IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Crim. Case No: HAC 149 of 2015

STATE

v.

USAIA KILAIVERATA

Counsel:		 Mr Delaney M. and Mr Kumar R. for State
			 Ms. Vaniqi S. for Accused

Hearing:		  24th, 25th, 26th October 2016
Summing Up: 	  28th October 2016

SUMMING UP

Ladies and Gentleman Assessor.

1.	It is now my duty to sum up this case to you. I will direct you on matters of law which you must accept and act upon.  On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so, it is a matter for you whether you accept what I say, or form your own opinions.  In other words, you are the judges of fact.  All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

2.	You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused person is guilty or not guilty.

3.	Counsel for the defence and the prosecution made submissions to you about the facts of this case. That is their duty as defence counsel and state counsel. Their submissions are not evidence. You heard the evidence of all witnesses adduced in court. It is a matter for you to decide which version of the facts to accept, or reject.

4.	You will not be asked to give reasons for your opinions but merely your opinions themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that they will carry great weight with me when I deliver my judgment.

5.	As a matter of law, I must direct you that the onus of burden of proof lies on the prosecution throughout the trial and it never shifts. There is no obligation on the accused person to prove his innocence.  Under our criminal justice system an accused person is presumed to be innocent until he is proved guilty. 
6.	The standard of proof in a criminal trial is one of proof beyond reasonable doubt.  This means you must be satisfied so that you are sure of accused person'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.

7.	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 you might have heard about this case, outside of this courtroom. You must disregard them and your opinions should only be based on the evidence given in this court room. 

8.	Your duty is to find the facts based on the evidence, apply the Law to those facts.  Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

9.	You have a copy of the information with you.  The accused is charged with one count of Murder.  The particulars of the offence say that the accused on the 4th day of April 2015 at Suva, murdered Losana McGowan.

10.	For the accused to be found guilty of Murder in this case, the prosecution must prove the following elements beyond reasonable doubt.

1.	The accused;
2.	engaged in a conduct,
3.	That conduct caused the death of the deceased,
4.	Accused intended to cause the death of the deceased Losana, or
5.	That the accused was reckless as to causing the death of Losana 	by the conduct.

11.	The identity of the accused is not in dispute. You have the admitted facts before you. You may consider those facts as led by witnesses in the witness box unchallenged and that they are proved beyond reasonable doubt.

12.	Following facts are admitted by the parties in this case. 

1.	That the accused and the deceased lived together in a defacto relationship at flat No.3 Yatu Lau apartment, Amy street, Toorak, Suva.
2.	On 4th April 2015, the accused assaulted the deceased at flat No.3, Yatu Lau apartment.
3.	The deceased suffered extensive Subarachnoid and subdural Haemorrhage due to a severe traumatic head injury.
4.	The accused voluntarily surrendered himself to Totogo police station at about 7am on 4th April 2015.
5.	The admissibility of the caution interview statement 	is not in dispute.
6.	The authenticity, admissibility and contents of the 	following documents are not in dispute and will be 	tendered in evidence by consent;

a.	Post mortem examination report of 	Losana prepared by Dr. James 	Kalougivaki, dated 14th April 2015.
b.	Rough and fair sketches of Murder 	case at Lot 3, Toorak Road Suva by SC 	2959 Anasa, witnessed by D/P Loli, 	dated 4th April 2015, and
c.	Photographic booklet of photographs 	taken at flat No. 3, Yatu Lau 	apartment, Amy Street, Toorak vide 	Totogo police station report No. 103-	04/15 CSIU photo job No. 170/15 by 	WPC 4486 Maraia.

13.	The second element, 'Engages in a conduct' means to do an act or omit to perform an act.  For example, if you punch a person you engaged in a conduct because you performed an act.  In this case the alleged conduct by the accused is that he punched the deceased and kicked her.

