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State v Koroi [2010] FJHC 81; HAC189.2008 (9 March 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 189 of 2008

BETWEEN:

THE STATE

AND:

MEREONI KOROI

Counsel: Ms P. Madanavosa for State
Ms S. Vaniqi for Accused

Date of Hearing & Summing Up: 9th March 2010

SUMMING UP

[1] Madam and Gentlemen Assessors, it is now my duty to sum up this case to you. You will then be required to deliberate together and each of you must give a separate opinion whether the Accused is Guilty or Not Guilty of the charge. I will then pronounce the judgment of the Court and your opinions will carry great weight with me in deciding that judgment.

[2] In coming to your opinions you must apply the law as I explain it to you. It is my duty to direct you on the law. Those directions on the law must be followed by you.

[3] However, you decide the facts of the case. As I speak to you, you may feel that I have formed some view on a particular question of fact. If you disagree, then please feel completely free to disregard my version. All matters of fact are for you and you alone. 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 decide whether your opinion is guilty or not guilty.

[4] You must come to that decision solely upon the evidence you have heard from the witnesses, which includes the exhibits that have been produced. If you have previously heard anything about this case or the people involved, through the media or some other source – you must ignore that completely.

[5] The law requires that the Accused is to be judged solely upon the evidence sworn to in this Court. In considering that evidence you are expected to apply your common sense and everyday knowledge of human nature and people. You must please put aside any feelings of prejudice or sympathy which may occur to you one way or the other and arrive at your opinions calmly and dispassionately. The law should be applied in a gender-neutral way, without any value-laden pre-conceptions about the conduct of men and women, or couples in a relationship. The law does not have different rules about assaults on women, or men. So you must be dispassionate and neutral in your approach to the case.

[6] You have seen photographs which have been tendered in evidence. Two photographs depict the body of the deceased. You must look at them dispassionately and objectively. They are intended only to show you the injuries.

[7] The charge against Mereoni Koroi (the Accused), is set out in the information that you each have a copy of. This charge is brought by the State and the onus of proving it rests on the State from beginning to end. There is no onus on the Accused at any stage to prove her innocence or to prove anything else. She does not need to give evidence. The law is that the State must prove the essential ingredients of the charge beyond reasonable doubt before there can be a finding of guilty. This means that before you express an opinion that the Accused is guilty, you must be satisfied so that you are sure of her guilt. If you have any reasonable doubt about the guilt of the Accused, then you must express an opinion of not guilty. It is only when you are satisfied so that you are sure of guilt, that you may express an opinion of guilty.

[8] The Accused is charged with murder. The State alleges that the Accused on the 18th day of November 2008 at Suva in the Central Division murdered Savenaca Cavalevu.

[9] There are three ingredients that must be proved for the offence of murder:

1. That the Accused did an unlawful act.
2. That this unlawful act caused the death of the victim.
3. That the Accused acted with malice aforethought.
   

[10] In this case, the first two elements are not in dispute. Only the third element is in dispute. I will now explain these three elements to you.

[11] 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 or defence of others. If a person intentionally strikes another person without legal justification then that is a criminal assault. In such circumstances a person who deliberately punches, kicks or hits another with a weapon is committing an unlawful act.

[12] In this case the State alleges that the Accused stabbed the deceased using a knife, which caused his death. If that is what happened then that would be an unlawful act.

[13] 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.

[14] 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 or state of mind.

[15] It is an intention to cause death or grievous harm to the victim or knowledge that death or grievous harm would probably be caused, accompanied by indifference whether it is caused or not, or by a wish that it may not be caused.

[16] Grievous harm means any bodily hurt which seriously or permanently injures health or which is likely to seriously or permanently injure health.

[17] Therefore the State must prove that the Accused stabbed the deceased causing his death and at that time she intended to cause serious or permanent injury to the deceased or she knew that serious or permanent injury would be likely to be caused to the deceased and she nevertheless went ahead and did it being indifferent, that is having no concern one way or the other, whether serious or permanent injury was caused or not or that she did it wishing or hoping that such injury would not be caused.

[18] A person’s state of mind is as much a question of fact for you to determine as any other question of fact. It is not possible to have direct evidence of this. No witness can look into the Accused’s mind and describe what she was thinking at any particular time. However, it is something that can often be inferred from all the proved facts and circumstances.

