IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 241 OF 2014S 

STATE

vs

                                                SITIVENI QIO VASUTURAGA

Counsels	:	Mr. T.  Qalinauci and Ms. L. Bogitini for State
			Ms. S. Vaniqi for Accused 
Hearings	:	25, 26 and 27 July, 2016
Summing Up	:	29 July, 2016
_____________________________________________________________________________________
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 so that you are not sure 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 victims.  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 ISSUES 
8.	In this case, as assessors and judges of fact, each of you will have to answer the following questions:
(i)	On Count No. 1, did the accused, on 10 August 2014, at Kadavu in the Southern Division, murder Elenoa Waqaicece?
(ii)	On Count No. 2, did the accused, on 10 August 2014, at Kadavu in the Southern Division, murder Salaseini Kunayasi?
(iii)	On Count No. 3, did the accused, on 10 August 2014, at Kadavu in the Southern Division, attempted to murder Jimmy Victor Morrell?
                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                                       
E.	THE OFFENCES AND THEIR ELEMENTS
9.	Count No. 1 and 2 involved the offence of “murder”.  Count No. 3 involved the offence of “attempted murder”.  So, we will discuss the offence of “murder” first, before we consider “attempted murder”.  For the accused to be found guilty of “murder”, the prosecution must prove beyond reasonable doubt, the following elements:

(i)	that the accused did a willful act; and
(ii)	that willful act caused the death of the deceased; and
(iii)	at the time of the willful act, the accused either;
(a)	Intended to cause the death of the deceased; or
(b)	Is reckless as to causing the death of the deceased.
	
10.	On the first element of murder, a “willful act” is a voluntary act by the accused.  It is a feeling of strong determination to do something that he wanted to do.  It is what he wanted to happen in a particular situation.  This is the physical element of the offence of murder.  For example, A wants to shoot B with a gun.  A picks up a gun, and shoots B in the heart, A did a “willful act”.  Likewise, if A wants to stab B with a kitchen knife.  When A stabs B with a kitchen knife, A did a “willful act” to B.

11.	On the second element of murder, “the willful act must cause the death of the deceased”.  This simply meant that the accused’s willful act, substantially contributed to the death of the deceased.  The accused’s willful act must be a substantial contributor to the death of the deceased.  In other words, the accused’s willful act was a substantial cause of the deceased’s death.  Continuing from the above examples when A shot B in the heart, with a gun, B later died as a result of the injuries to his heart.  A’s shooting B in the heart (willful act) was a substantial cause of B’s death.  Likewise, when A stabs B with a kitchen knife, it caused serious internal injuries to B’s organs and body, leading to B’s death.  A’s stabbing B with a kitchen knife, set in motion a chain of events that led to B’s death, and as such, was a substantial cause of B’s death.

12.	The third element of murder concerned it’s fault element.  There are two fault elements for murder, as described in paragraphs 9(iii) (a) and 9(iii) (b).  In this case, the prosecution is running it’s case on the fault element in paragraph 9 (iii) (a), that is, the accused intended to cause the deceased’s death.  We will therefore concentrate on this fault element, rather than the other.  The prosecution must make you sure that when the accused did “the willful act”, he “intended to cause the death of the deceased”.  You cannot cut open the accused’s head, to find out what his intentions were, at the time he allegedly stabbed the deceased to death.  But you can examine his conduct at the time, that is, what he said and did, and the surrounding circumstances, to infer whether or not he intended to kill the deceased, when he allegedly stabbed her.  If you find that he intended to kill the deceased, at the material time, that would be sufficient to support the third element of murder, that is, an intention to kill.

13.	If you are sure that all the elements of murder, as expressed above, are satisfied by the prosecution beyond a reasonable doubt, then you must find the accused guilty as charged.  If you find that some of the elements of murder, as described above, are not satisfied beyond a reasonable doubt by the prosecution, then you must find the accused not guilty as charged.

14.	At this stage, we must consider the lesser offence of “manslaughter”.  This was because the accused had called in aid the defence of “provocation” as far as the mother-in-law was concerned, and had also argued that the accused at the material time, did not intend to kill, but only to seriously harm the deceaseds.  In law, a person may be found guilty of a lesser offence, although he was not formally charged with the same.  Whatever decision you reach on the murder charge, you will have to consider the lesser offence of manslaughter.  

