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State v Naidu - Summing Up [2017] FJHC 153; HAC015.2013L (24 February 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
LAUTOKA CRIMINAL CASE NO. HAC 015 OF 2013L


STATE


vs


SUDESH MANI NAIDU


Counsels : Mr. Y. Prasad and Ms. S. Kiran for State
Mr. S. Waqainabete and Ms. S. Ratu for Accused
Hearings : 16, 17, 21 to 23 February, 2017
Summing Up : 24 February, 2017


SUMMING UP


  1. ROLE OF JUDGE AND ASSESSORS
  1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
  2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
  3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and they need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
  1. THE BURDEN AND STANDARD OF PROOF
  1. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
  2. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that 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 so that you are not sure about his guilt, then you must express an opinion, that he is not guilty.
  3. Your decision must be based exclusively upon the evidence which you have heard in this court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
  1. THE INFORMATION
  1. You have a copy of the information with you, and I will now read the same to you:

“... [read from the information]....”


  1. THE MAIN ISSUES
  1. In this case, as assessors and judges of fact, each of you will have to answer the following questions:
  1. THE OFFENCES AND THEIR ELEMENTS
  1. On Count No. 1, the accused was charged with “murder”, contrary to section 237 of the Crimes Decree 2009. It was alleged that on 13 January 2013, at Lautoka in the Western Division, he murdered Vidya Wati. For the accused to be found guilty of “murder”, the prosecution must prove beyond reasonable doubt, the following elements:
  2. On the first element of murder, a “willful act” is a voluntary act by the accused. It is a feeling of strong determination to do something that he wanted to do. It is what he wanted to happen in a particular situation. This is the physical element of the offence of murder. For example, A wants to shoot B with a gun. A picks up a gun, and shoots B in the heart, A did a “willful act”. Likewise, if A assaults B. When A assaults B, A did a “willful act” to B.
  3. On the second element of murder, “the willful act must cause the death of the deceased”. This simply meant that the accused’s willful act, substantially contributed to the death of the deceased. The accused’s willful act must be a substantial contributor to the death of the deceased. In other words, the accused’s willful act was a substantial cause of the deceased’s death. Continuing from the above examples when A shot B in the heart, with a gun, B later died as a result of the injuries to his heart. A’s shooting B in the heart (willful act) was a substantial cause of B’s death. Likewise, when A assaults B, it caused serious injuries to his body, leading to B’s death. A’s assaulting B, set in motion a chain of events that led to B’s death, and as such, was a substantial cause to B’s death.
  4. The third element of murder concerned it’s fault element. There are two fault elements for murder, as described in paragraphs 9(iii) (a) and 9(iii) (b). It would appear that the prosecution is running its case on both fault elements. It need only satisfy one fault element, to prove the charge of murder. We will therefore begin by discussing the first fault element, and then move on to the second fault element.
  5. On the first fault element, the prosecution must make you sure that when the accused did “the wilful act”, he “intended to cause the death of the deceased”. You cannot cut open the accused’s head, to find out what his intentions were, at the time he allegedly assaulted the deceased to death. But you can examine his conduct at the time, that is, what he said and did, and the surrounding circumstances, to infer whether or not he intended to kill the deceased, when he allegedly assaulted her. If you find that he intended to kill the deceased, at the material time, that would be sufficient to support the third element of murder, that is, an intention to kill.
  6. As to the second fault element of murder, the prosecution must make you sure that when the accused did “the wilful act”, he “was reckless as to causing the death of the deceased”. A person is reckless with respect to a result, if he was aware of substantial risk that the result will occur and having regard to the circumstances known to him, it was unjustifiable to take the risk. The question whether taking a risk was unjustifiable is one of fact for you. Was the accused aware of a substantial risk that the victim would die if he continually assaulted her?
  7. If you find all the elements of murder, as described above, proved beyond reasonable doubt by the prosecution, then you must find the accused guilty as charged. If you find one of the above elements of murder not proved beyond reasonabled doubt, then you must find the accused not guilty as charged.
  8. If you find the accused not guilty of murder, you may need to consider the lesser offence of “manslaughter”. A person, as a matter of law, may be convicted of the lesser offence of “manslaughter”, although he was not formally charged with the same. The first and second element of “manslaughter” are similar to that of “murder”, as described in paragraphs 9(i) and 9(ii) hereof. The only difference between the two offences are their fault elements. In “manslaughter”, the prosecution must prove beyond reasonable doubt, the following elements:

