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State v Ului - Summing Up [2018] FJHC 54; Criminal Case 52.2014 (2 February 2018)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

Criminal Case No. 52 of 2014

THE STATE

vs

1. MATAIASI ULUI
2. MAIKELI LOKO
3. RAKESH KUMAR
4. VINOD SEGRAN
   

Counsel : Ms. S. Kiran with Mr. S Seruvatu for the State.

Mr I. Khan for the First and Second Accused.

Mr. M. Raza for the Third Accused

Mr. A. Sen with Mr. W Pillay for the Fourth Accused.

Dates of Hearing : 15^th January to 1^st February 2018
Date of Summing Up : 2^nd February 2018

____________________________________________________________

SUMMING UP
____________________________________________________________

1. Ladies and Gentleman:
   
2. The time has now come for me to sum up the evidence in this case and to direct you on the law. When I do so, you must accept what I say about the law and apply it to the facts. The law in this case is rather complex and so I will try to break it down into manageable parts for you.
   
3. You are the Judges of the facts and whatever you say about the facts is paramount and I must give your opinions the greatest amount of weight when I come to consider the final judgment of the Court. If in the summing up I express an opinion on the facts and I do, then you can reject my opinions unless you agree with me and come to your own opinions. I have no right to usurp your view of the facts. On assessing the evidence of witnesses, you may accept all of what a witness says, you may reject all or you may reject or accept part of the evidence.
   
4. It is for you to tell me what you believe the facts of this case are by applying the law as I direct you and then by telling me if in your opinion if each of these accused is guilty or not guilty of murder and any other alternative crime that I leave with you. You must accept what I tell you about the law.
   
5. Of course you are aware that there are four persons in the dock charged with the same crime. You will look at each accused separately because the evidence in respect of each is different. Just because you may think that one accused is guilty, it does not mean that the others are.
   
6. You will judge this case solely on the evidence that has been heard or seen in this Courtroom. Evidence consists of oral evidence from the witness box, documentary evidence such as the records of interview, and photographs if you think they assist you. All of that is evidence and you must consider it all.
   
7. You will not judge this case on anything that you have heard or seen outside of the Courtroom – that would not be fair to the four accused persons.
   
8. Similarly you will not let any sympathy or prejudice play a part in your deliberations. You must look at the evidence dispassionately and with the wisdom of your experience of the community and the Fijian lifestyle.
   
9. Some of the family witnesses have displayed their emotions as to the tragedy of this case, but you must not let sympathy for their loss get in the way of your deliberations.
   
10. I make no apologies for repeating to you what I said at the beginning, because it is important. That is that you can only find each of these accused guilty if you have been made sure by the State prosecutors that each is guilty – that is you are certain beyond reasonable doubt. Reasonable doubt is not any little niggling doubt – your doubt must be reasonable and if it is, then it is your duty to return an opinion of not guilty. None of the accused has to prove anything. The burden is on the State to make you sure of the guilt of the accused, no matter what they say in evidence.
    
11. Each of these 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 our law there is a little more to it than that, and when there are four people charged with one murder there is quite a lot for you to consider.
    
12. 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. The State here is saying that when Matai punched Arun and threw him head first onto the concrete floor at Rakesh’s house he was being reckless as to the consequences of those acts; acts that any sober and reasonable person would find carried the risk of death. But knowing that risk he went on regardless to do this to Arun.
    
13. I am afraid that we have to move on from that basic definition but before we do let us examine that very basic definition in terms of our case.
    
14. By looking at the first accused alone, if you accept that his answers to the Police in the interview were willingly given and that those were in fact his answers then he has admitted that he did punch Arun in the face and that he swung him and threw him head first onto a concrete floor. The Pathologist has said that Arun died from injuries caused to the brain from the force impact of blunt force. Therefore you might have no difficulty in finding that Matai engaged in conduct that caused Arun’s death. You must then decide if he was reckless. A person is reckless if he is aware that there would be a substantial risk of death resulting from assault of that kind, and that he was not justified in taking such a risk. So that is the first step you should take and it relates to the first accused only. If you think he was reckless in taking the risk that death might occur then you will find him guilty of murder and put his case to one side before considering the case against the second accused in the manner in which I am going to direct you.
    
