State v Bai [2010] FJHC 543; HAC079.2010 (29 November 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO.: HAC 079 OF 2010

BETWEEN:

STATE
Prosecution

AND:

PETERO BAI
Accused Person

Date of Hearing: 16/11/2010 – 26/11/2010
Date of Summing Up: 29th November, 2010

Counsel: Mr Toganivalu - For State
Ms. B. Malimali - For Accused Person

SUMMING UP

[1] Madam, 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; 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 opinions.

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 allegations that have been brought against him. 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.

[5] The first and most important question that you are going to have to decide is whether you are sure that the Accused was the person who carried out this violent and sexual attack. If you are not sure about that you will find him not guilty of both charges.

If on the other hand you are sure that he was the person responsible, you must look at each charge in turn.

ATTEMPTED MURDER

[6] To prove the offence of attempted murder the State must prove that the Accused did something that was more than merely preparatory to the commission of the full offence of murder. That is a question of fact for you; you will have to decide what it was that the Accused did and whether it was more than merely preparatory to the commission of the offence of murder. The evidence that relates to what the Accused did comes from the Accused himself, if you accept the record of interview as a true account; secondly it comes from the medical evidence as to the injuries suffered by Ulamila.

If you are sure that what the Accused did was more than merely preparatory to the commission of the full offence of murder then the State must also prove that at the time he did the act he intended to kill the victim. If you are not sure that the Accused intended to kill Ulamila but you are sure that she suffered really serious injury and that the Accused intended to cause her really serious injury you would find the accused not guilty of attempted murder but guilty of causing grievous bodily harm with intent. When the Court Clerk asks you to deliver your opinions he will first ask each of you whether you find the Accused guilty or not guilty of attempted murder; if you answer guilty you will not be asked any further question in relation to that charge. If you respond not guilty you will then be asked whether you find the Accused guilty or not guilty of causing grievous bodily harm with intent to cause grievous bodily harm.

RAPE

[7] A man is guilty of rape if he has carnal knowledge of another person without the consent of that person; in this context carnal knowledge would of course include penetration of the vagina by the penis to any extent. A man is also guilty of rape if he penetrates the vulva or vagina of another person to any extent with his finger without the consent of that person. I will in due course remind you of the medical evidence in the case; in summary the relevant witness said that in his opinion penetration or an attempt to penetrate had occurred. Furthermore, the issue of consent does not arise in this case and therefore it is not an element of the offence to which you will need to have any regard. Accordingly the real issue on this charge is whether you are sure that it was the Accused who was responsible for the sexual attack.

IDENTIFICATION

[8] The case against the Accused depends to some extent on the correctness of 3 identifications of him which the Accused alleges to be mistaken; the first 2 occurred on the morning of the 25th and the 3rd in the early afternoon of that day.
You have heard from 2 witnesses who told you that on the morning of the attack they saw the Accused in the vicinity of the girls 'toilet block. This is an identification that is disputed by the Accused; it was suggested to both witnesses that they were mistaken. As to the other identification, it was also suggested to the witness that he was mistaken in his identification of the Accused. You must approach the evidence of identification with care and I must warn you of the special need for caution before convicting the Accused in reliance on the evidence of identification. That is because it is possible for an honest witness to make a mistaken identification. There have been wrongful convictions in the past as a result of such mistakes. An apparently convincing witness can be mistaken. So can a number of apparently convincing witnesses.

[9] Examine carefully the circumstances in which the identification by each witness was made. How long did he have the person he says was the Accused under observation? At what distance? In what light? Did anything interfere with that observation? Had the witness ever seen the person he observed before? If so, how often? If only occasionally, had he any special reason for remembering him? In the case of both boys they said that they had seen the Accused before; both recalled an occasion when they said they had seen the Accused involved in a fight at Samabula and both recalled other occasions about which I shall remind you; the other witness gave an account of seeing the Accused in the area where the witness walks with his wife. How long was it between the original observation and the identification to the police? It was the following day in the case of the 2 boys but the other witness did not come forward officially for some months. Is there any marked difference between the description given by the witness to the police when he was first seen by them and the appearance of the Accused? It is not suggested that there is.