14.	The third element,' the conduct causes the death of the deceased' means; the conduct must cause a substantial cause of the death.  In this case the prosecution story is that the accused punched the deceased and due to that punch the deceased fell and then the accused kicked her on the face and that those injuries caused the death of the deceased.  There is no dispute that the accused assaulted the deceased. It is also admitted that the deceased suffered extensive subarachnoid and subdural haemorrhage due to a severe traumatic head injury. Admitting the assault by the accused, defence says that the deceased fell from the middle of the stairs face down on to the gas tank.  It is for you to decide which version you are going to accept.  However, I must direct you, that in law, it is enough that the accused's act contributed significantly to the death; it need not be the sole or principal cause thereof.

15.	The fourth element, you may decide whether the accused intended to cause the death of the deceased when he assaulted the deceased.  A person’s intentions are locked up in his mind. You may take into account his conduct, in that, the number and the nature of injuries inflicted and the place in the body where the injuries were inflicted, and all the circumstances led in evidence when you decide whether the accused intended to cause the death of the deceased.  May I also tell you that intention need not be pre planned but necessary intention can be formed on the spur-of-the-moment.  

16.	In the event, you find that the accused did not have the intention to kill the deceased or if you are not sure whether he had that intention, you should consider whether the accused was reckless as to causing the death of the deceased. 

17.	As to the recklessness, you may consider whether the accused was aware of the substantial risk that his conduct would cause death of the deceased and having regard to the circumstances whether it was justifiable for him to take the risk.

18.	I will now direct you on the defence of intoxication. The defence says that the accused drank lot of alcohol in the evening the day before till that morning.  In the caution interview statement, the accused had said that they drank about 5 draft beers at GPH, had dinner at Holiday Inn, had 3 draft beers there, they had about 16 jugs of mixed drink of tribe and rum and cola. You also heard the evidence of the doctor that the blood alcohol concentration would depend on the person.  However, a drunken person may still be capable of forming the necessary intention to commit the offence.  A drunken intention is in fact intention.  In his caution interview statement that was produced in evidence with the agreement of the parties, the accused had said that although he was fully drunk he could recall what happened and what he did.  He also had said that after he kicked the face of the deceased, when he saw blood coming out from her mouth and she did not move he applied mouth to mouth (CPR) trying to revive her but it was too late.  In the circumstances, you decide whether the accused was in a state to form the necessary intention to commit the crime.  

19.	If you find that the conduct of the accused caused the death of the deceased and that the accused had the intention to cause death, then you may find the accused guilty of murder.  However, if you find that the accused did not have the intention to kill the deceased, then you go on to consider whether the accused was reckless as to causing the death of the deceased, in that whether he was aware of the substantial risk that the death will occur due to his conduct and in the given circumstances whether it was justifiable for him to take the risk. Prosecution must prove all the elements as I explained to you beyond reasonable doubt to find the accused guilty of murder.

20.	Now what happens if you find that the conduct of the accused caused the death of the deceased but he did not have the intention to kill her or that he was not reckless in causing her death as I explained to you? Then you may find him not guilty for murder but guilty for manslaughter if you find that he intended that his conduct will cause serious harm or he was reckless as to a risk that his conduct will cause serious harm to the deceased. 

21.	Ladies and gentleman assessor, may I direct you on circumstantial evidence.  In circumstantial evidence, you are asked to place the story together from witnesses who did not actually see the crime committed, but give evidence of other circumstances and events that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime.

22.	Let me give you an example of drawing inferences which does not arise on the facts of this case but which illustrates the need for care in judging whether the fact proved supports the inference of guilt. If my fingerprint is found in the living room of my neighbour’s home, it is a sound inference that at some stage I have been in his living room.  It would not, however, support an inference that I was the burglar who stole his DVD recorder from his living room.  If you accepted my neighbour’s evidence that I had never been invited into his home, then, in the absence of some acceptable explanation from me, you might infer that at some stage I had been in my neighbour’s home uninvited.  You may or may not be driven to the further conclusion that I was the burglar.  But, if you also accept that there was found a second fingerprint of mine at the point of entry or, that in my shed there was found a DVD recorder which my neighbour recognizes as the one stolen from his living room, you would, no doubt, conclude so that you were sure that I was the burglar.  You will notice how the inference of guilt becomes more compelling depending upon the nature and number of the facts proved.

