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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
HIGH COURT CRIMINAL CASE NO: HAC 010 OF 2010
BETWEEN:
STATE
PROSECUTION
AND:
1. EPARAMA NIUME
2. JOVECI NAIKA
3. APENISA LINO
ACCUSED PERSONS
Counsel: State - Mr. M. Maitava
Mr. J. Singh
1st Accused - Ms L. Lagilevu
2nd Accused - Mr. T. Muloilagi
3rd Accused - Ms V.M. Savou
Date of Hearing: 24/08 - 25/08/11, 29/08 - 31/08/11, 01/09-02/09/11, 05/09 - 08/09/11, 12/09 - 13/09/11, 19/09 - 21/09/11
Date of Summing Up: 23 September 2011
SUMMING UP
Madam Assessor and Gentlemen Assessors.
matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide. 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.
rests on the prosecution and it never shifts. There is no obligation on the three accused persons to prove their innocence. Under our criminal justice system an accused person is presumed to be innocent until he is proved guilty.
those facts.
must satisfy you beyond reasonable doubt.
They are:
13. An unlawful act is something done by a person that is against the law. A very common example of 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 person without legal justification then that is a criminal assault. In this case it is for the prosecution to prove that the accused persons did an unlawful act. The prosecution alleges that the two deceased persons were stabbed to death and that the 1st and the 2nd accused persons committed the unlawful act, acting in joint enterprise. I will explain to you about the law on joint enterprise later.
In this case the deceased Ashok Chand had 17 stab injuries and deceased Mohini Lata had 13 stab injuries according to the post mortem reports and the evidence of the Pathologist. According to the pathologist the weapon used was a sharp object. On these factors you may infer whether the accused persons intended to cause death or grievous harm on the deceased persons.
In this case the prosecution says that the accused Apenisa assisted Eparama by burning the blood stained clothes and by keeping the knife at his house. You must consider the evidence in relation to each element carefully. Corporal Taufa said in evidence that Eparama revealed about the knife and at the 4th accused's house Eparama showed them the knife. Sergeant Apimeleki in his evidence said that after seizing the knife the owner of the house led the police to the yard and had showed them the place where they burnt some blood stained clothes that were brought by Eparama. In his caution
interview statement the 4th accused had said that the clothes were burnt accidentally. Further the 4th accused had said that Eparama brought the plastic bag containing a kitchen knife and clothes and that Eparama left the kitchen knife on the table and threw the plastic bag to the rubbish dump where it has been burnt. However, for the purpose of this offence, you must be satisfied beyond reasonable doubt that the 4th accused gave active assistance to whom he knew had committed an offence before you can find him guilty on count No. 3.
The fourth count is against the accused persons including the 2nd accused for unlawful use of motor vehicle. The 2nd accused pleaded guilty to the said count and you need not concern about the 4th count. However merely because he pleaded guilty to the 4th count, you must not assume the he is guilty to counts No. 1 and 2 as well. Prosecution must prove each count separately beyond reasonable doubt to find the accused person guilty on each count.
"On the basis of your signed statement to the police dated 6th July 2010 which you have acknowledged as true and correct, and, in the
interest of justice; I am prepared to grant you immunity from prosecution in respect of the offence of murder pursuant to Section 199 and 200 of the Penal Code Act 17.
The offer of immunity is made on the basis that you, Soroveli Vura Quataki if called by the state as a witness in the trial of Eperama Nume, Joveci Naika and Apenisa Lino, will give truthful evidence in accordance with the aforementioned statement. Failure to give evidence in accordance with your statement will invalidate this immunity."
You may also consider the number of stab injuries the deceased, Mohini Lata, had received.
The Evidence
59. Prosecution called Soroveli Vura to give evidence next.
60. He had been given immunity in this case by the Director of Public Prosecutions. He had been working in the Kura Soap Factory. Owners of the factory were Ashok Chand and Mohini Lata. Joveci Naika and Apenisa were working there with him. Joveci was a schoolmate of the witness.
61. On the 19th December when he was working with Joveci, Joveci had phoned his cousin Eparama also known as Mana, and had asked him to come to the factory. Joveci entered the factory by climbing over the fence at the back of the factory. Ashok Chand had gone out to the New World Supermarket.
62. Both Joveci and Mana had come to the factory climbing the fence. After a while Ashok had come back. Mohini had been upstairs. He had gone to Ashok to tell him that Joveci was still working although he was sacked before. Then, Ashok had gone to the staff toilet in the ground floor.
