State v Shankar [2003] FJHC 336; HAC014.2001S (3 July 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL ACTION NO. HAC014 OF 2001S

THE STATE

V

ALBERTINO SHANKAR & ANO

Gates J.

Mr J. Rabuku for the State
Ms J. Nair for Accused 1

Ms P. Narayan for Accused 2

3 July, 2003

SUMMING UP

All 3 Assessors present

[1] Lady and Gentlemen Assessors, it is now my duty to sum up the case to you. We have differing roles in this trial. I have to give you directions on the law and you must accept those directions. You are to decide the facts.

[2] In going through the evidence I may express an opinion. If you do not agree with that opinion, you are free to ignore it and to form another view of that piece of evidence. I may omit some evidence which you think significant. Nonetheless you may give that evidence such weight as you consider appropriate. You are free to form your own opinions.

[3] At the end of this summing up, and after you have given your individual opinions, the final decision on the facts rests with me. I am not bound to conform to your opinions. However in arriving at my judgment I shall place much reliance upon your opinions.

[4] The burden of proof rests throughout on the State. The State brings the charge against the Accused. It is for the State to prove it. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused.

[5] The prosecution must prove its case beyond reasonable doubt. That means that before you express an opinion that either of the Accused is guilty you must be satisfied so that you are sure of his individual guilt. If you consider him innocent you must give your opinion that he is not guilty. If you entertain a reasonable doubt of guilt of either one of the Accused, you must also give your opinion that that Accused is not guilty.

[6] In this case the 2 Accused are charged with murder. There is only one charge to consider. There are however 2 Accused. You must consider the cases against each Accused separately. When deliberating on the case, take each Accused separately, and look at what evidence there is, both for and against, which relates to the particular Accused under consideration.

[7] The Accused are charged jointly. The prosecution says both Accused agreed jointly to carry out this crime, and whilst committing it, lent each other assistance to achieve their desired result. It was a joint enterprise. In coming to your opinions however, and in considering the evidence, it is open to you to reach an opinion that one Accused is guilty and another innocent. You are not obliged to find either both guilty or both innocent. As I have said, you look at their cases separately.

[8] In this case both Accused elected to give sworn evidence, and thereby have subjected themselves to cross-examination. An Accused person is not obliged to give evidence. In this case they have chosen to do so.

[9] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate amongst yourselves so as to arrive at your opinions. Upon your return to court, when you are ready, each one of you will be required to state his or her individual opinion orally, which opinion will be recorded. Your opinions need not be unanimous. You will not be asked for reasons for your opinions.

[10] However it will be helpful to you beforehand in arriving at a sound and rational opinion if you ask yourselves why you have come to that opinion.

[11] That opinion must be based solely upon the evidence. Evidence consists of sworn testimony of the witnesses, what each witness has told the court in the witness box, as well as the exhibits tendered in court, such as the caution interview statements, the medical reports, the photographs, the murder weapon, the nylon rope, and the items said to have come from the deceased’s flat.

[12] Neither speculation nor theories of one’s own constitute evidence. Media coverage, idle talk, or gossip are similarly not evidence. Put out of your mind when considering your opinions, anything you may have read in the newspapers about this case. Focus solely on the evidence which you have seen, heard, or examined in this court.

[13] This summing up is not evidence either, nor are counsel’s opening or closing addresses. Naturally we hope these addresses are of assistance to you, but they do not constitute evidence.

[14] If a witness is asked a question in cross-examination and agrees with what counsel is suggesting, the witness’ answer is evidence. If he or she rejects the suggestion, neither the question nor the answer can become evidence for the proposition put.

[15] In arriving at your opinions, use the common sense you bring to bear in your daily lives, at home and at work. Observe and assess the witnesses’ evidence and demeanour together. You can accept part of a witness’ testimony and reject other parts.

[16] The Accused are also to be considered as witnesses, since they gave sworn evidence. They are no different from the other witnesses and each witness in the case requires equal consideration. Undoubtedly this is a case about a dreadful death. But consistent with your oath, put away both prejudice and sympathy. Approach your assessment of the evidence dispassionately. Bring a cool detachment to your task of examining whether the case has been proved before you.

[17] I turn now to deal with what the prosecution must prove. The 2 Accused are charged in the information with one charge or count, and that is of murder which is an offence in our Penal Code.

