State v Sudhakar [2010] FJHC 523; HAC068.2010 (11 November 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO.: HAC 068 OF 2010

BETWEEN:

STATE
Prosecution

AND:

STANLEY SANJAY SUDHAKAR
Accused Person

Date of Hearing: 02/11/ - 03/11/2010
Date of Summing Up: 11/11/2010

Counsel: Mr Fotofili, L. - For State
Ms. Savou - For Accused Person

SUMMING-UP

[1] Ladies and Gentlemen: in summing up this case to you I have two responsibilities to discharge. The first is to direct you as to the law that applies to this case. You must accept my directions as being a correct statement of the relevant law. I also have a responsibility to summarise the evidence that has been called by the State and on behalf of the Accused. In discharging this second responsibility I shall not remind you of all the evidence that has been given; it will be a summary of what seem to me to be the important parts of the evidence. If I do not remind you of a piece of evidence that you remember and which you consider to be important then you give that evidence the weight which you consider it deserves. Equally, if I refer to a piece of evidence that you do not consider to be important, put it on one side and concentrate on the evidence that you consider to be important.

[2] Those are my two tasks. Your task is to decide the facts of the case; you have to decide what happened. All matters of evidence and all questions of fact are for you and for you alone. You must decide what evidence you accept as being reliable, accurate, truthful evidence and what evidence you reject as being inaccurate, unreliable, mistaken, or, if it be the case, untruthful. In discharging your responsibility there is no place for feelings of emotion; your task is to carry out a careful analysis of the evidence devoid of emotion and you must decide the case only upon what you have heard in this court.

[3] So, you will apply the law, in accordance with my directions, to the facts that you find to be proved by the evidence and reach your verdict.

LEGAL DIRECTIONS

BURDEN AND STANDARD OF PROOF

[4] The Accused is put on trial by the State and it is for the State to prove that he is guilty of the allegation of murder. It is not for the Accused to prove anything let alone his innocence; the burden of proof rests upon the State. How does the State prove the guilt of the Accused? To what standard must guilt be proved? The standard of proof is best expressed in this way: you will not find the Accused guilty unless you are sure of guilt; if you have a reasonable doubt as to his guilt then you will find him not guilty

MURDER

[5] A person is guilty of murder if he deliberately and unlawfully kills another and at the time of doing so he either intends to kill the other person or intends to cause really serious injury to that person. There is no doubt in this case that Agnes Kumar was murdered; it has never been suggested by the defence that Agnes Kumar was not murdered by someone. The sole issue in the case is whether the State has proved that the Accused was the murderer.

ALIBI

[6] The Accused says that he did not commit the murder and he was elsewhere when the murder was committed; the legal terminology is that he advances an alibi for the time that the offence was committed. It is not for the Accused to prove that he was elsewhere at the time the murder was committed, it is for the State to prove that he was not elsewhere and that he committed the murder. What is the position if you reject the defence of alibi? Even if you reject his alibi you must not convict the Accused solely on the strength of that rejection; to convict him you must be sure that he murdered his mother.

EVIDENCE

[7] In a criminal trial the evidence relied on by the State may consist of direct evidence of the accused having committed the crime, or circumstantial evidence, that the State says points towards the Accused having committed the crime, or both. In this case the State relies firstly and principally upon direct evidence that the Accused committed the crime, namely, his admission to the police that he killed his mother. I shall return to that.

[8] The State also relies upon circumstantial evidence and upon two circumstances in particular. The first relates to the torch. The State says that this torch was obviously used by the murderer in the course of the attack. It was found in a broken and bloodstained condition under the bed of the Accused. You will decide whether you are sure or not that the torch was used in the course of the attack. If you are not sure, that is the end of it. However, if you are sure that it was used in the attack, there is no dispute that the torch belonged to the Accused and the State invites you to draw the inference from the circumstances that it was the Accused who was using it to attack his mother.

