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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 42/2012
BETWEEN:
THE STATE
AND
DEVENDRA NAIKER
COUNSEL : Mr R Prakash and Ms Uce for the State
Mr T Ravuniwa for the Accused
Dates of Trial : 02-08/04/2014
Date of Summing Up : 09/04/2014
SUMMING UP
Madam and Gentlemen Assessors,
[01] It is now my duty to sum up this case to you. I will direct on matters of law which you must accept and act upon. On matters of facts 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 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 opinion. In other words you are the judges of facts. All matters of facts 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.
[02] You have to decide what facts are proved and what inferences drawn from those facts. You then apply law as I explain it to you and form your individual opinion as to whether the accused is guilty or not guilty.
[03] Prosecution and defence made their submissions to you about the facts of this case. That is their duty. But it is a matter for you to decide which version of the facts to accept or reject.
[04] You will not be asked to give reasons for your opinions but merely your opinions of yourself and your opinion need not be unanimous but it would be desirable if you agree on them. Your opinions are not binding on me but I can tell you that they carry great weight with me when I deliver my judgement.
[05] On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty. This is the golden rule.
[06] The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of the accused's guilt before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt then you must express an opinion that he is not guilty.
[07] Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence that who saw the incident or felt the offence being committed. A witness can give evidence on his observations, like what he heard, what he saw and what he perceived by his own senses. That is called direct evidence.
[08] The other kind of evidence is circumstantial evidence that if, on consideration a series of pieces of evidence, you are satisfied beyond reasonable doubt that the only reasonable inference to be drawn is the guilt of the accused, and there is no other reasonable explanation for the circumstances which is consistant with the accused's innocence, then you may convict the accused for the offence charged. Circumstantial evidence can be more powerful than direct evidence. Let me give an example:-If you one day find that your wallet is missing and the only person who could have entered your house is your house is your neighbour, and you find your credit card is hidden in his desk in his home, then you are entitled to accept that it was your neighbour who stole your wallet. This is because the circumstances lead you to the only reasonable inference. However if other people have access to your house and the credit card is not found in his house, then there are other possible explanations which are also consistence with his innocence.
[09] Evidence presented in the form of a document is called Documentary evidence. eg: medical examination form, caution interview statement etc.
[10] In certain circumstances the court would allow witnesses to give their opinions on a matter. Theses witnesses should be experts on that particular subject. For example, you get experts on medical field.
[11] The caution interview statement of the accused person is in evidence. What an accused says in his caution interview is evidence against him. I will direct you shortly on how you should consider that evidence.
[12] Your decisions must be solely and exclusively upon the evidence, which you have heard in this court and upon nothing else. You must disregard anything you have heard about this case outside of this court room.
[13] Your duty is to find the facts based on the evidence apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotions.
[14] Now let's look at the charge.
Statement of Offence
MURDER: Contrary to Section 237 of the Crimes Decree No: 44 of 2009.
DEVENDRA NAIKER on the 20th day of December 2011, at Nausori in the Eastern Division, murdered BISHAL ANAND MISHRA.
[15] In law, murder is made up of three elements;
1. a person engages in conduct
2. that conduct causes the death of another person
3. the person intends to cause the death, or is reckless as to causing the death of another person by the conduct.
[16] The phrase "engages in conduct" in paragraph 15(1) hereof, means "to do a physical act". Example: stabbing, strangling, poisoning.
[17] The phrase "the conduct causes the death of another person" as described in paragraph 15(2) hereof, means that the act must be substantial and a major cause of the person's death. Example stabbing on deceased's chest was a major and substantial cause of death. Without stabbing, deceased would not have died.
[18] As to the element No: 3 in Paragraph 15(3) hereof, it must be shown that, when an accused allegedly stab the deceased "he was reckless as to a risk that his stabbing will cause serious harm to the deceased".
[19] A person is reckless, with respect to a result, if he is aware of substantial risk that the result will occur, and having regards to the circumstances known to him, it is unjustifiable to take the risk. The question of whether taking a risk is unjustifiable is one of the facts.
