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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 124 OF 2008S
STATE
V
1. ANESH RAM
2. KESHWA NAND
3. VIKASH CHAND
4. SAT DEWAN NAIR
5. ILAITIA WAQA [ACQUITTED]
6. BINESH KUMAR
7. ANIL SINGH
Counsels: Ms. N. Wickramasekera for the State;
Ms. S. Vaniqi for Accuseds No. 1 and 2;
Ms. K. Vukikomoala for Accused No. 3;
Ms. M. Savou for Accuseds No. 4 and 5;
Ms. J. Shah for Accused No. 6;
Mr. R. Chaudhary for Accused No. 7
Hearings: 6th to 24th September 2010
Summing Up: 29th September 2010
SUMMING UP
7. The accuseds were originally charged with "murder" and "rape", contrary to sections 199, 200, 149 and 150 of the Penal Code, Chapter 17. It was alleged that on 8th June 2008, late in the evening, at Nasinu in the Central Division, the accuseds raped and murdered Zoya Bibi.
8. At the end of the prosecution's case on 22nd September 2010, the defence made submissions of "no case to answer" against the prosecution. On 23rd September 2010, the court ruled accused No. 1 had a case to answer on the murder and rape charges. All the other accuseds were found not guilty of murder, and acquitted accordingly. Accuseds No. 2, 3, 4, 6 and 7 had a case to answer on the rape charge. Accused No. 5 was acquitted of the rape charge.
9. In summary, accused No. 1 is the only one being charged with the murder of Zoya Bibi. As for accuseds No. 2, 3, 4, 6 and 7, they are only charged with raping Zoya Bibi. The rape allegation also included accused No. 1.
D. THE MAIN ISSUES
10. Although, there are now six accuseds, the task for you in this case, for each accused, is to answer the following questions:
(i) Did Anesh Ram rape and murder Zoya Bibi on 8th June 2008?
(ii) Did Keshwa Nand rape Zoya Bibi on 8th June 2008?
(iii) Did Vikash Chand rape Zoya Bibi on 8th June 2008?
(iv) Did Sat Dewan Nair rape Zoya Bibi on 8th June 2008?
(v) Did Binesh Kumar rape Zoya Bibi on 8th June 2008?
(vi) Did Anil Singh rape Zoya Bibi on 8th June 2008?
This case involved six accuseds. You are actually conducting six trials against each accused, together.
E. THE OFFENCES AND THEIR ELEMENTS
11. "Murder", has three essential elements. For accused No. 1 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 her 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.
12. An "unlawful act" is simply an act not justified in law. For example, A and B are boyfriend and girlfriend. They lived together as man and wife for 12 months. A became jealous of B, because she goes out with other men, behind his back. A organized a party, got B drunk, and later strangled her to death, by pressing both his hands on her neck. The "act of strangling B" is an "unlawful act", because it's not justified in law. It is an unlawful application of force to the person of another, and it is an "assault", which is "an unlawful act".
13. The "unlawful act" must "cause the death of the deceased". This is the second element of murder. Continuing from the above example, when A strangled B on the neck, he caused B to stop breathing, resulting in her death. In other words, A, by throttling B, deprived her body of oxygen (air), thereby resulting in her death. The "unlawful act" of throttling, was the substantial and major cause of B's death. Without the throttling, B's body wouldn't be deprived of oxygen, and she would still be alive. The throttling was the substantial cause of death.
14. The third element of murder is outlined in paragraphs 11(iii) (a), (b) and (c). This concerned the accused's mental state at the time he was committing the unlawful act. Referring to the above example, what was A's mental state at the time, he was throttling B to death? Did A intend to kill B? Did A intend to cause B serious harm? Did A know that death or serious harm would be caused on B, but nevertheless went on to strangle her?
