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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Criminal Case No: HAC 139 of 2007
STATE
v.
NETANI MOTO NUTE
ILAISA SOUSOU CAVA
MANOA TOVIRIKI QALOVAKI
Hearing: 10th November – 26th November 2008
Summing Up: 26th November 2008
Counsel: Ms L. Lagilevu for State
Mr. A. Vakaloloma for 1st Accused
Mr. T. Fa for 2nd Accused
Ms B. Malimali & Mr.Tarere for 3rd Accused
SUMMING UP
Madam Assessors and Gentleman Assessor. It is now my duty to sum up to you. In doing so I will be directing you on matters of law which you must accept and act upon. You must apply the law as I direct you in this case.
As far as the facts are concerned however, what evidence to accept, what witnesses to accept or reject, these are matters for you to decide for yourselves. So if I express any opinion on the facts, or if I appear to do so, you may reject what I say and form your own opinions. In other words, you are the judges of fact.
Counsel for the prosecution and counsel for the defence have all made strong submissions to you as to how you should find the facts of this case. That was in accordance with their duties as counsel. However you are not bound by what counsel have said to you about the facts of this 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 your opinions need not be unanimous although it would be desirable if you could agree on them. Your opinions are not binding on me, but I will give them great weight when I come to deliver my judgment.
On the issue 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 persons. 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 their guilt. If you have a reasonable doubt about their guilt, then it is your duty to express an opinion that they are 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 they are 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. You must also put aside emotions which might affect your objectivity. Concentrate on the law as applied to the evidence. When you see the photographs of the deceased for instance put aside any emotions.
There are three accused persons in this case jointly charged on the three counts on the Information. You must consider the case against each accused separately. You must not assume that because you are of the view that one is guilty, that the other two are also guilty. Similarly you must consider the evidence on each count separately.
The first count is of murder. The State alleges that between the 24th and 25th of August 2007, the three Accused persons murdered Murad Buksh.
Murder is defined by our Penal Code. It 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:
In this case all three elements of the offence are disputed by all the Accused, so you must consider the evidence in relation to all three elements.
In law, when a person does an act which is the substantial or operating cause of the death of the deceased, then he has caused the death of the deceased. This is so even if the person did not desire to cause the death of the deceased but was merely reckless about his conduct.
In this case, if you conclude that the Accused either individually or together, assaulted the deceased Murad Buksh, then hung him by a rope on the bridge at Veisari then you may be satisfied that they caused his death. If however you have a reasonable doubt about this, then you must find the Accused persons not guilty of the offence of murder.
The second element is there must have been an unlawful act. Again if you are satisfied beyond reasonable doubt that the deceased died not as a result for instance of suicide, but as a result of a deliberate unlawful assault on him by one or other of the Accused then this element too is satisfied. An unlawful act is simply one which is not justified in law. Dr. Eka Buadromo in her evidence said that the injuries found on the deceased showed that he was manually strangled by someone and then hung up by the neck. If you accept her evidence you may accept that Murad Buksh died as a result of an unlawful act of strangulation.
The third element of the offence of murder is malice aforethought. Malice Aforethought is the mental element of the offence of murder which the prosecution must prove beyond reasonable doubt. It is defined by the Penal Code and means either an intent to cause, or an intent to cause grievous harm or knowledge that death or grievous harm will be caused and being indifferent about the consequences. In considering whether the deceased was killed by someone with malice aforethought you need to consider carefully the evidence of Dr. Eka Buadromo who gave evidence of the nature of the injuries found on the body of Murad Buksh by Dr. Prashant Samberkar, the pathologist. If you recall, her opinion is that the deceased died as a result of manual strangulation. She also described other marks of violence on the body of the deceased. If you accept her evidence, do you have any reasonable doubt that whoever strangled the deceased did so either with an intent to kill him or to cause him grievous harm? That is the question for you.
The Accused persons are also charged with the offence of larceny. Larceny is committed when a person, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner of it.
The State alleges that between the 24th and 25th of August 2007, the Accused stole the taximeter and mobile phone of Murad Buksh with intention to permanently deprive him of it and without an honest claim of right over it. The evidence led by the police witnesses was that these items were found at the house of the 3rd Accused Manoa Qalovaki, a few days after the death of Murad Buksh. In law when a person is found in possession of recently stolen goods or items and has no explanation for such possession, he can be found guilty of stealing those goods. Of course the defence position was originally that the taximeter given to Manoa’s aunt is not the deceased’s taximeter and that the phone seized by police was not the deceased’s. However when Manoa gave evidence he agreed that this was the deceased’s taximeter. The question for you on Count 2 is to consider the guilt or innocence of the 1st and 2nd Accused, given the 3rd Accused’s admissions on oath.