[9] The second piece of circumstantial evidence for comes from Abdul Shafil who says that after he had waited outside Rose Place for about half an hour the Accused got back into his taxi and he saw blood on his hands which he was washing off. The Accused completely denies that. If you are not sure about it, that will be the end of it. However if you are sure that this evidence is true and accurate, the State invites you to draw the inference that the accused had blood on his hands because he had just murdered his mother.

[10] Circumstantial evidence in a case may be powerful evidence; however it is important that you should look at it with care. In particular, before drawing any inference as to the Accused's guilt from circumstantial evidence, you must be sure that there are no other co-existing circumstances which would or might weaken or destroy the inference. Furthermore, there is an important distinction to be drawn between, on the one hand drawing an inference based upon reliable circumstantial evidence and, on the other hand, simply speculating. You must not engage in mere speculation.

THE CONFESSION

[11] I now turn to the evidence of the confession allegedly made by the Accused.
The State relies principally upon the evidence that the Accused confessed to the murder of his mother. The Accused says that he never confessed to her murder and he says that the responses attributed to him by the police in the record of interview have been made up by the police. If you conclude that that is or may be what happened then of course the evidence is worthless.

[12] The Accused maintains that he was assaulted following the break in the interview at about 8.30 pm on the Saturday night. However, he is not saying that this led to him to make a confession, far from it; he says that he continued to deny murdering his mother from beginning to end and the police have just fabricated the confession and got him to sign it which he did through fear.

[13] If, however, you are sure that the accused did give the replies as recorded in the record of interview, your task is to decide how much weight to give to them. You have to decide whether you are sure that this is a true confession, taking into account all the circumstances surrounding the police interview as you find them to have been. If, having considered all the circumstances, you are sure that this was a true confession freely made by the Accused then you are entitled to take it into account as evidence of his guilt.

Evidence of Previous Assaults

[14] In the course of the latter stages of the interview the Accused allegedly told the police that he had assaulted his mother on 5 previous occasions. How do you approach that? First of all you will have to be sure that he made this admission; if you are not sure then you will disregard it completely. Even if you are sure that he did make this admission and that it was true it does not prove that he murdered his mother; you must decide that on the evidence placed before you relating to the allegation of murder. You also heard evidence that at the party on the Saturday afternoon the deceased was seen to have an area of bruising to her right thigh; there is no evidence that the accused was in any way responsible for that and the safest course would be to disregard it.

SUMMARY OF EVIDENCE

[15] It is a matter of course entirely for you but you may think that the arrival of Uncle Francis from Canada was a significant event in the context of this case. The Accused says that there was no ill feeling between him and his uncle; other evidence may suggest that there was something of an atmosphere created by the arrival of Uncle.

AVINESH KIRPAL told you that:

[16] On Saturday, 1 May there was a gathering at his home to celebrate the visit by Uncle Francis, home from Canada. It started at about 4.00 PM; his three brothers were there together with his mother, Uncle Francis, the Accused and the deceased. They all had drinks and food. He says that there was an argument between the Accused and his uncle; the Accused was saying that his uncle was not supporting them enough. The accused was getting angry and Uncle Francis asked the witness to ask the Accused to leave, which he did. The Accused did not have any money for a taxi so he was given $5.00. Later on, the witness and others including Uncle Francis and the deceased went to the Purple Haze night club. Inside the club the Accused came over and started talking to Uncle Francis; although the witness could not hear exactly what was being said he heard some abusive words about Uncle Francis not supporting the Accused. He told the Accused to stay away from Uncle Francis. He recalled that the deceased got a taxi home before the others left the nightclub.

