State v Ali [2010] FJHC 236; HAC014.2010 (7 July 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 014 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

1. ZAFIR TARIK ALI
2. TAIMUR ALI
3. TAHIR ALI
4. CHANDLESH GANESH
ACCUSED PERSONS

Counsel: State - Ms. Cokanasiga J.
Accused Persons - Mr. Raza M.

Date of Summing Up: 7th July, 2010.

SUMMING UP

Madam Assessors and gentleman Assessor.

1. It is now my duty to sum up this case to you. I will direct you on matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.
   
2. You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.
   
3. The Counsels for the Defence and Prosecution made submissions to you about the facts of this case. That is their duty as Defence Counsel and State Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.
   
4. You will not be asked to give reasons for your opinions but merely your opinion themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that they will carry great weight with me when I deliver my judgment.
   
5. As a matter of law, I must direct you that the onus or burden of proof rests on the prosecution and it never shifts. There is no obligation on the four accused persons to prove their innocence. Under our criminal justice system an accused person is presumed to be innocent until he is proved guilty.
   
6. The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of each of the the accused’s guilt before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt then you must express an opinion that he is not guilty.
   
7. Your decisions must be solely and exclusively upon the evidence, which you have heard in this court and upon nothing else. You must disregard anything you might have heard about this case, outside of this courtroom. You may have seen news items in news papers about this case before and during the trial. You must disregard them and your opinions should only be based on the evidence given in this court room.
   
8. Your duty is to find the facts based on the evidence apply the Law to those facts.
   
9. The accused persons in this trial are charged with one count of murder. The particulars of the charge in the information alleges that the accused persons on 4th day of January 2010 at Bau road, Nausori in the Eastern Division murdered James Shankaran Nair.
   
10. The offence of murder has three elements which prosecution must satisfy you beyond reasonable doubt.
    

They are:

1. That the accused did an unlawful act
   
2. That this unlawful act caused the death of the victim
   
3. That the accused acted with malice aforethought
   
11. I will now explain these three elements to you. An unlawful act is something done by a person that is against the law. A very common example of unlawful act is where a person deliberately applies force to another person without legal justification. If a person intentionally strikes another person without legal justification then that is a criminal assault. In such circumstances a person who deliberately punches, kicks or hits another person without legal justification then that is a criminal assault. In this case it is for the prosecution to prove that the accused persons did an unlawful act.
    
12. The second element of the offence of murder that must be proved is that the unlawful act caused the death of the victim. The Law requires a link between the unlawful act and the death. Usually the unlawful act causes some specific injury to the victim and that particular injury causes the victims death. Usually the unlawful act causes an injury which is the sole cause of death. But it is sufficient if it is an operating or substantial cause of death.
    
13. The 3rd element that must be proved for the crime of murder is that the person who caused the death of another by an unlawful act did so with "malice aforethought". This is a legal term which describes a particular intention or state of mind.
    
14. It is an intention to cause death or grievous harm to the victim or knowledge that death or grievous harm would probably be caused.
    
15. Grievous harm means any bodily hurt which seriously or permanently injures health or which is likely to seriously or permanently injure health.
    
16. Therefore the State must prove beyond reasonable doubt that the Accused persons committed an unlawful act causing his death and at that time they intended to cause serious or permanent injury to the deceased or they knew that serious or permanent injury would be likely to be caused to the deceased.
    
17. You must not find the Accused persons guilty of murder unless you are sure that the Accused persons, when they did the act, intended to kill or cause grievous harm to the deceased. In deciding whether they intended to kill or cause grievous harm you must take into account the evidence which was given in court. If you think they did not intend or may not have intended to kill or cause grievous harm, then you must find them not guilty of murder but guilty of manslaughter. This means that the Accused persons did an unlawful act that caused the death of the victim but it is not proved that the Accused persons had the necessary intention to kill or cause grievous harm. They would then be guilty of the crime of manslaughter, as the fatal consequences or causing grievous harm was not intended or contemplated by them.
    
18. You should consider all the proved facts and circumstances, and from them you are entitled to draw proper inferences as to the Accused persons conduct, knowledge and intentions.
    
19. A persons intention are locked up in his mind. The intent cannot be physically observed. However this intent can be proved by what he said or told others including his statement to the police, or it can be inferred from his conduct prior to, during and subsequent to the commission of the offence.
    