On Count 3, the Accused are charged with the offence of unlawful use of motor vehicle. All three Accused are charged with unlawfully and without colour of right but not so as to be guilty of stealing, driving taxi LT 724 for their personal use between the 24th and 25th of August 2007. This offence is committed when a person drives a vehicle which is not his own, without the consent of the owner but without any intention of stealing it. In this case it is not in dispute that after the death of Murad Buksh the 3rd Accused drove his taxi from Veisari to Ono Street in Samabula and abandoned it there. He therefore committed the offence of unlawful use of motor vehicle. The question for you on this count is whether the 1st and 2nd Accused persons individually or jointly committed the offence.
I now wish to direct you on the law of joint enterprise and secondary offenders. As you have heard, none of these three accused persons have admitted assaulting or killing Murad Buksh. The State relies on the doctrine of joint enterprise, or of secondary offenders to prove its case. The law is that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and while committing that unlawful act, another offence is committed which is a probable consequence of that first purpose, then each of the persons involved is guilty of the final offence. This is called joint enterprise. Let me give you an example.
When a group of men decide to break into a shop together carrying weapons, and during the break in, one of them injures a security guard at the shop, and the security guard dies as a result, then each of the persons involved in the break in is guilty of murder even if only one of them actually injured the security guard. This is because when you break into a shop carrying weapons, the fact that someone will get injured and die is a probable consequence of that break in with weapons.
So in this case you must ask yourselves – was each of the accused involved in a common intention to do something unlawful together? Did the deceased Murad Buksh die in the course of the prosecution of that unlawful act on him? Was his death, a probable consequence of the unlawful plan? If you are satisfied of these in relation of each accused, then you may find each guilty of murder even if you are not sure which of them actually killed Murad Buksh, by assaulting him.
The State also relies on the law on aiders and abetters. In law the person who actually does the deed which constitutes the offence, is not the only person who may be convicted of a crime. All those who do any act or acts to assist, aid and abet the principal offender are also guilty of the offence. So for instance if a man shoots another and kills him, he is guilty of murder. But also guilty of murder is the person who supplied the gun, knowing what it would be used for, and with the intention of helping the principal offender.
In this case, in particular in considering the driving of the deceased’s taxi to a remote spot, the supplying of the rope, the hanging of the deceased at the bridge, and the driving of the individual members of the group home after the incident, you need to ask yourselves the following questions:
If you are satisfied of both these matters beyond reasonable doubt, then you may find the accused person who so assisted, guilty of murder even if he did not commit any assault himself and even if you do not know which of them actually caused the death of Murad Buksh.
I now wish to direct you on the issue of duress. Our Penal Code states that a person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is committed only because during the whole of the time in which it is done, the person is forced to do the act by threats on the part of the other offenders to instantly kill him or do him grievous bodily harm if he refuses.
This issue is relevant only to the 3rd Accused Manoa Qalovaki who admitted to the police and said on oath that he was present in the deceased’s taxi but said that he was tied up with a rope at the back of the taxi and threatened with a knife held at his neck by the 1st Accused, and was only present at the robbery of the driver under duress. You will recall that the prosecution case is that he was found in possession of the deceased’s mobile phone, and had given his aunt the taximeter. He does not deny this.
In relation to the 3rd Accused, once he raises the question of duress, it is for the prosecution to prove beyond reasonable doubt that the Accused was not under duress at the time. The questions for you are:
I now come to the issue of the police interviews given by the 1st and 3rd Accused at the Lami Police Station. The 2nd Accused was also interviewed by DC Mikaeli but he chose not to make a statement. He was given the right to remain silent, and he chose that option. You must not draw any adverse inference from the fact that he chose to remain silent.
I must secondly direct you as a matter of law, that what one accused person says about another in his interview is not evidence against the other Accused. A caution interview is only evidence against the maker of the interview. This is also the case for the 3rd Accused’s photo identification of the 1st Accused during his interview. This is because suspects, when interviewed by the police, may blame others in order to deflect blame from themselves. So for instance when the 1st Accused named Sousou Cava in his caution statement, that is not evidence against Sousou Cava. However that rule does not apply to sworn evidence. So when the 3rd Accused went into the witness box to implicate the 1st and 2nd Accused, that is evidence against them on which you can rely if you wish.
My next direction to you is on circumstantial evidence. Although there is evidence that the 1st Accused was present in the taxi that night, the 3rd Accused was also in the taxi and the 2nd Accused was seen at the checkpoint in the taxi, as well as the evidence of the 3rd Accused putting all the accused at the scene, there is no direct evidence about who actually strangled the deceased, if he was indeed strangled. There is only evidence from the 3rd Accused of the 1st and 2nd Accused dragging the deceased off over the bridge into the darkness. And of the 1st Accused’s account of events in his caution interview, which is of course only evidence against him.