15. As a mater of common sense, no one can look into a person's brain, to ascertain his intentions, at the time he was doing the unlawful act. Nevertheless, the person's intention could be inferred from his physical actions, spoken words, and the surrounding circumstances. You must put yourselves in the shoes of the accused, and from his physical actions, spoken words, and the surrounding circumstances, you should be able to ascertain his intentions, at the time he was doing the unlawful act. Referring to the example mentioned above, A was jealous of B, because she was going with other men behind his back. A therefore wanted to get back at B. The act of "throttling B to death", obviously showed that he intended to cause B's death, or cause her serious harm. That was sufficient to constitute the third element of murder.
16. On the rape charge, for the accuseds to be found guilty of "rape", the prosecution must prove beyond reasonable doubt the following elements:
(i) the accuseds had sexual intercourse with Zoya;
(ii) that Zoya did not give her consent;
(iii) the accused knew that Zoya was not consenting to sex at the time.
Sexual intercourse, in law, means the accused's penis must penetrate the complainant's vagina. The slightest penetration of the complainant's vagina by the accused's penis, is sufficient to constitute "sexual intercourse" in law, and its irrelevant whether or not the accused ejaculated.
17. The consumption of beer and smoking of marijuana had been a major part of this case prior to the alleged rape and murder. Counsels have 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 accused's intention as mentioned in paragraphs 11(iii)(a), (b) and (c) above.
18. Six 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 some 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. What he said about his co-accuseds in the commission of the alleged crimes, are strictly speaking inadmissible evidence, and cannot be used as evidence against the co-accuseds.
F. THE PROSECUTION'S CASE
Accused No. 1: Murder Charge
19. The post-mortem report of Zoya Bibi, dated 18th June 2008, prepared by pathologist Dr. Prashant Samberkar, stated that the cause
of death was "asphyxiation due to manual strangulation (throttling)". The body of Zoya was identified by her mother, Roselyn Lata,
as that of her daughter. The post-mortem report was tendered as Prosecution Exhibit No. 7B.
20. In her clarification report, Prosecution Exhibit No. 7A, pathologist Dr. H. J. M. Perera, in explaining the post-mortem report on the cause of death said, "Throttling or manual strangulation is the exertion of pressure by the fingers or the hands on the neck. In this death has resulted due to the effect of throttling. Asphyxia is the effect of throttling where oxygen (air) is deprived to the body".
21. In terms of the first element of murder, that is, the "unlawful act", the State is saying that the "unlawful act" is the "act of throttling or strangling" of Zoya Bibi's neck, at the time she was murdered. The State is saying that, someone strangled or throttled Zoya Bibi's neck, at the material time. In terms of the second element of murder, that is, the unlawful act caused Zoya Bibi's death, the State said, the post-mortem report, proved that the "unlawful act of strangling or throttling" caused Zoya Bibi's death, because she was prevented from breathing, at the material time, and as a result, died.
22. However, no-one saw accused No. 1 strangling or throttling Zoya Bibi to death, on 8th June 2008. This was obviously a difficulty for the prosecution. However, the State, relying on circumstantial evidence said, accused No. 1 throttled Zoya Bibi to death, on 8th June 2008, late in the evening, when everyone had left the crime scene.
23. Circumstantial evidence is made up of pieces of proven evidence which by itself does not prove anything, but taken together they amount to proof of a particular fact or facts. However, you cannot act on an inference drawn from circumstantial evidence, unless it is not only a rational inference, but is the only rational inferences to be drawn.
24. In this case, accused No. 1 and Zoya Bibi lived together as man and wife for approximately 9 months. Accused No. 1 was 28 years old, while Zoya was 16 years old. It would appear that accused No. 1 loved Zoya very much, but could not contain her. She was a prostitute by profession. Their relationship were volatile, and at times, accused No. 1 ended up with the police for assaulting Zoya. Zoya left accused No. 1 in January 2008. Zoya moved from place to place, and continued to practice her profession. Accused No. 1 sent death threats to Zoya, through her friends.
