State v Bolavagone [2008] FJHC 156; HAC021.2006 (4 August 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 021 of 2006

STATE

v.

NIKO BOLAVAGONE

Hearing: 9th July – 4th August 2008
Summing Up: 4th August 2008

Counsel: Mr. A. Rayawa for State
Ms R. Senikuraciri for Accused

SUMMING UP

Madam Assessor and Gentlemen Assessors. It is now my duty to sum up to you. In summing up, I will direct you on matters of law which you must accept and act upon. You must apply the law as I tell you the law is, in this case.

As far as the facts are concerned however, what evidence to accept, what evidence to reject, what weight to give to certain evidence, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts, or if I appear to do so, it is entirely a matter for you whether you accept what I say or form your own opinions. In other words, you are the judges of fact.

Counsel for the prosecution and the defence have made strong submissions to you about how you should find the facts of this case. They had a duty to do so, in accordance with their roles as counsel. However, you are not bound by what counsel on either side has told you about the facts of the case. You are the representatives of the community at this trial, and it is you who must decide which version of the evidence to accept.

You will not be asked to give reasons for your opinions, but merely your opinions themselves, and you need not be unanimous although it would be desirable if you could agree. Your opinions are not binding on me, but I will give them great weight when I come to deliver my judgment.

On the question of proof, I must direct you as a matter of law that the onus or burden of proof lies on the prosecution to prove the case against the Accused. That burden remains on the prosecution throughout the trial and never shifts. There is no obligation upon the Accused person to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he or she is proved guilty.

The standard of proof is one of proof beyond reasonable doubt. This means that before you can find the Accused guilty of the offence charged, you must be satisfied so that you are sure of his guilt. If you have a reasonable doubt about his guilt, then it is your duty to express an opinion that he is not guilty. It is only if you are satisfied so that you feel sure of the guilt of the accused that you can express an opinion that he is guilty.

Your opinions must be based only on the evidence you have heard in this courtroom and upon nothing else. You must totally disregard what you have read or heard in the media or elsewhere, about the case. Your duty is to apply the law to the evidence you have heard. As prosecution counsel has told you, there is nothing politically sensitive about this case. Although the deceased was murdered on the 19th of May, the evidence led does not suggest that the case had anything to do with the events of 2000.

The Accused person, Niko Bolavagone is charged with the murder of Ravin Prakash, on the 19th of May 2006 at Muanaweni.

Murder is defined by our Penal Code. Murder is committed when a person causes the death of another person by an unlawful act with malice aforethought. Murder has three essential elements which the prosecution must prove:

1. That the Accused caused the death of the deceased;
2. By an unlawful act; and
3. With malice aforethought.
   

In this case, it is not disputed that the deceased died because someone unlawfully wounded him with a sharp instrument. Nor is it disputed that whoever caused his death, did so with malice aforethought.

So the element of the offence which is in dispute is that it was the accused who committed this act on the deceased. Since there was no eye witness at the scene of the killing to identify the assailant, the only direct evidence implicating the Accused is his interview to the police, and his statements after he was charged. I will come to the legal issues in relation to these statements later on in this summing up.

However, as a matter of law, an unlawful act is one which is not justified in law. In this case, it is not in dispute that there was no lawful justification for the attack on the deceased.

The second element of the offence is that the attack caused death. In law you must be satisfied beyond reasonable doubt that the substantial and operating cause of death is the assault on the deceased. In this case if you accept the evidence of Dr. Prashant Samberkar that the deceased died of hemorrhagic shock as a result of cut throat wounds than you may accept that the deceased’s death was caused by the unlawful assault on him.

The third element of the offence is malice aforethought. Malice aforethought means either an intent to cause death or grievous harm to another, or knowledge that death will be caused or grievous harm will be caused, and being indifferent of the consequences.

Again, it is not really in dispute that whoever caused the injuries on the neck of the deceased, must have done so in order to kill him or to cause him grievous harm. Dr. Prashant said that the cut throat injury was caused by a sharp instrument applied with severe force causing death within minutes of the attack. If you accept his evidence, you may accept that the deceased was killed by someone with malice aforethought.