The prosecution relies on circumstantial evidence to prove that the Accused persons were all jointly responsible for his death and that there is no other reasonable explanation for his death other than that the three Accused persons individually and jointly killed Murad Buksh.
The law on circumstantial evidence is that if, on considering a series of pieces of evidence, you are satisfied beyond reasonable doubt that the only reasonable inference to be drawn is the guilt of the accused, and there is no other reasonable explanation for the circumstances which is consistent with the accuseds’ innocence, then you may convict the accused of the offence charged.
Let me give you an example. If you one day find that your wallet is missing and the only person who could have entered your house is your neighbor, and you find your credit cards hidden in his desk in his home, then you are entitled to accept that it was your neighbor who stole your wallet. This is because the circumstances lead you to the only reasonable inference. However if other people have access to your house and the credit card is not found in his house, then there are other possible explanations which are also consistent with his innocence.
That is the law on circumstantial evidence.
You will realize that the prosecution relies on several sources of evidence asking you to draw the inference that all three were in a joint enterprise that night and that all three are guilty of murder. Not all the evidence is consistent. For instance do you accept Nacanieli Lomani’s evidence that the 2nd Accused was sitting in the front seat of the taxi, or the 3rd Accused’s evidence that he was? You are free to accept some evidence and reject other evidence. You may accept part of what a witness says and reject another part. You are the judges of fact and it is for you to decide which version of the evidence to accept or reject.
The prosecution case
The evidence of the prosecution was that on the 24th of August 2007, Murad Buksh, a 23 year old man was a taxi driver for Freedom Taxis. He was driving all day and did not come home. His family became worried and his brother Ifraaz Buksh telephoned him at about 10pm on his mobile phone. He answered and his brother could hear Fijian voices speaking in the background. Someone said "tavale." Half an hour later he called him again but the call diverted. The next day Murad Buksh’s body was found hanging at a bridge in Veisari. His taxi was found abandoned at Ono Street near the FIT.
The deceased’s wife Razia Hussein gave evidence saying that she was shown a mobile phone by the police (Ex. 2) and she identified it as her husband’s because it had a scratch mark on the back of it, and a mark on the screen. She showed these distinguishing marks to the court. She was also shown a photograph of LT 724 and said that the taxi was the one driven by her husband and that she could identify the stickers on the back because she helped her husband to put them on the car.
Also giving evidence was Police Constable Nacanieli Lomani, who was one of the police officers manning the Delainavesi Roadblock on the night of the 24th of August 2007. He was on duty from 11pm to 5am. There was a searchlight shining on the road and one lane was blocked so vehicles had to slow down to go past the checkpoint. At about 3am he saw a white station wagon taxi coming from Suva towards Lami with "Freedom Taxis" written in red letters on the door. The driver was an Indian man. He recognized Sousou the 2nd Accused as the person sitting next to the driver, and Moto the 1st Accused seated on the back seat. At the back of the taxi he saw stickers and he shared a joke about them with his fellow police officers at the checkpoint. He said that when he recognized the 1st Accused and the 2nd Accused he was standing in the middle of the road an arms length away from the taxi, and said that he recognized them because he lived with them in Nadonumai Settlement for 20 years. He is also related to the 2nd Accused.
At about 5am he saw the same taxi coming back past the checkpoint. This time he could not identify the driver but he saw Moto, the 1st Accused in the same back seat. Someone else was sitting beside Moto, but the seat next to the driver’s seat was empty. This time the taxi drove past at high speed towards Suva.
Under cross-examination it was suggested to him that he had made a mistake in identifying Sousou in the taxi, that he had only seen the back of his head and that as a result of a confrontation between him, Sousou and one Inspector Raga at the Suva Point Police Post, Sousou who had been under arrest, was released from custody. It was suggested to him that he was mistaken when he said he saw Moto in the vehicle twice that night. He agreed that there had been a confrontation with Sousou at the Police Post but said that he had seen Sousou with his own eyes, that he knew him well because he was related to him and that IP Raga too was related to Sousou.
The evidence of SC Nacanieli is very significant because his is the only direct evidence implicating Sousou as being in the deceased’s taxi that night other than the 3rd Accused’s sworn evidence. In considering Constable Nacanieli’s identification, you must consider the circumstances of the identification. What was the lighting like? How slow was the taxi? How well does he know Moto and Sousou? What distance was he from them? How accurate is his recollection? If you accept that he knew Sousou and Moto very well because they come from his settlement, you must ask yourselves whether his identification is reliable. Sometimes we think we recognize people we know but later find that we are mistaken. Sometimes an honest witness makes a mistake in identifying even relatives.
You must consider all the evidence of identification when you consider what weight to put on Constable Nacanieli’s evidence.
