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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 054 OF 2009S
STATE
V
1. MESULAME WAQABACA
2. TIKO UATE
3. ISIRELI LEDUA NAULIVOU
4. LOLOHEA NAPAU KAULOTU
5. FILIPE JITOKO
Counsels: Mr. L. Fotofili for the State
Ms. S. Vaniqi for Accuseds No.1 and 5
Ms. K. Vukikomoala for Accuseds No. 2 and 3
Mr. V. Tuberi for Accused No. 4
Hearings: 7th to 27th July 2010
Summing Up: 2nd August, 2010
SUMMING UP
7. The five accuseds were charged with "murder", contrary to sections 199 and 200 of the Penal Code, Chapter 17. It was alleged that, on 16th May 2009, at Nasinu in the Central Division, they murdered Simione Navulatamata.
D. THE MAIN ISSUES
8. Although the accuseds were jointly charged for the offence of murder, the task for you in this case, for each accused, is to answer the following questions:
(i) Did Mesulame Waqabaca murder Simione Navulatamata on 16th May 2009?
(ii) Did Tiko Uate murder Simione Navulatamata on 16th May 2009?
(iii) Did Isireli Ledua Naulivou murder Simione Navulatamata on 16th May 2009?
(iv) Did Lolohea Napau Kaulotu murder Simione Navulatamata on 16th May 2009?
(v) Did Filipe Jitoko murder Simione Navulatamata on 16th May 2009?
This case involved five accuseds. You are actually conducting five trials against each accused, together.
E. THE OFFENCE AND IT'S ELEMENT
9. "Murder", has three essential elements. For the accuseds to be found guilty of "murder", the prosecution must prove beyond reasonable doubt, the following elements:
(i) that the accused did an unlawful act;
(ii) that the unlawful act caused the death of the deceased;
(iii) that at the time of the unlawful act, the accused either:
(a) intended to kill the deceased, or
(b) intended to cause him some serious harm, or
(c) that he knew that death or serious injury would be caused on the deceased, but nevertheless went on to do the act.
10. An "unlawful act", is simply an act not justified in law. For example, in attempting to rob someone, I rushed towards him and delivered punches to his body and head. The act of punching, without any legal justification, is an assault and is an unlawful act. It is an unlawful application of force to the person of another, and is therefore an unlawful act. Alternatively, before I punched that person in an attempt to rob him, my friend rushed forward and forcefully held him to prevent him from defending himself, and then I started punching him. My friend's act in forcefully holding the person, amounts to an "unlawful act". It is in fact, an assault, that is, an unlawful application of force to the person of another.
11. The "unlawful act" must "cause the death of the deceased". This is the second element of murder. Continuing from the above example, the right hand punch I landed on the person's head was so hard, he fell to the ground. He suffered internal bleeding in his brain, as a result, and subsequently died. My punch therefore "caused the deceased's death", because it was a substantial cause of the injuries to his brains. Without my punch, he wouldn't have had a brain injury, and therefore would not die. My punch was a substantial and major cause of his death.
12. The third element of murder is outlined in paragraphs 9(iii) (a), (b) and (c) which concerned the accused's mental state at the time of committing the unlawful act. As a matter of common sense, no one can look into a person's brain, to ascertain the person's intention, at the time of him doing the unlawful act. Nevertheless, his intentions could be inferred from his physical actions and spoken words, and the surrounding circumstances. You must put yourselves in the shoes of the accuseds, and from his physical actions, spoken words, and the surrounding circumstances, you will be able to ascertain his intentions at the time, he was doing the unlawful act.
13. In this case, you will not be required to decide on the accuseds' mental state in paragraph 9(iii)(a) and (b), because the prosecution is not running its case on these mental states. It had the option to do so, but it choose not to do so. The prosecution is simply relying on the mental state mentioned in paragraph 9(iii)(c), to prove its case against the accuseds, beyond reasonable doubt. So, when referring to the example we discussed in paragraphs 10 and 11 above, if the prosecution proved that when I threw the punch at the person's head, I knew at the time, that death or serious injury would be caused on the person, but nevertheless I threw the punch at him, I would be guilty of murder, because they have satisfied beyond reasonable doubt the mental element mentioned in paragraph 9(iii) (c).