These are the elements of the offence of murder. Before I commence to sum up on the evidence, I have one further legal direction to make. The prosecution relies on various inconsistent stories allegedly given by the Accused in the course of the investigations, to show that he was telling lies to cover up for his own guilt. One example is his alleged statement to S/Cpl. Koresi at the police cells, that he was present at the scene and witnessed the murder, but did not take part in it.

As a matter of law, I must direct you that lies told by the Accused person can be considered by us to decide on the credibility of the Accused, and to decide on the weight to be given to any of the evidence. However before you can do this, you must consider the following. Firstly, you must be sure that what the Accused said was a deliberate lie. Secondly you must remember that people lie for different reasons, sometimes out of fear, or nervousness, or to protect other people. It is only if he lied because of a consciousness of guilt, that you may rely on the lie as evidence which strengthens the prosecution case. Lastly, you must be sure that the lie told was about a material fact in the case.

Finally, the prosecution has led evidence which shows that the Accused was hired to kill Ravin Prakash for 2 rolls of marijuana and $300 by Shiu Vilash and that the reason was that Ravin Prakash had refused to marry his daughter after having a relationship with her.

This is evidence of motive. Motive is not an element of the offence of murder. The prosecution does not have to prove why the deceased was killed. But evidence of motive is usually helpful to help you understand the events surrounding the case. It is a matter for you whether you accept the evidence about motive or not. However Shiu Vilash is not in the dock. Nor is Maciu. Why they were not charged, whether they will be charged later, is not a matter for you to speculate about. Only the Accused is in the dock and it is his guilt or innocence that you must decide on.

I now turn to a summary of the prosecution case.

The prosecution evidence

There are a number of facts in this case which are not in dispute and are agreed. You can accept them as if they were led in evidence from the witness box. It is not in dispute that Ravin Prakash, a mechanic who lived with his family in Muanaweni, Naitasiri came home in his carrier at about 7pm. His brother Anil Kumar was with him in the carrier. Anil got off the carrier when they arrived at their farm and went inside the house.

A few minutes later, Ravin Prakash was attacked with a sharp instrument, causing 4 incised wounds on the body. The fatal wound was on the neck causing death within 5-7 minutes.

None of this is in dispute. The prosecution called 18 witnesses. Much of their evidence is in dispute and you must consider it carefully.

The deceased’s brother Anil Kumar said that he heard his 10 year old son Krishneel call out "Papa! Papa! Someone is hitting uncle." Anil ran out and the person who had been hitting the deceased came towards him. He ran with his son and went inside the house shouting for help. When his neighbor Maneka came, they went out of the house and found the deceased lying where he marked "4" on Photograph 10. They carried his body onto the porch. The deceased only gasped twice after the attack before he died. The matter was then reported to the police. Anil said that when he saw the attacker, he had cloth over his face, but he was a Fijian male, aged perhaps 18, 19 or 20 years old.

Under cross-examination Anil Kumar said that the attacker had been carrying a cane knife, and was shorter than him. He agreed that in a statement he made to the police shortly after the event he told the police he could not tell if the attacker was Fijian or Indian. He said that a few months before his death, the deceased had married a girl from the United States and said he did not know if he had been having an affair with Shiuwa Vilash’s daughter Veena Vilash. However he agreed that during a flood Veena had slept the night in the deceased’s room, that the deceased had been under pressure from her family to marry Veena, and that her family had threatened the deceased.

Krishneel Chand is 10 years old. He said that he was near the carrier when the deceased arrived in it. The deceased opened the door and someone pulled him out and hit him. He did not see with what the deceased was hit, but he was able to say that the attacker had a piece of cloth over his face. He couldn’t say how many times the deceased was hit. He then said that he saw two people attacking his uncle both with cloth over their faces. Both of them pulled his uncle out of the vehicle. He called his father and his father pulled him inside the house.

