IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 175 OF 2008

BETWEEN:

THE STATE
Complainant

AND:

SIMON JOHN MACARTNEY
Accused

Counsel: Ms. P. Madanavosa & Mr. J. Daurewa for the State
Mr. S. Valenitabua for the Accused

Date of Summing Up: Tuesday 4th November, 2008

SUMMING UP

[1]	Madam and Gentlemen Assessors, it is now my duty to sum up this case to you. You will then be required to deliberate together and each of you must give a separate opinion whether the Accused is Guilty or Not Guilty of the charge. I will then pronounce the judgment of the Court and your opinions will carry great weight with me in deciding that judgment.

[2]	In coming to your opinions you must apply the law as I explain it to you. It is my duty to direct you on the law. Those directions on the law must be followed by you.

[3]	However, you decide the facts of the case. As I speak to you, you may feel that I have formed some view on a particular question of fact. If you disagree, then please feel completely free to disregard my version. All matters of fact are for you and you alone. 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. 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 decide whether your opinion is guilty or not guilty.

[4]	You must come to that decision solely upon the evidence you have heard from the witnesses, which includes the exhibits that have been produced. If you have previously heard anything about this case or the people involved, through the media or some other source – you must ignore that completely. If you have read, heard or come across any media publication about the proceedings during the trial or for that matter any rulings that I have made, you must ignore them completely.

[5]	The law requires that the Accused is to be judged solely upon the evidence sworn to in this Court. In considering that evidence you are expected to apply your common sense and everyday knowledge of human nature and people. You must please put aside any feelings of prejudice or sympathy which may occur to you one way or the other and arrive at your opinions calmly and dispassionately.

[6]	The charge against Simon John Macartney (the Accused), is set out in the amended information that you each have a copy of. This charge is brought by the State and the onus of proving it rests on the State from beginning to end. There is no onus on the Accused at any stage to prove his innocence or to prove anything else. He does not need to give evidence. In this case he has chosen to do so but he still carries no onus. The law is that the State must prove the essential ingredients of the charge beyond reasonable doubt before there can be a finding of guilty. This means that before you express an opinion that the Accused is guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt about the guilt of the Accused, then you must express an opinion of not guilty. It is only when you are satisfied so that you are sure of guilt, that you may express an opinion of guilty. 

[7]	The Accused is charged with murder. The State alleges that the Accused on 22 October 2007 at Deuba murdered Ashika Lata Macartney d/o Rajendra Prasad. 

[8]	There are three ingredients that must be proved for the offence of murder:

1.	That the accused did an unlawful act.

2.	That this unlawful act caused the death of the victim.

3.	That the accused acted with malice aforethought.

[9]	In this case all three elements are in dispute. I will now explain these three elements to you.

[10]	An unlawful act is something done by a person that is against the law. A very common example of an unlawful act is where a person deliberately applies force to another person without legal justification. If a person intentionally strikes another person without legal justification then that is a criminal assault. In such circumstances a person who deliberately punches, kicks or hits another with a weapon is committing an unlawful act.

[11]	In this case the State alleges that the Accused manually strangled the deceased, which caused her death. If that is what happened then that would be an unlawful act. The defence says that the Accused did not strangle the deceased and this allegation is disputed.

[12]	To find this element proved, you must be satisfied to the required standard that the Accused strangled the victim 

[13]	The second ingredient that must be proved is that the unlawful act caused the death of the victim. The law requires a link between the unlawful act and the death. Usually the unlawful act causes some specific injury to the victim and that particular injury causes the victim’s death. Usually the unlawful act causes an injury which is the sole cause of death. But it is sufficient if it is an operating or substantial cause of death. 

[14]	The third element that must be proved for the crime of murder is that the person who caused the death of another by an unlawful act did so with "malice aforethought". This is an old legal term which describes a particular intention or state of mind.

[15]	It is an intention to cause death or grievous harm to the victim or knowledge that death or grievous harm would probably be caused, accompanied by indifference whether it is caused or not, or by a wish that it may not be caused.

[16]	Grievous harm means any bodily hurt which seriously or permanently injures health or which is likely to seriously or permanently injure health.

[17]	Therefore the State must prove that the Accused strangled Ashika causing her death and at that time he intended to cause serious or permanent injury to Ashika or he knew that serious or permanent injury would be likely to be caused to Ashika and he nevertheless went ahead and did it being indifferent, that is having no concern one way or the other, whether serious or permanent injury was caused or not or that he did it wishing or hoping that such injury would not be caused.

[18]	An Accused’s state of mind is as much a question of fact for you to determine as any other question of fact. It is not possible to have direct evidence of this. No witness can look into the Accused’s mind and describe what he was thinking at any particular time. However, it is something that can often be inferred from all the proved facts and circumstances.

[19]	You should consider all the proved facts and circumstances, and from them you are entitled to draw proper inferences as to the Accused’s knowledge and intentions.

[20]	That completes my explanation to you on the crime of murder.

