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State v Lutumailagi - Summing Up [2012] FJHC 942; HAC022.2008 (29 February 2012)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 022 OF 2008

BETWEEN:

STATE

AND:

TEMO LUTUMAILAGI

Counsels: Ms. L. Vateitei for the State
Accused In person

Date of Trial : 20/2/2012 – 29/02/2012.
Date of Summing Up : 29/02/2012.

SUMMING UP

1. Madam and Gentlemen Assessors. We have come to the final stage of this trial. You were listening to all witnesses and both State Counsel and the 1st accused. Now it is my duty to give the summing up to you. In the summing up I will be directing you on matters of law, which you must accept and act upon. Regarding the facts of the case, I do not wish to give an opinion, but if I give so you may accept or reject. You are not bound as in matters of law. In brief you have to accept my direction on law and you can judge independently when it comes to facts of the case. Because you are the judge of facts.

2. The State Counsel and the 1st accused made their submissions. That is their duty. The prosecutor to submit how she proved the case and the 1st accused to say that the case is not proved. You are not bound by their submission. You are the representative of this society in this trial. After assessing all evidence you must decide whether this accused is guilty or not guilty to the offence he is charged.

3. After all these submissions you will be asked to retire for your verdict. Your verdict should be either guilty or not guilty. You will not be asked to give reasons for your decision. Your opinion can be unanimous or divided. It will be preferable if it is unanimous but the decision has to your own decision. Your opinions are not binding on me but it will be persuasive. I will give them the greatest weight when I deliver my judgment.

4. In criminal cases the standard proof, I must direct you as a matter of law, that the prosecution bears the burden of proof in the case. The burden remains throughout the trial and it never shifts. There is no obligation upon the accused person to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proven guilty. This is a golden rule.

5. The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of guilt of the accused person before you express an opinion that he is guilty. If you have any reasonable doubt about the guilt of the accused you must express an opinion that he is not guilty. You may only express an opinion that he is guilty, if you are satisfied of that you are sure that he committed the offence alleged.

6. As I informed you in my opening address, your decision must base exclusively upon the evidence which you have heard in the Court, and upon nothing else. You must absolutely disregard anything you might have heard about this case outside of this court room. It is important that you must decide the fact without prejudice or sympathy to either accused or the State. One of my duties is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.

7. The Director Public Prosecution had originally charged 3 accused persons for Robbery with Violence punishable under Section 293(1)(b) of the Penal Code. After the Prosecution case is over all 3 accused persons were acquitted for lack of evidence.

8. Presently only the 1st accused Temo Lutumailagi faces a charge of murder punishable under Section 199 and 200 of the Penal Code.

9. I must caution you that because the defence is called from the 1st accused Temo Lutumailagi does not mean he committed an offence. According to our Laws if the Prosecution fulfill certain requirements the defence will be called from an accused. It is your duty to find whether there is evidence against the 1st accused for the offence of murder and keep an open mind and decide the case afresh.

10. The accused Temo Lutumailagi was charged for murder.
    

11. The offence of murder has three elements which prosecution must satisfy you beyond reasonable doubt. They are:

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.

12. I will explain these three elements to you in simple language. Unlawful act means something done by a person that is against law. If I give you an example, you attack a person with knife or similar to that without legal justification.

13. The second element of the offence of murder is that the said unlawful act caused the death of the victim. The prosecutor should prove a death of a person and then the death was caused by the accused by an unlawful act. The law requires a link between the unlawful act and death. In other words, the victim had died of the injury caused by the accused. Usually the unlawful act causes an injury which is the sole cause of death. But it is sufficient if it is an operating or substantive cause of death.

14. The 3rd 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 a legal term which describes a particular intention or state of mind.

15. English Lexicon says malice aforethought means "with intention of committing a crime" (especially murder or grievous bodily harm).

16. It is an intention to cause death or grievous harm to the victim or knowledge that death or grievous harm would probably be caused.

17. Prosecution must prove beyond reasonable doubt that the accused intentionally committed an unlawful act which resulted in the death of the victim.