63. Witness had seen a hand waving out of the toilet and he identified it as Mana's. Then Mana had grabbed Ashok Chand by the collar and had stabbed Ashok about 8 times on the stomach. This stabbing had taken place outside the toilet. At that time he had not seen Joveci. Ashok after being stabbed was breathing heavily and had been trying to take his breath he said. Ashok then had been lying down in a pool of blood.
64. Then he had seen Mohini Lata coming down the wooden stairs. Mana had asked Joveci to grab and hold Mohini Lata. Then Joveci had come out of the toilet and grabbed Mohini Lata from her side. The witness demonstrated to you how Joveci did that. Then he had made Mohini sit on the toilet pan. Mana had been standing there.
65. Joveci had been still inside the toilet. Then Mana had asked the witness whether he was okay. After that Mana had gone back to Joveci and had spoken to Joveci in Fijian. The witness said that he was standing there and could not do anything as he was afraid. Then Eparama had started to stab Mohini Lata. Joveci had been standing beside Eparama.
67. He did not tell his father or his uncle who had been there about the incident. He had had a shower and gone to sleep. He had not gone to the Police Station thinking that he would be accused of the incident.
68. The following day evening Joveci had come and given him two bangles. He had given the two bangles to his grandmother in exchange of cigarettes. During the Christmas time in December Joveci had come and asked him to go with him to Valelevu to steal the vehicle from the kura factory. On that day they had not managed to get the vehicle.
69. He had again come back to the factory at about 8.00pm with Joveci and Ratu Josua Eseroma. They have taken the vehicle registration number Kura 01 which was parked on the road. Eseroma had been driving.
70. After seeing a checkpoint they had made an about turn where LTA and police officers had chased them and stopped them at Koronivia Road. They were taken to the Nausori Police Station where Ratu Josua was taken in. He had walked home with Joveci and Joveci had slept with him that night.
71. He was then arrested by Police on a Friday morning and taken to Valelevu Police Station. When they were sitting outside, a woman police officer had identified Joveci. Joveci was taken for interview and after that witness had also been interviewed at the upstairs of Police Station in a room. He said he was in the Police Station for two days and was interviewed from morning to evening. He could not recall the day of the interview but was the same day of his arrest.
72. In cross-examination he said that he discussed about the wages being insufficient with Joveci, but never discussed the issue with Ashok.
73. He admitted that he conspired or planned to assault Ashok with Joveci, in the presence of the 1st accused. Further he admitted that the plan included stealing the company safe. He denied that there was already an opening through the fence and that Ashok had allowed them to use. He said that he did not know why Eparama came there.
74. He said he had spoken with Eparama and Joveci few times about assaulting Ashok Chand. He had not seen or witnessed a conversation between Eparama and Ashok in office. He had not seen or heard Ashok swearing at Aparama. He had not seen Ashok Chand attempting to hit Eparama with an iron rod, he said. He said that he did not see Eparama in office.
75. During his employment in the factory for 3 months he could recall about 3 times going upstairs, but had not seen the safe. Joveci had never been upstairs he said. He denied that the plan was initiated through the information given by him.
76. He denied lying to Court and to Police. He denied being the mastermind of the plan. He admitted communicating with Mana at the time Joveci went out to wait for Mana. In that he said Joveci's phone rang and he answered to see it was Mana, but he denied being a party to the plan. However he admitted telling the Police that he told Mana that the boss has gone out to delivery.
77. A rough sketch of the factory and the premises was marked and produced in evidence. He denied that employees as a daily routine went through the back fence to the factory. He gave evidence on the layout of the factory in terms of the rough sketch plan shown by the defence. However he said that there is no gap between the bleach room and the stairway, but only separated by a wall. He denied that he was outside the building when the incident took place.
78. He said that he cannot recall telling the police that Joveci phoned him after the stabbing incident asking about the safe. He denied that they were not allowed to go to the soap making room. Further he in answering to the questions by the Counsel for 4th Accused said that during the meetings he had with 1st and 2nd accused, Apenisa Lino was also present at the meeting held at Narere Shopping Centre. Further he said that at that time he knew Apenisa Lino only by the name of "Tamanigone".
79. The next witness was Corporal 2222 Simione Taufa.
80. He had joined the investigation team one day after the other members started investigation. When he joined the team Joveci had been already arrested with Soro he said. While Joveci was being interrogated he had come out with Eparama's name and the place where Eparama stayed.