[21]	In this case there is no direct evidence from somebody who actually saw the Accused strangling Ashika in the manner alleged by the prosecution. However, it is not unusual for crimes to be committed in the absence of eye witnesses.

[22]	The evidence relied upon by the prosecution in this case is circumstantial evidence. You are asked to piece the story together from witnesses who did not actually see a 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.

[23]	A common example of circumstantial evidence is fingerprint evidence. Suppose a person’s fingerprints are found on an object at the scene of a crime, such as a murder weapon. It could be inferred that the person has handled that weapon and been present at that place. The inference could be drawn even though there is no direct evidence that the person was seen there.

[24]	On some occasions evidence like fingerprints may be the only circumstance relied upon by the prosecution as proof of guilt. However, it is not unusual to find in a criminal case that evidence is given of a number of facts and circumstances. One witness proves one thing and another proves another thing. None of those things alone may be sufficient to establish guilt but, taken together, one circumstance building upon the other, they may lead to the conclusion that the Accused is guilty of the crime.

[25]	That is what the State is asking you to do in this case. The prosecutor has directed your attention to a number of facts and circumstances which she submits have been proved by the witnesses. You are asked to draw from those facts and circumstances the inference that the Accused is guilty of the charge. The defence disputes some of those matters and says that the Accused did not strangle Ashika and no inference of guilt can be drawn from the circumstantial evidence.

[26]	Therefore, you must first consider all the evidence and decide what facts have been proved. From those facts you are entitled to draw proper inferences. An inference is a logical deduction from facts that have been proved. It must not be mere speculation or guesswork. It is not sufficient that the proved circumstances are merely consistent with the Accused 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. If the inference to be drawn from the circumstantial evidence falls short of that standard then your opinion must be not guilty.

[27]	One of the inferences that the State asks you to draw in this case is the state of mind of the Accused. If he did attack Ashika, what was his intention when he did that? The State says that he intended, at the very least, to cause grievous harm to her.

[28]	A person’s state of mind is as much a question of fact for you to determine as any other question of fact. It is not possible to have direct evidence of this. No witness can look into the Accused’s mind and describe what he was thinking at any particular time. However, it is something that can often be inferred from all the proved facts and circumstances.

[29]	They include, for instance, what the Accused himself actually did. That will often be a very important matter. A person’s actions, in themselves, may clearly show this purpose or intention. Other matters that may be relevant are what the Accused said and did before the alleged offence. What the Accused said at the time of the alleged offence. What the Accused said and did after the alleged offence, including his statement to the police, and what the Accused said in evidence.

[30]	You should consider all the proved facts and circumstances, including those I have just mentioned, and from them you are entitled to draw proper inferences as to the Accused’s beliefs, knowledge, purposes and intentions. 

[31]	On the basis of these legal principles that I have explained to you, you must consider the evidence in this case and decide what has been proved. As I said earlier, it is your job to assess the credibility of the witnesses. You decide who is truthful and to be believed. However, there are some comments that I must make on a few items of evidence.

[32]	The Accused was interviewed twice under caution by the police. The records of interviews are in evidence. The statements of the Accused are evidence for and against him. What weight you give to the caution statements of the Accused is entirely a matter for you. In his second interview the Accused offered "no comments’ to some questions. That was perfectly his right and you must not draw any adverse inference against the Accused from that refusal. In his interview, the Accused admitted lying to his girlfriend about his whereabouts on 22 October 2007. The prosecution is not relying on the lies to support the case against the Accused. The mere fact that an accused tells a lie is not in itself evidence of guilt. An accused may lie for many reasons, and they may possibly be ‘innocent’ ones in a sense that they do not denote guilt. In this case the Accused has offered an explanation for his lies, that is, he did not want to hurt the feelings of his girlfriend. I direct you that you ignore the lies to his girlfriend that the Accused admitted in his caution interview when you consider the guilt or otherwise of the Accused.

[33]	Evidence has been given about a post mortem examination of the deceased’s body. That examination was conducted by Dr. Prasant at the CWM hospital and he prepared a report of his findings (P27). Normally he would have given evidence himself about the examination. However, he has left Fiji and as he is no longer available, details of what he included in his post mortem report have been given in evidence. This means, of course, that we have not had the advantage of hearing Dr Prasant’s evidence on oath and the defence has not had the opportunity to cross-examine him about his findings.

[34]	However, the evidence is properly before you and you should have regard to all the circumstances in deciding the weight to be given to it. The report was prepared by a pathologist who conducted a routine post mortem examination. It is entirely a matter for you but you may feel that there is no reason to doubt the accuracy of the report.

[35]	Finally, there is the evidence given by the Accused himself which is consistent with his caution interviews.

[36]	I must remind you that when an accused person has given evidence he assumes no onus of proof. That remains on the State throughout. His evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.

[37]	You will generally find that an accused gives an innocent explanation and one of three situations then arises:

1.	You may believe him and, if you believe him, then your opinion must be Not Guilty. He did not commit the offence.

2.	Alternatively without necessarily believing him you may say ‘well that might be true’. If that is so, it means there is a reasonable doubt in your minds and so again your opinion must be not guilty.

