IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 124 OF 2013S

STATE

V

SALESH KUMAR

Counsels : Mr. S. Vodokisolomone and Ms. S. Naibe for State
 Mr. J. Singh for Accused

Hearings : 31 August, 1 to 3 September, 2015
Summing Up : 4 September, 2015

SUMMING UP

A.	ROLE OF JUDGE AND ASSESSORS 
1.	Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.

2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.

3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and they need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.

B.	THE BURDEN AND STANDARD OF PROOF 
4.	As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.

5.	The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that 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.

6.	Your decision must be based 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. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.

C.	THE INFORMATION 
7.	You have a copy of the information with you, and I will now read the same to you:

 "… [read from the information]…."

D.	THE MAIN ISSUE 
8.	In this case, as assessors and judges of fact, each of you will have to answer the following question:

(i)	Did the accused, on 8 March 2013, at Serua in the Central Division, being the driver of bus registration number FX 636, fail to slow or stop the said bus, which was a negligent breach of his duty being in control of such a bus, and thereby cause the death of his passenger Jone Vucago?
 
E. THE OFFENCE AND ITS ELEMENTS
9. The accused was charged with the "manslaughter" of Jone Vucago on 8 March 2013, at Serua in the Central Division, contrary to sections 240 and 241(5) of the Crimes Decree 2009. For the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:

 (i) the accused makes an omission; and

 (ii) the omission causes the death of the deceased; and

(iii)	at the time of the omission, the accused:

(a)	has a duty to the deceased as a bus driver that, when driving his bus, he is to use reasonable care and take reasonable precaution, to safeguard the life, safety and health of his passengers; and

(b)	the omission amounts to a negligent breach of the above duty, whether or not he intended to cause death or bodily harm to the deceased.
 
10. "Manslaughter", as described above, has three elements. The first element is that described in paragraph 9(i) above, that is, "an accused person makes an omission". According to the Oxford Advanced Learner's Dictionary (6th edition, Oxford University Press, 2002), the word "omission" means "the act of not doing something", or "the act of not doing things that should be done", or "a thing that has not been done". For example, A is B's father. B is 11 years old. B suffers from a severe sickness. A fails to take B to a doctor for medical examination and treatment. B dies from his sickness 2 days later. A made an omission by failing to take B to a doctor for medical examination and treatment. Likewise, when A is conveying B in his bus for hire. B tells A he wants to get off the bus. A does not stop the bus for B to get off. A continues to drive on. B jumps off the bus, and dies as a result of the severe injuries he suffered. A made an omission by failing to stop the bus for B to safely get off the same. This first element is the physical part of the offence.

11. The second element of the offence is that described in paragraph 9(ii) above, that is, "the accused's omission causes the death of the deceased". This simply meant that the accused's omission was a substantial contributor to the deceased's death. In other words, the accused's omission was a substantial contributor or cause of the deceased's death. The deceased would not have died, had it not been for the accused's omission. Continuing from the examples discussed above, child B would not have died from his sickness had his father A took him to a doctor for medical examination and treatment. By failing to take his child B to a doctor for medical examination and treatment (an omission), A's omission was a substantial contributor or cause of child B's death. Likewise, B would not have jumped off the bus, and suffered those severe injuries resulting in his death, had A, the bus driver, stopped his bus for B to safely get off. By failing to stop his bus for B to safely get off (omission), A's omission was a substantial contributor or cause of B's death.
 
12. The third element of the offence is that described in paragraph 9(iii)(a) and (b) hereof. This is the fault element of the offence. The fault element is basically that of negligence. For negligence to be established, the accused must be shown to owe a duty of care to the deceased, in their relationship. Once a duty of care is found to exist between the accused and the deceased, the accused is expected to exercise the standard of care that a reasonable person would exercise in the particular circumstances of the case. If the omission done by the accused falls below the standard of care a reasonable person would exercise in the particular circumstances of the case, and the deceased suffered death as a result, the accused's omission would amount to a breach of the duty of care the accused owed the deceased. The consequence then would be, the accused, by his omission, was negligent to the deceased. Continuing from the above example, A (father) owes a duty of care to B (child) to use the standard of care a reasonable father would do, in looking after a sick child. A, as a father, would take his child, B, to a doctor for medical examination and treatment. A omitted to take B to a doctor, and consequently 2 days after, the child B died from his sickness. A's omission was a breach of his duty of care to B, and consequently, he was negligent. Likewise, A conveying B in his bus for hire. A owes a duty of care to B to drive his bus properly so that B reaches his destination. The standard of care expected from A is to use reasonable care in conveying B to his destination. B wanted A to stop, so he could get off. A refused. B jumped off the bus, suffered severe injuries and died as a result. By refusing to stop (omission), A had breached the standard of care a reasonable driver would do in such circumstance, to avoid injuring B. A was therefore negligent by not stopping to let B off. The above is a summary of the elements of "manslaughter" in this case.

