IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

High Court Criminal Case No. 41 of 2014

STATE

V

TOMASI TAKAKA

Counsel: Mr. L. Fotofili for the State
Mr. M.Fesaitu (L.A.C.) for the Accused

Dates of Hearing: 6, 7, 8 July 2015
Date of this Summing Up: 8 July 2015

SUMMING UP

[1] It is now time for me to sum up this case to you, Ladies and Gentleman. By that I mean I will tell you exactly what the law is that you need to know for your deliberations and I will do my best to sum up the relevant evidence for you. We have different roles now in this process. I am the Judge of the law and you must accept what I say about the law. You are the Judges of the facts and you must decide the issues of fact in this case. I do not have to accept your final verdict but I will give it the greatest possible weight when I come to decide the final judgment of the Court. 

[2] Counsel for the prosecution and the defence had made submissions to you about how you should find the facts of this case. They have the right to make these comments because it is part of their duties as counsel. However you are not bound by what counsel for either side has told you about the facts of the case. If you think that their comments appeal to your common sense and judgment, you may use them as you think fit. You are the representatives of the community of this trial and it is for you to decide which version of the evidence to accept or reject.

[3] You must try this case solely on the law. Do not let sympathy for any one party or prejudice play any part in your deliberations. 

[4] It is most important that I remind you of what I said at the beginning of this trial and that is that you cannot convict the accused in this case of anything unless you are sure of it. If you have any reasonable doubt (and it must be reasonable not fanciful) then you will give the accused the benefit of that doubt in the way that I will later direct you. 

[5] The accused, as you are well aware, is charged with murder.

[6] Murder is made up of three elements each of which must be proved by the State to the required standard. These three elements are:

(i) a person engages in conduct;

(ii) that conduct causes the death of another person;

(iii) the person intends to cause the death, or is reckless as to causing the death of the other person by that conduct.

[7] Conduct can be anything such as stabbing, strangling, poisoning, punching chopping etc., and if that conduct causes the other person to die, then the third element comes into play. The State in this case is saying that the accused engaged in the conduct of punching and kicking and that it caused his death. I do not think that you will have any trouble with these first two elements of murder. There is ample evidence that the accused engaged in conduct (punching kicking and stamping on his head) that resulted in Tarakai's death. Moreover, the accused himself tells us that he used violence against the deceased and the defence concede that that violence caused Tarakai's death. The State is saying that he was not necessarily intending to kill him but they say in the alternative, that he was nevertheless reckless in causing his death. Now a person is reckless with respect to causing death if he is aware of a substantial risk that death will occur by his actions and having regard to the circumstances known to him, it is unjustifiable to take that risk. So in our case you must find proved that, he engaged in conduct that caused the death and that he knew that there was a risk that what he was doing might kill him and also that he was not justified in taking that risk.

[8] An alternative verdict to murder which is available for you to find, is guilty of the lesser offence of manslaughter. Manslaughter has the same first two ingredients of murder; that is to say that the accused engages in conduct which caused the death of another, but instead of the recklessness as to causing the death by his conduct, he just has to be reckless as to whether his conduct will cause serious harm to the victim.

[9] So, what does this mean for us in this case? The only issue in this case for you to decide and it is a rather big issue is what was in Tomasi's mind at the time of the attack. We start from the premise of the agreement between the parties that he had no intention to kill Tarakai. You must therefore consider his recklessness in what he did. If you think that he was so reckless that there was every chance of death occurring by his actions, then he is guilty of murder; however if you think his recklessness extended only to the causing of serious harm toTarakai, then he is not guilty of murder but guilty of the lesser offence of manslaughter. It is all about the degree of the violence, and I think that the post-mortem evidence will help you here.

[10] Apart from the post mortem evidence which shows the result of the violence occasioned and the Pathologist's opinion that the force used must have been heavy, you will consider the evidence of the accused himself and the descriptions he gives to his actions at the time. 

[11] Another defence that you need to consider if you find it to be relevant is the defence 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. 

[12] Provocation has a special legal meaning and you must consider it in the following way. First you must ask yourselves whether Tomasi, the accused, was provoked in the legal sense at all. A person is provoked if he is caused suddenly and temporarily to lose his self-control by things that had been done and said by the deceased, rather than just by his own bad temper. It can be a long term provocation, more like the simmering pot that is causing stress for a long time and there is suddenly a "trigger" to make the pot boil over. There is a suggestion in the caution interview that Tomasiwas very angry and he tells us in his evidence that the deceased used to bully him as a child and he had always felt bad about that. It was when he was hit over the head and made fun of at the drinks that he was triggered into the violent behavior he told us about. 