3.	The third possibility is that you reject his evidence as being untrue. That does not mean that he is automatically guilty of the offence. The situation would then be the same as if he had not given any evidence at all. He would not have discredited the evidence of the prosecution witnesses in any way. If prosecution evidence proves that he committed the offence then the proper opinion would be guilty.

[38]	So it is for you to consider the Accused’s evidence and decide what reliance you can place on it. You should weigh it up and evaluate it against the evidence of the other witnesses and facts that have been proved.

[39]	I will now remind you of the prosecution and defence cases. In doing this it would be tedious and impractical for me to go through the evidence of every witness in detail and repeat every submission made by counsel. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence or a particular submission of counsel, that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.

[40]	In this case the prosecution and the defence have agreed to certain facts. You have been given copies of the Agreed Facts. The Agreed Facts are part of the evidence and you should accept these Agreed Facts as accurate and the truth. They are, of course, an important part of the case. The agreement of these facts has avoided the calling of a number of witnesses, and thereby saved a lot of court time. 

Prosecution Case

[41]	The first witness for the prosecution was Ashika Lata’s father, Rajendra Prasad. Ashika and the Accused got married on 17 February 2005 in Fiji. After the wedding, Ashika and the Accused returned to Melbourne, Australia. About 7 months later, they returned and lived with Mr. Prasad and his family for about 2 months. After 2 months, Ashika returned to Melbourne, Australia while the Accused went to live with his father at Veisari. The reason Ashika returned to Australia was to get her permanent residency visa. Mr. Prasad was in contact with Ashika through telephone. On 20 October 2007, Mr. Prasad received a call from Ashika. He learnt Ashika had received her permanent residency visa and was coming to Fiji on 22 October 2007. Mr. Prasad offered to pick Ashika up from the Nadi International Airport but Ashika convinced him that the Accused would pick her up and she would come home after three days after visiting Nadi and Suva. When Ashika did not arrive home on 25 October 2007, Mr. Prasad and his family tried to contact the Accused on his mobile but it was diverted. They looked for Ashika around Suva City and when he could not find Ashika, Mr. Prasad reported the matter at the Central Police Station.

[42]	Under cross examination Mr. Prasad denied borrowing any money and in particular $25,900.00 from the Accused. During cross examination of Mr. Prasad, evidence of threat made to Ashika by the Accused was led in evidence. Mr. Prasad learnt from Ashika that the Accused was threatening her that if the money was not returned he would cancel her permanent residency and deport her back to Fiji. What Mr. Prasad said about the threat is hearsay and you must disregard that evidence when you deliberate on the guilt or otherwise of the Accused. You must not rely on the statement as the truth of the matter it asserts, but that the statement was made by Ashika to Mr. Prasad which explains why Mr. Prasad instructed a lawyer to write to the Accused.

[43]	Mr. Prasad accepted that the Accused has sued him for the money but he maintained he never borrowed any money from the Accused. He denied that the deposit of about $12,000 in the joint Colonial Bank Account with the Accused was the money borrowed from the Accused. Mr. Prasad said he had not made any arrangements for a new husband for Ashika. Under cross examination, it was suggested to Mr. Prasad that he had something to do with Ashika’s death. You may think there is no sensible basis for such suggestion.

[44]	The next witness was Ashika’s mother, Shila Wati. Ms. Wati said that when Ashika did not arrive home by 3.00 pm on 24 October 2007, she called on the Accused’s mobile but no one answered. She identified Ashika’s jewelries that were still on Ashika when her body was found on 2 November 2007. Under cross examination, Ms. Wati said she could not recall the Accused’s mobile number. She said the number was stored in her mobile phone.

[45]	The next witness was Ajay Kumar Singh who met Ashika at the Nadi International Airport when she arrived from Australia on 22 October 2007. Mr. Singh said he saw Ashika kiss and hug the Accused when she came out at the arrivals. They left in a white rental car LR1447. Under cross examination, it was suggested to Mr. Singh that he was not the person who met Ashika at the airport on 22 October 2007 but, Mr. Singh maintained it was him who met both Ashika and the Accused. He said he does not own a taxi and he did not follow Ashika and the Accused when they left the airport. He said he went to New Zealand after 22 October 2007 for his daughter’s medical check up.

[46]	The next witness was Manoj Kumar, the passenger supervisor at the Nadi International Airport. Mr. Kumar identified the two bags [P9(a) & (b)] that Ashika brought with her from Australia when she arrived in Fiji on 22 October 2007.

[47]	The next witness was Saleshni Deo who confirmed that the Accused and Ashika were at Chicken Express, Nadi just before 3.00pm and left after 5 – 10 minutes.