[20] The first element is called the physical element of the offence while the second element indicates the causal link. The third is call mental element. You have to always bear in mind that all three elements should be established beyond reasonable doubt by the prosecution at all times together for it to succeed in the charge of murder.
[21] You must remember, if the accused person did not have the intention or recklessness to cause the death or any bodily harm which could cause death; or, if you have a doubt on that then the accused person, cannot be found guilty of murder. That is because, without intention or recklessness the offence of murder cannot be committed. You must be clear on this.
[22] If you conclude that there was no intention for the act of the accused or if you have any reasonable doubt about it, then you must find the accused person not guilty.
[23] I 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 the counsel. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence 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.
[24] Now let's look at the evidence led by the prosecution in this case.
[25] The first witness was Dhiren Prasad brother-in-law of the deceased. Deceased was married to his elder sister. On 20/12/2011 the accused called him and inquired of the whereabouts of the deceased and his wife wife. He knew the accused as they are living in the same community. As the accused called him again, he inquired from him the reason for calling. The accused said that he had arranged a goat for the deceased. He identified the accused in open court.
[26] In the cross examination witness said that the accused had asked whether his sister went to the market on that day.
[27] Vikash Anand Mishra the brother of the deceased had seen the accused going to Peter Fong's Shop and carrying a small bag with a handle. He knew the accused as they live in the same community. When the witness called his brother regarding the car tyre, he told him over the phone that he would bring the same on the following day. In the meantime accused had called deceased and asked him to drop at Korociriciri. As it was 6.45pm on 20/12/2011, he went home. But the deceased never returned home. When he inquired about his deceased brother, he came to know that he had been murdered. At 7.45 pm deceased's wife had given a call and inquired about the deceased.
[28] In the cross examination witness said that he saw the accused carrying a black colour bag. Defence counsel marked a photograph as D1. Questions directed to the witness to identify Vuci Road, the road going towards Korociriciri and Waituri. Deceased's wife had told him that the deceased's phone was answered by a Fijian man. Deceased's wife is not a witness in this case.
[29] Asish Sami alias Pulle met the accused on 20/12/2011 at Nausori town. He is a friend of the accused. As they met after a long time, both decided to go for a drink, before the accused went to LTA to attend some work. After their return from LTA they went to Nausori Club and consumed beer till 4.00pm. After that he went home and the accused remained in Nausori Town. He identified the accused in open court.
[30] In the cross examination witness said that the accused told him how he sustained injury on his shoulder while at work. He did not see the accused wearing anything on his shoulder.
[31] Rickey Rajneel Nadan said that on 20/12/2011 while he parked his taxi at R.B Taxi Base the accused had gone there and had a chat with him inside his taxi. This happened between 3.00pm to 4.00pm. He identified the accused in open court.
[32] Melvin Nadan, brother in law of the deceased said that he saw the accused going in the deceased's taxi No: LT 3915 at about 6.20pm on 20/12/2011. Before that when he parked his taxi at R.B. Taxi Base the accused went there and inquired about the whereabouts of the deceased. He identified the accused in open court.
[33] In the cross examination witness said that the accused came to the taxi base at about 6.00pm and left with the deceased at about 6.20pm. It was not really dark on that day.
[34] Divesh Karan a taxi driver by profession also corroborated the version of Melvin Nadan mentioned above. He identified the accused in open court.
[35] Nand Lal is a farmer. His farm is situated at Korociriciri and his home is situated at Waituri. On 20/12/2011 at about 6.00pm, he was not sure about the time, when he was returning from his farm on a bicycle, he had seen a taxi near Waituri roundabout. Two people were inside. One was seated on the driving seat and the other was seated on left side of the back seat. The man seated on the driving seat was looking at the back seat while the other man's face was facing down ward. He could not identify anybody in the taxi at that time. According to him it was not really dark at that time.
[36] In the cross examination defence counsel showed another photograph and marked as D2. According to the witness the taxi was parked further down to the taxi parked in the photograph.
[37] In re-examination witness said that the road appears in D2 is the Waituri road and the taxi he saw on 20/12/2011 was parked on the same road.