15. However, before moving on there is a further matter to consider for the first accused.
    
16. Apart from a finding of murder, a finding of manslaughter is available to you as an alternative verdict.
    
17. If after considering Matai’s actions in dashing Arun to the concrete floor, you decide that he was not being reckless in being aware of the substantial risk of death by doing so, then you must re-examine Matai’s thoughtlessness at the time. We can never know what was going through his mind , but if in the circumstances shown to exist by the evidence , you think that by punching Arun and dashing him to the floor he was reckless in that he knew that by doing so there was a real risk that he would cause him very serious harm and not death, and that he was unjustified in so doing , then it is open to you to find him guilty of the alternative crime of manslaughter.
    
18. Manslaughter is a lesser offence and it will be dependent on how your find Matai’s recklessness if you do find him reckless. If you think that Matai knew that there was a real risk of death by throwing him head first onto the concrete, then he is guilty of murder, but alternatively if you think that he did not appreciate his actions would kill him but only do him very serious harm, then he is not guilty of murder but guilty of manslaughter.
    
19. I turn now to the second accused. His situation in law is a lot more complex because he is what is regarded as a “secondary party” and his culpability depends to some degree on whatever you decide about the first accused. You are to judge the second accused in accordance with what you find to be his role in this assault on Arun. Was he joining in with the first accused to harm Arun? Or was he merely trying to beat evil spirits out of Arun. In law a person acting in an agreed joint attack on another is equally liable as his co-accused in that attack, even if he does no part in inflicting the killer blow. Let me break down that principle of law for you.
    
20. The Prosecution’s case is that both Matai and Maikeli committed this offence together. Where a criminal offence is committed by two or more persons, each of them may play a different part, but if they are in it together as part of a joint plan or agreement to commit it, they are each guilty. Agreement or plan does not need to be a formal pre-decided pact. It can arise on the spur of the moment and nothing need to be said at all. An agreement can be inferred from the behavior of the parties. You may wish to take into account the two records of interview that are before you. You might ask yourselves did they “have it in” for Arun? Were they waiting for an opportunity to get back at him? Was the violence that night their opportunity for revenge?
    
21. The essence of joint responsibility for a criminal offence is that each accused shared the intention to commit the offence and took some part in it however great or small so as to achieve that aim. Your approach to the case of Maikeli should therefore be as follows: if you are sure that with the intention I have mentioned he took some part in committing the murder or manslaughter with Matai, then he is guilty. Every person who willingly joins in a plan to commit an illegal act is responsible for whatever happens as a result of that act. Mere presence at the scene of a crime is not enough to prove guilt but if you find that Maikele was on the scene and was there intending to assist the first accused and did encourage and assist the first accused in the offence then he is equally guilty.
    
22. Maikeli says in his interview that he beat Arun’s legs with a sasa broom. He does not say why he did this but the State is saying that by doing this he is joining in on the attack against Arun along with Matai. You would find this as a matter of circumstantial evidence, a matter I will address you on later. If in the circumstances you find that Maikele was willingly participating in the assault on Arun then the law says that when two or more persons join together for an illegal purpose and in the course of that illegal purpose an offence is committed which is a probable consequence of that purpose then each is deemed to have committed the offence.
    
23. Now, I appreciate that that sounds terribly legalistic so let me try to explain it for you in simpler terms. If you find that both Matai and Maikeli were in agreement to beat up Arun, for whatever reason, and in the course of that hiding it was foreseeable that one of them could do something that would result in Arun’s death, then they are both liable for that death by a finding of either murder or manslaughter.
    
24. Your approach to the second accused should be therefore:
    
    • If you think he was there just to stop the fight and for no other purpose, then you will find him not guilty. If you think he was assisting the first accused in beating up Arun then he is jointly liable.
    • If you find that it was foreseeable that the beating up would lead to the death of Arun then Maikele is guilty of whatever you find Matai guilty of; that is murder or manslaughter.
    • If you find that the death was not foreseeable then you will find Maikele not guilty of anything.
      