25. On 8th June 2008, accused No. 1 organized a drinking party near a creek opposite Omkar Road and grounds. He invited the other accuseds there. During an argument, he hit Zoya with a beer bottle, knocking her unconscious to the ground. Then he allegedly raped her. Then, he let others allegedly rape her. He later brought a cane knife, and forced Ema Tauyavu to cut off Zoya's nipples and hand. At first, Ema refused and resisted. However, accused No.1 threatened to kill her, if she refused. Under duress, Ema complied with his demands. She cut Zoya's nipples and gave the same to accused No. 1. After that, Ema and the others left the crime scene. The last person at the crime scene was accused No. 1 and Zoya's unconscious body. Eight days later, Zoya's body was found floating near to where accused No. 1 had his drinking party. The State says that, these pieces of proven evidence, when taken together, provided a rational and only rational inference that, when the others left on 8th June 2008, accused No. 1 throttled Zoya to death, and threw her body into the creek.
Accuseds No. 1, 2, 3, 4, 6 and 7: Rape Charge
26. It was the State's case that, accused No. 1 knocked Zoya Bibi unconscious to the ground, by smashing a beer bottle to the back
of her head. Zoya thereafter laid on the ground motionless. According to the State, accused No. 1 took off Zoya's pants and underclothing,
took off his clothings, and had sexual intercourse with her, while she was unconscious.
27. When accused No. 1 finished having sexual intercourse with Zoya, accused No. 2, 3, 4, 6 and 7 took turns on her, while she was unconscious. According to the State, Zoya was unconscious and was unable to give her consent at the time, and the accuseds knew that, but nevertheless went ahead and had sexual intercourse with her, in any event. That was the case for the prosecution.
G. THE ACCUSEDS' CASES
28. Accused No. 1 gave evidence on oath. He denied raping and murdering Zoya Bibi on 18th June 2008. He said, on 8th June 2008, between 7pm to 11pm, he was drinking grog at Abdul Afzad's house. He said, after grog he had dinner at 11.30pm. After that he had a cigarette and went to sleep at 11.45pm.
29. Accused No. 2 choose to remain silent. Through his counsel, he said, he stood by what he told the police in his caution interview statement, dated 8th July 2008, which was tendered as Prosecution Exhibit No. 14. In his caution interview, he denied the allegation against him.
30. Accused No. 3 choose to remain silent. He called his older brother as his witness. His brother said, that on 8th June 2008, he was drinking grog at Abdul Afzad's house from 7pm until later into the evening. He said, he was drinking grog with Abdul Afzad, accused No. 3 and accused No. 1. He said, after drinking grog, they went home and slept. He said, they did not go anywhere. Accused No. 3 also gave a statement to the police, in his caution interview statement, which was tendered as Prosecution Exhibit No. 18A and 18B. In questions and answers 84 and 85, accused No. 3 admitted having sexual intercourse with Zoya, at the time. However, accused No. 3, through his lawyer said, the same was fabricated by police.
31. As for accused No. 4, he choose to remain silent, and call no witness. Through his lawyer, he choose to speak through his police caution interview statement, which was tendered as Prosecution Exhibit 9A and 9B. He appeared to deny the allegation against him, in his caution interview statement.
32. Accused No. 6 also choose to remain silent and call no witnesses. Accused No. 7 also choose to remain silent, and called no witness.
33. You will find, as assessors and judges of fact that, accuseds No. 2, 3, 4, 6 and 7 choose to remain silent, when they were called upon to make their defence. This was within their rights. It is the prosecution who had laid the charge, and on her lies the burden to prove the accused's guilt beyond reasonable doubt, and that burden stays with her throughout the trial, and it never shifts to the accuseds, at any stage of the trial. So when the accuseds choose to remain silent, they were simply exercising their rights, and nothing negative whatsoever should be imputed to them. They were merely calling on the prosecution to prove their case beyond a reasonable doubt. That was the case for the accuseds.