[38] According to Tevita Naqaruqaru he lives in Waituri with his family. On 20/12/2011 at about 6.30pm while his family were having dinner he heard a vehicle going very fast on the farm road. As it was unusual for a vehicle to go on that speed on dilapidated farm road, on the instructions of his uncle, he and Meli ran after the vehicle which stopped on the Farm Road. An Indian man alighted from the vehicle and started to run. When both shouted "thief" the man threw something to the nearby bush. He stopped to see what he had thrown while Meli went after him. As he could not find what he had thrown he then ran up to the man. The man was wearing a long pants and he removed the same and threw it out. Inside the pants he was wearing a short. Meli caught the man when he tried to run towards a shortcut which leads to Korociriciri. At that point the man was crying and knelt down in front of them. He was in that position for about 20 minutes. Witness identified the Indian man in open court as the accused in this case.
[39] In the cross examination witness said that he remembered the accused face very well. Witness denied that he assaulted and robbed the Indian man on 20/12/2011. The behaviour of the Indian man let him think that he had did something wrong. After seeing blood on both of his hands they interrogated the Indian man. The Indian man told them that he went to buy a goat with his friend and two Fijian men assaulted them. He further said that his friend was lying there and he ran away with the taxi. Feeling sorry for the man, both let the accused go away.
[40] D/Cpl-1928 was instructed to photograph the crime scene by Sgt/Rakesh on 20/12/2011. He then went to Waituri Irrigation. The place was cordoned off by the police. As it was dark he used a torch light to take photographs. He noticed blood stains on the road. Within one meter on the left side of the road a dead body of a male was lying there with face upward. He was wearing a blue jeans and black and red stripe T-shirt. Stab wounds noted on his chest, chin and neck. On the following day he photographed the taxi which had been abandoned on Irrigation farm road. Blood stains was found on the right front door of the taxi. The booklet with photographs marked as P1. He had made a rough sketch of the crime scene which was marked as P2. The taxi was abandoned 200 meters away from the dead body.
[41] In the cross examination witness said that no finger print was found on the taxi. From P1, photograph 20 was shown to the witness. According to him the blood stains found on the taxi door was taken for Forensic examination. Cpl. Mozima of Forensic Department had taken the blood samples for testing.
[42] Ratu Meli Draunimasi who ran after the taxi on 20/12/2011 at farm road gave evidence next. Confirming the evidence of Tevita Naqaruqaru he said when he ran after the vehicle it had stopped near Bobby's house. The colour of the car is either brown or dark grey. When he went closer, an Indian man dark in complexion alighted from the car and ran towards Korociriciri. He and Tevita caught the man but he worshiped both and told them that two Fijian men were looking for him with regard to a deal for a goat. As he felt sorry for him he let him go from there. Witness had seen blood on both his hands. He was talking to the Indian man for about 15 minutes and he identified the accused as the Indian man. Answering to court the witness said it was not really dark at that time. It was after 6pm.
[43] In the cross examination witness said that they did not look for anything and denied taking the purse of the Indian man. He admitted that he identified a wrong person at the Identification parade held at Nausori Police Station. Due to excitement he could not identify the accused at the parade.
[44] Dr. IIisapeci Lasaro[Mrs] had examined the accused on 23/12/2011 at Nausori Health Centre. She is a doctor with 9 years experience. On 23/12/2011 she had examined the left thumb of Devendra Naiker on the request made by the police to ascertain whether there was any cut or injury on Devendra Naiker's left thumb. According to her the patient was stable and able to run through the whole story and his Glasgow Coma Scale is 15/15. In the history Devendra Naiker alleged that he was acting in self defence and in this process he unintentionally stabbed him several times on the neck, chest. Devendra alleged that he sustained laceration on finger tips of the left hand whilst trying to defend himself. The two men were arguing about the story of Devendra having an affair with Bishal's wife. According to her findings healed abrasions on palm of left thumb, index and middle ring finger was seen on Devendra's' hand. She further said that the injury noted on Devendra Naiker's hand is less than 5 days old. In her conclusion the findings on his left hand is inconsistent with the history.