81. The team had gone and arrested Eparama in Sakoca. Eparama had revealed about the murder weapon knife and they had gone to Wainibuku to recover the knife. They had brought the 4th accused, the house owner, from the cassava plantation and Eparama had showed the knife in the house.
82. From there they had gone to an Indian man's house to recover the laptop from where Eparama had sold it. As the Indian man had gone to work they had returned to Valelevu Police Station. They had also brought the owner of the house where the knife was kept, after arresting him.
83. He said that Sergeant Apimeleki affected the arrest of 1st accused and that 1st accused was not handcuffed. He said Viliame never punched Eparama when he got into the vehicle. He denied taking Eparama to Nasinu Mobile Police Station and assaulting him. Also he denied the police officers threatening Eparama. He admitted that he did not make entries in the notebook. In that he said his notebook was full and he was not issued with another. He said that this was not the first case that he had to give evidence where there were allegations of assault.
84. The next witness was Detective Sergeant 196 Apimeleki Digitaki.
85. He had been the leader of the team of Major Crime Unit officers who went to Valelevu to assist the investigation. He said that two workers of the kura factory were brought to the Police Station on the 8th or 9th of December from Muanikoso housing. To Muanikoso housing he had gone with two other members of his team, Corporal Paula and Corporal Viliame. He identified 2nd accused as one of the workers whom they brought in. On the information given by Joveci they have arrested Eparama from Sakoca settlement. When he affected the arrest on Eparama Corporal Viliame and Taufa had been beside him. He had removed the Nike canvas Eparama was wearing and Eparama had admitted that it belonged to the deceased couple.
86. He further gave evidence on recovering of the knife from Wainibuku. He said that when they reached Wainibuku, Eparama had showed them the house where he stayed before and after carrying out the murder. After seizing the knife the owner of the house had led the police to the yard and had showed them the place where they burnt some blood stained clothes that were brought by Eparama.
87. Then they have escorted both Eparama and owner of the house to Valelevu Police Station. He identified the 4th accused as the said owner of the house.
88. He said that Eparama was not handcuffed after arrest. He said that he did not witness Corporal Viliame punching Eparama when getting into the vehicle. Further he denied taking Eparama to Nasinu Mobile Police Station and assaulting him for 15 minutes. Further he denied threatening Eparama. He denied forcing Eparama to show the knife. He too had not taken down any notes in his notebook.
89. He said that his team started at Valelevu on 8/1/2010 and this included Taufa, Viliame and Paula. He said that no interrogation tactics were used on the suspects. He said that there was no interrogation on Joveci. They were not involved in any kind of assault. He said that they are not allowed to go to the interviewing room. The 2nd accused co-operated with police throughout the investigation. He said that the statement he made to police was centered on the arrest he made on 1st accused that he did more than that in his investigation. He confirmed that he went to Wainibuku as the team leader.
90. The next witness was Detective Corporal Paula Kaikai.
91. He had been in the team of officers from CID who assisted the investigation at Valelevu Police Station.
92. They had got information from one Apenisa. On the following day Apenisa had led them to Muanikoso and pointed at a house and there they had arrested Soro and Joveci. At Valelevu Police Station a woman police constable had identified Joveci as one of the guys who was inside the vehicle of the deceased on New Year's eve.
93. Later, on information by Joveci at Sakoca they have arrested Eparama in one Tuiloma's house. He also gave evidence on going to Wainibuku, recovering of the knife and arresting Apenisa the 4th accused. After arresting the 4th accused, on the way to Valelevu Police Station he had been at the back tray of the vehicle with Apenisa the 4th accused.
94. He also denied police officers assaulting Eparama when getting into the vehicle or at Nasinu Mobile Police Station, or threatening him. He also had not made any notes in notebook. He also said answering the questions, that the team was present at Valelevu Police Station on the 7th. Sergeant Apimeleki, Viliame and himself had been there. Corporal Taufa had joined the next day. On refreshing his memory he said that 2nd accused and Soroveli were arrested on 8th January 2010 and Eparama was arrested on 9th January 2010.
95. He denied any kind of assault, intimidating tactics or threats on Joveci. In answering the question put to him by the counsel for 4th accused he said, that the sequence of events when recovered the knife was that they went to Apenisa's house, then to the farm, then to Apenisa's house recovered the knife and then they went to the Indian man's house where the laptop was sold.