20. The other relevant factors when considering the intent to cause death may be the weapon used, the nature of the injuries inflicted and their number, where on the body the victim was struck.
    
21. As a matter of Law may I direct you on circumstantial evidence. In this case the prosecution relies on circumstantial evidence.
    
22. In circumstantial evidence you are asked to piece the story together from witnesses who did not actually see the crime committed, but give evidence of other circumstances and events that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime.
    
23. I cite the following situation as an example for circumstantial evidence. In a silent night you hear cries of a man from a neighboring house. You come out to see that a man named ‘X’ is running away from that house with an object in his hand. Out of curiosity you go inside the house to see what really had happened. You see your neighbor ‘y’ lying fallen with injuries. Here you didn’t see x committing any act on Y. The two independent things you saw were the circumstances of the given situation. You can connect the two things that you saw and draw certain inferences. An inference you may draw would be that X caused the injury on Y. In drawing that inference you must make sure that it is the only inference that could be drawn and no other inferences that could have been possibly drawn from the said circumstances. That should also be the inescapable inference that could be drawn against X in the circumstances. Further in evidence one witness may prove one thing and another witness may prove another thing. None of those things separately alone may be sufficient to establish guilt but taken together may lead to the conclusion that the accused committed the crime.
    
24. Therefore you must consider all direct evidence as well as circumstantial evidence.
    
25. It must not be mere speculation guesswork. It is not sufficient that the proved circumstances are merely consistent with the Accused persons having committed the crime. To find him guilty you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt that the Accused persons committed the crime.
    
26. Before you can draw any reasonable inferences you must first be satisfied beyond reasonable doubt that the evidence given by witnesses relating to the circumstances giving rise to the issues of fact to be proven, is credible and truthful.
    
27. As a matter of law I must also direct you on the law of joint enterprise. The prosecution alleges that the four accused acted jointly to commit the unlawful act on the deceased James Shankaran Nair as a part of joint enterprise. As a matter of law, when several persons are charged with an offence, the person who actually does the act constituting the offence is not the only one who can be found guilty of it. Anyone who actively assists him to commit the offence is equally guilty of the offence.
    
28. The law also states where two or more persons get together and form an intention to commit an offence together and in the course of committing that offence, another is committed which is a probable consequence of the first contemplated offence, then each is deemed to be guilty of the offence which is finally committed.
    
29. So in this case you must ask yourselves whether the four accused jointly agreed to commit an unlawful act on the deceased. You must ask yourselves first, whether the prosecution has proved beyond reasonable doubt that the accused persons committed an unlawful act on the deceased and if so then whether James Shankaran’s death was a probable consequence of that joint act. If you are satisfied that they had the common intention to commit an unlawful act on the deceased, and that he died as a probable consequence of that act, they are each guilty of murder even if only one of the accused persons committed the said unlawful act. You must of course be satisfied beyond reasonable doubt that there was an unlawful act committed on the deceased in this case and that the accused persons were part of a joint plan to commit the said act.
    
30. On the basis of these legal principles that I have explained to you, you must consider the evidence in the case and decide what has been proved. As I said earlier it is your function to assess the credibility of witnesses. You decide who is truthful and to be believed.
    

The Evidence

The prosecution called 13 witnesses.

31. The 1st witness called by the prosecution was Mohommed Sakariya Ali. According to his evidence Zafir Tarik Ali and Taimur Ali are his uncles. On 3rd January 2010 in the night there had been a robbery at Zafir’s place and he was woken up by his mother at about 2 to 2.30 am. He went there to see and the police had come in a while. He said that he too got on to the vehicle Ford Ranger with his two uncles Zafir Tarik Ali, Taimur Ali and Chandlesh Ganesh and later picked Tahir Ali at his place. They went in the van to look for the thieves. They came in front of the main road, entered Nadali village Road and came to Vuci South road and then to Bau Road. There they met police officers who asked them whether they saw a van.
    
32. When they entered Wainibokasi Road they saw the deceased in front of the Nadali cemetery. Tahir asked the deceased where he was going and deceased had said that he was going home and was coming from town. Then Tahir told him to sit down in the tray. He said "We told him to sit down. He jumped into the tray and sat down". Witness had been sitting on the seat behind the drivers’ seat and Zafir Ali was driving. Chandlesh was seated in front seat next to the drivers’ seat. Taimur Ali had been seated between the witness and Tahir.
    
