State v Lebobo [2004] FJHC 517; HAC016S.2002S (6 April 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Cr. Action HAC0016.2002S

THE STATE

V

NAVAU LEBOBO

Fiji High Court, Suva
6 April 2004
Gates J

SUMMING UP

Mr B. Solanki and Mr Qira for the State
Ms P. Narayan for the Accused

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 applying those directions and to give me your opinions as to the Accused’s guilt or innocence.

[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 the trial upon the State. In our system of justice there is a presumption of innocence in favour of an Accused which is enshrined in the Constitution. The State brings the charges against the Accused. Therefore it is for the State to prove each charge against the Accused. 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 the Accused is guilty of any of the charges you must be satisfied so that you are sure of his guilt beyond reasonable doubt. If you consider him innocent of any of the charges you must give your opinion that he is not guilty of that charge. If you entertain a reasonable doubt of guilt, you must also give your opinion that the Accused is not guilty of that charge.

[6] The Accused is charged with one count of murder, one of rape, and one of robbery with violence. But you must consider each of the charges separately, when you examine the case in your deliberations. You are not obliged to find the Accused guilty either on all of the charges or not guilty on all. Look at the evidence as it affects each of the charges separately. Your opinions about the charges could differ from one to the other, depending on the view you took on each of the charges and the evidence available on each.

[7] The Accused elected to remain silent, and called one witness in his defence. In choosing not to give evidence the Accused exercised his rights and no adverse inference can be drawn from that election. There is no obligation on an Accused to give evidence in his own defence. The fact that he has not given evidence himself proves nothing one way or the other. It does nothing to establish his guilt. On the other hand it does nothing to rebut, contradict or explain the evidence put before you by the State.

[8] You must decide this case upon the evidence presented to you. It will be your task to discover which witnesses have given honest and accurate evidence and which may not.

[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 opinions orally on each of the charges against the Accused, which opinions 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 sound and rational opinions if you ask yourselves why you have come to those opinions.

[11] Those opinions 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 sketch of the scene, the photographs, the wooden baton, the post mortem report, the caution interview statement and the charge statement. In addition, you will consider the evidence that went in by consent of both parties, listed in the paper headed agreed facts. Following correct procedure counsel have agreed certain issues or facts. These are therefore not in dispute in this trial. Such agreements properly help to shorten the proceedings. Concentrate on the issues that are disputed.

[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 all of these 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 with all of the evidence in the case. You can accept part of a witness’ testimony and reject other parts. A witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and be wide of the mark about another.

[16] If you have formed a moral opinion on the conduct alleged in this case, put that to one side. Consistent with your oath, you should put away both prejudice and sympathy. Ignore for the purposes of your deliberations, the horror of what took place here. Approach your assessment of the evidence dispassionately. Bring a cool detachment to your task of examining whether the case against the Accused has been proved before you, proved with evidence on each of the three counts.

[17] I turn now to deal with what the prosecution must prove. The Accused is charged on count 1 in the information with murder which is an offence in our Penal Code.

[18] There are 4 relevant elements that the prosecution must prove. First it must be proved beyond reasonable doubt that the deceased Badri Maharaj died on 9 June 2002. This element is part of the agreed facts and is therefore admitted by the Accused. But you have heard evidence also from the Scenes of Crime officer ASP Rokobera who saw the deceased lying dead on the floor of his bedroom at 68 Rewa Street.

[19] His death was subsequently confirmed by the pathologist Dr Merelita Goneyali who estimated time of death at around 4 am on 9 June 2002. Dr Goneyali stated the cause of death was severe head trauma due to multiple blunt impacts. This fact was also admitted by the Accused in the agreed facts.

[20] The second element which the prosecution must prove is that the deceased’s death was caused by an unlawful act, an act without justification. It was clear that the deceased received a prolonged and forceful assault to his face, head, and upper body when you consider photograph 51 and the evidence of Dr Goneyali detailing all of the injuries external and internal that she found on Mr Badri’s body. You can bear in mind also the disarray of the room in which he was found and the blood on the bedding near his body. You may conclude from the injuries to his body and from the surrounding circumstances that his death was neither accidental nor had it occurred lawfully.

[21] Thirdly the prosecution must prove to you that these unlawful acts were the acts of the Accused. This issue is disputed. I shall refer to the identification evidence further on.

