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State v Rasaqio [2010] FJHC 286; HAC155.2007 (6 August 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 155 OF 2007

STATE

v

1. RATU BATINIQIO RASAQIO
2. EMOSI DAGOYA
3. SEFANAIA NUKULAVAI
4. PAULIASI NACAGILEVU
5. ISIKELI TAULELE
6. ISIKELI RALULU
   

Mr. J. Singh for the State
Mrs J. Nair for the First Accused
Ms N. Nawasaitoga for the Second Accused
Mr. A. Singh for the Third Accused
Mr. T.Terere for the Fourth and Sixth Accused
Fifth Accused in Person

SUMMING UP

[1] Madam and Gentlemen assessors; we have now come to the stage in the trial where it is my duty to sum up the evidence to you; and to direct you on the law. You will then be required to deliberate together and each of you must give a separate opinion whether the accused are guilty or not guilty of the charges they face.

[2] Our functions have been and remain quite different throughout this trial. The law has been my area of responsibility and I must now give you directions as to the law which applies in this case. When I do so, you must accept those directions and follow them.

[3] The facts of this case are your responsibility. You will wish to take into account the arguments in the speeches you heard from Counsel yesterday morning but you are not bound to accept them. You are to make up your own minds. Equally, if in the course of my review of the evidence I appear to express any views concerning facts, or emphasize a particular aspect of the evidence, do not adopt those views unless you agree with them and if I do not mention something which you think is important you should have regard to it and give it such weight as you think fit. When it comes to the facts of this it is your judgment alone that counts.

[4] In arriving at your conclusions you must consider only the evidence you heard in this case. You must disregard anything you heard from friends, relatives or through any media outlet about this case. You must ignore any suggestions or advice made to you by anyone, no matter how well meaning it may be.

[5] You must decide this case only on the evidence which has been placed before you that includes witnesses and exhibits which have been produced. There will be no more evidence. You are entitled to draw inferences that is to come to common sense conclusions based on the evidence which you accept, but you must not speculate about what evidence these may have been or allow yourselves to be drawn into speculation.

[6] In assessing the evidence, you are at liberty to accept the whole of a witness evidence or accept part of it and reject the other part or reject the whole. In deciding on the credibility of any witness you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness 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 reliable?

[7] As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding upon any proposition put to you and in evaluating the evidence in this trial. You are to ask yourselves whether it accords with common sense or is it contrary to common sense and experience.

[8] I ask you to please put aside any feelings of prejudice you may have against certain people and to put aside any sympathy you might feel for anyone connected with the trial. This court room has no place for sympathy or prejudices – you must arrive at your opinions calmly and dispassionately. In this regard, I ask you to complete ignore what Counsel for the third accused said in an attempt to arouse your sympathies. He referred to his client being a "child", growing up in poverty, an unemployed father and facing life imprisonment. All of these remarks are irrelevant to your deliberations and it was most improper for him to mention them. You are the judge this case on the facts alone.

Onus and Burden of Proof

[9] In this case, as in every case in Fiji, the prosecution must prove that the defendant is guilty. He does not have to prove his innocence. In a criminal trial the burden of proving the defendant's guilt is on the prosecution.

[10] How does the prosecution succeed in proving the defendant's guilt? The answer is – by making you sure of it. Nothing less will do. That is the principle often referred to as "beyond reasonable doubt". If after considering all the evidence you are sure that the defendant is guilty you must return a verdict of "Guilty". If you are not sure, your verdict must be "Not Guilty".

[11] Let me take you to the "information". It is sometimes referred to as the Indictment but quite simply it is the charge sheet that list the charges, or "counts" that each accused in this trial is facing. We can see that the first four accused are charged with one count of murdering Narend Prasad on the 5th day of October 2007 at Tavua. Each of these four accused have entered pleas of not guilty to this count.