33. Then they entered Vuci South Road and then to Bau Road. He said the vehicle was driven at the speed of 55 to 60 Km per hour. He had seen the deceased seated on the back tray for the last time at the junction of the Vuci South road and the Bau road. Then they noticed that the deceased was not there and they were going to the police station. At Wainibokasi Road they met the red sedan car which was driven by his mothers brother where they stopped opposite Ratu Cakobau park where a police vehicle came and stopped. When police asked what happened Zafir told the police that they took the deceased into the vehicle and that he jumped somewhere in Bau Road. They followed the police and they showed the police the place. Police checked and nothing was found.
    
34. With the police they went to the deceased’s fathers’ house father had said deceased was not at home. They returned to Manjur Ali’s home.
    
35. Witness said that they wanted to take the deceased to the police station as they suspected him for the robbery. They suspected him as they were wondering who would return from the town at that time of the night. He further said that he was not sure whether they took anything else in the vehicle.
    
36. In cross examination he said that James was a casual worker of the area and he saw him at the wedding. He said they wanted to hand over the deceased to the police for questioning and on seeing him missing from the vehicle they intended to report to the police. In cross examination he said that they brought only a knife and a torch and nothing else. James was never threatened by anyone with the knife.
    
37. The next witness was Kanjaubu Nair the father of the deceased James. He said on the 3rd January he saw his son James at Manjur’s place at Nadali and then at about 4pm he had seen James cutting grass at Chandalesh’s place. By 6.30 pm Chandalesh Ganesh had dropped him home with the brush cutter. Then James dressed and went back. He was not sure where he went. On 4th January at about 3.00 am when he was sleeping a police vehicle came to his compound with two other vehicles, one was a twin cab and other was a white station vagan. One of the police officers was Nitti. Police asked for his son James and he said that James was not there. Then the vehicles went back. In the morning his cousin Segran informed him that he saw a body lying beside the road which looked like his son. He went to find that the dead body was his son. It was around 7 am he said.
    
38. The next witness was Jai Chand who lived in Bau Road. On 4th January by 6.30 am he went to pick his cousin with his daughter. As he picked his cousin his daughter saw a body on the side of the road. He stopped the car to see the face of the body was swollen and that he was already dead. This was in Bau road. He called 917. He said the body was lying on its back and face upwards.
    
39. In cross examination he said his cousin stays in Bau road and not in Vuci Main Road. Further answering to the questions on his police statement he said he picked his cousin from Bau Road, not from Vuci Road.
    
40. Prosecution then called DC3284 Jitendra to give evidence. On 4th January 2010 at 02.18 am when he was on duty at Nausori Police Station he received a report that one Norisha Ali’s house was broken into. He came to the crime scene with two police officers with dogs. At the scene he noticed some louver blades were removed and some cosmetics and other items were scattered on the ground. He gave evidence on the investigations done and with the aid of the police dogs they searched the area for about an hour. Complainants were from Bau Road and family members had been there as there had been a wedding. While they were searching complainants brothers went out in a twin cab and he didn’t know where they headed to. They couldn’t get a link and it was around 5am when they came back to the police station.
    
41. In cross examination he denied going to the deceased’s house that night. He further said when other police officers were looking for the suspects he was not with them. At 6.50 am another report was received that an unidentified body was lying on Bau Road and he with Sgt. Lepani and PC Nitti visited the scene and saw a body lying in a drain.
    
42. Next witness was Mohommed Ifthikar. He is employed as a driver for National Hire. His evidence was that on 4.1.2010 he collected the vehicle registration No ES 699 Ford Ranger from Bau Road at 6.45 am from Taimur’s place. He said that they were using this vehicle for a wedding. Previous Friday they exchanged the vehicle to another vehicle. The said Range Rover was a company vehicle and he collected the vehicle from Taimur’s father on the 4th at 6.45 am on his boss’s instructions. He didn’t check inside the vehicle and it was brought to Suva. Then police instructed it to be brought to the police station. He said that he didn’t wash the vehicle.
    
