and from his physical actions, spoken words, and the surrounding circumstances, you will be able to ascertain his intentions at the time, he was doing the unlawful act.
14. In this case, it would appear that the prosecution is running its case on the accused's mental state as mentioned in paragraphs 9(iii)(a) and (b), that is, he intended to kill the deceased or intended to cause him some serious harm. The prosecution choose not to rely on the mental state mentioned in paragraph 9(iii)(c), and as a result, you can disregard paragraph 9(iii)(c) in this case. The prosecution therefore had to prove beyond reasonable doubt that, when the accused did the unlawful act or acts that caused the deceased's death, he at that time, had the intention to kill the deceased or caused him serious harm. Referring to the above example, at the time A was punching, kicking and stomping on B's head and body, at the party, the prosecution must prove beyond reasonable doubt that he had the intention to kill or seriously harm B. If the prosecution is unable to prove beyond reasonable doubt that A had the intention to kill or seriously harm B, at the time he was punching, kicking and stomping on B, which later caused B's death, A cannot be held liable for the murder of B. This is because the third element of murder, as mentioned in paragraph 9(iii)(a) and (b) hereof, had not been proven beyond reasonable doubt, by the prosecution.
15. The consumption of liquor, that is, beer and rum, had been a major part of this case, before the alleged murder occurred. Counsels have examined and cross-examined witnesses on the matter, and have also made closing submissions on the topic. As a matter of law, self-induced intoxication is no defence to a criminal charge. However, you must take it into account, as one of the many factors to be considered, when ascertaining whether or not the accused had the intent to kill or cause serious harm to the deceased, at the time he was doing the unlawful act. In other words, after considering the surrounding circumstances, was the accused so drunk as to be incapable of forming an intention to kill or cause serious harm to the deceased? This is a factual question that had to be answered by considering all the witnesses' evidence and the surrounding circumstances.
16. Referring to the above example, if A, at the time he was punching, kicking and stomping on B's body, he was so drunk as to be incapable of forming an intent to kill or cause serious harm to B, then he would not be liable for murder. He would be liable for manslaughter, as the first two elements of murder, are in reality, the elements for manslaughter, that is, paragraphs 9(i) and (ii) hereof. Because A was so drunk as to be incapable of forming an intent to kill or an intent to cause serious harm, the third element of murder as described in paragraphs 9(iii)(a) and (b) hereof, were not satisfied beyond reasonable doubt by the prosecution, thus A is not liable for murder, but liable for manslaughter.
17. However, you must also note that "a drunken intent to kill or cause serious harm", is still an "intent to kill or cause serious harm in law". So, if you find from the witnesses' evidence and the surrounding circumstances that the accused, although extremely drunk, was still capable of forming an intent to kill or cause serious harm, you may find that the prosecution had proven beyond reasonable doubt the elements described in paragraph 9(iii)(a) and (b) hereof, and find the accused guilty as charged. Referring to the above example, if A when punching, kicking and stomping on B's body, was extremely drunk at the time, nevertheless was able to form a drunken intent to kill or cause serious harm to B, element three of murder as described in paragraphs 9(iii)(a) and (b) would be satisfied, and A found guilty of murder. If he was extremely drunk to the extent that he was incapable of forming an intent to kill or cause serious harm, he would not be liable for murder, but liable for manslaughter.
F. PROSECUTION'S CASE
18. The prosecution's case was simple. On Friday, the 26th May 2006, Vaione, as a Form 6 student of Suva Grammar School, sat down to drink grog with his cousin Lenaitasi Lekanagata, Lenaitasi's father and Ilisoni Kinivuwai at Lenaitasi's home. They drank grog from 7pm to 11pm. From 11pm, Lenaitasi's father left, and the rest consumed liquor. They drank beer and a 40 oz bottle of rum. Later the group were joined by Jone and Sairusi – the deceased. According to the prosecution, as the drinking continued into early Saturday morning of 27th May 2006, the group became extremely drunk.
19. The commotion started when Sairusi winked at Lenaitasi's wife. Lenaitasi and Sairusi went outside the house and resolved the matter through a fist fight. Both later came back into the house. Sairusi rested in Lenaitasi's sitting room, while Lenaitasi and Jone went to buy more liquor. Vaione saw the opportunity to re-examine Sairusi on why he winked at Lenaitasi's wife. He forced Sairusi to awake from his rest on Lenaitasi's floor. While sitting on a settee, Sairusi was repeatedly slapped and punched by Vaione. Both were drunk. Before being assaulted, Sairusi already had injuries to his eyes and face with his fight with Lenaitasi, and one earlier in the evening.