[12] The first four accused are also charged with four counts of robbery with violence, also on the 5th October, the robbery said to be of ladies in the house next to the shop of the deceased. Now the first three accused have entered pleas of guilty to these four counts so it is not necessary for you to deliver any opinions relating to them and robbery; however the fourth accused, Pauliasi Nacagilevu, pleads not guilty to these robberies (as is his right) and it will be for you after deliberation to tell me if he is guilty or not guilty of these four counts.

[13] The first three accused are also charged with unlawfully taking away the rental car that had been hired by one of the robbery victims. They have pleaded guilty to that count so it will not be necessary for you to give me an opinion on that count at all.

[14] The last and seventh count is one of housebreaking against the first three accused, and the fifth accused. You will see that the sixth accused is named in the count but he has been earlier discharged by me for legal reasons which need not concern you. The first three accused have pleaded guilty to the count so it remains only for you to give me an opinion on the guilt or innocence of the fifth accused.

[15] The issues then for you to decide are these:

(a) Did Ratu Batiniqio Rasaqio murder Narend Prasad on the 5th October 2007?

(b) Did Emosi Dagoya murder Narend Prasad on the 5th October 2007?

(c) Did Sefanaia Nukulavai murder Narend Prasad on the 5th October 2007?

(d) Did Pauliasi Nacagilevu murder Narend Prasad on the 5th October 2007?

(e) Did Pauliasi Nacagilevu rob Satya Wati on the 5th October 2007?

(f) Did Pauliasi rob Karuna Ram on the 5th October 2007?

(g) Did Pauliasi Nacagilevu rob Bimja Kumaru Singh on the 5th October 2007?

(h) Did Pauliasi Nacagilevu rob Suruj Kumar on the 5th October 2007?

(i) Did Isikeli Taulele break and enter into the house of Latchman Naidu on the 6th October 2007 with intent to commit robbery?

[16] That then is the basis of the charges that you have to consider and before I direct you on the law to be applied to these charges, I am going to go over the facts that have been aired in this trial. As you will recall, most of the evidence of the victims in this trial was read out to you from their statements to the Police, a procedure which is permissible with agreement of all Counsel, but a procedure which is unsatisfactory in that it doesn't allow you to absorb the full import of the evidence before the Court. Some of the statements were read with pin-point clarity, some were mumbled and some were so poorly written in English that it was virtually impossible for the interpreter to read them to you in a satisfactory way. So I consider it most important that you hear the main points of those statements again from me now.

[17] The first prosecution witness was Satya Wati, the widow of the deceased and she in fact gave her evidence viva voce. She said that she lived with her husband Narend and her mother-in-law in Toko, Tavua. On the 5th October, her two sisters-in-law had come to stay with her. Her husband had a shop "just away from the house". Her husband was working in the store and as it was getting late for dinner she went out to call him. When she went out she saw people opening the back door of the shop. It was dark, she could not recognize them and she asked them what they were doing there. When she was returning to the house someone punched her from behind on the eye and hit her hard on the face. She screamed, fell down and she was pulled and dragged to near the house. "They" pressed her down and sat on her back. "They" then went inside the house but she doesn't know what happened inside. They came out of the house and went and got into the rental car. It belonged to the sister-in-law who had come from Australia to visit her. She then fainted and when she came to, her husband's brothers were inside the house. One of the brothers arranged for another brother to take her to hospital. In the meantime a search was made for the witness' husband. One of the brothers told her that her husband had been found. She went looking around the shop and found her husband lying face up. His hands and legs were tied with raffia string. He was loaded into a vehicle and both she and Narend were taken to Tavua Hospital. She said that she later discovered that jewelleries and a mobile phone had all been stolen but were subsequently returned by Police and she identified them.