[45] Rakesh Chandra is a villager of Korociriciri. On 20/12/2011 at 6.30pm while he was resting at his home he had seen Devendra Naiker passing his house. He then called him. Devendra then asked for a match box to light a cigarette. When he asked from where he was coming, Devendra replied that he was coming from the river after fishing. He talked to Devendra for about 2-3 minutes and he appeared to be normal. No fishing equipments were seen in his posession at that time.
[46] Sadya Nand said that the Devendra Naiker had gone to his place with a person called Peter to drink grog at about 7.30pm. Peter left the place after about half an hour. After 20 minutes of Peter's departure a call came to Devendra's mobile. Devendra told the witness that police had come to his place and went away. In half an hour Devendra came back and told him that a murder has taken place and police had come to ask him regarding that. Both then consumed grog till 1.00am, on all occasion Devendra was looking normal. He identified the accused in court.
[47] D/Cpl/1855 Arvind Singh was called next. He was the investigating officer in this case. He arrested the accused who came to the police. He appeared to be normal. The reason for his arrest was informed. After arrest he was caution interviewed. He produced the accused before the court. No injuries was seen on his body.
[48] In the cross examination witness said no complaint received from Waituri area regarding a robbery. He was not aware about uplifting fingerprints or taking blood samples from the crime scene as it is the duty of Crime Scene Officers. He denied that he assaulted or rubbed chilli on the accused's private part during the investigation. He denied at any time the accused was forced to run in front of police vehicle during the scene reconstruction. According to the witness no injuries was seen on the accused body except an old scar on his shoulder.
[49] Inspector Shailesh Kumar was the crime officer at Nausori Police Station during the year 2011. After receiving information regarding a murder, he went to the spot through Irrigation road, Waituri where the dead body of a male person was lying. Next he went to the place where the taxi was abandoned. The taxi No: LT 3915 grey colour was abandoned 1.5 km away from the dead body. The crime scene was guarded by police officers properly. Crime scene officers and forensic officers commenced their investigation and removed the body to Nausori Health Centre. The dead person was identified as Bishal Anand Mishra, a taxi driver of Nausori town. On 21/12/2011 the accused's name surfaced during the investigation and he went to the accused house in the early hours and asked him to come to the police station in the evening. The accused was arrested at the police station when he came to the police. The reason for the arrest was informed. All his rights were properly explained. Thereafter his interview was recorded. After the interview he was charged. No complaint received from the accused of police assault.
[50] In the cross examination witness said that he is not in the position to answer questions regarding finger prints and blood samples as it was done by the crime scene officers. He admitted that an entry in the report book with regard to a robbery at Waituri. According to him it was investigated. After the arrest the accused fully co-operated with the police. Hari Karan was called to sign a search warrant and to speak to the accused about his welfare. Accused did not make any complaint to him against the police.
[51] Nikalesh Navin Chand was the interviewing officer in this case. The recording commenced on 21/12/2011 and concluded on 23/12/2011. Avinesh Maharaj was the witnessing officer to the interview. The interview was recorded in English language. All the rights were given to the accused prior to recording. Necessary breaks were given to the accused at appropriate time. The interview notes were tendered to court as P4. The accused was not threatened, assaulted or intimidated during recording of the interview. He identified the accused in the court.
[52] In the cross examination witness said that he is the only person who questioned the accused at the recording of his interview. He denied assaulting the accused or rub chilli on his private part. Accused was not instructed what to tell the doctor. Apart from an old scar no other injuries were seen on the accused body. As per the cell book the accused was searched and locked by Sgt/Epeli. The cell book entry was marked as D3. Witness admitted that the accused was taken for re-constructions. He denied assaulting the accused by any of the police officers or made him to run in front of the police vehicle without shoes. Finally witness said the accused was kept in the crime office during the breaks.
[53] Dr. Upendra Singh had examined the accused on 24/12/2011 as part of routine check up. He was examined in closed room. The accused was normal when he was produced before him. There was mild rib cage tenderness on the accused and muscle strain on the accused's left thigh. The doctor was not sure whether the rib cage tenderness was due to a punch on the chest. But his explanation in detail said, that tenderness noted could be due to any small impact, an old injury, and born pain or even psychological.