(i) that the accused did a willful act; and

(ii) that willful act caused the death of the deceased; and

(iii) at the time of the willful act, the accused either;

(a) Intends the willful act to cause the deceased serious harm; or
(b) Is reckless as to causing serious harm to the deceased.
  1. If you find the accused guilty of “manslaughter”, you may convict him accordingly.
  2. The second count involved “robbery”. It was alleged that the accused, on 13 January 2013, stole Prem Lata’s jewelleries worth $2,200, and before the theft, applied force to Vidya Wati. For the accused to be found guilty of “robbery”, the prosecution must prove beyond reasonable doubt, the following elements:
  3. Stealing is basically to take away a person’s property without his permission, and with an intention to permanently deprive him of the property thereof. Prior to doing the above, the accused must apply force to the person of another, to enable him to effect the theft. He must also at the time had an intention to steal. Force means any type of force, whether physical or verbal.
  4. Remember, there are two counts in the information. You must consider each count separately, and come to a separate considered decision on each count, in the light of the total evidence presented.
  1. THE PROSECUTION’S CASE
  1. The prosecution’s case were as follows. On 13 January 2013, the accused was 40 years old. He was married and had 3 children. His wife had left him. He was a fisherman and farmer. Vidya Wati, was 74 years old at the time, and resided with her family at Johnson Road, Drasa, Lautoka. According to the prosecution, on 13 January 2013, the accused and his friend, Mr Garneshwar (also known as Chirkuts), returned from fishing. They came to Mr. Garneshwar’s house and started drinking liquor from 10.30 am to 3.30 pm. Mr Garneshwar went to sleep at 3 pm, while the accused continued drinking until 4.45 pm.
  2. He had a meal at Mr. Garneshwar’s house and left the same at about 5.30 pm. According to the prosecution, the accused went to Vidya Wati’s house to ask for some water. When he arrived at Vidya Wati’s house, the front door was open and Ms. Wati was in the sitting room. According to the prosecution, the accused asked Ms. Wati for water, but she did not reply. According to the prosecution, the accused went into the sitting room and repeatedly assaulted her. The accused allegedly punched her several times in the face and chest. She fell on the floor injured, and the accused went into her daughter Prem Lata’s bedroom.
  3. According to the prosecution, the accused stole Prem Lata’s jewelleries from her bedroom. The details of the jewelleries are itemized in count no. 2. After stealing the jewelleries, and assaulting Vidya Wati, the accused fled the scene. Bimlesh Lata (PW3), Ms. Wati’s daughter-in-law, and Savitri Asha Lata (PW2) later came to Ms Wati’s rescue. Ms Wati was bleeding in the face and lying helplessly in the sitting room. Ms Wati told PW3 that it was the accused who hit her. Ms Wati was later taken to Lautoka Hospital by her son. She died from her injuries at 8.30 pm on 13 January 2013.
  4. The matter was reported to police. An investigation was carried out. The accused was later arrested by police. He was caution interviewed by police at Lautoka Police Station on 16 and 17 January 2013. He admitted the offences to police. On 18 January 2013, he was taken to Lautoka Magistrate Court charged with the murder of Vidya Wati and the robbery at her home on 13 January 2013. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged on both counts. That was the case for the prosecution.
  1. THE ACCUSED’S CASE
  1. On 17 February 2017, the first day of the trial proper, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to the charges. In other words, he denied the murder and robbery allegations against him. When a prima facie case was found against him, at the end of the prosecution’s case, wherein he was called upon to make his defence, he choose to give sworn evidence and called two witnesses, in his defence. That was his rights.
  2. The accused’s case was simple. On oath, he denied the allegations against him. He admitted he was drinking rum and beer at Garneshwar’s house on 13 January 2013 between 10.30 am and 3.30 pm. He admitted he left Garneshwar’s house at about 4.50 pm on 13 January 2013. He said, he went down the road near the Sugar Mill, and then went pass the river. Then he went in a vehicle. He denied murdering Vidya Wati and stealing from her house.
  3. As to his alleged confession in his police caution interview statements, he asks you to disregard the same because, according to him, the police forced the same out of him. He appeared to say that he did not give his caution interview statements voluntarily, and they were given without his own free will. According to him, his alleged confession were nothing but a fabrication by police.
