IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0042 OF 2004L

THE STATE

V

NACANIELI RAWAIDRANU

Mr. K. Tunidau with Mr. S. Qica for the State
Mr. H.A. Shah for the Accused

SUMMING UP

Lady and Gentlemen Assessors,

We have now arrived at the stage of the trial, where I am required to sum up to you.

During the course of this summing up, I shall give you directions on the law and you are bound to accept those directions regardless of what counsel may have told you the law to be. On matters of fact, you are free to make up your own minds and reach your own conclusions. You have heard counsel from both sides. Each put to you their view of the evidence and how it should be assessed. In so doing, they were doing what they were duty bound to do and their remarks were intended to assist you.

However you are not bound by what counsel have said if you do not agree with it and similarly if I appear to be expressing any view of the facts you must reject such view unless you yourselves are of the same opinion. If I omit to mention evidence which you think is important, you must take it into account, just as if I stress evidence which you think is unimportant, you must disregard the fact that I stressed it.

In arriving at your conclusions, you must have regard only to the evidence you heard in this case. You must discard anything you may have heard from friends or relatives or read in the newspapers and ignore any advice or suggestions made to you. You must also put aside any feelings of horror or revulsion or sympathy either for the deceased or the accused. You must base your opinions on your own objective analysis of the evidence.

In assessing the evidence, you are at liberty to accept the whole of a witnesses evidence or accept part of it and reject another part or reject the whole. In deciding on the credibility of any witness, you are to take into account not only what you heard but what you saw. You should take into account the manner in which he or she gave evidence. Was he or she evasive, how did he or she stand up to cross-examination? You are to ask yourselves, was the witness honest and was the witness reliable.

Of course in any trial, there are bound to some inconsistencies in the evidence of a witness, with that to another. You are to ask yourselves did the inconsistency relate to peripheral matters or did the inconsistency go to the core of the witnesses evidence and was it of sufficient significance to affect his or her credibility.

At the end of the prosecution case, you heard me explained several options to the accused. He could have remained silent. He could have made an unsworn statement. He could have made a sworn statement. These options were given to him because there is no obligation on him to give evidence.

Prosecution has the burden of proving guilt at all times.

The accused gave sworn evidence and you must give his evidence careful consideration.

You the assessors are chosen from the community, represent a pool of common sense and experience of human affairs. You do not leave that common sense and experience behind when you enter the courtroom. You are expected and indeed required to use that common sense and experience in your deliberations and deciding upon any proposition put to you. You are to ask yourselves whether it accords with your common sense or is it an affront to your common sense and experience.

At the conclusion of this summing up, I shall adjourn the Court so that you may retire and deliberate. You are free at that time to discuss the case amongst yourselves but with no one else. However, you must form your own individual opinions. When you are ready, the Court will reassemble. You with then be asked to state your individual opinions in Court. You will not be asked for the reasons for your opinions. Your opinions need not be unanimous, but it is desirable that they are.

The accused stands charged with the offences of murder and as you are aware, he is pleaded not guilty. Under the law, an accused person is presumed to be innocent until prove guilty. He does not have to prove his innocence and indeed he does not have to prove anything. It is the duty of the prosecution to prove the guilt of the accused. The prosecution must prove each and every ingredient of the offence.

Not only must the prosecution proved the accused’s guilt, it must prove it beyond a reasonable doubt. This is perhaps the most important direction of law that I can give you. This means that you must be so satisfied as to be sure of the accused’s guilt before you express the opinion that he is guilty. If after considering all the evidence in this case, you are left with a reasonable doubt as to the guilt of the accused, then you must advise me that the accused is not guilty.

The particulars of the offence which is contained in the Information, copy of which you have before you are that NACANIELI RAWAIDRANU on the 2nd day of December 2004 at Tavua in the Western Division murdered Ram Phal s/o Latchman.

You have heard the evidence and I don’t propose to recite it to you but I do propose to briefly refer you to it. You will recall that the first witness called by the prosecution was Jiutasa Naivala. He met the accused and he had a conversation. He said the accused asked whether there were goats in Ram Phal’s compound and he replied yes. He at the time was pounding grog and he identified the accused. He said Ram Phal, the Indian man, was also known as Mitya. He had been on his property fixing water pipes and that was how he knew the presence of goats. 

