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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
Criminal Case No: HAC 131 OF 2006
STATE
V.
WATESONI TABAKI NATA
Hearing: 22, 23, 24, 27, 28, 29, 30, 31October 2008 and 5, 6, 7, 10 November 2008.
Counsel: Ms V. Lidise and Mr. Vodokisomolone for the State
Mr. Tunidau and Mr. Koya for the Accused
SUMMING UP
Ladies and Gentlemen Assessors,
It is now my duty to sum up to you in this case.
1] Our function in this trial – that is, my function as judge and your function as Assessors – have been and remain quite different. Throughout this trial the law has been my area of responsibility, and I must now give you directions as to the law which applies in this case. When I do so, you must accept those directions and follow them.
2] It is also my function to remind you of the prominent features of the evidence. However, it has always been you responsibility to judge the evidence and decide all the relevant facts of this case. You and you alone must decide what evidence you accept, what evidence you do not accept and what evidence you are not sure about; and when you come to consider your opinion, you and you alone must do that.
3] You do not have to decide every point which has been raised; only such matters as will enable you to say whether the charge laid against the Accused has been proved. You will do that by having regard to the whole of the evidence and forming your own judgment about the witness, and which evidence is reliable and which is not.
4] The evidence consisted of the oral testimony of witness who were called to the witness box.
5] The Accused chose to give evidence, and you must judge that evidence by precisely the same fair standards as you apply to any other evidence in the case.
6] You must decide this case only on the evidence which has been placed before you. There will be no more. You are entitled to draw inferences, that is come to common sense conclusions based on he evidence which you accept, but you may not speculate about that evidence there might have been or allow yourselves to be drawn into speculation.
7] The facts of this case are your responsibilities. You will wish to take account of the arguments in the speeches you have heard, but you are not bound to accept them. Equally, if in the course of my review of the evidence, I appear to express any views concerning the facts, or emphasis a particular aspect of the evidence, do not adopt those views unless you agree with them; and if I do not mention something which you think is important, you should have regard to it, and give it such weight as you think fit. When it comes to the facts of this case, it is you judgment alone that counts.
8] You are quite free to discuss the evidence between yourselves before reaching your conclusions.
9] You may only consider the evidence you have heard in this trial before reaching your opinions whether the Accused is guilty
10] In closing addresses to you by prosecution counsel and the defence counsel, the evidence in this case was reviewed in great length. I will not go over the evidence at great length again as this must still be fresh in your minds. As far as their submissions are concerned you must give them your best consideration. You have been told to use your common sense and if I may add, your own personal experience in dealing with matters of importance in your daily affairs. It is for you to assess and evaluate all the evidence from which you will have to decide what are the true facts in this case. It is only then will you be able to say where the truth really lies.
BURDEN AND STANDARD OF PROOF
Burden of Proof
11] In this case the prosecution must prove that the accused is guilty. He does not have to prove his innocence. In a Criminal trial the burden of proving the accused guilt is always on the prosecution. There is no burden on the accused to prove his innocence. The accused was under no obligation to give evidence and if, as in this case, he offered a defence to a charge, it is not for him to prove that defence, it is still for the prosecution to prove that he is guilty.
Standard of Proof
12] How does the prosecution succeed in proving the accused’s guilt? The answer is – by making you sure of it. Nothing less than that will do.
13] Before you are entitled to convict, the prosecution must have proved each of the accused guilt beyond reasonable doubt. If guilt has been proved to that extent, then, and only then will it be your duty to convict. Unless you are sure of guilt beyond any reasonable doubt, it will be your duty to acquit.
14] If after considering all the evidence you are sure that the accused is guilty, you must return an opinion of ‘guilty’. If you are not sure, your opinion must be ‘Not Guilty’
15] This case is about a plan to blow up the Nadi Airport Terminal Building in effort to destabilize the Mahendra Chaudry led government who came to power after the 1999 General Election.
The Prosecution says that JOSAIA WAQABACA initially went to the Western Division and met with Navitalai Naisoro. At this meeting, NAVITALAI NAISORO said to JOSAIA WAQABACA, Joji Bakoso, Maciu Navakasuasua and some others that they had to destroy the Nadi Airport with explosives.
The Prosecution says that JOSAIA WAQABACA later acquired some explosives from Maciu Navakasuasua, who they say delivered 9 gelignite tubes placed inside a small carton to his home in Suva.