  4. Because of the above, he said, he is not guilty as charged and asks you, as assessors and judges of fact, to find him not guilty as charged on both counts. That was the case for the accused.
  1. ANALYSIS OF THE EVIDENCE
  1. In analysing the evidence, please bear in mind the directions I gave you in paragraphs 4, 5 and 6 hereof on the burden and standard of proof. In the acceptance and/or rejection of the evidence presented at the trial and your role as assessors, please bear in mind the directions I gave you in paragraphs 1, 2 and 3 hereof. In analyzing the evidence, we will first discuss the “Agreed Facts” and its significance. Then we will discuss the State’s case against the accused, which was based fundamentally on two types of evidence, that is, first, on his alleged confession to the police when caution interviewed, and second, a multitude of circumstantial evidence, which the State said, when taken together, will lead to the inevitable conclusion that it was the accused who committed the crimes. Then, we will discuss the defence’s case, and then the need to look at all the evidence.
  2. An “Agreed Facts”, dated 13 February 2017, was submitted by the parties. A copy is with you. The “Agreed Facts” had 6 paragraphs of facts. These facts are not disputed by the parties, and you may treat the same as established facts. However, during the trial, it was discovered that paragraph 4 of the Agreed Facts may be mistaken, that is, the date of the accused’s arrest was not 15 July 2013. In his sworn evidence, the accused said he was arrested at Lautoka on 16 January 2013. So, you will have to consider paragraph 4 of the Agreed Facts, in the light of the Accused’s sworn evidence.
  3. Paragraph 6 of the Agreed Facts appear to be the most important. Photos No. 2 to 9 shows the crime scene in a photographic farm. The parties appear not to dispute that photos no. 2 to 9 showed the agreed crime scene. It showed where the alleged murder of Vidya Wati occurred and Prem Lata’s (PW5) bedroom, from where her jewelleries were allegedly stolen. So, the actual crime scene was not disputed by the parties. Subject to the mistake in paragraph 4 of the Agreed Facts, you may treat the same as established facts, and that the prosecution had proven those facts beyond a reasonable doubt.
  4. In this case, no State witness gave evidence to say that he or she saw the accused murdering Vidya Wati and robbing Prem Lata’s jewelleries on 13 January 2013, after 5.30 pm at Johnson Road, Lautoka. This was obviously a difficulty for the prosecution. There was no eye witness to connect the accused to the crimes. To overcome this difficulty, the prosecution relied on two types of evidence to connect the accused to the crimes. First, they relied on his alleged confessions to the police when he was caution interviewed at Lautoka Police Station on 16 and 17 January 2013. Second, the State relied on a multitude of circumstantial evidence, which they say, when taken together, will lead to the irrestible conclusion that it was the accused who committed the crimes, at the material time. We will discuss the alleged confession first.
  5. On 16 and 17 January 2013, approximately 3 to 4 days after the alleged murder and robbery at Ms. Wati’s house, Inspector Keshwan Naidu (PW7) caution interviewed the accused at the crime office at Lautoka Police Station. PW7 had served 31 years in the police in all the departments, but mostly in Criminal Investigation Department. PW7 said, he asked the accused a total of 162 questions and he gave 162 answers. PW7 said, he gave the accused his right to counsel and other rights. He was formally cautioned and given the standard rest and meal breaks. PW7 said, the accused was taken for a scene reconstruction. PW7 said, the accused co-operated with the police. PW7 said, the accused gave his statement voluntarily and out of his own free will. PW7 tendered the accused’s caution interview notes in evidence as Prosecution Exhibit No. 2(A) – the Hindi version, and 2(B) – the English version.
  6. PW7 said, the accused choose to be interviewed in the Hindi language, and it was later interpreted into English by Inspector Harish Prasad (PW8). PW8 witnessed the accused caution interview on 16 and 17 January 2013. He was also an experienced police officer, having served 23 years in all the police departments. PW7 and PW8 said, they did not assault, threaten or made false promises to the accused during the two days interview. During the interview, the accused confessed to the crimes. Please, refer to questions and answers 16 to 19, 62, 64 to 80, 84 to 86, 88 to 91, 108 to 114, 140 to 144 and 145 to 154 of Prosecution Exhibit No. 2(B). PW7 said, the interview record was read back to the accused, and he was given the opportunity to alter, amend or change his answers, as he pleased. PW7 said, the accused acknowledged that his caution interview statements were the truth and he gave the same voluntarily and out of his own free will. Please, refer to questions and answers 154 to 162 of Prosecution Exhibit No. 2 (B). PW7 said, the accused signed at the bottom of all the pages of the interview notes, then he and PW8 counter signed the same.