[54] In the cross examination witness said that he explained the minor tenderness area with a diagram. He reiterated that no major injury found on the accused.
[55] Witnessing officer DC/Avinesh Maharaj corroborated the evidence of interviewing Officer Nikalesh Navin Chand. He admitted that he is also known as "Pundit". He said the accused was very co-operative when his interview was recorded. He denied that he assaulted the accused at any time while he was in police custody.
[56] In the cross examination witness admitted that he went to the accused house for a search with a search warrant signed by Justice of Peace Hari Karan. He was not aware of the investigation outcome of the Forensic Team. Witness denied assaulting the accused at any time while in police custody. Witness said that he was well aware that no robbery took place at Waituri on 20/12/2011 night as he was on standby duty.
[57] On 23/12/2011 the accused was charged by PC/Pramendra Singh at the Nausori Police Station. Accused was charged about 20 minutes after conclusion of the caution interview. Accused was given all the rights before he was being charged. He was never threatened or intimidated to admit the charge. This was witnessed by PC/Ramendra. The charge statement was marked as P6. He denied that the charge statement and the caution interview statement are same.
[58] PC/2600 Ramend was the witnessing officer of the charge statement. He corroborated what PC/Pramendra Singh stated in his evidence.
[59] Dr. R Goundar gave evidence on behalf of the prosecution. He is a Forensic Pathologist and he is the Director of Fiji Institute of Forensic Sciences. He has been in the medical field since 1968. He has conducted about 5000 autopsies. In this case he gave evidence in respect of a Post- Mortem form No: MLC 665/2011 conducted on 21/12/2011 at CWMH Mortuary. According to the witness the name of the deceased is Bishal Anand Mishra(male). The body was identified by Vijay Narayan. D/CPL 1855 Arvin was present at the time of examination. According to the report 11 external injuries were noted.
All the injuries described above are cut injuries with clear margin. But the cuts are irregular.
All the above injuries described under No: 3,4,5,6,7,8,9 and10 communicates with the thoracic cavity.
Internal examination of right pleural cavity contained 600ml of blood and left pleural cavity contained 80ml of blood.
Pericardium is slit and pericardial cavity contained 10ml of blood. There is a wedge shaped cut in the myocardium of left ventricle, 6cm in length and 0.8cm in width. At the lower end of the slit, that is, at the apex, the heart is punctured. Stomach contained blood and blood clot.
According to the doctor his death was due to multiple cut injury to the Chest. The post-mortem examination report was marked as P7.
State counsel then closed the case for the prosecution. Copies of all the exhibits are given to you.
[60] When the defence was called and explained rights of the accused he elected to give evidence from the witness box
[61] According to the accused on 20/12/2011 he went to Nausori town to collect his learner's card from LTA. At Nausori town he had met a fried called Pulle and both went to Nausori Club and consumed beer till 4.00pm. He then went to R.B Taxi Base to meet the deceased as he told him to help him to get his learners card. As the deceased was not found, he waited at the base talking to other taxi driver inside a taxi. Deceased came around 5.00pm but went on another hire. He waited for him as he supposed to do some grill work at the deceased's place. After about 20 minutes the deceased came and offered to drop him at Korociriciri. He got into the rear seat of the taxi and went to Korociriciri while having friendly chat. Both accused and the deceased lived in the same community. He went home changed his clothes and went to a nearby creek. While returning from creek he went to Rakesh's house and requested for a box of matches. After reaching home he received a call from one of his friends to come for a grog session. After about 9.00pm, his father called him and informed that some police officers had come to meet him. He then went home and met the police officers. Police officers asked various questions at that time. After speaking to the police he came to know about the death of his friend who dropped him few hours ago. On the following day he went to the police and he was arrested in connection with the murder of the deceased. The police assaulted him severely on his body. They told him to sign a paper which he refused. He was stripped naked, applied chilli to his private part and assaulted by the police officers. He had an old injury on his shoulder and police applied chilli over the wound. He was kept in the police custody for 5 days, threatened, assaulted and obtained his signature to his caution interview and charge statement forcibly. Police officers Avinesh and Nilesh warned him not to tell anything to the doctor. He was taken for scene reconstruction and ordered to run in front of the police vehicle without shoes. He explained the roads by using a photograph marked as D1. With regards to the charge he said that the police obtained his signature under duress.