[22] Fourthly and lastly, it must be proved beyond reasonable doubt, as indeed must all of the elements of murder be proved, that the Accused killed the deceased whilst acting with malice aforethought. Malice aforethought is a legal term covering three possible intents of mind. It must be proved that the Accused either intended to cause the death of the deceased, or that he intended to cause the deceased grievous bodily harm or that he knew that his acts, the continuous punching and hitting with the wooden baton or stick would probably cause the death of the deceased or cause grievous harm, and that the Accused was indifferent as to whether or not death or grievous bodily harm would be caused, or even if he wished it would not be caused.

[23] Grievous harm is defined in the Penal Code to mean any harm which amounts to a maim or dangerous harm, or seriously or permanently injures health or which is likely so to injure health, or which extends to permanent disfigurement, or to any permanent or serious injury to any external or internal organ, member or sense.

[24] Whoever committed these acts on the deceased, you may think, did so, intending at the very least to cause Mr Badri really serious bodily harm. You could conclude that when you see photograph 51, and when you recall the pathologist’s evidence of the number of bones in Mr Badri’s body that had been broken, some bones broken in several places, his twisted face, and the extent of the facial and internal brain damage.

[25] Count 2 of the information alleges rape by the Accused upon Mrs Maharaj. First it must be proved beyond reasonable doubt that the Accused had sexual intercourse with the complainant. The physical act of intercourse must be proved, that is that the Accused’s penis penetrated the complainant’s vagina. The slightest penetration is sufficient. It is not necessary to prove ejaculation. It has not been suggested to the complainant in cross-examination that this act of penetration did not take place. The complainant told you the full act of intercourse did take place.

[26] Second, it must be proved that when the Accused had sexual intercourse with the complainant he did so without her consent. The complainant says she told him when it was clear he intended to have sex with her "Leave me, leave me, I am a mother." Remember she was 76 years old and he only 28 at the time. Consider all of the circumstances in deciding whether the complainant gave her consent to sexual intercourse. At the close of her cross-examination she said "I was in pain. He assaulted me a lot. I was bleeding. I was not able to talk." It had not been suggested to Mrs Maharaj in cross-examination that she did consent. You may therefore find this element straightforward and conclude she did not consent to the act of sexual intercourse. Wisely she may have had the presence of mind to relax and thus to avoid injury. Or was it that she was simply too old and too weak and shaken from the assault already administered to her by the Accused to offer any resistance.

[27] Thirdly it must be proved that the Accused either knew that she did not consent or was reckless as to whether she consented. In the agreed facts the Accused admits that he forcefully entered the house of Mr & Mrs Maharaj on the day in question, that he stole money from the house, and that he ""did slap the face of Chandra Wati Maharaj." Again you must consider whether the Accused would have known that the elderly Mrs Maharaj was not consenting to having sex with himself, an intruder in the middle of the night. Consider all of the circumstances. If you are not sure that he would have realised she was not consenting then go on to consider whether the Accused might have been reckless as to whether she consented. Did he genuinely believe she was consenting? If so, or you are not sure, he is to be acquitted on this count. If you do not believe he thought she was consenting when you consider all of the circumstances, you should convict him of rape. Remember the evidence was that Mrs Maharaj was picked up by the Accused from the floor of the bedroom where she lay after the initial assault on her. She had to be carried by the Accused into the next room where he had intercourse with her.

[28] Lastly you must be sure beyond reasonable doubt that it was the Accused that raped Mrs Maharaj.

[29] On count 3, robbery with violence, the prosecution must prove several elements. First it must be proved to you beyond reasonable doubt that the Accused stole the cash as set out in the information from the complainant Mrs Maharaj. The Accused in the agreed facts admits stealing money from the house at 68 Rewa St. Stealing here means that the Accused took the money from the glass or the China bowl in the kitchen that is the FJD150, AUD200 and USD100. You need to be satisfied that this was Mrs Maharaj’s money, that the Accused took it from her, and that when the Accused did so he knew he was appropriating property which belonged to the complainant, property which he had no right to, and at the time he took it, that he intended to deprive the complainant of it permanently.

[30] The evidence confirms that the Accused went with his friend Epeli from the settlement to the Thomas Cook Money Exchange to change the foreign currency. This money appears to have been spent on a drinking spree in the Caesar’s Palace Nightclub. You may feel when this money was taken the Accused intended to keep it permanently from the complainant and not give it back, and that therefore he stole it.