SANJIV KIRPAL told you:

[17] He was also at the party. He recalls that at some point the deceased came and sat with him and his group; she said that Stanley had not wanted to come to the party and she had to force him to come along. She showed the witness and others a black mark on her hip on the right side which he estimated to be seven centimetres wide and about 30 centimetres long. He went to work at the nightclub at about 7.00 PM; the Accused came in at about 9pm. The witness asked the Accused why he was on his own and the Accused said that he had had an argument with Uncle Francis. The witness worked until 11.00 pm by which time his family had come to the club. They were all sitting together but the Accused was on a mobile phone saying "what are you doing still drinking you are supposed to be home by now"; we do not know to who he was talking to. A little later the family went home and he left the club at about 12.30. At about 4.00 am on Sunday he heard the noise of a car horn in the driveway. He got up and saw the Accused in the driveway and he was saying "Hurry mum is lying in a pool of blood, something is wrong". By that time the rest of the family were up and Uncle Francis said to the Accused "did you call the police or the ambulance". The accused said that he had not done so adding "you are the first people I have come to see". Uncle Francis then called the police who arrived and they went with Uncle Francis to Rose Place. The Accused was there calling a friend on his mobile phone asking the friend to come over; he was also saying something about his mother's pension. The witness said that he had stopped drinking at 6.00 PM and did not drink again until after he had finished working.

Abdul Shafil

[18] He is a taxi driver and you will remember that he had driven from Nadi to give evidence in this trial.
You will decide what to make of all the witnesses who have been called in this case. As I have said, decisions as to whether they have given truthful or untruthful evidence are for you. There is no doubt at all that this witness said things in the statement he made to the police that were different from the evidence that he gave in this trial. What the explanation for that may be is for you to consider.

[19] The case for the Accused, as put to this witness in cross examination, is that the Accused never travelled that night in this witnesses' taxi and his evidence in almost every respect is untruthful. In her closing address to you Ms Savou referred to the evidence of this witness as "the entire prosecution case". That is of course not so; it is a submission that ignores the fact, as the State contends, that the accused admitted that he had killed his mother. There can be no better evidence of guilt than an admission freely and voluntarily given by the Accused that he committed the crime.

[20] The witness said that he picked up the deceased from outside the night club and took her home; he then returned to Purple Haze, the Accused got in his taxi and he dropped him off at Rose Place. The Accused told him to wait which he did for about half an hour and then the Accused got back in his taxi and he saw him wiping blood off his hands with a towel that belonged to the witness, using water from a bottle that was in taxi. During the journey the Accused said that he had assaulted his mother and the witness was not to tell this to anybody or harm would be done to him.

[21] When he was cross examined the witness spoke about being assaulted by the police; you will have to consider that. He undoubtedly told the police things that he has not spoken about in this trial; he said that the police had not written things down properly and they had got things wrong. He agreed that he had not said anything to the police about seeing blood; he said that he had made a mistake in not telling the police about that. He said that if he had not picked the Accused up and taken him in his taxi then why would Avinesh Kirpal have given his name and his taxi number to the police as a potential witness, resulting in him being stopped and questioned by the police. You may wish to consider that proposition.

[22] His final position was that what he was telling you was correct.

[23] Ultimately, it is a matter for you to decide what to make of him as a witness but you may think that it would be wise to exercise a certain amount of caution in your approach to his evidence.

CORPORAL NUTE told you

[24] He is the investigating officer in this case and has been in the police force for 21 years; he works in the major crime unit. He went to the murder scene and he recovered a diver's torch which was both broken and bloodstained; it was found under the Accused's bed.

[25] He saw the body of the deceased on the floor of her bedroom.

[26] Several days later he interviewed the Accused and you have the record of that interview. It is clear from the record of interview, and not challenged by the Accused, that he was properly cautioned and advised of his right to legal advice which he declined. He signed each page of the original record. Corporal Nute said that no complaint was made to him by the Accused at any time during the interview; it was only at the end, after the Accused had confessed, that he complained about body ache. As a result, he was taken to the health centre for a medical examination and a JP was called in to speak to him. Corporal Nute described both these procedures as normal procedures in serious cases.