[18] The second witness was Karuna Ram, who you will recall read out her statement very clearly and strongly. She was one of the deceased's sisters who had come to visit. She had met one other sister at Nadi Airport on her arrival from Sydney and they had traveled up to Ba in a rental car. After dinner on the 5th October, she went to have a shower at the time her sister-in-law left to lock up the shop. When she came out of the shower she saw a figure in black and masked, holding a cane knife to her sister Bijma. She looked into her mother's room, where she saw a short man also in black with pinch bar in his hands. He uttered an obscenity at the mother. That man told this witness not to move and tied her hands with a piece of cloth. He emptied the contents of her handbag into another bag (the properties being stolen included Australian cash, Fiji cash and jewellery. Both robbers threatened rape and shouted more obscenities before leaving and getting into the rental car. She saw her sister-in-law bleeding heavily and she too saw her brother lying beside the steps to the shop. She subsequently went for medical treatment.

[19] In cross-examination, she denied knowing that her brother was having heart disease, and she said that although she saw only two persons in the house, she said that she "felt" that there were four people, yes altogether four. It was a dark night and she wasn't wearing her glasses.

[20] Bijma Kumari Singh, is a schoolteacher from Australia. She came to Toko on the 4th October to see her brother and her mother. She had hired a car numbered LR775 from "Better Rentals". After dinner on the 6th October she was lying on her bed because she was not feeling well. Her sister was showering and her sister-in-law had gone to close up the shop and bring back her husband. Suddenly a Fijian youth dressed in black, including a balaclava, was beside her bed demanding money. He was carrying a long handled cane knife which he used to hit her on her upper left arm.

She got up and gave him her black bag which was in a drawer. The youth took the bag and tipped the contents into another bag which was her mother's bag. He took her into her sister's room and tied up her hands and legs. Their mother was also brought into the room and the room ransacked. All valuables were put into the same big bag. They were threatened with death if they moved. She was pulled outside where she saw another youth. They got into the car which drove away. She subsequently saw her brother lying at the back of the shop in the dark with his hands and feet tied. She then went to be treated in hospital. She added in chief that she had seen a sharp cane knife and a "hooked rod" which she subsequently agreed was a pinch bar. In cross-examination she said that she could smell the strong smell of liquor but when asked if someone was affected by alcohol she stressed that it was only the smell she noticed.

[21] The next witness was Latchman Naidu, the victim of the seventh count of housebreaking. He is illiterate and so his statement was read out with the consent of the defence. He lives in Malele, Tavua with his wife, daughter and grandson. On the 6th October he awoke at about 1.30am by his wife who told him that someone was banging on the porch door. He pulled the curtains aside and saw three Fijian men trying to force the lock. All three had covered their faces. They were carrying a pinch bar and a long handled cane knife. They succeeded in gaining entry into the house. They spoke in Hindi asking for money. He and his family members were ordered to sit down. They picked up items and threw them to the floor, damaging them. The witness' brother drove up in a car at which they all ran out, got into their car and drove away. They did not steal anything. He would be unable to identify any of them, but he and his family were frightened to death.

[22] In cross-examination he agreed that he had not been assaulted before he took the cane knife off one of the assailants and also that the car was beside his shop and he wasn't able to see how many people were in the car. Two men came into the house and one man stood outside.

[23] Mr. Naidu's daughter's statement was also read where she deposes to two Fijian men breaking into the house demanding money. She was a very unsatisfactory witness in that she subsequently distanced herself from her statement. She was most unhelpful. In the circumstances, you may choose to place very little weight on her evidence if not ignore it altogether.

[24] The next witness was Sunil Prakash whose statement was read out to you. He is a neighbour of Narend and was alerted to trouble at the house at about 9.20pm. When told that there were thieves about he was too scared to go to Narend's house, but he did go to the shop. When he got there he saw Bijma, Karuna and the mother standing nearby. They said that they could not locate Narend nor could they open the shop. The witness sent for a crow bar to force entry but when he saw Narend's wife she told him which key to use to open the shop. He saw that the wife was bleeding and had swollen eyes. They gained entry to the shop but couldn't find Narend. They searched outside and then found him lying flat on the ground behind the shop with his hands and legs tied with raffia. They untied the raffia and tried to talk to Narend but he didn't respond. He was loaded into a taxi and taken to hospital. About an hour later he learned that Narend had died.

