IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.:   HAC 19 of 2018

			BETWEEN:			STATE																	   PROSECUTION

AND:				TEVITA RASUAKI

ACCUSED PERSON

Counsel:		 Mr. I. Rakaria for State 		
			 Ms. M. Tuiloma for Accused 

Date of Hearing:			18 June 2019
Date of Closing Submission:	19 June 2019
Summing Up:				20 June 2019

SUMMING UP
1.		The hearing of this case has now reached to its conclusion. It is my duty to sum up the 	case to you. As I explained you before the commencement of the hearing, we have 	different functions.  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.
2.		Your function is to determine the facts of the case, based on the evidence that has been 	placed before you. That involves deciding what evidence you accept or refuse. You will 	then apply the law, as I explain it to you, to the facts as you find them to be, and in that 	way arrive at your opinion. 
3.		I may comment on the facts if I think it will assist you when considering the facts. 	However, you are not obliged to accept any comment I make about the facts. Hence, it is 	entirely upon you to accept or disregard any comment I make about the facts of this case, 	unless it coincides with your own independent opinion.
4.		You must reach your opinion on evidence, and nothing but on the evidence itself.  	Evidence is what the witnesses said from the witness box and the documents tendered as 	exhibits. This summing up, statements, arguments, questions and comments made by the 	counsel of the parties are not evidence. The opening address of the prosecution is not 	evidence. 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.
5.		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 put before you in this courtroom. Ensure that no 	external influence plays a part in your deliberation.  You are allowed to talk, discuss and 	deliberate facts of this case only among yourselves. However, each one of you must reach 	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 advise 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 make my judgment. 
6.		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, the complainant 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 to decide the legal 	culpability as set down by law and not the emotional or moral culpability of the action.
Burden and Standard of Proof
7.		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 guilty to the offence. 
8.		The burden of proof of the charge against the accused is on the prosecution.  It is because 	the accused is presumed to be innocent until he is proven guilty.  In other words there is 	no burden on the accused to prove his innocence, as his innocence is presumed by law.
9.		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’s guilt.  If there is a 	riddle in your mind as to the guilt of the accused after deliberating facts based on the 	evidence presented, that means the prosecution has failed to satisfy you the guilt of the 	accused beyond reasonable doubt.  If you find 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. 
Information and elements of the offences 
10.	The accused is charged with one count of Attempted Murder, contrary to Sections 44 and 	237 of the Crimes Act. The particulars of the offence are before you, hence, I do not wish 	to reproduce them in my summing up. 
11.	The main elements of the offence as charged are that; 
i)	The accused, 

ii)	Had an intention to kill the complainant, 
iii)	With that intention did something which was more than merely preparatory to the killing of the victim, 
The Identity of the Accused
12.	The first element of the offence is involved with the identity of the accused. It is the onus 	of the prosecution to prove beyond reasonable doubt that it was the accused who 	allegedly stabbed the complainant with the intention to kill. 
Intention to Kill 
13.	The second element concerns about the state of the mind of the accused. It is the duty of 	the prosecution to prove beyond reasonable doubt that the accused had an intention to kill 	the complainant when he stabbed the complainant. 
14.	It is not possible to have direct evidence regarding a person’s state of mind as no witness 	can look into the accused’s mind and describe what it was at the time of the alleged 	incident. However, you can deduce the state of mind of an accused from the facts and 	circumstances you would consider as proved.
15.	In order to conclude that the accused had an intention to kill the complainant, you must 	be sure that he really had that intention when he stabbed the complainant with the knife. 	In order to do that you should consider all the evidence and draw appropriate inferences 	to ascertain whether the accused had the intention to kill the complainant. 
Third Element 
16.	I now take your attention to the third element. The prosecution is required to prove 	beyond reasonable doubt that the accused has done something in order to actually execute 
	his intention of killing the complainant and not something that amount to mere 	preparation to execute his intention.
17.	Accordingly, the prosecution is required to prove beyond reasonable doubt that the 	accused, had an intention to kill the complainant and with that intention he stabbed the 	complainant with a knife. You have to be sure that the accused actually stabbed the 	complainant with a knife.
Alternative Count 
18.	If you do not find the accused guilty of attempted murder, you are then allowed to 	consider a lesser offence of “Act with Intent to Cause Grievous Harm” though it is not 	formally charged in the information. The main elements of the offence of “ Act with 	Intent to Cause Grievous Harm” are that;
i)	The accused,
ii)	With intent to maim, disfigure, disable or to do some grievous harm to the complainant
iii)	Unlawfully wounds or does any grievous harm to the complainant by any means,
19.	I now draw your attention to the definition of “grievous harm” as stipulated under Section 	4(1) of the Crimes Act, where it states that;
"grievous harm" means any harm which—
i)	amounts to a maim or dangerous harm; or