The second witness for the prosecution was Lila Wati, the wife of the deceased, Ram Phal. She says that on Thursday, the 2nd December 2004, she was at home with the husband. At about 6.30am, he went to plough the land. 

She said the land was some 25 miles away that you might be called with respect to distances, she subsequently indicated a distance that she quoted 50 miles which she then equated to the distance from here to the bus station. 

She again said that Ram Phal was a husband and he was also known as Mitya in the village. She says he came back at about 9.30am and she mixed the grog for him. That he was sitting in the Sitting Room drinking grog and she went to have lunch. She heard the dogs barking towards the hill. As I said she said the hill was 50 miles away then she gave the description I have referred to.

She says she went outside about 20 chains and stood there and saw a person on horse and saw her husband going towards that person. A person was on a brown horse but she could not identify the man on the horse. She says she then came back home and at about 2.00pm when her husband has not returned, she told the boy to go and look for the grandfather. The boy went on a horse and came back that he was shocked to be told that the grandfather had died.

She said in answer to questions in cross-examination that the man on a horse was wearing an off-white T-shirt and that there was just one man.

The third witness was Parmod Prakash. He says that on Thursday, the 2nd December 2004 at about 11.00am, three people came to collect peanuts. The people came from Togovere village. He gave them permission to collect peanuts. The people were Adi, Novu and Onisimo. He says he went at about 11.30am and came back at about 12.30pm. He says that Ram Lal also known as Binesh told him he came back and found his uncle dead. He then borrowed a horse and went to Ram Phal’s house and spoke to his aunty, the wife of the deceased. He told her that Ram Phal’s was found dead. He says it was about 1 kilometre from his house. He says there was an injury on the forehead and there was blood all over and he wasn’t moving. He saw one slaughtered goat, bone and skin of the goat and he then came back to Ram Phal’s house and relayed what he saw.

Lavenia Novu from Togovere village gave evidence that she went to pick peanuts at Ram Phal’s farm. At about 10.00am she walked there and took about 2 hours. She says the accused is like a brother to her and she identifies him. She says he called her and he asked her where his wife was and she told him that she was home. She says she was with Sailosi. After arriving on a brown horse, they were coming back and going towards the village.

In cross-examination, she says it was about 12.00pm when she saw the accused on horseback riding a brown horse and he the accused was on the front and Sailosi was at the back. She says that Sailosi was 6 years old and in class 1. She got home at 1.00pm. The accused and Sailosi were at home when she got home.

Arpuna Devi gave evidence that at about 11.00am on the 2nd December 2004 she went to Parmod’s house and she saw a Fijian man and two Fijian ladies. They asked her to call out Parmod. She did that. She was on her way to pick dhaniya leaves from another neighbour’s house about 15 chains from Parmod’s house. She saw somebody on a horse going past her house going towards Togovere. It was a brown horse and she didn’t see the face of the man but he seemed to be a Fijian man. She said in answer to cross-examination that she saw just one man on a horse that it was after 12.00pm on the 2nd December 2004 that he was wearing a white shirt.

PC 1846 Samisoni Naqica gave evidence that he is 16 years in the Police Force and 2 years in the Strike Back Team. He says on the 5th December 2004 he went to Togovere village in the afternoon. He was approached by Jiutasa and told him something, as a result of which, he briefed the Divisional Crime Officer. He identified the accused and he said the accused is his nephew. He then subsequently located the wife of the accused at Yasiyasi, took her to the police station and he proceeded to town as the wife told him, that was where the accused was going. At the far end of Tavua town near the bridge he sighted the accused. He was about to board the minibus. He says he told him that he was arresting him and taking him to the police station to question him of the death of Ram Phal. He says he informed him of his rights and took him to the police station. He says he left him in the Crime Officer’s office. He says the accused called out to him and said he wanted to say something. He then went back. When he did he says the accused confessed to him. He said before I cautioned him he told me that he threw Ram Phal from the cliff and threw a stone on his head. He told me the reason why he killed Ram Phal. He was skinning a goat when Ram Phal came up to him and he asked to be forgiven and Ram Phal insisted to report the matter and then he killed him and he was using a kitchen knife with a plastic handle to skin the goat.

