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High Court of Fiji |
THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION
HIGH COURT CRIMINAL CASE NO: HAC 018 of 2008
BETWEEN:
STATE
PROSECUTION
AND:
1. VILIAME ROGOSE TIRITIRI
2. NAULU BALEILEVUKA
ACCUSED-PERSONS
Counsel: Ms. E. WHIPPY, State Counsel-For State
Mr. I. KHAN -For Accused
Dates of Trial: 12th, 13th, 14th and 18th October, 2010
Date of Summing Up: 21st October, 2010
SUMMING UP
Madam Assessors and Gentleman Assessor
5. Let me explain a further on your role. Each one of you has attained a certain standard in life and society and possesses a wide experience in life, community and the society at large. Therefore, the reason for your selection to perform the noble task as a judge on facts is that you have a better understanding and knowledge on day-to-day happenings in the society. You can, therefore, grasp and understand them better than a court of law would do; because, what the evidence seeks to unravel are indeed the facts that come to be in existence in the course of the conduct of the people in their day-to-day life. As members of the community, you are considered to have a better opportunity and ability of assessing and appreciating such facts, which ultimately would be utilized to decide the case before you.
8. 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 that you have heard about this case, outside this courtroom. You might have seen or heard news-items in print or electronic media about this case before or during the trial. You must disregard them and your opinions should, only be based on the evidence given in this courtroom.
15. Ladies and gentleman, please note that if the prosecution has not discharged its burden of proof or has not been able to reach the standard of proof as set by law, then the case for the prosecution fails. If you find a reasonable doubt in the case for the prosecution, such doubt should always be given to the accused-person/s. You have to remember that, at no time the prosecution is entitled to the benefit of any doubt that may occur in the course of the prosecution case or defence case, which I will advert to when I sum-up evidence later.
16. Proof beyond reasonable doubt, therefore, means that before you find the accused-persons guilty of the offence charged or any other offence, you must be satisfied in your mind that you are sure of the guilt. If something puzzles in your mind as to the guilt after evaluating facts based on the evidence - that means - that the prosecution has not satisfied you on its standard of proof. In other words, there is a doubt you reasonably perceive as to the commission of the offence as charged or any other offence by the accused-person/s. Such doubt should always be resolved only in favour of the accused-person/s. You must, thereupon, express an opinion that he is not guilty.
17. I will now deal with the elements of the offence.
The Accused is charged with the offence of murder. Murder is the unlawful killing of someone with malice aforethought. The elements of the offence of murder, which the prosecution must prove beyond reasonable doubt, are:
(i) The accused-person/s did an unlawful act;
(ii) That unlawful act caused the death of the deceased; and,
(iii) That the accused-person/s acted with malice aforethought.
18. I will now explain these three elements to you.
24. The particulars of the offence, as alleged by the prosecution, are that:
'VILIAME ROGOSE TIRITIRI and NAULU BALEILEVUKA on the 21st day of March, 2008 at Namaka, Nadi in the Western Division murdered VILIAME GONEIVALU.'
25. Therefore, it is clear that it is only the two accused-persons before court who have been charged for murder. This means that according to the prosecution allegation only two of the accused are alleged to have been responsible for the murder. Please remember that this undisputed fact is very important when it comes to analyse the evidence in this case because evidence has to be analysed only in relation to the offence for which an accused-persons stand charged.
26. I must explain the legal basis of the charge. When a charge is laid jointly against more than one accused-person in this manner,
it brings into focus an important legal principle, which is known as the 'doctrine of joint enterprise'.
27. Usually, a person is liable in law for only acts committed by him and for his conduct. Such acts or conduct alone attract criminal
liability if they are unlawful. The doctrine of joint enterprise is an exception to that general rule, of course, for valid and sound
reasons. The principle is explained under Section 22 of the Penal Code, which reads:
'Offences committed by joint offenders in prosecution of common purpose
'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.'