25. After giving you those difficult directions on the law, I am going to give you a summary of the evidence. It has been quite a long case and it is my duty to remind you of what I think are the important parts of the evidence. Again I remind you that whatever I say about the evidence is for you to ignore if you wish. If I stress something as important, you might think it is not. If I don’t mention something which you think is important you will give in the weight that you think fit. Remember you are the masters of the facts, not me.
    
26. However, we are not quite there yet. There are two directions in law that you should be aware of when looking at the evidence.
    
27. First is what we call circumstantial evidence.
    
28. 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.
    
29. 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.
    
30. You may use this evidence to make presumptions or you may use it to support other evidence in the trial. Remember you cannot use it to make a presumption of guilt if there is any other possible explanation for the evidence.
    
31. I have covered in some detail the legal positions of the first and second accused and you might be helped by the fact that they have made admissions. Neither the third or fourth accused made any admissions, so the thrust of the evidence against them is circumstantial.
    
32. The State is saying that along with the accusations of the dying Arun, the third and fourth accused are part of the plan to assault Arun by circumstantial evidence. That evidence they say includes the use of Rashek’s vehicle to bring Arun to and fro and the telephone calls between Rakesh and Vinod. It is a matter for you whether you think that the accusations of Arun naming Rakesh & Vinod as assailants, coupled with this “circumstantial” evidence, is enough to bring them into the plan to assault. If so you will find them guilty of the same crime as you find proved against Matai; if not you will find them not guilty. Of course, the defence are saying that you cannot rely on Aruns words when he was so ill, and they say that the so called circumstantial evidence is mere speculation, and proof of nothing.
    
33. The other direction on evidence revolves around previous statements that a witness has made to anyone out of Court, before he or she came to give evidence. You will recall that on many occasions one or more of the defence Counsel referred to a written statement that a witness had given to the Police, and had pointed out that what the witness was saying in court was not in accordance with that statement.
    
34. 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, and you must decide whether the previous statement is in fact inconsistent. For example with the evidence of Monisha Devi, she gave evidence in addition to what was in her statement. You may think that some differences are important. If so, while accepting the evidence in Court as the proper evidence you might think that the very different version given to Police before would make the evidence of that witness unreliable and you might not give it much weight. It is all a matter for you.

Prosecution evidence

35. The State’s evidence in this case falls into three parts; there are witnesses to events, medical witnesses and thirdly there is the police evidence about the interviews and the charging of the first and second accused.
    
36. The first prosecution witness was Vijay Kumar Naidu who is the uncle of the deceased (whom I shall refer to as Arun in this summing up). On the 14^th April 2014 at about 6pm Arun came to Vijay’s home and was watching TV with him. They had a couple of bilos of grog and Arun received a call. He said that Rakesh had called him and asked him to go to him. A car arrived to pick him up. It was Rakesh’s car. You might think that that evidence is not of much use apart from the fact that it explains how Arun got up to Rakesh’s house that evening. But of course it is a matter for you what weight you give to it.
    
37. We next heard from Logeshal Naidu, a brother of Arun who lived in the same house with him. At about 7.45pm he was at home when their mother called out from the temple to look at the vehicle in their driveway. When he looked he saw a vehicle belonging to Modern Glass and Mirror and he saw Vinod assaulting Arun. Logeshal called out and Vinod ran away in the vehicle. The witness went and picked Arun up and put him on his bed. He was taken to the hospital. When he went to pick him up he was in the drain, about 10 yards from the temple. He knows both Vinod and Matai and identified them in Court as the 4^th and 1^st accused respectively. He saw them treating Arun like an animal and throwing him in the drain.
    
38. In cross-examination he admitted that there is no reference to the drain or throwing into the drain in his Police Statement. He did tell the Police that but they didn’t include it in the statement for him to sign.
    
39. Mr Sen took issue with the witness as to whether he had a clear line of sight from the house to the driveway, and whether trees and shrubs obscured his view. The witness said his view was clear. Again he insisted that he told the Police about Vinod throwing Arun in the drain, despite it not being in his Police Statement.
    