[25] In cross-examination he said that he was told that three thieves went into the house, but then that is hearsay evidence and it is not something that is within his own personal knowledge.

[26] The seventh prosecution witness was Abinesh Kumar, whose statement was also read to you, but unfortunately from a very poor translation from the original Hindi and I am sure that it was not clear to you. In his statement the witness said that he was a taxi driver and on the 5th October he had been driving all day. He was watching television at home at around 9.15pm when his "cousin-sister", Bijma who had recently arrived from Australia came running and crying to the house. She had been staying with Narend Prasad who operated the family shop. On hearing what Bijma reported to him, he went with Bijma in his vehicle to the shop compound. He banged on the door of the shop, shouted out Narend's name and tried to get into the shop. Eventually, at about 9.30pm he got the correct key from Satya Wati, opened the shop but could not find Narend. He checked outside with a torch and just beside the steps to the shop he saw Narend lying by the steps, face up with his hands and legs tied with white raffia. He also noticed a kitchen knife lying beside his head. He and some others cut the raffia, loaded him into his taxi and took him to the hospital where the doctor on duty pronounced him dead. He took his brother to the mortuary at Tavua and his sisters were taken to Lautoka Hospital because they were injured. The witness was not cross-examined.

[27] The next lot of witnesses were Police witnesses, who read to you the individual interviews under caution conducted with the first five accused.

[28] The Prosecution say that each of the five in these interviews made admissions on which you may rely. If you are sure that the individual accused persons did indeed make these admissions then you may take them into account when formulating your opinions. You will treat them as any other evidence and give them such weight as you think fit. You may wish to bear in mind of course that Defence Counsel in their cross-examination of the various police officers have all stressed the fact that they were voluntarily made and the answers freely given. I will not go through the individual statements in this summing up. They were read to you and you followed the readings on your copies and you have retained those copies. I will remind you once again, and I have said this to you twice already that the contents of each accused's interview can only be used against that accused alone; however you are able to go a little further than that. Where all of the accused say the same thing about something or someone, then you can legitimately infer that they all did something together.

[29] You will recall that Defence Counsel all put to their respective interviewing officers that no questions were asked of their interviewee about intention to murder or to do serious bodily harm to any of the victims. All of the officers agreed and it is true: not one of the accused was asked if he intended to kill anyone that night or if he intended to cause very serious injury to any of the prospective victims.

[30] The evidence of the mother of the deceased who was also a robbery victim was read out to you by the Investigating Officer ("I.O"). Her evidence was as follows:

On the 5th October 2007 at about 9.15pm she retired to her room to undress when she saw two Fijian boys in her room demanding money. They were both wearing masks; one had a cane knife and the other an iron rod. One pushed her and then went to her daughter Bijma who was lying on the bed. He pulled Bijma from the bed and hit her on the hand with the cane knife. He then dragged this witness into another room and tied both of her hands with a blouse. He pulled the telephone line and both started asking for money, one putting the knife on Bijmal's neck. Her other daughter was having a bath at the time and her daughter-in-law was going to the shop to collect Narendra. The boys ransacked the house and took away her purse containing $50 Fijian, all of her medicine and snatched a necklace from her neck worth $700. They demanded the rental car key and broke glass in the kitchen. When she went out of the house she saw her daughter-in-law lying near the porch covered in blood and her clothes full of blood.

[31] The I.O. then went on to produce exhibits; items stolen in the robberies and recovered from the accused persons, including a mobile phone which had been sold by the fourth accused. He produced the weapons taken to the scene by the accused and the clothings that they wore on the night of the 5th October.

[32] The I.O. was cross-examined quite vigorously by Counsel for the Defence. Counsel for the first accused suggested that water bottles and a beer bottle seized were receptacles for methylated spirits which the accused were drinking before they embarked on their enterprise. The I.O. agreed with her. The I.O. agreed that no forensic tests were conducted on the clothing or the weapons and he did agree when he produced the clothing of the third accused that it was red and distinctive and as such had never been identified by any of the witnesses. He said that he had become aware of the fact that Narend had died at about 10.00pm that night. In answering questions from me he said that he had seized the cane knife and the pinch bar from the accused 4 days after the incident, and the kitchen knife was found at the scene next to the body of Narend.