ii)	seriously or permanently injures health or which is likely so to injure health; or extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense;”
20.	Grievous harm simply means serious, dangerous or permanent harm to someone. 	Accordingly, you have to determine whether the accused stabbed the complainant with an 	intention to cause such a grievous harm and in doing that unlawfully wounded the 	complainant. 
Evidence of the Prosecution 
21.	Let me now take your attention to the evidence presented by the prosecution. This is a 	very short hearing. Therefore, I trust that evidence still fresh in your mind. 
22.	The complainant was at home with his family when the accused came to his place and 	called him out on the night of the 2nd of December 2018. The time was around 10 p.m. 	The wife of the complainant was at the bathing area, which is about ten meters away 	from the house. The complainant went out and met the accused. According to the 	complainant, the accused is his own brother. The accused had confronted him asking 	whether the complainant took his marijuana. The complainant denied the allegation. The 	accused looked angry and also sad at that time. There was a drinking party taking place 	beside the house of the complainant and the accused came from there. The accused was 	carrying a camouflage backpack. The accused confronted the complainant about the 	missing marijuana in the kitchen shed which is situated next to his house. The 	complainant said, that after the confrontation, he was stabbed on the right side of his 	chest by the accused with a knife. It was a cooking knife with pointy edge. It had a long 	handle about 30 cm and the blade was about 10 to 15 cm long. The complainant said that 	he saw the knife and felt that something sharp went inside his chest. The accused stabbed 	the complainant from the right side using his right hand. The accused was just 1/2 meter 	away from the complainant when he stabbed him. The knife was inside the bag that was 	carried by the accused. The accused stabbed only once. According to the complainant the 	accused had not tell him that the accused was carrying a knife.
23.	When the accused stabbed the complainant, he went back to his house and took a knife 	thinking of to do something to the accused. When he came out with a knife, the accused 	ran away. The complainant tried to chase after the accused, but he was weak as he lost lot 	of blood. He then ran to his uncle’s place to go to the hospital. When he ran to the vehicle 	to get to the hospital, his wife was standing outside the bathing area. 
24.	At the health centre, he was just laying down and a cloth put to stop the bleeding. 	According to the complainant a medical examination report was not filled out. 
25.	You have heard that the learned counsel for the defence cross examined the complainant. 	The complainant said the wall of the kitchen shed was made with bamboos and it was 	never made by roofing iron. The height of the wall is about 8 feet. Neither the kitchen 	shed nor the bathing area had light on that night. However, there was moonlight on that 	night. The complainant said that he did not fell down on to the roofing iron as the wall of 	the shed was made with bamboos. Moreover, he said that the accused never went to the 	toilet to relive himself and he did not open the bag of the accused while he went to the 	toilet. The complainant further said that the accused never talked about missing money b	before this incident. 
26.	You have heard the evidence of the wife of the complainant, Ms Betty Maria. On the 	evening of 2nd of December 2018, she had gone to have a bath when this incident took 	place. While she was at the bathing area, which is about 10 to 15 meters away from the 	house, she saw the accused was coming towards her. He asked Ms. Maria, where is the 	accused. He had then walked to the kitchen shed. There was no light at the bathing area. 	Neither at the kitchen shed. However, she could see the accused through the moonlight. 	The accused had called the complainant while standing at the kitchen shed. The 	complainant came out and invited the accused into the house to have dinner. Ms. Maria 	then heard the accused, telling the complainant that he came to have a talk and confront 	the complaint and he is carrying his weapon. Maria then heard the complainant was 	replying, saying that he cannot do such a thing to the accused. At the same time, she 	heard something bang in the kitchen shed and accused ran away. 
27.	Ms. Maria said that she saw the accused who was facing the opposite side to her 	and her 	husband, the complainant was facing toward her in the kitchen shed. She did not see what 	the accused did inside the kitchen shed. When she heard the sound of the bang, she saw 	the accused was running out. She then saw the complainant was also running out but he 	was staggering. The complainant was calling out for his aunt. Ms .Maria saw the blood 	on the complainant and it came out from the chest. The complainant had told her that he 	was going to his uncle Sakaria as he wanted to go to hospital in his car. However, the 	complainant could not make it as he dropped down alone the way. Ms. Maria went to 	him and then another uncle of the complainant came and brought uncle Sakaria. 
28.	Ms Maria in her evidence said the kitchen shed has a wall made with bamboos and not 	with roofing iron. 
29.	The last witness of the prosecution is Doctor Penijamini Naicani. He had conducted the 	medical examination of  the complainant on  the 2nd of  December 2018. You have heard 	Doctor Naicani was explaining the medical finding that he found on the complainant. 	He then explained the injury which he has stated in the appendix I of the medical 	examination report. 
Right to Remain Silence 
30.	At the conclusion of the prosecution case, the accused was explained about his rights in 	defence. The accused opted not to give evidence on oath and exercised his right to remain 	silent. The accused does not have to give evidence. You must not assume that he is guilty 	because he has not given evidence. The fact that he has not given evidence proves 	nothing.  It does nothing to establish his guilt.
Analysis and Directions
31.	As I explained you before, it is your duty to determine whether the accused had the 	intention to kill the complainant. He then went on to execute his intention by stabbing 	complainant on the right side of the complainant chest. In order to determine it, you have 	to evaluate the evidence presented by the prosecution. 