It is the prosecutions case that JOSAIA WAQABACA was later instructed by NAVITALAI NAISORO to go to Nadi and collect a payment of $30,000 for the blowing up of the Nadi International Airport.
JOSAIA WAQABACA then recruited Savenaca Tomasi to help him with the job.
The Prosecution says that after JOSAIA WAQABACA received a telephone call from NAVITALAI NAISORO who instructed him to go to Nadi and collect the $30,000, JOSAIA WAQABACA hired a renal car from Central Rentals on the 5th August 1999, and drove with Savenaca Tomasi to Nadi.
When they arrived in Nadi on 5 August 1999, JOSAIA WAQABACA and SAVENACA TOMASI went to the Nadi Airport and identified the electrical switch board room inside the terminal building which they thought would be the best place to plant their bomb.
In relation to the 4th Count, the Prosecution says that on 14 August 1999, JOSAIA WAQABACA and Joji Bakoso drove to Nadi in Sakeasi Butadroka’s car. The purpose of the trip was to plant explosives in the terminal at Nadi International Airport.
While they were on their way, JOSAIA WAQABACA received a call from NAVITALAI NAISORO who told them to meet him at the Nadi Airport club.
The Prosecution says that JOSAIA WAQABACA arrived at the Nadi Airport Club at about 9pm, and that SAVENACA TOMASI arrived by taxi one hour later.
The Prosecution says that at sometime after JOSAIA WAQABACA and SAVENACA TOMASI left the Nadi Airport Club, JOSAIA WAQABACA dropped SAVENACA TOMASI off at a bus stop so he could retrieve some explosives which he had hidden nearby.
It is the Prosecutions case that at about midnight, JOSAIA WAQABACA and JOJI BAKOSO stopped at a Shell Service Station and purchased 3 containers of diesel, which they thought would accelerate the fire from the impending explosion at the airport.
After that, the Prosecution says that JOSAIA WAQABACA and JOJI BAKOSO continued to drive around until they arrived at the Nadi Airport at 2am. There they waited for SAVENACA TOMASI to arrive. However, he did not show up.
The Prosecution says at about 3.30am, JOSAIA WAQABACA and JOJI BAKOSO felt that they could no longer wait for SAVENACA TOMASI, so JOJI BAKOSO decided to take over. JOJI BAKOSO then took the explosives into the Airport Terminal toilet, while JOSAIA WAQABACA stayed outside and kept watch.
After about 15 to 20 minutes, the Prosecution says that JOSAIA WAQABACA suddenly saw a dozen or so Fijian women in the area, which made him frightened. He realized that if there was an explosion, all of these women would most likely die in the blast.
Believing that this would defeat his cause, JOSAIA WAQABACA rushed into the Airport Terminal toilet and said to JOJI BAKOSO, who had placed the explosives on a toilet seat, that the plan was off!
The Prosecution says that JOSAIA WAQABACA then took the explosives back to the car and left the airport.
From the evidence you have heard, it appears that the fact that JOSAIA WAQABACA and JOJI BAKOSO put the explosives at the Nadi Airport Terminal Building is not in dispute.
However, you must decide whether the facts I have just mentioned are in fact proved, although you may have no difficulty in deciding that JOSAIA WAQABACA and JOJI BAKOSO did attempt to plant explosives in the Nadi Airport, before they aborted their plan at approximately 3.30 or 4.30 in the morning on 15 August 1999.
It is the prosecution case that the Accused was not present when JOSAIA WAQABACA attempted to destroy the Nadi Airport by explosives, but that he is nevertheless guilty of the offence because he procured its commission. Procuring means that he intended that JOSAIA WAQABACA should commit he offence and took steps to ensure that he did, that is by paying him $2000 to do so.
Before you can convict the Accused of this offence you must be sure:
The first count
20] The first matter that you must deal with in this case is did the Accused procure JOSAIA WAQABACA on 6 August 1999 in Nadi, to unlawfully and with intent to destroy property, by putting explosives at the Nadi International Airport Terminal building. Shown as the First Count.