F. THE PROSECUTION'S CASE 

13. The prosecution's case were as follows. On 8 March 2013, the accused (DW1) was 33 years old, married with 2 children, aged 12 years and 11 years old. He resided at Bilalevu Sigatoka with his family. He drives buses for a living, and had been doing so for the previous 13 years. He reached Form 6 level education. The deceased, on the other hand, was Iowane Waqaicece's (PW6) eldest son. He was 17 years old at the time. He had three younger siblings.

14. On 8 March 2013, the accused was driving a Nikhil bus from Suva bus stand to Sigatoka. The bus was registered as FX 636. The bus had a capacity for 60 passengers. At 6.30pm on 8 March 2013, the accused drove FX 636 from Suva Bus Stand towards Sigatoka. There was a reasonable number of passengers in the bus. The bus stopped at Lami to pick up passengers, and then it continued towards Navua. At Navua, it dropped some passengers, and then continued towards Pacific Harbour. At Pacific Harbour, the accused picked up the deceased as a passenger. According to Varanisese Luvena (PW1), the deceased was aged between 17 and 18, he wore a vest and sport shorts, with a canvas. He was also carrying a bag. Mere Volai (PW2) also confirmed the above. Both PW1 and PW2 were front seat passengers of the accused's bus, at the time.

15. According to the prosecution, the deceased was travelling to Nakorovou, Serua. The fare from Pacific Harbour to Nakorovou was $1.60. From Pacific Harbour, the accused drove FX 636 towards Sigatoka. At Nakorovou, the bus stopped. Only two ladies got off. It appeared, the deceased stayed on in the bus. The driver then announced to the passengers that there would be no stopping until Yarawa. The bus then continued towards Sigatoka. Between Nakorovou and Yarawa, the deceased stood up from his seat and indicated to the checker that he wanted to get off the bus. He wanted the bus to stop. The checker told the accused that deceased wanted to get off the bus. The accused refused to stop, and kept on driving the bus forward.

16. According to the prosecution, the deceased then walked to the front of the bus. He came to the exit steps. The bus exit door was not closed, it was open. PW2, who was sitting on front first seat to the left said, the deceased asked the checker and the bus driver four times to stop the bus, but the accused ignored him and drove on. The deceased went to the exit step. There was some verbal exchanges with the checker. The accused saw the deceased going to the exit steps of the bus. He did not close the door. The deceased then jumped off the bus after the driver refused to stop. The driver continued driving towards Sigatoka and didn't stop to check on the deceased. At Korolevu Police Post, the accused's bus was stopped by police. An investigation into the incident was then carried out.
 
17. Napolioni Locoloco (PW3) was travelling to Suva from Sigatoka in a private car. He and his friends located the deceased in Serua lying on the road. Blood was coming from his head and he appeared unconscious. They conveyed him to Navua Hospital in a government vehicle. At the hospital, Doctor Sailosi Soqo (PW4) examined the deceased. He tried to revive him to no avail. He then declared the deceased had died. On 12 March 2013, Doctor Abha Gupta (PW9) performed a post-mortem on the deceased. She found the cause of the deceased's death was severe head and skull injuries, caused as a result of him jumping from a running bus and hitting the ground, and pronounced dead at Navua Hospital. The accused was cautioned interviewed by police on 9 and 10 March 2013. He appeared in the Navua Magistrate Court on 14 March 2013, charged with the manslaughter of the deceased.

18. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.

G.	THE ACCUSED'S CASE

19. On 31 August 2015, the first day of the trial proper, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to the charge. In other words, he denied the manslaughter allegation against him. When a prima facie case was found against him, at the end of the prosecution's case, wherein he was put to his defence, he choose to give sworn evidence and called no witness, in his defence. That was his right.

20. In his sworn evidence, the accused admitted, he was driving a Nikhil bus registration number FX 636, at the material time. He admitted Kunal Kumar was his bus checker at the time. He admitted he left Suva bus stand on 8 March 2013 at 6.30pm and drove towards Sigatoka. He admitted he stopped at Lami and Navua. He admitted he picked one "i-taukei" boy from Pacific Harbour. He admitted the boy was wearing a red and black vest, white shorts and black canvas. He was also carrying a bag. From Pacific Harbour, he admitted he drove towards Sigatoka. He said, he stopped at Nakorovou.