[18] There are in this particular case 4 relevant elements that the prosecution must prove. First it must be proved beyond reasonable doubt that the deceased Tang Wen Jun died. The evidence of the identity of the body found in the front upstairs flat at 178 Toorak Rd. was subject to defence scrutiny. However you may think Ms Tang was indeed the person brought down from that flat on 27 March 2001 to the CWM mortuary. At the mortuary she was identified to the pathologist, though the body was in a state of decomposition, by an acquaintance, Mr Robert Fong. The pathologist Dr Dhana Gounder said the identification was made from the orientation of the teeth, though he was not sure if Mr Fong identified the deceased by facial features also. You may think it unlikely that this female body was of someone other than Ms Tang, an expatriate Chinese, who at the time resided alone at that flat.

[19] Second, the prosecution must prove that the deceased’s death was caused by an unlawful act. The pathologist testified that his examination confirmed his initial view which was that death had been caused by asphyxiation due to strangulation with a nylon rope wrapped several times around the victim’s neck. This was not a hanging case he said, which would rule out suicide. From this evidence both primary and expert you will have no difficulty in concluding that Ms Tang died by the unlawful act of another.

[20] Thirdly the prosecution must prove to you that this unlawful act was the act of both Accused. I shall return to this element later.

[21] Fourthly and lastly, it must be proved beyond reasonable doubt, as all the elements must be proved, that the Accused killed the deceased whilst acting with malice aforethought. In this case, on the Accused’s own confessions, if you accept them, the Accused intended to kill Ms Tang. Accused 1 feared she would recognise the two of them again. They had broken into her flat at night to steal, they had each raped her twice, and they were going to make off with several household items belonging to Ms Tang. Accused 2 was persuaded to see the need for the source of potential evidence against them to be destroyed. Accordingly Accused 2 held her legs whilst Accused 1 pulled hard on the nylon rope around her neck till Ms Tang ceased struggling and died.

[22] The technical phrase, malice aforethought, here means the intent to kill. If you accept the confessions, there was only one intent in wrapping the nylon rope around Ms Tang’s neck and pulling on that rope, and that was to kill her. Ms Tang might identify the Accused later if they merely left her alive masked with scotch tape. She would no doubt testify against them as to what they had done. Therefore she had to be disposed of. You are only concerned here with an intent to kill, and for that you will have to decide first if you accept that the confessions were indeed made.

[23] Though there was an initial questioning of Accused 1 by Accused 2 on the need for the killing, after Accused 1’s explanation, according to the confessional evidence, Accused 2 joined in with that need by assisting in the killing. The evidence, if accepted, is of a killing carried out by Accused 1 and Accused 2 acting together, hence the joint charge. In law they are both to be regarded as participants in the commission of the crime and equally liable to conviction for murder. Whether this is what happened are matters which you will have to consider carefully and to decide.

[24] The State has alleged that the murder of Ms Tang was carried out in the early hours of Wednesday 21 March 2001. The pathologist said it was impossible, in pinpointing back from the day of the post mortem, to fix upon the precise day of death. He said that because of the extent of the decomposition of the body over several days in a humid tropical climate it was difficult to be precise. He said death could have occurred 5-10 days previous.

[25] The pathologist was unable to explain the apparent change of colour in the wire and nylon rope. However he noticed variations in the colourings of them from the graphic prints. Some discolouration could have been due to the dark fluids he said. You will be able to examine the photos and decide whether this somewhat strange phenomenon has any bearing on your task.

[26] The date in the charge is no doubt based on the accounts given by the Accused in their statements. If you accept those accounts, then you will no doubt find the death occurred, as charged, on Wednesday 21 March 2001.

[27] What then is in issue in this case? It is the identity of the Accused as the perpetrators of the crime, the third element that the prosecution must prove. Both Accused testified and said they were not responsible for the crime. They knew nothing about it. They never made any confessional statements to the police. Such statements were fabricated by the police themselves.

[28] Much of the focus in the trial in relation to the Accuseds’ police statements has been on the treatment meted out to the two Accused whilst in custody. It has been suggested they were beaten, oppressed and inhumanely treated in various ways. It is said that as a result of this treatment the 2 Accused were forced to sign fabricated confession statements.

[29] The first matter you will have to resolve is whether these interviews did take place, in the question and answer form, or whether the police did not conduct such interviews at all. Did they invent the 2 statements? Or was there a series of voluntary answers given to police questions which were then acknowledged by each Accused by the signing of the documents at various stages of the interview process? Which account is true, bearing in mind it is for the prosecution to prove that the police did not fabricate the interviews and that the answers and signatures were willingly given?