96. Prosecution called Vijay Krishna Nair to give evidence next.
97. He is a Justice of Peace and on 11/01/2010 he was called to Valelevu Police Station to interview the suspect. He has interviewed 5 suspects which he remembered Eparama Niume, Joveci Naika and Apenisa Lino. He has interviewed them in a room. Each suspect he had asked whether they were given food, water on time and whether they were beaten by the police. They had no complaints he said. He had not noticed any injuries on them. He had recorded the interview on police statement forms. He said no police officers were present when they were interviewed.
98. The next witness was Dr. Elvine Ondbit. Defence did not challenge the expertise of this witness as a medical doctor. On 11/1/2010 Police had brought 2nd accused Joveci Naika for medical examination to Samabula Health Centre.
99. Medical examination form was produced in evidence. She had found no abnormal findings on 2nd accused and no signs of injuries. 2nd accused had not complained about any police assault.
100. She could not recall whether police officers were inside the room when she examined 2nd accused. 2nd accused had been 17 years 10 months old when she examined him. She denied that Joveci complained to her about pain on his chest and upper body.
101. The next witness was Dr. James Danford. On 11/01/2010 he had medically examined Eparama Niume at Samabula Health Centre.
102. The expertise of this witness as a medical doctor was not challenged by the defence. Medical examination form of 1st accused was produced in evidence.
103. He said that the 1st accused looked calm and was in sound mind. There had been nothing abnormal and no injuries. He also said that usually he allows one police officer to be present in the room when he examined the suspect. He further said bruises or injuries would be visible, depending on the force or the weight of the jabs if the suspect is assaulted. Therefore he said if the jabs were very light, it is possible that there would not have any traces of injuries.
104. He further said that the number of police officers he allows to be present in the room depends on his assessment of the situation. If he suspects any danger, he would request another officer or two officers to be present in the room, he said.
105. The next witness was DC 3684 Viliame Saumaisue who was a member of the CID team who went to assist the investigation at Valelevu Police Station. On 08/01/2010, he with Sergeant Apimeleki, and Corporal Paula had arrested Soroveli and Joveci. At Valelevu Police Station, a female constable had identified Joveci as one of the persons who was inside the vehicle that went pass the roadblock at Nausori bridge.
106. On the information of Joveci they have arrested Eparama at Sakoca settlement. On that day the team had been himself, Sergeant Apimeleki, Corporal Taufa and Corporal Paula. Then they have recovered the murder weapon (knife) from the 4th accused Apenisa's house at Wainibuku. From there they had gone to an Indian man's house where the laptop had been sold. The said Indian man had been away at work.
107. He denied punching Eparama when he got into the vehicle. He denied assaulting Eparama at Nasinu Mobile Police Station. He denied police officers forcing Eparama to produce the weapon, knife.
108. He said that he did not have his notebook although it was the procedure. He said that interrogation is part of the interview, but does not include use of force, threat, or assault. He denied police officers assaulting the suspects. He said that he was not present when they were shown the place where the clothes were burnt. However he said they went to the place where the clothes used by Eparama on the day of the murder were burnt.
109. Prosecution called Corporal 3075 Sakiusa Tikiko to give evidence.
110. He has visited the crime scene with other officers including photographer and the officer who prepared the sketch plan.
111. On 05/01/2010 he had reached the crime scene by 6.15pm. When they arrived, some senior officers including the crime scene personnel from Valelevu Police Station had been there. He had commenced the visual examination. He identified the photographs from the agreed photograph booklet, where he visually examined the staircase, living room, kitchen area, prayer room. He gave evidence on the bloodstains and shoe marks on the bloodstains and identified the same in the photographs. He also had visually examined the bodies in the toilet. Bodies had been heavily decomposed with maggots and body fluids all over the toilet area. He had seen lots of injuries on the two bodies and also a T-shape metal inserted into the vagina of the female body.
112. Pathologist had viewed the bodies and they were uplifted on the next day to CWM Hospital for post mortem examination.
113. On 07/01/10 they had recommenced the examination and he gave evidence on the exhibits uplifted. A kitchen knife, a button, a flip-flop, a wallet, a plastic bag, a metal iron and a flowery pillow case, a piece of white cloth, a masking tape, a kitchen knife with black handle were uplifted from the scene of crime. These exhibits were also identified by him. Further, at the post mortem examination he had uplifted a T-shape metal rod which was inserted into the vagina of the female body.