23.	What conclusions you reach from the evidence is entirely for you to decide.  When you are considering what inferences you should draw, or what conclusions you should reach, it is important to remember that speculation is no part of that process.  Drawing inferences and reaching conclusions are not the same as fitting the facts to a particular theory.

24.	Having decided what evidence you accept, consider whether, looked at as a whole, it drives you to conclude, so that you are sure, that the accused is guilty.

25.	It must not be mere speculation guesswork.  It is not sufficient that the proved circumstances are merely consistent with the Accused person having committed the crime.  To find him guilty you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved.  It must be an inference that satisfies you beyond reasonable doubt that the Accused committed the crime.

26.	Before you can draw any reasonable inferences you must first be satisfied beyond reasonable doubt that the evidence given by witnesses relating to the circumstances giving rise to the issues of fact to be proven is credible and truthful.

27.	In this case, the neighbour of the accused and the deceased Winston Hill gave evidence as to what he saw and what he heard although he did not see the accused assaulting the deceased. The doctor who did the post mortem on the body of the deceased and the police officer who recorded the statement also testified in court. The last witness for the prosecution was the Crime scene officer.  Prosecution also produced the caution interview statement of the accused, the photographs and sketch of the crime scene with agreement of the parties.  You may also consider all the evidence, circumstantial and direct, when coming to your decision.
	
28.	May I also direct you that a witness can give evidence on his observations, like what he heard, what he saw, and what he perceived. Only on certain circumstances court would allow witnesses to give their opinion on a matter. Those witnesses should be experts on that particular subject. For example, you get experts on medical field, experts on finger prints, experts on fire arms, drug analysis etc.  Now in this case Dr. James Kalougivaki gave evidence on his post mortem examination on the body of the deceased.  His expertise on the medical field was not challenged by the defence.  Therefore, the opinions he gave on his relevant subject are admissible. You may decide what weight you give to that evidence.

Evidence 

29.	Prosecution called Winston Hill to give evidence first.  He had been 	living in an apartment with his siblings and a work colleague in Sunia 	Cama Building, Toorak since November 2014 to December 2015.

30.	Accused had been living in the apartment below with his partner.  On 	4th April 2015 early hours he had heard Usaia calling out to open the 	main 	door.  He had woken up and had seen Usaia outside.  After 	calling a little bit, he said that the door was opened for him to let in.  	He 	said that he believed that it was Usaia’s partner who opened 	the door 	although he did not see her.

31.	Then he had heard them arguing.  They were loud, he said.  He did not know why they were arguing.  He had heard high voice of Usaia’s partner, and words he couldn’t recall.  He said that it was quiet for a little bit and he then heard a loud bang, thudding sound, thudding sound was a heavy drop on the wooden floor, he said.  About 30 seconds after, he said that there was constant thudding sound like someone hitting the wall, he said.  It has repeated about 5-6 times.

32.	He said that after that it was quiet.  He had gone to sleep and after 	waking up by 6am he had gone to work.  When he returned in the 	afternoon he had seen the police at the apartment.

33.	He had known Usaia as a neighbour.  He did not talk to Usaia much, he 	said.  Usaia used to come to the gym where he worked for training, he 	said.

34.	The next witness for the prosecution was Sgt 2660 Apisai.  He said that on 04/04/2015 he was directed to make inquiries in this case.  He had gone to the crime scene with other officers.  Photographs that were taken at the scene were produced in evidence marked Exhibit 1.  He described the photographs to you as it is written below each photograph.

35.	About the blood stains marked in photographs 18 and 19, he said that 	there were more than one blood stain in the markings.  He said that the 	clothes shown in photographs 30, 31, 32, 33 and 34, belonged to the 	deceased.

