State v Vulaca [2008] FJHC 389; HC HAC0120.2007 (16 April 2008)

IN THE HIGH COURT OF FIJI ISLANDS
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC0120 of 2007

STATE

v.

LOLE VULACA
WAISALE BOLETAWA
MAIKA RAUQERA
RUSIATE KOROVUSERE
JONE CAMA
ERONIMO SUSUNIKORO
EREMASI NARAGA
PITA MATAI

Hearing: 14^th April 2008
Ruling: 16^th April 2008

Counsel: Mr. W. Kuruisaqila & Ms L. Lagilevu for State
Mr. J. Semisi for Accused 1, 2, 3, 4, 6-8
Mr. S. Karavaki for Accused 5

RULING ON NO CASE TO ANSWER APPLICATION

All Accused persons make an application that they have no case to answer. The 1^st to 7^th Accused are jointly charged with the murder of Tevita Malasebe on the 4^th and 5^th of June 2007. The 8^th Accused, Pita Matai is charged with being an accessory after the fact to murder.

The test at this stage of the trial in the High Court is whether there is any evidence (touching on each element of the offence) that each accused committed the offences charged. Section 293(1) of the Criminal Procedure Code provides:

"When the evidence of the witnesses for the prosecution has been concluded, and the statement or evidence (if any) of the accused person before the committing court has been given in evidence, the court, if it considers that there is no evidence that the accused or anyone of several accused committed the offence, shall, after hearing, if necessary, any arguments which the legal practitioner for the prosecution or the defence may desire to submit, ... record a finding ... of not guilty."

The test in the High Court is a different one from that in the Magistrates' Court. The test in the latter is whether, taken at its highest, a reasonable court could convict on the prosecution case. The test in the High Court is whether there is relevant, admissible and inculpatory evidence implicating the accused in the offence charged. It is not for the court at this stage to assess credibility or reliability of evidence, although if the evidence is "inherently vague or incredible" that would not satisfy the section 293 test (State v. George Shiu Raj and Shashi Shalendra Pal [2006] AAU0081/05S). If there is some relevant and admissible evidence, direct or circumstantial touching on all elements of the offence, then there is a prima facie case, and the accused must be put to their defence (State v. Eliki Mototabua [2004] HAC 020/02S. In State v. Saimoni Kaitani & 3 Ors. [2005] HAC044/04S (per Gates J), there were three sources of evidence, handwriting, presence at or near the crime scene, and admissions. All three sources were considered at the end of the prosecution case, and any inconsistencies between the evidence were matters of the assessors.

The evidence

Counsel have been unable to agree to any facts in this case and I proceed on the basis that all the evidence is in dispute. The prosecution evidence is that the deceased Tevita Malasebe, a 30 year old man was taken from his home by police officers on the 4^th of June 2007 at about 12 midnight. His mother, Anisa Solivolili said that Lole Vulaca (the 1^st Accused) came into the house and did not tell her why he was taking the deceased, but promised to bring him back. The deceased was handcuffed at his home and the 1^st Accused told her that he was following the others to make sure they did not assault her son. She then also went to the Valelevu Police Station with her other two sons and arrived there about an hour later. There, the police officers in the charge room denied that her son was at the station. While there she and her son saw the vehicles which had taken the deceased, parked at the station.

She heard noises from the Crime Office, noise she described as rumbling, and shuffling. She went towards the noise from the outside of the station, calling out her son's name. She believed that he was being assaulted in the Crime Office. Outside the Crime Office, she saw 3 people sitting on the bench. One of them she identified as the 4^th Accused. One of the men chased her away from there. She re-entered the charge room, then sat in a chair just outside the charge room. While waiting there she again saw the 4^th Accused, coming out of the Crime Office entrance. He was wearing a black jacket and black ¾ pants and he whispered to a police officer in the charge room. He looked at the deceased's mother and son, then went slowly out. She saw the 4^th Accused again the next day at the hospital, and she and her son accused him of being one of the men who had taken her son.