15.	If you find the accused guilty of murdering the mother-in-law, you will have to look at and consider the lesser offence of manslaughter, because the defence had argued in their closing submission, that the accused is not guilty of murder, but guilty of manslaughter, by reason of provocation.  Section 242 (1) and (2) of the Crimes Decree 2009 reads as follows:

	“…when a person who unlawfully kills another under circumstances which, but for the provisions of this section would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation…and before there is time for the passion to cool, he is guilty of manslaughter only.  Provocation means any wrongful act or insult of such a nature as to be likely when done to any ordinary person, to deprive him of the power of self-control and to induce him to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered…”

So, if you find on the evidence that the accused was provoked into killing his mother-in-law, in the sense given above, and you are sure of it, then you will have to find the accused guilty of manslaughter only.

16.	If you find the accused not guilty of murder, you will still have to look at and consider the lesser offence of manslaughter, because the defence had also argued in their closing submission, that the accused was not guilty of murder, but guilty of manslaughter, on the ground that, at the material time, he did not intent to kill, but only intend to cause serious harm to the deceaseds.   For the accused to be found guilty of “manslaughter”, the prosecution must prove beyond reasonable doubt, the following elements:

	(i)	that the accused did a willful act; and
	(ii)	that willful act caused the death of the deceased; and
(iii)	at the time of the willful act, the accused either;
(a)	Intends the willful act to cause the deceased serious harm; or
(b)	Is reckless as to causing serious harm to the deceased.

17.	Note that the first two elements of manslaughter are similar to the first two elements of murder.  The only difference between the two offences are their fault elements.  In murder, the accused must intend to cause the deceased’s death, or was reckless in causing the same.  In manslaughter, the accused must intend to cause serious harm, not death to the deceased.  Continuing from the examples we discussed above, when A shoots B with the gun, he intended to cause B serious harm, not death.  Alternatively, A was not reckless as to causing his death, but only serious harm.  Likewise, when A allegedly stabbed B on the body, he did not intend to kill him, but only to cause him serious harm.  Alternatively, A was not reckless in causing B’s death, but only to cause B serious harm.  If you find that the evidence satisfy the above elements of manslaughter, and you are sure of the same, then you are entitled to find the accused guilty of the alternative lesser offence of manslaughter.

18.	Finally, if you find the accused guilty of either the murder or manslaughter of his wife Ms. Elenoa Waqaicece, you will have to consider the defence of self-defence, as it was raised by the accused in his closing submission.  The defence appeared to be saying that the accused was not guilty of the murder or the manslaughter of his wife, at the material time, because he was defending himself.  Section 42 (1) and (2) of the Crimes Decree 2009 reads as follows:

	“…A person is not criminally responsible for an offence if he carries out the conduct constituting the offence in self-defence.  A person carries out conduct in self-defence if and only if he believes the conduct is necessary: (a) to defend himself or another person…”
	
	If you find on the facts that the accused was acting in self-defence, when he stab his wife with a kitchen knife, and you are sure of the same, he is not guilty of murder or manslaughter.  If it’s otherwise, then he is guilty of either murder, or alternatively, manslaughter.

19.	We now consider Count No. 3, which is “attempted murder”.  For the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:

(i)	The accused
(ii)	attempted to kill
(iii)	the complainant
(iv)	with an intention to kill him

20.	“The accused attempted to kill the complainant”, is the “conduct” that constituted the physical element of the offence.  It must be shown by the prosecution that the accused did an act that was designed to kill the complainant.  For example, A swung a cane knife at B’s neck, but the knife missed B’s neck.  That was “conduct” performed by A to kill B.  The “conduct” must be more than merely preparing to commit the offence.  A had sharpen the cane knife, brought it from the garage, walked towards B, and swung it at his neck.  The whole conduct by “A” was more than mere preparation.

21.	When the accused is doing “the conduct”, he must simultaneously have the intention to kill the complainant.  This is the fault element of the defence.  In finding out his intention, you apply the same process that you applied when finding the intention to commit murder, as described previously.  If you are sure that evidence presented at the trial satisfied the elements of “attempted murder”, as described above, you must find the accused guilty as charged.  If it’s otherwise, you must find the accused not guilty as charged.  It is a matter entirely for you.

