IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO : HAC 49 OF 2009

BETWEEN:

STATE
Prosecution

AND:

DIN AISAKE ANWAR
Accused

Mr F Lacanivaluwith Ms S Kiran for the State
Mr T. Lee (Legal Aid Commission) for the Accused 

Dates of Trial : 07 - 10 May 2012
Date of Summing-up : 11 May 2012

SUMMING-UP

Madam Assessors and Gentleman Assessor

1.	Evidence in this case has now come to an end. At its conclusion, the law requires me - as the Judge who presided over this trial - to sum-up the case to you on law and evidence. Each one of you will then be called-upon by me to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing-up of the case very carefully and attentively. This will enable you to form your individual opinion as to facts in accordance with the law with regard to the innocence or guilt of the accused-person. Your individual opinions, please remember, carry a great weight and they will be considered by court in coming to the final decision of court. This tells how important your task is.

2.	In my summing-up of the case to you, my directions on matters of law must be accepted as correct and you must act upon them. In other words, you are bound by my directions on law, because as I indicated in my introductory remarks at the commencement of the trial, I am the Judge who had to oversee that the trial is conducted according to law. I, as the Judge, also guide you on law for you to form your own independent opinion as to facts on the evidence in the case. 

3.	In as much as I am the Judge on law, each one of you is also a Judge. Each one of you is a Judge on facts; and, please bear in mind that you and you alone are the sole judges of facts. Therefore, you yourself will have to decide on facts and such decision on facts cannot be made by anyone else other than each one of you; and, no one else can influence you in the making of your opinion. And as judges of fact, you can talk, discuss and deliberate on facts of this case among yourselves only. But, each one of you must reach your own conclusion or form the opinion as to facts based on the evidence in this case. Your opinions could be unanimous or by majority; and, if the court agrees with such opinions, court will give the final judgment of the case accordingly. 

4.	Your duty, therefore, is a noble task and it will ultimately decide whether the accused-person is not-guilty or guilty of the offence, as charged, or of any other offence, on which I will deal with shortly. 

5.	Let me explain further on your role. Each one of you has attained a certain standard in life and society and possesses a wide experience in life, community and the society at large. Therefore, the reason for your selection to perform the noble task as a judge on facts is that you have a better understanding and knowledge on day-to-day happenings in the society. You can, therefore, grasp and understand them better than a court of law would do; because, what the evidence seeks to unravel are indeed the facts that come to be in existence in the course of the conduct of the people in their day-to-day life. As members of the community, you are considered to have a better opportunity and ability of assessing and appreciating such facts, which ultimately would be utilized to decide the case before you.

6.	As judges of fact, it is your own duty and responsibility to decide which fact is to be true and acceptable and which one is not acceptable and should be rejected. Similarly, which witness/es to be believed; and, which version/s of the evidence is to be accepted or rejected, are entirely matters for you to decide by yourself. So, if I happen to express any opinion on facts, or if I appear to do be doing so, you must disregard that and you must form your own opinions without being influenced by such an expression of opinion by me. Please remember that, that is because you are the Judges of fact and, even as the presiding Judge, I cannot and should not, either by design or accident, do anything that would affect your opinion on facts of this case.

7.	Counsel for the State and Counsel for the defence have both made submissions to you as to how you should find the facts of the case. They have done so in accordance with their duties as counsel for the respective party on the basis of what they perceived in their own ways of thinking and analysis. However, you do not have to accept what they said. If, what they have said, appeals to your commonsense and judgment and concurs with your own conclusions, then it is entirely a matter for you to accept it. Otherwise, you are not bound to accept such propositions on facts as advanced by counsel.

8.	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 that you have heard about this case, outside this courtroom. You might have seen or heard news-items in print or electronic media about this case before or during the trial. You must disregard them and your opinions should, only be based on the evidence given in this courtroom.

9.	I must give each one of you a word of caution. This caution should be borne in mind right throughout until you reach your own opinions. That is - as you could hear from the evidence - this case involved an incident of loss of life of a man. This certainly shocks the conscience and feelings of our hearts. It is quite natural given the inherent compassion and sympathy with which human-beings are blessed. You may, perhaps, have your own personal, cultural, spiritual and moral thoughts about such an incident. You may perhaps have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set-down by law, to which every one of us is subject to in the present day society that we live in. I will deal with the law as it is applicable to the offence with which the accused-person is charged, in a short while.