You may also consider the evidence of WPC Salote who also saw a white taxi with the stickers drive past the checkpoint at 3am that night with an Indian man driving it and two Fijian men at the back seat. She could not recollect if someone was sitting next to the driver. You will recall that neither she nor Constable Nacanieli were carrying their notebooks at the time and made no record in them about the event.
Corporal Vinay Kumar of the Samabula Police Station gave evidence that he saw the deceased’s taxi parked near FIT, that he drove it to Samabula Police Station and taped it for the scene of crime men.
The deceased’s body was found by Sanaila Tuikubulau who found it hanging in the way that it is shown in the photographs. He reported the matter to the police. The police team at the scene, and the scene of crime men found "drag" marks in a semi-circle on the track next to the bridge, leading towards the bridge and stopping 3 metres from the body. They also saw marks of violence on the deceased which led them to suspect foul play. A rope was tied around the deceased’s neck. Also attached to his neck was a mobile phone ear piece. One brown shoe was worn by the body. Another was found as marked in Photograph 22, where the drag marks were.
The scene of crime men marked the drag marks with yellow flags, drew a sketch plan of the scene which is exhibited, took photographs and cut the body down to convey it to the CWM Hospital.
Also giving evidence was Meredani Kulavere who said that she is the 3rd Accused Manoa’s aunt. At the end of August 2007, he came to her home in Vatuwaqa and gave her a taximeter marked as PIC 868. She identified the taximeter by the model number and under cross-examination said she also noted the serial number 6415. She identified the taximeter in court.
The taxi of the deceased was dusted for fingerprints. You heard the evidence of Inspector Iliesa Bula who compared three prints found on the rear vision mirror and front driver’s door of the taxi with Manoa’s prints. He found that Manoa’s prints were on the taxi. He said he had no doubt that the prints found were Manoa’s prints. Under cross-examination he said that the prints were uplifted by Corporal Sakiusa Jitoko on the 27th of August 2007 and given to IP Bula on the 5th of September 2007. He was given Manoa’s prints for comparison purposes after Manoa was charged.
Corporal Jitoko gave evidence of how he dusted the taxi under the supervision of IP Bula and uplifted the three prints. He also visited the crime scene and drew the sketch plan. He said that the drag marks measured 27 metres from the track to the bridge where the body was found. Under cross-examination he said that no fingerprints could be obtained from the rope because it had a rough surface, that the fingerprints he had uplifted were kept in his locker until he handed them over to IP Bula and that no one could have tampered with them.
The taximeter Ex. 17 was then positively identified by Ashish Deepak Kumar the owner of Freedom Taxis as being the one that was fitted into the deceased’s taxi. He identified the serial number plus the name of his company on the taximeter.
Thereafter the interviews of the 1st and 3rd Accused were tendered. Remember what I told you earlier about these interviews. What one accused says about another in his interview is not evidence against the others.
The defence says that the police ill-treated the two accused and the 1st Accused says that the accused’s statements are false and unreliable. Of course you have heard that all the police witnesses denied categorically ill-treating the accused and said that the interviews took 2 and 3 days because of the time taken to search, to reconstruct the scene and to give the accused sufficient rest during the interviews.
What weight you choose to give the interviews made by these two accused is a matter entirely for you. If you consider them to be unreliable either because the police assaulted and ill-treated the accused, or because the accused themselves told lies to the police, then you may think that you cannot put much weight on them at all. If however you consider them to be reliable records of what the Accused said to the police, then you may think that they contain important statements of what allegedly occurred that night. You may also think that there are wide discrepancies between the accounts given by the 1st Accused and by the 3rd Accused.
The 1st Accused was interviewed on the 28th, 29th, 30th and 31st of August 2007. He said firstly that on Friday the 24th of August 2007 he left Nadonumai for the Hibiscus Festival after 2pm. There he met Eroni Taufa and a man from Beqa. They went to the Islanders Night Club, then they ate barbeque at Sukuna Park, then they went home to Nadonumai in a brown taxi driven by a Fijian man. They arrived at Nadonumai at about 3am.