22.	There are three counts in the information.  You must consider each count separately and come to a considered decision on each count separately, in the light of the total evidence presented.

F.	THE PROSECUTION’S CASE
23.	The prosecution’s case were as follows.  On 10 August 2014, the accused (DW1), aged 41 years, lived with his wife, aged 38 years, his mother-in-law, aged 51 years, Jimmy Victor Morrell (PW2), Steven Morrell and young Elenoa Waqaicece (the couple’s adopted daughter) at Namuana Village, Tavuki, Kadavu.  The family lived in a 2 bedroom house, with a sitting room, a kitchen, bathroom and toilet.  The accused’s wife worked at the Vunisea Hospital as a cook.  The accused does domestic chores for the family, cooks, farms and dives for fish for the family.  The couple had been married for almost 16 years.

24.	According to the prosecution, the couples’ married life was somewhat normal, filled with a lot of love and happiness.  The couple moved to Kadavu.  The accused was from Kadavu, his wife from Gau and his mother-in-law from Nakelo, Tailevu.  The accused’s mother-in-law moved in with the couple.  The peace in the family was tested with the mother-in-law’s relationship with the accused.  It would appear that the mother-in-law was often not supportive of the accused.  She sought of saw the accused as “a good for nothing layabout”.  At times, she would demean the accused in front of his wife, and swore at him.  It was alleged that, at times, she persuaded her daughter to leave the accused, and find another man.

25.	On 10 August 2014, in the afternoon, Steven and the young Elenoa fought.  The accused disciplined them by smacking them in front of his mother-in-law, who was watching sky television.  An argument immediately erupted between the accused and his mother-in-law.  The mother-in-law started calling the accused names, and began swearing at him.  The accused tried to calm the situation down to no avail.  The wife, who was in the bedroom, came out and sided with her mother.  The mother-in-law called on her daughter to leave the accused for good, and they began to leave the house.  The accused stopped his wife from leaving the family house, and later they ended up in the kitchen.  According to the prosecution, the wife grabbed a kitchen knife to defend herself.  The accused forcefully pulled the knife from his wife and later stabbed her twice with the same.  The wife later fled to a nearby road.

26.	According to the prosecution, Jimmy Morrell (PW2) tried to stop the accused attacking his wife (PW2’s aunty) in the kitchen.  He grabbed the accused from behind.  The two struggled and the accused allegedly stabbed him twice, one on the right hand and one on the chest.  The accused later came out of the kitchen.  By this time, the mother-in-law was in the sitting room.  The accused went towards her and stabbed her with the same kitchen knife.  The mother-in-law later went to the porch, and the accused again repeatedly stabbed her there with the same knife.  The accused went to the kitchen and brought a steel spade to hit Jimmy Morrell (PW2).  Some villagers came and restrained him.

27.	The accused’s wife, mother-in-law and PW2 were rushed to Vunisea Hospital.  The accused’s wife and mother-n-law died on the same day at about 5 pm.  PW2 was hospitalized for 2 days.  The matter was reported to police.  An investigation was carried out.  The accused was caution interviewed by police on 12, 13, 14 and 15 August 2014.  On 21 August 2014, he appeared in the Suva Magistrate charged with the murder of his wife and mother-in-law.  Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged on all counts.  That was the case for the prosecution.

G.	THE ACCUSED’S CASE
28.	On 25 July 2016, the first day of the trial, the information was put to the accused, in the presence of his counsel.  He pleaded not guilty to the charges.  In other words, he denied the murder and attempted murder allegations against him.  When a prima facie case was found against him, at the end of the prosecution’s case, wherein he was called upon to make his defence, he choose to give sworn evidence and called three witnesses.  That was his right.

29.	The accused’s case was very simple.  In his sworn evidence, he admitted he stabbed his wife and mother-in-law on 10 August 2014.  He admitted, when cross-examined by prosecution that, that he stabbed his wife twice, at the material time.  He also admitted in cross-examination that, he stabbed his mother-in-law several times on 10 August 2014.  He was shown his wife’s and mother-in-law’s post-mortem reports, and he agreed with Pathologist Doctor Kalougivaki’s (PW4) conclusion on the cause of death.  He appeared to admit that his stabbing of the victims caused extensive internal injuries that lead to their deaths.