[10] You should have regard to the fact that the person that both boys say was the Accused was in view only for a matter of seconds as they went along the covered walkway to the gate leading across to their school. You should also pay regard to the suggestion that they may have discussed the sighting with each other. As to the other witness, he said that he observed the face of the person he says was the Accused during the space of 3 to 4 seconds as they passed each other on the footpath. The State says that this is not really a case of identification, it is a case of recognition by 3 witnesses of somebody they had seen on previous occasions. Even so, you must exercise the same care before concluding that the evidence of recognition is reliable and accurate.

[11] The submission is made on behalf of the Accused that the police should have held an identification parade and that the Accused has or may have been prejudiced by their failure to do so. The response to that by the State is twofold. Firstly, both the witnesses knew the Accused so it is a case of recognition and not identification and if the police had held a parade it is inevitable that the boys would have picked out the Accused because they knew him; accordingly, to have held an identification parade would not have served any useful purpose. Secondly, when the Accused was interviewed he admitted responsibility and in those circumstances the police had no reason to suppose that identification would be an issue in the case.

CONFESSION

[12] The State relies upon the fact that the Accused confessed to the police that he had violently and sexually attacked Ulamila. It is suggested on behalf of the Accused that the confession was not true and that it was invented by the police. Your task is to consider all the evidence relating to the circumstances in which the confession was made and to ask yourselves whether you can be sure that the confession was true; that is the only question relevant to your deliberations. If you are not sure it was then you will disregard it in coming to your conclusions as to whether you are sure that the Accused was responsible for the attack upon Ulamila. On the other hand, if you are sure that the confession was true then you may take it into account as evidence of the Accused's guilt. You may think that there could be no better evidence of guilt than a reliable and truthful confession.

NO EVIDENCE FROM ACCUSED

[13] The Accused has not given evidence in this trial; how should you approach that fact? The Accused is not required to give evidence; I remind you that he does not have to prove anything and the burden of proving his guilt is upon the State. You must not assume that because he has not given evidence he must be guilty of the charges brought against him; that would be quite wrong. He is entitled to remain silent and to say, in effect to the state, you prove me guilty.

ALIBI

[14] The Accused says that he did not commit the offences charged and he was elsewhere when they were committed; the legal terminology is that he advances an alibi for the time that the offences were committed. It is not for the Accused to prove that he was elsewhere at the time the offences were committed; it is for the State to prove that he was not elsewhere and that he committed the offences. 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 attacked and sexually assaulted Ulamila.

EXPERT EVIDENCE

[15] You have heard evidence from 2 people who are experts in their particular field; one was a gynaecologist and the other a consultant paediatrician. Expert evidence is often given in a criminal trial to help the assessors to understand important areas of the evidence that are outside their own experience and knowledge. However, you are the judges of the facts. You may find it useful in reaching your decisions on the facts to take into account the evidence from the experts if you accept it; whether you do or not is entirely your decision.

Before turning to the evidence, if when you are discussing the case you want more help on any matter of law please do not hesitate to ask; please put any request in writing.

EVIDENCE

[16] I hope you and others will forgive me if I mispronounce any names or locations in my summary of the evidence; I do not intend to cause any offence to anybody.

ULIMILA KEAN

[17] On any view of the evidence in the case this 8 year old schoolgirl was violently attacked in the girls' toilet at Annesley School; ultimately it is a matter for you but you may think that the medical evidence also points to her being the victim of a serious sexual assault.

[18] All she is able to recall is being punched in the toilets at Annesley School; she has not returned to school. You know that she was spoken to by a lady police officer in July after she had recovered sufficiently. She was asked whether she was able to give any sort of description of her attacker; the best that she was able to do was to say that there was some likeness between her attacker and one of her uncles. By this time the Accused had long since confessed to the crimes.