[27] When he was cross examined it was suggested to him that he had been part of a group of police officers who had assaulted the Accused; he denied the suggestion. However, notwithstanding the allegation of assault, it was suggested that the Accused had never confessed to the murder of his mother and that the apparent confession in the interview record was completely made up by the police. It was suggested that, despite the alleged assault on the accused, he had carried on denying anything to do with the death of his mother. In particular, it was suggested that some of the questions that appear in the interview record were never asked and therefore that the answers that appear were either made up or never given. Alternatively, if the question that appears was asked, the answer attributed to the Accused was not given by him and has been made up by the police.

[28] You may wish to consider in this context how it is that the answers allegedly made up by the police would seem to correspond very closely with how the murder was in fact committed: the blows to the head with a torch, followed by manual strangulation and the moving of the body from the bed to the floor where the body was partly covered. There would seem to be only two explanations for that; either the police have quite by chance made up a story that in fact fits the facts, or, the answers have been given by somebody who knows how the murder was committed. Corporal Nute said that the confession by the Accused was freely and voluntary given and the questions and answers recorded are accurate.

[29] Corporal Nute denied that he had been present in the room at the time of the medical examination of the accused.

CORPORAL RAKAMATIA told you

[30] He was on duty at about 4.00 am on 3rd May at the police station. He recalls an Indian man getting out of taxi and walking towards the police station. This man called out to the police to accompany him to his home as there was something wrong with his mother. The witness went to Rose Place and saw the deceased. The Accused said to him "there is only one thing missing from my house, a diving torch". The witness checked the sitting room and two other rooms but could not find it. On 10th May he reported for duty in the late evening; he checked the Accused in his cell. He knew the Accused was a murder suspect and that the interview had been suspended. The Accused was sleeping and he recorded that fact in a cell diary.

DC AMANI told you

[31] He had no recollection of the 10th and 11 May; it is not suggested that he was on duty that night. However, it was suggested to him that he and other police officers had assaulted the Accused with sticks. He denied any involvement in that or any knowledge that it had happened.

DR PEREIRA

[32] She is a Consultant Forensic Pathologist. She did not carry out the post mortem but had looked at all the notes made by the Doctor who carried out the post mortem. She has incorporated into her report everything that the Doctor recorded during the post mortem. You have Dr Pereira's report and she was taken through all the significant findings.

[33] The cause of death was asphyxiation as a result of manual strangulation; in layman's terms, Agnes Kumar had been strangled to death by somebody using their bare hands. There were also significant injuries to the head as a result of impact by a blunt object. One of the injuries was to the left side of the forehead involving two tears and leaving a pattern of four parallel vertical stripes. The other significant head injury was to the left side of the back of the head; there was a similar pattern to the first head injury but there were only two parallel lines appearing in the pattern.

[34] The deceased had been wearing a chain around her neck at the time of the attack and the chain had left an imprint abrasion; this was explained either by the chain being pulled tightly around her neck from behind or possibly from the side.

[35] The injuries numbered 5 to 11 inclusive are all entirely consistent with the consequences of manual strangulation.

[36] As to the internal injuries, Dr. Pereira showed you some useful slides pointing out where internal injuries had been found around the neck. She demonstrated the areas of these injuries by reference to her own neck. She said that considering the multiple bruising found and the haemorrhaging in the eyes some degree of force had been used.

[37] There was some natural disease found but this had no connection with the cause of death. There were no skull fractures but there was bruising to the scalp internally in the areas that related to the external injuries to the head.

Rishi Ram

[38] He is a JP and he was asked to conduct a face to face interview with the Accused; the purpose of this interview was to ensure that during the interview with the police the Accused had been made aware of all his rights and had been provided with meals and appropriate breaks.

[39] He interviewed the Accused in the same room as the Accused had been interviewed by the police and it was only two of them that were present. He made a written record of his interview which both of them signed. He has recorded on the second page the Accused's description of being assaulted; the witness said that he did not see any injuries on the Accused but he asked him whether he had any pain and when the Accused said that he did the witness arranged for a medical examination. He described the Accused as looking a little bit frightened, "excited and afraid". By this time the Accused had already been charged with murder.