In relation to the First Count, the Prosecution says that after JOSAIA WAQABACA and SAVENACA TOMASI left the Nadi Airport on 5 August 1999, they drove to Lautoka and spent the night in a room at the Waterfront Hotel. On the next day, the 6th August 1999, JOSAIA WAQABACA and Savenaca Tomasi drove to the Dominion Hotel in Nadi to meet Navitalai Naisoro. [p.10]
When they arrived at the Dominion Hotel, they were met by Navitalai Naisoro, who was standing outside. NAVITALAI NAISORO told him to meet him in room 121. JOSAIA WAQABACA then parked the rental car outside of room 121. After that, JOSAIA WAQABACA went inside room 121, while SAVENACA TOMASI waited outside in the car. The prosecution says that it was Navitalai Naisoro who opened the door and let him in. [p.11]
It is the Prosecutions case that initially, only JOSAIA WAQABACA and NAVITALAI NAISORO were in room 121. However, Navitalai Naisoro then said to JOSAIA WAQABACA "this is where you will see who will be the carrier of the money." After about 2 minutes, the Prosecution says that the Accused entered the room from the sliding door and pulled out a bundle of cash. The Prosecution says that this is when the Accused said there was $4,000 and that the rest would come later. The bundle of cash was then thrown on the bed.
The Prosecution says that Navitalai Naisoro took $2,000 and told JOSAIA WAQABACA to take the remaining $2,000 which he should use to by the materials needed to blow up the airport. The Prosecution also says that the Accused said that the best time to blow up the airport was at 2.30am because only 2 or 3 security officers would be around.
The Prosecution says that this is when the Accused is alleged to have procured JOSAIA WAQABACA to put explosives at the Nadi International Airport.
The Prosecution says that JOSAIA WAQABACA took the $2000 and gave $1000 to SAVENACA TOMASI so that he could pay for materials to ensure that the job was done well.
The law on first count
The accused WATESONI TABAKI NATA is charged with the offence of attempting to destroy property by explosives contrary to section 21(3) and section 325 of the Penal Code, CAP 17. He has pleaded "Not Guilty" to the charge.
22] Before you can be satisfied that the Accused is guilty of the first count, the Prosecution must prove the following elements or ingredients which constitute the offence:
23] The burden is throughout on the prosecution to prove each ingredient of the offence beyond reasonable doubt.
25] The prosecution’s case is that the Accused, WATESONI TABAKI NATA committed this offence.
26] Procure may mean to persuade, induce or influence. It can also mean to aid, abet, or counsel. Now that you have heard the evidence, you should make up your own minds as to what it means, decide what evidence you accept as being truthful, and if that amounts to "procuring".
The second matter that you must deal with is did the Accused on the 14th day of August, 1999 in Nadi, incited Josaia Waqabaca, Savenaca Tomasi, and Joji Bokoso to willfully and unlawfully set fire to the house of Krishna Chetty, the property of the Civil Aviation Authority of Fiji at the CAAF Compound in Namaka Nadi. Shown as the Fourth Count.
The Prosecution says that when JOSAIA WAQABACA and SAVENACA TOMASI arrived at the Nadi Airport Club on 14 August 1999, the Accused was also there.
The Prosecution says that JOSAIA WAQABACA,JOJI BAKOSO, SAVENACA TOMASI and the Accused all left the Nadi Airport Club together. It says that they left in Sakeasi Butadroka’s car, and drove to a house in the CAAF compound.
The Prosecution says that while JOSAIA WAQABACA was driving Sakeasi Butadroka’s car, the Accused, who was seated in the front passenger seat, pointed out the house of Krishna Chetty and said that they should burn it down.
The Prosecution says that this is when the accused incited JOSAIA WAQABACA, SAVENACA TOMASI, and JB, to willfully and unlawfully set fire to the house of Krishna Chetty.
Before you can be satisfied that the Accused is guilty of the Fourth Count, the Prosecution must prove the following elements or ingredients which constitute the offence:
27] Your approach to the case should therefore be as follows: if, looking at the case of the accused, you are sure that he committed either one or both the offence, is guilty of that one, or both offences.
28] Put simply, the questions for you are:
1. did the Accused procure JOSAIA WAQABACA to plant a bomb at the Nadi Airport?
2. Did the Accused incite either Josaia Waqabaca or Joji Bakoso or Savenaca Tomasi to burn down Krishna Chetty’s house?
29] I shall deal later in this summing up with the ingredients of the offence of murder, and the matters which the prosecution must prove in order to establish murder. But it suffices for the moment for me to say that the key questions that you will have to address in this case are these:
1. Has the prosecution proved that the Accused intended to kill the deceased or to cause her really serious bodily harm? If that is not proved, the 1st accused cannot be guilty of murder. You would then return an opinion of Not Guilty of murder.