14. If, on the other hand, the prosecution failed to prove beyond reasonable doubt, the mental element required in paragraph 9(iii)(c), but have only proven beyond reasonable doubt the elements in paragraphs 9(i) and 9(ii), then you are entitled to find me guilty of the lesser offence of manslaughter. The elements of manslaughter are the first two elements for murder, that is, the accused did an unlawful act, which caused the deceased's death. In this case, if you find that the prosecution has failed to prove beyond reasonable doubt the mental element mentioned in paragraph 9(iii)(c), but they have proven beyond reasonable doubt the elements mentioned in paragraphs 9(i) and 9(ii), then you are obliged to return a verdict of not guilty of murder, but guilty of manslaughter.
15. The consumption of homebrew and liquor had been a major part of this case, prior to the alleged murder. Counsels have also touched on the topic during their submissions. As a matter of law, intoxication is no defence to a criminal charge. However, you must take it into account, as one of the many factors to be considered, when ascertaining the accuseds' intentions as mentioned in paragraphs 9(iii) (a), (b) and (c) above. Since the prosecution is not relying on paragraphs 9(iii) (a) and (b) in proving its case, you must take intoxication into account, as a factor to be considered, when ascertaining the accuseds' knowledge in paragraph 9(iii) (c).
16. There are five accuseds in this case. In order to make them jointly liable for the alleged murder of Simione Navulatamata, the prosecution is relying and running it's case on the concept of "joint enterprise". "Joint enterprise" is "when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed, of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence". (Section 22, Penal Code, Chapter 17). In considering each accused, you will have to ask yourselves the following questions: Did each of them form a common intention with each other to violently rob the deceased? If so, did each of them acted together to violently rob the deceased? When the deceased was allegedly murdered as a result of the violent robbery, was this a probable consequence of the same? If your answer to the above questions for a particular accused was yes, and you are satisfied beyond reasonable doubt that the elements in paragraph 9(i), (ii) and (iii) (c) are satisfied, he's guilty of murder.
17. Five accuseds are on trial in this case. Each of the accused is entitled to be tried solely on the evidence that is admissible against him. This means that you must consider the position of each accused separately, and come to a separate considered decision on each of them. Just because they are jointly charged does not mean they must all be guilty or not guilty. Most evidence in this case are admissible against all accuseds. However, regarding their police caution interview statements and charge statements, which contained their alleged confessions, the statements therein are only admissible against the maker of the statement, and on no other. In other words, in each accused's police caution interview statements and charge statements, you must totally disregard what the accused said about his co-accuseds on the commission of the offence. You can only take into account what he said about himself, regarding his role in the commission of the crime. In this case, most of the inadmissible evidence in the caution interview statements have being blotted out, but in any event, you must keep in mind the above rule, when you deliberate on the case.
F. THE PROSECUTION'S CASE
18. The prosecution's case against the five accuseds was quite simple. It was based on the concept that when the alleged murder was committed, it was based on the principle of "joint enterprise". On 16th May 2009, a Saturday, the Makoi Bulldogs Rugby League Team was supposed to play. Most of the five accuseds were members of this team, and were eager to play that day. However, their game was cancelled because of soggy grounds. After lunch, the accuseds began consuming homebrew, beer and other liquor until 8pm.
19. According to the prosecution, the five accuseds were consuming liquor on a driveway near Makoi Methodist Primary School after 8pm, on 16th May 2009. Simione Navulatamata was returning from work in Nausori, and was taking a short cut near to where the five accuseds were drinking. Mesulame then signaled to the others for them to rob Simione. Mesulame and Tiko ran towards Simione. According to the prosecution, Tiko held Simione's arms and neck together so that he could not move. Mesulame then started to punch him several times. He fell down afterwards and had breathing difficulties. The two later fled the scene.