[40] He said that the Accused pointed to his right ear and to the back of his head but the witness was unable to see any injuries anywhere and he was not invited by the Accused to look at any alleged injury to the ear or to the back of the head. He said that it was normal procedure to take the Accused for a medical check up if complaint was made of an assault having occurred.

Dr KALE KURABUI told you

[41] He did not carry out the medical examination of the Accused but he was called to give an opinion as to the medical report that was prepared by the Dr. who carried out that examination.

[42] The report noted the complaints made by the Accused that he had been assaulted. His mental state was described as calm; that would be an assessment made following a general observation of his appearance. His general health condition was described as good and, again, this would be based upon a general observation of the Accused, including the way in which he walked in to the examination room.

[43] There would have been a full physical examination and the Accused would have been invited to say where his injuries were; if no injury is found to be present then the report will be completed to that effect and the expression "no pertinent" is an indication that there were no relevant or positive findings.

There were no neurological deficits i.e. there was no loss of consciousness or dizziness and a test for imbalance would have been carried out. The entry "good" confirms that there were no neurological deficits. In relation to paragraph 15, paracetamol is prescribed as a pain killer and indomethacin is prescribed as an anti inflammatory. If the diagnosis was essentially normal, as it was here, the Dr. could only have been responding to a subjective report from the Accused in prescribing either of those drugs. Dr. Kurabui said that doctors are not able to tell whether a patient has a headache; they have to rely upon what they are told, there is no way of checking that what they are being told is true or not.

[44] It appears that nothing that was reported by the Accused warranted any further investigation. You have heard the Accused say that the Doctor who examined him has lied in the report; you will consider that. If, however, you reject that suggestion you may want to consider how it is that if the Accused was assaulted by the police with weapons and fists over a period of hours there was no visible sign of injury, either to the Doctor, or, for that matter to the JP.

D.C.Clint

[45] He was the witnessing officer in attendance at the interview and he signed a record of interview. It was suggested to him that after the interview had been suspended the Accused was assaulted in his presence in the interview room with sticks and an iron rod. He denied that any assault had taken place in his presence, nor was he aware of an assault. It was suggested to him that after the interview resumed the Accused was forced to answer questions that suited the investigation. In relation, in particular, to the question asked of the Accused as to what his mother had eaten for dinner, the answer to which the Accused denied ever having given, the witness said that none of the police officers would have been at all aware of what his mother had eaten for dinner and would have been dependent on the Accused's response to that question. It was suggested to the witness that the Accused had never confessed to the murder of his mother and that the answers which are recorded were made up by the police.

[46] I conclude my summary of the prosecution evidence by inviting your consideration to the various documents that have been tendered by consent, in particular, the photographs and the sketch showing where various parts of the torch were found.

ACCUSED told you

[47] That at the time of the murder he lived at 5 Rose Places with his mother. On 3 May, 2008 they attended a family gathering together at his cousin's house; the purpose of the gathering was because his Uncle had come over from Canada. He denied that anything untoward had happened at the party and that they just had fun, enjoying a drink and some food; there was no animosity between him and his uncle. He left in a taxi to go to the nightclub having been given some money to pay for the taxi. He arrived at about 9.20 PM and was with his friends Jonathan Lal, Joseph Sammy, Are Amae and also his cousin Sanjiv Kirpal. His uncle came into the club with Avinesh Kirpal and his mother. Inside the club nothing of any significance happened except for a fight between Sanjiv and an Indian boy. He said that after 1.00 pm he left the nightclub and met a friend. Later on he went to the Union Club and saw a man who was asleep in the hedge and he took some money from him with which he bought a meal. After that, he met Joseph Sammy and he bought two portions of Roti and curry for them. He then got a taxi from the night club back to Rose Place. He did not know the driver of the taxi; he said that he checked his phone on arriving home and saw that it was 3.03 am. After that, he spent a considerable period of time either calling his mother from his phone, knocking on the door, calling out for his mother or climbing onto the ledge that runs around the side of the house. It was only after this that he then went to the rubbish bin that you see in the photographs and retrieved his keys which he always kept there. He then used one key to unlock the grill and he put the second key into the inner door but the key stuck and he had to use his shoulder to force the door open.