30] The case for the prosecution is that the Accused is accused, Abdul Ahmed Ali and Roshni Devi, acting together killed Rukhmani, the deceased. The particulars of the offence alleged against them are as follows:
37] Under the Penal code is committed when 40]The prosecution rely on two main aspects of the evidence in this case namely –
41] The prosecution relies on the evidence of 19 witnesses.
The prosecution called a total of 19 witnesses.
In some instances, the prosecution relies on what is called circumstantial evidence. This is evidence, when connected with other evidence, portrays one picture and a very clear one at that.
Evidence of Josaia Waqabaca PW1 and Savenaca Tomasi PW3 .
Both of these witnesses were granted immunity against prosecution. They are also accomplices to the offence.
His lordship will give you certain directions in relation to their evidence.[p5]
PW 1
The prosecution says that Josaia Waqabaca’s evidence sets the scope of the events relevant to this case.
He gave evidence of how he was a member of the Fijian Nationalist Party who did not accept Mr. Chaudry’s leadership, after he won the general election in 1999.
As a result, several meetings were held, the first at Flagstaff in Suva at the house of Joji Bakoso. There they met to discuss their desire to cause instability within Suva, through rioting and burning. He also described how he travelled to the Western Division with a person called Peceli Vuniwa to look for someone called Maciu Navakasuasua, who they believed would supply them with some explosives.
JOSAIA WAQABACA also described a subsequent meeting at the home of Navitalai Naisoro.
At that meeting, NAVITALAI NAISORO announced to him, Joji Bakoso, Maciu Navakasuasua and some others that they needed to destroy the Nadi Airport, by placing explosives there.
JOSAIA WAQABACA said that acquired explosives from Maciu Navakasuasua, who delivered them to his home in Suva. The explosives comprised of 9 pieces of gelignite tubes which he kept in a small carton.
JOSAIA WAQABACA explained that he received several calls from NAVITALAI NAISORO. In one of the phone calls, he said that NAVITALAI NAISORO told him to go to Nadi to pick up $30,000 for the blowing up of the airport. However, by this time, JOSAIA WAQABACA said that he had already decided that he would blow up the Nadi Airport, so the payment was just like "butter on bread" which he accepted.
He then recruited Savenaca Tomasi, to help him with the job. JOSAIA WAQABACA said that he knew SAVENACA TOMASI because he was a member of Fiji National Party, and because he was a soldier.
After that meeting, he received another call from Navitalai Naisoro who told him to go and pick up the money from Nadi. On 5 August 1999, JOSAIA WAQABACA hired a car from Central Rentals and drove to Nadi with Savenaca Tomasi. He said they reached Nadi at about midday that day.
JOSAIA WAQABACA explained that when they got to Nadi, they drove directly to Nadi Airport. When they got there, they went to the men’s toilet in the departure lounge. Behind the toilet block, they found a small room which had an electrical box, or the main power line. They decided that this was the best place for the blast.
JOSAIA WAQABACA explained that from there, they drove to Lautoka and booked a room at the Waterfront Hotel where they spent the night. On the next day, 6th August 1999, JOSAIA WAQABACA and Savenaca Tomasi left Lautoka for Nadi, and drove to the Dominion Hotel where JOSAIA WAQABACA planned to meet Navitalai Naisoro.
JOSAIA WAQABACA said that when he and SAVENACA TOMASI arrived at the Dominion Hotel, they where met by Navitalai Naisoro, who was standing at the front of the entrance car park. NAVITALAI NAISORO told them to drive their car around to room 121, which JOSAIA WAQABACA did. JOSAIA WAQABACA said that he parked the car just outside of room 121. JOSAIA WAQABACA said that although he wanted SAVENACA TOMASI to go inside room 121 with him, SAVENACA TOMASI said that he would wait in the car. When JOSAIA WAQABACA went inside room 121, he said that it was Navitalai Naisoro who opened the door for him.
JOSAIA WAQABACA said that at first, there was only him and Navitalai Naisoro inside the room. However, Navitalai Naisoro said him "this is where you will see who will be the carrier of the money."
After about 2 minutes, he saw the Accused enter the room from the sliding door. When he saw the Accused he thought he was just coming to visit or passing by. JOSAIA WAQABACA said the Accused entered room 121 and pulled out a bundle of cash notes. JOSAIA WAQABACA said that he then heard the Accused say that there was $4,000 there and that the rest would come later. This money was then thrown on the bed.