JONE SOKO

[19] He is a pupil at Dudley school and on 25 March 2010 he went to school as usual on the bus; he was with his friend Atha. The bus arrived at approximately 8.00 AM and together with Atha they walked Atha's sister Miri to Annesley School. They dropped her off in front of the school and were making their way towards the back gate of the school that leads to Dudley school. He referred to photograph 11 and said that they were walking from left to right in that photograph towards the gate. He says that Atha saw the Accused first, told him that Petro was there and he then looked and also saw the Accused in the toilet passage. He said that he had seen him before at Naulavatu plenty of times and knew his name. He said that the Accused was just standing there and looking around. He said that he had seen him on a number of occasions at Naulavatu because the Accused goes there to see his wife; he also knew the name of the Accused's wife. He says that the Accused was about three metres away from him when he saw him and the Accused did not see him. It was after he returned from school that day that he learnt about what had happened in the girls' toilets; on the next day he went to school; the police were there and he told them that he had seen the Accused the previous day standing in the passage. He said that the accused had been wearing a white T shirt, black shorts and carrying a black bag. He described him as black, medium height, not that small, with straightish hair. He was asked whether he could recognise the person he had seen that morning and he pointed out the Accused in the dock.

He was specifically asked in cross examination as to whether the person that he saw was wearing any jewellery; he said that he was and he described it as a silver chain. He says the last time that he had seen the Accused was when he was involved in a fight at Samabula in the billiard hall. He agreed that there was a good deal of talk when he got home from school about what had happened and who had been responsible; he was quite certain that the person he had seen that morning in the passageway near the girls' toilets was the Accused.

ACA SIMOLO

[20] He confirmed that he and Jone had taken Miri to the front of her classroom and they had then walked towards the back gate to go across to their school. He says that he saw somebody in the middle of the girls' toilet and he recognised him as the Accused. He had seen the Accused first and told Jone. He said that the last time he had seen the accused was when he was drunk at the billiard hall in Samabula. His brother had been at the same school as the Accused and he had also seen him at church and at Nauvalatu where he used to sell things. He described him that day as wearing a white T shirt with black shorts and he said that the Accused was standing approximately three metres away. After school he had gone home on the bus and had learnt that somebody had been raped at Annesley school that day. On the following day he had gone to school and was again taking the short cut to his school when he and Jone saw the police officers. The police took them both to the police station. He was asked to say whether the person that he saw that morning was in court and he pointed to the Accused. Again, he was specifically asked whether the Accused was wearing any jewellery and he said that he was wearing a silver chain. He denied that he was mistaken in his identification of the Accused and he was sure that he had made a correct identification.

VARANISESE KOROVAKATURAGA

[21] She is a school teacher at Annesley and on the morning of 25th March she arrived at school at approximately 7.45 am; she began her class at 9.00 am and finished for lunch at midday. She first learnt about what had happened when two girls came back from the toilet reporting that a girl was sleeping in the toilet block. She immediately went to the toilet block; the door to the cubicle was locked but she looked underneath the door and could see the feet of a little girl. The caretaker was contacted and he came and opened the door by going into the next cubicle and climbing over. The little girls' lower body was not covered and she was not wearing any undergarments. The police were called; they arrived and took the little girl immediately to hospital.

CONSTABLE KITIONE

[22] He arrived at the school at approximately 1230, went inside the toilet block and saw the victim. He described her as lying helplessly, her eyes were swollen and there was blood on the ground next to her head. He picked her up and put her in his vehicle and took her immediately to hospital.

SEMESI TURAGANIVALU

[23] He said that on a day in March this year he was coming back from work walking along a footpath about a metre wide near his home when he passed someone wearing a T shirt that he noticed was stained with blood. He recognised this person as the Accused; he said that he had seen him before in the area and that the Accused normally walks close by with his wife. He identified the Accused in court. He said that the next day he knew that the Accused had been arrested by the police and he made the connection with what he had seen the previous day. He said that he had been looking at the Accused for between 3 and 4 seconds as they passed each other. He agreed that he made his statement to the police about two weeks ago and was not able to explain why it had taken him that long. He denied that he was mistaken in his recognition of the Accused as the person he saw that day.