28. Madam-assessors and gentleman-assessor, this is how the principle works. Three people, for an example, plan to rob a shop and one stands guard outside looking out for any police surveillance. One man goes inside and holds the cashier. The third person threatens the cashier with a gun and takes all the cash. All three men then make their get-away. Now, you will see that only the third man did the actual act of offence, while the other two helped to execute the act of robbery. Under the law, each one of them is held liable for the offence of robbery with violence irrespective of the individual roles played by each one of them under the doctrine of 'joint enterprise'. For the principle to work under the Section, there should be evidence beyond reasonable doubt that:
(i) There should be two or more persons forming a common intention to prosecute an unlawful purpose;
(ii) In prosecution of that unlawful purpose, an offence/s should be committed; and,
(iii) The commission of such offence/s should be the probable consequence of the prosecution of that unlawful purpose.
If, in the example above, it is established by evidence that the three men were not actuated by a common intention but they were acting independent of each other or that each one of them had only a similar intention of robbing the cashier, then each one of them is liable only for what each one of them committed but not for the offence of robbery with violence, which actually was committed by the third man.
29. Therefore, in dealing with the principle, you must consider the following factors as matters of law. They are:
(i) The case of each accused must be considered separately. That is, you must find evidence as to what each accused did to demonstrate that he too had shared the intention in common to prosecute the unlawful purpose;
(ii) Each accused must have been actuated by that common intention with the doer of the unlawful purpose at the time the offence was committed and should have contributed in some meaningful way towards the prosecution of the unlawful purpose;
(iii) Each one of them should have known that the commission of the offence is a probable consequence of the prosecution of that unlawful purpose.
(iv) Common intention must not be confused with same or similar intention entertained independently of each other. Instead, it should clearly be distinguished from similar intention. That is, if you find evidence to show that a particular accused did not share the intention in common with others and that he was actuated by his own intention which was, however, similar to the intention of others, you can find that accused guilty only for what he has committed and not for anything else;
(v) There must be evidence, either direct or circumstantial, of pre-arrangement or some other evidence of common intention. Sometimes, however, such common intention could occur on the spur of the moment;
(vi) The mere fact of the presence of the accused at the time of the offense is not necessarily evidence of common intention.
30. I must direct you further on the application of the legal principle of joint enterprise relating to this case. The charge, based on that principle, is made against the two accused-persons who are before you. Therefore, only their acts will make them responsible for the outcome of their act/s or conduct, if you consider it to be so. Evidence transpired that another person, whose identity is not known, attacked the deceased with a beer bottle after receipt of which, the deceased fell on the ground. Any harm that might have been caused to the deceased as a result of that attack with the beer-bottle shall not raise liability against these two accused-persons or against anyone of them for the reason that the charge has not referred to such an unknown person being associated with these two accused in the incident. Therefore, you must consider whether the act or the conduct of these two accused-persons were unlawful; and if so, whether such act/s or conduct, accompanied by malice aforethought, caused the death of the deceased. In considering that, you must decide whether, they were actuated by common intention to commit the murder of the deceased. If they are not, they will be liable only to the extent of injuries caused by each one of them.
31. Similarly, it transpired in evidence, that there were others who had been associated with the accused that night and their conduct too appeared to be wrongful. This would perhaps have contributed towards the death of the deceased in some way or the other. Whatever the degree of their involvement, that cannot be considered against these two accused or anyone of them as such offending conduct has not been taken into account by the prosecution when the charge was laid.
32. It is now time for me to tell you about the nature of evidence that can be offered in a case. A witness can give evidence on his observations, like what he heard, what he saw, and what he perceived by his own senses. That is called direct evidence. In certain circumstances court would allow witnesses to give their opinions on a matter. These witnesses should be experts on that particular subject. For example, you get experts on medical field.
The consultant forensic-pathologist Dr Ponnu Swamy Goundar gave evidence and his expertise was not challenged. Therefore, his opinions as to the onset of injuries and the cause of death of the deceased are admissible in evidence. Such evidence is called expert evidence. You can be guided by his opinions when you assess the facts of the case as to the cause of death of the deceased. Please remember that you are entitled to form your own opinion as to facts after considering the opinion of the expert. If you feel fit to give weight to the expert's opinion, then you can accept it.