JOSAIA WAQABACA said that Navitalai Naisoro took $2,000 and told JOSAIA WAQABACA to take the remaining $2,000 and said it was enough to purchase additional materials needed to blow up the Nadi Airport. JOSAIA WAQABACA also said that he heard the Accused say that the best time to blow up the airport was at 2.30am because there would only be about 2 or 3 security officers around.
JOSAIA WAQABACA said that he knew the Accused because their fathers were brothers.
JOSAIA WAQABACA also said that at about 11 pm on 14 August 1999, after he had been at the Nadi Airport Club, he drove the Accused, JOJI BAKOSO and SAVENACA TOMASI in Sakeasi Butadroka’s car to a house in the CAAF compound. JOSAIA WAQABACA said that while he was driving, the Accused who he said was seated in the front passenger seat, pointed out the house of Krishna Chetty and said that they should burn that house down too because he was a cheeky Indian. However, JOSAIA WAQABACA said that he was not interested as he was headed for a bigger job at the Nadi Airport.
After that, JOSAIA WAQABACA said that he dropped the Accused off at his home in the CAAF compound. He said that he then dropped SAVENACA TOMASI off at a bus stop so that he could retrieve some explosives he had hidden nearby.
JOSAIA WAQABACA said that at about 12pm, he and JOJI BAKOSO stopped at a Shell Service Station and bought 3 containers of diesel, which they thought would help spread the fire at the airport. Following that, JOSAIA WAQABACA said that he and JOJI BAKOSO continued to drive around until they eventually arrived at the Nadi Airport at 2am. JOSAIA WAQABACA and Joji Bakoso waited in the car until about 3.30 for SAVENACA TOMASI to arrive. However, SAVENACA TOMASI did not show up.
JOSAIA WAQABACA said that at about 3.30am, he and JOJI BAKOSO felt that they could no longer wait for SAVENACA TOMASI, so JOJI BAKOSO decided to take over. JOJI BAKOSO then took the explosives into the Airport Terminal toilet, while he stayed outside and kept watch.
After about 15 to 20 minutes, JOSAIA WAQABACA said that he suddenly saw a dozen or so Fijian women in the area, which made him frightened. He realized that if there was an explosion, all of these women would most likely die in the blast. He also said that he felt as though the momentum to get the job done had been lost.
Believing that this would defeat his cause, JOSAIA WAQABACA said that he rushed into the Airport Terminal toilet and said to JOJI BAKOSO, who had placed the explosives on a toilet seat, that the plan was off!
JOSAIA WAQABACA then took the explosives back to the car and left the airport on his own. He said at this point, he and JOJI BAKOSO went their separate ways.
PW2
The Prosecution also relies on the evidence of Ratu Keni Naulumatua. He described the Accused as a hardworking and good man. He said that the Accused took him to the Dominion Hotel on the 13th of August 1999.
Ratu Keni Naulumatua said that when they got there, they went to room 11, and this is where he saw Navitalai Naisoro. He also said that he saw a carton of explosives, which he described as "gel" along with a detonator which he said Joji Bakoso was handling.
PW3
Savenaca Tomasi also gave evidence. He said that he was in the infantry battalion of the army. He said that he knew JOSAIA WAQABACA through an organistion called the Nationalist Manasa Moce.
SAVENACA TOMASI said that JOSAIA WAQABACA came to his home and asked if he would go with him to the Nadi Airport to collect some money. When he agreed, SAVENACA TOMASI said that JOSAIA WAQABACA picked him up in a white rental car on the 5th of August 2008 and that they drove to Nadi.
SAVENACA TOMASI said when they reached Naboro, JOSAIA WAQABACA explained that the reason why they were going to Nadi was to collect a big sum of money that they were going to be paid for destroying Nadi Airport.
SAVENACA TOMASI said that when they got to the Nadi Airport, JOSAIA WAQABACA took him to a room which he said was the best place to put the explosives because it contained the main power supply. After that, they went to the Waterfront Hotel and spent the night there.
SAVENACA TOMASI said that when they arrived at the Dominion Hotel on 6 August 1999, JOSAIA WAQABACA went inside the room, while he waited outside in the car. He said that JOSAIA WAQABACA was inside the room for about 20 or 30 minutes. After that, when JOSAIA WAQABACA came out, he remembers seeing that someone else who JOSAIA WAQABACA said was the Accused.
SAVENACA TOMASI also said that while they were driving through the CAAF compound on 14 August 1999, the Accused pointed to a house and said that is one of the targets which is to be burnt down too.