10.	Before doing so, I must tell you about a very important principle of law in a criminal trial. This is sometimes described as the golden rule in a criminal case. That is the presumption of innocence that an accused-person is entitled to in law. The effect of the presumption is that the accused-person is considered to be innocent until he is proven 'guilty'. In other words, even though, there is an offence, with which the accused-person is charged, by law he is considered to have been innocent. This presumption is in force until you form your own opinion at the end of this case solely on evaluation of evidence that the accused-person is guilty of the offence. Therefore, your independent opinion only could remove this presumption after all these proceedings and your deliberations on evaluation of facts are over. 

11.	The presumption of innocence, which is always in favour of an accused person, brings into force another very important principle of law. That is with regard to the burden - or sometimes referred to as the onus - of proof of the case. The case, as you know, has been brought by the Director of Public Prosecutions on behalf of the State against the accused-person on the basis of an allegation of committing the offence of murder. The burden of proof of the case, in light of the presumption of innocence that I explained to you, therefore, lies always with the prosecution. Therefore, the burden of proof of the case against the accused-persons rests fairly and squarely always on the prosecution, that is the State-the complainant. The prosecution is never relieved of that responsibility and it does not shift to the accused-person at all.

12.	In other words, if I am to put it differently from the perspective of the accused-person, there is no burden of proof whatsoever on the accused-person that he is innocent. You will recall that the accused-person is presumed to be innocent and, therefore, there need not be any burden on him to prove his innocence. His innocence is presumed by law.

13.	In as much as the burden of proof is on the prosecution, that burden should be discharged by the prosecution on the basis of a certain standard that has been set by law. The standard of proof set by the law is 'proof beyond reasonable doubt'. Therefore, please remember that the standard of proof in a criminal trial such as this is proof beyond reasonable doubt. This means that the prosecution, having the burden of proof on its shoulders, should prove its case against the accused-person beyond reasonable doubt. 

14.	Ladies and gentleman, please note that if the prosecution has not discharged its burden of proof or has not been able to reach the standard of proof as set by law, then the case for the prosecution fails. If you find a reasonable doubt in the case for the prosecution, such doubt should always be given to the accused-person. You have to remember that, at no time the prosecution is entitled to the benefit of any doubt that may occur in the course of the prosecution case or defence case, which I will advert to when I sum-up evidence later. 

15.	Proof beyond reasonable doubt, therefore, means that before you find the accused-person guilty of the offence charged or any other offence, you must be satisfied in your mind that you are sure of the guilt. If something puzzles in your mind as to the guilt after evaluating facts based on the evidence - that means - that the prosecution has not satisfied you on its standard of proof. In other words, there is a doubt you reasonably perceive as to the commission of the offence as charged or any other offence by the accused-person. Such doubt should always be resolved only in favour of the accused-person. You must, thereupon, express an opinion that he is not guilty.

16.	Let us now look at the charge of murder on the information dated 30 November 2010, which was read over to the accused-person, upon which this trial proceeded. It was under Sections 199 of the Penal Code. The particulars of the offence, as alleged by the prosecution, are:

'DIN AISAKE ANWAR on 05 JULY 2009 at Nadi in the Western Division murdered RONALD RAMESH PRASAD.'

17.	The accused is charged with murder. Murder is the unlawful killing of someone with malice aforethought. The elements of the offence of murder, which the prosecution must prove beyond reasonable doubt, are:

(i) The accused-person did an unlawful act;
(ii) That unlawful act caused the death of the deceased; and,
(iii) That the accused-person acted with malice aforethought.

18.	I will now explain these three elements to you.

• 	Firstly, an unlawful act is an act which is done with no lawful excuse. An example would be, if A hits B with fists or with a weapon, that act will be an unlawful act if such act is not excused by law. Law could excuse such an act only if A had hit B in the exercise of A's right of self defence, which I will further explain as I go on.

• 	The second element of the offence of murder is that the unlawful act caused the death of the victim-the deceased in this case. The law requires a link between the unlawful act and the death. Usually, unlawful act causes some specific injury to the victim and that particular injury causes the victim's death. Or, the cause of death could be a combination of other factors resulted directly from the unlawful act. It is also sufficient if the act or the conduct of the person concerned has contributed to cause the death; or, such act or conduct is substantial in its degree in the circumstances to cause the death.