[30] The interviews are crucial pieces of evidence in this case, if accepted as true. It has been rightly said by defence counsel that there was no eyewitness in this case. You may think concealment and lack of discovery by witnesses are important aims also for a burglar who commits his crime under cover of darkness, at night. Only an amateur would fail to wear gloves of some sort to avoid leaving traceable fingerprints. The death here, by strangulation, would be unlikely to cause blood drops to fall on the floor for footprints to show up. Other forensic tests appear not to have thrown up any other marks to which a suspect or suspects might be linked.

[31] The prosecution case therefore rests on the confessions and on circumstantial evidence. A conviction can properly be founded on such evidence alone without the evidence of eyewitnesses. Much depends upon the quality of the available evidence. You should consider the surrounding circumstances of the taking of the interviews and the testimony of all of the witnesses, and that includes the 2 Accused, when considering the issue of the confessions. If you decide the confessions were invented by the police, you may well conclude that the remaining evidence, whilst raising suspicions, is insufficient for you to find that the case has been proved beyond reasonable doubt against either of the Accused.

[32] You will remember the accounts of the assaults given by the Accused. These will be fresh in your minds as they were given in the last 2 days. I will not repeat them. Both Accused gave accounts of severe beatings, Accused 2’s assaults apparently being more prolonged, and more severe than those of Accused 1. Both Accused testified that they had not succumbed nor had they confessed. Their only weakness had been to sign the alleged confessions. They said they did so because they feared further beatings.

[33] They were taken to the CWM Accident and Emergency Department and came before Dr Devina Singh for a medical report to be prepared. The Accused said no physical examination took place and DC Abdul who was with them answered all of the doctor’s questions. It was also suggested the doctor was inexperienced.

[34] Dr Singh has since migrated. Her medical reports on the Accused individually were tendered as exhibits. They form part of the hospital’s business records and are admissible documents without the attendance of the compiling doctor as a witness. The reports noted "No visible physical injuries detected" for Accused 1 and Accused 2.

[35] The doctor has noted her conclusions at 13(b)(ii) of the Reports which might suggest she did carry out an examination. In Accused 2’s case at 13(b)(iv) she has drawn 2 pictures illustrating the tattoos she noticed on his left deltoid (shoulder) and at right mid-arm. These would require some examination at least in order for the drawings to be made. They do not necessarily establish that Accused 2’s shirt was removed, or that his pants were removed. You will have to decide the matter looking carefully at the evidence of both Accused and that of DC Abdul who says there was a full examination by the doctor who found nothing.

[36] Michael Shiu Shankar the JP was asked by the police to see the Accused at the conclusion of the interviews. Both Accused did not consider him sufficiently independent of the police. Mr Shankar said his role was to see if Accused persons had any complaints or not. He saw them one at a time.

[37] He said Accused 1 made no complaint at all to him in the closed room. Mr Shankar said Accused 2 complained of injuries and of assault by police. Strangely though Accused 2 did not show these injuries to this witness. Mr Shankar however added "They were a little bit reluctant. They were always looking towards the door." In view of the allegation of such a severe beating you would have expected that injuries would have been immediately obvious to an outsider whose job it was to take up such complaints.

[38] If you find some support for the Accused’s account, you could conclude that the signing of the statements had been involuntary. But the defence case which you have to consider is whether the admissions were made at all.

[39] Next you should consider whether the interview statements were genuine, in the sense that they accurately record what was asked and what was said in answer. The defence argue that the police knew or made obvious guesses as to what had occurred and thus could compile two matching statements. The prosecution say that on 31 March various matters would only have been known by the perpetrators of the crime, such as the rapes carried out on the deceased, and exactly how she had died, that is by the nylon rope, rather than by smothering with the bedsheet or the scotch tape.

[40] You should resolve this matter by a careful analysis of the two statements, keeping in mind what the prosecution and defence witnesses have told you about what had happened in the Crime Office at Central Police Station on 31 March 2001. Consider the defence allegations about the language of the interviews, and what each Accused had said. If Sgt Ravin is correct, Accused 2 would appear to be very fluent and comfortable speaking in English.

[41] Accused 2’s interview is more detailed than that of Accused 1. In that sense it is a slightly different account to that of Accused 1. It is certainly an ingenious piece of work, you may think, if put together by the police. That is, of course, what you have to decide. There was no evidence of rape other than the Accused’s say so. Would the investigators risk including rape in their made up stories if the forensic evidence might fail to confirm it? Read both interviews and consider what has been said about them, bearing in mind it is for the prosecution to prove to you beyond reasonable doubt that each Accused made such statements.