33. You must consider all direct evidence - that is what witnesses saw and heard or perceived by their senses, as well as expert evidence above referred to. Documentary evidence and real evidence are also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, the Post-Mortem Report, the sketch of the place of the crime, the photographs of the deceased taken at the post-mortem and the cautioned-interview statements, which are before you, are documentary evidence. Real evidence is the material objects that are used to commit the offence and/or those recovered from the scene of the crime. In this case, the beer bottle and pieces of the cement block are examples for real evidence. They can be used to support the evidence of a witness and to advance one's case. You must consider whether the material objects were, in fact, used or found from the scene before you accept them as real evidence in the case.
34. The most important matter that needs be established by evidence in a criminal trial is the identity of the individual accused-person committing the offence or his involvement with the offence in some other way in order to be caught-up under the principle of joint enterprise. This is usually done by way of direct evidence through the testimony of witnesses. In this case prosecution relied on direct evidence to establish identity of the two accused.
35. The case against each accused in this case depends exclusively on correct identification. Learned Defence Counsel, contested the case only on identification alleging that the identification in this case was improper or mistaken. The issue of identification is, therefore, crucial to the prosecution case and identification of each accused committing the offence or his involvement in the commission of the offence should be established beyond all reasonable doubt. If you entertain any doubt as to identification of one or both of the accused-persons, the case for the prosecution fails and you should express the opinion of 'not guilty' forthwith.
36. You must clearly bear in mind that a witness, perhaps mistaken on identification of one accused or both of them, can nevertheless be convincing in his evidence as to the commission of the offence and identification of the accused. There could even be one or more witnesses mistaken in the same way though similarly convincing in evidence before you. When you are examining the evidence on identification, you must guard yourselves against such a possibility.
37. In dealing with evidence on identification, you must closely consider the circumstances under which each witness happened to identify each accused. You must, in addition to what you may think proper to consider, take into account following factors in coming to a conclusion in regard to identification of each accused. They are:
(i) For how long could the witness observe each one of the accused;
(ii) Is there evidence referring to any distinctive conduct of each one of the accused during such observation;
(iii) What was the light? Is the point of place sufficiently lit to enable the witness to identify the accused without the risk of being mistaken;
(iv) What was the distance to the scene of the crime from the place where the witness stands?
(v) Was such distance being varied due to the movements of the accused and/or witnesses and if so what specific act/s were seen by witnesses after such variation;
(vi) Was the observation by the witnesses obstructed due to moving objects, gathering of people and fall of shadows etc;
(vii) Had the witness/s ever seen each one of the accused before? If so, how often and for how long?
(viii) Are there any special reasons for the witness to remember the accused/s after such encounter before?
(ix) Is the identification by the witnesses of the accused/s tested through another means such as an identification parade to be sure procedurally before their identification in Court?
38. You may be reminded that you sometimes wrongly recognize people who are known to you. Identification of a stranger, therefore, may even be difficult to make. You must, therefore, clearly consider whether the witnesses could identify under the conditions prevailed at that night of the incident. If you think that they could, then it is entirely a matter for you to decide on the identification of one or both of the accused.
39. Usually, a suspect who is not recognized by name in the commission of an offence, is submitted by police for an identification parade. As, you are perhaps aware, this is a system where a few people who are similar to the suspect in terms of age, appearance, complexion, height and clothing etc. are put in a parade along with the suspect and witnesses are asked to pick-up the suspect that they claim to have identified among the people on the parade. This method is carried-out to make sure that the identification by witnesses was done with certainty and to avoid the risk of mistaken identity of a person as a suspect. If the person suspected of the offence is picked-up correctly, then the identification by witnesses stands tested and such evidence is presented before court for you to decide on identification of the accused.
40. You must note that such an identification method was not conducted in this case by police. Therefore, identification of accused had not been tested to avoid the risk of mistaken identity. Instead, witnesses were asked to identify the two accused, who were on the dock.
41. This kind of dock identification is usually undesirable for the reason that it is not an uneasy task for witnesses to point finger at people who stand in the dock. If you think that despite this infirmity, witnesses could still have identified the two accused in the commission of the offence after considering all those matters I explained a while ago and that evidence of the witnesses on identification is convincing, you can act on the evidence of identification by two witnesses.