The evidence of DC Amani Bosenawai of the Strike Back team was that at 4am on the 4^th of June 2007, he was instructed to assist the Valelevu Police in a robbery investigation. He arrived at Valelevu Police Station after 11am. He was briefed with others by the 8^th Accused Sgt. Pita Matai. The Crime men present at the briefing were the 1^st Accused, the 2^nd Accused, the 3^rd Accused and other crime officers. They were called back to Valelevu Police Station at 6pm for another briefing by Sgt. Pita (the 8^th Accused). They went out to look for suspects and returned again at 9pm and 11.30pm. At the 11.30pm briefing the 8^th Accused asked for assistance to arrest Tevita Malasebe. At this briefing, the 1^st Accused, 2^nd Accused, the 6^th Accused, the 7^th Accused, the 3^rd Accused and 5^th Accused were all present. These officers with DC Amani, left in 3 vehicles to arrest the deceased. One was driven by the 1^st Accused, one by DC Matai and the third by Sgt. Epeli Vamosi. DC Amani was in the same vehicle as the 2^nd Accused, and Sgt. Vamosi. At the deceased's house, the 1^st, 2^nd and 3^rd Accused spoke to the deceased's mother. The deceased was then put into GN503 (the planning vehicle) driven by Constable Matai. The vehicles then went back to Valelevu Police Station. Sgt. Epeli Vamosi then asked the 8^th Accused if the Strike Back team from Nabua could be released. DC Amani was then released and he went off duty.

That was also the evidence of Cpl. Simione Rarasea from the Nabua Strike Back team. He identified the 1^st Accused but said he could not recall who the other officers were who went to arrest the deceased. He did say that the 5^th Accused Jone Cama was not in the vehicles going to arrest the deceased.

WPC Saleshni Devi who was in the charge room from 12 midnight on the 4^th of June saw the 1^st Accused sitting in the vehicle outside. She also heard someone crying. WPC Kharti was on duty from 11pm in the charge room. No one was brought into the charge room that night for her to register and lock in the cell. She said that after midnight she heard voices and the sound of crying coming from the Crime Office. She said she heard this between 1am and 2am. At 3am the 7^th Accused Constable Eremasi Naraga came into the charge room and went into the cells. He took out a blue mattress and went out of the charge room through the back door.

WPC Sesenieli Cagi was on duty from 10.45pm, as the station orderly. At 1.10am the deceased's brother Samu came in looking for his brother. At 2am she heard a man yelling, while she was in the charge room. She then saw a bald-headed policeman in civilians carrying a blue mattress. In cross-examination she said the sound of yelling came from the direction of the Crime Office, that she had never heard such a thing before and she did not want to go to that side.

The deceased was next seen by Cpl. Mosese Kalidole. He was at the station washing his hands behind the Crime Office at around midnight on the 4^th of June. He saw the 5^th Accused Jone Cama, and the 8^th Accused Pita Matai talking beside the sink. He saw two vehicles parked outside the station and he saw the 1^st Accused and a Fijian man whom he later came to know was the deceased, come out of the vehicle and go straight into the Crime Office. Corporal Masidole left the station after he was told by the 8^th Accused to interview the deceased the next morning. The next morning he was picked up by the 8^th Accused and the 7^th Accused. He went into the Crime Office at 6.30am and saw the deceased lying down facing up. He had breathing difficulties and was touching his stomach. Cpl. Masidole went and told the 8^th Accused what he had seen.

The evidence of SC Ritesh Lal was that he was on duty at Valelevu Police Station from 11pm to 7am on the 4^th of June 2007. He heard a cry from the Crime Office saying 'wailei' at about 3am. At 4.30am he walked behind the Crime Office and a police officer who he knew as "Jone" came out of the Crime Office. He was not able to recognize him now. He told SC Ritesh Lal to go away to the other side of the station.

