IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

Criminal Case No. HAC 32 of 2015

STATE

V

SIUTA SERU 
             1ST ACCUSED

ASAELI RABOLECA
              2ND ACCUSED

Counsels:	Mr. L. Fotofili for the State
		Mr. A. Paka (L.A.C.) for 1st Accused
		Mr. I. Rakaria (L.A.C.) for 2nd Accused

Dates of Hearing		:  8, 9, 12-16 September 2016
Date of Summing Up	:  16 September 2016

SUMMING UP

Madam and Sir:

[1]	The time has now come for me to sum up this case for you. My 	duty in summing up is two fold. I will direct you on the 	applicable law and you must accept what I say about the law. I 	will sum up the evidence for you but you don’t have to accept 	what I say about the evidence or Facts as we call it. That is 	because you are my advisors and you will assess the evidence 	and after applying the law to that evidence you will tell me in 	your opinion whether each of these accused is guilty or not 	guilty of the charges they face. I don’t have to follow your 	opinions, but I will give them great weight when I come to the 	make the final judgment of the Court.

[2]	You must judge this case solely on the evidence that has been 	placed before you in this Courtroom and on nothing else. 	Evidence consists of the oral testimony of all witnesses, together 	with all documents, and photographs if you think they assist 	you. You may accept the evidence or reject it. You may also 	accept part of a witness’ evidence or part of a document and 	reject the rest. It is entirely a matter for you. You will not 	consider as evidence anything that someone has told you 	outside or anything that you may have read or seen in the 	media. You may have heard me in the course of the trial express 	an opinion or make a remark about the evidence. You must 	ignore that completely and come to your own views about the 	evidence placed before you

[3]	Please do not be influenced by any sympathy or prejudice you 	may feel towards anybody connected with the trial; it is your 	duty to come to your opinions solely on the facts as you find 	them in accordance with my directions on the law.

[4]	There are two accused before you and there are three counts or 	charges. The first accused faces all three charges and the 	second accused faces only the third robbery charge. 

[5]	It is important that you look at each of the three charges 	against the first accused separately. They are each quite distinct 	crimes and the evidence is different on each. Just because you 	might be sure that he committed one of the crimes does not 	necessarily mean that he committed any one of the other two. 	Similarly for a finding of not guilty. Look at each offence 	separately before deciding if you are sure that he committed 	that offence. 

[6]	Now in the same way you must look at each accused separately 	in respect of the third charge. If you think one is guilty of 	robbery, it doesn’t mean that the other accused is. I recommend 	that when you are deliberating you might want to look at the 	three charges against the first accused using the principle of 	separation of charges and then look at the case against the 	second accused quite separately after you have considered the 	case against the first accused. 

[7]	The first accused has been charged with murder. I am sure that 	you all know what murder is – that is the unlawful taking of 	another’s life, but in law there is a little more to it than that.

[8]	Murder is proved when it is shown to you so that you are sure 	that the person accused did something that caused the death of 	another person and the accused person intended to cause that 	death or was reckless as to causing the death of that person. 

[9]	Therefore in order to summarize the steps involved; you must 	find so that you are sure:

1.	That it was indeed the first  accused who  was indeed  present in the incident, and 
2.	He  did an unlawful act, and
3.	Babu Ram died as a result of that acts and
4.	Either he intended to kill him, or
5.	He was reckless whether he would die or not, but carried on regardless. 

[10]	The second charge that the first accused is facing is one of 	attempted arson. For the purposes of this trial, arson is setting 	fire willfully and unlawfully to a building. Attempt is to do 	something which is more than preparatory to do the act and 	where the act does not happen. What that means is this:  if you 	find that this first accused did something more than just 	preparation to set fire to Babu Ram’s house and that the house 	didn’t burn down, then it is an attempt to arson. We know that 	the house didn’t burn down so it is for you to decide whether 	what he did was more than preparation or not. If it was not, 	then you must find him not guilty. If however you find that he 	did everything he could to make the house burn but he didn’t 	succeed then you will find him guilty. 