After that, SAVENACA TOMASI said that he was dropped of on the main road near the Numuca public school. After he was dropped off, he got on a Mini bus which took him to Suva.
PW8
The prosecution also called Ronald Anil Kumar, who was the night manager of the Dominion Hotel in August 1999. Mr. Kumar confirmed that on the 5th of August 1999, rooms 121 and 122 where booked in the name of Navitalai Naisoro. The registration card for room 121 and the invoices for the room were tendered by the Prosecution and marked P8.
PW15
The Prosecution also called Vidya Prasad, the accountant for Central Rentals, a rental car company in Suva. Mr. Prasad confirmed that Josaia Waqabaca was a regular customer of theirs. He confirmed that the bundle of Central Rental Car receipts and Agreement No. 2953 which were tendered by the prosecution and marked P14 were authentic, and they did come from his company.
Mr. Prasad explained that the Agreement No. 2953 showed that on the 3rd of August 1999 Josaia Waqabaca rented two cars CX163 and CQ436. He also said that this Agreement was extended until 18th August 1999.
In reply to the Accused claim that he was in Australia from the 5th August 1999 until 19th August 1999, the Prosecution tendered records, which it says relate to the Accused travels at this time.
The first of these documents is marked exhibit P13. It is the travel history of the Accused from the 10th of July 1999 to the 19th of August 1999. In that bundle, there is a Departure Card which says that the Accused departed Fiji for Australia on 15th of August 1999 on flight FJ911/QF392.
The Prosecution also tendered the passenger flight list for 15 August 2008 which was marked exhibit P19. The Prosecution says this list shows that on 15th of August 1999 the Accused traveled to Australia on Flight FJ911/QF393.
In support of this evidence, the Prosecution also called two Immigration Officers who gave evidence on the entries in the Accused passport and in relation to his travel records.
PW14
Naibuka Vuli a senior Immigration Officer: and
PW17
Josua Mucunabitu the Acting Immigration Manager – Western Division.
Both of these witnesses explained that the travel records were generated from their database. They said that the information was generated from passenger departure and arrival cards which are filled out by passengers when they travel.
Both of these witnesses said that the Departure cards show that the Accused departed Fiji for Australia on the 15th of August 1999 on flight FJ911/QF392.
In addition to this, PW14 Naibuka Vuli, said that based on the Accused departure and arrival cards, he was in Fiji from the 30 of July until the 15th of August 1999.
When asked to comment on the accuracy of the records kept by Fiji Immigration, Naibuka Vuli conceded that Fiji probably had the worst system in the world.
PW18
The prosecution also called D/Cpl George Lagi, a Police officer with 18 years of experience in the Police Force. He explained that on the 30th of January 2006 he together with others conducted a search at the Waterfront Hotel and uplifted Waterfront Hotel Tax invoice No. 322257M. This document was tendered by the prosecution and marked exhibit No. P.20. It shows that on the 5th of August 1999 Josaia Waqabaca booked room 103 at the Waterfront Hotel and checked out on 06/08/99. The number of persons listed for the room was 2.
EXPERT EVIDENCE
58] In this case you have heard the evidence Immigration Officers, who were called as experts on behalf of the prosecution. Expert evidence is permitted in a criminal trial to provide you with scientific information and opinion, which is within the witness’ expertise, but which is likely to be outside your experience and knowledge. It is by no means unusual for evidence of this nature to be called; and it is important that you should see it in its proper perspective, which is that it is before you as part of the evidence as a whole to assist you with regard to one particular aspect of the evidence, namely what caused Rukhmani’s death.
59] A witness called as an expert is entitled to express an opinion in respect of her findings or the matters which are put to her; and you are entitled and would no doubt wish to have regard to this evidence and to the opinion/s expressed by the experts when coming to your own conclusions about this aspect of the case.
60] You should bare in mind that if, having given the matter careful consideration, you do not accept the evidence of the expert, you do not have to act upon it. It is for you to decide whose evidence, and whose opinions you accept, if any. You should remember that this evidence relates only to part of the case, and that whilst it maybe of assistance to you in reaching your opinion, you must reach your opinion having considered all the evidence.
The Defence
When informed of his rights in this Court, the Accused elected to give evidence on oath although there was no obligation on him to do so.
65] As I said earlier the burden is on the prosecution to prove the case against the Accused beyond reasonable doubt.