The evidence of Sgt. Vereniki Seru was that suspects brought to the station come into the charge room so that the station orderly can enter his or her name in the station diary. If in remand, the suspect must be kept in the cell, and when taken out of the cell for interrogation, this is also noted in the station diary.

PC Pita Qiolevu gave evidence that on the 4^th of June 2007 he was on duty from 11pm to 7am. Passing the Crime Office between 4am and 4.30am he heard the sound of loud crying. The voice was saying "Officer please have mercy on me." It then said several times "officer please let me live." PC Qiolevu told DC Jone (the 5^th Accused) this. The 5^th Accused was standing just outside the Crime Office. There was no response.

At 6.45am PC Samuela Vinakayawa (PW11) went into the Crime Office, and saw the deceased lying on the floor. He was wearing a t-shirt and asked for a drink of water. WPC Taraivini came to the Valelevu Police Station before 8am. She saw the 2^nd and 4^th Accused sitting outside the Crime Office. They looked tired and worried. Inside the Crime Office she saw a Fijian male on the floor, lying on a blue tarpaulin or mattress. He was not moving. She made a phone call and went back to her barracks. On her way to attend a police tribunal at 8am, she saw that the same man with the blue tarpaulin or mattress was being loaded into the back of GN174. The 1^st Accused was driving and the 2^nd Accused and the 6^th Accused were sitting at the back.

WPC Maca Baleinimoto also said that she saw the 2^nd and 6^th Accused loading a body into the police van. She also saw DC Rusiate (the 4^th Accused) standing outside the crime office.

Several extra-mural prisoners gave evidence. PW14 Koresi Wainiqolo said that he came to work at the station at 7am. He saw four CID men carrying a bag from the Crime Office, loading it into the twin cab and drive away. They were the 1^st Accused, the 2^nd Accused, the 4^th Accused and the 6^th Accused. He shouted to his friends outside the bure "someone is dead and his being loaded into the lorry." He said that he thought the man was dead from the way he was thrown into the vehicle.

Another extra-mural prisoner Zarif Ali said that he was at the station from 6.55am on the 5^th of June. He cleaned parts of the station. He was then told to clean the Crime Office by the 2^nd Accused. He was told three times. When he went to the Crime Office, he saw human faeces and urine on the floor. The room smelt bad and he left. The 2^nd Accused asked him again to clean the Crime Office. Later he saw the 4^th Accused wearing hand gloves, cleaning the mess on the floor of the Crime Office. He then saw a police twin cab parked towards the bure. He saw two legs with blood clot marks on his feet on the open tray of the vehicle. Then he saw the 6^th Accused push that person's legs in, close the tray of the vehicle and jump in. Then the witness was told by the Sergeant to clean the mattress lying next to the sink. He cleaned it and put it back into the cell.

Another extra-mural prisoner Jimi Qailau arrived at Valelevu Police Station at 7am. He saw the 1^st Accused lying down in the police bure. He saw a police officer "Jo" take a blanket and throw it onto a rubbish heap. The witness went to take rubbish from outside the Crime Office, and found a white bucket with wet underwear in it. He threw it onto the rubbish heap. He also saw the vehicle leave with the 1^st, 2^nd and 6^th Accused in it.

The State called medical evidence from Dr. Balbinder Kuar, Elia Batibasaga and Emi Raceba. Dr. Kuar was on duty at the CWM Hospital from 8am on the 5^th of June. At 8.30am the deceased was brought in on a trolley. She said that the patient had no life sounds, no breath and no heart sounds. The two men who brought him in were police officers who told her that the patient had been lying somewhere on the streets. She tried to resuscitate the patient but with no success. She declared him dead.

The Staff Nurse Raceba saw the deceased wheeled in by two men. One of them was the 1^st Accused. The other was identified by a colleague as the 4^th Accused.