36.	Looking at photographs 36 and 37, he said that he saw the false tooth 	shown in those in the premises.  He has seen those in the kitchen where 	the deceased’s body was.  He said that the sketch was prepared by a 	colleague and that he doesn’t know the accuracy of it.   

37.	He has interviewed the accused at the police station.  Caution interview statement was produced as Exhibit 2.  Typed version also was produced in evidence.  However, you may remember that there were some differences between the original hand written statement and the typed version.  Hand written statement is the original and therefore you may consider the hand written statement as the correct version.

38.	In cross examination he said that the accused arrived at the police station at 7.10 hours.  He was questioned about the time the caution interview commenced and suspended for medical attention and reconstruction of the scene.  He said that the accused had time to rest when he was interviewed.

39.	After informing the allegation and his rights, he has suspended the interview for medical attention.  Interview has recommenced at 11.00am next day.  He said that the accused fully co-operated with police and answered all questions put to him.  He said according to the answers given by the accused in the caution interview statement the accused and Losana had drunk 5 draft Fiji bitters at GPH.  Then they had drunk 3 draft beers.  Then they had bought 16 jugs of rum and cola after drinking half the jug they had filled it up with vodka, accused had said.

40.	They had started drinking on Friday evening and entered the club at 	7pm, and had left the club at 3am according to question and answer no. 	39.

41.	He said that he doesn’t know whether the food they ate at Holiday Inn 	was finger food.  The witness was also questioned about the Questions 	35 and 38, where the accused had said about him being kicked out of 	the club.
42.	In Questions 46 and 47 the accused had said that they were swearing at each other.  He also had said that whenever they drink they argue and fight.  Accused had said that the deceased fell on her face according to Question and Answer 49.  Accused had admitted kicking on her face after she fell down on the floor.

43.	Answering further questions by defence counsel on what the accused 	said in his statement, the witness said that the accused had punched her 	once, kicked her once as she fell down.

44.	Accused was then taken to the crime scene and he had asked him to show the place where that punching and falling had taken place.  Looking at the photograph no. 9 he said that the accused showed that they were arguing on the steps shown there.  He said that the accused told him that the deceased fell down the steps and hit the gas tank.

45.	Answering questions by court the witness said that he did not record that in the statement that she fell on the gas tank, as he forgot to write.  Bottom of the steps and the gas tank is shown in photograph 14, he said.  He again said that during reconstruction of the scene that the accused told him that the deceased fell face down on the gas tank and that he put it in the statement.  However, he admitted that it is not in the statement.  Accused had told him that he tried to give CPR and tried to revive her.  As soon as he realised that it’s too late he had gone to the police station.

46.	In Question and Answer 40 he had said that even they were drunk he 	was fully aware of what happened.  He said that he interviewed the 	accused on the day that his girlfriend died.

47.	He said that the accused was sober at the time he answered the 	questions.  He said that the accused had realised what he did and was 	grieving and the accused appeared to be shocked.

48.	In re-examination the witness said that he had not had medical training.  	He said that he could see the accused’s eyes red and tears dropping and 	that prompted him to say he was grieving.  He said that he could not 	recall what prompted him to say that the accused was shocked.  He said 	that he took hand written notes on a piece of paper on what the accused 	said at the reconstruction of scene.

49.	He said it is not mentioned in the interview statement that victim hit 	her head on the gas tank.  He had written it on a rough piece of paper, 	he said.  He had not seen that piece of paper since he recorded the 	interview statement.  He said that he cannot bring that piece of paper 	because it was not exhibited and that he had put it somewhere.

50.	Prosecution called Dr. James Kalougivaki to give evidence next.  You 	heard his qualifications and experience as a Pathologist that was 	unchallenged.  He has conducted this post mortem on the body of the 	deceased Losana Mcgowan.  The post mortem report was produced as 	Exhibit 3.
51.	He explained to you the medical terms mentioned in the report.  He also explained to you the injuries and his opinions referring to diagrams 1 and 2 which were produced as Prosecution Exhibit 3A (P3A) and Prosecution Exhibit 3B (P3B) respectively.  Explaining the injuries mentioned in the post mortem report he said that the tag that connects the upper lip and the gum which is called frenulum was torn.  He said that it had surrounding bruising, contusions and lacerations.