20. Sireli came in later and took off Simione's clothes, and threw the same away. Simione was unconscious at the time. Sireli wanted to embarrass Simione when he became conscious. He later fled the scene. Lolohea, according to the police, punched Simione in the chest only once. He fled when he saw the light of a vehicle. As for Filipe, the prosecution said he heard a thumping sound of a punch and a painful shout. He didn't see the person punching. He later fled the crime scene. According to the prosecution, the five accuseds jointly assaulted Simione in a robbery, and as a result he died, and they well knew at the time, that death or serious injuries would be caused on Simione, but nevertheless went on to assault him. As a result, according to the prosecution, all the accuseds were guilty of murder. Alternatively, according to the prosecution, if they lacked a guilty intent as required by paragraph 9(iii)(c) above, then you should return the alternative verdict of guilty of manslaughter.
G. THE ACCUSEDS' CASES
21. Mesulame, Tiko, Isireli and Filipe choose to remain silent, and called no witness, when they were called upon to make their defence. This was their right, and they were simply exercising the same, when they choose to remain silent and called no witness. The burden lies on the prosecution, throughout the trial, to prove their guilt beyond reasonable doubt. This burden never shifts to the accused, at any stage of the trial. They are not required to prove their innocence. Therefore, nothing negative should be attributed to Mesulame, Tiko, Isireli and Filipe, when they choose to remain silent, and called no witness.
22. However, all is not lost, if you want to know the positions of Mesulame, Tiko, Isireli and Filipe. They have all spoken to you in their police caution interview statements, and charge statements. Mesulame's caution interview statement was tendered in evidence as Prosecution Exhibit No.1. Tiko's caution interview statement was tendered as Prosecution Exhibit No. 2. Isireli's caution interview statement was tendered as Prosecution Exhibit No. 3. Filipe's caution interview statement was tendered as Prosecution Exhibit No. 5. You must carefully read and understand these caution interview statements, because they reveal Mesulame, Tiko, Isireli and Filipe's position, in this case.
23. In the presence of his counsel, Mesulame pleaded not guilty to murder, but guilty to manslaughter. In his caution interview statement, he admitted punching Simione until he had breathing difficulties. [See Questions 34, 35,47, 49, 55, 69 and 74 and Answers]. In his charge statements, he admitted he "threw a few punches" at Simione, and he didn't intend to kill him. Doctor Goundar, in his post-mortem report, tendered as Prosecution Exhibit No. 9, said the cause of Simione's death was brain injury caused by a strong punch to the left side of his head. One would presume that by pleading guilty to manslaughter, at the beginning of the trial, Mesulame must have accepted that his punch on Simione was an unlawful act, which caused his death. However, through his counsel, he is now saying that he is not guilty of murder or manslaughter because he merely punched Simione's ribs and stomach, which did not cause Simione's death.
24. Tiko, also pleaded guilty to manslaughter but not guilty of murder, in the presence of his counsel, at the beginning of the trial. In his caution interview statement, Tiko admitted, he grabbed Simione "from under his arm pit from the rear and got hold of his neck" during the attack. He admitted Simione was struggling to free himself and calling out for help. He apologized for the attack and admitted their intention was to rob him, not kill him. [See Questions 49, 50, 51, 63 and 68 and Answers] [see also his charge statement]. His counsel, in her closing submission, does not dispute that Tiko held the deceased from behind, during the attack. She argued that, you could only find him guilty of manslaughter, not of murder, because he had no intention to kill or cause serious harm to Simione. She also argued that he may not be guilty of manslaughter or murder, because it was not proven that his act of holding the deceased during the attack, caused Simione's death.