[11]	That sounds complicated but I will try to simplify it by giving 	you an example.  Mr. X decides to kill Mr. Y by strangling him 	with a rope. He buys the rope and he invites Mr. Y around for 	drinks which is the time he thinks he will kill him. Now all of 	that is preparatory and at this stage there can be no crime of 	attempted murder. 

[12]	Mr. Y comes around for the drinks and Mr. X pours him a few 	strong ones to try to sedate him. He then gets the rope out and 	starts pulling it around Mr. Y’s neck. Now this is more than 	preparatory. He is doing acts which may well result in Mr. Y’s 	death. Mr. Y unbeknowns to Mr. X is a trained wrestler and is 	able to defend himself from Mr. X’s actions. He doesn’t die but it 	is an attempted murder because Mr. X has committed acts 	more than preparation for the offence. 

[13]	The third count faced by both accused is aggravated robbery. I 	will tell you about the law of aggravated robbery in two steps. 	First I will define robbery for you, then I will tell you what 	aggravated means in law.

[14]	Robbery is theft and at the time of the theft, the victim is under 	force or under threat of force to surrender the property. 

[15]	An example of that is if at the BSP Bank here in Labasa, Mr. 	Paka withdraws $1,000 for his weekend entertainment and on 	leaving the Bank he is pushed against the wall and a knife put 	to his throat and the money taken from him, then that is 	robbery. Money taken using force.

[16]	A robbery becomes aggravated when it is committed by more 	than one person or the robber has an offensive weapon with 	him.

[17]	The robbery charge against both accused is invoking a legal 	principle which we call joint enterprise. In Fiji the law is that if 	two people are acting together unlawfully with one agreed 	purpose it doesn’t matter what part each plays but they are 	both responsible for any criminal offence that is committed in 	consequence of their actions.

[18]	Now what the State is saying in this case is that the two 	accused acted together with the intention of robbing Babu Ram, 	and with that intention in mind went to his house to get money. 	Each of the accused gives a different reason for getting the 	money but the reason is not really important. If there is an 	agreement to steal money and money is stolen by both or either 	of them and if force is used, then they are both guilty of 	aggravated robbery. 

[19]	That is all that I wish to say about the Law at this stage. I will 	turn now to the evidence and summarize it for you. First the 	prosecution evidence and then the defence evidence. 
Prosecution Case

[20]	The evidence in the prosecution case falls into three broad 	categories. There is direct evidence, a large amount of 	circumstantial evidence and Police evidence. You should 	approach these three types of evidence in different ways and I 	will explain that to you as we go along. 

[21]	First the State produced into evidence a list of facts that had 	been agreed by all the parties. (Exhibit P.1). These are facts then 	that you must accept as true and correct when deciding on this 	case. Any other facts are for you and only you to decide. 

[22]	A large part of the State’s case is founded on what we call 	circumstantial evidence. That is evidence, while not direct such 	as witnessed or heard, is evidence that the circumstances would 	lead you to make certain inferences. 

[23]	Circumstantial evidence can be powerful evidence, indeed, it 	can be as powerful as, or even more powerful than, direct 	evidence, but it is important that you examine it with care — as 	with all evidence — and consider whether the evidence upon 	which the prosecution relies in proof of its case is reliable and 	whether it does prove guilt, or whether on the other hand it 	reveals any other circumstances which are or may be of 	sufficient reliability and strength to cast doubt upon or destroy 	the prosecution case. 

[24]	Finally, you should be careful to distinguish between arriving at 	conclusions based on reliable circumstantial evidence, and mere 	speculation. Speculating in a case amounts to no more than 	guessing, or making up theories without good evidence to 	support them, and neither the prosecution, the defence, nor you 	should do that. 