Another nurse Elia Batibasaga saw the deceased at CWM Hospital when he was brought in on a trolley. He connected the deceased to an ECG monitor and saw that the tracing was a flat line. This meant that the deceased was dead. He saw no other sign of line and he told Dr. Kuar that the patient was dead on arrival. They tried to resuscitate him but with no success. He signed the Notification of Death form and noted that the deceased was "dead before arrival." In his opinion, the deceased had been dead for "quite a while" because he was cold and clammy all over the body. He said perhaps for two hours or more. It was suggested in cross-examination that he lacked the qualification to make that assessment. He accepted this as fair comment.

Evidence was given by scene of crime investigators that when they arrived at the scene at Valelevu Police Station, the Crime Office had not been cordoned off.

ASP Tokowara Parker is ASP Crime Nasinu and is and was in June 2007, overall responsible for crime investigations in the Nasinu and Valelevu areas. At 7am, IP Ramasibana briefed him that the deceased had been arrested early in the morning. At 10am, IP Ramasibana informed him that the deceased had been taken to hospital. Later he was told that the deceased was dead. They went together to the CWM hospital with the 4^th Accused who was driving. At the hospital, he saw black spots on the deceased's stomach, back and legs. The deceased's mother accused the 4^th Accused as being one of the officers who had come to her home early in the morning and taken her son away. The 4^th Accused denied this.

IP Ramasibana was in June 2007 the Crime Officer Valelevu. On the 5^th of June 2007, he arrived at the Valelevu Police Station at 7am. After 8am, the 8^th Accused Sgt. Pita Matai told him that they had brought the deceased, and that he had breathing difficulties and had to be taken to the hospital. Later he was informed by an officer at the Central Police Station that he should come to view a body. He went with ASP Parker and the 4th Accused.

The pathologist Dr. Prashant Samberkar gave evidence of the post-mortem. The deceased died of shock and internal haemorrhage, due to multiple bruises as a complication of multiple blunt impacts. There were 38 external injuries of bruises, abrasions and handcuff abrasions. There were two imprint abrasions on the back. He listed 16 internal injuries of extensive haematoma, fractured ribs (the 6^th, 7^th, 8^th and 9^th) and large areas of haematoma over the abdominal wall, and over the right and left feet. A histopathology report showed systemic shock and blunt trauma of the brain, lungs, heart, liver, spleen and kidneys. The sections showed diffuse congestion. He found the bruises on the deceased to be recent in origin. He found that the deceased died within 8 hours of examination. He described "blunt trauma" as the cause of most of the injuries which means a body striking a flat surface or irregular surface or an object, instrument or weapon striking the body. He described the handcuff abrasions as being caused by a tight ligature around the wrists. In describing the kind of force necessary to cause the injuries he found, he said that in his opinion there were multiple blunt impacts using an object, instrument or weapon such as a rod, flat wooden plank or multiple kicks to that area. In relation to some injuries such as injury 17, he said a fall could also have caused them. He was of the opinion that a flat wooden plank had caused the imprint abrasions. He described the injuries on the soles of the feet as "falanga" or repetitive blunt trauma to the soles of the feet. He said that this was found in police custody deaths, and was evidence of a torture technique.

Cpl. Jioji Ravaqa gave evidence that he seized exhibits on the 5^th of June 2007, including handcuffs (Ex. 14), 2 pieces of broken timber found in the Crime office (EX. 13) and outside the Crime Office window, and a blanket from the rubbish heap outside the police compound (Ex. 17).

The prosecution tendered caution statements of some of the accused. The 1^st Accused said that on the night of the 4^th of June 2007 he had been instructed by D/Sgt. Matai (the 8^th Accused) to conduct a raid on the deceased's house in Newton. The raid involved three police vehicles. At the deceased's house, he spoke to his mother. The deceased was handcuffed and taken to the police station. At the police station the 1^st Accused arrived at the Crime Office. The deceased was already inside with the crime men who has escorted him. He said he then left believing that the proper procedure would be followed. He refuelled the vehicle, came back to the station and slept inside the vehicle. He then gave the key to the vehicle to the Accused who was outside in the verandah and went home. He came back to the station at 5.30 am when the 2^nd Accused woke him. He lay down under the mango tree on a wooden platform. He was then instructed by the 8^th Accused to go to the Criminal Records Office. On his way he was called back by the 8^th Accused who told him to take the deceased to hospital. The 2^nd, 4^th and 6^th Accused carried the deceased into the vehicle on the blue cell mattress. He drove to the hospital and dropped the deceased, the 4^th and 6^th Accused there. He then went to the Crime Records Office and went back to the station. He denied any knowledge of assault on the deceased.