25. Like Mesulame and Tiko, Isireli pleaded not guilty to murder but guilty to manslaughter, in the presence of his counsel, at the beginning of the trial. In his caution interview statement, he said, he wanted to punch Simione during the attack, but did not do so. He said, when he came to Simione, he was kneeling down and then fell down. Then he became unconscious. He said, he then took off Simione's clothes. His intention was to embarrass him, when he woke up, not to kill or cause him serious injuries. [See Questions 61, 64, 65, 66, 68, 69, 70 to 75, 77, 82, 97, 98, 99, 100, 101, 106, 107 and Answers]. According to his counsel, in her closing submission, Isireli is not guilty of murder or manslaughter, because the elements of the same, were not proven beyond reasonable doubt, in this case. Although taking off Simione's clothes was despicable, it was not murder or manslaughter.
26. Before dealing with Lolohea, I will consider Jitoko's case first, because he was the last of the accuseds, who choose to remain silent and call no witness. In his caution interview statement, he admitted hearing someone being assaulted and shouting in pain, at the crime scene. However, he said, he did not see the person punching the deceased. He said, he fled the scene when he heard the painful shout. [See Questions 48, 49 and 55 and Answers]. According to his counsel, Jitoko is not guilty of murder because the prosecution have failed to prove his guilt beyond reasonable doubt.
27. Lolohea is the only accused, who choose to give sworn evidence, and called two witnesses. In his sworn evidence, he denied being present at the crime scene, at the material time. He said, he was drinking grog with a cousin, at the time. He denied ever punching the deceased, at the time. He said, his caution interview statement, where he was recorded as saying he punched the deceased, was wrong. His witness said, he was drinking grog with him, at the material time. His counsel said, he should be acquitted of murder, since the prosecution hasn't proven his guilt beyond reasonable doubt.
H. ANALYSIS OF THE EVIDENCE
28. By consent of the prosecution and defence counsels, the following facts were admitted by consent:
(i) On 16th May 2009, around 10pm, Simione Navulatamata, was found dead underneath the Makoi Methodist School Signboard;
(ii) He was naked, at the time:
(iii) The deceased worked as a hair dresser at Nausori;
(iv) The deceased took a short cut near Makoi Methodist School, around 8pm, on 16th May 2009;
(v) After a police investigation, all accuseds were arrested and caution interviewed by police;
(vi) On 20th May 2009, Mr. Suresh Kant, a Justice of Peace, visited all accuseds, at Nasinu Police Station;
(vii) On 20th May 2009, all accuseds were medically examined at Makoi Health Centre, and all were found to be normal. Their medical reports are tendered by consent as exhibits;
(viii) Between 18th and 19th May 2009, all accuseds were caution interviewed by police, at Nasinu Police station;
(ix) On 19th May 2009, all accuseds were charged with murdering Simione Navulatama;
(x) On 19 May 2009, Doctor Ponsami Goundar, conducted a post-mortem on the body of Simione Navulatamata.
You may take the above agreed facts as proven by the prosecution beyond reasonable doubt, because the parties do not dispute it.
29. In order to answer the questions posed in paragraph 8 above, you need to pay close attention to the following evidence:
(i) The accuseds' police caution interview statements;
(ii) Doctor Ponnu Swammy Goundar's evidence and post-mortem report;
(iii) Mesulame Lovodrokadroka's evidence (ie. PW4); and
(iv) Lolohea Napau Kaulotu's evidence.
30. Mesulame, Tiko, Isireli and Filipe did not challenge the admissibility of their caution interview statements. These statements contained their alleged confessions, regarding their part, in the commission of the murder allegation, leveled at them. In these caution interview statements, the above accuseds said, they gave their caution interview statements to the police voluntarily, and out of their own free will. All the police officers who gave evidence in this case, either as caution interview officers or as witnessing caution interview officers said, all the accuseds' gave their statements out of their own free will, and they were not assaulted, threatened or made any promises, during the interview.
