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State v Bola - Summing up [2010] FJHC 67; HAC004.2008 (3 March 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 004 OF 2008

BETWEEN:

STATE
PROSECUTION

AND:

JOSAIA BOLA
ACCUSED PERSON

Counsel: Ms. George W - For State
Ms. Vaniqi S - F or Accused Person

Date of Hearing: 22/02/10; 23/02/10; 25/02/10; 26/02/2010.
Date of Summing Up: 03/03/2010

SUMMING UP

Madam and gentleman Assessors.

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.

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.

The Counsels for the prosecution and defence made submissions to you about the facts of this case. That is their duty as State Counsel and Defence Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.

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.

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.

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.

Your decision 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.

Your duty is to find the facts based on the evidence apply the Law to those facts.

The accused is charged with the offence of manslaughter i.e. that the accused by an unlawful omission caused the death of Naibuka Daunitoko.

The elements of the offence are that the accused by an unlawful omission caused the death of the deceased.

The Prosecution has to prove the following beyond reasonable doubt.

1. The existence of a duty of care for the deceased by the accused.

2. That the accused breached that duty of care by an unlawful omission which caused the death of the deceased.

An unlawful omission is an omission amounting to culpable negligence to discharge a duty tending to the preservation of life or health, whether such omission is or is not accompanied by an intention to cause death or bodily harm.

On the establishment of such breach of duty the next question before you is whether that breach caused the death of the victim, and if so whether it should be characterized as gross negligence and therefore as a criminal act. It is a question for you to decide whether having regard to the risk of death involved, the accused’s conduct was so bad in all circumstances as to amount to a criminal omission.

The Evidence

There are some facts in this case which are agreed by both sides and you may accept them as if you had heard them led in evidence from the witness box.

On behalf of the prosecution 11 witnesses gave evidence.

PW1 Ilaisa Tawake giving evidence said that on 14/12/2005 accused borrowed his outboard engine to go to sea and that he cannot remember when and who returned his engine.

PW2 Salanieta Kotoisuva said in court that on 14/12/2005 when she was at the church verandah she saw two people coming and the deceased was carrying the engine. When she asked the accused as to where they were heading accused has said that they are going out to the reef.

PW3 Ledua Vakaloloma’s evidence was that on 14/12/2005 when she was at home deceased had come and asked for a pair of gum boot for him to wear to go to the sea. Further deceased has said that he will be accompanying the accused out to the reef. She had told him not to go to the sea as he could not swim.

PW4 Waqa Savou giving evidence said on the 15/12/2005 when he was loading coconuts into the ship at about 11.00am he had asked the accused about the deceased and his respond had been that the deceased was drinking grog at Levukaidaku.

PW5 Joseva Daunitoka’s evidence was that the deceased was his nephew. On 14/12/2005 evening his wife had told him that the deceased had gone with the accused to the reef to collect beach-de-mer. On 16th December 2005 when he telephoned the accused to inquire about the deceased, accused has said that they returned together and that the deceased is the one who carried the outboard engine back. Later he had called the accused again to inquire as to whether he had seen the deceased board the ship namely ‘Taikabara’ the accused had said that he did not know.

Then the witness had asked his brother in Suva to see whether the deceased had gone to Suva. When he was still waiting for a reply some villagers has brought the body of the deceased to the village.

PW6 Ulaiasi Savu said in court when he was fishing with his nephew at Qanisici passage on 16/12/2005 about 5.30pm they found the body of the deceased floating. They have gone back ashore to get assistance of his wife and had brought the body back and informed the deceased’s uncle. Further he said it takes about 7 minutes to go to Qanisici from the village by boat and takes around 40 minutes to swim.

PW7 Isireli Cakacaka father of the accused also gave evidence.

On 16/12/2005 when the body of the accused was brought by the villagers he has telephoned his son accused, to come to their village as he was the person who accompanied the deceased to sea. On 17th when they were preparing (earthern oven) food for the funeral feast the accused had arrived. When he asked the accused as to why he gave wrong information to the villagers the accused had remained silent. On the 18th the village Headman had called them to record their statements and when the village Headman Suguturaga asked, the accused has said that he gave incorrect information as he was scared of the father PW7.