114. He also gave evidence on the rough sketch plan drawn by the police officer and also by the defence. He said that the two rooms in the sketch produced by the defence, the bleach room and the coconut extraction room are separated from the main soap making room by a blind concrete wall.
115. The next witness was Detective Sergeant Falemaka Mauka who recorded the caution interview statement of 1st accused Eparama Niume. The caution interview statement was produced in evidence and read before you. He identified the exhibits shown to the 1st accused at the interview. He denied Constable Viliame, Constable Paula or Taufa entering the room, when he was conducting the interview. He said that according to the information gathered by him the planning of the accused persons was to rob the owner of kura company and there was no planning to kill anyone. He had not gathered information that the 2nd accused had stabled or used a weapon on anyone.
116. In his caution statement Eparama had stated how the robbery was planned. He had taken a kitchen knife with black handle as a weapon. He had admitted that he stabbed Ashok Chand and Mohini Lata and also that when they could not find the safe that he inserted the iron rod into Mohini Lata's vagina. He had said in his statement how the sequence of events took place.
117. The next witness was Detective Constable Niumaia who was the witnessing officer at the interview of the 1st accused. He said that he witnessed the interview and Eparama was not threatened or forced to give answers and that he gave the answers voluntarily. He said that he did not know who the arresting officers of Eparama were.
118. The next witness was Detective Corporal 2105 Senitiki who conducted a caution interview of the 2nd accused Joveci Naika, and the witnessing officer had been DC Pelasio. The caution interview statement which consisted of 81 questions and answers were produced in evidence and read before you. He identified Photographs Nos. 21 and 22 as the place where Joveci showed him as the place deceased were stabbed as Joveci mentioned in question 65.
119. He denied Joveci being assaulted in his presence during the caution interview. He denied Sergeant Apimeleki and Taufa assaulting Joveci during the interview. He denied that the interview did not recommence until the 09/01/10 afternoon to interrogate and to use force. He denied assaulting the 2nd accused. He said, if he was assaulted he had several options and even he could have complained to the lawyer when he was taken to Court.
120. PC 4580 Pelasio Wainimoca who was the witnessing officer at the caution interview of Joveci the 2nd accused, gave evidence. He confirmed that he too went with Detective Senitiki and Joveci, to the crime reconstruction scene. He said that Joveci was never assaulted or threatened at the interview. He was not forced to give evidence, he said. He denied Sergeant Apimeleki and Taufa being present at the interview. He denied Sergeant Apimeleki and Taufa assaulting Joveci during the interview.
121. The next witness was Sergeant 502 Joji Ravaga who interviewed Apenisa Lino on 09/01/2010. His witnessing officer had been Detective Constable 3701 Epeli. Caution interview statement of the 4th accused was produced in evidence and was read in court. He identified the knife referred to in Question 110 of the interview and also the laptop referred to in Question 112. He said that the knife was seized by the police. He also said that according to the 4th accused, the clothes were burnt accidently.
122. The next witness was SP Salesh Kumar. He had been the Crime Officer of Valelevu Police Station and had supervised the CID personnel who were investigating this case. Initially they had started investigation, on a report that the deceased persons were missing. After investigating he had gone to the house of the deceased on 05/01/2010, where he found the dead bodies. He had then informed the pathologist, and crime officers have taken over the scene of crime.
123. The last witness for the prosecution was the forensic pathologist, Dr. Ramasamy Ponnuswamy Goundar. His expertise as a forensic pathologist was not challenged by the defence.
124. He had conducted the post mortem on the deceased Ashok Chand on 06/01/2010 at CWM Hospital mortuary. The post mortem report was produced in evidence. There had been 17 external stab injuries on the body and that was explained to you in evidence. He said that those injuries could have been caused by a knife like the Exhibit P-12.
125. The cause of death in his opinion was haemothorax which means blood in the pleural cavity due to multiple stab injuries to the chest, he said.
126. Dr. Jean Perera, forensic pathologist had conducted the post mortem on the body of Mohini Lata. He had been present there at that time. The post mortem report was produced in evidence. He identified Dr. Perera's signature in the report. According to the report there had been 13 stab injuries. He said that those injuries could have caused by a knife like Exhibit P-16. He also identified the metal object which was inserted into the vagina of the deceased, Mohini Lata.