  7. The accused, on the other hand, denied PW7’s and PW8’s version of events on how the above alleged confessions were obtained. He appeared to say exactly the opposite to what PW7 and PW8 were saying. However, we will consider the details of their stance when we discuss the defence’s case later.
  8. Nevertheless, when approaching the above alleged confessions, I must direct you as follows, as a matter of law. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, in deciding whether or not you can rely on a confession, you will have to decide two questions. First, whether or not the accused did in fact make the statements contained in his police caution statements? If your answer is no, then you have to disregard the statements. If your answer is yes, then you have to answer the second question. Are the confessions true? In answering the above questions, the prosecution must make you sure that the confessions were made and they were true. You will have to examine the circumstances surrounding the taking of the statements from the time of his arrest to when he was first produced in court. If you find he gave his statements voluntarily and the police did not assault, threaten or made false promises to him, while in their custody, then you might give more weight and value to those statements. If it’s otherwise, you may give it less weight and value. It is a matter entirely for you.
  9. If you accept the accused’s above alleged confessions, then you will have to find the accused guilty as charged on both counts. In fact, a confession, on its own, as a matter of law, is sufficient to ground a guilty verdict against an accused, if accepted by the trier of fact, in this case, you, as assessors and judges of fact. However, if you are not sure about the accused’s guilt on the alleged confessions alone, the State asks you, to further consider the circumstantial evidence, they had presented to you.
  10. First, the State presented three witnesses to say that the accused was in the vicinity of the crime scene, at the material time. Mr Amrit Lal (PW1) said, on 13 January 2013, at 8 am, he was at the Lautoka whart. PW1 said, a person by the name of “Babu” and “Mama” hired his van to go to “Babu’s” house at Johnson Road. PW1 said, he dropped the two at “Babu’s” house at 10 am on 13 January 2013. The murdered victim, Ms. Vidya Wati’s house, was at Johnson Road. Savitri Asha Lata (PW2) next gave evidence. She also resided at Johnson Road, Lautoka. On her right, was Vidya Wati’s house. The distance between her house and Ms. Wati’s house was like from High Court No. 1’s witness box to the Holiday Inn, across the road. PW2 said, to her left was Garneshwar’s house. Garneshwar, according to PW2, was also known as “Babu” or “Chirkut”. PW2 said, Babu’s house distance from her house was like from High Court No. 1 witness box to the NTLB Building beside the Government Building.
  11. PW2 said, on 13 January 2013 after 5.30 pm, he saw the accused walking to Vidya Wati’s house. PW2 said, the accused was like standing at Ratu Cakobau statue and she was at High Court No. 1’s witness box. PW2 said, it was still daylight and she could see things clearly. PW2 said, she observed the accused for 5 minutes. PW2 said, he wore a black shirt, a black long trousers and he was carrying a black bag. PW2 said, he was skinny. PW2 said, he was walking in a zig zag manner. PW2 said, there was no impediment in the way when she was observing him. PW2 said, she had seen this person before at “Babu” house about two months ago, and had seen him on numerous occasion when she went to buy fish. PW2 said, he also used to sell Hindi God photos around the area. PW2 said, after 30 minutes of seeing him, she saw him return from Ms. Wati’s house. He was standing like at the entrance to High Court No. 1 on the concrete steps to the witness box. PW2 said, she observed him for 10 minutes. PW2 said, she saw his face. There was no obstruction in the way and it was still daylight. PW2 identified the person in court as the accused.