43. The next witness was PC 3199 Nitin Nilesh. He was based at Nausori Police station. On 3rd January 2010 when he was following Wainibokosi Road in a vehicle to check a police officer who had not turned for duties he noticed a vehicle parked with lights full beam on and he approached the driver to warn him to dim the lights to see it was a twin cab. There were 6-8 people near the vehicle. The driver had been Zafir whom he knew. He had asked Zafir what happened and Zafir looked frustrated he said. Then Zafir revealed to him that a youth sitting at the tray of the van jumped out of the van at Bau road. Zafir also had told him about the house breaking and that they were looking for the suspects and how they found the deceased and how they questioned him. Zafir had told him that after the deceased was boarded to the twin cab they were travelling at a speed of about 100-120 km per hour. Zafir also told him that one of them who was sitting in the middle had a cane knife and had showed the cane knife to the deceased he said. Zafir had led them to the scene and had shown the place where the deceased jumped off. It was about 100 meters away from the place where deceased’s body was found later he said. They searched with the help of a torch but couldn’t find him. Then they went to deceased’s fathers house. Father had said that the deceased James went towards Babuloo’s house. They went to Babuloo’s house and questioned him. James had left his house at about 8pm.
    
44. Then they went to the hospital to see whether there was any injured person. They checked at the Nausori Health Centre and deceased was not there. He went back to the police station at about 3.30 am. The rough sketch map drawn by him was marked in evidence.
    
45. In cross examination he said the map was prepared on 9.6.2010 and that he forgot to put the date. He said that he was not directed to draw the map earlier and when prosecutor told him he prepared the same. He admitted that it was not drawn to scale. He admitted that he had not mentioned in his statement that Zafir looked frustrated.
    
46. Joseph Jitendra Govind gave evidence next. He lives in Vuci South Road. On 3rd January 2010 after 9 pm he went to buy cigarettes. On the way he met James. When asked James where he was going James had said he was just strolling on the road. Then they went to the bus stop and stayed there for about half an hour. Then he went to drink grog to his friends place. He had called James too to drink grog and James had said that he wants to drink beer where the wedding was held. It was around 9.45 when James left.
    
47. In cross examination he said that he didn’t have a watch and he may have met James between 9-10.30 pm. After the grog session he went home around 2 pm.
    
48. Next witness was DC 1928 Sakelasa Loganimoca.

He has arrived at the crime scene at about 8.45 am on 4th January 2010 and taken photographs of the crime scene. He explained how the body of the deceased was lying and the photographs were marked in evidence. The rough sketch he drew was also marked in evidence.
In cross examination he said in photograph No.5 it appears that the body seems to have been dragged on the grass.

49. Next witness was Coprl. 217 Satish Lal. He caution interviewed Zafir Tarik Ali and the cautioned interview statement was marked in evidence and it was red in court before you.
    
50. Prosecution called DC 2090 Kaiyum Ali who interviewed Chandalesh Ganesh and the cautioned interview statement was marked in evidence and it was red in court before you.
    
51. Prosecution then called DC 3135 Nilesh Kumar who interviewed Tahir Ali. Tahir Ali’s cautioned interview statement was produced in evidence and red in court before you.
    
52. The next witness was Cpl 84 Ami Chand. He had caution interviewed Taimur Ali and the cautioned interview statement was produced in evidence and read before you. The two knives and a piece of timber seized were produced in evidence. Charge statements of all four accused persons were marked and produced in evidence.
    
53. Prosecution finally called the Pathologist Dr. Ramswamy Goundar who conducted the post mortem on the body of the deceased James Shankaran Nair. You heard his qualifications and his experience as a Pathologist which was not challenged. He conducted the post mortem at 3.00 pm on 4th January 2010. He said he prepared the 1st post mortem report on 24th February 2010 and later found that it was not proper and he prepared another one later. He said not proper means by mistake the cause of death was written wrongly, and the cause of death which was of another person named Samisoni Vuanicau was written by mistake. Therefore he said that the cause of death ‘Ruptured aorta due to motor vehicle accident’ which was written in the first report was of another deceased and the correct cause of death of the deceased James Shankaran is " compression of medulla oblongata due to fracture of odontoid process and multiple fractures of the scull. To substantiate his position and the mistake he produced his original notes he made at the post mortem. Further he said it was brought to his notice by the State Counsel of this case. Post mortem report was marked and produced in evidence and further he explained four mistakes he has made when preparing the first post mortem report.
    