127. The cause of death had been haemothorax. That is blood in the chest due to multiple stab injuries to chest. He said that he agrees with the findings of Dr. Jean Perera. In cross-examination he said that the 17 injuries on Ashok Chand had been caused individually.
128. Madam and Gentlemen Assessors, at the end of the prosecution case you heard me explain several options to the accused persons. They have these options because they do not have to prove anything. The burden to prove their guilt beyond reasonable doubt remains on the prosecution at all times.
129. The 1st and the 4th accused persons opted to remain silent and that is their right to do so. You must now draw any adverse inferences from their choice to remain silent. The 2nd accused chose to give sworn evidence and to subject him to cross examination. You must give his evidence careful consideration.
The 2nd accused Joveci Naika giving evidence said that he was 17 years and almost 18 years of age at the time of the incident.
130. Soroveli had been working in the kura factory and he had joined about a week before the incident. After working from Monday to Saturday, he had received $20.00 as his pay. He had felt bit angry about it. When he told Soro about it, Soro had said that the couple, owners of the factory has a safe and to find someone to come and rob the safe.
131. He had told the 1st accused about it and told Soro that Eparama would come on Monday to talk about it. On Monday Eparama had come with Apenisa Lino and the four of them had had a meeting at Muanikoso Village bridge. Soro had confirmed that there is a safe in the factory which contained thousands of dollars. He said the plan was for Eparama and Apenisa to rob the safe. Everybody had agreed with the plan. According to Soro the safe was supposed to be in the worship place of the flat upstairs.
132. On 19/12/2009 Soro and the witness 2nd accused, had started work in the morning. Soro had told him to send a call back text to Eparama. Eparama had then called back. He had told Eparama that Soro had told him to tell Eparama to come with Apenisa because Ashok is about to go for delivery. Apenisa had not been available and therefore Eparama had come alone in a taxi. Joveci had been staying outside for Eparama as Eparama had not come to the factory before.
133. Then two of them had climbed over the fence and entered the factory premises. Eparama had told him that one of them should assist him in the robbery. He had agreed to go with Eparama. Eparama had entered inside the factory from the main door.
134. While Ashok was in the vehicle, Eparama had entered inside the factory from the main door. After Ashok went back to the house he also had entered the factory from the main door closing it behind.
135. Both Eparama and the witness (2nd accused) had been hiding inside the toilet. Eparama had told him to pickup something to use as a weapon. As he could not find anything, Eparama had given him a metal rod. After a while Ashok had come down the stairs. Then the 2nd accused had dropped the iron rod which he was holding as he was afraid because it was his first time, he said.
136. Hearing the noise, Ashok had come towards the toilet. Then he had told Eparama not to hurt him.
137. Eparama had jumped outside and he had heard Ashok yelling, but he had not seen what happened, he said. Ashok had yelled few times and stopped. Then he had heard Mohini Lata coming down the stairs. Mohini had yelled and called the names of him and Soroveli for help. Joveci had come out of the toilet and had seen Eparama grab Mohini. He said that he saw Eparama trying to take out a piece of metal and a kitchen knife from Mohini. When he tried to pull Eparama from Mohini, Eparama had swung his hand and he had got injured in his eye lid by the knife. The injury was a cut, he said. He demonstrated to you how it happened. He said that he did not want Eparama to do to Mohini, what he did to Ashok.
138. He said that he got frightened when he saw Ashok lying in a pool of blood on the floor. He had got scared of Eparama. He had told Eparama not to do anything to Mohini.
139. Eparama had called him to call Soro from his mobile phone. Before calling Soro, he had told Soro not to do anything to Mohini. After calling Soroveli, he had opened the white door for Soroveli to come in. He had called Soroveli as he was the only person who knew the safe. He had gone upstairs with Soroveli and searched for the safe. They had not found any safe. After about 15 minutes Eparama had come upstairs. He had asked Eparama about Mohini and Eparama had said that Mohini was in the toilet. When asked, Eparama had said that Mohini was still alive. They had looked for the safe again but not found. They have only found $ 600. Eparama had given $150 each to him and Soroveli. Eparama had taken Ashok's Nokia phone and Soro had taken the laptop and passed it to Eprama.
140. He had gone to the bleach room with Soroveli. He said that Soroveli was feeling happy as he got $150. They had been listening to music on the phone. Soro had been singing. After a while Eparama had come and passed the laptop to them and gone off from the same fence in the back. Two of them had waited till 3 pm for everything to appear normal as their normal knock off time on Saturday is 3 pm. They had then left the premises from the back fence.