21. A lady got off, but the "i-taukei" boy did not get off. He said, he saw the "i-taukei" boy talking to the checker, at the front of the bus. He said, he asked the checker what was going on. The checker said the boy wanted to get off. He said, he told the checker to tell him to wait, and he will stop in the front. He said, the boy wanted to back slap the checker. He said, he told the boy he would drop him off in front in a safe place. He said, he was travelling at 60 kmph. He said, he saw the boy standing at the exit steps of the bus. He said, he slowed down. He said, the boy suddenly jumped from the moving bus. He said, he did not stop to check on the boy, and kept on driving. He said, it was between 7.30pm to 8pm. He said, he was stopped by police at Korolevu Police Post.

22. The accused admitted he was caution interviewed by police officer Nacani Bolabiu (PW8) on 9 and 10 March 2013. The interview notes were tendered as Prosecution Exhibits 1(A), 1(B), 2(A) and 2(B) respectively. In the interview notes, the accused allegedly admitted the offence. However, the accused said he did not give his statements voluntarily and you, as assessors and judges of fact, should disregard the same. He maintained he is not guilty of the manslaughter of the deceased.

23. Because of the above, the accused is asking you, as assessors and judges of fact, to find him not guilty as charged. That was the case for the defence.

H.	ANALYSIS OF THE EVIDENCE
(a) The Agreed Facts:

24. The parties had submitted an "Agreed Facts". A copy of the same is with you. Please read and understand the same carefully. There are 9 paragraphs of "Agreed Facts". Because the parties are not disputing the above. "Agreed Facts" you may take it that the prosecution had proven those facts beyond a reasonable doubt. You may treat the "Agreed Facts" as established facts.

 (b) The Accused's Alleged Confessions in his 9 March 2013 police caution interview statements [Prosecution Exhibit 1(A) and 1(B), and 10 March 2013 Police Caution Interview Statements [Prosecution Exhibit No. 2(A) and 2(B)]:

25. A major part of the prosecution's case against the accused was based on his alleged confessions in his two police caution interview statements, which were tendered as Prosecution Exhibits No. 1(A) – hand written version; and 1(B) – typed version. This was the interview done on 9 March 2013. The interview done on 10 March 2013, was tendered as Prosecution Exhibit No. 2(A) – hand written version; and 2(B) – the typed version. Both interviews were done by then Sergeant 2168 Nacani Bolabiu (PW8). The interviews were done one to two days after the alleged incident on 8 March 2013. So, it was arguable that matters were still fresh in the accused's mind. You must read and understand both interview statements carefully.

26. When discussing the accused's above police caution interview statements, we will first identify the portions where he was alleged to have admitted to parts of the elements of the "manslaughter" charge against him. Second, we will then move on to consider the issue of whether or not the accused gave his police caution interview statements voluntarily. When discussing the accused's alleged confession in his police caution interview statements, please bear in mind the elements of "manslaughter" we discussed in sub-heading E hereof, that is, the "offence and its elements".

27. On 9 March 2013, at Navua Police Station, police officer Nacani Bolabiu (PW8) asked the accused a total of 84 questions, and the accused gave 84 answers. The accused was interviewed in the English language in question and answer form. He reached Form 6 level education. The interview started at 2.40pm and it concluded sometimes after 8.30pm. His right to counsel and other support people were given to him. He was formally cautioned. He was offered the standard breaks after questions 16 and 48, but he refused to take the same. From 6.20pm to 8.30pm, the accused was given a 2 hours 10 minutes break for scene reconstruction. The police investigation officer, Corporal 2821 Mataiasi Raivuni (PW10) said, the accused was given his meals while in police custody.

28. With reference to the first element of manslaughter, as discussed in paragraph 9(i) hereof, that is, "the accused makes an omission", the accused admitted, he failed to stop his bus, when the "i-taukei boy" (deceased) asked for the bus to stop after Nakorovou. Please refer to questions and answers 19, 20, 29, 30, 34, 37, 38, 41, 43, 44, 45, 46, 49, 50, 51, 52, 53, 54, 55, 56, 57, 59, 61, 62, 63, 64, 65, 67, 68, 70 and 71 of Prosecution Exhibit No. 1(B). In the above questions and answers, the accused admitted the "i-taukei" boy (deceased) came on board his bus at Pacific Harbour. He was to be dropped at Nakorovou. He did not get off at Nakorovou. He wanted to be drop off approximately 2 kilometers from Nakorovou. He stood up and asked the driver and his checker about 4 times to get off, but the driver omitted to stop the bus for him to get off. He moved towards the exit steps. The accused, as the driver, still failed to stop the bus for the boy to get off. It would appear that the accused, as the bus driver, at the material time, made an omission by not stopping the bus when requested to do so, and thereby forcing the "i-taukei" boy to jump off the same.