[42] I mentioned earlier on that the evidence for consideration comes from the testimony of witnesses. An accused’s interview statement constitutes evidence against that Accused, the maker of the statement. If he mentions a Co-Accused, such mention will not constitute evidence against that Co-Accused unless the Accused, the maker of the statement, reiterates what he has said about the Co-Accused in the witness box under oath. Of course the Co-Accused can admit such facts as being true, and say so in the witness box. Otherwise what an Accused person says in an out of court statement will not constitute evidence against that Co-Accused.

[43] You may remember that Accused 2 said in answer to prosecution’s counsel’s question that he had lied to Dr Chan at St Giles Hospital. His solicitor had arranged for him to be sent there for psychiatric assessment. He said "I lied to Dr Chan because I wanted to get out of there". He lied about his level of education, about his previous job being at Chefs Nadi, not Suva, and that he had held the position of cook rather than that of kitchen hand. The inference the prosecution ask you to draw is that he could lie easily and that he has lied to you in court for instance about his police interview having been fabricated.

[44] Often people tell silly lies and they mean nothing. They may want to avoid unjust suspicion. Such lies do not always add something to the prosecution’s case. A false denial of being at 178 Toorak Rd. does nothing to help prove that the Accused was there and had committed the crime. It is only when a lie is told which is more consistent with guilt than with innocence, for instance an explanation proved to be or admitted to be a lie, that it can add anything to the case against an Accused. If the positive evidence is lacking, one cannot make a chain of proof made up of lies.

[45] But proved or admitted lies, whether in evidence or in statements out of court, may assist you in assessing the Accused’s credibility. If you believe the Accused has lied in his evidence in court this may assist you in deciding whether to prefer the evidence from the prosecution rather than that from the Accused. You do not jump however to the conclusion that because an Accused has lied therefore he is guilty. Of the admitted lies, you ask yourself, were they deliberate, material, and do you find that he told the lies because of his realisation of guilt and his fear of the truth.

[46] Apart from the confessions the prosecution say there is other evidence, circumstantial evidence against the Accused. One piece of circumstantial evidence is unlikely to prove a case, but weight can be given to the united force of all the circumstances put together. First you must be satisfied of a fact proved to you beyond reasonable doubt before you can go on to draw an inference of guilt from it, and view it along with a combination of other facts. If there is any reasonable hypothesis consistent with the innocence of the Accused, it is your duty not to hold that piece of evidence against the Accused.

[47] What is not disputed is that Ms Tang came to Fiji from China in 1999. She worked as a machinist for Chian Fang Pi’s garment factory in Amy Street, Toorak. She lived round the corner at a front upstairs flat at No. 178 Toorak Road. This flat was in a small block owned by Accused 1’s grandfather, Mr Ram Shankar.

[48] Ms Tang was not seen at work again after 20 March 2001. She was thought at first to be sick. Various people either from work or simply her friends checked her home, without success. The landlord had not seen her either.

[49] Eventually her friends went to the police, and went back with a police officer to check again. This time the landlord gave a key and her body was discovered on the floor of a bedroom in her flat. That was on Tuesday 27 March.

[50] Accused 1 used to stay with his grandfather in the same block as the deceased. Sometimes he did errands and maintenance work on this building for his grandfather. He was observed to be a friend of Accused 2. Both of them resorted to the Billiard Shop mostly in the evenings. A small group of regulars including the 2 Accused used to go there almost daily. The Billiard Shop was three blocks away in the same street as the deceased’s flat.

[51] If the Accused was not staying with his grandfather in Toorak Rd. he stayed with his mother, Premila Devi Shankar, usually called Maureen, at 68 Brown St., walking distance away from the deceased’s flat.

[52] On Tuesday 20 March both Accused had been at the Billiard Shop. This is not disputed. That night a friend of Ms Tang’s, Mr Ma Zhen Gon, was sleeping when he received a mobile phone call. He saw that it was a call from Ms Tang’s mobile. It was about midnight. He called back but there was no response. Earlier in the evening between 7-8 pm Ms Tang had rung a friend at the Chopsticks Restaurant. This appears to have been the last contact between Ms Tang and her friends. She was working overtime that evening.

[53] The son of the owner of this Billiard Shop remembers both Accused at the shop on the night of 20 March. He was Navneet Kant. He said that both Accused "left maybe after 10 pm."