H. ANALYSIS OF THE EVIDENCE
34. The success or otherwise of the State's case against the accuseds depends so much on whether or not you, as assessors and judges of fact, accept the evidence of Ema Tauyavu (PW1). In other words, the credibility of Ema as a witness and the acceptability of her evidence to you as assessors and judges of fact, becomes an important matter for you and the parties in this trial. Therefore, we will first discuss the status of Ema as a witness. Then you will be directed on how to treat Ema's evidence of identification. Then we will proceed to analyze the evidence in detail.
35. Throughout the trial, the defence had been trying to persuade you that Ema is an accomplice of the accuseds in this trial. If they are correct on this issue, then the law requires the trial judge to issue the standard accomplice warning to you, that is, it is dangerous to convict an accused on the basis of an accomplice's evidence unless it is corroborated by independent evidence, although you are entitled to rely on it, if you are convinced it is the truth.
36. As a matter of law, an accomplice is a person who voluntarily participates in the actual crime charged, either as principals or as parties assisting or aiding and abetting someone in committing the crime charged. In this case, Ema said she cut Zoya Bibi's nipples and hands, at the crime scene, on 8th June 2008. She said, Anesh Ram forced her to do it and threatened to kill her, if she didn't do as she was told. She said, she refused and resisted at first, but was frightened of Anesh, and as a result, did the act under duress. Ms. Vaniqi for accused No. 1 and 2 and Ms. Vukikimoala for accused No. 3, appeared to downplay the above evidence that, Ema did the above acts under duress. They appeared to say that because Ema cut Zoya's nipples and hands on 8th June 2008, that in itself, made her an accomplice in the murder and rape of Zoya Bibi.
37. It would appear from the above that Ema did not voluntarily cut Zoya's nipples and hands. She was threatened she would lose her life if she didn't do so. In any event, at the time, Ema did not have the intent to kill or aid and abet Zoya's rape. On any view of the evidence, it could not be said that Ema was a voluntary participant in the murder of Zoya Bibi, and thus, in law, it could not be said that she was an accomplice of Anesh Ram, in the alleged murder of Zoya Bibi. As a result, an accomplice warning is not necessary in this case, because Ema is not an accomplice.
38. Ema identified all the accuseds by pointing them out in the dock, during the trial. Although this form of identification are admissible evidence, they are often frown upon by the courts, as an unsafe way of identifying accused people. Therefore, to determine the credibility of these dock identifications, I will have to take you, as assessors and judges of fact, back to the 8th June 2008, and ask you to carefully consider the circumstances surrounding Ema's identifying the accuseds, at the time. When looking at the circumstances surrounding Ema's identification evidence on 8th June 2008, I will ask you to carefully note the warning I am about to give you.
39. In this case, the State's case against the accuseds depends wholly and substantially on the correctness of Ema's identification of the accuseds, which the defence alleged to be mistaken. I must warn you, as assessors and judges of fact, of the special need for caution before convicting the accuseds in reliance on the correctness of Ema's identification evidence, because an honest and convincing witness, may be mistaken. You must closely examine the circumstances in which the identification was made. You must consider the following questions:
(i) How long did Ema have the accused's under observation?
(ii) In what distance?
(iii) In what light?
(iv) Was the observation impeded in any way?
(v) Has Ema seen the accuseds before?
(vi) How often?
(vii) Are they any special reasons for remembering the accuseds?
(viii) Was a police identification parade made?
(ix) Are there any specific weaknesses in Ema's identification evidence?