52.	He said that in both eyes collection of blood was noted due to small blood vessels bursting.  Referring to lower part of the right ear, there had been a graze was noted associated with the skin coming into contact with a rough surface, he said.  It is either the skin moving against the surface or surface moving against the skin, he said.

53.	He referred to the injuries on the upper part of the chest.  One circular bruise and the other non-specific bruise.  He said that these two connected to a soft tissue bruising.  Internally also it could be seen, he said.  In his opinion he said that they were caused by two separate blows.  It is not consistent with one blow to the chest, he said.  He said that the degree of force used is high.

54.	Referring to internal examination of the scalp, he said that wide spread collection of blood spanning side, top and back of both sides of the head was noted.  He referred to the exhibit P3B.  He said the degree of force used is high.

55.	Referring to the injuries to meninges and brain, he said that meninges refer to the layers of tissues covering the brain to protect the brain.  Between the brain and the skull there had been widespread collection of blood.  Collection of blood had been below the first layer that covers the brain and under the 2nd layer.  Meninges have 3 layers, he said.

56.	It signifies a severe traumatic brain injury associated with sudden 	acceleration injuries or sudden turning or twisting of head or neck, he 	said.  The collection of blood had extended to the smaller brain.  He 	referred to diagram exhibit P3B.

57.	There had been also collection of blood in the brain.  He said that the 	injuries to the head had caused by more than 2 blows.  It was severe 	head trauma, he said.  There had been multiple traumatic head injuries, 	scalp and face, neck and also cerebral contusions with the layers 	covering the brain.

58.	Referring to the injuries to the face he said that there was soft tissue 	brushing externally and internally.  The blows to cause those injuries 	should be in addition to the blows to the meninges and brain, he said.

59.	Referring to Thoratic cavity he referred to the diagram in P3B.  He said 	that injury requires one or more blows addition to the blows and 	injuries described before.

60.	He said that he has seen the photographs of P1 booklet before.  	Referring to photograph 14, he said that it is possible to cause the 	majority of head 	injuries by associated with a punch, falling down the 	stairs and hitting 	the head on the gas cylinder.  He said that there is 	multiple head trauma and there has to be multiple blunt trauma to 	cause all injuries.

61.	In cross examination he said that drinking alcohol will affect the Blood 	Alcohol Concentration (BAC).  BAC can affect motor impairment, he 	said.  Can also affect your brain and also cause confusion.  It may affect 	central nerves system and coordination.  Alcohol effect may depend on 	the person’s height, weight and gender.  Absorption of alcohol slows 	down if the stomach is filled with food, he said.

62.	He said that when you talk about BAC, you cannot make references to 	the volume of alcohol as such, but need to take a blood analysis.  He 	said taking beers and jugs of rum and cola and vodka would affect the 	central nerves system and the brain because of the volume of alcohol.  If 	the deceased drank such a volume, there is a possibility that it would 	affect her coordination, he said.

63.	There is a possibility to affect her balance and ability to walk, he said.  	He said that if a person had drunk 8 draft beers, and 8 jugs of rum and 	cola, and vodka he could be sober after 36 hours, however, the alcohol 	level again depends on the person.

64.	Referring to the diagram P3A he said that if aggressive CPR is given by an inexperience person, it is possible to cause circular and non-specific bruises.  He said that blunt trauma is basically something blunt hitting or coming to contact with force on tissues.  Repetitiveness basically increases severity of the impact and will increase the damage.  When the witness was asked whether a pathologist may be confused by the injuries caused by resuscitation efforts with the cause of death, he said that below the nipple line there can have associated fractures and if so from the history and also the examination that can be taken as resuscitative artefacts.  However, if they are not located within the location, a trauma may not be associated with resuscitation, he said.