He then said that he did not get off at Nadonumai with the other two but came back to Suva City after picking $20 from his home. He returned to Suva City and went to Amy Apartments where he met Netani Cama and Inoke who were security guards. They drank there until after 3am. They then went to look for a taxi and stopped a white taxi with Sousou in the front, Eroni and Inoke Vusonilolo sitting in it. The taxi was driven by an Indian boy. The taxi then went to Nadonumai. Sousou spoke to the driver calling him "Bhaiya" and "Tavale." He said the driver was wearing long black pants with a green shirt and a wrist watch. The 1st Accused said they passed the police checkpoint. Sousou was sitting in the front passenger seat and the 1st Accused was sitting behind him. At the Nadonumai roundabout the 1st Accused wanted to get off with Eroni Taufa but Sousou told them they were cowards and should drink beer with him. They bought beer at the Beni Naiveli shop in Veisari. They then stopped near some pine trees where the 1st Accused, Inoke and Eroni drank beer. Sousou got back into the taxi with the driver and the taxi drove off. 20 minutes later the taxi returned. It was now almost 4am. Sousou was driving, Eroni Taufa and the boy from Beqa were inside and the taxi driver was lying still face downwards behind the front seat. They then went down a gravel road where there was a bridge. Sousou stopped the car. Then Sousou, Eroni Taufa and the "guy from Beqa" pulled the driver out and carried him across the bridge. The 1st Accused was told to get the rope from the dashboard. He got it out. He said he thought it was to tie up the driver. He said however that the driver did not move at all and that "he was finished." The 1st Accused then stood at the bridge and vomited. The others returned after 30 minutes during which time the 1st Accused lay down beside the bridge and slept.
Sousou then drove the taxi back to Nadonumai and the 1st Accused got off there and went to sleep. He denied going back past the checkpoint at 5am in the same taxi towards Suva. He said he did not know who took the taximeter, mobile phone and wrist watch of the driver.
The 3rd Accused’s statement said that he saw the 1st Accused and 2nd Accused gambling at the Hibiscus Festival on Friday the 24th of August. He knew them because they all lived at Nadonumai. At 11pm he walked to the Suva Bus Stand with the 1st and 2nd Accused. He called them Billyboy and Mana. At the crossing in front of the Food 4 Less Supermarket, they caught a white taxi with "Freedom" written on the door. It was driven by a young Indian boy. The 3rd Accused got into the front passenger seat. The other two sat in the back.
The taxi went straight to Veisari after passing the police checkpoint. When it got to the driveway of Prakash Dairy Farm, the 3rd Accused said that there was no house there. The 1st Accused, "Mana" then put a kitchen knife to the 3rd Accused’s neck and Sousou the 2nd Accused put a knife to the neck of the driver. Sousou then demanded money from the driver and the driver gave him $20. "Billyboy" then demanded more but the driver refused to give more. The 1st and 2nd Accused then punched the driver on his nose and chest outside the taxi. They threatened the driver and he asked for forgiveness. He said that at the same time his hands and feet were being tied up with rope, which he saw "Billyboy" bring from a boat anchored there. He saw them tell the driver to walk to the top of the bridge and then he could not see them. The 3rd Accused remained tied up in the car. He said he did not know what they were intending to do. After 30 minutes they came back to the taxi. The taxi driver was not with them. Billyboy (the 1st Accused) then cut the 3rd Accused loose and the 2nd Accused told him to drive. He saw the taxi driver’s mobile phone on the driver’s seat and he took it home. He was shown the mobile phone found in his house and he agreed that it was the taxi driver’s phone.
He said he drove because the other two kept threatening him saying "think of your wife and your life." He drove to Nadonumai and the other two got off. They then got back on carrying beer bottles with them. They sat in the back seat. The 3rd Accused drove them to Cunningham. He drove past the Police Checkpoint with Sousou holding a kitchen knife to his neck saying that he must not stop or say anything at the checkpoint. At Cunningham, they gave him $5 and threatened him not to tell anyone what had occurred.
The 3rd Accused then took several trips carrying passengers in the taxi and then parked the taxi at Ono Street. He took out the taximeter, kept it at home, then gave it to his aunt in Vatuwaqa. He gave it to her to sell so she could get some money. He was shown some photographs and identified Moto’s photograph. He said the two men with him were the 1st and 2nd Accused. He admitted that when he was at his home at 9pm on Friday the 24th of August 2007, he told his wife that he was going to drive a taxi to Veisari. However, in response to police questioning, he said that he had made arrangements to drive a cousin’s taxi.
Also giving evidence for the State was Dr. Eka Buadromo, the government pathologist. She said that the post mortem was conducted by Dr. Prashant Samberkar but that she was able to give her opinion on it because she is a qualified pathologist. She found that the report referred to a number of bruises, abrasions and marks over the body of the deceased, consistent with blunt force. Abrasion marks on the buttocks were consistent with the deceased being dragged over a distance with exposed buttocks. There were two ligature marks around his neck, one lower down which was consistent with manual strangulation, and the other with hanging by rope. The cause of death was asphyxia as a result of manual strangulation, which means that some person or persons had tied the rope around the deceased’s neck and strangled him with it. The strangulation was also consistent with the injury to the thyroid cartilage. She found some defensive wounds on the report of the post mortem in the abrasion or scratch mark below the ligature. This suggested that the deceased was struggling to unleash the ligature before he died.