[33] The last witness for the prosecution was the lady Doctor who read and interpreted the post mortem report. She told us that after external and internal examinations, the pathologist had concluded that the cause of death was cerebral edema due to severe concussion and a significant condition contributing to the death was ischemic heart disease. It's important to keep these 2 factors in the right order and not the other way around as some Counsel would have you believe. In fact in answer to a question from the Court, the Doctor said quite categorically "the cause of death was due to concussion and not the heart condition"

[34] At the end of the prosecution case, you heard me tell the accused persons what their options were, a case to answer being found against each of them. They each elected to remain silent and call no witnesses. That is their right in law. The accused do not have to prove anything; they can just sit back and say that the prosecution has not proved the case against them. It is not for you to think any less of them or their case just because they have not given evidence.

[35] "Murder", has three essential elements. For the accused to be found guilty of "murder", the prosecution must prove beyond reasonable doubt, the following elements:

(i) that the accused did an unlawful act;

(ii) that the unlawful act caused the death of the deceased;

(iii) that at the time of the unlawful act, the accused either:

(a) intended to kill the deceased, or

(b) intended to cause him some serious harm, or

(c) that he knew that death or serious injury would be caused on the deceased, but nevertheless went on to do the act regardless.

[36] An "unlawful act", is simply an act not justified in law. For example, in attempting to rob someone, I rushed towards him and delivered punches to his body and head. The act of punching, without any legal justification, is an assault and is an unlawful act. It is an unlawful application of force to the person of another, and is therefore an unlawful act.

[37] The "unlawful act" must "cause the death of the deceased". This is the second element of murder. Continuing from the above example, the right hand punch I landed on the person's head was so hard, he fell to the ground. He suffered internal bleeding in his brain, as a result, and subsequently died. My punch therefore "caused the deceased's death", because it was a substantial cause of the injuries to his brains. Without my punch, he wouldn't have had a brain injury, and therefore would not die. My punch was a substantial and major cause of his death.

(d) The third element of murder is intention and concerns the accused's mental state at the time of committing the unlawful act. As a matter of common sense, no one can look into a person's brain, to ascertain the person's intention, at the time of him doing the unlawful act. Nevertheless, his intentions can be inferred from his physical actions and spoken words, and the surrounding circumstances. You must put yourselves in the shoes of the accused, and from his physical actions, spoken words, and the surrounding circumstances, you will be able to ascertain his intentions at the time he was doing the unlawful act.

[38] In this case, you will not be required to decide on the accuseds' mental state as to intention to kill or intention to cause very serious harm because the prosecution is not running its case on these mental states. It had the option to do so, but it choose not to do so. The prosecution is simply relying on the mental state of recklessness to prove its case against the accused, beyond reasonable doubt. So, when referring to the example we discussed just previously if the prosecution proved that when I threw the punch at the person's head, I knew at the time, that death or serious injury would be caused on the person, but nevertheless and recklessly I threw the punch at him anyway, I would be guilty of murder, because they have satisfied beyond reasonable doubt the mental element of action without caring if death or serious harm would result.

[39] If, on the other hand, the prosecution failed to prove beyond reasonable doubt, the mental element required, but have only proved beyond reasonable doubt that –

(i) an illegal act was done

(ii) it resulted in the death

then you are entitled to find the accused guilty of the lesser offence of manslaughter. The elements of manslaughter are the first two elements for murder, that is, the accused did an unlawful act, which caused the deceased's death. In this case, if you find that the prosecution has failed to prove beyond reasonable doubt the mental element of intention, but they have proven beyond reasonable doubt the elements of unlawful act and death, then you are obliged to return a verdict of not guilty of murder, but guilty of manslaughter.