65.	He said that there is a possibility that it could have caused the injuries 	shown in P3A last picture if an inexperienced drunk man desperately 	did CPR for 1 hour.  He said that there is a possibility that the injuries 	on the face to cause if a person falls face down on a blunt object.

66.	On seeing the photographs 26 and 14, he said that there is a possibility for the injuries in P3B to be consistent with a person falling from the middle of stairs face down on a hard surface, but not all injuries but some of them.  He said as suggested that it was a single fall, it is hard to explain a person having such injuries on both sides of the head extends to backwards and injuries on the face.  He said it is improbable to have all the injuries by a single fall.  He also said that it is very unlikely that a single fall to cause the above mentioned extensive and widespread collection of blood under the scalp.
67.	The witness said that the windpipe injury can be caused by a person 	falling down from the steps shown in photographs 14 and 26.

68.	In re-examination the doctor said the injuries on the left and right chest 	were not fatal injuries and also that there were no fractures to the ribs.  	He said that the intoxication of a person depends on the person.

69.	The last witness for the prosecution was Detective Sgt Petero Loli.  He 	has inspected the crime scene with his subordinate officers.  Referring 	to photographs 36 and 37, he said that he saw the false tooth shown in 	that photograph.  In photograph 37, he said that it was the same part of 	the tooth and an additional part.  The additional part had been 	underneath 	the pillow that is shown in photograph 13, he said.

That was the evidence for the Prosecution.

70.	Ladies and Gentleman assessor, at the end of the prosecution case you heard me explain several options to the accused.  He has these options because he does not have to prove anything.  The burden of proving his guilt beyond reasonable doubt remains on the prosecution at all times. The accused opted to remain silent.  That is his right to do so.  You must not draw any adverse inference from his choice to remain silent.

71.	You heard the evidence of many witnesses. If I did not mention a particular witness or a particular piece of evidence that does not mean it is unimportant. You should consider and evaluate all the evidence in coming to your decision.

72.	The caution interview statement of the accused was produced in evidence.  The defence did not challenge the admissibility of the caution interview statement.  The police officer who recorded the same said that the accused made the statement voluntarily and that evidence was unchallenged. You decide on the truthfulness of his statement and what weight you give to that statement.

73.	You may remember the police officer Apisai in cross examination said that when he went to the crime scene with the accused for reconstruction of the scene, that the accused told him that the deceased fell down the steps and hit the gas tank.  He has not recorded that in the caution interview statement.  He said that he wrote it down on a piece of paper.  He also said that he cannot produce that piece of paper as he has put it somewhere.  It is for you to decide whether the accused told him that or not.  If you decide that in fact that the accused told him that, it is for you to decide whether it was the truth.

74.	Prosecution says that the conduct of the accused caused the death of the deceased and that he intended to cause her death or was reckless as to causing her death. Defence admits assaulting the deceased, however they took up the position that the deceased fell down from stairs on to the gas tank.  However, that position was not taken by the accused in his caution interview statement, but defence says that the accused told that to the police officer at the scene of crime and that the police officer had written it down on a piece of paper, not in the notebook.  The doctor in his evidence said that it is possible to cause the injuries from a fall on to the gas tank, but not all the injuries together, as it was suggested a single fall.  You must decide which witnesses are reliable and which are not. What parts of their evidence you accept and what parts you reject? You may use your common sense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanour in arriving at your opinions.

75.	Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

76.	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 has been proved beyond reasonable doubt.

77.	Your possible opinions on the charge of murder should be either guilty or not guilty.  In the event you find him not guilty of murder then you will be asked whether he is guilty of the lessor offence of manslaughter.  Therefore again your possible opinion on manslaughter will be either guilty or not guilty.  

78.	Ladies and Gentleman assessor, this concludes my summing up on 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 have reached your separate opinions, you will come back to court and you will be asked to state your separate opinion.

79.	You may retire to consider your opinions.

				Priyantha Fernando
                                            Judge
At Suva 
28th October 2016
Solicitors
Office of the Director of the Public Prosecutions for State.
Vaniqi Lawyers for Accused.