[25]	We heard from the deceased’s son who gave us background to 	the deceased and to his living circumstances. He described the 	house and told us that he kept fuel in the house (pre-mix) in 	one of the rooms that was used as a store room. It was kept in 	plastic gallon containers. Before he died on 19 August 2012 	Babu Ram and his wife had just been to Labasa to stay with his 	son and when here he had sold two goats for which he got $500. 	He had another $200 with him so when he went back to his 	house on the 16th four days before he died he had that $700 	with him. 

[26]	We heard from a witness who had loaned his brown horse to 	another and then finally and reluctantly agreed that he had told 	Police that at the time of the murder the first accused had 	possession of the horse. Another witness from Koroinasolo told 	us that when he was out walking with his wife on August 19, 	2012, he saw horse tracks going towards Naqilimoto. He did not 	see any people nor any horse riders. You might not think that 	this evidence is very helpful.

[27]	Another villager from Koroinasolo told us that he visited Babu 	Ram to buy tobacco on the 17th August. At the time Babu Ram 	told him to tell Pita Dabobo to come to his house and buy 	tobacco at any time. The villager who was related to Dabobo 	passed the message on. This evidence was mystifying at the 	time but now that we have heard the whole case you might 	think it is circumstantial evidence supporting Pita Dabobo’s 	evidence that he went there on the morning of the 19th to buy 	tobacco. It’s a matter for you.

[28]	Meli Bulitogalevu was an important witness. At least I think he 	was important; you may not agree. He is closely connected with 	the first accused Seru as they grew up together and he regarded 	Seru as his brother. He told us that the sickness of his child 	was weighing on him and he was sure that it was caused by the 	“wrong things he knows”. He elaborated to us the “wrong 	things”.

[29]	He said that on the night before Babu Ram died he was 	drinking grog with the first accused and a few others in Cubue. 	They drank grog until about 1am and then they drank rum as a 	“wash-down”. They continued drinking the rum (including the 	first accused) until about 5am when the drinking session broke 	up and he, the witness went home. At that time he saw Seru 	riding Kaminieli’s brown horse and carrying a cane knife. 

[30]	The next morning he saw Seru again at about 10am lying down 	at Vilikesa’s house. He was not wearing shoes and his legs were 	covered with what appeared to be red mud or soil.  By then Meli 	had heard rumours of what had happened at Naqilimoto from 	an Indian boy and the state of Seru concerned him, so he told 	Seru to go and wash his legs.  Seru did wash his legs then went 	to breakfast. 

[31]	Later he heard from Seru what had happened at Naqilimoto. He 	had gone there with Asaeli. They had gone to the old man there, 	tied him up and asked him about money he kept there. While 	this was going on, Pita Dabobo arrived. Asaeli went out to Pita 	Dabobo and Seru stayed inside trying to subdue the old man. 	Babu Ram struggled and was able to free himself. He tried to 	reach for his gun. Seru knew that Babu would use his gun and 	for that reason he (Seru) used the cane knife to chop him. They 	then returned to Cubue. Meli said that the Asaeli that Seru was 	talking about was the second accused. 

[32]	Meli didn’t tell anybody about this in 2012 and he believes it 	was for that reason that his son got sick.  He did at one time tell 	the story to Pita Dabobo who is his uncle and who was the first 	suspect in this case. He and Pita were both being held in 	custody at the Labasa remand centre. Pita was a suspect for 	this case and Meli was being held as a suspect in a minor 	sexual offence case. 

[33]	Pita, quite understandably reported this information to the 	authorities and Meli’s Police statement was taken from him in 	May 2013. 

[34]	The next witness was another “confession” witness Mr. Marika 	Sau. Again I think he is important but it is for you to decide 	how important he is.

[35]	Marika told us that he is a religious worker praying for people 	and doing evangelical work. He was originally from Navunievu 	in Bua but in June 2013 was living in Nakasi near Suva. He 	knows Seru and Seru came to stay with him for a few months in 	2013. Marika helped him to find a job as a security man. He 	and Seru were close. They had grown up together in Bua. They 	talked often and Marika would pray for him. 