• 	Thirdly, the accused-person should have acted or conducted himself with malice aforethought. Malice aforethought in law is to have thought about the act or conduct in question and carried out the act of causing death of someone or causing injury with the malicious intention of causing the death.

19.	Ladies and gentleman, the first element is called the physical element of the offence, while the second element indicates the causal link. The third is called the mental element. You have to always bear in mind that all three elements should be established by the prosecution at all times together for it to succeed in the charge of murder. It must be absolutely clear in your mind that the act or the conduct of the accused-person was accompanied by malice aforethought, which is the necessary mental state or the faulty intention to complete the offence of murder.

20.	Malice aforethought, therefore, is a legal term which describes a particular intention or state of mind. It is an intention in this case to cause the death or grievous harm to the deceased. Grievous harm means any bodily hurt, which seriously or permanently injures health, or which is likely to seriously or permanently injure health. 

21.	In law 'malice aforethought' is deemed to have been established by evidence proving any one or more of the following circumstances:

(a) An intention to cause the death of or to do grievous harm to any person; or,
(b) Knowledge that the act or omission [causing death] will probably cause the death of or grievous harm to some person although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not. 

22.	You must, therefore, consider whether the accused did have the malice aforethought or the faulty intent or the intention to commit the death of the deceased or to cause bodily injury so as to cause the death of the deceased. The prosecution must prove beyond reasonable doubt on the available material before you that the accused did intend the death or the bodily injury that could cause death of the deceased for the offence of murder to be complete against the accused.

23.	You must remember, if the accused-person did not have the malice aforethought or, in simple language, the intention to cause the death or any bodily harm, which could cause death;or, if you have a doubt on thatthen the accused-person, cannot be found guilty of murder. That is because, without malice aforethought, the offence of murder cannot be committed. You must be clear on this.

24.	Possibility of causing harm or grievous harm in light of the act/s or conduct of the accused-person is dependent on the circumstances of the case. And, sufficiency of such circumstances to cause death is entirely a matter for you to decide after considering the evidence before you. 

25.	The presence or the absence of malice forethought or the intention to cause death of the deceased or such bodily injury to cause death is the matter what is in issue in this case. The matter of receiving the injury by the deceased at the hands of the accused is not in issue. This issue is a question of fact to be determined by you on the available evidence and documentary material before you. You have to be extremely careful in making the correct decision and forming your individual opinion.

26.	If you conclude that there was no malice aforethought for the act of the accused or if you have any reasonable doubt about it, then you must find the accused-person not guilty of murder. 

27.	However, if you consider that the accused did have only the knowledge that the death could ensue as a result of his act, then you can find the accused-person guilty only of manslaughter. If you entertain any reasonable doubt between the presence of malice aforethought or knowledge, you must resolve that doubt in favour of the accused and find the accused guilty of the lesser offence of manslaughter.

28.	I will now explain what manslaughter is. Manslaughter is a lesser offence that stands very close to the offence of murder. It is the killing of someone by an unlawful act or omission without necessary intention or malice aforethought. If you consider that the accused did not have the necessary intention of committing the death of the deceased or the malice aforethought, but he had only the knowledge that the death would be caused by his act or conduct, then you must find the accused guilty not of murder but of manslaughter only. Whether the accused had knowledge only or whether he had the intention to cause the death of the deceased is a matter entirely for you to decide on the basis of facts and circumstances of the case. 

29.	It is now time for me to tell you about the nature of evidence that can be offered in a case. A witness can give evidence on his observations, like what he heard, what he saw, and what he perceived by his own senses. That is called direct evidence.

30.	In certain circumstances court would allow witnesses to give their opinions on a matter. These witnesses should be experts on that particular subject. For example, you get experts on medical field. The consultant forensic-pathologist Dr Ms Luciana Boseiwaqa gave evidence and her expertise was not challenged. Therefore, her opinions as to the cause of death of the deceased are admissible in evidence. Such evidence is called expert evidence. You can be guided by her opinions when you assess the facts of the case as to the cause of death of the deceased. Please remember that you are entitled to form your own opinion as to facts after considering the opinion of the expert. If you feel fit to give weight to the expert's opinion, then you can accept it.