  12. PW2 said, he later disappeared. PW2 said, she then heard people yelling from Wati’s house. She went there. She saw Ms. Wati bleeding in the face in the sitting room in a sitting position. There was blood coming from her nose, chin and face. PW2 said, Bimlesh Lata (PW3), Ms. Wati’s daughter-in-law was also there. They changed Ms. Wati’s clothes and later PW2 assisted in taking Ms. Wati to Lautoka Hospital. The State also called Ravindra Singh (PW6). PW6 had resided at Johnson Road, Lautoka for 10 years. To the left of his residence is Garneshwar’s house and to the right is PW2’s house. He is a neighbour of Ms. Wati. PW6 said, on 13 January 2013 after 5.30 pm, he was at home. He said, he saw the accused come from Garneshwar’s house past his house. PW6 said, he was 10 to 12 footsteps away and it was still daylight at the time. He observed him for 2 minutes. He said, the person was wearing a black T-shirt, black trousers and carrying a black bag. He said, when he saw the person, there was no impediment in the way. He said, he had seen the person before when he used to sell photos in the area. He said, he has seen him many times before. He identified him in court as the accused. He said, at 6 pm, he saw the accused again. He said, he saw him looking everywhere and running. He said, he ran to the road, towards the sea.
  13. When considering PW1, PW2 and PW6’s identification evidence, I must warn you as follows. First, whenever the case against the accused depends wholly or substantially on the correctness of one or more identification of the accused which the defence alleges to be mistaken, there is a special need for caution before convicting the accused in reliance on the correctness of the identifications, because an honest and convincing witness could be mistaken. Second, you must carefully examine the circumstances in which the identification were made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused before? If so, how often? Are there any special reason for remembering the accused’s face? Was there any police identification parade? Thirdly, are there any specific weaknesses in the identification evidence? Your answers to the above questions will determine the quality of the identification evidence. If it’s of a high quality, you may rely on it. If it’s otherwise , you should reject it.
  14. When considering PW1, PW2 and PW6’s identification evidence, you are also entitled to consider Ms. Shiu Kumari’s (DW2) evidence. She was called by the defence as their second witness. DW2 said, she is Garneshwar’s wife. She confirmed that her husband and the accused came to their house on 13 January 2013, after been away fishing. She said, her husband and the accused were drinking liquor from 10 am to 3 pm, when her husband went to sleep. She said, the accused continued drinking until 4.45 pm. She said, the accused was really drunk and began to argue with one of her sons. She said, she warned the accused not to be violent or she will call the police. She said, she gave him some food and after eating the same, he left their house at 5.30 pm. She confirmed he was a skinny man, and wore a black T-Shirt, black long trousers and was carrying a black bag on the day. She confirmed that the accused stayed at their house for 3 to 4 months previously as a tenant. You will note that DW2’s evidence, appear to confirm PW1, PW2 and PW6’s evidence that the accused was in the vicinity of the crime scene at the material time.
  15. The State also called the evidence of Bimlesh Lata (PW3). PW3 was the deceased’s daughter-in-law. PW3 was married to the deceased’s son and the couple resided next to Ms. Wati’s house. PW3 had resided in Johnson Road for 24 years. PW3 said, on 13 January 2013 at 5.30 pm, she was at home. PW3 said, she heard her mother-n-law, Ms Vidya Wati, yelling out for her son to come to her. PW3 said, she and her husband, rushed to her mother-in-law. PW3 said, she saw her mother-n-law lying on the sitting room floor, near the doorway. She had blood all over her face. PW3 said, she asked her “whether or not she fell down?” PW3 said, she said no. PW3 said, she told her it was the Indian man who sells photo in the area that hit her. PW3 then pointed at the accused in the dock. PW3 said, Ms. Wati told her that the accused punched her face and chest several times. She was 74 years old at the time. PW3 said, Ms. Wati told her the person who hit her was drunk and was wearing a black shirt. PW3 said, PW2 arrived at the crime scene. PW2 told her, she saw “Mama” come to Ms. Wati’s house. They later had Ms. Wati taken to Lautoka Hospital. Ms Wati later died at 8.30 pm, as a result of her injuries.
  16. PW3 said, she had met the accused before. She said 3 months earlier, the accused had come to sell photos at Ms. Wati’s house. PW3 said, she was present at the time. PW3 said, it was 9.30 am to 10 am at the time, and there was sunlight. She spoke to him for 5 minutes. He was obviously close to her. She said, there was no obstruction in the way when he saw his face. She said, he used to stay at Garneshwar’s house and had seen him there plenty times. She said, he is known by the name “Mama”. Please, analyse this identification evidence in the light of the directions I gave you in paragraph 41 hereof. The significance of PW3’s evidence was the fact that the deceased told her who attacked her at the material time, approximately 2 to 3 hours later when she died at Lautoka Hospital.