KELERA BORA

[24] The Accused is the father of her child and they have been in a relationship for some time; she said that he comes to her house at Naulavatu and stays there.

[25] She recalled a day in March 2010 when the Accused and her father went off drinking; her father returned but the Accused did not return and she did not see him until the afternoon of the following day which was a Thursday. She found him lying on her doorstep and he was drunk. She noticed that his chain was missing; she described it as a very thin gold-coloured chain.

[26] The next day, Friday, the Accused was arrested by police and taken to the police station. She said that on the Saturday she had gone to the police station and had gone with the Accused under escort to the Western Union post office to collect some money which the Accused handed over to her. On the Sunday, she came back to the police station bringing some food with her for the Accused.

[27] She said that at the police station she was shown a chain and she confirmed in her evidece that the chain that had been shown to her at the police station was the one shown to her in court. She said, however, in evidence that this was not the chain that the Accused had been wearing and that she had only said to the police that it was because she was scared. She said that she was told that the Accused had confirmed ownership of the chain so she simply agreed. She said that the police told her that it belonged to the Accused so she simply agreed. She said that the chain belonging to the Accused was a short plaited chain which was gold plated. She said that after the birth of her child she had found this chain in a bag of clothes inside a suitcase; she was shown the chain in cross examination and recognised it as the chain that she was describing. The State says that the chain which she says she later recovered from a bag in a suitcase cannot have been the same chain that the Accused had been wearing when he had gone out with her father the previous day and which she noticed was missing from the Accused's neck when she saw him lying drunk on the doorstep the next day. It must have been a different chain that he had been wearing.

[28] She said that on the Saturday when she had seen the Accused she saw some markings on his body, on his ribs and he had a boil on his thigh. She said that she had seen the Accused on Saturday and also on Sunday and that he looked dirty and not the same as he looked when he was at home. She said that on the Sunday she could see that his forehead was swollen but she did not report this.

D SGT LAWAKELI

[29] He is a crime scene investigator and he went to the school on 25 March to carry out an investigation; he instructed an assistant to take a number of photographs that you have in your bundles and he went through the photographs explaining each one. Of particular significance was the finding of a chain on the floor of what is referred to as bathroom 2; this chain is Exhibit 1. He also found a button, Exhibit 2, on the floor of bathroom number one, the next door cubicle. The chain was not sent away for DNA testing; in view of the fact that the Accused admitted that it was his chain would there have been any purpose in sending it away for testing?

[30] A number of police officers were dispatched to arrest the Accused on suspicion of being involved in the attack on Ulamila; this suspicion was based upon the statements made by the 2 boys to the effect that they had seen the Accused in the toilet block the previous morning.

PC JIUTA BIAU

[31] He went to Nauvalatu with other officers on 26 March and assisted in the arrest of the accused. In the course of the return journey to the police station he denied that anything had happened to the Accused in the vehicle. He said that the Accused was told by Detective Sergeant Isoa why he was being arrested; he denied that the Accused was told that he was a robbery suspect.

DC APENISA NASILASILA

[32] He also assisted in the the arrest of the Accused and, similarly, denied that anything had happened in the vehicle on the return journey. It was also suggested to him that he had been responsible on the following day for entering the cell and assaulting the Accused; he denied that.

D SGT ISOA

[33] He was the senior officer involved in the arrest of the Accused and he also assisted the investigating officer, Sgt Eroni. At the time of the arrest he gave his mobile phone number to the Accused's partner. He denied that any assault had taken place in the police vehicle on the way back to the police station. At the police station he asked Corporal Paulo to take the Accused to the desk. He agrees that he gave instructions to the officer on the desk that nobody was to be allowed to see the Accused; this instruction appears in the station diary. He said that on the Friday evening the Accused's partner brought the Accused a change of clothes.

[34] On the Saturday the Accused was escorted to a Post Office to obtain money that had been sent to him by his mother; the Accused's partner accompanied the Accused and the money was handed over to her. Later that day the Accused's partner returned to the police station to hand over some toiletries that she had purchased for the Accused.