There was no interview tendered for the 2^nd Accused. The 3^rd Accused said he did not know anything about the interrogation of the deceased. However he admitted accompanying the other crime men and Strike Back team on the "raid" on the deceased's house, saying, he had gone voluntarily although he was not part of the team. He said that after escorting the deceased to the Valelevu Police Station, he went home in his car as he was very tired and sleepy. He came back to the Station after 8am.

The 4^th Accused said that he was part of the "raid" on the deceased's house and he was in the vehicle driven by the 1^st Accused GN184. He said he did not go inside the deceased's house guarding the informer. He said that the vehicle conveying the deceased arrived first at the Valelevu Police Station and he could not recall if the deceased's name was entered in the cell book. He said that when he saw the deceased in the Crime Office, he was fully clothed wearing a white t-shirt with ¾ pants. He said he had not kept a record of the raid or of any interrogation of the deceased. He said he did not see anyone punching or kicking the deceased. He agreed that he had been in the Crime Office after the deceased was brought in, for about 30 minutes. He said that all the crime men who were involved in the raid were in the Crime Office, with some other police officers. They were laughing. After he reported off duty he went to sleep. Finally he said he saw no one kick or punch the deceased, that the deceased was involved in a robbery at the Valelevu Industrial and that the deceased had been in the getaway vehicle which had crashed into the sidewalk when a ten wheeler truck had reversed into it.

The 5^th Accused denied that he had been the Recorder during the operations that night, and said he had no idea who had gone to raid the house of the deceased. He said he had not accompanied the raid team and did not know what time they had left. He said he did not know the deceased and he was not present when the 8^th Accused briefed DCO Southern at 7pm about two suspects of the robbery including the deceased. He said that during the night he had prepared the docket on the case in the computer room and the Crime Officer's office. The latter is on the top floor of the station. The computer room is next to the Crime Office on the ground floor. He agreed that he was on duty on the 4^th of June and he later agreed that he had been at the briefing at 7pm with DCO (Southern). He said he had been instructed to prepare the docket for Jone Savui another suspect in the same robbery. At the same briefing, the 5^th Accused came to know that the deceased was also a suspect.

The 6^th Accused said in his statement that he was on duty on the 4^th of June 2007 during the day. He said that he was at home during the night and in the morning he was detailed to take the deceased to hospital because he was sick.

There was no interview tendered for the 7^th Accused. The 8^th Accused told the police that he formed a team to investigate the robbery at Golden Manufacturers in Valelevu. The offence had been committed on 31^st May 2007 at 10am. On 3^rd June, Jone Savui was interviewed. He implicated the deceased. On 4^th June 2007, a team from Strike Back was sent to Valelevu Police Station. They looked for the suspects and returned at 1lpm. He told them to stand down but they asked to make another attempt to locate the suspects. While the 8^th Accused was still at the station the vehicle with the deceased in it, arrived. The vehicle was driven by Constable Matai. Escorting him were the 2^nd Accused, 3^rd Accused and Constable Setoki. He instructed them to lock the deceased in the cell and he would be interviewed by Constable Kalidole the next morning. He and Constable Kalidole left the station at 1.17am. At 5am, the 7^th Accused came to his house and asked him to bring Constable Kalidole to the station. They went together to Waila at 6am. They brought Constable Kalidole back to the station and the 8^th Accused instructed him to interview the deceased. After 7am, Constable Kalidole came to his home and told him the deceased was having breathing difficulties. The 8^th Accused instructed the 1^st Accused to return to the station to convey the deceased to the hospital. The 8^th Accused saw the deceased lying on the floor of the Crime Office. He was carried into the vehicle and the 1^st Accused drove him to the CWM Hospital. The 8^th Accused briefed Crime Officer Ramasibana. After lunch he was told by Crime Officer that the deceased was dead.