He says he briefed the Crime Officer and he told him to go to the village to get the knife and accompanied by other officers. He asked the accused’s sister, Lavenia Novu, to look for the knife and it was found in the kitchen. The knife was handed over to the interviewing and witnessing officer. He said before doing so he put his initials on the handle. He then identified the knife which was tendered as Exhibit P-1 and you will have that exhibit and all the exhibits before you when you deliberate.

When asked if he threatened the accused or assaulted the accused or if anybody threatened or assaulted the accused at his presence, he said no. He said he later took the accused’s younger brother to Togovere to recover the trousers of the accused and that in the evening of that day, he saw the accused in the cell. He brought him food, a blanket and fixed a light bulb. The next morning he had conversation with the accused and he requested a prayer session with him, which he did. His cousin brother came and gave cigarettes.

He was cross-examined and that he was under tremendous pressure to find a person involved and he said no, there was no pressure. He was asked why he went after the wife and he said it was the only way to trace the accused as they left the village together. He made reference to making entries in his notebook at the time of arrest at 1450 hours on the 6th December 2004 and that he made the entries in his notebook when he returned to the police station that day.

He said he didn’t tell him of his rights to a lawyer when he left him in the Crime Officers office at the time he called him back and said he wanted to him something. He says he didn’t stop him telling him what he wanted to say at that time. He says he made an entry in his notebook. He asked him 2 or 3 questions and he said and recorded: “uncle I want to tell you something”. I went inside and opened the notebook and said, what do you want to say and recorded that in the notebook. He was asked if he punched him in the right eye due to frustration, which he said no. He says he took him to the Charge Room and no other officers present and that nobody assaulted or threatened in his presence. He acknowledged that others have been interviewed under caution with respect to this offence, the death of Ram Phal.

He was cross-examined as you will recall as to there being no physical evidence, that is of bloodstains on any of the items collected on the fabric of the trousers or the stone or the knife or groves or the knife blade. He says he didn’t inspect the trousers or other items as they were all handed over to other officers.

Then DC 1274 Epeli Senitiri gave evidence. He identified the accused and he gave evidence of interviewing the accused and caution interview in Fijian in the presence of Cpl Delai, who was the witnessing officer. When no threats, he says I need everybody else. There was nobody else present, only he and Delai throughout the interview which was signed by the accused, witnessing officer and himself. He identified the record of interview and he read as you will recall the English version of that record.

He identified the knife. He identified the stone and he identified the rope.

The caution interview was tendered as Exhibit No. 2A and its English translation as Exhibit No. 2B and you will have those documents before you when you deliberate and you should read them. You should read them in their entirety. You will see reference to various breaks that were given in the interview, the visits to the accused by various people and the description given in answer to questions by the accused as to what occurred, as to the conversation with Ram Phal as to the goat and as to how the death occurred but you shouldn’t merely read that confession, you should read the document in its entirety.

Again the officer was cross-examined as to lack of physical evidence as to issues that may relate to the death of the deceased. You have heard that cross-examination and I don’t propose to attempt to repeat.

He was asked how long Samisoni stayed and he said “just handed over the accused and left”. He was asked why he conducted the interview when there was already a confession, he said it was a normal procedure and of course he was asked if he threatened and assaulted the accused in the course of the caution interview he said no. He was asked if anybody else had in his presence during the course of interview and again he said no.

Next witness was Sulueti Sovilea, a court officer at Tavua who you will recall was present for the purposes of interpreting between Umesh Prasad, Justice of the Peace and the accused. Her sole role was to interpret. She said in her evidence that the accused said via her that he had been threatened by police officers and that his meals and refreshments and the like were okay. She says she didn’t say what the threat was or who the officer was and he didn’t have visible signs of injuries.

Umesh Prasad, the Justice of the Peace, gave evidence that sometimes after 3.00pm on the 7th December 2004 he was asked to interview the accused by the police. The accused said he was treated very well except from time to time police threatened him. He says he didn’t say the nature of the threat or name the officers. He says he didn’t see any visible signs of injuries.