Under cross-examination he said he did not see whether one or two men attacked his uncle, and then he said he did not see anyone hit him. Finally he said he saw two people attack his uncle.

In law, Krishneel who is only 10 years old is a child. Before accepting any part of his evidence, I must warn you that in the absence of corroboration, it is dangerous to rely on his evidence. In other words you should look for some supporting evidence of Krishneel’s evidence before you accept it. Corroboration is some independent evidence implicating the Accused which is material to the case. Of course Krishneel did not identify the Accused or anyone else, but he did say during his evidence that two men attacked his uncle. There is independent evidence in this case which is capable of supporting or corroborating Krishneel’s evidence on this matter and that is the Accused’s own statement to the police. In part of that statement the Accused is alleged to have told the police that he committed this offence with one Maciu. If you accept the contents of his caution statement and also of his charge statement than these pieces of evidence are capable of corroborating or supporting Krishneel’s evidence that there were 2 men attacking his uncle. As to what weight you can put on the police statements of the Accused, I will be giving you directions on, in this summing up.

The deceased’s mother Basant Kumari said she knew nothing about any relationship between Shiuwa’s daughter and Ravin Prakash. Her previous statement to the police and that of her son Anil were both exhibited as previous inconsistent statements. In both statements, she and Anil have said that they knew about the relationship, that Shiuwa had threatened to hang the deceased and that the family knew about the threat.

As a matter of law, evidence is what a witness says in the witness box. What witnesses say out of court is not evidence. However, experience tells us that if a witness has told inconsistent stories about the same event, you can’t put much weight on his or her evidence. So you can look at their previous statements (D-1 and D-2) to decide what weight you can put on the witness’s evidence in court. Their previous statements will help you to decide on their credibility.

Also giving evidence were police officers who tendered the Accused caution statement and charge statement. Their evidence was that they went to arrest the Accused in Verata where he was at his father’s house, that they brought him to the Nausori Police Station Crime Office, that at 11.37 he was interviewed by Detective Constable Vereimi; that when he was given his rights, he asked to have his father present during the interview, that the interview was then suspended until 12.37 and that it continued in the presence of his father until the 23rd of May when he was charged. He was interviewed by Justice of the Peace Umesh Narayan, who asked him if he had any complaints about his time in custody. The Accused told Mr. Narayan that he had no complaints, but asked for lenient treatment.

The prosecution evidence was also that the police took the Accused to the Nausori Health Centre where he was examined by Dr. Samuela Kalaiwadoko. According to the doctor the Accused had no injuries and made no complaints to him. In his report, under "history related by patient" the Accused told the doctor that he had "knifed" an Indian man. The Accused was then taken to the Nausori Courthouse where he was told of his right to counsel and where he waived that right.

The defence says that the Accused’s statements to police were made up by the police and that the Accused was forced to sign them by threats and assault.

Whether the Accused gave his statements voluntarily and whether the statements set out a set of events in relation to the murder of Ravin Prakash on which you can rely and accept, is a matter for you. Of course if you believe that the interview is false, that it was made up either by the police or the accused, you may think that you cannot put any weight on it. However, if you believe that the Accused gave his statements without force or fabrication, you may think that they set out a version of the evidence which will assist you in deciding on the guilt or otherwise of the Accused. However, the question of what weight you can put on the confessions is a matter of fact for you to decide.

The prosecution led evidence not only of the police officers all of whom denied assault or unfair treatment, but also of the Accused’s father Poate Lewaiono who was present during the interview and charge and who said he witnessed no assault, nor any unfair treatment.

Under cross-examination, he said that he spoke alone to his son at the Muanaweni Police Post, and that Niko had told him he had not committed the offence. He also told his father that he had made an admission to the police because he was afraid of two others one of them being "Maciu" who had threatened to kill him and his father.