In the same interview he said he saw the deceased arrive in a vehicle. He was handcuffed and looked well with no sign of weakness. He was escorted by the 2^nd and 3^rd Accused and Constable Setoki, into the Crime Office. He said that when he saw the deceased lying on the floor the next morning, the deceased was finding it difficult to breath.

That is a summary of the prosecution case. In accordance with the authorities, for the purpose of this ruling, I consider the evidence "at its highest."

The submissions

Counsel for the accused both submitted that there is no direct evidence implicating any of the accused to any assault on the deceased. In relation to some of the accused (in particular the 2^nd, 3^rd, 5^th, 6^th and 7^th Accused) there is no evidence that they even entered the Crime Office that night. In respect of the 1^st Accused, counsel submits that he was only the driver and was nowhere near the Crime Office until he was called back to take the deceased to hospital. Counsel for the 5^th Accused submits that his client had no role in the arrest or interrogation of the deceased and has been wrongly charged.

Counsel for the State submits that this is a case of joint enterprise, and that the lack of direct evidence implicating any of the accused persons is irrelevant. He submits that the evidence of PW1 about the manner of the arrest, the words spoken by the 1^st Accused at the time of arrest, the total disregard of police recording procedures on the deceased's arrival at the station and the evasive conduct of some of the accused, provide sufficient circumstantial evidence that the deceased was brought to the station to assault him. He submits that there was a common purpose, and acts in furtherance of that common purpose and whether or not each accused actually assaulted the deceased, they are all prima facie responsible for his murder.

In relation to the 8^th Accused who is charged with being an accessory after the fact, counsel for the defence submits that there is no evidence that he did anything to assist the accused to evade detection and that assuming the deceased was still alive when the 8^th Accused saw him, he acted properly and lawfully in ordering the deceased to be taken to hospital.

State counsel submits in response that the question of whether or not the deceased was alive or dead when the 8^th Accused saw him on the 5^th of June, is a question for the assessors, and that the removal of the deceased from the Crime Office was capable of constituting evidence of active assistance and should be left to the assessors.

State counsel has also referred me to R v. Forman and Ford [1988] Crim. L.R. 677 a case of two police officers prosecuted for assaulting a suspect, occasioning him actual bodily harm. The suspect was placed in a cell and handcuffed. He was then assaulted once on the back of his head. There were two police officers in the cell and he was unable to say which of the two had assaulted him. The jury was directed that where one police officer assaults a prisoner and the other does not intervene, nor does he report the offence, it does not matter which of them struck the blow and which encouraged the other. They are both guilty of assault. This direction was upheld on appeal. As a matter of law, police officers have a duty to prevent the commission of crimes, and when they fail to intervene when a person is assaulted, that is capable of amounting to aiding and abetting. The prosecution need only prove that the assault must have been committed by either officer or both.

In considering this authority, I have of course taken into account the fact that the evidence only places the 4^th Accused inside the Crime Office and that the prosecution relies upon a theory of the case that the raid on the deceased's house was a premeditated and planned joint enterprise to beat the deceased at the station to which each of the accused 1 to 7 was an alleged party.

