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State v Salaiwai [2010] FJHC 64; HAC044.2009 (26 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC044 OF 2009

STATE

V

SAUBALAVU SALAIWAI

Counsel: Ms T. Leweni for State
Mr. T. Terere for Accused

Hearing: 25th February 2010
Summing Up: 26th February 2010

SUMMING UP

Madam Assessors and Gentleman Assessor

[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 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.

[4] 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.

[5] The accused is charged on two counts. The evidence on each count must be considered separately. On count 1, the accused is charged with attempted murder, and on count 2 he is charged with common assault. Both counts relate to the same incident and the same complainant, Navneet Prasad.

[6] Before you can convict the accused for attempted murder you must be satisfied beyond a reasonable doubt of the following elements:

(1) Firstly, that the accused intended to kill, and

(2) Secondly, with that intention, he did something which was more than mere preparation for committing the act of stabbing. It is for you to decide whether what the accused did was more than mere preparation.

[7] To convict the accused for common assault, the following elements must be satisfied beyond a reasonable doubt:

1. A striking, touching or application of force or threat of striking, touching or application of force.

2. That it be without consent.

3. That it be intentional.

4. That it was without lawful excuse.

[8] In this case, the defence does not dispute that the accused stabbed the complainant with a knife causing serious bodily injuries to him. Also, the defence does not dispute that after stabbing the complainant with a knife, the accused returned to the complainant and hit him while he was lying on the floor.

[9] The remaining issue is the intentions of the accused when he stabbed the complainant with a knife and when he hit him while he was lying on the floor. On count 1, the issue is whether the act of stabbing the complainant with a knife was done with an intention to kill him. On count 2, the question is whether the accused intentionally hit the complainant and that his act was not accidental.

[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 offences. 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 continue 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 stabbing and hitting the complainant was suffering from a disease of the mind;

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

3. Did not know that what he was doing was wrong.

Facts

[16] The prosecution and the defence have agreed on the facts of the case. You must accept the agreed facts to be proven beyond a reasonable doubt.

[17] On 24 March 2009, the accused was working as a security guard at Kundan Singh Supermarket. The victim, Navneet Prasad, is an employee of Kundan Singh Supermarket. At around 5pm, the victim was at a counter assisting a cashier with packing.

[18] The accused approached the victim and warned him not to talk to the cashier. The accused claimed the cashier was his wife. The cashier as a matter of fact was not the wife of the accused. After warning the victim, the accused walked to the back of the supermarket and returned to the counter with a kitchen knife. He stabbed the victim with the knife, wounding the right side of his shoulder. The victim fell on the floor. While on the floor the accused stabbed the victim again with the knife but the victim deflected the assault by using his left hand.

[19] The victim’s left hand was wounded. The victim went unconscious. The accused then fled the scene. The victim was rushed to the Suva Private Hospital. He sustained serious injuries to his body. His medical report is in evidence and you may give such weight to it which you consider fit.

[20] The caution interview of the accused is not in dispute. The accused said he does not recall stabbing the victim with a knife. He recalls his finger being injured. He ran outside crying for help. He saw the victim on the floor. He did not see the victim was covered in blood. The reason he yelled out for help was because he was injured. Nobody came to his rescue. He ran away to save his life. He said he saw he was the only one who was injured. He was the only one who was covered with blood. He ran down the street until he lost track. He was rescued by the police.

[21] In this regard you heard the undisputed evidence of Dr. Narayan who was called by the defence as an expert witness. 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. It is not in dispute that the accused was a patient of The St. Giles Hospital before the date of the alleged offences.

[22] In 2005 and 2006, respectively, the accused was diagnosed and treated for schizophrenia. When the accused was referred back to the hospital after a month from the alleged offences, Dr. Narayan’s clinical finding is that the accused had relapsed into schizophrenic illness. Dr. Narayan’s opinion is that the accused suffered from mental illness at the time of the commission of the alleged offences and that the accused is not responsible for his actions in accordance with the M’Naughten rules, meaning, that at the time of committing of the act, the accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing, or if he did know he did not know what he was doing was wrong.

[23] The psychiatric report of Dr. Narayan is in evidence. You may give such weight to the report as what you think is fit.

[24] The nature of Dr. Narayan’s evidence is very clear. In May 2005, the accused was diagnosed to be suffering from a severe form of mental illness called schizophrenia. He was discharged from the St. Giles Hospital in June 2005. In March 2006, he returned to the hospital after becoming sick. After his discharge in 2006, he was lost to follow up by the St. Giles Hospital and he had not been on medication since then. When he was returned to the hospital a month after the alleged incident, he was diagnosed with relapsed schizophrenia.

[25] You may think, that on the basis of this compelling evidence, that there is no doubt at all that the accused stabbed and hit 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 offences whilst insane. However, this is a matter for you to decide for yourselves.

[26] If you are of the view that it is more likely than not that he was sane at the time he stabbed and hit the victim then the proper opinions would be guilty on both counts.

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

[28] Your possible opinions on each count are guilty or not guilty by reason of insanity.

[29] 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.

[30] 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 Suva
26th February 2010