[48]	The next witness was Biriana Vatucicila. Biriana said on 22 October 2007 at around 7.00pm, she was walking on the Queen’s Highway in the direction of Nadi with her friend Anaseini, when she noticed a white car parked at the Vunibuabua Old Road, Off Queens Highway. She crossed over to the Vunibuabua Old Road where the car was parked. Her friend remained at the Queen’s Highway. As Biriana came close to the car, she saw two figures, one of whom was an Indian woman. The Indian woman’s hair was loose. Biriana could not clearly see the other figure. Biriana walked closer to the car. When she reached over a hill, she saw two people. She saw the Indian woman lying on the ground beside the car and a Caucasian man (whom she described as a white man) on top of the woman. The white man had blue jeans and brown sandals on. Biriana used a draft sketch plan (P18) which was not drawn to scale to explain the distances between her and the two people and the vehicle. Biriana was shown a blue jeans (P13) and brown sandals (P12) and photos of a white car (MFI3). She said they looked liked the one she saw on the day in question. Biriana said the white man was kneeling down to the woman on the ground. The hands of the white man were hairy. Biriana said the white car had a yellow number plate. It was a rental car. She said there was a logo on the door. Biriana said that when she was at the scene, she heard sound of heavy breathing couple of times coming from the direction of the vehicle. She returned to her friend who was standing at the Queen’s Highway and they went home.

[49]	Under cross examination, Biriana said she was about 50 meters away when she first spotted the car. She said the time was about 7.00pm but it was not dark. She said when later in the evening they returned to Makosoi, the car was still at the scene. Biriana denied being coached by the police to give evidence in court. Biriana was cross examined on her two police statements. Counsel suggested to Biriana that her statements were inconsistent. In her first statement dated 4 November 2007, Biriana did not give any detail description of the clothing and shoes the white man had on 22 October 2007 at the Vunibaubau Old Road while in her second statement dated 10 November 2007, she gave description of a blue jeans and brown sandals. The defence submits her second statement was tailored to make a case against the Accused after the police had seized brown sandals (P12) from the Accused on 10 November 2007. As a matter of law, evidence is what a witness says in the witness box. What witnesses say out to Court is not evidence. However, if a witness has told inconsistent stories about the same event, you cannot put much weight on his or her evidence. So you can look at previous statements of Biriana to decide what weight you can put on the witness’s evidence in Court. Her previous statements will help you to decide on her credibility.

[50]	The next witness was Anaseini Tavola. Anaseini was with Biriana at about 6.50pm on 22 October 2007 when they spotted a white car parked at Vunibuabua Old Road. Anaseini said Biriana crossed the Highway to see what was going on in the car. Anaseini remained at the Highway. After a while Biriana returned and then they walked to Biriana’s home. When they left Biriana’s home at around 8.30pm and drove passed the Vunibuabua Old Road, Anaseini noticed the white car was still at the place they had spotted earlier in the evening. Under cross examination, Anaseini said she did not see any people from where she was standing. All she could see from the Highway was a white car. Anaseini said it wasn’t dark when she first saw the car.

[51]	The next witness was Waisake Vati who found Ashika’s body in his plantation close to Vunibuabua Old Road on 2 November 2007. 

[52]	The next witness was Merewalesi Gavidi. Ms. Gavidi said on 29 October 2007 at around 4.00pm, she was standing at the bus shelter at Deuba Inn after finishing work. While she was waiting, she saw a white mini van come from the direction of Suva and turned into the Vunibuabua Old Road. She saw two European men inside the van. The Vunibuabua Old Road is opposite the Deuba Inn where she was standing. The van was at Vunibuabua Old Road for about 10 minutes and then turned around and drove towards Suva. She said the van drove past her. The van was not traveling fast. She said she managed to have a look at the passenger who looked like a pastor that appears on TV. On 7 November 2007, Ms. Gavidi came across a Fiji Times Article which had the Accused’s picture (P26). She said when she looked at (P26) she recognized the person to be the one she saw in the white mini van at Vunibuabua Old Road on 29 October 2007. Ms. Gavidi’s identification of the Accused at Vunibaubau Old Road at around 4.00pm on 29 October 2007 is in dispute. It is possible that Ms. Gavidi is mistaken in her identification of the Accused. I must, therefore, warn you of the special need for caution before relying on Ms. Gavidi’s evidence of identification. A witness who is convinced in his or her own mind may as a result be a convincing witness, but may nevertheless be mistaken. You should therefore examine carefully the circumstances in which the identification by Ms Gavidi was made. For how long did she have the person she says was the Accused under observation? At what distance? In what light? Did anything interfere with the observation? Had the witness ever seen the person she observed before? If so, how often? If only occasionally, had she any special reason for remembering him? How long was it between the original observation and the subsequent identification of the Accused by looking at his photo in the Fiji Times (P26)? These are matters for you to consider in assessing the reliability of Ms. Gavidi’s identification of the Accused on 29 October 2007 at Vunibaubau Old Road.

[53]	The next witness was Ajay Sen, Rental Officer from Carpenters. He said on 22 October 2007, the Accused rented a white Hyundai Accent Reg. No. LR1447.

[54]	The next witness was Joseva Gavidi, husband of Merewalesi. He handed (P26) to the police.

