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State v Bete - Summing Up [2015] FJHC 958; HAC70.2014 (4 December 2015)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 70 OF 2014

BETWEEN :

STATE

AND :

JIMI BETE

1. The hearing of this case has now reached to its conclusion. It is my duty to sum up the case to you. You will then retire to consider your respective opinions.
   
2. Our functions are different. It is my task to ensure that the trial is conducted according to law. As part of that, I will direct you on the law that applies in this action. You must accept the law from me and apply all directions I give you on matters of law.
   
3. You are to determine the facts of the case, based on the evidence that has been placed before you in this court room. That involves deciding what evidence you accept or refuse. You will then apply the law, as I shall explain it to you, to the facts as you find them to be, and in that way arrive at your opinion.
   
4. I may comment on the facts if I think it will assist you when considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the facts. Hence, it is entirely upon you to accept or disregard it unless it coincides with your own independent opinion. I say so because you are the sole judges of the facts.
   
5. You must reach your opinion on evidence, and nothing but on the evidence itself. Evidence is what the witnesses said from the witness box, documents and other materials received as exhibits. This summing up, statements, arguments, questions and comments made by the counsel of the parties are not evidence. The purpose of the opening address by the learned counsel for the prosecution is to outline the nature of evidence intended to be put before you. The closing addresses of the counsel of the prosecution and the defence are not evidence either. They are their arguments, which you may properly take into account when you evaluate the evidence, but the extent to which you do so is entirely a matter for you.
   
6. If you heard, or read, or otherwise learned anything about this case outside of this courtroom, you must exclude that information or opinions from your consideration. You must have regard only to the testimony and the exhibits put before you in this courtroom during the course of this trial. Ensure that no external influence plays a part in your deliberation. As judges of facts you are allowed to talk, discuss and deliberate facts of this case only among yourselves. However, each one of you must reach your own conclusion or form your own opinion. You are required to give merely your opinion but not the reasons for your opinion. Your opinion need not be unanimous. I must emphasise you that I am not bound by your opinion, but I assure you that I will give the greatest possible weight on your opinions when I form and deliver my judgment.
   
7. Moreover, I must caution you that you should dismiss all emotions of sympathy or prejudice, whether it is sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision, nor should you allow public opinion to influence you. You must approach your duty dispassionately; deciding the facts solely upon the whole of the evidence. It is your duty as judges of facts to decide the legal culpability as set down by law and not the emotional or moral culpability of the action.
   
8. Matters which will concern you are the credibility of the witnesses, and the reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and is correctly recalling the facts about which he or she has testified.
   

9. I now draw your attention to the issue of burden and standard of proof. The accused is presumed to be innocent until he is proven guilty. The presumption of innocence is in force until you form your own opinion that the accused is guilty for the offence based on the evidence presented during the course of this hearing.
   
10. The burden of proof of the charge against the accused person is on the prosecution. It is because the accused person is presumed to be innocent until he is proven guilty. Accordingly, the burden of proof rest on the prosecution throughout the trial and it never shifts to the accused person. In other words there is no burden on the accused person to prove his innocence, as his innocence is presumed by law.
    
11. The standard of proof in criminal trial is "proof beyond reasonable doubt". It means that you must be satisfied in your mind that you are sure of the accused person's guilt. If there is a riddle in your mind as to the guilt of the accused person after deliberating facts based on the evidence presented, that means the prosecution has failed to satisfy you the guilt of the accused person beyond reasonable doubt. If you found any reasonable doubt as to the commission of the offence as charged or any other offence by the accused, such doubt should always be given in favour of the accused person.
    

12. The accused person is charged with one count of " Manslaughter arising from breach of duty" contrary to section 240 and 241(1) of the Crimes Decree and one count of "Reckless or negligent act" contrary to Section 268(b) of the Crimes Decree. The particulars of the two counts are that;
    

13. Section 240 of the Crimes Decree states that;
    

1. the person makes an omission; and
2. the omission causes the death of another person; and

100. the first-mentioned person –
     
     1. has a duty to the other person in accordance with section 241;
     2. the omission amounts to a negligent to breach of the duty, such omission is

14. Section 241 (5) of the Crimes Decree states that;
    

15. Accordingly, the main elements of the offence of " Manslaughter arising from breach of duty" are that;
    

3. Such omission caused the death of the deceased; and
4. That omission constitutes a breach of his duty of care towards the deceased; and
5. The breach of such duty of care was such as to be considered as gross negligence and therefore a crime,
   

16. The definition of "omission" in the legal context is that the failure to act on a duty imposed under the law and such failure could then considered as a breach of duty of care.
    