31.	Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, some witness statements were marked as PE-1—PE-3, the charge-statement marked as PE-4 the Post-Mortem Report [PE-5] and the cautioned-interview statement of the accused [PE-6] are documentary evidence. 

32.	Real evidence is the material objects that are used to commit the offence and/or those recovered from the scene of the crime. In this case, kitchen knife (PE-7) and the two pieces of timber (plank) (DE-1) are examples for real evidence. They can be used to support the evidence of a witness and to advance one's case. You must consider whether the material objects were, in fact, used or found from the scene before you accept them as relevant real evidence in the case.

33.	You must consider all direct evidence - that is what witnesses saw, heard or perceived by their senses, as well as documentary evidence, real evidence and expert evidence.

34.	A case could usually depend on all those kinds of evidence or on a combination of two or more or even on one kind of evidence. Whatever the case may be, it is the value and the weight of evidence that matters.

35.	Statements made by the accused [PE-4 and PE-6] are before you. You must read them carefully. This is a statement made to police under the caution that they will be used as evidence against the maker of such statement. The statements were admitted as evidence withoutany objection from the accused. The statements, therefore, are evidence in the case. In the statements, the act of having caused an injury on the deceased was admitted.

36.	I will now deal with the evidence in this case.

37.	Prosecution first led the evidence of witness Sakiusa Bulivorovoro. He said that he was working as a Welding Technician with Savendra and Ramesh. They were staying together at Khalil Road on Nadi Back Road, Nadi. On 05 July 2009, after work they went to Wailoaloa Beach where they drank beer. 

38.	They were met by two Fijian girls whom they invited to drink together.They drank till it was dark.The two Fijian ladies came to be known as Olivia and Alini to whom Ramesh later offered to drop at their place. They left Wailoaloa after 6.00 p.m. with the two Fijian girls and Din, the accused. As they reached a shop they bought another carton of beer and went to Nadi Back Road. Din and others got off. Ramesh and Din were talking to each other at the gate of Din's house. Their flat was about 100 M away from Din's flat. 

39.	Witness said that, later Din and Olivia arrived at Ramesh's place, when he and Alini were inside a room of Ramesh's house.The witness heard that Din and Olivia arguing inside Ramesh's house and the witness told them not to argue and smashed a beer bottle in order to stop their argument. The witness saw Ramesh and Savendra going after Olivia whenever she went to the washroom which was seen by Din who was the de facto husband of Olivia. The witness was lying on the bed with Alini inside a room and Alini was caressing and kissing him. 

40.	There was an argument among Din, Olivia and Ramesh as Din wanted Olivia to get out of the room where she was in. The witness asked Din to calm down and thereafter asked him to get out of the house and it was then witness smashed the beer bottle. The witness said Din got angry as Olivia did not come out of that room. Thereafter Din and Ramesh were seen fighting outside the house. Thereafter Ramesh ran after Din holding a piece of timber in his hand. Ramesh then opened the gate and entered the compound of Din. 

41.	As the witness arrived at Din's place he saw Din, the accused, coming out with a knife. The witness then saw a scuffle between Ramesh and Din inside the compound of Din after witness warned Ramesh to watch out that Din was holding a knife. The witness saw Din stabbing Ramesh when they were engaged in the scuffle. The witness said that he did not, however, see Ramesh hitting Din with the piece of timber that he was holding.

42.	Answering the suggestion that Din was simply waving the knife before he was hit by the knife the witness said that he saw him stabbing. Ramesh thereafter walked up to the witness and gave him the piece of timber. Din was, however, not chasing Ramesh. As the witness came out of Din's compound, Din did not run after anyone of them.

43.	The prosecution also called witnesses James Madhwan and Rasvindar Singh. Their evidence is not really useful as they did not refer to the actual incident which resulted in the injury being caused to the deceased. James Madhwan was only referring to 'some' Fijian and Indian men without identifying who they were. Therefore, his evidence is irrelevant. Similarly, Rasvindar Singh was only referring to the incident where he had seen the accused yelling at Olivia to open the door of the house with a knife in his hand. 

44.	Olivia Smith, who was the de facto wife and presently living with the accused, was called and sworn in to give evidence. You may recall that she ran away from courtroom without giving evidence. Prosecution advisedly did not call Olivia to give evidence thereafter. 