[36]	One day very late at night Seru came to him and asked if they 	could talk. He told him about the events in Naqilimoto. Marika 	had already heard from relatives about this killing. Seru said 	that he knows about the murder so Marika told him to tell the 	story from beginning to end. Seru told him the following:

[37]	“Asaeli had come to him one day asking for help to pay a fine. 	They talked and they went to Babu’s house. He went on a horse. 	Babu was having breakfast. They went in, threatened him with 	the knife, tied him up and then looked for money. They found 	$500. During this time they saw Pita Dabobo approaching. 	Asaeli brandished the knife towards Pita. There was silence 	inside the house. He went out on to the verandah and he saw 	blood. He saw benzene inside the house so he burnt the house 	and ran outside. Asaeli was waiting for him on the roadside.”

[38]	Marika reassured him and prayed for him. 

[39]	The next morning the Police called looking for Seru. 

[40]	Kamal Singh was a close friend of Babu Ram. He met him 	nearly every day and would stay with him helping him to look 	after the cattle. On the day Babu died Kamal was staying there 	but went at 6.15 in the morning to the nearby house belonging 	to Mothi. He was looking after the house while Mothi was away 	in Suva. When he got there he cooked food for Mothi’s dogs and 	fed them and he fed the chickens. He was about to close up and 	leave when he saw Pita Dabobo approaching calling “Mothi 	Mothi”. Kamal told him that Mothi was away and asked him 	what was wrong.

[41]	Pita said that he had gone to Babu’s house and was 	approaching calling “Tamana” Tamana” .when he saw a masked 	person holding a knife who chased Pita away. 

[42]	Kamal and Pita armed themselves and decided to go and 	investigate. They were too scared to go into the house but 	peered through the louvres. They saw a body lying in a pool of 	blood in the sitting room. 

[43]	Pita then went by fast horse to report the matter to the relatives 	in Vatubogi. Kamal went back to Mothi’s house where there was 	a phone. He was able to get a message through to Suva to tell 	Mothi what had happened 

[44]	Kamal said that Babu kept fuel in his house and also that Babu 	was well known for selling raw tobacco from his house. 

[45]	Apart from the evidence of Pita Dabobo and the evidence of the 	two doctors, the rest of the prosecution was taken up by 	evidence from the Police. 

[46]	We heard from the very senior Lady Officer Margaret Marshall 	who was in the Police party first attending to the scene. She 	took us through the photographs and she told us that although 	fingerprints were lifted they were not suitable for analysis and 	therefore no assistance to either the prosecution or the defence. 

[47]	We then heard from officers who arrested and interviewed each 	of these two, the first accused by Viliame Nagatalevu and the 	second accused interviewed by Tavita Savou. The records of 	interview were produced and read in evidence. You have them 	before you. In addition there was produced the record of the 	formal charge put to the first accused by Elia Woqosoqo and the 	accused’s response to that charge.

[48]	I want to take some time now to tell you how you should treat 	these interviews and their records. 

[49]	As you are aware, both accused have made allegations of 	assaults and threats which forced them to sign the records. 	Our Constitution states that nobody should be forced to 	incriminate themselves; so if you think that the allegations of 	Police abuse made by each of the accused are true or may be 	true then you are to disregard the interviews and judge the case 	on the remaining evidence. If however you don’t believe the 	allegations of assault by punches, or threats then you are to 	look at the interviews as evidence in the normal way and give 	that evidence the weight you think it deserves.

 [50]	Remember to look at the case of each of the accused separately.  	Both accused say that none of the answers are theirs; the 	interviews were fabricated by the Police and they were forced to 	sign because of the assaults on them. So in the case of either of 	the  accused, if you think he  is  telling the truth then you must 	discard that  interviews and not rely on those records as 	evidence.  If you don’t believe them about the assaults then you 	must take a second step. You will decide whether the Police 	have fabricated the answers or not. If you think they have, then 	you will discard the interview; if you think that the answers in 	each case are the answers of that particular accused then you 	must decide if it is true or not. If not fabricated and true than 	you can use it as evidence

[51]	So to use a record of interview against an accused you must be 	satisfied so that you are sure that
•	It was obtained without police assault or abuse, and
•	It was not fabricated by the Police, and
•	The answers that you are relying on are true.