54. Looking at the corrected 2nd post mortem report he said the estimated time of death was at about 6.50 hrs on 4th January 2010. But he again said that when arriving at the estimated time of death the number of hours he noted was approximately 12 hours prior to the time of the autopsy. Therefore he said the approximate time of death would be about 3.00 am. He said that the request given by the police for the post mortem was at 6.50 am on 4th January 2010 and it was transferred on to the notes.
    
55. He said in evidence how he calculated the estimated time of death looking at the stomach contents. He explained the injuries and the injury in the back of the head can be caused by a force of very severe in nature. Further he said a blunt object like a timber or piece of wood, any hard object, something like even a rod or a pipe could cause that.
    
56. He said that there is a cut in the scalp of the back of the head. He explained how the fracture had affected the bones in the area. Further he said the cut injury could have seen externally but he didn’t enter it in the external examination.
    
57. In cross examination he said the nature of the injuries and the area caused by a blow could result instant death. Further he said that the victim could fall at the same spot. Externally there was only one injury seen. Further he said in his opinion the injury that has been sustained is not consistent with jumping off a moving vehicle.
    
58. Answering further to the questions by defence he said in the typed copy the estimated time of death is given as 06.50 and it was a mistake. It was the time given to him on the request for post mortem examination. Estimated time of death was given by the undigested food. There are other methods, but he has used only this method. He admitted that he did not inspect the contents of the stomach to see what he may have eaten.
    
59. In re examination changing his earlier position he said, he estimated the time 12 hours from 06.50 hours that is the time the body was found. He then said that estimated time of death will be about mid night.
    
60. At the end of the prosecution case,you heard me explain several options to the accused persons. They have these options because they do not have to prove anything. The accused persons opted to remain silent. That is their right to do so. You must not draw any adverse inferences from their choice to remain silent.
    
61. The cautioned interview statements of the accused persons and the charge statements were produced in evidence. Remember, what ever each accused had told in his cautioned and charge statements is evidence only against the accused who made it, and cannot be taken against other accused persons.
    
62. The written agreed facts are before you. You may accept those facts as if they had been led from witnesses from the witness box.
    
63. Madam and gentlemen assessors, you heard the evidence of many witnesses for several days on behalf of the prosecution. If I did not mention a particular witness or a particular piece of evidence that does not mean it’s unimportant. You should consider and evaluate all the evidence in coming to your decision.
    
64. Which version you are going to accept whether it is the prosecution version or the defence version is a matter for you.
    
65. You must decide which witnesses are reliable and which are not.
    
66. You may have observed that when some witnesses gave evidence there were some inconsistencies between the evidence before this court and the statement given to the police. What you should take into consideration is only the evidence given by the witness in court and not any other previous statement given by the witness. However you should also take into consideration the fact that such inconsistencies between the evidence before court and statement to police can affect the credibility of the witness.
    
67. Prosecution says that the accused persons are guilty of murder of James Shankaran Nair. It is not in dispute that the deceased was sitting on the back tray of the vehicle. The cautioned interview statements of all four accused persons were admitted in evidence by agreement of both parties. Prosecution relies on circumstantial evidence. Prosecution says that the only inference that can be drawn from the evidence is that the four accused persons caused the death of the deceased. I have explained to you what circumstantial evidence is. It is up to you to draw the proper inferences from the evidence placed before you.
    
68. Defence says that there is no evidence to implicate the four accused persons with the death of the deceased and that the prosecution has failed to prove the charges beyond reasonable doubt against the accused persons.
    
69. You may use your commonsense when deciding on the facts.
    
70. I have explained the legal principles to you. You will have to evaluate all the evidence and apply the law as I explained to you when you consider the charges against the accused has been proved.
    
71. Your possible opinions are;

On each accused; Guilty of murder or guilty of manslaughter or not guilty.

72. Madam and Gentlemen assessors, this concludes my summing up of the law. Now you may retire and deliberate together and may form your individual opinions on the charges against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.
    

You may retire to consider your opinions.

Priyantha Fernando
Puisne Judge

At Suva
July 2010