17. Section 268 (b) of the Crimes Decree states that;
    

2. navigate; or takes part in the navigation or working of, any vessel
   

18. Accordingly, the main elements of the offence of " Reckless or negligent act" are that;
    
    1. The accused,
    2. in a negligent manner,
    3. endanger human life or likely to cause harm to any person,
    4. Navigate a boat,
       
19. The criminal liability in a negligent act is a higher degree of liability than of the civil liability in a negligent act. In order to prove the criminal liability in negligent act, you must satisfied that the omission or the commission of the negligent act went beyond a mere matter of compensation and goes to the extent that it has disregarded the life and safety of other as amount to a crime against the state and conduct deserving punishment.
    
20. Let me give you an example of criminal liability in a negligent act. If A has caused the death of B by alleged negligence, then, in order to establish civil liability, the plaintiff must prove (in addition to pecuniary loss caused by the death) that A owed a duty to B to take care, and that duty was not discharged, and that the default caused the death of B. To convict A of manslaughter, the prosecution must prove the three things above mentioned and must satisfy the jury, in addition, that A's negligence amounted to a crime. In the civil action, if it is proved that A fell short of the standard of reasonable care required by law, it matters not how far he fell short of that standard. The extent of his liability depends not on the degree of negligence, but on the amount of damage done. In a criminal Court, on the contrary, the amount and degree of negligence are the determining question.
    
21. I now take your attention to the agreed fact, which is before you. I do not wish to reproduce them in my summing up. You are allowed to consider these agreed facts as proven facts beyond reasonable doubt against the accused by the prosecution.
    

22. The first witness of the prosecution is Mr. Saso Jakimovski. He came to Fiji for a family vacation with the deceased Mr. Mark Hardaker and their two wives. They were staying at the Mana Island Resort. Mr. Saso and Mr. Mark went for a fishing trip on a fibre glass boat in the evening of the 15th of May 2014. They were accompanied by one Nicolas McGee. Mr. Mosese Soqeta was the captain of the boat. They left this fishing trip at around 3.30 p.m and went to several fishing spots. They were at sea for about 2 hours. Mr. Mosese had then told them that it was better for them to get back to the island as sun was setting. They were moving slowly as Nicholas and Mark were still fishing. Mr. Saso was sitting at the front of the boat, facing Mosese at the back. Moses was seated at the back beside the engine. Mark and Nick were seated on the right and left side of Saso respectively.
    
23. While they were moving slowly, Mosese accelerated the boat and turn it to right side to go to the shore. Within seconds of that, another boat came and collided with them on the right side, hitting Mark on his back. Mr. Saso stated that he saw the boat coming towards them only few seconds prior to the coalition. He found Mosese has thrown out to the water. His head was under the water. Mr. Saso with the help of Nicholas got Mosese back to the boat. He saw Mark was lying on bottom of the boat. Mr. Saso then found that Mark started bleeding from his nose, ear and mouth. They took him to the island with the help of other boat and provided him medical aid.
    
24. During the cross examination, Mr. Saso stated that he heard a sound of a boat engine, but could not specify it was whether the engine of their boat or another one. He further stated that the front side of the said boat collided with their one.
    
25. The second witness of the prosecution is Mr. Nicolas McGee, who was in the boat with the deceased Mark, Saso and Mosese at the time of this incident took place. He stated in his evidence that he suddenly saw from a corner of his eye that a boat was coming towards them. The same time, Mosese speeded up the boat. He was sitting on the right side of the Mosese and was looking towards Mosese, who was seated at the back of the boat beside the engine. Mark was seated at the left side of Mosese. The said boat came and collided with their boat on the left side. It hit Mark on his head. The tip of the front part of the boat came and hit them and it was really up when the impact was made.
    
26. Mr. McGee in his cross examination stated that their boat was moving very slowly about 5 k.m.h. They were still fishing at the time of this incident took place. He further stated that he did not see any boat around the area and only saw this boat just before the collision. He went further and stated that it was a clear sunny evening.
    
27. The third witness of the prosecution is Dr. Elenoa Naika. She conducted the medical examination of Mosese Soqeta at the Nadi Hospital on the 16th of May 2014. She in her evidence explained the history related to her by the patient and her medical findings. The patient appeared normal, through he was not neatly dressed. He was not confused and understanding what she was asking.
    