141. He said that he got medical treatment from Makoi Health Centre for his injury on the eye lid.
142. In cross examination by the prosecution he said that he was not pleased with the pay he received. He denied that his employment was terminated on the 19th December 2009.
143. He said that when he went inside the factory he expected Eparama to be inside the toilet as planned. He said that he had never been to the workers toilet before. He admitted that he agreed to assist Eparama in the robbery. He also admitted that he held the T shape iron rod which Eparama gave him. The iron rod he was holding had fallen making a noise.
144. He denied that the T-metal that was given to him was supposed to be used in the robbery. However he agreed that if he used that iron rod in the robbery it would have caused serious injury. He said that although Ashok yelled, he did not go to help Ashok. He denied Eparama calling him to grab Mohini. He also denied him grabbing Mohini. He said that he did not try to help Ashok when he was lying in a pool of blood. He also denied Eparama stabbing Mohini in his presence. He said that he did not escape from the white door when he came to open the door to Soro.
145. Further answering the questions he said, police assaulted him and wanted him to tell the same story as Soro had told the police. He admitted that he did not tell the Magistrates' Court that he was assaulted by police. He said that after he saw what happened to Ashok, he listened to music till 3.00pm in the bleach room.
146. Answering the questions by the Counsel for 1st accused Eparama, he said that when he saw the confrontation between Eparama and Mohini, he saw Mohini holding a kitchen knife and a piece of iron. He also had seen Eparama pulled out the kitchen knife from Mohini's hand and by that time he had got injured when Eparama swung the hand. He said the plan was to rob the factory to get the safe, but the plan went wrong leaving two people dead.
147. In re-examination he said that he did not escape when he went to open the white door to Soro, as he was scared of Eparama. He said that he did not report to the police as he was scared of his cousin, that he would do the same thing he did to Ashok to him.
That was the evidence for defence.
Madam and Gentlemen Assessors,
149. You may also consider whether the evidence of the accomplice Soroveli is corroborated by the caution interview statements of the 1st and the 2nd accused persons.
150. Police officers who visited the crime scene gave evidence as to what they observed, like the bodies of the deceased persons, blood stains, the items uplifted and how the place was ransacked. You may also consider whether those items of evidence corroborate the evidence of Soroveli, the accomplice.
151. The 2nd accused gave evidence giving his version of events. He gave evidence incriminating the 1st accused. You may consider that his evidence is admissible as any other witness's evidence in the case. However you need to consider his evidence with care and caution, because he may have an interest on his own purpose of saving himself.
152. You may also consider whether the evidence of the 2nd accused corroborate the evidence of the accomplice Soroveli.
153. The written agreed facts are before you. You may accept those facts as if they had been led from witnesses from the witness box.
154. Madam and Gentlemen assessors, you heard the evidence of many witnesses for several days on behalf of the prosecution and the defence. If I did not mention a particular witness or a particular piece of evidence, that does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.
155. You must decide which witnesses are reliable and which are not. You have to consider as to how the witnesses faced the examination-in-chief and how they answered the questions in cross examination. You must consider whether the witnesses were forthright in their answers, or whether they were evasive, when deciding on the reliability of witnesses and acceptability of their evidence.
156. You may have observed that when some witnesses gave evidence, there were some inconsistencies between the evidence before this court and the statement given to the police. What you should take into consideration is only the evidence given by the witness in court and not any other previous statement given by the witness. However you should also take into consideration the fact that such inconsistencies between the evidence before court and statement to police can affect the credibility of the witness.
157. You may use your commonsense when deciding on the facts.
158. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.
159. I have explained the legal principles to you. You will have to evaluate all the evidence and apply the law as I explained to you when you consider the charges against the accused persons has been proved beyond reasonable doubt
160. Your possible opinions on each accused on each count are either
Guilty, or Not Guilty.
161. Madam and Gentlemen assessors, this concludes my summing up on
the law. Now you may retire and deliberate together and may form your individual opinions on the charges against the accused persons.
You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court
and you will be asked to state your separate opinion.
162. You may retire to consider your opinions.
Priyantha Fernando
JUDGE
At Suva
23 September 2011.
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URL: http://www.paclii.org/fj/cases/FJHC/2011/624.html