40. We will now discuss the evidence in detail. On 16th June, 2008, a body was found floating in a creek, near to where Anesh Ram, Zoya Bibi, Ema Tauyavu and the other accuseds, were having a drinking party on 8th June 2008, late in the evening. The body was taken by police to the CWM Hospital mortuary. On 18th June 2008, Irene Roselyn Lata, identified the body, as that of her daughter Zoya Bibi. Dr. Prashant Samberkar conducted a post-mortem on the body and concluded the cause of death as, "asphyxiation due to manual strangulation (throttling)." The post-mortem report was tendered as Prosecution Exhibit No. 7B. Doctor H.J.M. Perera, a pathologist, provided a further clarification report on the above post-mortem report, which she tendered as Prosecution Exhibit No. 7A. In that report, she explained the cause of death as such, "...Throttling or manual strangulation is the exertion of pressure by the fingers or the hands on the neck... Asphyxia is an effect where oxygen (air) is deprived to the body..."
41. Through the post-mortem report, the State is saying that, in terms of the first element of murder, that is, that an unlawful act was done, the "strangulation or throttling" of Zoya, was the "unlawful act". On the second element of murder, that is, the "unlawful act caused the deceased's death", the State is telling us, through the post-mortem report, the "unlawful act of throttling Zoya's neck" caused her death in that, it stopped her breathing, resulting in her death. The next questions that you now have to answer, as assessors and judges of fact, are:
(i) Who throttled or strangled Zoya to death?
(ii) At the time the person was throttling Zoya to death, did he intend to kill Zoya, or did he intend to cause her serious harm or did he know that death or serious injury would be cause to Zoya, but nevertheless went on to throttle her?
42. The State relies on the following circumstantial evidence, and invites you to conclude that Anesh Ram, on 8th June 2008, late in the evening, when all the accuseds and Ema had left the crime scene, throttled and/or strangled Zoya Bibi to death, at the crime scene, and threw her body into the creek.
43. The State says through Anesh's caution interview statement, tendered as Prosecution Exhibit No. 12, that Anesh and Zoya lived together as man and wife from May 2007 to January 2008 – approximately 9 months. Anesh was 28 years old and Zoya was 16 years old. It was said that Zoya was a beautiful young girl, and Anesh appeared to be very much in love with her. However, the relationship was often volatile. Arguments was normal in this relationship. According to Anesh, Zoya can't cook, can't do the housework and argued a lot with his mother. Anesh assaulted Zoya on three occasions, which became a police matter. Zoya was a sex worker by profession. Zoya left Anesh in January 2008. She moved from house to house. She continued with her sex work. According to Anesh, when he meets her in the streets, he often talks to her. The evidence of Anesh and Ema seemed to suggest that, Zoya was an independent person.
44. Irene Roselyn Lata (PW2) gave evidence. She was Zoya's mother. Ms.Lata said, her house and Anesh's house were 5 to 6 footsteps apart. She said, while Zoya and Anesh were together, she often overheard constant argument between the two. At times, she counsels them not to argue and fight, but to no avail. She said, she often tells Zoya to cease her relationship with Anesh, because of the arguments. She said, Zoya never listened, and often went back to Anesh.
45. Anesh began to send death threats to Zoya after they separated. Anesh told Ema to look after Zoya, because they were both sex workers. Ema said, Anesh told her to see that Zoya doesn't go out with other men. Ema said, Anesh threatened her that, if she doesn't do as he requested, he would kill them both. On or about 30th May 2008, Anesh told Josaia (Jojo)(PW4), to tell Zoya that if he sees her, he will cut her to pieces. PW4 is also a sex worker. On the 1st June 2008, Anesh showed Jojo a cane knife [Prosecution Exhibit No. 11], and repeated his death threats against Zoya, and told Jojo to tell Zoya.
46. On 8th June 2008, according to Ema's evidence, Anesh organized a drinking party with Zoya and Ema that evening. He arranged for accused No. 2's van to take them to a shop to buy some carton of beer. They returned to his house to get some marijuana, and then proceeded to Omkar Road, went through the ground to a nearby creek to drink. According to Ema, only Anesh, Zoya and herself were the initial three at the crime scene. They began drinking beer and smoked a joint of marijuana. While drinking, Ema said, Anesh called others through his mobile phone, and she heard him telling others to hurry up. According to Ema, 6 boys arrived thereafter. She said, it was dark, but was still able to identify the 6 boys as the accuseds in this case.