20. Josua Cakautini, ran to Lenaitasi's house when he heard Sairusi yelling out for help. He saw Vaione repeatedly punching Sairusi in the face. He said, he saw Vaione punched Sairusi 10 times. Josua said, Sairusi asked for help. He ran in and held Vaione's hand. Vaione then gave Sairusi three "rugby like" kicks to the face. According to Josua, two kicks landed heavily on Sairusi's head, while one glanced his face. Sairusi then fled outside the house followed by Vaione. Vaione later tapped Sairusi's legs and he fell on the ground. Vaione then repeatedly kicked him in the ribs. Josua ran and held Vaione's hand. Sairusi stood up and ran towards the road. He looked back, Vaione was at his back. Vaione threw a right hand punch on Sairusi's jaw. He fell and his head hit the tarsealed road.
21. Ilisoni then cautioned Vaione to stop punching Sairusi. Vaione said, "...No! This person is cheeky! This person must die!" Josua said, he saw Vaione jumped and stomped on Sairusi's head twice, while he was lying on the tarseal road. Josua said, he heard Sairusi having breathing difficulties and was snoring. He said, Sairusi's face and body were covered with blood. He was injured. Josua and Ilisoni later cleaned Sairusi's face with water.
22. On 27th May 2006, at 6.30am, Nanise Ledua found Sairusi lying in front of their compound snoring. Sairusi's face was swollen and his head was bleeding. She reported the matter to police, who took Sairusi's body to Navua Hospital at 7.05am. According to Doctor Chand, at Navua Hospital, Sairusi was unconscious, and he was transferred to CWM Hospital at 9.30am. Doctor Gabriel Tupuna saw Sairusi at CWM Hospital on 27th May 2006 at 9pm. He said, Sairusi suffered form brain injuries. He was on life support and his condition was worse. He was on high dose of drugs to support his heart pump blood to the important organs of the body. Doctor Tupuna said, he was called at 2.30am on 28th May 2006 because Sairusi's heart had stopped beating. They tried to resuscitate him for 30 minutes, but failed. Doctor Tupuna said, he pronounced Sairusi dead at 3am on 28th May 2006.
23. Doctor Prashant did a post-mortem on Sairusi on 29th May 2006. He said, the cause of Sairusi's death was "raised intra-cranial pressure due to intra-cranial hemorrhage as a complication of multiple blunt impacts to head, face and neck". The prosecution said, it was Vaione's punches, kicks and stomps on Sairusi on 27th May 2006 that caused Sairusi's brain injuries and ultimately his death. The prosecution said, at the time Vaione was assaulting Sairusi on 27th May 2006, he had the intent to kill or cause serious harm to Sairusi, and as a result, he was guilty of murder. That was the case for the prosecution.
G. THE ACCUSED'S CASE
24. When the charge was put to the accused on 20th October 2010, the accused pleaded not guilty to murder, but guilty to the lesser offence of manslaughter. When closing his case on 29th October 2010, defence counsel asked for a not guilty verdict on murder, but a guilty verdict on manslaughter. As shown in paragraph 9 hereof, the elements of manslaughter, is the first two elements for murder, that is, as described in paragraphs 9(i) and 9(ii) hereof. If the defence are admitting the offence of manslaughter, then they must be taken as admitting that:
(i) When Vaione punched Sairusi several times in and out of Lenaitasi's house, kicked his ribs and stomped his head twice on the road, on 27th May 2006, he committed multiple "unlawful acts";
(ii) Vaione's multiple "unlawful acts" in (i), were collectively the substantial and major cause of Sairusi's brain injuries, which resulted in his death.