[55]	The next witness was PC Sakiusa Jitoko who was part of the team that attended to the scene where Ashika’s body was found. PC Jitoko said there was a track leading to where the body was lying. He found a Florence Pink Eveready brand torch (P8) about 5-7 meters away from the body. The body was found facing downwards and was partially decomposed. The body had clothes and jewelries on. 

[56]	The next witness was DC Timoci Naulu. He was instructed on 25 October 2007 to investigate a report of missing person, Ashika Lata. On 27 October 2007, he recorded a statement from the Accused in his note book and released him. Under cross examination DC Naulu said he did not know if the Accused had received any calls when he was at the Namaka Station on 27 October 2007.

[57]	The next witness was D/Sgt. Munsami. On 26 October 2007 D/Sgt. Munsami was at the Central Police Station when he received a report of missing person Ashika Lata. He called the Accused and spoke to him. The Accused told him Ashika got off at Sigatoka and had left her two bags in the car. He accompanied the Accused to the United Club where the Accused handed the bags to him.

[58]	The next witness was D/Sgt. Elia Waqa. On 2 November 2007 he caution interviewed the Accused. The contents of the interview (P10) are not in dispute. In his interview the Accused said he met Ashika in February 2004 when he came to visit his dad. At the time Ashika was working as a salesgirl at a Chinese clothing shop in Suva. In February 2005 they got married and went to Australia to live there. After three months they returned to Fiji for holidays and lived with Ashika’s parents in Nadawa. On 22 October 2007 at 10.00am he hired a white Hyundai Accent car from Carpenters and drove to Nadi to pick Ashika up from the Nadi International Airport. Ashika came out of arrivals at about 3.00pm. She was wearing a white dress and a blue sash. Ashika brought two big and three small bags. The small bags were ladies strap handbags and black in colour. The Accused said while they were still at the airport, an Indian man tapped Ashika on the back and they greeted each other and were talking in Hindi language. They loaded the bags in the vehicle and left the airport at 3.10pm. They stopped at the Chicken Express in Nadi town and had a meal. They were at the Chicken Express for about half an hour. They drove towards Suva. The Accused said Ashika was very happy. They spoke about Ashika getting her permanent residency visa and their house in Melbourne. On their way to Suva from Nadi, they stopped at the One Stop Coffee Shop in Sigatoka town. The Accused said they stopped in Sigatoka town because about 5 minutes before reaching the town, he learnt that Ashika wanted to get off in Sigatoka to meet her new husband there. The Accused said he was shocked for a moment. He learnt that Ashika’s parents had arranged the new husband for her and that she only needed him to get her permanent residency in Australia. The Accused said he tried to change Ashika’s mind but she insisted in getting off in Sigatoka. The Accused parked his car, got off and went to the shop to get coffee while Ashika remained in the vehicle. He returned with two coffees and gave one to Ashika. The Accused said he was about to get into the vehicle when Ashika picked up her toiletries bag and her black ladies handbag and asked for the car key to open the boot and take the laptop bag. Ashika opened the boot, took out the laptop bag, slammed the boot and threw the car key back to the Accused through the window. She then crossed to the other side of the road. The Accused made a u-turn and offered Ashika to drop her at Nadera but she refused. The Accused said as he drove towards the main road, he saw Ashika getting into a white taxi with a yellow registration number plate. The Accused said he placed a red hand torch into Ashika’s handbag when she got off in Sigatoka. He said he first saw the torch in Nadi beside Ashika’s leg under her seat. He said he did not know how long Ashika was going to be waiting in Sigatoka. The Accused said the time would have been between 5.45pm or 6.00pm when Ashika got off. The Accused said he arrived home at 36 Berry Road at about 8.00pm. His girlfriend Iowana was home. She was asleep in his bedroom. The Accused left Ashika’s bags in the boot of the car. He said he did not drop the bags at Ashika’s parents because he was upset. He woke Iowana up and told her that he was at the Merchant’s Club at Butt Street because he did not want to hurt her feelings. He said he had told Iowana that he was married to Ashika. The Accused said that 15 minutes after his arrival Seema Singh, Ashika’s former sister in law called him on his mobile. They spoke about Ashika. The following day at about 10.30am the Accused returned the vehicle to Carpenters. The Accused said he unloaded Ashika’s bags and placed them in his lounge before returning the vehicle.

[59]	On Wednesday, 24 October 2007, the bags were still at his house. On Thursday evening at about 5.00pm – 6.00pm he loaded the bags in his friend’s vehicle and took them to the United Club. The Accused said he was going to have a drink at the United Club and he was going to send the bags to Ashika’s parents in a taxi. But he did not send the bags because he drank too much and he did not feel like sending them. He placed the bags in a room downstairs of the United Club being rented by his friend Feroz. The following day, Friday, 26 October 2007, the Accused handed the bags to the police after being questioned at the Command Centre. The Accused said when he ordered the coffee at Sigatoka he added two Tylenol into his cup of coffee. The Accused said whatever he wore on 22 October 2007 when he went to Nadi were in his house at 36 Berry Road. He said he wore a white canvas, blue cap but the trousers and shirt he could not remember. After looking at the photos at the Chicken Express the Accused said he was not sure what pants he wore because the photos were not very clear. After the interview was suspended to recover the clothes from Berry Road the Accused said he wore the blue long trousers (P13).