[13] If you are sure that the accused was not provoked in that sense, the defence of provocation does not arise and you are then left to decide the degree of recklessness undertaken by the accused in doing what he did to Tarakai. 

[14] But if you do conclude that Tomasi was or might have been provoked in the sense which I have explained, you must go on to weigh up how serious the provocation was for him. Was there anything about this accused which may have made was what said and done affect him more than it might have affected other people? You must also ask yourselves whether a person having the powers of self control to be expected of an ordinary sober person of Tomasi's age and sex would have been provoked to lose his self control and act in the way that Tomasi did that morning. If you are sure that such a person would not have done so, the prosecution will have disproved provocation and you will consider the reckless point to decide whether it is murder or manslaughter. If, however you conclude that such a person would or might have reacted and done as Tomasi did, your verdict would be one of not guilty of murder, but guilty of manslaughter. 

[15] Another matter you might consider is the law relating to intoxication. Now we have heard a lot of evidence about excessive drinking of toddy that night by Tomasi and by Tarakai. Tomasi himself tells us that he was drunk but he told Mr. Fotofili in cross-examination that he was walking alright and he could tell right from wrong The state of intoxication is something that you must take into account as one of the many factors when ascertaining the accused's intentions as mentioned earlier. A drunken intention is still an intention but you must ask, did the accused really do the unlawful act knowing that there was a risk death might ensue, but carried on the attack in any event, knowing that he had no justification in taking the risk. Was he so drunk that he was unable to properly assess the situation? It is not a defence for the accused to say that if he was not drunk he would have not acted in this way or that he failed to see the consequences of his act because he was drunk. You will remember that Tomasi told us in evidence that at the time he knew what he was doing, so he is not really asking you to consider his intoxication.

[16] It would be usual for me at this stage of the Summing Up to summarise all of the evidence for you, but Ladies and Gentleman, this is an unusual case, because most of the evidence has been agreed, 

[17] It is not in dispute that on the night of 26/27 April 2014 at Uma Village Rabi, a small group of young men from the village were drinking toddy. A fight erupted between Tomasi, the accused, and Tarakai, the deceased, for whatever reason. It is not in dispute that the fight developed to the point when Tarakai was on the concrete floor of the village centre after being punched and Tomasi was kicking his head with quite forceful kicks. It is not in dispute that as a result of this violent attack, Tarakai died. 

[18] The only issue to be determined in this case is Tomasi's culpability for this death. In doing what he did Tomasi must in law be guilty either of murder or of manslaughter. There is no room in this case for an opinion of not guilty.

[19] So in deliberating on this choice, Ladies and Gentleman, your task can be put in this way. 

[20] First you will decide whether the defence of provocation is available to the accused. In coming to this decision you will apply the tests I have directed you on earlier. Would the ordinary person of Tomasi's age and temperament have reacted this way to what he says were years of teasing and minor physical abuse such as slapping etc.? Did that entitle Tomasi to "snap" and indulge in this frenzy of kicking Tarakai's head when he was down on the concrete floor? If you think, yes, then you will return with an opinion of not guilty of murder but guilty of manslaughter. 

[21] If you think no, that was an unreasonable reaction in the circumstances, then you will go on to consider Tomasi's recklessness in doing what he did. Was, what he did so reckless that he should have known that death could result but carried on regardless?:or was he so reckless as to what he was doing he would cause serious harm to Tarakai but carried on regardless?

[22] If the former it is murder, if the latter it is manslaughter.To assist you in this task, the prosecution would ask that you take into account the multiple lethal injuries itemized by Dr. Goundar, the pathologist in his post mortem report as well as the answers that Tomasi gave in his police interview; answers such as (Q47) "I kicked his face and his head": (Q51) "I kicked (his face and head) about 5 to 6 times".

[23] The defence would ask you to consider Tomasi's evidence in Court when he said that he had no intention to kill, he just wanted to teach Tarakai a lesson and get his own back for past abuse, He said "I was really angry because I was thinking about all those bullying times"

[24] Well Ladies and Gentleman, that is the issue for you to decide, and it is a big issue. It would be best if you could all be agreed but that is not strictly necessary. You will please tell a member of my staff when you are ready and I will reconvene the Court. You will be asked individually for your opinions and you will not have to give reasons. Your possible opinions are:

1.	Guilty of murder, or
2.	Not guilty of murder, but guilty of manslaughter.

 There is no room in this case for any other opinion. 

[25] You may now retire but just before you do I will ask Counsel if either of them wish me to add or alter anything in the Summing Up. 

[26] Counsel?

Justice P.K. Madigan
Judge

At Labasa
8 July, 2015