25. When he gave sworn evidence, in his defence, on 28th October 2010, Vaione recounted how he and others consumed rum and beer after 11pm on 26th May to early morning 27th May 2006. He said, he was extremely drunk, and remembered few things. However, he could recount in court most of what happened that night. He remembered drinking grog and liquor, when Sairusi and Jone joined in, when Sairusi winked at Lenaitasi's wife, the fight between Lenaitasi and Sairusi, when he punched Sairusi in and out of the house, how he kicked Sairusi, how he and Tasi dragged Sairusi to the front of Nanise's house. However, when cross-examined, he said he couldn't remember the details of what happened that night. In other words, the accused was trying to say that he was so drunk that night, he was incapable of forming an intention to kill or cause serious harm to Sairusi, and thus, he is not guilty of murder, but guilty of manslaughter. In his evidence, he said he had no intention to kill Sairusi that night. The matters mentioned in paragraphs 24 and 25 appeared to be the main thrust of the defence's case.
26. However, in their closing submission, the defence raised the issue of causation. They said, Sairusi was involved in three fights that night. The first was at the Tiki Pool Bar, at about 1am on 27th May 2006, with one Joe. The second was with Lenaitasi, at his home, after 1am to 1.30am. The third was with Vaione, after 1.30am on 27th May 2006. The defence appeared to be asking, which blow caused Sairusi's death on 28th May 2006? In other words, Sairusi was punched several times by three different people that night, and which of these three's punch caused his death? By raising the issue of causation, the defence appeared to be undermining their defence as highlighted in paragraphs 24 and 25 hereof. In any event, even if Sairusi carried injuries as a result of his earlier fights on 27th May 2006, if Vaione's punches, kicks and stomping hastened Sairusi's death, then his "unlawful acts" caused Sairusi's death. However, this is a matter for you to decide. That is the defence case, in this matter.
H. ANALYSIS OF THE EVIDENCE
27. In this case, as assessors and judges of fact, you must pay particular attention to the following pieces of evidence:
(i) The parties "Agreed Facts", which contained 34 paragraphs of agreed facts. A copy is in your file, and you must accept those facts being proven by the prosecution beyond a reasonable doubt;
(ii) Eye witnesses at the crime scene, at the material time, that is, Ilisoni Kinivuwai (PW1), Josua Cakautini (PW2), Mere Tawakedra (PW3) and Vaione Tegu (accused). These four witnesses will tell you what occurred at the material time;
(iii) Police Officer Lavenia Qereqeretabu's booklet of photographs [Prosecution Exhibit No. 2]. The photographs tell you the facts in photographic form;
(iv) Doctor Gabriel Tupuna. He described Sairusi's medical condition while at CWM Hospital, and pronounced him dead on 28th May 2006 at 3.05am;
(v) Doctor Prashant's handwritten post-mortem report [Prosecution Exhibit No. 5] of Sairusi Seganaluvena, dated 29th May 2006, and Doctor H. J. M. Perera's explanation of the same in her evidence. The body is a vital piece of evidence and it tells you how the deceased died;
(vi) The accused's police caution interview statements [Prosecution Exhibit No. 3A and 3B], dated 28th May 2006. The accused made some confessions in this statement;
(vii) The accused's police charge statement [Prosecution Exhibit No. 6A and 6B], dated 29th May 2006. The accused made some confession in this statement.
28. We will now analyze the facts as it relates to the three essential elements of murder.
Vaione Tegu did "an unlawful act": paragraph 9(i) hereof:
29. On the first element of murder, that is, that Vaione Tegu committed "unlawful acts" on Sairusi Seganaluvena, on 27th May 2006,
when Vaione assaulted Sairusi in and out of Lenaitasi's house, the parties appear not to disagree on this issue. First of all, when
the murder charge was put to Vaione at the start of the trial, he pleaded not guilty to murder, but guilty to the lesser offence
of manslaughter. By pleading guilty to manslaughter, the presumption is that he is admitting that he committed an "unlawful act"
or "acts" against Sairusi Seganaluvena, at the material time. The elements of manslaughter is the first two elements of murder, that
is, as described in paragraphs 9(i) and 9(ii) hereof. By pleading guilty to manslaughter, Vaione is admitting that he did "an unlawful
act or acts" against Sairusi, on 27th May, 2006.
30. Second, in his closing submission, Vaione's Counsel, ask you, as assessors and judges of fact, to return with a verdict of not guilty on murder, but guilty of manslaughter. They are repeating to you, what they said at the beginning of the trial, that is, they accept that Vaione did "an unlawful act or acts" on Sairusi on 27th May 2006. They are admitting the first element of murder that Vaione did an unlawful act or acts, on Sairusi on 27th May 2006.