[60]	The next witness was Mohammed Yakub Feroz. Mr. Feroz said he rented a room on monthly basis at United Club. He was asked by the police about bags in his room. He said he had no knowledge of the bags because he was in Nadi.

[61]	The next witness was Cpl. Samendra Prasad. He received the exhibits from Inspect Balwant. The exhibits two bottles of liquor and photos from Chicken Express Nadi were placed in the same box. He said one bottle of liquor was broken and damaged the photos and other exhibits. When he received the photos they were not damaged.

[62]	The next witness was IP Balwant Singh. He conducted the second interview of the Accused on 9 November 2007 (P25). During the interview the Accused was shown the white dress (P11) that Ashika had on her when her body was found. The Accused was asked to confirm whether it was the same dress Ashika had worn when she arrived from Australia on 22 October 2007. The Accused said "it looks like but he cannot say yes or no" (Q.14). The Accused said he seriously doubted he had stopped at Taunovo near Deuba off Queen’s Highway on 22 October 2007 when he was returning from Nadi. He said he cannot remember stopping there. The Accused was shown the jewelries that Ashika was wearing when her body was found. The Accused said Ashika was wearing those on 22 October 2007 but eight rings, one silver necklace and anklets were missing. The Accused maintained that Ashika got off in Sigatoka on 22 October 2007 and that he did not know what happened to her after that point.

[63]	Inspector Balwant seized the brown sandals (P12) from the Accused on 10 November 2007 after returning from the scene where Ashika’s body was found. In cross examination Inspector Balwant said Biriana’s second statement was recorded after the seizure of brown sandals from the Accused, in which Biriana mentioned about the brown sandals for the first time. Inspector Balwant denied coaching Biriana to state seeing brown sandals to incriminate the Accused. 

[64]	The next witness was Sgt. Josaia Naimasi. Sgt. Naimasi led the team of officers who attended to the scene where Ashika’s body was found on 2 November 2007. He said bodily samples were taken from Ashika’s body but he did not know if the samples were tested.

[65]	The next witness was Dr. Eka Buadromo from the CWM Hospital. Dr. Buadromo is a consultant pathologist at the CWM. Dr. Buadromo gave evidence by making reference to the post mortem report (P27). She said there was bruising on Ashika’s left lower neck. Bruising is caused by forceful impact on the skin. The only significant finding was scalp contusion and fracture on cricoid cartilage, which can only be caused by force such as throttling. Dr. Buadromo said the body was in an advanced state of decomposition. Decomposition can vary depending on the environmental conditions. She said it is difficult to ascertain the actual time of death. The cause of death was asphyxiation i.e. shortage of oxygen taken by the deceased due to obstruction to the air passage caused by manual strangulation. Under cross examination Dr. Buadromo said the estimated time of death according to the report was 5 – 10 days since 2 November 2007, that is, 24 October to 29 October 2007. She said the estimated time of death is not definite.

[66]	The next witness was WPC Lavenia, the police photographer. She said she took the photos which are in evidence (P28 and P29). She said the place where Ashika’s body was found was a wet area. She said she noticed a finger nail on Ashika’s right thigh but has no knowledge if the nail was tested.

[67]	The next witness was Lance Hill. He came to know the Accused socially from United and Bowling Clubs. He said on 25 October 2007 the Accused asked him to bring some bags from his flat at Berry Road. The bags were loaded in his vehicle and were taken to the United Club and then to a room below the United Club that was rented by Feroz. On 29 October 2007, the Accused and Mr. Hill drove to Deuba to visit a building sight at Vunimaqo Forestry Department, past Deuba Inn. Mr. Hill said he was drunk and so he asked the Accused to drive him. Mr. Hill said they were at Pacific Harbour around 3.00pm. After visiting Vunimaqo, they stopped at Uprising Resort. They did not go anywhere else in Deuba. 

[68]	That was the prosecution case.