29. On the second and third element of manslaughter as discussed in paragraphs 9(ii) and 9(iii)(a) and (b) hereof, we will discuss these issues when we discuss other state witnesses evidence.

30. You may use the accused's alleged admissions as discussed in paragraph 28 hereof, to find that "the acused, at the material time, made an omission", thereby finding that the prosecution had proven beyond reasonable doubt the first element of manslaughter, as described in paragraph 9(i) hereof. However, before you consider the above, I must, as a matter of law, direct you as follows. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, before you can accept a confession, you must be satisfied beyond reasonable that it was given voluntarily by its maker. The prosecution must satisfy you beyond reasonable doubt that the accused gave his statements voluntarily, that is, he gave his statements out of his own free will. Evidence that the accused had been assaulted, threatened or unfairly induced into giving those statements, will negate free will, and as judges of fact, you are entitled to disregard them. However, if you are satisfied beyond reasonable doubt, so that you are sure, that the accused gave those statements voluntarily and they were the truth, as judges of fact, you are entitled to rely on them for or against the accused. It is a matter entirely for you.
 
31. In this case, the parties' version of events different on the issue of whether or not the accused gave his caution interview statements to the police voluntarily on 9 and 10 March 2013, at Navua Police Station. The caution interview officer (PW8) said, he did not assault, threaten or made false promises to the accused, while he was in his custody. He said, during the interview he was given the standard rest and meal breaks. He was formally cautioned. Police investigation officer Corporal 2821 Mataiasi Raivuni (PW10) said, the accused was given all his meals while in police custody. Police Officer SC 473 Samisoni Tuiwate (PW5) said he did not assault, threaten or made promises to the accused when he stopped him at Korolevu Police Post. The accused, on the other hand, said PW8 threatened, swore and talked roughly to him during the interview. He said, he was not given his rest and meal breaks. He said, PW8 fabricated his caution interview answers. However, the accused made no complaints to the Navua Magistrate Court on 14 March 2013 about improper police behaviour, when he first appeared there. Neither did he complaint to the Suva High Court on first call on 5 April 2013, about any improper police behaviour. You have watched and heard the witnesses. Which version of events to accept is entirely a matter for you.

 (c) The Evidences of Napolione Locoloco (PW3); Doctor Sailosi Soqo (PW4); Iowane Waqaicece (PW6) and Doctor Abha Gupta (PW9):

32. The evidence of the above witnesses were called by the prosecution to prove the second element of the offence of manslaughter, as discussed in paragraphs 9(ii) and 11 hereof. Napolione Locoloco (PW3) was travelling from Sigatoka to Suva in a private car with friends on 8 March 2013 between 7pm and 8pm. The accused, in his evidence, said the "i-taukei" boy (deceased) jumped off his bus after leaving Nakorovou between 7.30pm to 8pm. PW3 said while travelling along the road in Serua, they found a young boy lying along the side of the road with blood coming from his head. He wore a red vest, shorts and tights. His books were scattered along the road. PW3 managed to convey the boy in a government vehicle to Navua Hospital. At Navua Hospital, Doctor Sailosi Soqo (PW4) attempted to revive him, but to no avail. PW4 said, he found a massive depression to the back of the boy's head. PW4 pronounced the boy dead on arrival at the hospital. On 12 March 2013, Iowane Waqaicece (PW6), the deceased boy's father, took the deceased to CWM Hospital from Navua Hospital for a post–mortem. He was assisted by police officers.

33. Doctor Abha Gupta (PW9) did a post-mortem on the deceased boy on 12 March 2013. She submitted her post-mortem report as Prosecution Exhibit No. 3. Please read the post mortem report carefully. PW9 had done about 1,000 post mortem in Fiji. PW9 said, she found a deep wound at the back of the deceased boy's head. The wound went deep into the skull bone. She said, when they opened the deceased's head, the whole of his brain was covered with blood. This was unusual. She said, the cause of the boy's death was head injuries and fractured skull. She said, the deceased must have hit the ground when he allegedly jumped from the running bus. The injuries, she said, was consistent with the above actions. When you combine the total effect of Napolione Locoloco's (PW3) evidence, with the accused's (DW1) evidence, Doctor Sailosi Soqo's (PW4) evidence, Iowane Waqaicece's (PW6) evidence and Doctor Abha Gupta's (PW9) evidence, the inference was that the accused's omission to stop the bus when the deceased requested the same, and thereby forced him to jump from the running bus, was a substantial contributor and/or cause of the deceased's head injuries which lead to his death. One could say that the accused's omission to stop the bus set in train a chain of events that caused the deceased's death. It is a matter entirely for you.