31. Third, in his own evidence, Vaione admitted he punched and kicked Sairusi several times, in Lenaitasi's sitting room, but couldn't remember the amount of punches and kicks he did at the time, because he was drunk. Vaione, in his evidence, said, he remembered Sairusi fleeing outside Lenaitasi's house, and he pursuing him. He said, he remembered throwing a punch at Sairusi outside Lenaitasi's house. He said, he can't recall what occurred after that. So, in a sense, in his own evidence, Vaione admitted assaulting Sairusi in and out of Lenaitasi's house, on 27th May 2006. In other words, Vaione admitted, in his own evidence that, he committed "unlawful acts" against Sairusi, in and out of Lenaitasi's house, on 27th May 2006.
32. Fourthly, when caution interviewed by police on 28th May 2006, (a day after the incident), Vaione admitted punching, kicking and stomping on Sairusi on 27th May 2006. His caution interview statements were tendered in evidence. See questions and answers 48, 49, 51, 52, 53, 54, 55, 56, 66, 67, 70, 71, 72, 75, 76 and 77. In answers to the above questions, Vaione admitting punching, kicking and stomping on Sairusi on 27th May 2006. When formally charged by police on 29th May 2006, Vaione admitted punching and kicking Sairusi in the jaw on 27th May 2006. Vaione's admission to the police in his caution interview and charge statements were not challenged by the defence, in "a trial within a trial". In other words, the defence did not challenge that Vaione's above admissions were made voluntarily and out of his own free will. A confession is strong evidence against its maker, provided you, as assessors and judges of fact, are satisfied beyond reasonable doubt that it was given voluntarily by its maker, that is, it was given out of his own free will. Nothing in the evidence suggested that the above evidence was obtained by assaults, threats or unfair promises to Vaione during his caution interview and formal charging. If you are satisfied beyond reasonable doubt that Vaione gave his admissions voluntarily, you are entitled, as assessors and judges of fact, to accept his admission.
33. Fifthly, three eye witnesses, that is, Ilisoni Kinivuwai (PW1), Josua Cakautini (PW2) and Mere Tawakedrau (PW3), said in their evidence that they saw Vaione punching, kicking and stomping on Sairusi, on 27th May 2006. It was therefore apparent that the parties do not disagree that Vaione committed "unlawful acts" against Sairusi on 27th May 2006 when he repeatedly punched, kicked and stomped on Sairusi. The first element of murder is therefore not disputed by the parties.
Vaione's "unlawful acts caused Sairusi's death": paragraph 9(ii) hereof:
34. This is the second element of murder. We will start from the post-mortem handwritten records of Doctor Prashant, dated 29th May
2006, tendered as Prosecution Exhibit No. 5. Doctor Prashant conducted a post-mortem on Sairusi's body on 29th May 2006, and recorded
his findings in his post-mortem handwritten record. He recorded the cause of Sairusi's death as follows, "...raised intra-cranial
pressure due to the intra-cranial hemorrhage as a complication of multiple blunt impact to head, face and neck..." Doctor Parshant
was not present at the trial, and Doctor H. J. M. Perera, a well qualified forensic pathologist, stood in for Doctor Prashant, to
explain his handwritten post-mortem report record.
35. In describing the cause of death in Doctor Prashant's post-mortem records, Doctor Perera said the following, "...The time of death is 3.05 am, 28th May 2006. Injuries: collection of blood on the top and side of the skull, on both sides. Collection of blood on the back of the head. Blows with a blunt object or it could be a fall that caused the above injuries. On the top of the skull, it is more with a blow with a blunt object.
Brain: in the brain, there is a covering of the brain called "dura" and underneath that, there is blood clot and this blood clot is occupying the sides and top of the brain and it weighs 35 grams. There are 2 possible explanations – one is a blow to the head. Secondly, a fall could cause the blood clots and that kind of fall which cause this blood clot is a forceful fall.
Any other Pathological Sign: Potine hemorrhage is bleeding into the brain stem. It is under the main brain and it is a small structure. There are two causes of the above. First, the bleeding in the brain, causes abnormal pressure to go down to the potine part of the brain (command centre) and this potine part of the brain controls the heart, breathing and maintaining consciousness. The second way of causing the injury, is by blow to the head. A blow to the head causes blood clots and can cause blood clots in the pons, which controls heart, breathing and consciousness.