30.	However, he said, he merely intended to cause serious harm to his wife and mother-in-law on 10 August 2014.  He did not intend to cause their deaths.  As a result, he appeared to say that, he is not liable for their murder, but only for their manslaughter.

31.	However, if you find him guilty of their murder, he asks you to find him guilty of his mother-in-law’s manslaughter, on the ground of provocation.  He said, his mother-in-law provoked him to killing her because she had been abusing him for a while.

32.	As for his wife, if you find him guilty of her murder or manslaughter, he said he was not liable because, at the material time, he was defending himself.  He said, his wife grabbed the kitchen knife first and wanted to stab him.  He said, he injured his right hand when he grabbed the knife from his wife and stabbed her in self-defence.  As a result, he appeared to be saying, he was not liable for her murder or manslaughter.  As for Jimmy (PW2), he said he did not attempted to murder him.  He said, in their struggle in the kitchen, he accidently stabbed him.  He had no intention to kill him.

33.	As a result of the above, the defence is asking you, as assessor and judges of fact, to find him not guilty of murdering his wife and mother-in-law on 10 August 2014, but to find him guilty of their manslaughter.  Alternatively, he asks you to find him not guilty of his wife’s murder and/or manslaughter on the grounds of self-defence.  As to the alleged attempted murder of Jimmy Morrell, he asks you to find him not guilty because it was an accident.  He did not intend to murder PW2.  That was the case for the defence.
 
H.	ANALYSIS OF THE EVIDENCE
	(a)	Introduction:
34.	In analysing the evidence, please bear in mind the directions I gave you in paragraphs 4, 5 and 6 hereof on the burden and standard of proof.  In the acceptance and/or rejection of the evidence presented at the trial and your role as assessors, please bear in mind the directions I gave you in paragraphs 1, 2 and 3 hereof.  In analyzing the evidence, we will first discuss the “Agreed Facts” and its significance, and in turn, we will discuss the elements of “murder” (count no. 1 and 2) and “attempted murder” (count no. 3), as described in paragraphs 9(i), 9(ii), 9(iii)(a), 19, 20 and 21 hereof, and whether or not the evidence presented by the prosecution satisfy those elements.  Then we will discuss the defence case, and the need to look at all the evidence.

	(b)	The Agreed Facts: 
35.	The “Agreed Facts” submitted by the parties, in this proceeding, consisted of three types:
	(i)	The “Agreed Facts” dated 27 April 2016; 
(ii)	The “Rough and Fair Police Sketch Plan”, which was tendered as Prosecution Exhibit No. 2;
	(iii)	The “Booklet of Photos”, which was tendered as Prosecution Exhibit No. 3

36.	You have a copy of the “Agreed Facts”, dated 27 April 2016.  It had 16 paragraphs of facts.  Please, read it carefully and understand the same.  The significance of the “Agreed Facts” was that the accused admitted he was at the crime scene at the material time, and that he stabbed his wife and mother-in-law, at the time.  He also admitted that his wife and mother-in-law were taken to Vunisea Hospital after the above stabbing and they were pronounced death on arrival.  You may take the above admitted facts, as established facts, and that the prosecution had proven those facts beyond a reasonable doubt.

37.	The “Rough and Fair Police Sketch Plan”, puts the witnesses’ verbal and documentary evidence, in context.  This also applied to the “Booklet of Photos”.  It adds meaning to the verbal and documentary evidence given by a Jimmy Morrell (PW2), the accused (DW1), the caution interview statements tendered as Prosecution Exhibit 5(A) and 5(B) by DC 3642 Josua Gagalia (PW3) and the deceaseds’ post-mortem reports, tendered as Prosecution Exhibits 6 and 7, by Doctor Games Kalougivaki (PW4).  The “Rough and Fair Police Sketch Plan” and the “Booklets of Photos” are aids to you, in your assessment of the facts.  They assist you interpret the facts.