42. You will have to bear in mind all those legal principles when analyzing evidence to decide whether the accused are guilty of the offence as charged or any other offence. I will now proceed to summarize the evidence in the case.
43. Cautioned-interview statements are before you. You must read them very carefully. These are statements made to police under the caution that they will be used as evidence against the maker of such statement. The statements were admitted as evidence without any objection from the accused. They are, therefore, evidence in the case. You may consider the statements to see whether an accused or both of them had been in or around the Namaka Public School Compound at the relevant time of the date of the incident and to see whether there is an admission to that effect. Also, you may consider whether there was admission in the statements showing that one accused or both of them had been in close contact with the deceased at the relevant time. In that you may consider the questions and answers referred to by the learned counsel for the defence. Those matters could be considered in deciding whether the witnesses could have the opportunity of identifying one or both accused and whether evidence of witnesses in the commission of the offence by the two accused is acceptable. You must remember that contents of the cautioned-interview statements can be used only against the maker of that particular statement. It can in no way be used against another accused.
44. I will now deal with the rest of evidence.
'I was drinking grog on 20. 3.2008. I was joined by Saimoni and Vili. Vili was a Security Officer at Frezco and Saimoni was the nephew of Vili.They joined around 11.00p.m on 20. 03.2008.They heard two young men yelling on the road. Vili spoke to them and told them not to swear. Then they started arguing.They were arguing about yelling and swearing.They started punching each other down towards the school.Sadhai Auto Parts was quite close to the Public School, Namaka. Vili the nephew of the Head Master ran up to the office upstairs. Vili, with whom I was drinking grog was a friend of mine. Other Vili was the nephew of Head Master of Namaka Public School. Both Vilis were pulling each other. Vili-headmaster's nephew was part of the group yelling. I could see him clearly. "I was not familiar with him". I could recognize his face and light was there in front of Sadhai and street lights was there. I could not see everything clearly where I stand. Vili the nephew is in court. Vili the nephew is in court (1A) identified.
Vili the security Officer, where is he now?
He is dead.
I do not know his full name. His name could be Viliame Gaunanivalu. (1A) had run up to the office. That's Headmasters'. The deceased was walking up the driveway at Namaka Public School. Saimoni was following Vili towards school. Vili – nephew came down again and he was followed by Headmaster and two other boys. They had an argument – Vili – Deceased and all the men came from office. Argument was about Vili – deceased, did not like the drinking at school. The men came from the office were all drunk. Headmaster also came down. Headmaster is present in Court (2A) identified. They had a fistfight. Vili-the deceased and 1A. One of the two boys standing beside the deceased, hit the deceased with a bottle on his head. It was a beer bottle. Headmaster, 1A and two other boys came from the office. It was a long bottle. Deceased fell on the ground after receipt of hit of the bottle. 1A and 2A started to kick him on the ground. Deceased was just lying on the ground, two boys kept on kicking the deceased. 1A picked up a block and broke the block on decease's head. I and Saimoni tried to assist deceased. Other men were standing near 1A and the deceased. They started throwing broken pieces at us. 1A followed us. Saimoni ran towards the road, and I ran towards Embroidery Factory. Deceased was just lying on the ground and not moving. 1A was at Sadhai's office and he was damaging. Another Headmaster's nephew took the deceased to the hospital. He was a teacher at Namaka Public School.
Answering cross-examination, witness said:
'Q: who gave you the information that 1A was the nephew of the headmaster?'
A: Police.
Q: Did they give his name?
A: No
Q: So you knew him?
A: No, I heard his name on that night.
Q:What time did you know the name?
A: After 12.00 midnight.
Q: Why did not you tell Police what Villi did?
A: I was not asked that question to give the name.
Q: In your statement, you never mentioned the name of Vili anywhere?
A: No. I gave the name to Police.
Q: How was your statement referring to a tall Fijian man?
A: His name was not called out at that time by ladies.
....
Q: So, that was the first time that you saw him?
A: Yes.
...
Q: Light was orange light from the street lamps?
A: Yes.
Q: Light was not that bright?