In his caution statement, the Accused is alleged to have told the police that he was asked by Shiuwa, to kill the deceased for $300 because the deceased had refused to marry Shiuwa’s daughter. On Friday the 19th of May the Accused came from Natoaika. He was carrying his cane knife. He went to Shiuwa’s house after 6pm and then to deceased’s house and waited under the passion fruit tree smoking marijuana. When the deceased arrived at a little after 7pm, he struck him four times, with his left hand, once on his neck, and the leg, then on his face when the deceased fell to the ground. He then ran away, went to the Talele jetty where he crossed the river to Natoaika Village. He arrived home at 12 midnight, did not eat dinner and went straight to bed.

The interview was suspended for the police to conduct a search at Natoaika Village for the knife and the Accused’s clothes which were found in the dirty laundry basket. The knife was found in the tool room.

When the interview commenced again at the Muanaweni school room, the Accused also told the police that one Maciu had accompanied him to the deceased’s house and had been present when the deceased was attacked. He said he had not told the police this earlier because he was afraid of Maciu. He also said that he had arrived home at about 8pm, that he had soaked the clothes he had worn in the tub and had washed the cane knife in the river. He said that at the time of the murder he had worn ¾ pants, a blue t-shirt, a black and white vest and a pair of gum boots. He said he had changed his clothes at the river bank after he got back to the village in a canoe.

After his interview was over, he gave a statement after charge. His statement reads:

"After 6.00pm on Friday night, I went across the river with Maciu. We walked across the dalo plantation right to the compound of this Indian man who was murdered. Maciu waited beside the breadfruit tree, I waited for the vehicle beside the garage. The vehicle stopped, this man’s brother got out first, who took the bundle of duruka to the house. After that the carrier driver came out, I was standing behind him. He looked back at me then I struck his neck. I struck him on the cheek with the cane knife; I struck his hand and struck his legs. I then ran back along the same route we came through."

As I have said, what weight you put on the Accused’s statements to the police is a matter for you. In assessing weight you should look at other evidence in this case, in particular the evidence of the Consultant Forensic Pathologist Dr. Prashant Samberkar. Dr. Prashant conducted the deceased’s post mortem and said that the deceased died of hemorrhagic shock as a result of cut throat injuries. The fatal injury was the injury to the neck which was probably inflicted with a sharp instrument such as a knife, by a left-handed person. He did not altogether rule out that a right-handed person could have inflicted the injury but said that it was probably a left-handed person. He said that there were 6 external injuries and four incised wounds the fatal blow being the 14cm x 10cm injury to the throat, tailing across to the right cheek which indicated the direction of the blow, that is left to right. He said that during the attack the victim was probably facing the assailant, that the attack took 5 or 6 minutes, that injuries 4 and 5 to the neck and face were delivered with severe force, that the sharp instrument used would not be blunt because there was no bruising found on the edge of the wounds and that the cane knife seized (Ex. 4) was a blunt sharp instrument. He said that in his opinion the first injury inflicted was the one on the elbow, the second on the face, the third on the neck and that the deceased fell during the attack. He said he could not rule out Ex. 4 as the sharpness of the weapon would have been affected by the lapse of time of 2 years since the offence was committed. He said that Ex. 4 is now rusted which would affect sharpness.

He said that he did not at any time before he gave evidence discuss how the offence must have been committed with the police officers and that the post mortem commenced at 11am on the 22nd of May 2006.

Also giving evidence was the Forensic Officer at the Central Police Station Elizabeth Peters who tested samples of the Accused’s and deceased’s clothes and sent them to Australia for further DNA testing. As you will recall she found blood on the Accused’s ¾ shorts and t-shirt. On testing in Australia, there was an inadequate sample for DNA testing on the shorts, and blood was identified on the collar of the t-shirt that was not the Accused’s blood. However the test was unable to conclude that the Accused’s clothes had the deceased’s blood on them. The results of the DNA test are inconclusive as to the presence of the deceased’s blood on the Accused’s clothes and you may consider that they do not really assist you in deciding which version of the evidence to accept. However that is a matter for you to decide. According to Elizabeth Peters, she found that there was a weak positive for blood on the Accused’s clothes but was unable to say that the blood was the deceased’s.