(c)	The First and Second Elements of Murder as described in Paragraph 9(i) and 9(ii) hereof:
38.	In analysing these elements, please bear in mind my directions in paragraph 9(i), 9(ii), 10 and 11 hereof.  The parties do not dispute the first and second element of murder.  The prosecution said, the accused stabbed his wife twice on the neck and chest, at the material time.  The accused, in his evidence and in the “Agreed Facts”, did not dispute the above.  The prosecution also said, the accused stabbed his mother-in-law several time.  In his evidence and the “Agreed Facts”, the accused did not dispute the above.  The prosecution evidence on the first element were founded on Jimmy’s (PW2) verbal evidence, and the accused’s admission in his caution interview notes from questions and answers 174, 176 to 178, 187, 195, 197 to 199, 204 to 207, 240, 242 to 244, 259 to 263, 266, 267, 277 to 284, 289, 314 to 320.

39.	On the second element of murder, the prosecution said the accused’s stabbing of his wife and mother-in-law on 10 August 2014, caused their deaths.  They relied on Doctor James Kalougivaki’s (PW4) evidence to support the above.  PW4 tendered the deceaseds’ post-mortem reports as Prosecution Exhibit No. 6 and 7.  PW4 said, the accused’s wife died as a result of massive blood in the cavity that holds the lung and heart and a punctured heart, due to the stab wounds on her neck and chest.  The accused did not deny the above in his evidence.  PW4 said, the accused’s mother-in-law died as a result of a punctured lungs and lots of blood in the thorax cavity due to the multiple stab wounds on her neck and back.  The accused did not dispute the above in his evidence. 

	(d)	Third Element of Murder, as described in paragraph 9(iii)(a) hereof:
40.	In analysing this element, please bear in mind the directions I gave you in paragraph 9(iii)(a) and 12 hereof.  The parties are not in agreement on this issue.  It was the prosecution’s case that when the accused stabbed his wife and mother-in-law on 10 August 2014, he did in fact intended them to die.  As I have said in paragraph 12 hereof, “you cannot cut open the accused’s head to find out what his intentions were, at the time he stabbed the deceaseds to death.  But you can examine his conduct at the time, that is, what he said and did, and the surrounding circumstance, to infer whether or not he intended to kill the deceaseds, when he stabbed them”.

41.	For 3 days, you have heard the evidence from the prosecution’s and defence’s witness on the temperaments on the persons in this family.  Yes the defence had painted the mother-in-law as an interfering one and abusive of the accused over the years.  The defence had painted the wife as having extra marital affairs.  You have heard the evidence of Jimmy Morrell (PW2).  By now, you should know, after listening to the evidence, what kind of family was this.  I do not wish to bore you with the details, suffice to say that before the stabbing on 10 August 2014, there was bad blood between the mother-in-law and the accused.

42.	Furthermore, the wife and the mother-in-law cannot answer to the allegations thrown against them by the accused (DW1) and his witnesses (ie. DW2, DW3 and DW4).  This is because they are dead and cannot answer back.  However, although they are dead, their version of events can be obtained by carefully analysing their injuries, as described in their post-mortem reports.  In other words, although the victims are dead, they speak to this court through their injuries, as contained in their post-mortem reports.  On the other hand, the incident occurred on 10 August 2014.  The trial started on 25 July, 2016, almost 2 years afterwards.  So, it was arguable that the accused had enough time to prepare his defence, before trial.

43.	Through his sworn evidence, the accused said that, when he stabbed his wife and mother-in-law on 10 August 2014, he did not intend to kill them, but only to injure them.  In his caution interview, he gave mixed messages.  He said, he was very angry with his mother-in-law for arguing with him prior to the stabbing, and angry with his wife for taking his mother-in-law’s side.  It appeared, he expected his wife to side with him.  During his dispute with his wife in the kitchen, he warned her not to point the knife at her, or it will end in a bad way.  He, at times, said he did not intend to kill the victim, but only to injure them.

44.	With the above in mind, we consider the victims’ injuries.  According to the Doctor Kalougivaki (PW4), the wife died as a result of two stab wounds, that is, one to the front bottom of the neck and one to the chest, near the upper heart region.  These stab wounds punctured the right ventricle of the heart and the cavity holding the heart and lungs, causing massive blood to fill the cavity.  The above caused the wife’s death.  It was arguable that, when a person stabs someone in the neck and chest with a kitchen knife, as that tendered in Prosecution Exhibit No. 4, that person logically must intend to cause the person’s death.