Defence Case

[69]	The Accused gave evidence, mostly consistent with his caution statements. The Accused said he arrived in Fiji last year and was to leave Fiji on 29 October 2007. He said on 22 October 2007 his plan was to pick up his wife Ashika from the Nadi International Airport and drop her to her parents at Nadera. He hired a rental car from Carpenters and drove to Nadi. He arrived at Nadi around 2.00pm. When Ashika arrived, they hugged and kissed. While at the airport, he was introduced to a gentleman. He said he did not see that person give evidence in court. The Accused said he drove to Nadi town with Ashika. Ashika was hungry. They ate at Chicken Express. After that they left for Suva. On their way to Sigatoka, he learnt Ashika’s parents had arranged a new husband for her. Ashika asked him to drop her off in Sigatoka town. They stopped at Sigatoka town and the Accused went and got coffee. Ashika got off the vehicle, took her three handbags from the boot and returned the key to the Accused. The Accused then made a u-turn and drove towards Suva. He saw through his rear vision mirror that Ashika flagged down a taxi and got into it. The Accused said he placed a torch into Ashika’s handbag because he did not know how long she was going to be in Sigatoka. The Accused said he arrived at home just after 8.00pm. He did not stop anywhere between Sigatoka and Suva. The following morning he took Ashika’s bags inside his flat and then later he took the bags to the United Club and put them in Feroz’s room. On 26 October 2007 he was called by the police. He learnt Ashika was missing. He handed the bags to the police. He said he received an e-mail from Ashika on 23 October 2007. When he was at Namaka Police Station he received a call. He believed it was Ashika. He heard screams. The phone was slammed. He told Cpl. Timoci about the call. On 29 October 2007, he went to Deuba with Lance Hill on Lance’s request. Upon their way back to Suva, they only diverted to the Uprising Resort. They returned to Bowling Club before 4.00pm. He said the brown sandal (P12) was brought to him by his father when he was in custody at the Central Police Station. He said when he went to Nadi on 22 October 2007 he wore a brown cargo pants and a white Reebok canvas. The cargo pants are missing. It was seized by the police but never returned to him. He said in his caution interview he wore blue jeans but he was not too sure. He said the photos from the Chicken Express were not clear. He said the accusation against him is not true. He has nothing to do with Ashika’s death. He was in love with Ashika. She was very special to him. In cross examination, the Accused said his hands are hairy. He said he had a relationship with Iowana while being married to Ashika. 

[70]	The second defence witness was ASP Manasa Talala. ASP Talala said he went to a house in Nadawa, address of which was given to him by the Accused. This was after 27 October 2007. He found no one at home. He did not make any independent enquiry to trace the call the Accused advised him of on 27 October 2007 when he was at Namaka Police Station.

[71]	The third defence witness was Alvina Rokodure. Ms. Rokodure knows the Macartneys well. The Accused’s father, Allan Macartney owns a house at Veisari. In 2007 Ms. Rokodure occupied the house when Allan Macartney was in Australia.

[72]	The fourth defence witness was Iowana Mistry. She said she was in a relationship with the Accused and she lived in his flat at Berry Road four days in a week. Iowana said on 22 October 2007 the Accused arrived home at about 8.10pm. Iowana said she first met the Accused in June 2006. He brought her jewelries and took her out and that she enjoyed her life with the Accused. She said she is still in a relationship with the Accused. She said she told the police that the Accused was wearing blue jeans on 22 October 2007 because that is what the police told her to say.

[73]	The fifth defence witness was Allan Macartney. He said he took the brown sandals (P12) to the Accused on 8 November 2007 for him to wear it while in custody at the Central Police Station. He had left the sandals at his Veisari home when he left for Australia on 23 September 2007. When he returned to Fiji on 6 November 2007, the sandal was at the same location where he had left before leaving for Australia.

[74]	The sixth defence witness was Rajneel Ram from Vodafone. He explained the telephone records (D3 & D4). He said Vodafone does not keep a record of incoming calls from landlines or post paid mobiles.

[75]	The seventh defence witness was Seema Singh. She said she called the Accused in the evening of 22 October 2007. She met the Accused at the United Club the following day. She said she had no personal knowledge about Ashika’s new husband. Whatever she knew was from a neigbhour who had called her. What Seema Singh said about Ashika’s new husband is hearsay. It is an out of court statement and you must not rely on the statement for its truth.

[76]	The eight defence witness was Simione Valenitabua, counsel for the Accused who was present during the two interviews of the Accused. He said an action has been filed by the Accused against Mr. Rajendra Prasad for the money he has borrowed from the Accused. Mr. Valenitabua said the Accused was given an opportunity to change any part of his interview. Mr. Valenitabua said after looking at the photos from the Chicken Express, he concluded that the Accused was wearing a cargo pants. When he made his conclusion the Accused was present and no request was made to change the statement made to the police that the Accused was wearing blue jeans.

[77]	The ninth witness was Usaia Ravono an employee of Westpac Bank who tendered the bank statement of Rajendra Prasad (D13) which shows a deposit of $12,242.00 on 13 January 2006. Under cross examination, he said he cannot tell who had made the deposit just by looking at the bank statement.

[78]	The last defence witness was Bula Waqanivavalagi. He has known the Accused socially from the United and Bowling Clubs. He said the Accused used to drink before being charged and he continued to drink after being charged.

[79]	That was defence case.

Analysis

[80]	You will have to evaluate all the evidence when you consider the charge against the Accused has been proved.

[81]	Some matters I suggest are beyond doubt. If you accept the medical evidence of cause of death, then you can have no doubt that Ashika was killed by someone, and that she was killed with malice aforethought, that is with intention to kill her. You may think that the only issue in dispute is the identity of the person who killed Ashika. You may think from the presence of jewelries on Ashika when her body was found that she was not killed by someone with an intention of robbing her. 