[40] The consumption of beer and methylated spirits had been a major part of this case, prior to the alleged murder. Counsel have also dwelt heavily on the topic during their submissions. Apart from the fact that there is no evidence on how much they drank, or even if they were drunk, as a matter of law, intoxication is no defence to a criminal charge. However, you must take it into account, as one of the many factors to be considered, when ascertaining the accuseds' intentions as mentioned earlier. A drunken intention is still an intention but you must ask, did the fourth accused really do the act knowing that death might ensue, but did it anyway. In their addresses Counsel sought to overplay the issue of intoxication. Counsel for the first accused referred to 8 litres of alcohol which was totally misleading. The evidence (from one of the interviews) is that one bottle of spirits was mixed into 8 litres of water. The fact is that there is just no evidence before you as to how much they drank, or if in fact they were drunk.

[41] There are four accused in this case charged with murder. In order to make them jointly liable for the alleged murder of Narend Prasad, the prosecution is relying and running its case on the concept of "joint enterprise". "Joint enterprise" is "when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed, of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence". (Section 22, Penal Code, Chapter 17). In considering each accused, you will have to ask yourselves the following questions: Did each of them form a common intention with each other to violently rob the deceased? If so, did each of them act together to violently rob the deceased? When the deceased was allegedly murdered as a result of the violent robbery, was this a probable consequence of the same? If your answer to the above questions for a particular accused was yes, and you are satisfied beyond reasonable doubt that the elements to murder are satisfied, he's guilty of murder.

[42] When a criminal offence is committed by 2 or more persons, each of them may play a different part, but if they are in it together as part of a joint plan or agreement to commit it, they are each guilty. The words "plan" or "agreement" do not mean there has to be any formality about it. An agreement to commit an offence may arise on the spur of the moment. Nothing need be said at all. It can be made with a nod or a wink or a knowing look. An agreement can be inferred from the behaviour of the parties. So if they all set off to rob, carrying weapons, you might find that that is evidence of a plan to commit offences. The essence of joint responsibility for a criminal offence is that each accused shared the intention to commit the offence and took some part in it (however great or small) so as to achieve that aim.

[43] The law goes further than that. The law says that if one of the participants in the joint enterprise carries out an act that was not originally planned, and if that act was a probably consequence of the enterprise, then they are all liable and responsible for that act.

[44] What that means in our case is this – setting off on a plan to rob with dangerous weapons was it more likely than not, or probable that someone would be seriously injured during the robbery and die? If your answer to that is yes – then they are all guilty of murder. If your answer is no, then they may be guilty of manslaughter.

[45] We know that the fourth accused punched Narend very hard on the head so that he fell on the ground (this is in his caution interview) and we know that Narend died of head wounds – then it is up to you whether you think this punch caused Narend's death. If you think it did you must then decide whether in the joint enterprise, each of the accused (looking at them separately and in turn) would expect such violence to happen in the robbery. If yes then each is guilty but if no then the unlawful act and that act causing death, you may think that each is then guilty of manslaughter.

[46] Five accused are on trial in this case. Each of the accused is entitled to be tried solely on the evidence that is admissible against him. This means that you must consider the position of each accused separately, and come to a separate considered decision on each of them. It is like having 4 separate trials for murder but all heard together. Just because they are jointly charged does not mean they must all be guilty or not guilty. Most evidence in this case is admissible against all accuseds. However, regarding their police caution interview statements and charge statements, which contained their alleged confessions, the statements therein are only admissible against the maker of the statement, and on no other. In other words, in each accused's police caution interview statements and charge statements, you must totally disregard what the accused said about his co-accuseds on the commission of the offence. You can only take into account what he said about himself, regarding his role in the commission of the crime. In this case, most of the inadmissible evidence in the caution interview statements has being blotted out, but in any event, you must keep in mind the above rule, when you deliberate on the case.

Robbery and the Fourth Accused

[47] Robbery is theft accompanied by violence or threats of violence to any person or property, where the violence or the threat is used to extort the property stolen. The prosecution therefore must prove beyond reasonable doubt that the 4th accused –

1. committed a theft

2. at the time he used violence or threats of violence to effect the theft.