45.	Doctor Kalougivaki (PW4) said, the mother-in-law died as a result of 11 stab wounds to the back of the head, the back of the neck and back and other parts of the body.  PW4 said the cause of her death was punctured left and right lungs, a lot of blood in the cavity holding the lungs and the injuries from the other stab wounds.  It was arguable that, when a person stabs a person on the back of the head, the back of the neck and the back and other parts of the body 11 times, with a kitchen knife as that shown in Prosecution Exhibit No. 4, the logical conclusion would be that the person intended the victim to die.  To say that, he merely intended to cause serious injuries to his wife and mother-in-law, would significantly defy logic.  However, which version to accept, is a matter entirely for you.

	(e)	The Attempted Murder on Jimmy (PW2):
46.	In analysing this offence, please bear in mind the directions I gave you in paragraphs 19, 20 and 21 hereof.  You have heard the evidence of Jimmy Morrell (PW2) and the accused (DW1) on the above allegation.  I do not wish to bore you with the details.  Suffice to say that PW2 saw the accused and his wife struggling with a knife in the kitchen on 10 August 2014.  PW2 said he saw the accused stabbed his wife 3 times in the kitchen.  PW2 said, he approached the accused from the back and pulled him away.  PW2 said, the accused then repeatedly punched him in the face and body.  PW2 said, he saw the accused go into the sitting room and attacked his grandmother, the accused’s mother-in-law.  PW2 said, he picked up a broom and hit the accused with it.  PW2 said, the accused later stabbed him on the right arm twice and on the right chest.  PW2 said, the accused was trying to stab him, but he was dodging him.  As a result, he received other cuts to his body.  You will have to consider his injuries as outlined in his medical report, tendered as Prosecution Exhibit No. 1.  According to the prosecution, when he stabbed PW2, the accused intended to kill him.

47.	PW2 said, he was unconscious after the knife attack.  Later, he saw the accused come with a iron spade to attack him.  Luckily, the other villagers arrived and restrained him.  In his caution interview notes, the accused admitted he swung the kitchen knife at PW2 and it struck him (Question and Answer 186).  However, he said he didn’t mean to harm him.  (see also Question and Answers 293, 294, 298, 299 and 230).  In his sworn evidence, the accused said, he must have accidently stabbed PW2 when they were struggling against each other.  In his sworn evidence, the accused appeared to say that if he stabbed Jimmy, it was accidental.  In other words, he appeared to be saying he had no intention to kill PW2?  What version to accept is a matter entirely for you. 

(f)	The Defence’s Case:
48.	The accused (DW1) admitted the first and second element of murder in his sworn evidence, and in the “Agreed Facts”.  However, he denied intending to kill his wife and mother-in-law at the time.  In his evidence, he admitted that when he stabbed his wife and mother-in-law at the material time, he only intended to cause them serious harm.  If you accept the accused’s evidence on this issue, then you must find him not guilty of the murder of his wife and mother-in-law on 10 August 2014, but guilty of their manslaughter.  However, if you reject the accused’s evidence on the above issue, and accept that he intended to kill his wife and mother-in-law when he stabbed them to death on 10 August 2014, then you will have to find the accused guilty of the murder of his wife and mother-in-law, at the time.

49.	If you decide that the accused is guilty of murdering his wife and mother-in-law on 10 August 2014, then the accused relies on the defence of provocation against his mother-in-law, to reduce the charge to manslaughter.  In other words, if you are sure that the accused unlawfully killed his mother-in-law, intending to kill her, then he is guilty of murder unless you conclude that this was or may have been a case 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.  Provocation has a special legal meaning, and you must consider it in the following way.     