[35] On the Sunday Sgt Isoa reported to the police station; at that time the Accused was being interviewed; later on the Accused's partner came to the police station with some lunch for the Accused. She was allowed to see him after he had been charged and they were together for about an hour. After that, Sergeant Isoa dropped her back to her village. Sergeant Isoa denies that the Accused was assaulted at any time while he was in police custody and the Accused did not make any complaint to him that he had been assaulted, nor did Kelera Bora.

[36] In cross examination Sergeant Isoa said that he had told the Accused at the time of the arrest why he was being arrested; he denied that he told the Accused it was in connection with a robbery.

[37] He said that it was unnecessary to conduct an identification parade in relation to the two boys because they were from the same settlement as the Accused, they had positively identified him and they both knew him.

[38] He said that he could have taken the Accused to hospital on Sunday but the Accused did not ask to be taken; he said that it was not a necessary procedure in every major inquiry that the Accused should be taken to hospital; it was not normal procedure but it would happen if the Accused requested to been taken to hospital. It was suggested to him that the Accused did not give the answers attributed to him in the interview and they were made up by the police and that if the Accused did not give the answer that the police wanted he was assaulted; it was suggested that force and threats were used. Sgt Isoa denied all these suggestions.

SGT ERONI

[39] He has been in the Fiji police force for 20 years; he was asked to interview the Accused. He said that during the course of the interviews the Accused was given sufficient time for breaks and for meals; he denied that at any stage either he or anybody else in his presence either threatened or assaulted the Accused. He read out the record of interview which you all have.

[40] He said that on the Saturday the interview was suspended partly for an identification parade to take place; in fact the witness who was supposed to come to the parade did not do so and the parade did not therefore take place. He said that the 2 boys were not asked to take part in an identification parade because they both knew the Accused. Also on the Saturday afternoon a reconstruction visit took place at the school; he agreed that there was no electric light in the toilet area but he said that it was perfectly possible to see well enough to record the questions and answers that appear in the record of interview.

[41] He described the interview room as an open room within the crime room; you may think that this was not an ideal arrangement; however, it appears as if there was no alternative available at this police station.

[42] He said that he did not ask the Accused whether he wished to go to hospital at the end of the interview and the Accused had not made any such request to him. He said that it was only in murder cases where it was normal procedure for the Accused to be taken to hospital for examination. He said that if the Accused had been injured then those who were responsible for running the cell block would not have received him into the cells until he had been medically examined. The procedure is that the Accused is asked if he has any injury; if he complains of any then he will not be accepted into the cell block. During cross- examination it was suggested to the Inspector that the Accused had been repeatedly assaulted, not given the opportunity to explain his side of the story and that the answers that appear in the record of interview were provided either by the Inspector or by other police officers. He denied all these suggestions.

[43] It is clear from his evidence and from other evidence that there is a conflict between timings that are shown in the record of interview and some of the entries in the station diary. It does not seem as if these conflicts can be easily reconciled. It will be for you to decide whether these discrepancies assist you at all in deciding the issue which you have to decide in this case and whether they are simply down to human error or have some other innocent explanation.

One further matter I need to deal with in relation to Inspector Eroni's evidence is this. He was asked if he knew the victim's father. He said that he did not; there the matter rests. In closing submissions Ms Malimali referred to the father being in Government Buildings last week appealing against a sentence. It is completely irrelevant and has nothing whatsoever to do with this case.

CONSTABLE THOMAS

[44] He was the witnessing officer. He said that the interview was conducted in the crime office at the police station but he said that the interview room was effectively partitioned off. It was, in particular, suggested to him that he had hit the Accused across the knees with a pinch bar. He denied that and he also denied a whole series of suggestions made to him about the way in which the Accused had been treated either by him or by others in his presence.