As the pontine blood clots, the person loses consciousness and the pontine blood clot is incapable of survival and the person almost always dies. When there is blood clot in the pons, no treatment can save him..."
36. According to Doctor Perera, the brain injuries were caused by blows with a blunt object to the head, or a heavy fall on a hard surface. The parties, while discussing the first element of murder, do not dispute that Vaione punched, kicked and stomped on Sairusi on 27th May 2006. Vaione himself, admitted punching, kicking and stomping on Sairusi on 27th May 2006, in his police caution interview statement and charge statement. Josua (PW2) said, he saw Vaione punched Sairusi 10 times in Lenaitasi's sitting room, then Vaione gave two hard "rugby kicks" at Sairusi's head. Josua said, Sairusi fled outside the house and was pursued by Vaione. Vaione tapped Sairusi on the leg, he fell and Vaione kicked him in the ribs. Sairusi stood up and fled to the road, he looked back, and Vaione punched him on the jaw and he landed heavily on the tarseal road, hitting his head on the same. Josua said, Sairusi was unconscious thereafter, and had difficulties with his breathing. According to Josua, there were blood all over Sairusi's head and body. Ilisoni (PW1) and Mere (PW2) appeared to confirm Vaione punching and kicking Sairusi. Josua said, Vaione jumped and stomped on Sairusi's head, while he was unconscious on the tarseal road. Was it possible that Vaione's punches, kicks and stomping on Sairusi's head were the "blows" with a blunt object" or "heavy fall" that Doctor Perera said caused Sairusi's brain injuries on 27th May 2006? Was it possible that Vaione's repeated punches, kicks and stomping on Sairusi's head on 27th May 2006 caused Sairusi's brain to bleed and thereafter resulting in the pontine bleeding which resulted in unconsciousness and difficulty in breathing? These are some of the questions you, as assessors and judges of fact, will have to answer in this case, after considering all the evidence.
37. In any event, when the plea was put to the accused, at the start of the trial, he pleaded not guilty to murder, but guilty to manslaughter. In other words, he was admitting to the first two elements of murder, that is, as described in paragraphs 9(i) and 9(ii) hereof. The first two elements of murder are really the only two elements for manslaughter. Vaione repeated the above stand when he was closing his case, through his counsel. He was admitting, through his above stand that, his punching, kicking and stomping of Sairusi on 27th May 2006, caused his brain injuries, and consequently his death.
38. However, during his closing submission, Vaione, through his lawyer, contradicted herself, when she suggested that it was possible that Vaione's punches, kicks and stomps did not cause Sairusi's death on 27th May 2006, because he earlier had fights with Lenaitasi and one Joe. However, in his fight with Joe, Sairusi still managed to walk to Lenaitasi's house. Sairusi was still well enough to walk to Lenaitasi's house, although he may be carrying some injuries. In his second fight with Lenaitasi, at his house, Sairusi after the fight was still well and strong enough to walk into Lenaitasi's house and rest, although he was injured. It was after the fight with Vaione, which according to the evidence was one-sided, that Sairusi became unconscious and started to have breathing problems. After Vaione's "unlawful acts", Sairusi became unconscious and was in a coma, until he died. As matter of law, if your "unlawful acts" hastened the death of an injured person, you are liable for his death. It would appear therefore that the parties accepted that Vaione's "unlawful acts" on 27th May 2006 caused Sairusi's death on 28th May 2006. In any event, it is a matter for you to decide.
That at the time of Vaione's unlawful acts, he either had the intent to kill, or cause serious harm to Sairusi: paragraph 9(iii)(a)
and (b) hereof:
39. This is the last legal hurdle that the prosecution must prove beyond reasonable doubt, to turn a manslaughter into murder, that
is, at the time Vaione punched, kicked and stomped Sairusi to unconsciousness and then death, he intended to kill Sairusi or intended
to cause him serious harm. This issue is disputed in this trial. The defence's position was that Vaione was so drunk from consuming
beer and rum, at the time, that he was incapable of forming an intention to kill or cause serious harm to Sairusi. On the other hand,
the State's position was that, although Vaione was extremely drunk, at the time, he was still capable of forming an intent to kill
or seriously harm Sairusi at the time. A drunken intent, according to the State, is still an intent, in law.