31. They were each medically examined at the Makoi Health Centre, on 20th May 2009, after being caution interviewed by police on 18th and 19th May 2009. All were found to be normal, and no injuries were found on them. They were also visited by Mr. Suresh Kant, on 20th May 2009. He was a Justice of Peace. None of the five accuseds made any complaint to him of any unfair police treatment, while in their custody. None of them made any complaints to the Nasinu Magistrate Court, when they first appeared there on 20th May, 2009. On their first appearance in the High Court on 26th June 2009, none of the accuseds complained to the High Court of any unfair police treatment, while in their custody.
32. The accuseds' confessions in their caution interview statements are admissible evidence against each of them. However, you may only accept an accused's confession in his police caution interview statement, if you are satisfied beyond reasonable doubt and are sure that, he gave his statements to the police voluntarily and out of his own free will. If you are not satisfied beyond reasonable doubt or are not sure that he gave his police statement voluntarily or not out of his own free will, you are entitled to reject the same. A confession is strong evidence against the maker of the same, provided you accept that it was voluntarily given by its maker. In this case, the prosecution is asking you as assessors and judges of fact, to accept Mesulame, Tiko, Isireli and Filipe's caution interview statements. We will deal with Lolohea's caution interview statement later.
Mesulame Waqabaca (1st Accused)
33. In his caution interview statement, Mesulame said the following:
Q.34 Are you sure about this?
Ans: No, I saw one slim tall pufter coming down the driveway. He is staying at Karobo Place Makoi. He was wearing a long trousers and a vest. I was standing there about 2 meters away from this two and I then started punching this pufter who was lying down on the ground.
Q.35 What else after that?
Ans: Whilst punching this boy(pufter) I can feel that something wrong with him, his breathing like his running of air and is very hard for him to breath).
Q.47 Mesu, can you tell me to who all did punch this man that night?
Ans: Myself.
Q. 49 Can you tell me what part of his body did you punched?
Ans: I punched his ribs and stomach.
Q. 55 What happen after that?
Ans: When I saw this boy started having breathing problem I walked away down the short cut to Matanisiga with Bhuda.
Q.69 Do you wish to say anything else?
Ans: Yes, this place is where we assaulted that boy but when we return back he was lying down naked near the school sign board.
Q.71 Have a look at this post-mortem report (post-mortem report shown to Mesulame) the cause of death is brain hemorrhage due to assault, is that understood?
Ans: Yes
Q.74 Do you wish to say anything else?
Ans: Yes, I would like to apologize for what I have done because we don't mean to kill this man during the incident. I was drunk, but I know what I was doing to this man. I would like to apologize to his family.
Q. 78 Did I assault you or did something to you in order for you to give your answers to me during this interview?
Ans: No.
Q.79 Is this your real statement?
Ans: Yes.
34. In this charge statements, Mesulame said the following, "...I Mesulame Waqabaca do admit that I threw a few punches on Simione Navulatamata. I did it for the sake of robbing him and not to kill him. I am sorry for what I have done on Simi..."
35. Doctor Ponnu Swammy Goundar, who had previously done more than 3,000 post- mortem examination, did a post-mortem examination on Simione Navulatamata, on 19th May 2009. He submitted his post-mortem report as Prosecution Exhibit No. 9. He estimated the time and date of death as 2100 hours on 16th May 2009. He said, external injuries revealed a cut over the left eye brow.
36. Doctor Goundar said that Simione suffered severe internal injuries in his brain. When dissecting the scalp, there was hemorrhage in the left temporal muscle, that is, there was blood on the left side of the head muscles. According to Doctor Goundar, the bone inside the skull, which goes from left to right of the temporal sides of the skull, had blood on it. He said, this was not normal. He said, a heavy severe blow to the left side of the head could cause the above injury. He said, a heavy fist, kick or weapon could be that heavy blow.
37. Doctor Goundar said, blood was present between the third and second covering of the brain. Doctor Goundar said, "...in my opinion, the cause of death was subdural hemorrhage around the pons and medulla oblongata due to assault. The impact from the left side of the head, down towards the medulla oblongata and the pons, compressed the medulla oblongata, which has two vital centres, that is, that controls the function of the heart and the breathing. Due to the pressures on these centres, results in stopping of the heart and the breathing, resulting in the death of the person..."