Now as you are aware the Accused says that at the time the deceased was killed, he was with Osea Tikonatabua on the Dawasamu bus and that therefore he had an alibi. In law, when an Accused person wishes to raise an alibi, he or she must give notice of that alibi with names and addresses of his witnesses within 21 days of the transfer of his case to the High Court. The reason for this is that the prosecution can then investigate the alibi and take statements from the alibi witnesses to ensure that they have not charged the wrong person.

In this case no alibi notice was given to the prosecution within 21 days of the transfer, but I allowed the evidence to be called because it appears that the magistrate in the lower court had forgotten to warn the Accused about the need to give alibi notice. In fact notice was given in April 2007 when the Accused was represented by counsel. The prosecution says that this was a late fabrication of a false alibi. In considering what weight to give to the evidence of alibi, you are entitled to take into account the late filing of the alibi.

The prosecution called evidence to rebut that alibi and called Ilaisa Raivanua. This witness said that he was on the 6 o’clock bus from Nausori to Talele Jetty and that Niko whom he knew very well because he lived at Natoaika Village too, was not in the bus.

It was suggested to him that he was mistaken but he maintained that he was on the bus, that he recognized all the people on the bus and that the Accused was not on it. He did not see the Accused on the bus, nor did he see him at the fundraising event for one of his children at the village that night but that he did see Maciu at about 9.30pm or 10pm that night in the village.

That was the case for the prosecution. At the end of the prosecution case you heard me explain several options to the Accused. He could have given sworn evidence, made an unsworn statement or remained silent. He was given these options because he does not have to prove anything. The burden is on the prosecution at all times to prove his guilt. He chose to give sworn evidence and to subject himself to cross-examination. You must give his evidence careful consideration.

He said that he did not know the deceased, that on the 19th of May 2006 he went to Suva Market with Emoni, that he went to Nausori where he met Osea and that they played billiards together. They then went to the Nausori bus stand to wait for the 6 o’clock bus to Baulevu. He sat in the back seat with Osea. They arrived at Talele jetty after 7pm. Osea went to the shop to buy bread, then they walked to the jetty and took a boat which went to Natoaika. He saw some children swimming in the river and recognized some of them. He then went straight to Eveli’s house, and went to sleep without eating dinner. The next day he went to visit his father at Verata. On Monday he was arrested by the police. His father was present during the interview. He said he was assaulted by DC Vereimi who smashed his head on the desk causing injury to his inner lip, and by DC Lepani who kicked him on the ribs causing him to fall to the ground. He said he confessed to a crime he did not commit out of fear of the policemen and that the police made up the interview and forced him to sign.

He agreed he did not complain to anyone about the assault and the injury and said that this was because it was the first time he had been accused of such a serious crime. He said the doctor did not ask him if he had any injuries and he agreed that he did not tell the Justice of the Peace about the ill-treatment by the police either. He said also that he had confessed because Maciu had threatened to kill him and his father.

The Accused called several witnesses. Susana Yatulau gave evidence that at some time in the evening of the 19th of May 2006, the Accused came home and went to sleep without dinner.

Osea Tikonatabua gave evidence that on the 19th of May 2006 he was with the Accused playing billards and that they both caught the 6.30pm Dee Cees bus to Talele Jetty. He said that they sat in the middle of the bus, and that the bus arrived at Talele Jetty at 7.30pm. They then boarded a boat driven by Vinesh. It went first to Deladamanu and then to Natoaika where children were swimming. It was after 8.30pm. Both Osea and Niko helped to pound grog, then they drank grog with some youths. After a while the Accused went home.

Under cross-examination, the witness Osea said that the bus they caught was not the Dee Cees bus but was the Dawasamu bus, that he was sure that the Accused had drunk grog at the fundraising in the village and that it was after 8.30pm when they arrived at Natoaika. However he then agreed that he was not sure that all of this happened on the 19th of May 2006, that it might have happened the day before the Accused was arrested and that he might have got the dates mixed up.