45.	The case for the prosecution was closed with the evidence of those witnesses and exhibits marked as Exhibits PE -1– PE-7.

46.	After the case for the prosecution was closed, you may recall, that I explained the rights available to the accused. I was under duty to do so. You must not misunderstand that, that the exercise of my power under the law as a call to answer the charges and to prove the innocence of the accused. There is no such compulsion and the accused decided to give evidence under oath. 

47.	It is clear from the evidence of the prosecution that five people were referred to in relation to the events that led to the death of the deceased. They were Sakiusa Bulivorovoro, Alini, Ronald James (the deceased), Olivia Smith and Din Aisake Anwar(the accused).

48.	You have only the evidence of Sakiusa on behalf of the prosecution to satisfy you beyond reasonable doubt as to the guilt of the accused on the charge of murder of Ronald Ramesh. Against this evidence, you have the evidence of the accused. Your task, therefore, is to critically analyze the evidence one against the other and return your opinions on consideration of my directions on issues of provocation and self-defence, which I shall give shortly.

49.	The accused in his evidence narrated the whole incident right from the time of leaving for Wailoaloa Beach up until the incident of causing an injury to the deceased. I will deal only with material parts of his evidence.

50.	Din and Olivia joined Ramesh for drinks at the place of Ramesh at his request. There were movements around Olivia by Ramesh and others, which displeased Din. Olivia was even followed by Ramesh when she went to check on their little daughters who were sleeping at home. Din also saw Ramesh standing close to Olivia, which, too, was disliked by Din. It was Din's evidence that Ramesh was trying to get him out so that Ramesh could have sex with Olivia. There were verbal abuses hurled between Din and Olivia over apprehension of an affair between Ramesh and Olivia by Din. Both Din and Olivia had become angry and aggressive over the issue.

51.	Ramesh, at one point of time, threw punches at Din who managed to escape from them. At the height of these events Sakiusa asked Din to be away for an hour and to leave Olivia with Ramesh. It was at this time Din got very angry and threatened with death if Olivia did not get out.

52.	Din then came out and walked home after a quarrel with Ramesh and Sakiusa, as a security guard told him to go away without creating problems. As he reached the compound, he saw Ramesh and Sakiusa coming. Ramesh was holding a long piece of timber, which was marked as DE-1. Din closed the gate and went into his flat. He later saw Ramesh at his door holding DE-1. Then Din got hold of a kitchen knife [PE-7] and came out.

53.	Din said that he came out to lock the gate as there was nobody around. Ramesh, thereupon, jumped at him having hidden behind a palm tree and 'whacked' him with DE-1, the long piece of timber, whereupon Din fell down. As a result of the hit, the long piece of timber broke into two. Din demonstrated as to how Ramesh 'speared' into his abdomen after he fell down and showed you couple of injuries sustained as a result of the attack by Ramesh in accused's own compound. Then, Din 'forced [himself] up' and 'swung' the knife backwards as he was getting-up, which injured Ramesh.

54.	Ramesh, upon receipt of the hit with the knife, started to run to Sakiusa, who was standing with an iron rod and a broken bottle. Din said that it was only a one hit and that he did not follow him as he was going out of the compound. Din was bleeding as a result of the injury caused by Ramesh and did not run after Sakiusa as he, too, moved out of the gate. Ramesh was taken to the hospital by police, where the Medical Report marked DE-2 was given. After that, Din made statements both in the course of interrogation and charging, which are marked by the prosecution as PE-4 and PE-6.

55.	It was not in dispute Sakiusa and Alini were making love after meeting each other at Wailoaloa Beach until late in the night until the events came to a close on that day. James, the deceased, appeared to have had sexual advances towards Olivia, the de facto wife of the accused. Din, who got offended at these turns of events, wanted Olivia to come out of the house of deceased-Ramesh. This resulted in exchange of words between the accused and Olivia. Later Sakiusa and Ramesh, too, were involved. As the accused withdrew from the place of Ramesh and returned to his house, he was followed by Sakiusa and Ramesh. Ramesh was armed with the long piece of timber and entered the compound of the accused. The incident that ultimately led to the death of the deceased, as a result of the injury received at the hands of the accused, occurred in the compound of the accused. Thus, theleisure-making event that began from the afternoon of 05 July 2009 at Wailoaloa Beach became a tragedy resulting in the death of Ramesh and making Din Aisake Anwar an accused for his death.