Dr. Mon gave evidence of having examined the accused on the 7th December 2004. Dr. Mon tendered the medical officer’s report of his examination, which is Exhibit P-3 and which you will have before you. In that report he says most relevantly but again, you should read the whole report that the time was 1540 hours on the 7th December 2004 that the people were present when examination took place for the patient, S/N Salote and S/N Sikeli and you might recall the doctor’s evidence is that they were Fijian nurses.

He says there is no history related by the patient and when he asked him he said no. He has recorded that there was no complaint made by the patient. His general health was satisfactory. His temperature was 37.1 ºC and normal, pulse was 90 and his blood pressure was 130/80. He says there were no obvious injuries detected. His movement, posture, gait, stance were normal. He says again at Item 14 that no injury detected and no complaint by the patient. Again, you should read the doctor’s report in its entirety.

Officer Peni Tuivaga gave evidence that he is 15 years in the Police, 10 years in Crime and that he was the officer who charged the accused. He says he cautioned him and charged him in Fijian. The charge statement will be before you and you should read it, Exhibit P-4A, and its English translation, Exhibit P-4B. He says that Sergeant Elesio was present and there was no complaint made by the accused at any time and that there was no threat, promise or inducement. That he made the statement voluntarily and he signed the charge statement. He said that he, the officer, had not read the record of interview, the caution interview before he charged the accused. You have heard read to you the charge statement, which again as I have said, you will have before you and you should read it. That you will see on the first page it again contains a confession by the accused and you should read it in its entirety.

The post mortem report was tendered as Exhibit P-5 without objection and again you will have that document before you and you should read it, which gives the estimated time of death at 2.00pm on the 7th December 2004 and that describes the cause of death as being traumatic fractured skull with intercranial hemorrhage.

The 11 page statement of Detective Sergeant Mulkeet Singh is Exhibit P-6. I don’t propose to read that statement to you but you should read it. Reference was made to it by counsel in the course of their addresses and you should read it. The sergeant also prepared a rough sketch plan, a sketch plan and a key to those sketches, which are marked as Exhibit P-7 and you will have those documents before you to help you have an understanding with respect to what is described in the caution interview and the other documents as you are reading them.

The accused gave sworn evidence. He says he got home at about 8.30am and he rested and drank tea. He prepared himself and his son to go and tether the cows, there about 10, he brought the cows to bath. They went on a horse after 10.00am and that the boy was sitting behind him on the horse and they didn’t take any dogs. He was asked how many cattle, he said he had 9 cows and one cow was missing. He started looking for the missing cow. He says he knew Parmod and he met his uncle and two sisters and that he passed by Lavenia and Adi. He says he got home at about 1.00pm. He says the young boy was with him all the time. His name was Sailosi. He got home, washed his hands, had lunch and rest and he didn’t go anywhere else.

He was asked if he killed Ram Phal and he said no. He was also asked if he got a stone he said no. He was also asked if he killed his goat, he said no. He was asked whether he met him on that day and he said no.

He says on the 6th December 2004 Samisoni met him in Tavua town and told him to get into the vehicle and took him to the police station. He didn’t give him any reason and it was about 2.30pm and that he was shocked to see his father sitting there. He knew there was a problem. That the police started blaming him and telling him that he murdered Ram Phal. He said he told them he didn’t know anything and they started punching him until he admitted it. Since they assaulted him, he just wrote down that he murdered Ram Phal and he did that because they were punching him so hard. He was asked if he signs something and he said yes. He was shown the caution interview, Exhibit 2-A, and he identified the signature on the first page.

He denied that he admitted to Samisoni that he killed Ram Phal. He repeats that the police threatened and punched him and the description of the threat. He says he doesn’t read properly. When questioned as to the presence of his wife, he says yes, he asked her for forgiveness of him having been brought to the police station. He asked her to note the injuries that he was carrying and asked her to look for a lawyer and that she was present for about half an hour. 

He says he was shown the knife when told that was the knife that was used to kill Ram Phal and similarly he says, he was shown stone that was used to kill Ram Phal and rope. He had never seen that rope. He says that he was taken to the place where Ram Phal died and showed him the stone and the place where murder allegedly occur.