[62] In the cross examination accused said that he can't walk properly due to police assault. He admitted that he did not make any complaint to either doctors or to the Magistrate. All injuries were visible when he was examined by the doctors. He admitted that he told Dr. IIisapeci Lasaro[Mrs] that he sustained injury on his finger due to self defence. Accused admitted that he did not make any complaint to JP Hari Karan. He further admitted that he co-operated with the police during the investigation. He denied that he cut the deceased with a knife. He also denied that he had an affair with the deceased wife.
[63] The defence closed the case calling the accused to give evidence.
Analysis of the Evidence
[64] Madam and Gentlemen assessors, in this case it is not in dispute that the accused went in the rear seat of the deceased's taxi after 6.00pm on 20/12/2011. Accused admitted in his evidence that he went home in the deceased's taxi on 20/12/2011. This was corroborated by witnesses Melvin Nandan and Dinesh Karan. According to them, the accused was the person last seen going in the deceased's taxi after 6.00pm on 20/12/2011.
[65] The presence of the accused in Nausori town on 20/12/2011 was very well established by the witnesses Vikash Anand Mishra, Asish Sami alias Pulle and Rickey Rajneel Nadan. This too was not in dispute as accused admitted that he went to Nausori town on 20/12/2011 to look for his driving permit from LTA.
[66] Madam and Gentlemen assessors, you heard the evidence of Dhiren Prasad. According to him the accused called him on 20/12/2011 and enquired about the deceased and his wife. In particular the accused enquired whether the deceased's wife went to the market.
[67] Nand Lal had seen a taxi parked near Waituri junction on 20/12/2011 at about 6.00pm. But he was not sure about the time. Two people were inside. One was seated on the driving seat and the other was seated on left side of the back seat. The man seated on the driving seat was looking at the back seat while the other man's face was facing down ward. According to him it was not really dark at that time. According to police investigation the dead body of the deceased was found on the Waituri Irrigation road. The taxi was abandoned 1.5km away from the dead body. You have to consider this evidence carefully.
[68] Madam and Gentlemen assessors, you heard evidence of Tevita Naqaruqaru and Ratu Meli Draunimasi. They live in Waituri with their family. On 20/12/2011 at about 6.30pm while his family were having dinner, he heard a vehicle going very fast on the farm road. As it was unusual for vehicle to go on that speed on dilapidated farm road, on the instructions of their uncle, both ran after the vehicle which stopped on the Farm Road. An Indian man alighted from the vehicle and started to run. When both shouted "thief" the man had threw something to the nearby bush. The man was wearing a long pants and he removed the same and threw it out. Inside the pants he was wearing a short. Meli caught the man when he tried to run towards a shortcut which leads to Korociriciri. At that point the man was crying and knelt down in front of them. He was in that position for about 20 minutes. Witnesses identified the Indian man in open court as the accused in this case. Also noted blood on both of his hand. The accused told them that he was attacked by two Fijian men. The taxi was found on the Irrigation road where these two witnesses confronted the accused. Though Ratu Meli failed to identify the accused at the identification parade due to excitement, he identified the accused from the dock. Consider their evidence with great caution.
[69] It is not in dispute that the accused went to drink grog in the night of 20/12/2011 and went home upon receiving a call from the accused's home. Also not in dispute that he went to the police on 21/12/2011 as per the request of the police.
[70] All the police officers involved in the investigation, arresting, and recording of caution interview and charge statement of the accused denied assaulting the accused. As I told you earlier the caution interview statement of the accused person is in evidence. What an accused says in his caution interview is evidence against him. But you have to consider the position taken by the accused with regard to his caution interview and charge statement. The accused says that he was severely beaten by the police from the day of his arrest until his charge statement was recorded. The accused gave evidence and explained to this court how he was treated by the police. According to him during recording of his caution interview and charge statement he was assaulted, intimidated and threatened. Accused denied the charge. Consider accused's evidence before you give any consideration to the caution interview statement and charge statement of the accused.