[82]	The prosecution says the Accused was last seen with Ashika when she was alive. The prosecution says on 22 October 2007, the Accused picked Ashika from Nadi in a white rental car and brought her to Deuba where he manually strangled her before dumping her body in the bushes. The prosecution says that Biriana’s evidence of sighting a white man with blue jeans, brown sandals and hairy hands with an Indian woman beside a white car with yellow registration plate and a logo on the side door at a place where Ashika’s body was later found, the Accused having possession of Ashika’s bags after she went missing, the movements of bags to different locations until the police questioned him, and the sighting of the Accused by Ms Gavidi on 29 October 2007 at the place where Ashika’s body was dumped, leads to the sure conclusion that the Accused is the killer. The prosecution says that the idea of Ashika having found a new husband is an invention of the Accused to bolster his defence that she got off in Sigatoka. 

[83]	Madam and Gentleman Assessors you may ask yourselves whether the demeanor and conduct of Ashika when she arrived in Fiji as described by the Accused himself and the witness Ajay Singh, that is, hugging and kissing the Accused, getting into the same vehicle with the Accused, driving to Nadi town to have a meal together, talking in the car about their Melbourne home, being in a happy mood, leads to the conclusion of someone who would suddenly break up her marriage, and get off the vehicle to meet a new husband and without giving any details about the new husband. If Ashika got off at Sigatoka after breaking up her relationship with the Accused, you may think that she would have taken her bags with her or at least contacted the Accused later for her bags. She arrived in Fiji on 22 October 2007 wearing a white dress and jewelries and when her body was found on 2 November 2007 she had a white dress and jewelries on. From this evidence, the prosecution says Ashika was murdered on the same day she arrived in Fiji. It is entirely a matter for you to consider whether Ashika got off in Sigatoka on 22 October 2007 and when she was killed.

[84]	The defence says Ashika got off in Sigatoka to meet her new husband and the Accused drove by himself to Suva without stopping anywhere between Sigatoka and Suva. The defence says Biriana is not a credible and reliable witness. The defence says Biriana was coached by the police to say she saw a white man with blue jeans and brown sandals to implicate the Accused. The defence says Biriana only mentioned the brown sandals to the police after the police seized the sandals from the Accused on 10 November 2007. The defence says that even if you find Biriana a credible witness, you should reject her evidence of identification of clothing and shoes as unreliable. The defence says the identification of clothing and shoes by Biriana was made at 7.00pm when it was dark and there were no lights. The defence says the Accused was at his home by 8.00pm and therefore between 7.00pm and 8.30pm he could not have been in a white car that was sighted at Vunibuabua Old Road by Biriana and her friend. The defence says Iowana confirms that the Accused was at home by 8.10pm. This evidence is called alibi. As the prosecution has to prove his guilt so that you are sure of it, he does not have to prove he was elsewhere at the time. On the contrary, the prosecution must disprove the alibi. Even if you conclude that the alibi was false, that does not by itself entitle you to convict the accused. It is a matter you may take into account, but you should bear in mind that an alibi is sometimes invented to bolster a genuine defence. 

[85]	The defence says that while the Accused and his friend drove past Deuba Inn on 29 October 2007, he at no time diverted to the Vunibuabua Old Road. The defence says that the Accused did not deliver Ashika’s bags to her parents because he was upset with them for arranging a new husband for her. The defence says that the Accused has been consistent throughout and his evidence cannot be ignored. The defence further says there would be no reason, no motive for the Accused to have killed Ashika. Ashika was going to be his witness in a case against Mr. Rajendra Prasad. The defence is critical about the police investigation, that is, bodily samples were not tested and small hand bags have not been found. The defence says the evidence do not lead to the sure conclusion that the Accused is responsible for Ashika’s death.

[86]	What inferences you draw from the proven facts is entirely a matter for you. Remember what I told you about circumstantial evidence, that you must be satisfied beyond reasonable doubt that the only rationale inference arising from the evidence is that the Accused killed the deceased by strangling her with malice aforethought on 22 October 2007. If you are so satisfied, then you may find the Accused guilty. If you think that there is any other inference arising from the facts which is consistent with the Accused’s innocence or if you are not sure of his guilt, then you must find him not guilty. Remember the Accused carries no burden to prove anything. The burden is on the prosecution to satisfy guilt beyond reasonable doubt.

Conclusion

[87]	Madam and Gentlemen assessors, that concludes my summing up of the law and the evidence in this particular trial.

[88]	We have now reached the stage where you must retire to your room to deliberate together and form your individual opinions on the charge against the Accused. You may have with you any of the exhibits that you would like to consider.

[89]	When you have reached your separate decisions you will all come back into Court and you will each be asked to state your opinion as to whether the Accused is guilty or not guilty of the charge. The possible opinions you could have in this case as I have already explained to you are that the Accused is guilty or not guilty of murder.

[90]	Would you please now retire to consider your opinions? When you have made your decisions would you please advise the Court officer and the Court will reconvene to receive your opinions?

[91]	Thank you.

Daniel Goundar
JUDGE

At Suva
Tuesday 4th November, 2008

Solicitors:
Office of the Director of Public Prosecutions, Suva for the State
Valenitabua Esq., Suva for the Accused