40. We have heard from Ilisoni Kinivuwai (PW1), Mere Tawakedrau (PW3) and Vaione himself, how Vaione and his friends drank beer and rum after grog on 26th May 2006 (11pm) to early morning 27th May 2006 (1am to 3am). According to the defence, Vaione was extremely drunk at the time, that he could not remember what he did that night. The defence said, he was so drunk, he didn't know what he was doing. In his evidence, Vaione said, he didn't intent to kill Sairusi. Vaione said, he couldn't remember most of the things that happened on 27th May 2006, because he was extremely drunk. In other words, the defence is saying that Vaione, at the material time, was so drunk to the extent that he was incapable of forming an intention to kill or seriously harm Sairusi.
41. On the other hand, the State said, that Vaione, although extremely drunk at the time, was still capable of knowing what he did. A drunken intent, according to the State, is still an intent in law. According to Josua (PW2), as he passed Lenaitasi's house, at the time, he heard Sairusi calling out for help, "...Olei, me'u bula!" "Olei, I want to live!" Josua rushed to the house, and saw Vaione landing more than 10 punches on Sairusi. Josua rushed in and held Vaione's hands, nevertheless Vaione gave Sairusi three hard "rugby kicks" to the head. Sairusi fled the house, pursued by Vaione. Vaione tapped Sairusi's legs, and he fell to the ground. Vaione then kicked Sairusi in the ribs. Sairusi stood up and ran to the road. He looked back and met a right hand punch to the jaw from Vaione. Sairusi fell hard on the tarseal road surface and was unconscious. Ilisoni (PW1) called out to Vaione to stop. Vaione responded by saying, "...No! This person is cheeky! This person must die!" Vaione then jumped and stomped Sairusi's head twice. Josua (PW2) and Ilisoni (PW1) saw the above. Josua said, he heard Sairusi snoring and having breathing difficulties. According to the State, the above evidence does show, that although Vaione was drunk at the time, he was capable of forming an intent to kill or seriously harm Sairusi. According to the State, Vaione said, Sairusi must die because he was a cheeky person. After saying that, he jumped and stomped on Sairusi's head, while he lay unconscious on the road. According to the State, his words and actions mentioned above showed that, although drunk, Vaione had the capacity and did intent to kill or cause serious harm to Sairusi. Even Vaione, when giving evidence said, he remembered punching Sairusi in and outside Lenaitasi's house. He also remembered kicking Sairusi outside.
42. As a matter of law, self-induced intoxication is no defence to a criminal charge. However, you must take it into account, as one of the many factors to be considered, when determining whether or not Vaione had formed an intention to kill or seriously harm Sairusi, at the time he was punching, kicking and stomping on him, on 27th May 2006. You must analyze the evidence given in the light of the above direction. Whether or not you accept the defence or State's version of events, on this issue, is a matter for you, as assessors and judges of facts.
I. SUMMARY
43. You have heard the evidence of all the prosecution and defence witnesses. You have observed their demeanour in the courtroom. You have seen how they dress and behave in the courtroom. You have observed them give evidence, and how they respond to cross-examination. Were they forthright or were they evasive? Were they argumentative? Given the above, my directions on the law, your life experiences and common sense, you should be able to decide which witnesses' evidence or part of his evidence is reliable and therefore to accept, and which witnesses' evidence or part of his evidence is unreliable and therefore to reject, in your deliberation.
44. Remember, it is for the prosecution to prove Vaione's guilty beyond reasonable doubt. It is not for Vaione to prove his innocence. The burden of proof lies on the prosecution to prove Vaione's guilt beyond reasonable doubt, and that burden stays with them throughout the trial, and it never shifts to Vaione, at any stage of the trial. If you accept the prosecution's version of events and you are satisfied beyond reasonable doubt and are sure of Vaione's guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt and are not sure of Vaione's guilt, you must find him not guilty as charged.
45. Your possible opinions are as follows:
(i) Murder - Guilty or Not guilty
(ii) Only if Not Guilty of Murder - Guilty or Not Guilty of Manslaughter
46. You may retire to deliberate. Once you have reached your decision, please advise our court officer, so that we can reconvene to receive them.
Salesi Temo
ACTING JUDGE
AT Suva
3rd November 2010
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URL: http://www.paclii.org/fj/cases/FJHC/2010/489.html