66] But having elected to give evidence, the Accused evidence must be considered and evaluated and be taken into account along with all other evidence presented in the case so you may decide where the truth lies.
67] Now the evidence of the Accused can have one of three possible effects on the case as a whole.
68] His evidence may have the effect of satisfying you that he did not procure or incite in which case you will express the opinion that the accused is not guilty as charged: OR
69] His evidence may have the effect of creating in your minds a reasonable doubt as to whether or not he procured or incited in ch case also you will express the opinion that the accused is not guilty as charged; OR
70] His evidence may have the effect of satisfying you beyond any reasonable doubt that he procured and incited which case you will express the opinion that he is guilty as charged.
71] The Accused denies that he was at the Dominion Hotel with JOSAIA WAQABACA and NAVITALAI NAISORO on 6 August 1999. He also denies that he was at the Nadi Airport Club on 14 August 1999.
In support of his denials, the Accused relies on a stamp on page 18 of his Passport (Defence Exhibit D2) which he says shows that he arrived in Australia on 5 August 1999. He also relies on a stamp in his passport at page 33 which shows that he departed Australia, from Sydney Airport, on 19 August, 1999.
The Accused says that he was in Australia between these two dates.
The Accused relies on the fact that because his passport does not show a departure stamp for either 5 August 1999, or 15 August 1999, the irresistible inference is that on both dates he was in a country other than Fiji. The Accused says that when he arrived in Australia on 5 August 1999, he must have done so from a country other than Fiji.
The Accused also says that as there is no arrival stamp for Fiji, following his departure from Australia on 19 August 2008, one must irresistibly infer that when he left Australia on 19 August 1999, he did not go to Fiji, but to another country.
Therefore, the Accused says that he was not Fiji when he is alleged to have been in room 212 of the Dominion Hotel on 6 August 1999, and handed money to NAVITALAI NAISORO and JOSAIA WAQABACA as payment to plant explosives in the Nadi Airport Terminal building.
The Accused also denies that he was in the Nadi Airport Club with JOSAIA WAQABACA and JOJI BAKOSO on 16 August 1999. The Accused denies that he left the Nadi Airport Club with JOSAIA WAQABACA, JOJI BAKOSO and SAVENACA TOMASI and suggested to them that they should burn down the house that Krishna Chetty lived in, while they were driving through the CAAF compound.
As the prosecution has to prove his guilt so that you are sure of it, the Accused does not have to prove that he was elsewhere at the time. On the contrary, the prosecution must disprove this aspect of his defence.
81] Even if you conclude that this part of the accused Defence is false, that does not of itself entitle you to convict him. The prosecution must make you sure of his guilt.
The Accused also relies on the confession statement marked as exhibit D1 which was signed by JOSAIA WAQABACA on 3 January 2006. In this statement, he retracts the statements he had previously made regarding the involvement of the Accused and a number of other people alleged to have been involved in various illegal activities.
In this statement, JOSAIA WAQABACA said that his previous statements were false, and that they were only made in an attempt to assist Maciu Navakasuasua with his application for Australian residency.
During the cross-examination of Savenaca Tomasi, the Defence referred to his previous statement which was tendered by it and marked as Defence exhibit D5, with its English translation marked as D5A.
In that statement, Savenaca Tomasi said at question 78 that after Josaia Waqabaca ask him at the Nadi Airport Club if he was willing to blow up various things, such as the Aircraft Hanger or the Terminal, or to kill Chetty, he said that he was not and that he immediately left the Club and headed straight to Suva. The Defence says that this evidence is inconsistent with the evidence that he gave in Court.
Specific Directions
Circumstantial Evidence Direction
Reference has been made to the type of evidence which you have received in this case, and it has been labeled ‘circumstantial evidence;, and the point has been made that there is no direct evidence which proves the defendant guilty of this offence. The position is this:
Sometimes a jury is asked to find some fact proved by direct evidence. For example, if there is reliable evidence from a witness who actually saw a defendant commit a crime; if there is a video recording of the incident which plainly demonstrates his guilt; or if there is reliable evidence of the defendant himself having admitted it, there would all be good examples of direct evidence against him.
On the other hand it is often the case that direct evidence of a crime is not available, and the prosecution relies upon circumstantial evidence to prove guilt. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and the defendant which they say when taken together will lead to the sure conclusion that it was the defendant who committed the crime.
[It is not necessary for the evidence to provide an answer to all the questions raised in a case. You may think it would be an unusual case indeed in which a jury can say ‘We now know everything there is to know about this case’. But the evidence must lead you to the sure conclusion that the charge which the defendant faces is proved against him.]