40. Mr. Atama Ravato, a missionary worker, came to tell us that at the relevant time he was living with Rakesh and working as a storeman at Modern Glass and Mirror. After work that day he went home in the company’s vehicle. They stopped at Nawaicoba Police Post and Matai and Apisolome went in to do something. The witness stayed in the car. At home he was relaxing when Matai called him to a meeting about company quotations. The meeting was at Rakesh’s house and present were Matai. Maikeli, Apisolome and him. Vinod arrived later before the meeting started. Arun was also there because he had to explain the quotations. Rakesh was ill and had gone inside to take a shower. In the middle of the conversation and before Vinod and Rakesh arrived the conversation suddenly switched to the practice of witchcraft. Apisolome started the questioning. They then asked the witness because he had seen Arun spilling grog and muttering outside Rakesh’s house. Arun denied practicing witchcraft and then he swore. Matai got angry and then kicked his head and his chest. Atama got him some water and started massaging his head at which time Vinod arrived. Rakesh, hearing the commotion ran out and stopped what was going on and Vinod and Apisolome helped him, Rakesh was angry and told everybody to go away. Arun put his shoes on and left. Rakesh offered him a lift which Arun refused, so Rakesh told Vinod that if he saw him on the way to pick him up and drop him home. Vinod left alone in the vehicle. Maikele was at the meeting, also asking Arun about witchcraft. He picked up a broom and whacked Aruns legs with a sasa broom once. Vinod left about 4 or 5 minutes after Arun. When Arun left it would have been about 8 to 8.30pm.
    
41. In cross examination PW3 told Mr. Khan that Matai only kicked Arun once on the head and once on the chest. He agreed that Maikeli had said that by hitting his legs with a broom would drive evil spirits away.
    
42. To Mr. Sen he said that Vinod was not there at the time of the assaults and that when he did come he tried to calm the situation down.
    
43. PW4 was Arun’s mother Dham Lachmi. On that day, she was home at about 7.30 and had gone to the temple for devotions. On her way back, she saw a vehicle parked in the driveway. She heard a sound and was frightened so she called out to her son Logeshal. He went out and came back with Arun. She wasn’t paying much attention. She saw the vehicle but didn’t see any people. When she saw how bad Arun’s condition was, she fainted.
    
44. The next witness was Vishek (PW 5) who told us that on the 14^th April 2014 on reaching home he saw his mother crying and she told him to have a look at his brother Arun. Vishek saw his injured brother noting his “really bad” condition, with an injury on the back of his head and he was unable to walk.He called Rakesh and asked him what had happened and Rakesh said to him “you want to be assaulted the same way?” Vishek cut the call. The children had brought Arun to the porch and Vishek put him in his car to take him to hospital. In the car Arun told him that he was assaulted by Vinod, Matai and Maikele. Rakesh was standing there watching. His teeth were broken and he was bleeding from the ears and nose. At one stage he told Vishek to slow down because he wasn’t going to survive. They stopped near the Nawaicoba Police Post because Arun was vomitting. They then went to Nadi Police Station to report but were sent on to the hospital immediately.
    
45. In cross-examination he told Mr. Khan that his police statement naming Tukai as an assailant is wrong because he had said Maikeli and the Police wrote the wrong name.
    
46. He told Mr. Raza that Rakesh and Arun were good friends.
    
47. PW6 was the Doctor Victa Vinay Kumar working at Nadi hospital on the 14^th April 2014 and who received Arun when he was taken there. When he first saw Arun, Arun was sitting in a wheelchair. He was calm and talking. The doctor was told that he was punched on the face, fell on the floor and hit on the back. He was alert and conscious but did not want to reveal details of the assault. It was obvious to the Dr. that he had trauma to the back of his head. He was awake and alert and of the highest reading of consciousness. He displayed no symptoms of skull damage and was able to move his neck. There was no oral bleeding and the Doctor opined he did not need a neck collar. His findings at that stage were 1) mild head injury and 2) a fractured left humerus bone plus a fractured right hip.
    
48. By 11pm his condition had deteriorated and his consciousness level had plummeted to the lowest reading possible. He was in a coma and bleeding from the mouth. He was displaying all the symptoms of a skull fracture. He revised his initial findings from mild head injury to severe head injury caused by blunt force trauma.
    
49. The Dr. explained that in cases of this kind, before the patient drops into unconsciousness and oral bleeding he has a period of lucidity.
    