Evaluation of Evidence 
32.	I now take your attention to the directions of the evaluation of evidence.
Reliability of Evidence 
33.	You must be satisfied that you can rely on the evidence as true, reliable, and credible 	evidence. In order to do that, you have to be satisfied that evidence is free from mistakes, 	errors and inaccuracies. If you find the evidence is free from such mistakes, errors and 	inaccuracies, you can take the evidence into consideration as reliable evidence. 
Credibility of Evidence 
34.	The assessment of credibility of evidence is focused on the lies or inaccurate facts that 	are intentional and motivated attempts to deceive. The credibility depends on the 	individual who gives evidence, his/her motivations, his/her relationship to and the 	reaction to the particular situation. 
35.	Evaluation of the reliability and credibility of evidence will assist you to determine what 	evidence you may accept and what part of the evidence you may refuse. In doing that, 	you may accept or reject such parts of the evidence as you think fit. It is for you to 	determine whether a witness is telling the truth and is correctly recalling the facts about 	which he or she has testified. 
36.	In assessing evidence of the witnesses, you must consider whether the witness had the 	opportunity to see, hear and or feel what the witness is talking in 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 or her own evidence but also 	with other evidence presented in the case.
37.	It is your duty to consider the demeanour of the witnesses, how they react to being cross 	examined and re-examined and were they evasive, in order to decide the credibility of the 	witness and the evidence. In doing that you have to keep in your mind that some 	witnesses are not used to giving evidence in court and may find the different environment 	in the court house distracting. 
38.	Moreover, you must bear in your mind that a witness may tell the truth about one matter 	and lie about another; he or she may be accurate in saying one thing and not accurate in 	another thing.
Directions on Elements of the Offence
39.	In order to determine the first element, that is the accused, you could take into 	consideration the evidence of the complainant and his wife, Ms Maria. The complainant 	said the accused is his own brother. Ms. Maria said the accused is the son of the brother 	of the complainant’s father. If I put it more precisely the accused is a cousin of the 	complainant. 
40.	If you are stratified the identity of the accused, you could then proceed to determine 	whether the accused had an intention to kill the complainant. In order to do that you 	could consider the evidence of the complainant, where he said that the accused did not 	tell him that he had a knife with him when the accused came and confronted the 	complainant about the lost marijuana. However, Ms. Maria in her evidence said that she 	heard the accused was telling the complainant that he has his weapon with him. 
41.	You could then take your attention to consider whether the accused actually stabbed the 	complainant and caused the wound on the right side of his chest. According to the 	evidence of the complainant, he had felt that something sharp entered into his chest. He 	did not specifically mention at what time he saw the knife.  Whether it was after he felt 	something sharp entered into his chest or before that. Moreover, the complainant said 	that the knife was in the bag of the accused. However, you may recall that the 	complainant did not say whether he saw the accused was taking the knife out of the bag. 	You have to take into consideration the lighting condition of the kitchen shed as well. 	Moreover, you have heard the evidence of Maria, where she said that she heard a sound 	of bang in the kitchen and then saw the accused was ruing away. However, the 	complainant in his evidence did not state about such a sound coming from the kitchen. 
42.	You are allowed to take into consideration the medical examination report and the 	evidence of the Doctor. According to the medical examination report, there was one 	wound on the right side of the chest of the complainant. It is 5 cm long. Apart from the 	complainant’s explanation about the knife, there is no evidence before the court to 	determine the size and the nature of the knife. Moreover, neither the medical examination 	report nor the evidence of doctor explained the dimension of the wound. You can take 	them into consideration when you consider whether the wound found on the chest of the 	complainant was actually caused by the stabbing with a knife or not. 
Final Directions
43.	Upon consideration of whole of the evidence adduced during the course of the hearing, if 	you are satisfied that the prosecution has proven beyond reasonable doubt that the 	accused has committed the offence of Attempted Murder as charged, you can find the 	accused guilty of the said offence.
44.	If you are not satisfied or have doubt whether the prosecution has proven beyond 	reasonable doubt that the accused has committed the offence of Attempted Murder as 	charged, you must find the accused not guilty of Attempted Murder.  
45.	If you find him not guilty of Attempted Murder, you are then allowed to consider the 	alternative count of Act with Intend to Cause Grievous Harm.  If you are satisfied that the 	prosecution has proven beyond reasonable doubt that the accused has committed the 	offence of Act with Intend to Cause Grievous Harm, you can find him guilty of the said 	alternative offence.
46.	If you are not satisfied or have doubt whether the prosecution has proven beyond 	reasonable doubt that the accused has committed the offence of Act with Intend to Cause 	Grievous Harm, you must find the accused not guilty of  Alternative count.
Conclusion 
47.	Madam and Gentleman assessors, I now conclude my summing up.  It is time for you to 	retire and deliberate in order to form your individual opinions. You will be asked 	individually for your opinion and will not require to give reasons for your opinion.  When 	you have reached to your opinion, you may please inform the clerks, so that the court 	could reconvene.
48.	Learned counsel of the prosecution and the accused, do you have any redirections to the 	assessors?

R.D.R.T. Rajasinghe
Judge

At Labasa
20 June 2019

Solicitors
Office of the Director of Public Prosecutions for the State
Office of the Legal Aid Commission for the Accused