[31] Second you must be satisfied that the stealing was carried out whilst the complainant was put in fear of the use of force, or that force was used against her. The Accused admits in the agreed facts that he "slapped" Mrs Maharaj. Mrs Maharaj gave a more detailed account of the assaults upon her.

[32] The complainant said she saw the Accused take money from her purse and from the glass in the kitchen. In the kitchen she kept US$ and A$, about $2-300 in a glass. She had about F$100 or so in her purse and some change. Her evidence on this point went unchallenged.

[33] Lastly on this count you need to be sure beyond reasonable doubt that this robbery was committed by the Accused. Has the Accused been sufficiently identified? Yesterday in her closing address Ms Narayan said this offence was admitted. Nonetheless examine the evidence carefully matching it with the elements that I have told you about. In view of the lack of dispute on these matters you should be able to reach your opinions on count 3 without difficulty.

[34] I should just mention the use of the screen. The screen was used during the evidence for Mrs Maharaj. This should not be taken as a matter reflecting badly on the Accused. The screen was used to make the giving of evidence by this elderly frail witness less traumatic, that is all.

[35] In all sexual cases, it is necessary that you be directed on the need for corroboration. You should look for corroboration of the evidence given by the complainant Mrs Maharaj that she was raped by the Accused. In the absence of such corroboration it is dangerous to convict on the evidence of the complainant alone. Having warned yourselves of the dangers of convicting on the complainant’s evidence alone without corroboration, you may still convict the Accused on the strength of Mrs Maharaj’s evidence if you consider her evidence alone to be accurate, reliable and credible.

[36] The corroboration required is evidence which is independent of Mrs Maharaj’s evidence and which implicates the Accused in some material way relevant to the charge. I shall indicate the evidence which is capable of supporting Mrs Maharaj’s allegation of rape sufficiently, if accepted by you, as corroboration.

[37] Epeli Balemaimakogai was called by the prosecution as their second witness. He was a 20 year old man who lived in the same settlement as the Accused. He knew the Accused who he said had stayed in the settlement at Tuitalevu, Flagstaff for a long time. They knew each other very well and used to go around the settlement drinking grog together.

[38] On 13 June 2002, a few days after the crimes were discovered at 68 Rewa Street, the Accused called Epeli to go to town to change some foreign currency. After this was done, the Accused invited Epeli for some drinks at a night club. The Accused treated him and several others to free drinks for a long time, perhaps for as long as 4 hours.

[39] Then, in his cups or whilst getting drunk, the Accused started to tell Epeli what had happened at Rewa Street at Sunil’s father’s place. Sunil’s father clearly meant Mr Badri Maharaj, though the name was not given in evidence by this witness. Sunil used to visit the settlement which was close by and call people to work for him in his business. Epeli said:

"He (the Accused) told me what he did that night. He went inside the house of Sunil’s father. He was a bit drunk when he went inside. He demanded for some cash from him and started to punch the old man and then he told me that he slept with the husband’s wife. This was in Rewa Street."

[40] Epeli told you how scared he was by this revelation and that he tried to find a way to get away as soon as he could. If you accept Epeli as a truthful and accurate witness his evidence of the Accused’s volunteered admission would corroborate the evidence of Mrs Maharaj that she had been raped by the Accused.

[41] In considering corroboration, first you assess whether the witness to be corroborated, Mrs Maharaj, has given evidence that is credible or capable of belief. Do you believe Mrs Maharaj’s account? If you do, then you go on to consider the corroboration evidence to see if it supports her testimony.

[42] Next there is the evidence of Detective Constable Semisi Bokadi from Raiwaqa Police Station. On 19 June 2002 he interviewed the Accused under caution at the Sexual Unit office in Nabua. He recorded the questions and answers during the interview in Fijian, which were translated into English for you. The Fijian record was signed at various places by the Accused. It was put to this witness that the Accused had denied the offence throughout, and that the interview had been made up. It was also suggested in closing address by Ms Narayan there were differences in the account given by Mrs Maharaj and that recorded as answers by the Accused. You can consider these matters put to you in closing address by Ms Narayan in deciding whether this witness and the other police officer present D/Sgt Isei Ecela were or were not, telling the truth about this interview.

[43] The Accused told the police of his assault on the Indian lady, of how he punched her twice on the face, strangled her neck tightly, and threw her back on the bed in the first room. The lady’s nose was bleeding he said. After dealing with the old man he came back to the lady and "carried her from where she was lying down" to another bedroom. He said he did this in order to rape her.