The last witness for the prosecution was Constable Mikaeli Koro who interviewed the 2nd Accused who made no statement. He admitted altering the caution interview of the 2nd Accused to change a "yes" to "no" when asked if he wanted a lawyer. The Constable said that the 2nd Accused said he did not want a lawyer and he had made a mistake in recording otherwise. He agreed that the alteration should have been made in the presence of the Accused.
That was the case for the prosecution.
The defence case
At the end of the prosecution case you heard me give several options to the Accused persons. They could have remained silent, they could have made unsworn statements or given sworn evidence. They were given these options because they do not have to prove anything. These burden remains on the prosecution at all times to prove the guilt of the Accused.
All three chose to give sworn evidence and to subject themselves to cross-examination. You must give their evidence careful consideration.
The 1st Accused gave evidence consistent with the first version in his caution interview, that he was with Eroni Taufa and the boy from Beqa, that they went to the Islanders Night Club, that they ate barbeque at Sukuna Park and that they went back to Nadonumai in a brown taxi driven by a Fijian taxi driver. The 1st Accused said that on arrival at Nadonumai he met his friend Marica and drank grog with her at Virisila’s house and went home to sleep at about 5am. He said he was assaulted repeatedly at the Lami Police Station, and that they forced him to mention Sousou’s name and to admit that he had participated in the murder. In fact he said he knew nothing about the murder of the taxi driver and that the second version in his interview is false. He said he met the 3rd Accused for the first time at the Lami Police Station. He called several alibi witnesses to confirm that he had been drinking grog with them in the early morning of the 25th of August 2007. They were Marica Tabe, Raijieli Adi Tuivua, Virisila Tekuru, Litiana Marama and Netani Cama. You will recall that Netani Cama was the witness who was sitting at the back of the courtroom when the 1st Accused was giving his evidence-in-chief. Normally, witnesses wait outside the courtroom to give evidence so that there is no suggestion that they have tailored their evidence to be consistent with each other’s. The fact that Netani Cama heard the 1st Accused’s evidence is something you may take into account in assessing what weight to give to his evidence. It was his evidence that the 1st Accused had come to Amy’s Apartment not on Friday night but on Saturday night.
Litiana Marama also gave evidence for the 1st Accused. She is his mother. She said that the 1st Accused was asked to go to the Lami Police Station on suspicion of a breaking offence but was later detained on suspicion for murder. Now the fact that the 1st Accused might have been suspected of committing another offence is irrelevant to your considerations. There is no evidence that he was ever charged for the other offence and you must not conclude that he is a person of bad character. However the hours of interview that took place is a matter you may take into account in deciding what weight to put on the interview of the 1st Accused.
Litiana Marama also gave evidence as did her son Are Nute, that when the 1st Accused’s clothes were returned for washing they smelt of faeces. You will recall that the 1st Accused said that he was assaulted by police causing him to defecate in his clothes. Again what weight you give to this evidence is a matter for you.
The 2nd Accused also gave evidence. His evidence was that on the 24th of August 2007, he went to the Hibiscus Festival with his wife and children during the day, returned to his home in Nadonumai at a quarter to six, and stayed at home thereafter. He said that there was a grog session at home with his mother, wife and sisters, and that he was there drinking grog and listening to music on his cd walkman until 3.30am when he went to sleep. His evidence was that he did not know the 3rd Accused Manoa, that he met him for the first time at the Lami Police Station and that he does not know anything about this case.
Supporting his evidence were his mother Mareca Cava, his wife Josevini Cava and his aunt Taraciri Lala. They said that they were with the 2nd Accused between 6pm to 3.30am on the 24th and 25th of August 2007. His aunt said that at 5am, she heard him snoring in his bedroom.
Both the 1st and 2nd Accused have raised evidence of alibi that is, that at the time of the offence, they were somewhere else. Ordinarily, accused persons are required to give notice that they will be raising an alibi, to the prosecution within 21 days of the transfer of the case to the High Court. This allows the prosecution to check details of the alibi to be sure that they have not charged the wrong person. It also protects the accused person from allegations of recent fabrication.
In this case neither the 1st nor the 2nd Accused gave the prosecution notice of alibi until just before the trial commenced. You are entitled to take into account the late notice of alibi in deciding what weight to give to the alibis raised as well as the explanations of the witnesses as to why they did not give alibi notice earlier. You will recall that the 2nd Accused’s witnesses said that they tried to tell the police and DPP about the alibi but they were told to see Sousou’s lawyer. You are also entitled to consider these explanations.
Another issue I wish to warn you about is that inadvertently in the course of cross-examination by Ms Malimali, the 2nd Accused said he was in prison in 2001. As I said to you at the time, you must disregard this evidence entirely in considering the guilt or innocence of the Accused. It is irrelevant.