[48] Once inside the house he went to his mother's bedroom and was shocked to see her lying in a pool of blood on the floor. He did not go to his mother but went into the kitchen and saw a half eaten meal in a dish on the table. He then went down the steps at the side of the house calling out for his neighbour but his neighbour did not appear.

[49] He then took a taxi to where his uncle was staying. When they reached the driveway he used his phone to call his uncle. He said that he was still in a state of shock and was asking his uncle who had been seen with his mum. He called a close friend of his mother's and then he went in the same taxi to the police station; he saw a policeman and told him that his mother was on the floor of her bedroom in a pool of blood. He then took the same taxi to his home and he showed his two neighbours where his mother was on the floor of the bedroom. After about half an hour to an hour the police arrived and started to investigate; he stood outside the house, his uncle came but they stood apart from each other. Corporal Nute came to him and demanded his mobile phone. Later on, in company of one of the police, he went into the house and changed out of the clothes that he had been wearing and gave them to the police.

[50] He then went to the home of a family friend called Gladys where he stayed until after the funeral of his mother and until he went to the police station on 10th May. On that day he was accompanied by Gladys to the police station and the interview began in the early afternoon and continued until the evening.

[51] He told you that he was assaulted by Cpl Nute and DC Amani and two others in the interview room on the evening of 10th May. DC Amani had assaulted him with an iron rod on his back and had then picked up a stick and had also punched him. He said that D. C. Amani was under the influence of alcohol and wearing civilian clothes. During the assault Cpl Nute and DC Clint were present. Corporal Nute threw punches at him; DC Clint did not do anything, he just sat on the table and kept referring to the taxi driver who had taken his mother and the Accused home. DC Clint said that this was the taxi driver who said that the Accused had said to him "I've killed my mum, if you tell anybody I'll kill you".

[52] He said that after the assault he was then escorted to the cell where his trousers were removed from him and he stayed in the cell until the following morning. The interview resumed later that day. He says that Corporal Nute had quoted a passage from the Bible "the truth will set you free". As to the way in which the interview proceeded that day the Accused told you that the answers that appear in the record of interview were already written down and he was simply told to sign the record; he told the police that he could not sign it as it was not true, he was told to sign and he signed because he was scared

[53] On the following day he was charged and after charge he asked Corporal Nute to take him for a medical examination. Corporal Nute said that the JP was on the way to see him. The accused says that he spoke to the JP, it was a normal interview and he told the JP that he had been forced to admit the crime and that the police had assaulted him.

[54] After this interview he was taken to the health centre; he had to wait in the corridor for 10 to 12 minutes and then he was examined by the Doctor for 10 to 15 minutes, after which he was returned to the police station and later that day taken to Suva courthouse.

[55] When cross examined he was asked about his mother's pension; he agreed that as her only child he was her next of kin. He said that his mother had always been ringing abroad to ask for support to go to Canada; it was Uncle Francis who she was speaking to. He agreed that his mother wanted to go to Canada. He denied that there was any argument with Uncle Francis at the party or later that evening about a lack of support.

[56] As to the various parts of the torch that had been recovered by the police from the house; he agreed that the torch was his and that it takes three batteries. You know from your sketch plans that three batteries were found in various different parts of the house. He said that the torch was normally kept in the sitting room; he denied that he had told the police at the house that the torch was missing. Photograph 24 is a photograph of his bedroom, showing bits of the torch under the bed. He said that the last time he had seen torch was on the afternoon of the 3rd May and at that time it was in one piece.