[52]	In addition to these interviews under caution, you have the 	answer of the first accused to his formal charge and you are to 	treat that in the same manner as you treat the caution 	interview. If he was assaulted then ignore it. If he wasn’t 	assaulted then decide if he said it or the Police made it up. If he 	said it, decide whether it is true. If it’s true you may use it in 	evidence against him. 

[53]	I must give you one further legal direction with regard to the 	records of interview. Whatever a suspect says in an interview is 	only evidence against him alone; whatever he might say about 	anybody else is not evidence against that other person, unless it 	is evidence given orally in Court. So in the case of the first 	accused’s interview, he says a lot about the second accused’s 	role in this affair. He did not repeat those allegations when he 	gave evidence so you cannot use what he says about Asaeli 	when deciding on the guilt of Asaeli or not. You can only use 	Asaeli’s own statement and what he says therein if you think 	his answers are obtained without assault, and are true.

[54]	I turn now to the medical evidence. 

[55]	The lady doctor from Labasa Hospital said that on the 18th June 	2013, the Police brought both accused to her for a formal 	medical examination. She examined each of the two accused for 	about ten minutes and concluded that both had healthy hearts 	and healthy lungs and neither had any sign of bruising swelling 	or other injury. 

[56]	The Doctor James is the Head of Pathology with the Fiji Police. 	He explained to us the meaning of Dr. Goundar’s post mortem 	report after that Doctor’s (Dr. Goundar) examination of Babu 	Ram’s body. He explained that Dr. Goundar’s report reveals a 	chop wound on the upper neck of the body stretching across the 	left side of the face from spine to jaw bone. It was a deep wound 	which would have been inflicted by considerable force to cause 	a cut in the bone protecting the spine. It would have been 	almost certainly inflicted with one blow with a sharp, heavy and 	elongated object. It is a wound consistent with chopping by a 	cane knife.

[57]	The cause of death was excessive loss of blood caused by that 	deep and severe cut. 

[58]	He was of the opinion that it would have been inflicted just 	before or around the time that the victim was eating.

[59]	Before closing the prosecution part of this summing up I want 	to talk to you about the evidence from and relating to Pita 	Dabobo.

[60]	As you are aware, Pita was the first suspect in this murder and 	he was arrested and questioned under caution. He was also 	formally charged. In those out of court documents he appears to 	have freely and willfully admitted that he killed Babu Ram and 	that he attempted to burn the house down. 

[61]	The first thing I will state is that Pita Dabobo is not on trial 	here. Seru and Asaeli are. But his history and evidence are very 	relevant to your deliberations. He tells us in his evidence that he 	was assaulted, punched and kicked by the Police after arrest 	and it was because of those assaults he agreed to whatever the 	Police put to him. He says that he wasn’t in his right mind at 	the time. 

[62]	Because of his confession which he says is false, he was being 	held in the Labasa remand Centre (Vaturakuka) awaiting trial. 	It was in that centre that he met up with Meli Bulitogalevu who 	told him what Siuta Seru had told him. Realising that this could 	be his ticket to freedom the authorities were alerted to this new 	information and the result was that the charges against Pita 	were eventually dropped.
 
[63]	What does this mean for us? If you accept the admissions of 	Siuta Seru (our first accused) as being unforced and true then 	you have two persons claiming to be the murderer. 

[64]	My suggestion to you is to decide on the value of Pita Dabobo’s 	admissions first. You will bear in mind his evidence that it was 	forced from him, you will bear in mind the Police acceptance of 	his innocence by offering him a “sevusevu”, and that it is an 	admitted fact that the prosecution withdrew the charge against 	him in September 2014. You will bear in mind other evidence in 	this trial either for or against Pita being the murderer. You will 	also bear in mind that apart from Pita’s allegations of assault we 	have no other evidence in this trial about the taking of that 	interview and charge; nor have the Police been given the chance 	to give evidence relating to the generation of those exhibits.
 