The 3rd Accused also gave sworn evidence. He said that on the 24th of August 2007 he was at the Hibiscus Festival with his wife and child, that he came home at the end of the day, but that he returned to the Hibiscus Festival in the evening to play at "Place Your Bets." He lied to his wife and said he was going to drive a taxi in Veisari that night because he did not want her to know that he was going to gamble. At Albert Park he met the 1st and 2nd Accused both of whom he knew from the time he lived at his grandfather’s house at Nadonumai. They played "Place Your Bets" until the Hibiscus Festival closed down. They then agreed to share a taxi back home, the 1st and 2nd Accused to Nadonumai and the 3rd Accused to his house at Qauiya.
They caught the deceased’s taxi near the Food 4 Less Supermarket in Suva. The taxi went past the police checkpoint at Delainavesi, with the 3rd Accused sitting next to the driver, and the other two sitting in the back seat. The taxi did not stop at Nadonumai. It went instead to Veisari, the 2nd Accused telling the others that he wanted to pick something up in Veisari.
The 3rd Accused’s evidence is that he wanted to get off at Lami Town but the 2nd Accused insisted that they all go to Veisari together. At the driveway to Prakash’s dairy farm the 3rd Accused and the driver (the deceased) said there were no houses and no lights ahead. Then the 1st Accused put a kitchen knife to the 3rd Accused’s neck, and the 2nd Accused did the same to the driver.
Events then unfolded as the 3rd Accused described them to the police. He said there was an assault by the 1st and 2nd Accused of the taxi driver just outside the taxi, that the 3rd Accused was tied up with a rope by the 1st Accused inside the taxi and that he saw the other two take the driver away by force over the bridge.
His evidence was that they returned after a while without the driver, forced him to drive them to Nadonumai and Cunningham, then that he carried various passengers around Suva before stealing the taximeter and mobile phone and abandoning the taxi near the FIT. He said that he knew the other two, that they were using the names Billyboy and Mana in the taxi when they spoke to each other and that he accompanied the other two that night out of fear of violence. He said he told the police exactly what he told the court and that he was never involved in the death of the driver.
You will recall that I told you earlier that what one accused says about another in his police statement, is not evidence against the other accused. A police caution interview made by a suspect is only evidence against the maker.
However, when one of the accused takes the witness stand and gives sworn evidence, then the evidence can be taken into account if it implicates the other accused. Now in this case the 1st and 2nd Accused did not implicate the 3rd Accused. In fact they said they did not even know him. But the 3rd Accused did directly implicate both the 1st and 2nd Accused on all counts of the Information. He said that the deceased was assaulted by them, then dragged to the bridge. The prosecution says that an inference may be drawn from his evidence (and this is a matter for you) that they then killed the deceased, or that they were part of a joint enterprise to kill him.
If you accept the 3rd Accused’s sworn evidence as being credible and reliable then you may consider his evidence in assessing the guilt or innocence of the 1st and 2nd Accused. The sworn evidence of the 3rd Accused Manoa Qalovaki is admissible evidence against his two co-accused.
That was the case for the defence.
Summary
The prosecution case is that all three accused were involved in a joint enterprise to take the deceased to an isolated spot in Veisari, to assault him and to rob him. In the course of that plan, the deceased was manually strangled by the tightening of a rope around his neck, by dragging him over a surface of about 27 metres and then by hanging him from the bridge shown in the photographs. The prosecution says that each of the Accused was involved in this unlawful plan and that even if you do not know which of the three actually strangled the deceased, each of them is guilty of murder. The prosecution relies on the evidence of the 3rd Accused’s fingerprints on the taxi, his possession of the taximeter and mobile phone which he does not dispute, and his admission that he was present during the incident. The prosecution invites you to reject the 3rd Accused’s explanation that he was under duress and to find him guilty of murder on Count 1.
In relation to the 2nd Accused the prosecution relies on the identification of the 2nd Accused by Constable Nacanieli Lomani at the checkpoint, and the 3rd Accused’s sworn evidence that the 2nd Accused was the person who put the knife to the deceased’s neck and also assaulted him and dragged him away.
The prosecution also relies on circumstantial evidence. If you accept the evidence of the 3rd Accused then the only persons with the deceased after he was taken to the bridge, were the 1st and 2nd Accused. The prosecution relies on the 3rd Accused’s sworn evidence, the drag marks on the ground, the ear piece for the mobile phone and the single shoe, and on the medical evidence of how death occurred to prove that the deceased was killed by manual strangulation and that the 1st, 2nd and 3rd Accused either together or in a joint enterprise killed him.
The evidence relied upon by the prosecution in relation to the 1st Accused is his admissions to the police that he was present when the taxi driver was taken to the bridge and the evidence of the 3rd Accused as well as the identification at the checkpoint by Constable Nacanieli.