A: I do not know.
Q: It was a dim orange light?
A: It was bit dim.
Q: You [could] cannot see 1A and 2A from the place you described?
A: I could.
Q: I am putting to you that you could only see figures?
A: Lights of the school canteen were also on.
....
Q; I put it to you that the 1A and 2A did not assault the deceased.
A: Incorrect.
...
Q: You had two police officers besides you. Why did not you tell them what 2A did?
A: I cannot answer that question.
...
Q: This is case of mistaken identity?
A: No.
'I can recall 20.3.2008.
I came to check a container of Mineral water which was supposed to be taken that day. It was for the Frezco beverages. After it was loaded around 9.00 o'clock at night, I went to the town Greenland Nightclub in Nadi. We were drinking at Sadhar around 12.00 midnight of 21.08.2008. Sadhar was at Nasouvatu Road. That road goes to Namaka Public School. I was drinking grog with Peni, and three other Peni's cousins, Waisale and Vili. Vili passed away. While we were drinking grog. Peni and his three cousins left. After a while, there was no more 'Kava' and I told them to bring my ATM card. When I left and reached LTA office, I heard some yelling from where we were sitting. I went on bicycle. I came back I found that Vili and a tall man having a quarrel in front of Sadhai's Office. Vili was asking him why he was swearing at him. I did not get what he was saying. They had a quarrel along the road until they reached the school. I saw him properly that night as there was light in front of Sadhai's office. When they reached the school I saw a thin man coming from the school. They came down and went straight to Vili. Tall man was down. They had a fight. I could recognize the headmaster. He was leading the group. They had a fight with Vili. Headmaster threw a punch at VIli. I was at the footpath about 6 metres away from the scene. I could see everything clearly from where I was standing. There were streetlights, light from the school and canteen. I saw the tall man for the first time. It was going on for 20 minutes. I had a clear view of what was going on.
Headmaster and tall Fijian boy are in court. 1A and 2A identified. When they came down I went towards where they had the fight in school compound. They fought and after while I saw Vili lying on the ground. They started stepping on and kicking Vili. They were stomping on deceased's body. I saw the tall man bringing a block and hitting it on the fallen man's head. I heard some people calling out his name, saying 'Villi that is enough', when he got the block. Vili, the deceased was lying down. He tried to stand up when he was kicked. After he was hit with the block, there was no movement. I saw the Headmaster throwing the first punch. Vili was motionless. The group of men saw me standing on the footpath. One of them hit me with a beer bottle and another with a stone. I ran towards Cawa Road and crossed to the other end. I came towards the main road and went towards the school ground. I came and went towards Vili. I saw Vili lying on the ground. I saw some people standing
3 – 4 metres away. None helping. I called him twice, no response. I ran to the Taxi Stand and asked to assist to take Vili to the hospital. He told me to wait as they had already called the police. I ran again to Vili, I turned him and touched his face and realized injuries. Block was struck on deceased's face and it broke into pieces. They were around. I was turning him around. I heard this tall man referred to as Vili (1A) shouting along the road. He was running and shouting along the road.
I left Vili and ran away. I was scared of him as they would do the same to me. I went back to Sadhai's place where we were drinking grog. I found that Waisale and others were also off and I saw the radio damaged. I recall being questioned by police about the incident. I was asked to assist them at the crime scene. I took Investigating Officer to the scene, about 11.00 am on 21.3. 2008.
When we reached there, I show him the place where incident occurred. I checked around light. I saw Investigating Officer drawing sketch of accident. Investigating Officer was Sgt Elia. I did not see the scene as it was in the morning. Pieces of the block were near the roadside.
Answering cross examination, witness said:
....
Q: Why 90% of your evidence was not contained in your statement?
A: I said everything in court today.
Q: When did the police contact you regarding the incident in Namaka?
A: On the same morning around 8.00 am.
...
Q: 'Lighting' was not there in the statement?
A: It is there.
Q: Did you mention about canteen lights@#?
A: I forgot to tell.
Q: You confirm that the deceased-Vili was standing and when he was punched, he fell down
A: Yes.