56.	It is relevant here to refer to DC Shailend Krishna's evidence in the course of the prosecution case, who said that Din was taken to hospital as he was arrested in the early hours of the day as he had got injuries and provided with treatment. The police officer accepted the Medical Report marked DE-2 as being the one originated from him to have Din examined at the hospital. So, the accused sustaining an injury at or around the incident is supported by prosecution evidence itself.

57.	It is also relevant at this point to refer to the evidence of Dr Luciana Boseiwaqa who said that Ramesh had sustained only one injury, which became fatal and caused his death due to massive internal bleeding. She, however, did not observe any other injury on the body of Ramesh. The doctor was of the opinion that, given the location of the injury, it was possible for the injury to have been caused in the course of a scuffle, if the recipient of the injury was having his hand[s] raised. 

58.	The prosecution, in addition to the evidence that it presented, also relies on the charge statement [PE-4] and the cautioned-interview statement [PE-6] as part of its evidence. Please consider the contents of those two statements and see whether they disclose a case of murder with malice aforethought against the accused; or, whether they disclose a case of self-defence in favour of the accused. If it does the latter, then you must consider whether or not the prosecution case itself is contradictory to each other and see whether or not it would create a doubt as to what, in fact, the prosecution case is. If you perceive a doubt on that, you must acquit the accused forthwith without proceeding any further to discuss the defence case.

59.	If you, however, decide to consider the defence case after examining the prosecution case, you must consider the issues of provocation and self-defence, which arise in light of the evidence in this case.

'Provocation' (as defined by Section 204 of the Penal Code) is any wrongful act or insult of such nature done to an ordinary person, which is likely to deprive him of the power of self-control compelling him to commit an assault of the kind with which he is charged on the person who gave the provocation. You must remember that any lawful act cannot be considered as provocation for such assault.

60.	Learned counsel, both for the prosecution and the defence, in their final speeches referred to the aspect of provocation. Their submissions on provocation were based on the fact of Olivia standing close to Ramesh and apparent sexual advances made towards her in the house of Ramesh by Ramesh. Learned state counsel generously advanced the proposition that 'male possessiveness and jealousy' cannot and should not be a ground for a man to get provoked. Learned counsel for the defence, however, said that it was a sufficient ground for a man to lose his cool, control and temper when he sees his partner being approached by another. You may consider, which argument is more close to the reality.

61.	Evidence revealed that the accused after seeing those unsavory things had wanted only Olivia to come out of the room with a view to return home. At her failure, he threatened all of them with death and did nothing-else in furtherance of such alleged provocation. The incident culminating in the injury on Ramesh, in fact, took place in the compound of the accused little away from Ramesh's place after a lapse of sometime. Evidence, therefore, shows that there was, if at all, only provocative conduct on the part of Ramesh and Sakiusa but not provocation, as such, offered at their hands. In any event, there is no evidence to show clearly that the injury on the deceased-Ramesh was caused on alleged provocation alone over those incidents at Ramesh's house. You must be clear on this.

62.	Instead, you may consider whether Ramesh's act of coming after Din, after being armed with a long timber piece with a sizeable length and weight and his sight on the doorstep of Din, coupled with his conduct towards Olivia, could have offered sufficient provocation for Din to lose his self-control and arm himself with the kitchen knife in preparation for an imminent attack by Ramesh at his own home.

63.	When a person causes the death of another by doing an act in the heat of passion or very powerful feeling of hate or anger caused by sudden provocation; and, before there is time for passion to cool, then he is guilty not of murder but of manslaughter. That is so even if he committed the murder with intent as the presence of provocation reduces the culpability of the accused to manslaughter.

64.	As a matter of law, you must bear in mind that:

(i) A lawful act is not provocation to any person for an assault; and,
(ii) If the act, which the deceased did, was in consequence of incitement given by the accused then the accused is not entitled to excuse his act of attack on the deceased on the ground of provocation.

65.	In this case, there was no lawful justification for Ramesh, armed with the long piece of timer, to have come to the place of the accused. There is also no evidence to show that the accused had given any provocation for Ramesh to pursue in the way he did. Therefore, Ramesh' s act of coming to the place of the accused was unlawful and it could, in fact, be a criminal offence under the law.