28. The fourth witness of the prosecution is Emani Naqura. He was traveling in the boat which was captained by the captain. Mr. Eamni and few others were going to Tavua island for a church choir fundraising. The sea was quite rough and windy but not that much when he boarded to the boat. He seated at the front of the boat facing the backside of it. The accused was the captain of their boat, who seated next to the engine at the back. He was holding the engine from his left hand when they were traveling. He suddenly felt the boat hit a rock, but later found that they have actually collided with another boat. The boat that they collided with was also the same size as of them. Their boat was traveling fast as it was going against the tide. Mr. Emani further stated that it was a bright sunny evening as it was still daylight when this incident took place.
    
29. The fifth witness of the prosecution is Mr. Rupeni Basudra. He was also traveling in the boat which the accused was the captain in the evening of 15th of May 2014. He was traveling to Tavua island to participate at a church function with few others from Mana Islands. The accused was the captain of their boat. They left Mana island around 6 p.m. It was still day light but windy. The sea was rough and choppy. He felt and heard the sound of the front side of the boat hit the waves. The boat bumped when it hit the waves. The accused was sitting next to the engine on its right hand side at the back of the boat. He did not see this accident. He came to know about it only when their boat stopped and turned back.
    
30. The sixth witness of the prosecution is Ms. Mariama Tabua. She was also traveling to Tavua island with others in the boat captained by the accused in the evening of 15th of May 2014. She stated in her evidence that the weather was good but bit windy. It was still daylight when they started their trip from Mana Island. The boat went around the island and then went down. While they were still at the Mana island's water, she felt that her boat hit with something. She later found that her boat had collided with another boat. According to the evidence given by Ms. Mariama, her boat was not travelling that fast. She could not see the front of the boat as she was seated facing back side of the boat. She found the front portion of the boat was bit up while it was traveling. She could hear the sound of the tide hitting the front side of the boat. It was bumping as it was going against the coming tides.
    
31. The last witness of the prosecution is Sargent Kavita, who is the investigation officer of this incident. She explained in her evidence the manner that she investigated this incident. She did not visit the place of the incident on the 15th, but visited it two days later. She stated that she only followed the instruction came from her superior officers and much of the investigation was done by the crime officer of Nadi Police Station. She explained the content of the caution interview made by Mosese Soqeta in her evidence.
    
32. At the conclusion of the prosecution case, the accused person was explained about his rights in defence. He advised the court that he neither wish to give evidence on oaths nor call any other witnesses for the defence.
    
33. I have summarised the evidence presented during the course of this hearing. However, I might have missed some. It is not because they are not important. You have heard every items of evidence and recall yourselves on all of them. What I did only was to draw your attention to the main items of evidence and help you in recalling yourselves of the evidence.
    
34. The prosecution presented evidence that the accused was sailing his boat against the tide. It was a bit windy evening and sea was rough and choppy. The boat was travelling fast as it was going against the tide. The accused was seated at the back of the boat beside the engine. He was seated at the right side of the engine and was holding it with his left hand. The accused had stated in his caution interview that a captain of a fibreglass boat is required either to stand and hold the engine or to sit beside the engine and look at the front from the right side of the boat. He went further and stated in his caution interview that he had to sit and look at the front from right side as it was difficult for him to stand due to the condition of the sea. The front portion of the boat was lifted up and was hitting the tide, which made the boat rugged. The accused had further stated in his caution interview that he did not see any boat coming in front of him. He was not aware about the boat which eventually collided with his until his boat hit on it.
    
35. In the meantime, late Mr. Mosese, the captain of the other boat had stated in his caution interview that he saw the boat of the accused was coming towards them about 200 meters away. However, he had presumed that the captain of that boat might have seen his boat. After a while he suddenly saw the boat of the accused was very close to him and was going to hit his boat. He then accelerated his boat and tried to turn to right side to avoid the collision, but it was too late.
    
36. None of the witnesses who travelled in the boat captained by the accused had seen this fatal boat prior to the collision. Moreover, two witnesses who were in that fatal boat also had not seen the incoming boat until it hit on them.
    
37. You heard, observed and witnessed that all the witnesses gave evidence in court. It is your duty as judges of facts to consider the demeanour of the witnesses, how they react to being cross examined and re-examined, whether they were evasive, in order to decide the credibility of the witness and the evidence. You should then consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Apart from that you are required to consider the consistency of the witness, not only with his/her evidence, but also with other evidence presented in the case. It will assist you in assessing the evidence presented in the case and forming your decision to accept or refuse the evidence or witnesses or part of them.
    
38. Upon consideration of the all the evidence presented during the course of the hearing, if you are not satisfied beyond reasonable doubt that
    

5. That breach of duty of care was such as to be considered as gross negligence and therefore a crime,
   

R. D. R. Thushara Rajasinghe
Judge

At Lautoka
04th of December 2015

Solicitors : Office of the Director of Public Prosecutions
Aman Ravindra-Singh Lawyers