He acknowledges his signature on the charge statement. He says he signed the charge statement because he was being assaulted. He says he killed Ram Phal because they were telling him to do so. He says he rested after giving the statement and was taken to the doctor and that he didn’t see any nurse. He says the doctor was told to take his blood pressure and the police would not give him a chance to complain to the doctor. He was then prepared for his court appearance.

When cross-examined, he was asked was he threatened he says yes. He was told to sign the papers. He admitted that he murdered Ram Phal. When asked who threatened him and he said Samisoni. He punched him to the face, stomach and back. He punched him hard and he gave him a black eye. 

He referred to the Justice of the Peace who came to see him at the police station and he says that when he came over to the police there were 2 officers in the room. He didn’t tell him anything because the police were present.

He didn’t make any complaint to Doctor Mon because the police were present. He says the doctor is lying when saying that the nurses were present and that he knew that he had the right to come to Court and tell the truth. This was his chance to tell the truth.

He says he acknowledges that he spoke to a lawyer in the course of the caution interview. He says again that he only signed the first page of the caution interview. He admits giving the caution interview but not signing any pages other than the first page and that he gave the interview because he was threatened the place.

The wife of the accused, Lesi Vuki, gave evidence. He went with Sailosi to search for cows at about 10.00am. They came back at almost 1.00pm and had lunch. She says when she visited him at the police station she noticed his injuries. She acknowledged in cross-examination that she loves her husband very much, that she would do anything for him if he was in trouble. She says she didn’t report the injuries to the police that they didn’t ask her. She says she did get a lawyer for her husband. She made no formal complaint. She just wanted to inform his lawyer.

I reiterate what I said earlier that you should consider all of the evidences that are placed before the Court and not merely those bits that I have referred to. You should consider all of the documents that are before you and not merely those or those parts I have referred to.

To establish the charge of murder against the accused, the prosecution must prove various things to you. Firstly, the death of Ram Phal was caused and secondly, that it was caused by an unlawful act and thirdly, that it was the accused who committed the unlawful act and fourthly, it was done with malice aforethought.

The expression “malice aforethought” is a collective name for those mental attitudes, which turn the killing of a person into murder, means the intent, state of mind that the prosecution must prove that the accused had at the time he is alleged to have caused the death by his unlawful act. The necessary intent or state of mind of an accused is established by proving only one of the following:

(i)	that the accused intended to cause the death of Ram Phal; or
(ii)	that the accused intended to do grievous harm to him; or
(iii)	that the accused knew that his unlawful act would probably cause death or grievous harm.

Provided that the accused had the knowledge that his act would probably cause death or grievous harm, it does not matter whether he was indifferent whether Ram Phal died or not, nor does it matter that he might even have wished that neither death nor grievous harm were caused. Grievous harm as I am sure you will know simply means serious injury.

The prosecution fails to prove any of the elements to which I have referred beyond reasonable doubt, or if you are unsure of any of them, then you must find the accused not guilty of murder.

It is of course not in dispute that Ram Phal and that he died as a result of injuries he sustained.

The identification of the body is not in dispute.

What is dispute is were the injuries caused by an unlawful act and were the they caused by the accused with malice aforethought.

If it is, that you accept, the confession of the accused as contained in the caution interview and as contained in the charge statement then you need look no further but if it is that you do not accept the confession of the accused then you must look at the totality of the evidence to be satisfied beyond reasonable doubt with respect to the elements of the charge of murder.

The only possible opinions that you can deliver are that the accused is guilty of murder or alternatively that the accused is not guilty. As was put to you, there is no necessity for there to be any corroboration it is that you accept in the confession of the accused. That course is a matter for you based upon the evidence that are before you, the totality of the evidence that are before you and your perception of the witnesses who have given evidence before you included the accused.

Remember that in arriving at your opinions you are to have regard to all of the evidence and as I keep repeating, not merely that which I referred to.

Lady and Gentlemen Assessors, that is all I wish to say to you. You may retire now to consider your opinions. If there is any clarification that you need, please send a message to the clerks. During your deliberations, take as much time as you need. When you are ready with your opinions, I will receive them individually in open court and remember you will not be asked for reasons for your opinions. Your opinions do not have to be unanimous but it would be good if they were.

JOHN CONNORS
JUDGE

At Lautoka
6 October 2005