Also giving evidence for the defence was Vonijese Nimate whose evidence you heard only today. He said that he was on the 6.30pm Dee Cees bus from Nausori Bus Stand to Talele Jetty and that he saw the Accused and Osea in the bus and at the jetty. He said that he was in the boat with them and that all three of them got off the boat at Natoaika after 8pm.

Under cross-examination he agreed that he knew that Niko was arrested for the murder at Muanaweni but that he didn’t tell the police that he was with Niko that night because he was afraid. He denied concocting a false alibi with Niko and said he had not met Niko when he was on bail.

Also giving evidence were Rupeni Lagilagi and Sakiusa Moroca, both of whom said that they had been swimming in the river at Natoaika after 6.30pm on the 19th of May 2006, and that they saw Niko, Osea and Vonijese arrive at the village in Vinesh’s boat that evening. Rupeni said the boat which dropped Niko passed by half an hour after he started swimming that night. Sakiusa could not put a time to it but said he did not see the boat go past them but that it went on to Deladamanu after dropping Niko, Osea and Vonijese at Natoaika.

Finally, you heard the evidence of Emoni Davui who said that he was with the Accused all day on Thursday, that he was with the Accused on Friday at the Suva Market, that they split up at Nausori and that he next saw Niko with Osea and Vonijese just before 7pm at Natoaika Village.

Also tendered were the statements of witnesses showing that Shiuwa had harboured an intent to have the deceased killed. These statements were tendered by consent – D5, 6 and 7 and may be accepted by you even though the witnesses were not called.

And that was the case for the defence.

Summaries

The prosecution case is that you should accept the contents of the Accused’s caution statement and charge statement, not only because they were given by the Accused voluntarily, but also because the statements are consistent with the other evidence in the case. In particular, the account given by the Accused to the police is consistent with the crime scene, with the blood found on the Accused’s clothes, with the way the injuries were found on the deceased’s body and the Accused’s own confessions to the doctor after he was charged.

The prosecution says that the Accused committed this offence because he agreed to murder Ravin Prakash on the request of Shiu Vilash who offered to pay him $300. The prosecution says that this was the Accused’s motive, that the contents of the interviews are true, and that the Accused’s alibi is a late concoction fabricated by the Accused and his friends to exonerate the Accused. The prosecution asks you to convict the Accused.

The defence position is that the statements in the caution interview and the charge, are a concoction by the police, which the Accused was forced to sign. The defence says that there are inconsistencies in the evidence surrounding the case which give rise to a reasonable doubt, such as the bluntness of the cane knife (Ex. 4) and the non-conclusive nature of the DNA tests on the Accused’s clothes.

The defence invites you to accept the evidence of the Accused’s alibi, that at the time of the alleged offence the Accused was in the bus from Nausori to Talele Jetty with Osea and Vonijese and that therefore the deceased was murdered by someone else.

Analysis

You may think that the only question for you to determine is the identity of the person who killed Ravin Prakash. If you accept the evidence of Dr. Samberkar, then you can have no doubt that Ravin Prakash was killed by someone, and that he was killed with malice aforethought, that is with intention to kill him.

So the question in dispute is whether it was the Accused who killed him. If you accept the contents of the caution interview and charge statement as being a reliable account of what occurred and you find that this account is consistent with all the other surrounding evidence then you must ask yourselves whether you are satisfied beyond reasonable doubt that the Accused murdered Ravin Prakash.

In considering the Accused’s alibi, remember that it is not enough if you believe that his is a false alibi. You must also be satisfied beyond reasonable doubt that it was the Accused who killed the deceased.

You have heard a lot about the motive for the alleged killing. Only the Accused Niko Bolavagone is in the dock today, not Maciu or Shiu Vilash. Do not speculate about why they have not been charged, or whether the prosecution intends to charge them when this trial is over. That is not your concern. Ask yourselves only whether the Accused is the person who killed Ravin Prakash.

If you are satisfied of that beyond reasonable doubt you must find him guilty as charged. If you have any reasonable doubt about it, you must find him not guilty. Your possible opinions are: Guilty or Not Guilty.

You may now retire.

Nazhat Shameem
JUDGE

At Suva
4th August 2008