[57] He does not know whether it was Abdul Shafil who took him to his house; he does not know him but says that he is telling lies. He says, in other words, that a person who he does not know has come to court and told lies about him.

[58] He was asked about the security measures in place at the home. It is apparent from the photographs that all the windows are fitted with grills and there is an outer front door and the grill is of a more narrow construction. You will have to consider the proposition that anybody forced an entry to the house and murdered Agnes, as opposed to somebody either gaining entry with a key in the normal way or being let in. The accused said that he and his mother were the only people who had a set of keys.

[59] He was asked why he did not go to check his mother when he found her lying in a pool of blood on the floor; he said that he did not want to check her although he loved her but he was freaked out and shocked. All that was in his mind was to find out from his uncle who it was that had taken his mother home. The prosecution ask you to consider whether if he had come home to find his mother on the floor in a pool of blood he would have acted in the way he did, or, whether he would have used his phone to summon immediate assistance.

[60] The accused said that in the police station DC Amani had picked up a stick and hit him with it; he had then picked up an iron bar and hit him on the back. He had then punched the Accused in the face. The Accused says that he had cuts on the inside of his lips; these were never seen by anybody, nor were they pointed out by the Accused to anybody. He maintains that the Dr. who carried out the medical examination has fabricated the report for the benefit of the police.

JOSEPH SAMMY

[61] He works as a part time bouncer at the nightclub; sometime after 2.00 am he had met the Accused at the corner of Butt Street and the Accused had offered him some curry and Roti. Each of them took a taxi. He recalled that the deceased had left the club at about 11.20 pm and that she had left by herself. This is the same account as was given by prosecution witnesses; however, it is in complete contrast to the account given by the witness, Janendra Singh, about which I shall remind you in a moment.

JONATHAN LAL

[62] He is also a bouncer at the nightclub and finished work at about 2.00 AM. He saw the Accused in the club standing near the DJ booth; they had a few words together. He saw the deceased in the club sitting with her brother; there was no conversation between the Accused and his mother or between the Accused and his uncle. He did not see the Accused leave nor did he see the family members leave.

JANENDRA SINGH

[63] He told you that he was parked outside the nightclub for several hours; he saw the deceased get out of a taxi with two men and go into the club. He says that this was after midnight; nobody else from whom you have heard puts the arrival of the deceased at the club as late as this. He says that he saw the Accused briefly when he came out of the club and then went back inside. He then says that he saw the deceased come out of the club with the same two older men and leave in a taxi; he puts this at about 1.00 AM to 1.30 AM. Again, no other witness from whom you have heard says that the deceased left as late as this. He said he drove by the deceased's house at about 2 to 2 30 am and saw a grey station wagon with the back open.

SABNAM BEGUM

[64] The last witness from whom you heard in this trial was Sabnam Begum. At the relevant time, she was living with a drunken and violent partner in the same general area where the Accused lived with his mother. She says that one night in 2008, although she cannot remember the date or the month, she was chased out of the house by her drunken partner into the street. Apparently, this happened quite frequently. She thought it was about 11.30 to midnight; she knows 5 Rose Place because she had bought cigarettes and grog there. She says that she could see two shadows through the curtains of the sitting room, one smaller than the other; she heard a male voice shouting asking for money and the male was shaking the other smaller person by the shoulders. The shadows then disappeared from the sitting room. She described the larger shadow as having a frame quite different from the Accused. You may wish to consider this evidence carefully for a number of reasons. In the first place, the witness is describing shadows, only partly visible through curtains, which you may think might very well distort the actual appearance of the individuals concerned. Secondly although the next morning she knew that there had been a murder at 5 Rose Place she did nothing whatsoever about it; she said that she was frightened to go to the police. Also, you may want to consider how it is that 2 ½ years later she comes to be giving evidence in this trial. In considering that you may wish to take into account that her drunken and violent partner with whom she still lives is a very good friend of the accused and, as she told you, they drink together.

Graham Cottle
JUDGE

At Suva
11th November, 2010.