50. To Mr. Sen he agreed that in the condition he was, if he was speaking slowly and mumbling, whatever he was saying would be unreliable.
    
51. A nephew of the deceased is Nitesh (PW7). He worked at Modern Glass and he went home after work on the 14^th with Vinod the Manager (He is also the man Vinod himself calls “Robin”). Vinod told him in the vehicle that he had been trying unsuccessfully to call Arun. He managed to contact Arun when they got near the bus shelter. When they got to the bus shelter and Robin got down he saw Arun already there. Then Rakesh” vehicle came (HB449) with Tukai and Matai. They told Arun that Rakesh wanted to go to Suva and needed to discuss something and he needed to go with them. Arun got into the car, which drove off towards Rakesh’s house. By this time Vinod had driven off. Robin then walked home and later saw Arun in the deplorable condition that we have all heard about.
    
52. Robin told Mr. Khan that he seemed reluctant to get into the car. He never told the Police that in his statement but he could recall things much more clearly now.
    
53. To Mr. Raza he said that Rakesh and Arun were on good terms, and that when he asked Arun what had happened, he said that he had been assaulted by 4 or 5 people.
    
54. Mr. Sen he admitted that he had told the Police about the conversation with Vinod in the vehicle, but they hadn’t included it in his statement.
    
55. In re-examination he added that Arun had said that the 4 or 5 people were Matai, Tukai, Maikeli, Vinod and Rakesh.
    
56. It was then that we heard the evidence of Arun’s daughter Monisha Devi, the law student who saw her father after he had been dropped off that evening.
    
57. She saw her father leave the property at around 5 to 5.30pm and she next saw him between 7.30pm to 8pm when he was in a critical condition. . I won’t repeat her descriptions of his injuries. I think all parties are agreed he was severely injured at this time. She was in her father’s room along with her mother sitting next to him when he tried to speak. His lips were cut and blood was coming out of his mouth. Monisha was near him asked him what had happened to him and he replied that some people had assaulted him. On being asked who he said “Rakesh, Vinod, Matai and Maikeli.” Just those 4 names and nothing else. When he said that, her mother was sitting on the other side of her father and her brother was in the room. After he said that he vomited and blood was coming out.
    
58. The three of them then helped him out to the porch where they were holding him until Vishek could get the car ready to take him to hospital. On the porch he was talking but in a very low voice. They then took him to Nadi Hospital. On the way Vishek was asking him what happened and he said the same names. They stopped on the way because he was vomiting. They also stopped at Nadi Police Station to make a report but the Police said he was in such a bad way they should take him straight to the hospital. They did that and he was subsequently transferred to Lautoka Hospital where he died the next day.
    
59. In cross examination she admitted that her Police Statement only mentions three names, Rakesh, Vinod and Matai. She says that she gave the four names to the Police, but they didn’t write them in her typed statement. She also admitted that references to conversations in the vehicle were not recorded in the Police statement. She told us that she was emotionally disturbed at the time of making her Police Statement, but she can clearly recall now that he did talk in the car in answer to her uncles questions. She later said that the fourth person was Tukai whose name is not mentioned in the statement.
    
60. She told Mr. Raza that when he told her the names his voice was very “low”, whatever that means, but she was close to him and could hear the names.
    
61. To Mr. Sen she admitted that he was not speaking in his normal voice. He was whispering.
    
62. The next witness produced photographs which you may or may not find helpful.
    
63. Corporal Jainish Kumar told us what happened at Nawaicoba Police Post on the 14^th April 2014. At about 5pm, a man who he identified as Matai came in and said that a family friend had been accused of witchcraft and what can be done about those cases. He was reluctant to reveal the details of the case, and Kumar told him to sort it out within the family because without evidence nothing could be done.
    
64. Then followed the very important evidence of the Pathologist Dr Goundar. As you know the good Doctor examined Arun’s body after death with the main purpose to detail any physical damage to the body which would enable him to make a professional finding of the cause of death. I say that his evidence is important because it gives a great deal of information about the extent of the violence inflicted upon Arun.
    