47. Anesh, Zoya, Ema and the others who had arrived, continued drinking beer, and smoked marijuana. According to Ema, an argument erupted between Zoya and Anesh. Anesh took a long bottle of beer and hit Zoya on the back of her neck. She fell down to the ground unconscious. According to Ema, Anesh took off Zoya's pants and underclothings, took off his pants, and had sexual intercourse with Zoya, while she was unconscious.
48. After Anesh, according to Ema, accused No. 2 had sexual intercourse with Zoya. After that, accused No. 3, 4, 6 and 7 took turns on Zoya, that is, they had sexual intercourse with Zoya while she was unconscious. While the others were having sex with Zoya, according to Ema, Anesh went to get a cane knife and sack. When he arrived, he ordered Ema to cut off Zoya's nipples, while she lay unconscious. Ema, at first resisted, but Anesh threatened to kill her, if she disobeyed him. Fearing death or serious injuries, Ema cut Zoya's nipples off, and gave the same to Anesh. Anesh then again threatened Ema with death to cut Zoya's hand. Fearing death, Ema cut Zoya's hand. According to Ema, all the other accuseds left the crime scene thereafter. Only Anesh, Zoya's unconscious body and Ema were left at the crime scene. According to Ema, she later left the crime scene, with Anesh and Zoya's unconscious body at the crime scene. Eight days later, that is, on 16th June 2008, Zoya's body was discovered floating in the creek, next to scene where the accuseds had their drinking party.
49. The State is inviting you, as assessors and judges of fact, to carefully consider the above pieces of evidence. By themselves, they prove nothing. However, when you put them together, and seriously consider them together, they are capable of proving other facts or facts by inference. In other words, here we have a 28 year old man living as man and wife with what others said, was a beautiful young 16 years old girl, who was a sex worker, and very independent in her own ways. They lived together from May 2007 to January 2008, approximately 9 months. You have observed Anesh on the witness stand. He was a very determined and domineering man. It was obvious, he wanted to control Zoya, as his wife. He didn't succeed. Zoya left the relationship in January 2008. She continued her sex work. She went from place to place. Anesh talks to her when he meets her in the streets. Anesh starts to issue death threats to Zoya's friends in the streets. Obviously, he wasn't getting his way with Zoya. So, in the battle of two independent wills, one had to give way. According to Anesh, Zoya had to go. He organized a party in Omkar creek, in a dark spot, away from prying eyes. He hits Zoya with a bottle and knocks her unconscious. An opportunity arises to strangle her, when the others have left. Anesh then strangled Zoya when the others left. These are the inferences of facts the State is inviting you, as assessors and judges of fact, to conclude after considering the circumstantial evidences offered to you by the State. Whether or not you accept the State's invitation, is a matter for you.
50. As to the rape allegation, you must carefully consider Ema's evidence in the light of the warning I gave you in paragraphs 39 hereof. As far as Anesh was concerned, Ema knew Anesh, and was with him hours before the party began at the crime scene. So, Ema observed Anesh for hours. Ema said, she was about a foot or two from Anesh during the party. The crime scene was dark at the time. There was no light. Because Anesh was near, her observation of him was not impeded. Ema has obviously seen Anesh before, on numerous occasions. The fact that she saw Anesh hit Zoya with a bottle, and that he forced her to cut her nipples, were a special reason for remembering him. There was no police identification parade carried out. Specific weaknesses in the identification evidence was that Ema was intoxicated and high on marijuana. The State is inviting you, as assessors and judges of fact, to accept Ema's identification evidence against Anesh on 8th June, 2008, late in the evening. In my view, the circumstances surrounding Ema's identifying Anesh were quite strong, despite there being no police identification parade, to confirm her identification evidence. This was so despite the fact she was intoxicated and high on drugs. According to her, she could still identify Anesh, because prior to the party, she had been with him for hours.