18. In this the case the cause of death according to the Pathologist was "Excessive loss of blood due to a deep musid wound on the face" and I explain in simple terms that deceased had lost blood due to cut injuries on her face.

19. In this case the Accused is not challenging the death of Ms. Sin Har Sue therefore the death of the deceased is not in question. The only issue here is whether this accused involved in the murder or not.

20. The most important question here for you to decide is who caused these injuries.

21. The Prosecution says that the 1st accused together with other entered the shop of the deceased and slashed her with a cane knife. The 1st accused says that he didn't do it and he doesn't know anything about the incident.

22. The Prosecution led evidence of 22 witnesses. Now I will summarise the evidence of those witnesses.

23. 1st witness was Joseva Bale whom you saw and heard his evidence.
He said he knows Joape Drauna, Temo and the other person in Court. On the 1/12/07 he had seen them at the back of Nadi Civic Centre and spoken to them. This witness had gone to play billiard when the others went away. On the way he heard cries and went to see what's happening there. He found a Chinese lady lying in a pool of blood. He opened the shop, got her out and taken her to the hospital in a carrier van. The deceased was alive when conveyed to the hospital. He had not seen the incident.

24. The 2nd witness was Surendra Lal. He was serving at the Khan's
Service Station, one person had come there and asked for a tap to wash, he had shown the tap. I should remind you he had not identified any of the assailants. Further he had not seen any incident.

25. The 3rd witness was Emily Dimoro. She was watching the Bula Festival Float. She had noticed a crowd in front of Chinese lady's shop. When she went she found the Chinese lady was lying in a pool of blood. She had seen a Fijian man opening the door and taking the lady to the hospital. She had not seen anyone causing injury to the deceased.

26. The 4th witness is Nahid Ishaar Ali, he is a carrier van driver on the 1/12/07. He had returned after a hire, and found there is gathering in front of the Chinese shop. When he peeped in, two boys had asked him to take the Chinese lady to the hospital. He had seen the lady was bleeding, he had taken them to Nadi Hospital, he had not seen any of the incident.

27. Sixth witness called by the State was Kacilala Tukana. He was working as a D.J. at the Steps Night Club. On the 1/12/07 he had seen 4 boys under the tree. He claims he knows all the boys at Nadi because of his job, but these boys are not from Nadi, that is why he had noticed them. This witness also not seen any incident.

28. The seventh witness is Mr Ronie Chang, he is family friend of the deceased Sue Sin Har for 50 years. On the 3/12/07 he had gone to Nadi Hospital and identified the body of the deceased. Subsequently he had gone to Lautoka hospital to see the Post Mortem also.

29. The eighth witness was Inspector Viliame. He is the Police Officer who arrested the 1st accused Temo Lutumailagi at the playground while he was playing rugby. He had handed over the 1st accused to Sgt Elia Waqanidrola. He told Court that he had not used any violence against the 1st accused. The 1st accused suggested to the witness that he was arrested at his home and not at the grounds. This witness denied the suggestion.

30. The ninth witness was Simione Rarasea. He had arrested Joape Drauna who had been acquitted already in this case.

31. The 10th witness was Viliame Lotawa, he submits that he had seen all 3 accused persons in the Police cell and served them meal and searched and locked the 1st accused in the cell.

32. The 11th witness was D/C Semi Volitikoro. On the 3/12/07 he had searched the 1st accused and locked him at Nabua Police Station.

33. 12th witness was Inspector Apete Visako, he is an experienced Police Officer with 23 years of service. He had witnessed the caution interview of the 1st accused Temo Lutumailagi. He submitted that the 1st accused was interviewed by Sgt. Elia Waqanidrola and no assaults or force used on the accused person. When the accused suggested that he was punched the witness denied all allegations.

34. 13th witness was Elia Waqa. He is also an experienced Police Officer with 22 years service. He told Court that he interviewed the 1st accused under caution. Interview was conducted in Fijian Language which was the choice of the 1st accused. The record of the caution interview is marked as P1 and the English translation as P1A. I want you to read these documents very carefully. This witness submits that the interview was conducted after due caution and the 1st accused made the statement voluntarily, but the 1st accused says that the statement was taken after use of force. In this case, this statement is an important document. You should consider them carefully and compare with the other evidence before the court and take your own independent decision.