38. When cross-examined by Ms. Vaniqi, Doctor Goundar, said, "...The cause of death is head injury. Body punches would not bring about the head injury... In my opinion, a severe blow to the left side of the head could result in these injuries in the head. A strong punch could be that severe blow. The injury was on the left side of the head..." Only two individuals knew what happened that night, that is, Mesulame and Simione. Mesulame, who is alive, speaks to you through his caution interview statements and charge statements. He admitted throwing a few punches at Simione that night. He was caution interviewed on 18th and 19th May 2009, that is, two to three days after the alleged murder. He had time to think and plan his answers to the police interview. Simione, however, cannot speak to you, because he is dead. However, he speaks to you through his brain injuries, as explained to you by Doctor Goundar. Doctor Goundar said the injuries to Simione's medulla oblongata results in the heart and his breathing to stop. In answer to Question 35 of his caution interview, Mesulame said, "...Whilst punching this boy (pufter) I can feel that something wrong with him, his breathing like his running out of air and is very hard for him to breath..."
39. Mesulame Lovodrokadroka (PW4), in his evidence, said, he was at the crime scene, at the material time. He said, he saw Mesulame Waqabaca punch Simione, and he fell to the ground. He said, he saw Simione blocking his face with his hands to avoid the punches landing on his face. As assessors and judges of fact, the prosecution is inviting you, from the above evidence, to conclude that Mesulame Waqabaca punched Simione on the left side of his head, causing him brain injuries, resulting in his death, and at the time, knew that the punches would cause Simione death or serious injuries, but nevertheless went ahead and punched him, and thus liable for murder.
Tiko Uate (2nd Accused):
40. In his caution interview statements, Tiko said the following:
Q. 47 Can you explain as to what really took place or what had exactly took place?
Ans: Yes, we were drinking right over here [driveway] and were facing Makoi Road [Pointing to Makoi Road]. We had just had a few glass of rum with water when Waqa said in Fijian "DUA NA QANI QORI" [Qani is the codename to us to target for Grab and Run or Robbery]
Q. 48 In other words Waqa was mentioning that you people would rob this man. Is this correct?
Ans: Yes.
Q.49 Then what happen after that?
Ans: Waqa approached this guy and he was gay. The place was well lit as one street light was beside where we were drinking. Waqa spoke to him and after a while he signaled me to come on over [Nodded his head]. I went straight and grabbed him from under his arm pit from the rear and got hold of his neck.
Q.50 Did Simione [Deceased] struggled while this commotion took place?
A.: Yes.
Q.51 Did he utter anything?
Ans: He was saying OE...OE
Q. 63 What about Simione [Deceased]?
Ans: I saw him lying just opposite the place [About 5 meters away] from where we first attacked him.
Q. 68 Do you wish to say anything else?
Ans: I am really sorry for what we did our intention was to rob but unfortunately he died from the attack.
Q.72 Did you give your answer at your own free will?
Ans: Yes
41. In his charge statement, Tiko said the following, "... we only intend to steal from him, not to the extent of taking his life away..."
42. Mesulame Lovodrokadroka (PW4) said, he was present at the crime scene, at the material time. He said, he saw Mesulame, Tiko Uate, Sireli Ledua and Jitoko, at the crime scene, at the time. He said, someone was coming down the track, and Mesulame told them to attack him. He said, he told them not to do so. He said, Mesulame told him to leave, if he was afraid to attack the person. He said, he saw Mesulame and Tiko Uate attack the man. He said, he said Mesulame punched the man and Tiko pressed the man's neck. When cross-examined by defence counsels, he said he saw Accused No. 1 punch the man, who fell down, and Accused No. 2 was pressing the victim's neck. As assessors and judges of fact, the prosecution is asking you, from the above evidence, to accept that, Tiko formed a common intention with Mesulame Waqabaca to rob Simione by jointly assaulting him, and as a consequence of such a joint assault, Simione died, as a result of brain injuries, and Tiko knew at the time that the joint assault may cause Simione's death or serious injuries, but nevertheless went ahead and jointly assaulted him, and thus he was liable for murder.