51. As far as the other accuseds were concerned, they appeared at the crime scene after Anesh called them. According to Ema, it was quite dark, at the crime scene. There were no lights around the area. You will notice, as assessors and judges of fact, that most accuseds in the dock were dark people. It would be very difficult to identify them in the dark, without lights. The alleged rape was said to occur in a place where there were no lights. It was not even said in evidence that, the moon was shining. One must presume that there was no moon in the sky, in that Ema didn't mention the same in her evidence. Neither did the prosecution mention identification by voice. Given the difficulty with the lighting, in each of the accuseds' case, no formal police identification parade was done, to confirm Ema's original identification at the crime scene. In the normal course of things, if a witness later identifies a suspect in a properly held police identification parade, this often has the effect of strengthening the witness identification evidence. If no police identification parade was held, the witnesses identification evidence are often suspect, unless the circumstances surrounding the identification are quite positive and strong. Added to the above difficulty, was the fact that Ema was intoxicated and high on marijuana, at the time. So, in a sense, given the specific weakness inherent in Ema's identification evidence of the other accuseds, it would be unsafe to rely on Ema's identification evidence regarding her seeing the other accuseds have sex with Zoya, while she was unconscious.
52. As far as the rape charge was concerned, accused No. 1, 2 and 4 denied the rape allegation in their caution interview and charge statements. Accused No. 3 admitted having sex with Zoya in his caution interview statement [Prosecution Exhibit No. 18A and 18B] – see Questions and Answers No. 84 and 85. He also admitted having sex with Zoya in his charge statement [Prosecution Exhibit 19A and 19B] – see Question and Answer 7. Accused No. 6 admitted having sex with Zoya in his caution interview statement [Prosecution Exhibit No. 20A and 20B] – see Question and Answer 91. Both accuseds No. 3 and 6's lawyer said that the above question and answer were fabricated by the police. The police, while giving evidence, denied the fabrication. As for accused No. 7, there appears to be nothing concrete against him on the rape charge.
53. As far as Accused No. 3 and 6 are concerned, their confessions in their police caution interview statements are strong evidence against them, provided you, as assessors and judges of fact, are satisfied beyond reasonable doubt that the above statements were given to the police voluntarily and out of their own free will. If you find that the statements were given to the police as a result of assault, threats or false promises, you are entitled to disregard their statements to the police. If you have any reasonable doubt that accused No. 3 and 6 did not give their statements voluntarily, you are entitled to disregard those statements. You have heard all the police officer witnesses, and counsel's submission that the statements were fabricated. It is matter for you to decide.
54. You have heard all the prosecution and defence witnesses, in this matter. You have observed them give evidence in the courtroom. You have observed their behavior in the courtroom – were they well mannered or otherwise? Were they evasive while giving evidence? Were they argumentative, while giving evidence? How did they dress to court? Given the above, my direction on the law, your life experiences and common sense, you should be able to decide which witness's evidence, or part of his evidence you consider reliable, and therefore to accept, and which witness's evidence or part of his evidence, you consider unreliable, and therefore to reject.
55. You must also carefully consider the accuseds' position, as outlined in paragraphs 28 to 33 hereof.
I. SUMMARY
56. Remember, it is for the prosecution to prove each of the six 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.
57. Your possible opinions are as follows:
(i) Murder Charge:
Accused No. 1 - Guilty or Not Guilty
(ii) Rape Charge
Accused No. 1 - Guilty or Not Guilty
Accused No. 2 - Guilty or Not Guilty
Accused No. 3 - Guilty or Not Guilty
Accused No. 4 - Guilty or Not Guilty
Accused No. 6 - Guilty or Not Guilty
Accused No. 7 - Guilty or Not Guilty
You may now retire to deliberate. The clerks will advise me when you have reached your decisions, and we will reconvene, to receive them.
Salesi Temo
ACTING JUDGE
AT Suva
29th September 2010
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