[71] Two doctors had examined the accused on 22/12/2011 and 24/12/2011. Both doctors gave evidence as experts in the medical field. According to Dr. IIisapeci Lasaro[Mrs] the accused told her that he was acting in self defence and in the process he unintentionally stabbed him several times on the neck and chest of the deceased. He also said that he sustained laceration on finger tips of the left hand whist trying to defend himself as they were arguing about the story of accused having an affair with the deceased's wife. Healed abrasions on the palm of his left thumb, index and middle ring finger was seen on the accused's hand.
[72] According to Dr. Upendra Singh who had examined the accused on 24/12/2011 as part of routine check up. He was examined in a closed room. The accused was normal when he was produced before him. There was mild rib cage tenderness on the accused and muscle strain on the accused's left thigh. The doctor was not sure whether the rib cage tenderness was due to a punch on the chest. But his explanation in detail, he said that tenderness noted could be due to any small impact, an old injury, and born pain or even psychological.
[73] Both doctors said that the accused did not complaint of any assault or intimidation by the police during the examination. Apart from a minor injury, no major injury/injuries noted on the accused's body. Though he had the opportunity to inform the doctors about the police assault but he did not tell anything against the police.
[74] Dr. Goundar gave evidence and explained in detail the injuries sustained by the deceased. Considering the pattern of the injuries, the doctor expressed his expert opinion that the assailant, most probably, had attacked the deceased from his back. The doctor had noted 11 external injuries and one fatal cut injury to the heart. According to Dr Goundar the death was caused due to multiple cut injuries to the chest.
[75] Accused gave evidence in this case. He admits that he travelled in the deceased's taxi on 20/12/2011 after 6.00pm. He also admits giving the history to Dr. IIisapeci Lasaro[Mrs]. Denying the charge, the accused said that he was subjected to severe police assault while he was in police custody. He had not taken any endeavour to inform this to either the doctors or to the magistrate, even though he had ample opportunity. As Assessors and Judges of facts you have to consider this evidence very carefully.
[76] The prosecution produced Photographic Booklet of the crime scene. Do not be emotional after seeing those photographs. The only reason behind the production of those photographs is to get an idea of the crime scene and not to draw any sympathy.
[77] Madams and gentlemen assessors, in this case accused opted to give evidence from the witness box. That is his right. But he has nothing to prove to you.
[78] I have summarized all the evidence before you. But, still I might have missed some. That is not because they are unimportant. You heard every items of evidence and you should remind yourself of all that evidence and form your opinion on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourself of the evidence.
[79] You have heard all the prosecution witnesses. You have observed them giving evidence in the court. You have observed their demeanour in the court. Considering my direction on the law, your life experiences and common sense, you should be able to decide which witness's evidence, or part of their evidence you consider reliable, and therefore to accept, and which witness's evidence, you consider unreliable and therefore to reject.
[80] You must also carefully consider the accused's position as stated above. Please remember, even if you reject the version of the accused that does not mean that the prosecution had established the case against the accused. You must be satisfied that the prosecution has established the case beyond reasonable doubt against the accused.
[81] Ladies and gentleman assessors, remember, it is for the prosecution to prove the accused's guilt beyond reasonable doubt. It is not for the accused to prove his innocence. The burden of proof lies on the prosecution to prove the accused's guilt beyond reasonable doubt, and that burden stays with them throughout the trial.
[82] Once again, I remind, that your duty is to find the facts based on the evidence, apply the law to those facts and come to a correct finding. Do not get carried away by emotions.
[83] This is all I have to say to you. You may now retire to deliberate. The clerks will advise me when you have reached your individual decisions, and we will reconvene the court.
[84] Any re-directions?
I thank you for your patient hearing to my summing-up.
P Kumararatnam
JUDGE
At Suva
09/04/2014
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