Isireli Ledua Naulivou (3rd Accused)
43. In his caution interview statement, Isireli said the following:
Q. 61 Did you run after them also?
Ans: Yes after about 40 seconds.
Q. 64 What happened when you ran?
Ans: When I reached them the pufter was on his knee on the ground bending forward.
Q.65 And then?
Ans: The pufter fell on the ground.
Q.66 Where was the incident happening?
Ans: This incident was happening along the driveway to Makoi Methodist School.
Q.68 Why did you remain with the pufter?
Ans: I was thinking of taking off his clothes.
Q.69 At that time where was the pufter?
Ans: The pufter was lying beside the sign board for Makoi Methodist School.
Q.70 Did you manage to take off his clothes?
Ans: Yes.
Q.71 How?
Ans: First I unzipped the trousers and pull it off, I took off his roundneck t-shirt (short sleeve) and this pufter was not wearing any underwear and also whilst taking off his trousers he had shit on himself.
Q.71 What was the reason for your actions?
Ans: To make him embarrassed after waking up.
Q.72 At the time you were removing his clothes what was his status?
Ans: I cannot clearly recall, but he was unconscious.
Q.77 Did you also take part in punching this pufter?
Ans: No.
Q.82 After removing the clothes and throwing it away what did you do?
Ans: I left the pufter there and followed the others.
Q.83 Who is these others you mentioning?
Ans: Jitoko, Mesulame Waqa and Tiko Uate?
Q.97 Can you tell me what was that intention?
Ans: To punch the pufter.
Q. 98 Was that your only intention?
Ans: Yes
Q.99 Did you manage to execute your intention fully?
Ans: No
Q.106 You also did punch the pufter. What can you say about that?
Ans: No, I did not punch the pufter.
Q.135 What did you wish to say?
Ans: I want to say that Simione Navulatamata (pufter) was being punched. But I did not punch him at any time.
Q. 142 Do you wish to say anything else?
Ans: I wish to say that our action was not meant to result in the death of Simione.
44. It would appear that the only evidence against Isireli were the answers he gave the police in his caution interview. He said, although he wanted to rob Simione, he did not punch him, at any time. He said, he ran towards Simione, while he was being assaulted. He said, by the time he arrived, Simione was already kneeling down and fell forward. He said, when he took his clothes off, Simione was already unconscious. It would appear that, by the time Isireli reached Simione, the fatal punch that landed on the left side of Simione's head, which caused his death, had already occurred. It could not be said that, the act of taking off Simione's clothes, caused his death. Although it may be said, on the concept of "joint enterprise" that, he formed a common intention with Mesulame and Tiko to rob Simione, he did not participate in the joint assault on Simione, thus he did not act in conjunction with others, to cause Simione's death. His act of taking off Simione's clothes, although distasteful and despicable, did not cause Simione's death. So, in a sense, given the above, it was arguable that Isireli was not liable for Simione's murder, nor liable for manslaughter. He committed no act which caused Simione's death.
Filipe Jitoko (5th Accused)
45. In his caution interview statement, Filipe said the following:
Q. 42 After the drink, did anything happen?
Ans: When we were drinking, we heard somebody coming down the road and he was talking on his mobile phone.
Q.46 Can you tell me what is this place where we are now?
Ans: This is Makoi Road. That's the road to Makoi Methodist School and this is the driveway to Sireli's house where we were seating drinking rum on that night?
Q.48 Did you see what they went and did on the road?
Ans: No, I only heard a loud cry and that is when we ran away from there to Tagilala's house to come and drink grog.
Q.49 I wish to advise you that you are still under caution, it is about 10 meters from where you were seating to the place and there was not obstruction to stop you from seeing what they did to Naulumatua. What do you have to say about this?
Ans: I only heard the thumping sounds of a punch and a painful shout. So I told Mesu for us to run away.