[19] They include, for instance, what the Accused herself actually did. That will often be a very important matter. A person’s actions, in themselves, may clearly show her purpose or intention. Other matters that may be relevant are what the Accused said and did before the alleged offence. What the Accused said at the time of the alleged offence. What the Accused said and did after the alleged offence, including her statement to the police.

[20] In this case, you heard evidence that before the act of stabbing, the Accused had consumed alcohol. There is evidence that she drank throughout the previous evening and during the daytime on 18 November 2008, before the stabbing took place. In her caution interview, the Accused said she did not intend to kill the deceased because she was drunk. You must not find the Accused guilty unless you are sure that the Accused, when she did the act of stabbing, intended to kill or cause grievous harm to the deceased. In deciding whether she intended to kill or cause grievous harm you must take into account the evidence that she was drunk. If you think that, because she was so drunk, she did not intend or may not have intended to kill or cause grievous harm, then you must find her not guilty of murder but guilty of manslaughter. This means that the Accused did an unlawful act that caused the death of the victim but it is not proved that the Accused had the necessary intention to kill or cause grievous harm. She would then be guilty of the crime of manslaughter, even though the fatal consequences or causing grievous harm was not intended or contemplated by her. But if you are sure that, despite her drunkenness, she intended to kill or cause grievous harm to the deceased then this element of the charge is proved against her. A drunken intent is still intent.

[21] You should consider all the proved facts and circumstances, including those I have just mentioned, and from them you are entitled to draw proper inferences as to the Accused’s beliefs, knowledge, purposes and intentions.

[22] If you are sure that the Accused unlawfully killed the victim, intending to kill the victim, or to cause the victim really serious injury, then the Accused is guilty of murder unless you conclude that this was or may have been a case of provocation. Provocation is not a complete defence, leading to a verdict of ‘Not guilty’. It is a partial defence, reducing what would otherwise be murder to the lesser offence of manslaughter. Because the prosecution must prove the Accused’s guilt, it is for the prosecution to make you sure that this was not a case of provocation, and not for the Accused to establish that it was.

[23] Provocation has a special legal meaning, and you must consider it in the following way.

[24] Firstly, you must ask yourselves whether the Accused was provoked in the legal sense at all. A person is provoked if she is caused suddenly and temporarily to lose her self-control by things that have been said and/or done by the deceased rather than just by her own bad temper. The defence says the Accused was provoked by the abusive manner in which the deceased treated her and by the suggestion that he wanted to perform a sexual act on the girlfriends of the Accused. There is also evidence of previous history of abuse by the deceased on the Accused. Although provocation which reduces murder to manslaughter applies only if the act of the Accused is committed suddenly upon a provoking event, that does not require you to ignore past behavior of the deceased, since an incident which is trivial when examined in isolation might nonetheless be one which might cause a reasonable person to react explosively in the context of provocation over an extended period.

[25] If you are sure that the Accused was not provoked in that sense, the defence of provocation does not arise, and the Accused is guilty of murder.

[26] But if you conclude that the Accused was or might have been provoked, in the sense which I have explained, you must then go on to weigh up how serious the provocation was for this Accused. Is there anything about this Accused which may have made what was [said and/or done] affect her more than it might have affected other people?

[27] Finally, having regard to the actual provocation and to your view of how serious that provocation was for this Accused, you must ask yourselves whether a person having the powers of self-control to be expected of an ordinary, sober person, of the Accused’s age and sex (a woman in her early thirties), would have been provoked to lose her self-control and do as this Accused did. If you are sure that such a person would not have done so, the prosecution will have disproved provocation, and the Accused is guilty of murder. If, however, you conclude that such a person would or might have reacted and done as the Accused did, your opinion would be ‘Not guilty of murder, but guilty of manslaughter by reason of provocation.’

[28] 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. However, there are some comments that I must make on a few items of evidence.

[29] The Accused was interviewed at the Central Police Station on 19 November 2008 by police. The record of interview (P11) contains statements of the Accused. On 20 November 2008, she was formally charged and a statement (P11) obtained from her. The caution statements of the Accused are evidence for and against her. What weight you give to those statements is a matter entirely for you.