65. Dr Goundar reported that Vasu Dewan Naidu (Arun) died at Lautoka Hospital on the 15^th March and the body was identified by Vishek. Dr Goundar found external marks of violence. His lower lip was lacerated and a tooth missing, but his most significant findings were in relation to the skull and brain. There was haematoma on the front and left side of the skull. There were extensive haemorrhaging on and in between the outer membranes surrounding the brain. The skull was fractured on the left side and there was haemorraging within the brain itself below the outer membranes. He concluded by telling us that in his professional opinion, he found that the cause of death was the fractured skull and the haemorrhages in the membranes between the skull and the brain caused by the assault.
    
66. The pathologist described these as very serious injuries as a result of the application of very serious force. They would certainly have been caused by more than one kick. He opined that if the deceased had been punched on the face and then thrown his head first on to the ground then that would cause such injuries. He added that no medical attention could have assisted the deceased and he was certain to expire with such injuries.
    
67. The Doctor said to Mr. Khan that hitting legs with a sasa broom would not have caused his death and to Mr. Raza that with these injuries, he could have been confused and he could have been swinging between periods of alertness and coma. To the prosecutor in re-examination, he said that speech may have been slurred, but it all depends on how much pressure was building inside his head.
    
68. At this stage of the trial we then entered into the third part of the prosecution’s evidence which is the Police investigation evidence. I don’t propose to deal with that in great detail because most of their evidence as not been challenged by the defence.
    
69. Various police officers have told us of the arrest of the accused, the interviews of Matai and Maikeli and the charging of Matai and Maikele.
    
70. You have all those documents before you as evidence and the State is relying heavily on them in respect of the first and second accused.
    
71. You will be aware that there is no such evidence before you in respect of the third and fourth accused.
    
72. I now wish to speak to you about the records of interview that are before you – one for each of the first and second accused. There are no complaints about them and it certainly has not been suggested that the answers are not true. You can therefore accept the answers in the interviews as true and correct and are answers voluntarily given by each of the two accused. They are evidence for you to accept or reject in the normal way. It is the State’s case that Matai has admitted in that interview to assaulting Arun at Rakesh’s house that night by punching his mouth and “I stood uphold the collar of his shirt and his trousers lifted him up and threw him down with his back landing first”(Q & A 72).
    
73. I must direct you as a matter of law that what anybody says in an interview outside of Court is only evidence against that person alone and whatever the person says in his interview about anybody else is not evidence against that person. So when looking at both records of interview, you will use them as evidence only against the person being interviewed and not as evidence against any other person.
    
74. Despite the editing, Matai does say a few things about Vinod, rakesh and Atama but you are to ignore that.
    
75. If you accept that evidence, then it brings you right back to the thrust of the prosecution case. That Matai did an illegal act (and I direct you that assault is an illegal act) that led to the death of the victim. It is for you to decide whether by throwing him head first on to concrete was reckless as to the risk of death resulting (which is murder) or reckless as to the risk of serious harm (which is manslaughter).
    
76. In addition to the caution interviews, the Police evidence also exhibited an answer to charge from each of the first and second accused. The first accused said in response:

“I admit that I punched Vashudewan Naidu I didn’t intend for him to died (sic). I seek forgiveness”.

77. The second accused said:

“I admitted that I assaulted Vashu Dewan Naidu (Arun) with a sasa broom. I hit his legs and I did not mean to kill him. I wish to apologise for what I did”

Defence

78. At the beginning of the Defence case you heard me tell each accused what their rights are in defence. They could remain silent and say that the State had not proved their case beyond reasonable doubt, or they could give evidence under oath. In either case they were entitled to call witnesses.
    
79. You know that the first, second and third accused elected to remain silent and to call no witnesses. That is their right and you are not to think any less of them or their case because of it. An accused person does not have to prove anything to you, so the fact that he did not give evidence or call witnesses means nothing, one way or the other. You must not assume that an accused is guilty just because he has not given evidence. The burden remains on the State throughout to prove to you so that you are sure that these three accused are guilty of this crime.
    