The 1st Accused’s case is that he was in Nadonumai Settlement when he returned from the Hibiscus Festival and that he drank grog with the family of Virisila until 5am. His case is that he knows nothing about the taxi driver who died and that his admissions were obtained by the police by force, oppression and unfairness. He led evidence of his alibi supported by his witnesses.
The 2nd Accused’s case is that he was drinking grog with his wife, mother and sisters from 9pm to 3.30am on the 24th and 25th of August 2007 and he knows nothing about the death of the taxi driver. He also relies on the evidence of his wife, mother and aunt. He said that he did not know the 3rd Accused.
The 3rd Accused admits that he was present in the deceased’s taxi and was present during the assault but says that all times he was under duress, that he did not participate in the assault or killing, and that although he did steal the taximeter and mobile phone and did unlawfully use the taxi, he is not guilty of the charge of murder.
Analysis
Count 1
The questions for you are these. Were the 1st and 2nd Accused part of a joint enterprise to assault and rob the deceased on the 24th of August 2007, or were they at Nadonumai drinking grog at the time? Did they share a common intention to assault and rob the driver?
If they were part of a joint enterprise to assault and rob the driver, was the death of the driver a probable consequence of that joint enterprise? Are you satisfied beyond reasonable doubt of this, and that they either jointly or individually caused the death of the deceased by manually strangling him, intending to kill him or to cause him serious harm? When a person has a ligature tightened around his neck so as to suffocate him, what is the intention of the person strangling him? Do you have any reasonable doubt that the deceased was killed with malice aforethought? And is the 1st and 2nd Accused’s guilt in causing his death the only reasonable inference you can draw from the evidence? If you accept the 3rd Accused’s evidence, the evidence of Constable Nacanieli Lomani and the 1st Accused’s admission to the police that he was present that night in the taxi, what inferences can you draw about the facts of the case? Which version of the evidence is consistent with the drag marks, the injuries found in the post mortem, and Dr. Buadromo’s evidence of how death must have occurred?
As far as the 3rd Accused is concerned, the burden of proving that he was not acting under duress is on the prosecution. Was he under a continuous threat during the time the offence was being committed by the 1st and 2nd Accused that they would either kill him or do him grievous harm if he did not assist them? Remember that for the issue of duress, threats of future injury do not constitute duress. The threats of death or serious harm must be of instant death or harm. Before you can find the 3rd Accused guilty of the murder of Murad Buksh you must be satisfied beyond reasonable doubt that he was not acting under duress. Were any threats made such that a sober person in the 3rd Accused’s circumstances and with his characteristics, would do as the 3rd Accused did? That is, keep quiet, drive and follow instructions?
If you are so satisfied and believe that he was present in the taxi of his own free will, then what was his role in the death of the deceased? Was he part of a joint enterprise with the 1st and 2nd Accused? Was there a common intention shared by all three at Veisari to rob and assault the driver? Was it a probable consequence of such a joint plan that the driver would be killed as a result? It is not enough to say you should be satisfied beyond reasonable doubt that the 3rd Accused was not acting under duress. You must also ask yourselves whether you are satisfied beyond reasonable doubt that he was a willing participant in a joint enterprise, that the death of the deceased was a probable consequence and that this inference, drawn from all the circumstances of the case is the only reasonable inference you can draw about the 3rd Accused’s participation in the incident.
Count 2
The 3rd Accused does not deny stealing the taximeter and phone. You must find him guilty on this count because when he stole these items, he was under no duress in law. He was alone in the car.
The question for you is in relation to the 1st and 2nd Accused. Do you accept the 3rd Accused’s evidence that they told him to do whatever he wanted with the car? If all three were part of a joint plan to hijack the car, was the theft of the taximeter and mobile phone a probable consequence of that plan? Was the theft on Count 2 part of the joint enterprise? Are you satisfied of this beyond reasonable doubt?
Count 3
Similarly the 3rd Accused admits Count 3. He admits using the car unlawfully and even if he had been under duress earlier in the evening, on his own evidence no such duress applied after Cunningham. Therefore you must find the 3rd Accused guilty on Count 3.
As far as the 1st and 2nd Accused are concerned however, you must ask yourselves whether they were in the car at the time on the basis of the 3rd Accused’s evidence and the evidence of Nacanieli Lomani. In relation to the 1st Accused there is also the admissions in his interview if you accept them.
Are you satisfied beyond reasonable doubt that the 1st and 2nd Accused were in the group unlawfully using the vehicle of Murad Buksh? If you are then you may find them guilty to Count 3.
Result
Remember what I said to you to consider the case against each Accused separately.
Your possible opinions on each count for each accused are guilty or not guilty. You may now retire.
Nazhat Shameem
JUDGE
At Suva
26th November 2008
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URL: http://www.paclii.org/fj/cases/FJHC/2008/325.html