[30] Evidence has been given about a post mortem examination of the deceased’s body. That examination was conducted by Dr. Buadromo at the CWM hospital and she prepared a report of her findings. The post mortem report (P14) revealed that the deceased died due to excessive blood loss as a result of stab wounds on the chest.

[31] In this case, the Accused elected not to give any evidence but to remain silent. That is perfectly her right and you must not draw any adverse inference against the Accused for exercising her right. The burden remains on the prosecution through out the trial to prove the charge beyond a reasonable doubt.

[32] I will now remind you of the evidence led by the prosecution and the defence. In doing this it would be tedious and impractical for me to go through the evidence of every witness in detail and repeat every submission made by counsel. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence or a particular submission of counsel that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.

[33] The prosecution and the defence have agreed to certain facts. You have been given copies of the Agreed Facts. The Agreed Facts are part of the evidence and you should accept these Agreed Facts as accurate and the truth. They are, of course, an important part of the case. The agreement of these facts has avoided the calling of a number of witnesses, and thereby saved a lot of court time.

Analysis

[34] The undisputed evidence is that the Accused and the deceased were in a relationship and was living together in a room at Kings Hotel. The deceased was living of the earnings of the Accused. On 18 November 2008 the Accused stabbed the deceased on the chest, causing his death. If you accept this evidence, then you may think that it has been proven beyond a reasonable doubt that the Accused committed an unlawful act of stabbing the deceased with a knife, and that unlawful act of stabbing caused the death of the deceased. Therefore the real questions you have to decide are whether the Accused had malice aforethought and whether she was provoked in the sense I explained earlier.

[35] The prosecution says that the Accused intended to at least cause serious harm to the deceased when she stabbed him twice on the chest with a kitchen knife (P13). The prosecution says that the magnitude of the two wounds were so serious that it pierced through the heart of the deceased. The prosecution submits that the element of malice aforethought has been proven. The prosecution further says that when the Accused stabbed the deceased she was not acting under provocation. The prosecution submits that the conduct of the deceased was not such as to cause a reasonable and sober woman in her thirties to do what the Accused did. The prosecution invites you to reject the defence of provocation and find the Accused guilty of murder.

[36] The defence says that the Accused was so drunk, she did not intend or may not have intended to kill or cause grievous harm. The defence invites you to find the Accused not guilty of murder but guilty of manslaughter. The defence further says that in any event, if you find the element of malice aforethought proven beyond a reasonable doubt, the Accused is not guilty of murder but of manslaughter by reason of provocation. The defence invites you to consider the history of abuse of the Accused by the deceased and the events on 18 November 2008 that led to the incident of stabbing. The defence says that the Accused lost her self control when the deceased suggested to her that he wanted to perform a sexual act on the girlfriends of the Accused. The defence says the Accused acted under provocation when she stabbed the deceased.

[37] You must evaluate all the evidence to consider whether the charge has been proven.

[38] If you are not satisfied beyond a reasonable doubt that the Accused had malice aforethought as I explained earlier, you will render opinions of manslaughter.

[39] If you are satisfied beyond a reasonable doubt that the Accused acted with malice aforethought and that she was not so drunk as to form the intention to kill or cause serious harm, you will go on to consider provocation.

[40] If you are not satisfied beyond a reasonable doubt that there was no provocation or accept that there was provocation then you will render opinion of guilty of manslaughter.

[41] If you are satisfied beyond a reasonable doubt that she acted with malice aforethought and are also satisfied beyond a reasonable doubt that there was no provocation, you will advise me that the Accused is guilty of murder.

[42] Your possible opinions are, guilty of murder, or guilty of manslaughter.

Conclusion

[43] Madam and Gentlemen assessors, that concludes my summing up of the law and the evidence in this particular trial.

[44] We have now reached the stage where you must retire to your room to deliberate together and form your individual opinions on the charge against the Accused. You may have with you any of the exhibits that you would like to consider.

[45] When you have reached your separate decisions you will all come back into Court and you will each be asked to state your separate opinion.

[46] Would you please now retire to consider your opinions? When you have made your decisions would you please advise the Court Officer and the Court will reconvene to receive your opinions?

[47] Thank you.

Daniel Goundar
JUDGE

At Suva
9th March 2010

Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Legal Aid Commission for Accused