[54] In his evidence Accused 1 told you that he went straight home to 68 Brown Street and went to sleep. Accused 2 could not remember the exact date but admitted he used to stay at the Billiard Shop till closing and then get home by 10 pm. His father would come back from work at 10.30 pm and the gate would be locked.

[55] Accused 2 said he was working at that time doing private painting and joinery with his cousin brother. He could not recall where he was doing the painting at the time. He was then arrested on 31 March in the morning and taken to the Crime Office at CPS.

[56] Before his arrest, Accused 2 said he had heard there had been a body found, but said he did not know where the body had been found. You will have to assess that comment bearing in mind what had occurred 3 blocks away from the Billiard Shop.

[57] On Saturday 27 March Accused 1 met up with his friend Mohammed Irshad who invited him to stay at his house in 8 miles Narere. He also needed a painter. So Accused 1 went off with him to Narere.

[58] The finding of the body was reported on the TV. Accused 1 saw it with his friend. His friend Irshad said he had better go and check what had happened at his grandfather’s place. In his evidence in chief Accused 1 said:

"I was aware of a body being found at my grandfather’s place. I do not know how I knew. Mohammed told me to go. I said what have I got to check there? So I just stayed there."

[59] Later Accused 1 said he planned to go to his grandfather’s on the following Saturday. But he said he had no money to do so. He was however travelling daily by bus to town from Narere at that time. His painting job was in Flagstaff. He did not say why he did not make the short walk to Toorak from Flagstaff after work to visit his elderly grandfather to see if he needed any assistance in view of the odd news about the dead body. Do you accept his explanation? If not, does that assist you in assessing other parts of his evidence or those of the prosecution witnesses?

[60] Accused 1 admitted being in possession of certain items said to have come from Ms Tang’s flat. He was shown them at the police station he said in evidence and admitted he had them. He said he held them for a friend.

[61] It turned out this friend was one of the prosecution witnesses Leong Sheung, a friend of the deceased. Originally in his evidence in chief Accused 1 said that on 22 March (the Thursday) he came to the Toorak Bake Shop to meet a friend. "He gave me some items and I took them to my mum’s place" he said. They came from the friend’s car. He had been in touch with his friend before.

[62] Accused 1 said he first met him in the middle of February 2001. Accused 1 made the first approach. He was at the side entrance gate of the flats at No. 178. Accused 1 asked Mr Sheung if he wanted to buy vodaphones. Mr Sheung declined but said he had some goods instead for Accused 1 to sell.

[63] With that an understanding was reached and a meeting arranged for a particular date. Mr Sheung gave Accused 1 a Rolex to sell. On 17 March he gave further goods to sell, this time 3 gold chains. On 21 March they met again. This was at 6-6.30 am. Accused 1 asked him to go round in Mr Sheung’s car to 68 Brown Street. The items in Mr Sheung’s car were the items exhibited in court, though Accused 1 did not believe they belonged to the deceased.

[64] Accused 1 said he was not surprised that Mr Sheung should have entrusted him with a Rolex to sell. All of these suggestions were denied emphatically by Mr Sheung. You have seen the two witnesses to this issue, Accused 1 and Mr Sheung. Bearing in mind the prosecution must prove its case, do you believe Mr Sheung or Accused 1? If you believe Accused 1 it throws a considerable suspicion on Mr Sheung, and it must point to a fabrication of the interview statements of both Accused. If you believe Mr Sheung, then Accused 1 has lied to you. Remember what I have said to you about a lie, if proven, that it should be deliberate and material and should spring from a realisation of guilt, before you could use it to assess other evidence in the case.

[65] Lastly, it has been suggested that none of the items came from the flat of the deceased. Various witnesses have identified various items. I will not go through the evidence again. Accused 1 admits being in possession of the items, the electric fan, the stereo, the speakers, the blood pressure machine, the hair drier, the clock, the 2 mobile phones and the 2 chargers, some of which were in a bag. One witness recognised the electric fan which she had offered to buy from Ms Tang but Ms Tang refused to sell. One witness helped Ms Tang and her boyfriend set up their stereo system. One was present when the hair drier was bought by the boyfriend.

[66] This evidence was not conclusive. For instance, as Ms Narayan suggested, some of the items may have been sold prior to the murder. The most the witnesses could say is that they remembered Ms Tang had such an item, and that this exhibit looks like it. However, viewing the whole of the evidence, do you have any reasonable doubt that the hair drier, stereo, speakers, and electric fan, taken together, came from Ms Tang’s flat?

Please retire now to consider your opinions.

A.H.C.T. GATES
JUDGE