Q.55 Jitoko we have received the result of the post-mortem report conducted by Dr. Ponsami Goundar, where it is stated that the cause of death was an injury to the head caused from a punch. Is there anything you would like to say about that?
Ans: Yes, I just want to say that I only heard the thumping sounds of a punch and the shouting of that gay.
46. Mesulmae Lovodrokadroka (PW4), who was present at the crime scene, at the material time, and saw the first and second accuseds jointly attacking Simione, said Jitoko was not at the place, where Simione was being attacked. So, in a sense, it could not be said, on the principle of "joint enterprise" that, Jitoko formed a common intention with others to rob Simione, and he did not participate in any joint assault, that caused Simione's death. His caution interview statements appeared to say that, when he heard Simione being punched, he fled the scene. So, it would appear, he committed no unlawful act that caused Simione's death, and was therefore not liable for murder nor manslaughter.
Lolohea Napau Kaulotu (4th Accused)
47. Lolohea's police caution interview statement was ruled admissible evidence. In his statement, Lolohea said the following:
Q.146 Did you punch him?
Ans: Yes
Q.147 How many times did you punch him?
Ans: Only one.
Q.148 Which hand did you use?
Ans: I use my right hand.
Q.149 Which part of his body where your punch landed?
Ans: It landed on his chest.
Q.151 What happen to him after you punch him?
Ans: I heard him shouting and yelling in pain.
Q.152 Do you admit by punched him?
Ans: Yes.
Q.153 Are you telling me the truth?
Ans: Yes.
Q.155 Why did you run away after punching him?
Ans: Because I saw the light of car which was coming on the road.
48. Lolohea gave evidence on oath, and denied all the above. He said, he was not at the crime scene, at the material time. He said, he was drinking grog with Enele Ma'afu, a cousin of his. Enele Ma'afu gave evidence, and confirmed what Lolohea said. He also called another witness, Ilaitia Baleilautoka, who confirmed drinking yagona with Lolohea, at the material time. Mesulame Lovodrokadroka (PW4), who was present at the crime scene, at the material time, and saw accuseds No. 1 and 2 attacking Simione, said Lolohea was not at the crime scene, at the time. PW4 said, Lolohea was drinking at Enele Ma'afu's place. So, in a sense, three witnesses (two defence and one prosecution) said, Lolohea was drinking grog elsewhere, when Simione was being attacked. The main state witness at the crime scene, Mesulame Lovodrokadroka, appeared to confirm Lolohea's position and version. So, in a sense, the fact that three witnesses seemed to confirm Lolohea's sworn evidence, does have the effect of casting a reasonable doubt, on the state's case that Lolohea was present at the crime scene, and punched Simione. The benefit of any reasonable doubt must go to the accused, that is, Lolohea.
I. SUMMARY
49. Remember, it is for the prosecution to prove each of the five accuseds' guilt beyond reasonable doubt. It is not for the accuseds to prove their innocence. The burden of proof lies on the prosecution to prove the accuseds' guilt beyond reasonable doubt, and that burden stays with them throughout the trial. If you accept the prosecution's version of events and you are satisfied beyond reasonable doubt and are sure of their guilt, you must find them guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt and are not sure of their guilt, you must find them not guilty as charged.
50. However, if you find some of the accuseds have committed an unlawful act, which caused Simione's death, but at the time, did not have the mental state described in paragraph 9(iii) (c), and you are satisfied beyond reasonable doubt, you may return a verdict of not guilty of murder, but guilty of manslaughter.
51. Your possible opinions are as follows for each accuseds:
(i) Murder - Guilty or Not Guilty
(ii) alternatively, Not Guilty of murder, but Guilty of manslaughter,
52. You may retire to deliberate. Once you have reached your decisions, you may inform the clerk, so that we could reconvene to receive them.
Salesi Temo
Acting Judge
AT Suva
2nd August 2010
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URL: http://www.paclii.org/fj/cases/FJHC/2010/402.html