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State v Hakim [2010] FJHC 87; HAC022.2009 (12 March 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 022 OF 2009
CRIMINAL CASE NO.: 462 OF 2007

BETWEEN:

STATE
PROSECUTION

AND:

MOHAMMED MUSTAFA HAKIM
ACCSUED PERSON

Counsel: State Ms. T. Leweni
Accused Person - Mr. I. Khan

Date of Hearing: 2/3/2010; 4/3/2010; 8/3/2010; 9/3/2010; 10/3/2010,
11/03/2010.

Date of Summing Up: 12/03/2010.

SUMMING UP

Madam Assessors and gentleman Assessor.

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 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.

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 attempted murder on Count 1 and with assault occasioning actual bodily harm on Count 2. I must direct you as a matter of Law that you must consider the evidence on each count separately and you must not assume the guilt or otherwise of one count means guilt or otherwise of the other.

The offence of attempted murder in Count 1 has several elements which prosecution must satisfy you of beyond reasonable doubt. They are that the accused attempted unlawfully to cause the death of the victim Nazma Khatoun Bi. Prosecution also has to prove beyond reasonable doubt that the intention of the accused was to cause the death of the victim.

Attempt of a crime begins at the moment when the accused embarks upon the crime proper, as opposed to taking steps as merely preparatory.

The offence of assault causing bodily harm in Count 2 has several elements. The prosecution must prove beyond reasonable doubt that the assault occasioned or caused bodily harm. Bodily harm has its ordinary meaning and includes any hurt or injury calculated to interfere with the health or comfort of the victim. Hurt or injury need not be permanent.

The act assault can be either intentioned or reckless through which act one could apprehend unlawful violence on other person. In such a case there should be a hostile intent in the mind of the accused. If not the prosecution must prove that the above act was reckless to an extent that the victim would apprehend unlawful violence.

The Evidence

The Prosecution Case

Five witnesses were called to give evidence on behalf of the prosecution. PW1 Nazma Khatoon Bi the complainant had been the de facto partner of the accused at the time of the alleged incident. She had been living with the accused and her daughter, her sisters’ daughters and the son of accused in the house.

According to her evidence on the day of the alleged incident i.e. on 28/2/2007 accused had started quarrelling with her. Accused’s sister had told the accused that she Nazma had told her that the accused is an old man. Accused has started the quarrel on that. Then the complainant Nazma had told the accused that if he believes his sister and not her she would leave the house.

Then the accused had brought a rope and a chair and she had thought that accused had wanted to do something to himself. The quarrel had started by 7.00pm and had continued till about 1.00am. During that period accused had left his sisters’ daughters and the son, at neighbour’s place. Then accused had wanted to have sex with her and when she refused he had forced her and when she pushed him away he had punched her and also kicked her.

She had gone under the bed and accused had called her out and asked to sleep with him. She had slept on the floor beside the bed. After a while accused had said that he would hang her. Then accused had tied the rope around her neck. When he tied the knot she had got scared. Then he had suddenly pulled the rope and then she said her mouth got opened and she nearly choked. She felt that her breath stopped. Then she had pulled the rope with her hands and the accused had pushed her on the bed sat on her stomach and had asked her why she wanted to die. When she wanted to leave the house accused had said to leave her daughter and go.

Later accused had fallen asleep and when she wanted to brush her teeth accused had followed her and wanted her to brush inside the kitchen.

As her brother was working with the accused the brother had come in the morning by 6.00am. Accused had told her brother that she tried to commit suicide. Brother had then taken her to the mothers’ place. She had gone to the mothers’ place with her brother and accused. Same day she had reported the matter to the police and medical examination had been done.

She had got to know that the accused had gone to the police and reported the matter to the police before her.

In cross-examination answering the questions put to her by the Defence Counsel she said that she told everything to the Police and that she does not know whether the police officer wrote it or not. Further she said that she assumed that the police officer would have recorded everything.

Answering the questions put to her she said that after the incident she lived with the accused again for some time and again left the accused and again lived with him for 6 months. Further she said accused offered $3000 to reconcile and the accused was forcing her to accept $3000.

She admitted taking photographs marked as Defence exhibit II with the accused after the incident but she said she was forced to take them.

PW2 Mohammed Yunus, the brother of the complainant Nazma said that when he went to the accused’s house on 1/3/2007 accused had opened the door and said that his sister was hanging herself. He had felt awkward and he had seen a thick mark on her neck. Then Nazma had told him that the accused tried to hang her. She had cried and asked him to take her home. He had taken her to the police station. Further he said that he believed the sisters’ version and not the version of the accused.

You heard Ms S Naicokawa giving evidence. According to her she is a Nurse Practitioner. She had been a nurse for 31 years and a nurse practitioner for 6 years. She works in the Makoi Health Centre.

After examination of the victim she had prepared the medical report which was marked as prosecution exhibit 1.

She has observed horizontal mark running from left side of the neck covering back of neck to right side neck measuring 25cm in length. With tenderness 6 horizontal marks about 5cm in length over throat, swelling left side of cheek. Bruising inner aspect left cheek, Tenderness left chest.