66.	Therefore, you must clearly be satisfied on act of provocation, the loss of self-control and retaliation proportionate to the provocation as the above exclusions are irrelevant in this case. If you are satisfied on those, you must then find the accused-Din guilty, not of murder, but of manslaughter.

67.	Secondly, you must consider whether the accused had acted in self-defence as a result of the deceased arming himself with the long piece of timber [DE-1] and thereafter spearing the abdomen of the accused causing him two injuries followed by a scuffle in the course of which the deceased got injured as the accused swung the knife in order to get away from the attack by deceased-Ramesh.

68.	Under law, any person has the right to defend himself or his property against such an act of attack on person or on property. The right had to be exercised only to the extent that it was reasonable and proportionate in the circumstances that the accused was placed in at that point of time. If you consider that the accused attacking with thekitchen knife was reasonable and proportionate and not excessive or aggressive when he was being injured by Ramesh, the accused's act of injuring the deceased was not unlawful, even though the outcome was the death. You must consider the circumstances and decide whether the conduct of a man in the position of the accused was reasonable, proportionate and not excessive or aggressive in coming to the conclusion that such conduct of the accused was not unlawful. In forming your opinion you must seriously consider that there was only one injury on the deceased and that the accused had not acted violently in the course of or after causing the injury. You must also consider that the incident was sudden as the deceased-Ramesh jumped out of hiding behind a palm tree in that thick night and time space available for the accused to think was minimal.

69.	Please remember it is the duty of the prosecution to prove that the accused did not act within the limits of self-defence beyond reasonable doubt.

70.	In those circumstances, if you come to the finding that it was reasonable, proportionate and not excessive or aggressive, or you have a reasonable doubt on that, then you must find the accused not guilty of murder. If you consider that, at the sudden turn of events at the hands of the deceased, the conduct of the accused was not reasonable and proportionate but it was excessive, revengeful and aggressive, then he is not entitled to the right of self defence.

71.	You must consider all circumstances in deciding whether the accused had the malice aforethought in causing the injury on the deceased and decide whether he was entitled to the right of self defence in the circumstances. If you conclude that in the circumstances he did have the malice aforethought and he is not entitled to the right of self defence, you may find him guilty of murder.

72.	I have summarized the evidence before you. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should reminded yourself of all that evidence and form you opinion on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourself of the evidence.

73.	In summary, the prosecution says that the act committed by the accused; and, his conduct was with malice aforethought to cause the death of the deceased. In the same vein, prosecution relies on the position of the accused in the charge statement [PE-4] of 07 July 2009, which may appear to you as consistent with his evidence before you. The accused says that his acts were not accompanied by malice aforethought in the circumstances; and, he acted reasonably within the limits of self-defence as permitted by law. 

74.	You can find the accused guilty of murder if and only if you totally reject the defence case and that you are satisfied with the prosecution case beyond reasonable doubt that the accused committed the act with malice aforethought. You have to be clear on law that, even if it was murder with malice aforethought, if you are satisfied that the accused acted on provocation, the offence is reduced to manslaughter. In either case of murder with malice aforethought or manslaughter on application of the principles of provocation, if you are satisfied that the accused acted in his lawful right of self-defence, the accused could not be found guilty of any offence. He should, instead, be acquitted.

75.	In assessing the evidence of the accused, you may consider that, the long piece of timber [DE-1] had a very wide range of attack; and, anyone even with a knife would not approach someone holding such a weapon of attack. In that context, you may consider the effect of the evidence of the accused that he did not see Ramesh until he sprang out of hiding behind a palm tree and attacked him in the thick night; and, the accused acted in self-defence to escape the attack. You must consider his evidence with the statement that the accused gave soon after the incident in PE-4.

76. 	Remember that the onus of proving the accused's guilt beyond reasonable doubt rests on the prosecution at all times by displacing defences of provocation and self-defence.

77. 	Your possible opinions are:

1. Guilty/Not Guilty of murder; or
2. Guilty/Not Guilty of manslaughter.

78.	Madam assessors and Gentleman assessor, this concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charge against the accused. You may peruse any of the exhibits you like to consider. When you reach your separate opinions, you will come back to court, and you will be asked to state your separate opinion.

79.	 I thank you for your patient hearing to my summing-up.

You may retire for your opinions now.

Priyantha Nāwāna
Judge
High Court
Lautoka
11 May 2012