  17. The State also called Doctor James Kalounivaki (PW4). He is a forensic pathologist and had done more than 800 post mortem examination. He stood in as the substitute pathologist for Doctor Goundar who conducted the post-mortem for Ms. Vidya Wati. Her post mortem report was tendered as Prosecution Exhibit No. I. While describing the finding in the post mortem report, PW4 said Ms. Wati had black eyes on both eyes and the surrounding areas around the eyes. Both eyes were bleeding under the covering of both eyes. PW4 said, there was a large scratch on the chin. There were abrasions over and in front of the right ear and over the right cheek area. Internally, there was bleeding in the top front chest wall. The first rib joint on the right near the bleeding area was dislocated. There was bleeding under the first covering of the brain from the top back part of the brain to the floor of the extended part of the brain, PW4 said, that showed there was bleeding over the brain, which was not normal. PW4 said, the above injuries caused Ms. Wati’s death and they were the result of strong punches to the head and chest of a 74 year old woman.
  18. As part of its circumstantial evidence, the State also ask you to consider the accused’s alleged confessions, as previously discussed.
  19. The prosecution, given the above evidences, was relying on circumstantial evidence, to connect the accused to the crimes. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and the defendant which they say when taken together will lead to the sure conclusion that it was the defendant who committed the crime. It is not necessary for the evidence to provide an answer to all the questions raised in a case. You may think it would be an unusual case indeed in which a jury can say “We now know everything there is to know about this case”. But the evidence must lead you to the sure conclusion that the charge which the defendant faces is proved against him. Circumstantial evidence can be powerful evidence, but it is important that you examine it with care, and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore, before convicting on circumstantial evidence you should consider whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution case. 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.
  20. Because of the circumstantial evidence discussed above, the State is inviting you, as assessors and judges of fact, to find the accused guilty as charged on both counts. It is a matter entirely for you.
  21. In his sworn evidence, the accused denied the allegations against him. You have also heard the details of his sworn evidence that the police mistreated him, while he was caution interviewed and while he was in their custody. He had told you of how he was allegedly assaulted and threatened by police while in their custody. He said he was forced by police to sign his caution interview notes. He said, his caution interview statements were nothing but a fabrication by police. He said, he did not give his statements voluntarily. He said, his statements were taken without his free will. He asks you to disregard his caution interview statements and that his alleged confessions were not true. If you accept the accused’s version of events, you will have to find him not guilty as charged on both counts. It is a matter entirely for you.
  22. The prosecution called nine witnesses (ie. PW1 to PW9) and the defence called three witnesses (ie. DW1 to DW3). The prosecution submitted three exhibits, that is, Prosecution Exhibit No. 1, Vidya Wati’s post mortem report; Prosecution Exhibit No. 2(A) and 2(B), the accused’s caution interview notes and Prosecution Exhibit No. 3, the accused’s shoes. The Defence submitted one exhibit, that is, Defence Exhibit No. 1, the accused’s Medical Report, dated 18 January 2013. You must consider all the evidence when coming to the decision on whether or not the accused is guilty as charged.
  1. SUMMARY
  1. Remember, the burden to prove the accused’s guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution’s version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused’s guilt, you must find him guilty as charged. If you do not accept the prosecution’s version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused’s guilt, you must find him not guilty as charged.
  2. Your possible opinions are as follows:
  3. You may now retire to deliberate on the case, and once you’ve reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.

Salesi Temo
JUDGE


Solicitor for State : Office of the Director of Public Prosecution, Lautoka
Solicitor for Accused : Legal Aid Commission, Suva.

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