Analysis

As I have already set out in this ruling, the question is whether the evidence led, touches on each element of the offences charged. Where the evidence is not direct but is circumstantial, as it is in this case in relation to the identity of the suspects, I accept the approach set out by High Court of Australia in a case referred to me by State counsel. It is Case Stated by DPP (No. 2 of [1993] SASC 4152; 1993) 70 A Crim. R 323. In that case, the accused were acquitted on offences relating to the possession of heroin. The police had seized three parcels of heroin from a garden, on which they found fingerprints of the male accused. Police also found a parcel of cocaine in a different place with the fingerprints of the female accused. The trial judge held that there was no case to answer, and reserved questions of law for the High Court. It was held by the High Court (per King CJ, Mohr and Bollen JJ) that the test for a no case to answer submission in a case of circumstantial evidence is whether there are inferences which are reasonably open on the evidence. The judge should not choose which inference was consistent with the accused's innocence. In the case before the trial judge, it was open to a reasonable jury to conclude that the accused were in joint possession of the drugs and there was a case to answer.

At page 327 of the judgment (per King CJ) the test is summarized as follows:

"If there is direct evidence which is capable of proving the charge, there is a case to answer no matter how weak or tenuous the Judge might consider such evidence to be, if the case depends on circumstantial evidence, and that evidence, if accepted, is capable of producing in a reasonable mind a conclusion of guilt beyond reasonable doubt and thus is capable of causing a reasonable mind to exclude any competing hypotheses as unreasonable, there is a case to answer. There is no case to answer only if the evidence is not capable in law of supporting a conviction. In a circumstantial case that implies that even if all the evidence for the prosecution were accepted and all inferences most favourable to the prosecution which are reasonably open were drawn, a reasonable mind could not reach a conclusion of guilt beyond reasonable doubt, or put it another way, could not exclude all hypotheses consistent with innocence, as not reasonably open on the evidence."

I accept the principles in this passage, although I am aware that section 293 of the Criminal Procedure Code does not require the High Court to apply the Galbraith (1981) 2 All ER 1060 test of asking whether a reasonable court might convict. For the purpose of this ruling, I ask myself whether the evidence led, taken at its highest, is capable of providing inculpatory evidence in relation to the charges, and in relation to each accused. Whether such evidence is in fact inculpatory is a matter for the assessors. I also exclude from my consideration any reference to other accused persons contained in the caution interviews. Each interview is only evidence against its maker.

I find on an assessment of the evidence against each accused, that there is a prima facie evidence that the deceased was assaulted while he was in the police custody on the night of the 4^th and 5^th of June 2007. I also find that there is prima facie evidence that whoever inflicted the injuries found on him, did so either with intention to kill or cause grievous bodily harm, or with recklessness as to whether such harm would be caused. In relation to each accused, I also accept that there is prima facie evidence in the manner of arrest, the conduct of the arresting and escorting officers, the failure to follow police instructions or procedures and the way in which the deceased was taken to the hospital, to suggest a joint enterprise. Certainly the evidence is capable of producing in the minds of assessors, such an inference. I also accept that the 1^st to the 7^th accused persons were, prima facie, part of the arresting and escorting group, or present at the station or in the Crime Office, during the night of the 4^th and 5^th of June. Whether the presence of each, either at arrest, or in the Crime Office, or in the charge room, or when escorting the deceased to hospital, together with all the circumstances of the case are sufficient to satisfy the assessors of their guilty beyond reasonable doubt, is not the question at this stage of the trial. However the evidence is capable of allowing such an inference to be drawn.

In relation to the second count for the 8^th Accused, whether or not the deceased was dead when the 8^th Accused saw him is a question of fact for the assessors. On the evidence of the prosecution, there is one possible theory that he was dead, and that the 8^th Accused ordered the removal of his body from the scene. Section 388 of the Penal Code requires proof of assisting persons whom the accused knows have committed an offence to escape punishment. Whether the 8^th Accused assisted those who had assaulted and killed the deceased on the 5^th of June, whether the removal of the deceased and the failure to preserve the crime scene was active assistance, whether the 8^th Accused was motivated by the wish to enable other police officers to escape punishment, are all questions for the assessors after consideration of the evidence. There is a case to answer for the 8^th Accused on Count 2.

Result

I find that each accused person has a case to answer. They must each put to their defence.

NAZHAT SHAMEEN
JUDGE

At Suva
16^th April 2008