50.	Firstly, you must ask yourselves whether 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 have been said and/or done by his mother-in-law, rather than just by his own bad temper.  You are aware of the volatile relationship between the accused and his mother-in-law when she moved in with them ie. the swearing and putting down of the accused.  If you are sure that the accused was not provoked in that sense, the defence of provocation does not arise, and the accused is guilty of murder.  But if you conclude that the accused was or might have been provoked, in the sense which I have explained, you must then go on to weight up how serious the provocation was for the accused.  Is there anything about the defendant which may have made what was said and/or done affect him more than it might have affected other people?  Finally, having regard to the actual provocation and to your view of how serious that provocation was for the accused, you must ask yourselves whether a person having the powers of self-control to be expected of an ordinary, sober person of the accused’s age and sex, would have been provoked to lose his self-control and do as the accused did.  If you are sure that such a person would not have done so, the prosecution will have disproved provocation, and the accused is guilty of murder.  If, however, you conclude that such a person would or might have reacted and done as the accused did, your verdict would be “not guilty of murder, but guilty of manslaughter”.  Whatever you decide on the above issue is a matter entirely for you.

51.	If you find the accused guilty of the murder or manslaughter of his wife, the defence argued he is not guilty of either offences on the grounds of self-defence.  If you think that the accused was or may have been acting in lawful self-defence, he is entitled to be found not guilty.  Because the prosecution must prove the accused’s guilt, it is for the prosecution to prove that the accused was not acting in lawful self-defence, not for the accused to establish that he was; and you must consider the matter of self-defence in the light of the situation which the accused honestly believed he faced.  You must first ask whether the accused honestly believe that it was necessary to use force to defend himself at all.  This would not be the case if the accused [was the aggressor], [acted in revenge], [knew that he did not need to resort to violence].
	If you are sure that he did not honestly believe that it was necessary to use force to defend himself, he cannot have been acting in lawful self-defence, and you need consider this matter no further.  But what if you think that the accused did honestly believe or may honestly have believed that it was necessary to use force to defend himself?  You must then decide whether the type and amount of force the accused used was reasonable.  Obviously, a person who is under attack may react on the spur of the moment, and he cannot be expected to work out exactly how much force he needs to use to defend himself.  On the other hand, if he goes over the top and uses force out of all proportion to the [anticipated] attack on him, or more force than is really necessary to defend himself, the force used would not be reasonable.  So you must take into account both the nature of the attack on the accused and what he then did.  
	If you are sure that the force the accused used was unreasonable, then the accused cannot have been acting in lawful self-defence; but if you think that the force the accused used was or may have reasonable, he is entitled to be acquitted.

52.	As to the other defence witnesses, that is, Mereoni Divawale (DW2), Miliakere Kalouniwaqa (DW3) and Sakiusa Kitinaico (DW4), their evidence seemed to support the accused’s version of his interfering and overhearing mother-in-law.  Note the prosecution’s warning that most of the witnesses are related to the accused.  How you weigh the above witnesses’ evidence, is a matter entirely for you

	(g)	Looking at All the Evidence:
53.	Four witnesses were called by the prosecution, and four witnesses were called by the defence.  There were eight witnesses in total.  Documentary evidence were submitted for the prosecution, that is, Jimmy’s medical report (Prosecution Exhibit No. 1); Rough and Fair Police Sketch Plan (Prosecution Exhibit No. 2); Booklet of Photos (Prosecution Exhibit No. 3); Kitchen Knife (Prosecution Exhibit No. 4) and the Accused Caution Interview Police Statements (Prosecution Exhibit No. 5(A) – hand written i-taukei version, and 5(B) – typed English version).  The defence submitted the accused medical report as Defence Exhibit No. 1.  There was the Agreed Facts, dated 27 April 2016.

54.	You must carefully consider all the evidence together.  You must analyze and compare them together.  You have heard all the witnesses’ evidence in the courtroom.  You had observed their demeanour in the courtroom.  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 accept the prosecution’s witnesses’ evidence as credible, and you accept their version of events, then you must find the accused guilty as charged, on all counts.  If it’s otherwise, then you must find the accused not guilty as charged on all counts.  It is a matter entirely for you.

I.	SUMMARY
55.	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.

56.	Your possible opinions are as follows:
	(i)	Count No. 1	:	Murder		:	Guilty or Not Guilty
		Alternative if not guilty to Murder:
					Manslaughter	:	Guilty or Not Guilty

	(ii)	Count No. 2	:	Murder		:	Guilty or Not Guilty
		Alternative if not guilty to Murder:
					Manslaughter	:	Guilty or Not Guilty

	(iii)	Count No. 3	:	Attempted Murder:	Guilty or Not Guilty

57.	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	:	S. Vaniqi, Barrister and Solicitor, Suva.