[48] The prosecution says that the fourth accused was acting with the others in a joint enterprise and he must therefore be equally liable, and they say that the evidence for that comes from his interview under caution. I will come back to that shortly.

Housebreaking

[49] Housebreaking is committed when a person breaks any part of a house, either externally or internally and enters that house at night. Here the 5th accused is charged with housebreaking with intent to commit a felony. That is to say that the reason for breaking into the house at night was to commit crime. As it turned out there was no robbery but that is beside the point. It is the breaking in with intention to rob at the time which is important.

[50] The evidence on which you may rely to find the 5th accused guilty is to be found on his interview under caution, and it is unfortunately a little confusing. He says originally that he was drunk and stayed in the car while he saw the others breaking into the house. He later confesses and says he was with the group breaking in and threatening the family. Perhaps you will find that it is not contradictory in that at first he stayed in the car, but then later he went in; or perhaps you will find something happened during the interview to make him confess. There is no evidence of that before you but it is for you to find that the 5th accused's answers are voluntary and truthful. Then assess his guilt or innocence accordingly. If you are not sure you will find him not guilty.

Analysis of the Murder and the Robbery

[51] As I have said earlier, this was a case of joint enterprise, a plan to rob with dangerous weapons. If you find that in the course of that plan something is done resulting in the death of a person, then they can all be liable for murder if they knew when they went there that it was probable that things could have got out of hand.

[52] The fourth accused admits in his caution interview that "I went towards him and I coughed for him to look at me and he did and I pulled him out and gave a hard punch on his forehead and he fell heavily to the ground." This then is an unlawful act and if you find that it caused Narend to fall to hard ground, causing concussion to the head, then death, then you will find all of the co-conspirators guilty of murder. If you also find that each one knew that this was a probable consequence of violence used during a robbery. If you think it was not possible to find that each knew it was a probably consequence you can then go on to find them all guilty of manslaughter; and if you are not sure about any of it you will find them not guilty of anything. If you think, as has been suggested to you, that he had a heart attack, fell to the ground getting severe concussion and then died; you will find them all not guilty of murder and not guilty of manslaughter.

[53] Bear in mind that each of the first four accused was aware of the plan to rob, each went there armed and was willing to carry out that plan. Each appears to have been present when Narend came out of the shop and when he received the "hard punch" from Pauliasi.

[54] You might also bear in mind that the Pathologist has said that the cause of death was extensive cerebral edema due to severe concussion, and she said falling to hard ground would have been consistent with such a medical finding.

[55] In looking at the robbery charges against the 4th accused you will recall, that in his caution interview he admits to punching Satya Wati on the side of the face while two of the other boys were going into the house to rob the other ladies. He was therefore "doing his bit" by clearing the way for the others to go in to rob and the law says that he is therefore liable for all of the robberies in the house at the time he was holding Satya Wati on the ground. The fact that he later went and stood at the roadside is irrelevant. The law says that once he has embarked on a joint enterprise, he cannot get out of it, unless he does something definite to tell the others he has no more part in it. Merely walking away is not enough. He is jointly responsible for what happened. But then of course, it is a matter for you. If you find that the fourth accused did not play any part in the robberies of the four ladies or you are not sure, you will find him not guilty of the robberies, however if you think he was part of the group and "playing his part" then it is open to you to find him guilty of all four robberies.

[56] Well that is all I have to say members of the Panel. You may now go to deliberate on your opinions. When you are ready you will notify my Clerk and I will reconvene the Court.

[57] Your possible opinions are these:

(i) on the murder charge

(a) guilty;

(b) not guilty of murder but guilty of manslaughter;

(c) not guilty of anything.

(ii) on the four robbery charges which you will look at separately

• (a) guilty;
  
• (b) not guilty.
  

(iii) on the housebreaking

• (a) guilty;
  
• (b) not guilty.
  

[58] Any redirections Counsel?

Paul K. Madigan
JUDGE

At Lautoka
6 August 2010