 (d) The Evidence of Mikaele Vulaca (PW7):

34. The prosecution called Mikaele Vulaca (PW7) to prove the third element of "manslaughter", as described in paragraphs 9(iii)(a) and (b) and 12 hereof. PW7 had worked for the Land Transport Authority (LTA) for the last 26 years. He had been appointed as the Road Safety Officer since January 2015. He is familiar with the regulation governing the conduct of PSV drivers. He said, the conduct of PSV drivers is governed by the Land Transport Act 1998 and the Land Transport (Public Service Vehicles) Regulation 2000. He said, the relevant part is Regulation 22(1)(b), which reads as follows, "…The driver of a public service vehicle, other than a rental vehicle, when driving, must take all reasonable precautions to ensure the safety of passengers in or on or entering or alighting from the vehicle…" As a matter of law, the duties cast on a Public Service Vehicle (PSV) driver as imposed by Regulation 22(1)(b) above is exactly the same as the duty cast on a similar driver under Section 241(5) of the Crimes Decree 2009. PW7 said, the driver's duty is to ensure the safety of the passengers in the bus. If someone is standing on an exit, the bus should slow down or stop. He said, the driver must take a common sense approach to the issue of safety. He said, if a passenger wants to get off a bus, the duty of the driver is to stop. If the passenger had not paid the correct fare, and he wanted the bus to stop, PW7 said, the driver was duty bound to stop, and then demand the correct fare. He appeared to say that the conflict between the correct fair and the safety of passengers, safety issues are supreme.

35. One therefore may ask the question: Did the accused breached his duty when he omitted to stop the bus when the deceased was asking for the same to stop, even though the deceased may have not paid the correct fair? In my view, given what PW7 said above, it would be a breach of his duty to omit to stop the bus when the deceased asked for the same to stop, because the passenger's safety demanded that the bus be stopped. He can then demand from the passenger that the correct fare be paid. However, it is a matter entirely for you.

 (e) The Evidence of Varanisese Luvena (PW1) and Mere Volai (PW2):

36. Varanisese Luvena (PW1) was a passenger in the accused's bus, at the material time. She caught the bus from Suva Bus Stand. She sat on the second front seat from the left. PW1 said the "i-taukei" boy got into the accused's bus from Pacific Harbour. At Nakorovou, she said, the boy did not get off the bus. However, when the bus went up Nakorovou Hill, she saw the boy sit on the second seat behind the driver. She said, she saw the boy signaled to the checker for the bus to stop. She said, the checker told the boy "No!" She said, the driver said "Korovisilou/Serua!" This was quite a distance away from where the boy wanted to stop. PW1 said, the boy stood up and walked to the bus exit footsteps beside the driver. There were exchanges between the checker and the boy. PW1 said the driver never stopped the bus. PW1 said the boy shouted "Stop! Stop! Stop!" to the checker and driver, but to no avail. After a while, he looked at the exit, and the boy was not there. Mere Volai (PW2) was sitting in front of PW2, on the first front seat at the left. PW2 confirmed that the boy got into the bus at Pacific Harbour. After Nakorovou, PW2 confirmed the boy wanted to get off the bus. PW2 said the boy asked the driver four times to stop the bus. He did not stop the bus. The boy moved towards the exit step. The bus driver still did not stop the bus. PW2 said, he saw the boy jumped out the bus through the exit door.

 (f) Considering all the Evidence Together:

37. You must consider the evidence together in its totality. You must compare and analyze all the evidence together. You have heard and watched all the witnesses give evidence in the courtroom. You have observed their demeanour. Who do you think was the credible witness? Who do you think was forthright as a witness? Who was evasive as a witness? Who do you think, from your point of view, was telling the truth? If you think the prosecution's witnesses were credible, then you must find the accused guilty as charged. If they were otherwise, then you must find the accused not guilty as charged. It is a matter entirely for you.

I. SUMMARY

38. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused's guilt, you must find him not guilty as charged.

39. Your possible opinions are as follows:

(i) Manslaughter : Accused : Guilty or Not Guilty

40. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Samusamuvodre & Sharma, Barrister and Solicitor, Suva.