PW8 Apolosa Suguturaga, the village headman said the body of the deceased was found on 16/12/2005 and the post-mortem held on 17/12/2005. On 18th December 2005 he had called the accused and his father because he was not satisfied with the answers given earlier by the accused with regards to the whereabouts of the deceased. On questioning the accused had said that the deceased was missing and he looked for the deceased. He was not able to find him and then he returned alone. Further he had told that he did not tell anyone else about it.

PW9 Sergeant Nacanieli Bulisea who is the Charging Officer said that the accused was charged formally on 4/12/07 in Fijian Language. During the charge process accused had made no complaint.

PW10 Sergeant Isoa Natui in his evidence said that he is the Investigating Officer of this case. He is also the interviewing officer. He is attached to the Major Crime Unit at CID. Initially as a case of Drowning Corporal Pita of Moala Police Post had investigated and after the post mortem when the result showed that the cause of death was not drowning he conducted the investigations. According to his evidence he had interviewed the accused and the accused had given a statement voluntarily. Caution Interview statement was marked in evidence as an exhibit. He was cross-examined at length and he said that the accused fully cooperated with him and explained as to how he tried to rescue his cousin the deceased. Answering to the questions put to him by the counsel for defence he said after the post mortem was held the accused had given a plain statement to Corporal Pita on 1/1/2006 and according to the statement it was made after 2 weeks of the incident. The plain statement was marked in evidence as exhibit of Defence. Even in the plain statement accused has explained what happened.

Final witness for the prosecution was the Consultant Forensic Pathologist Dr Jean Perera. Her qualifications as a Forensic Pathologist was not challenged by the Defence. Dr Perera gave evidence based on the post mortem report prepared by the then Forensic Pathologist Dr Prashant as Dr Prashant has left Fiji to Malaysia. She told you that the cause of death of the deceased Naibuka Daunitoka is "diffuse edema and subarachnoid haemorrhage on the back of head due to blunt impact". Further she said in her opinion the blunt impact could have caused by a blow to the head with an object, could be the head striking a blunt object, or even a fall, and that even could be because of the head hitting the edge of the reef, and even could be by sleeping on the reef and falling backwards, or the head hitting the edge of the boat. There had been another injury on the right eye where the eye lids showed swelling and blackening. The witness said that injury can be a contusion or may be an accompaniment of Putrefaction.

She further said according to the post mortem report estimated time of death is 7.00pm on 14/12/2005 and she explained to you how the estimated time is decided.

When the prosecution case was closed you heard me explained several options to the accused. He could remain silent, to give evidence on his own behalf, or to make an unsworn statement, and to call witnesses on his behalf.

The accused opted to remain silent and it is his right to do so as he has nothing to prove and burden is on the prosecution to prove the case beyond reasonable doubt.

If I did not mention a particular witness or a particular piece of evidence that does not mean its unimportant; you should consider and evaluate all the evidence in coming to your decision.

Analysis - The written agreed facts are before you. Agreed facts include that the accused and the deceased failed to get beche-de-mer and the accused decided to return to his village. It is also agreed that the deceased followed and then called out that his gumboots were heavy as they were filled with sea water. It is also further agreed that the deceased was carried out by the tide. It is agreed that the accused managed to swim towards the deceased and removed his gumboots. It is also agreed that there was a swift current and the accused swam back to the reef and the boat and could hear the deceased calling him. It is also agreed that the accused told the deceased for him to stay where he was and once in the boat the accused tried to find the deceased. It is also agreed that the accused could not find the deceased although he called, searched, and shone the torch in the area. It is further agreed that around 2.00am, the accused returned to the village without the deceased.

It is further agreed that on 15/12/2005 at about 11.00am when Waqa Savou met and asked the accused about the deceased the accused responded that the deceased was still drinking grog in another village. It is further agreed that even on 16/12/2005 morning when Daunitoko called the accused and asked for whereabouts of deceased, accused said that they returned together. All other agreed facts are before you.

When considering all the evidence including the agreed facts before you it is a matter for you to decide whether the accused breached the duty of care for the deceased when he omitted to inform the villagers initially what happened and whether that omission caused the death of the deceased.

If you find that the prosecution has proved those elements beyond reasonable doubt you may find the accused guilty of manslaughter. If you have a reasonable doubt about any of the elements of the offence you must find him not guilty. Your possible options are guilty or not guilty.

I will now ask you to retire.

Priyantha Fernando
Puisne Judge

03/03/2010