[65]	If you decide that it was a genuine confession then you would 	have to find these two accused not guilty of the counts they 	face. 

[66]	If on the other hand you decide that his confession is not true 	and that he didn’t commit the murder or arson then you will 	forget about his admissions and go on to decide the case as 	evidenced against the two accused in this case which includes 	Pita’s evidence for the Prosecution. 

[67]	He went on to give evidence in this trial. He told us that he got a 	message to go to see Babu Ram. He walked there on the 	morning of the 19th August and he intended to buy tobacco from 	him. As he approached the house he called “tamana” “tamana” 	but there was no response. He approached the kitchen door 	when it opened and a person wearing a mask came out 	brandishing a knife. Pita was shocked and scared and turned to 	run. The person lifted the knife as if to chop him. He ran down 	towards Mothi’s house. When he got near Mothi’s house he 	shouted out his name three times. Kamal came running 	towards him from the plantation. He then corroborated Kamal’s 	evidence in that they armed themselves and went back to 	Babu’s house. Kamal peeped through the window and said that 	Babu had been chopped and was lying down. Pita rode a horse 	and rode to Bua. He went back to Naqilimoto and waited until 	the Police arrived. 

[68]	That was the end of the prosecution case and you heard me 	explain to the two accused persons what their rights are in 	defence. They could give evidence and say that the State had 	not proved the case beyond reasonable doubt or they could give 	sworn evidence from the witness stand. In either case they were 	entitled to call witnesses. Defence Counsel told me that they 	had similarly advised their clients and received instructions as a 	result. In this case both accused elected to give evidence. You 	must consider their evidence in the normal way and give it the 	weight that you think fit. If you don’t believe either or both of 	them it doesn’t necessarily make him guilty. The prosecution 	must still prove to you so that you are sure that he or she 	committed the crime. But if you think that either or both is 	telling the truth or might be telling the truth then you will find 	that person not guilty.

The Defence Case

[69]	The first accused, Siuta Seru (“Seru”) gave evidence under oath. 	He told us that he lived with 5 other young people in Cubue in 	2012. They slept in one house and the cooking and living areas 	were in another house. In August 2012 he got injured on the 	farm. He hurt his ankle area and was taken to the Bua nursing 	station for treatment. The wound was treated and stitched by 	Nurse Luisa and he was sent home to recuperate.  From the 	17th August he was resting and lying at home. He was given 	tablets and told not to move around a lot. On the 18th August 	(Saturday) he was at home sleeping and he awoke on the 19th 	August at around 7am. He prepared himself for morning 	prayers which were held usually from 6am to 7am. He went to 	the prayers. It wasn’t far away so he walked although he was 	limping. At about 7am he went home and had breakfast and 	then lay down. He spent the whole of that day lying down .He 	doesn’t know anything about Naqilimoto. He had never been 	there. The first time he went there in 2013 taken by Policemen. 	He never talked to Meli Bulitogalevu about the Naqilimoto affair. 	He hardly ever talked with Meli because Meli is a trouble maker 	and gets Form 4 girls pregnant. 

[70]	In 2013 he was in Suva. He went there in January 2013 to 	further his studies at FNU in automobile engineering. For a 	while he lived with an Uncle in Tacirua and in June 2013 he 	moved to Nakasi to stay with Marika Sau. He found a job with a 	Security Company working as a security officer in Vatuwaqa. He 	would work from 6am to 8pm leaving home at about 4am and 	returning around 10pm. He had his own key to come and go, He 	never once had a conversation with Marika about Naqilimoto. 