80. As you know; the fourth accused gave sworn evidence in his defence.
    

The case for the fourth Accused in Defence

81. He told us that he lives in Nawaicoba and is married with three adult children. At the relevant time he was employed as the Manager of Modern Glass and Mirror by the owner Rakesh, the third accused. On the 14^th he was working all day without contact with the boss Rakesh either in person or by phone. He closed up shop at 5pm and set off for home. Quite often he takes staff home with him because most of them live in Nawaicoba. On this day he took Nitesh (nickname Robin). He dropped Robin at the bus shelter then called Matai to see if he wanted a lift. Matai said that he was going to pick up Arun without saying why. Vinod said that on the way home he was thinking he needed to discuss company quotations with Arun and that this would be a good time to do it at Rakesh’s house where he thought Matai was taking Arun. So he called Arun and told him he wanted to talk about the quotes and that he was on his way to do that. This was about 5.30pm to 6pm. He went home and stayed there for 45 minutes, tending to his livestock and bathing. He went to the temple from home. He was responsible for organizing the music for funeral rites at a neighbour’s house. He was held up at the temple because there was a prayer service in progress. After spending an hour at the temple, he went to Rakesh’s house. As soon as he arrived, he heard a commotion and saw Matai, Maikele, Atama. Belebele (aka Tukai) all berating Arun and exchanging very harsh words. He entered the fray and pulled Matai aside and then pulled Tukai out. He scolded them and told Arun to go home which he did. The boys told him that Arun was doing black magic. Vinod told them to calm down and that blackmagic was nonsense. They were subdued and put their heads down. Rakesh came out from the house and told them all to go away.
    
82. Vinod was there for about 10 minutes until he fully controlled the situation. He left with Matai in his vehicle. On the way out they saw Arun on the road and they picked him up and took him to his driveway. It was dark and Arun seemed to be alright. He was quiet and when Vinod asked him if he was OK he said “mmmm”. He got off the vehicle and left. Neither Matai nor Vinod got out of the vehicle. He certainly didn’t kick him or throw him in a ditch. Vinod went home stopping at the temple again.
    
83. Well Ladies and Gentlemen that was his evidence and you will assess it in the way of all other evidence and give it the weight that you think it deserves.
84. But please bear in mind this. Even if you don’t believe a single word he says, it does not make him guilty. The State still has to prove to you beyond reasonable doubt that the circumstantial evidence implicates him in the joint enterprise to give Arun a hiding.
    
85. You will be very relieved that I am now coming to the end of my Summing Up, but I just want to correct something that was said to you yesterday in error. Mr. Sen told you that you have to accept Atama’s evidence as fact and that if it is not true that the State would have turned him hostile. Ladies and Gentlemen, I told you at the beginning of these directions that you can accept part of what a witness has said, all of what a witness has said or you can reject part or reject all. You are judges of the facts and just because a witness says something under oath it doesn’t have to be true. We who are in Court all the time know all too well, that some witnesses tell lies.
    
86. Remember your task; evaluate the admitted acts of Matai first. If he was so reckless that his actions carried the risk of death and he would have known that but carried on regardless then he is guilty of murder. If his actions only carried the risk of serious harm then he is guilty of manslaughter. There is no room for a not guilty of anything verdict.
    
87. The fate of the second accused will hang on your decision for the first accused if you think that he was joining in on the assault. If you find Matai guilty of murder then you will find Maikeli guilty of murder too if he was taking part and if you think it was foreseeable or possible that Matai would act in this way. If he
    

was taking part in the assault and you find Matai guilty of manslaughter then you will find Maikeli of manslaughter too.

88. Looking at the cases of the third and fourth accused (separately of course) if you think that the circumstantial evidence is strong enough to link them as parties to the assault then you will find one or both guilty of the crime you find the first accused of.
    
89. If you think that there is not enough evidence to link one or both of them to the assault or to the plan to assault, then you will find one or both not guilty of anything.
    
90. You will be asked to give your individual opinions when you have decided. It would be best if you could all be agreed on your opinions but if you can’t agree I will accept individual different opinions.
    
91. You may take as much time as you wish and when you are ready you will let one of my Clerks know and I will reconvene the Court.
    
92. You may now retire but before you do I will ask Counsel if there is anything they wish me to change or add to my directions.
    
93. Counsel?
    

P. Madigan

JUDGE

At Lautoka
2^nd February 2018