35. 14th witness was D/S Apimeleki Digitaki. He had arrested the 2nd accused, who had been already acquitted from this case.

36. The Pathologist Dr Ms. Litia Tudravu who conducted the Post Mortem is presently on maternity leave. Therefore Dr. Ponnu Swamy Goundar is called as 15th witness. He is a Consultant Pathologist with long period of service experience. He submitted the Post Mortem report as P3 and explained the nature of the injuries on the deceased. According to the report the deceased Sin Har Sue had 3 injuries, the 1st was on the face just below the eyes measuring 19cm length and gaping 2cm. This wound had penetrated facial bones to the depth of 6cm. Second injury was with mid forehead measuring 9cm long and gaping 1cm. The 3rd injury was on the right occipital region (Back of head). It was crushed injury. Dr. Goundar says the 1st and 2nd wounds are not accidental wounds, it was caused by a sharp cutting instrument, possibly by the cane knife. Further he submitted that death is very imminent.

37. The 16th witness was Dr. Osea Tuidraki. He had examined all 3 accused persons including 1st accused. He was told by the 1st accused that he was assaulted by the Police but this Doctor couldn't find any injuries other than a bruise on the back of the right ear.

38. 17th witness was W.P.C. Ulamila Mataitoga. She told court that she charged the 1st accused and she claims that the 1st accused was given his rights. She claims that the 1st accused had made a statement to her voluntarily which is marked as P7. She submitted that when she charged the 1st accused Social Welfare Officer Ms. Salote was also present to witness the session.

39. 18th witness was D/C Yagovilo Levasani. He had interviewed the 2nd accused. His evidence may not be relevant at the juncture.

40. The 19th witness was D/C Opeti Lolo. He had charged the 2nd accused. May not be much relevant at this stage.

41. D/C Sainivalati Nacolawai was the 20th witness. He had charged the 3rd accused.

42. D/C Penaia Drauna was the 21st witness. He had interviewed 3rd accused.

43. The last witness was D/S Peni Waqa. He was the Investigating Officer in the case. He submitted 4 people were originally arrested and presently only 3 were charged by the Director Public Prosecution.

44. At the end of the case defence called from the 1st accused Temo Lutumailagi. He opted to remain silent. I should remind you again, that the accused has the right to remain silent because the Prosecution has the burden of proving the case. This burden never shifts to the accused at any time.

45. Further I wish to tell you that you are not entitled to draw any adverse inference against the 1st accused Temo Lutumailagi for exercising his right to remain silent.

46. I have explained you the law and legal principles. Further I have summarized the evidence as I see. It doesn't mean that you have to consider only my summary. You have to consider the entire evidence of all witnesses and come to your own conclusion.

47. You may use your common sense in evaluating the evidence and deciding the facts of the case.

48. I have explained the legal principles to you. You will have to evaluate all the evidence and apply the law as I explained to you when you consider the charge against the accused.

49. I humbly request you to consider all evidence before the Court and come to your own conclusion. If you are satisfied beyond reasonable doubt of the accused's guilt and you are sure of it. You must find the accused guilty as charged. If you are not satisfied beyond reasonable doubt of the accused's guilt, and you are not sure of it. You must find the accused not guilty as charged.

50. As I explained to you in my opening address and at the beginning of the summing up you have to take your own decision after considering the evidence before the court. You will not be asked for the reasons for your decision. Your possible verdict will be guilty or not guilty.

51. Let me ask the State Counsel and the 1st accused Temo Lutumailagi whether they have anything to be addressed to you.

SC : No issues for re-directions.

A : No, I am satisfied.

52. Now let me ask the Assessors whether they need any clarification.

Assessors informs the Court that they are satisfied with the summing up.

53. You may retire to deliberate. I may request you to take all the documents marked before the Court and your notes. You should consider all documents and evidence and come to your own conclusion. Once you have reached your decision, please advice the Court Clerk so that we can reconvene the Court to receive them.

S. Thurairaja
JUDGE

At Lautoka
29th February, 2012.