She gave her opinion stating that the injuries are consistent with the history given by the patient.

In cross-examination when she was asked she accepted that she was not a doctor.

Further when it was put to her that she was not qualified to give her opinion on the matter she said that this is not the 1st form she had filled and for last 6 years she had filled forms of this nature. She said she sees nothing wrong in documenting what she saw.

Further answering the questions by defence counsel she gave another opinion stating if the patient tried to commit suicide these marks would be consistent.

PW4 DC 2757 Mahesh Chand is the police officer who recorded the cautioned interview statement. He said that the accused gave the statement voluntarily and the accused co-operated with the investigations. Cautioned interview statement was marked and produced as prosecution exhibit No.2.

Answering the questions by the Counsel the witness said that in the statement accused said that Nazma wanted to commit suicide.

PW 4 DC 2771 Aminand Prasad is the investigating officer and he has recorded the statement of the complainant Nazma. Charge statement of the accused was marked and produced as exhibit No.3.

Answering the questions in cross-examination he said he didn’t take down any notes and he gives evidence by virtue of his memory.

Further he said he did not take any photographs of the scene and when he asked for the rope that they could not find it. He said further that he recorded everything what the complainant said when recording her statement and did not record whatever she did not say.

Defence Case

At the close of the prosecution case you heard me giving several options to the accused. He would have given sworn evidence, call witnesses on his behalf or remained silent. He had these options because he does not have to prove anything. The burden of proving his guilt remains on the prosecution at all times. He chose to give sworn evidence and to subject himself to cross examination. You must give his evidence careful consideration.

His evidence was before the incident complainant lived with him, complainant got 2 children from the previous marriage and accused had one son. He maintained the family. He admitted the cautioned interview statement and the charge statement. He explained as to why he punched the complainant. He said while she tried to commit suicide he tried to rescue her. When he tried to release her she had shook and to release her he had slapped her. He said that the reason as to why he punched and slapped her was to release her from committing suicide. Referring to the answer to Question No.48 of his statement he said that the complainant used to beat children and run out of the house with a rope to hang daughters and to commit suicide.

He further said even after the incident she came back and lived with him for 6 months. Thereafter when she was living with her mother she had been living with him during weekends. She had done that until she got married for the 3rd time. His evidence was that she asked him for money to look after the 2 daughters. With regard to the photographs marked exhibit 2 of Defence he said that she voluntarily came to take the photographs.

Answering the questions put to him in cross-examination he denied the allegation against him and said that he only tried to rescue her from committing suicide.

The written agreed factors are before you. Those facts are agreed by both sides and you may accept them as if you had heard them led in evidence from the witness box.

If I did not mention a particular witness or a particular piece of evidence this does not mean it’s unimportant.

You should consider and evaluate all the evidence in coming to your decision.

It is evident that certain things said to have happened which complainant said in evidence in court she did not tell the police in her statement. Apart from other matters, on this Defence suggests that the complainant is not a credible witness.

The stand of the prosecution on this is that the complainant’s evidence in court is more detailed on the incident than in the police statement.

Whether this fact that she omitted to mention certain things to the police affects her credibility or not is a matter for you to decide.

As a matter of Law I must tell you that a witness can give evidence on his observations like what he heard, what he saw and what he perceived. Only on certain circumstances court would allow witnesses to give their opinion on a matter. Those witnesses should be experts on that particular subject. For example you get experts on medical field, experts on finger prints, experts on engineering, experts on fire arms, drug analysis etc.

If you are to consider an opinion of a witness first you have to establish that the witness is an expert on that subject.

Now Prosecution witness Number 4, S Naicokawa gave evidence on the injuries she observed on the victim and gave her opinions as to how those injuries would have caused. She is not a medical Doctor but a Nurse Practitioner. It is clear that she was not properly trained to diagnose injuries caused to a victim. She has not received any education similar to a doctor. Just because she has been a nurse and giving medicine for a period of time it does not mean she gets the qualification and expertise similar to a doctor. Therefore she cannot be considered competent to give evidence as an expert witness in the medical field and hence her opinion is inadmissible in Law. So you have to disregard the opinions she gave on the injuries of the victim and her opinions as to how those injuries would have caused.

But however her observations on injuries as to what she saw you may consider as an ordinary witness.

When considering all the evidence including the agreed facts before you it is a matter for you to decide whether the prosecution has proved beyond reasonable doubt all the elements of the offences mentioned in Count 1 and Count 2 of the information.

Which version you are going to accept whether it is the prosecution version or the accused’s version is a matter for you. You must decide which version of evidence you choose to accept.

You must decide which witnesses are reliable and which are not.

You may find the accused person guilty on each count if you are satisfied of his guilt beyond reasonable doubt. If you have any reasonable doubt of any of the elements of the offences you must find him not guilty. Remember to consider the evidence on each count separately. Your opinion on each count is either guilty or not guilty.

You may now retire to your room and deliberate together and form your individual opinion on the charges.

On your return you will each be asked separately to state in Court your opinion to whether the accused is guilty or not guilty of the charges.

Priyantha Fernando
Puisne Judge

12/03/2010.