Circumstantial evidence can be powerful evidence, indeed, it can be as powerful as, or even more powerful than, direct evidence, but it is important 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.
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.
During the trial certain exhibits were tendered. You are free to consider them during your deliberations.
You have undertaken to try the case according to the evidence. If a witness comes to court and states what did or did not happen, that is evidence of what did or did not happen. Whether you accept that evidence or not is another matter; but in law it has the status of evidence of what he asserts.
On the other hand, if on a previous occasion, not in this court before you the witness stated what did or did not happen on a particular day, that is not evidence that he in fact saw that event. It is merely evidence that that is what he asserted at some earlier time.
Previous Inconsistent Statements
It is suggested by the Defence that previous statements made by Josaia Waqabaca and SAVENACA TOMASI are inconsistent with the evidence they gave in this court.
In examining suggested inconsistencies, you will wish to decide, first, whether there is in fact and in the true context, an inconsistency; and if you decide that there is one, you will wish to decide whether it is material and relevant or, on the other hand insignificant or irrelevant.
If there is an inconsistency, it might lead you to conclude that this witness is generally not to be relied upon; alternatively that part only of his evidence is inaccurate; or you may accept the reason he has provided for the inconsistency and consider him to be a reliable witness.
IRRELEVANT/EMOTIVE CONSIDERATION
Do not be sidetracked in your task by irrelevances. Your task is to reach an opinion according to the evidence, not according to the newspaper reports, or to prejudices, or to irrelevant sympathies. This trial has given rise to some publicity. But you do not decide the case on publicity, for publicity is not evidence.
98] If after considering all of the evidence in this case you are not satisfied that the Accused procured Josaia Waqabaca to unlawfully and with intent to destroy property, put explosives substances at the Nadi International Airport Terminal Building, or if you have any reasonable doubt about the matter, then it will be your duty to express the opinion that he is not guilty of this charge.
99] Only if you are satisfied beyond reasonable doubt from the whole of the evidence that the Accused is guilty of this charge will you express the opinion that the Accused is guilty of this offence for which he now stands trial.
In relation to the Fourth Count, you do not have to be satisfied that the Accused incited Josia Waqabaca, and Savenaca Tomasi, and Joji Bakoso to willfully and unlawfully set fire to the house of Krishna Chetty. All the Prosecution needs to do is prove to you beyond a reasonable doubt that the Accused incited any one of them.
If after considering all of the evidence in this case you are not satisfied that the Accused procured Josaia Waqabaca or to unlawfully and with intent to destroy property, put explosives substances at the Nadi International Airport Terminal Building, or if you have any reasonable doubt about the matter, then it will be your duty to express the opinion that he is not guilty of this charge.
99] Only if you are satisfied beyond reasonable doubt from the whole of the evidence that the Accused is guilty of this charge will you express the opinion that the Accused is guilty of this offence for which he now stands trial.
CONCLUDING DIRECTIONS
100] You should strive to reach a unanimous opinion, that is, an opinion upon which you all agreed; whether guilty or not guilty.
101] You will not be asked to give reasons for your opinions, but merely your opinion itself and your opinions need not be unanimous although it would be desirable if you could agree on them.
102] Your opinions are not binding on me but I can tell you now they will carry great weight with me when I come to prepare and deliver the judgment of the Court.
103] On your return to court, you will each be asked for your opinion.
104] When you retire you will be taken by my Clerk to your deliberating room. If after your retirement you require assistance upon a matter of law, or wish to be reminded of some evidence, you should please write your question or request on paper and hand that paper to my Clerk. You will then be called back to court to deal with the matter, though there may be a little delay before you are brought back, because I shall need to recall counsel and discuss the issue raised with them.
The Clerk will at all times be outside your room. Please do not, on any account, discuss with him any aspect of the case or procedure nor ask him any questions unless it be to ask him to deliver an exhibit to you or to deliver a written question to me.
Refreshments and lunch will be brought to you, and it would be irregular for you to split up or go out for any other purpose. Nor may you telephone from the Assessors room. I would be grateful if you would leave mobile telephones with my Clerk and not take them into the Assessors room with you.
When you retire, take with you the notes which you have been making as well as the exhibits.
That is all I wish to say in the way of summing up to you.
Anthony J Sherry
Judge
At Lautoka
10 November 2008
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