[71]	On 11 June 2013 he was arrested at TFL tower in Nausori. It 	was his day off and he was visiting a close friend who worked 	there as a security officer. He was arrested by P.C. Jimione 	(“Jimmy”), a policeman from Nabouwalu. Jimmy punched his 	ribs and asked why he had run away from to Suva. He told 	Jimmy he hadn’t run away. He was in the capital to study. He 	was sworn at and told to get into the vehicle and was taken to 	C.I.D. headquarters in Toorak. On the journey he was punched 	in the ribs by an unknown officer and sworn at by the driver. At 	the offices (HQ) he was 	again punched on his back and sworn 	at. He was told whether 	he admitted or not, he was still going to 	jail. Before the interview started, Viliame the interviewing officer 	showed him Meli’s statement in which it said he had confessed 	to Meli. Seru read the statement and told Viliame he knew 	nothing about it. He was again assaulted and he thought that 	that was normal police procedure. When his statement was 	taken he was sitting opposite Viliame and there was a computer 	between them He 	was asked questions and gave answers but 	he believed Viliame was writing his own answers. He says that 	on looking at the 	interview, none of the answers are his. He 	was telling the officer that he knew nothing. He did sign the 	interview but didn’t know what was in it. He was never able to 	read it. He was told that if he signed he could go home so he 	signed. After three days 	interview in Suva he was taken to 	Nabouwalu Police Station. At Nabouwalu he saw Asaeli there. 	Jimmy again assaulted him on the ribs. 

[72]	He remembers being taken for a reconstruction along with 	Asaeli. They were taken to Naqilimoto. At the places, Savou told 	him where to stand and point where things happened. He told 	Savou that he didn’t know these places but Savou gave all the 	directions. 

[73]	He was taken to Labasa Hospital on the 18th June 2013 by 	Savou. A doctor saw him and she checked his face and heart 	and filled out a report. She never asked him to take off his T-	shirt. He was never given a chance to make any complaint to 	the doctor because Savou was present all the time. 

[74]	He never shared with anybody about the abuse because he 	thought it was normal police procedures. 

[75]	On the 24th June 2015 he was again arrested by the Police. He 	was in the village at the time and they took him to Nabouwalu. 	When he got there he was told to drink grog with them. He 	drank grog and they started questioning him and recording the 	answers on a computer. He was shown his charge statement 	made that day and Seru said that the answer to charge 	accorded to him was not made by him but are the words of 	Policeman Elia. It was printed off and he signed it inside the 	station without being given a chance to read it. He was “grog 	doped” when he signed it. 

[76]	He never made complaint about his treatment to the Magistrate 	because when he eventually got to Court his mistreatment was 	so far back he had forgotten what they did to him. It was only 	when represented by Legal Aid lawyers that he came to find out 	he had been mistreated.

[77]	In finishing his evidence he said that Marika Sau was not a 	pastor and he had never prayed with him. He had no idea about 	the murder, the arson nor the robbery.

[78]	The first accused (and the second accused) raise the defence of 	alibi. They both say that they were not at the scene of the crime 	when the offences were committed. Because the prosecution has 	to prove their guilt so that you are sure of it, they do not have to 	make you sure of their alibi. On the contrary, the prosecution 	must disprove the alibi. Even if you consider that the alibi is 	false, that does not in itself entitle you to convict the accused. It 	is a matter you may take into account, but you should bear in 	mind that an alibi is sometimes raised to bolster a genuine 	defence.

[79]	The first accused called an alibi witness.  It was Laisiasa who 	said he was staying with Seru in Cubue in August 2012. He 	remembers waking up on 19th August 2012 at about 8 am and 	having breakfast. He was with his wife and the “young people” 	including the first accused had just returned from early 	morning prayers. Seru had injured his leg so he limped in and 	had breakfast. They stayed at home all day apart from going to 	church in the morning. The night before, he was home but he 	doesn’t know where Seru was that evening. 

[80]	The Bua Medical Centre nurse told us that according to her 	medical records, Seru came to the centre on the 17th August 	with a leg injury. She did wound closure including stitching. 	She prescribed panadol and antibiotics and sent him home with 	instructions not to get the wound wet and to keep the stitches 	in for 7 days. She could not remember anything else.

[81]	The second accused (“Asaeli”) also gave sworn evidence.