Q: What would you say to the fact that another man hit with a beer bottle and that is why the deceased fell down?
A: I only saw that they were fighting and after that I saw Villi falling on the ground.
Q: If I suggest to you why Vili fell down was because he was assaulted with a beer bottle?
A: I saw the headmaster having a fist-fight with Vili-the deceased.
Q: Did you see somebody hitting the deceased with a beer bottle?
A: No.
...
Q: You are mistaken on identification of both accused?
A: No
Q: You came from the night club after how many drinks?
A: Three of us three jugs
All photos were marked as 'PE-3'
He was based at CID office in Suva. He has been in the force for 20 years. He had served at Namaka in 2008. He also worked as Investigation Officer in cases such as this. He was the Investigation Officer in this case. In relation to this case on 21. 03. 2008 at 9.00am he was called by Crime Officer – Inspector Samsharon to look into the case of assault at Namaka Public School compound. He said that the victim had been transferred to Nadi and Lautoka Hospital. He visited the scene with Senior Crime
Officer from Lautoka. He found at the scene pieces of cement block, broken bottles and spots of blood on the driveway. He photographed the scene and then lifted the blocks and the beer bottles from the crime scene. He took them to the station as Exhibits of the crime scene. He identified a long beer bottle of 750 ml, which was marked as (PE 4). He identified the bricks collected on that day. Seven pieces of the broken block were collected, which are marked as (PE-5). He made a sketch draft of the scene of the crime and marked it as 'PE-6'.
He looked for lighting; it was from the lamppost and from the building. When he visited the crime scene, the deceased was in a comma. Deceased did not regain consciousness until his death.
Answering cross examination, he said that there were no witnesses or accused at the scene when he visited. He said that he had missed to put the points where lights were and he admitted that it was very important. He said that Simione's statement did not refer to the bricks but only to the incident.
Dr Ponnuswamy Goundar giving evidence stated that the cause of death of the deceased was due to 'intra-ventricular hemorrhage and diffuse cerebral edema due to blunt impact associated with systematic shock as recorded in the Post-Mortem Report marked 'PE-7'.
Answering cross examination, the doctor said that a forceful attack with a beer bottle could have caused the injuries as shown in the Report. Clarifying in re-examination, the doctor said that any other impact and blunt force could cause injuries.
45. The case for the prosecution was closed with the evidence of those witnesses and exhibits marked as Exhibits PE -1(a)– PE-7.
46. After the case for the prosecution was closed, you may recall, that I explained the rights available to the accused. I was under duty to do so. You must not misunderstand that that exercise of my power under law as a call to answer the charges and to prove their innocence. There is no such compulsion and the accused decided to remain silent. That is their legal right and you must not draw any adverse inference on their silence. They are well within their right in making that choice.
47. I have summarized all the evidence before you. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should reminded yourself of all that evidence and form you opinion on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourself of the evidence.
48. In summary the prosecution says that the unlawful act committed by the accused and their conduct was with malice aforethought to cause the death of the deceased.
49. In considering what to accept you must look at the evidence objectively and not to be swayed by emotion. This is indeed a tragic case, and says more about the shortcomings of society than it does about the accused.
50. Remember that the burden of proving the accused's guilt rested on the prosecution at all times. If you find that the act of the accused or the conduct in issue was accompanied by malice aforethought then you can find them guilty for murder. If you think that that the accused could have only the knowledge of a possible death of the deceased on account of their acts or conduct, then you cannot find the accused guilty of murder. Instead, you can find the accused guilty only of manslaughter, which is an offence less in gravity than the murder, as I indicated before. Manslaughter is the killing of a person without malice aforethought.
51. If you are of the view that the Accused did nothing unlawful by their acts or conduct or you have a reasonable doubt about that, then you must find the Accused not guilty of any offence.
52. Remember that the onus of proving the Accused's guilt rests on the prosecution at all times.
53. Your possible opinions are:
54. Madam assessors and Gentleman assessor, this concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charge 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.
55. I thank you for your patient hearing to my summing-up.
You may retire to consider your opinions now.
Priyantha Nawana
Puisne Judge
At Lautoka
21 October 2010
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