[44] He said he tore her dress after putting her on the bed in the other room and then had sex with her. She did not refuse he said because she was very weak. I have not dealt with all of the details he gave to the police. If you accept that the police witnesses account of the taking of the interview was correct, and that the admissions were given voluntarily by the Accused and not fabricated by the police, the evidence of those admissions by the Accused could also constitute corroboration of the evidence of Mrs Maharaj about the rape.

[45] Lastly, there is the evidence of D/Inspector Tevita Lesu. He accompanied the Accused on 19 June 2002 on a reconstruction of the scene. He said the Accused willingly went to show him what he did that day. Inspector Lesu said he was not part of the investigation team on 9 June 2002. He had no conversation with the interviewing officer about what the Accused had said during his interview. He said the Accused spoke in the Bauan dialect and the Accused appeared to understand what was said to him in Bauan.

[46] The Accused told the Inspector that as for the old lady he assaulted her and forced her between the wall and the bed in the same room where he had assaulted the old man. He placed a mattress on her when she was on the floor. Later after further assaults on the old man with the stick, he lifted her and carried her into the second room.

[47] He then said the Accused told him that:

"He put her on the bed, tore her dress, removed his trousers and underpants and climbed on top of the old lady. He then had sexual intercourse with her."

[48] If you accept this witness’s evidence, here was another account which materially supported the evidence of Mrs Maharaj that the Accused had had sexual intercourse with her. Neither in his account to Inspector Lesu or in that to the police interviewer is it suggested by the Accused that what he did was anything less than sexual intercourse, that is penetration by him of his victim.

[49] Dr James Fong was called by the prosecution. He was a doctor with 8 years experience as a specialist in the field of obstetrics and gynaecology. He did not examine Mrs Maharaj. He exhibited the medical report on Mrs Maharaj compiled by a doctor who has since migrated, Dr Nelsine Bentley. This report was not the A & E report on this patient, but one specifically to deal with matters gynaecological.

[50] Dr Bentley had made a vaginal and rectal examination at 2.30 pm on 9.6.02, which revealed that there were no signs of sexual intercourse. Dr Fong said "It is possible that there were no signs of sexual intercourse. It is possible. It is possible if the patient were having regular intercourse or if she had maintained the presence of mind to remain calm and not resist and then there would be no injuries."

[51] You have the accounts of what happened, from Mrs Maharaj, and from the Accused in his two accounts one to D/Const Semisi in interview and one to Insp. Lesu at the reconstruction. There is no evidence of any resistance by Mrs Maharaj, who was 76 years old at the time, and who was weak from the Accused’s assault upon her. Does this explain why there were no injuries found in this region of her body? It is a matter for you to weigh.

[52] You have to decide this case on the evidence presented to you by the prosecution and the defence. The defence called one witness Losana Tulele who said the Accused stayed at her house at Tuitalevu from 1998, though she knew him since he was a little boy. She said he was educated up to class 5. Sometimes he was slow or silent she said. She confirmed he understands Fijian and the Bauan dialect.

[53] If you considered a prosecution witness manifestly unreliable or inaccurate, you could disregard part or all of that witness’s evidence without more. However if you were convinced a witness was telling the truth and was accurate in what he or she had said, and there was no contradictory evidence to oppose it, then you should rely on that witness’s testimony, because you have accepted it and because there has been no evidence setting up a different and credible opposing account.

[54] There is no evidence suggesting anybody else intruded into Mrs Maharaj’s house. The Accused never told Epeli either that anybody else was involved. Nor did he suggest so to D/Const Semisi or to Insp Lesu. He admits in the agreed facts that he was there that night, slapped Mrs Maharaj, and stole the money. He denies his interview statement. Was any alternative account or explanation put in cross examination to the police interviewers or to Insp Lesu?

[55] Mrs Maharaj identified the Accused on the identification parade, and his fingerprint was found inside the house, on the bowl. There is no evidence before you suggesting anyone else was responsible for the murder and the rape. The Accused now acknowledges his responsibility for the robbery.

[56] As an eye witness you may think, though she is now a frail 78 year old, Mrs Maharaj did not come across as a weak and confused character. Stunned by events she clearly was, but was she confused by the circumstances of the robbery or indeed did she not know as a mother of children whether she had been penetrated? You will have to decide these matters to arrive at your opinions.

Please now retire to consider your opinions.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused: Legal Aid Commission, Suva