[82]	He said he has lived in Nawaca all his life while his wife is from 	Navunievu. 

[83]	In the last week of August 2012 he and his wife and 2 children 	were in Navunievu attending to his yaqona business. When he 	got there he heard about the death of the “Indian man”.

[84]	On the 19th August 2012 he woke up and went to prayers at 	4am. He went back home at 5.30am and had breakfast. They 	went to church again all morning and rested at home for the 	rest of the day apart from going to the afternoon service. 

[85]	He doesn’t smoke and he doesn’t drink alcohol. He doesn’t know 	Seru; the first time he met him was when they were put together 	at Nabouwalu Police Station. He had never been to Naqilimoto 	until he was taken there by the Police. 

[86]	With regard to his interview he said that he was arrested by 	Savou and taken to Nabuowalu Police Station where he was 	interviewed for about 5 days. He gave the answers about his 	personal circumstances but he didn’t give any of the other 	answers. He claims that the answers were fabricated by the 	Police. He was once punched by Savou after the CID team 	arrived from Suva. He was at all times saying that he knew 	nothing about this affair and that he had never been to 	Naqilimoto. During the reconstruction he was told where to 	point out places of interest. 

[87]	He was taken to Labasa Hospital for a medical examination. He 	had recurring pain and shortness of breath from the assault but 	he was not able to tell the doctor this. He thought assault by 	Police was normal. 

[88]	He knows nothing about the robbery and the answers were all 	made up by the Police. 

[89]	When he was at Nabouwalu Police station he saw the Police 	assaulting the first accused. He was in a room down the 	passage and he could see it. 

[90]	The second accused called his wife as his alibi witness. She said 	that on Saturday the 18th August her husband was working on 	the farm and just slept at home that night. On the 19th they 	woke up and went to early morning prayers. They came back 	home around 5am for breakfast. They went back to church at 	9.30am and came home for lunch at about 12. They stayed 	home for the rest of the day apart from going back to church 	that afternoon. Her husband doesn’t smoke; nor does he drink 	alcohol. 

[91]	It was put to this witness in cross=examination that she had 	originally told Police in June 2013 that she did not see her 	husband that Sunday morning. In fact he had gone out the 	night before and she didn’t see him until Sunday lunchtime.

[92]	The witness said that what she was saying in Court was true 	and that the Police had fabricated that earlier statement. It 	wasn’t given to her to read and they told her to sign it. You have 	seen that statement.

[93]	Sir, and Madam I want to give you a further direction in law at 	this stage about evidence. It is what is called inconsistent 	statements. In particular with this witness and on several other 	occasions in this trial it has been pointed out to a witness that 	he or she has said something different in a previous police 	statement. The law says that whatever a witness says in Court 	is the definitive evidence. In some cases you might think that 	the differences are unimportant such as there being a difference 	in time or date for example, or you may think that the 	differences are more important. If so, while accepting the 	evidence in Court as the proper evidence you might think that 	the very different version given before would make the evidence 	of that witness unreliable and you might not give it much 	weight. It is all a matter for you. However in the case of the 	second accused’s alibi evidence the difference is fundamental. 	She tells the Police she doesn’t know where her husband was on 	18th/19th August while she says in Court that they were going to 	church all day. Because the difference is fundamental and 	because she claims that the Police have fabricated her earlier 	out of court statement you may well think that you cannot rely 	on her evidence in Court and you will give it little weight. 	However as with all questions of evidence you will make the 	final decision as to the value of her alibi evidence yourselves.

[94]	Well Madam and Gentlemen, that brings me to the end of this 	rather long summing up. You may retire now and consider your 	opinions. The only possible verdicts in respect of each charge is 	“guilty” or “not guilty”. It would be best if you could both be 	agreed but that is not strictly necessary. Please tell one of my 	staff when you are ready and I will reconvene the Court. You 	may now retire, but before you do I will ask counsel if they wish 	me to add or change any legal direction.

[95]	Counsel?

					P. K. Madigan
					    Judge

At Labasa
16 September 2016