CORPORAL TORA ISIRELI

[45] He said that his the only involvement in the case was as charging officer; he agreed that he did not ask the Accused whether he wanted any medical attention but he described the accused as looking physically fit. It was also suggested to him that he had at various times and in various places in the police station been responsible for assaulting or threatening the Accused. The charging procedure was witnessed by a sergeant Tomasi Lovodua; again it was the only role that he played in this case. It was also suggested to him that the Accused had been assaulted and threatened in relation to the making of the statement that was made after charge; he denied the suggestion. He did agree that it was usual procedure after a suspect had been in custody for over 48hours for the suspect to be taken for a medical examination; that did not happen because the Accused did not request it.

[46] You will no doubt want to test the allegations made against all these police officers about the Accused being repeatedly assaulted against the evidence of Dr. Singh who visited the Accused in prison the day after he was first put before the court.

DR SINGH

[47] He has 28 years experience as a medical practitioner and he is the visiting Dr. to the prison where the Accused has been held on remand. He works in conjunction with the prison staff and they bring the prisoners to him for a medical check –up. On 31 March 2010 he visited Suva prison and the Accused was the first prisoner seen by him that day. He has a file for each prisoner which is kept in the prison department and he has a medical card for each prisoner. He carried out a full medical examination and did not note the presence of any injuries at all. In particular there was no injury to the forehead. He described the Accused as fully fit and there was no clinical evidence of any injury or assault. In consequence no treatment was prescribed.

[48] He saw the Accused again on 29 September 2010 when the Accused reported a shoulder injury which he said he had sustained three months ago in the police station. The accused complained of right shoulder pain and said that he could not bear weight on his right hand. Dr. Singh said that no complaint of this nature had been made in March. He described his condition on 29 September as quite stable and he had a full range of movement but nevertheless he prescribed some pain killers as a result of the Accused's report of pain. As a precaution Dr. Singh asked for an X-ray; the result of the X ray was that no fracture or dislocation was found.

[49] Dr. Singh agreed that on 7 April 2010 he did authorise the accused to see the visiting physiotherapist; Dr. Singh quoted from a page in the Accused's medical history to the effect that on this occasion the accused was complaining of backache and explained that it stemmed from an injury that he had suffered during his rugby playing days a few years ago and he had also been assaulted in 2008 when he was drunk. The Accused mentioned that he would experience some pain in cold weather. Dr. Singh said that the Accused did not tell him that he had been assaulted at the police station; if he had told him that then Dr.Singh would have recorded it.

[50] You will no doubt want to compare the evidence of Dr Singh with the suggestions made to the police officers that over the course of more than 2 days the Accused was repeatedly assaulted; it will be for you to decide whether the evidence of Dr Singh, if you accept it, helps you in deciding that issue.

DR ROMANU TURAGANIWAI

[51] He is a specialist in obstetrics and gynaecology and on 26 March at approximately 2.00 pm he examined the victim. In order for a proper examination to take place it was necessary for the examination to be done under anaesthetic in the operating theatre. He said that an injury to the hymen between 5o'clock and 7 o'clock was visible to the naked eye and there was a tear in the hymen at approximately 6 o'clock. He said that the injury had occurred in the period of 24 to 48 hours prior to the examination and that there had been penetration by some foreign object or some attempt made to penetrate. He said that there would have been bloodstaining around the injury for a period of time and he repeated that there was some penetration, full or partial, and that the injury was consistent with blunt trauma. He said that for the injury to be explained by a fall it would need to have been an extraordinary fall. He agreed that he could not say definitively that the victim had been raped but his findings were consistent with the allegation of a sexual assault that involved attempted or actual penetration.

[52] You will remember I expect the last witness called by the State, DR DUBEY, a consultant paediatrician. You may have had some sympathy for Ms Malimali in her attempts to question the witness; his attitude to questioning made him a very difficult witness to question or to control and you would not criticise counsel for her decision to cut it short.

[53] The undisputed fact you may think is that on reception at hospital Ulamila was a very sick child indeed and in need of swift medical intervention. She was admitted into intensive care and remained in need of intensive treatment for some time thereafter. I refer you to the medical report Exhibit 8 for the full account of her injuries and the treatment required. It could not you may think be disputed that Ulamila had sustained grievous bodily harm.

DEFENCE CASE

[54] You know that at the close of the case for the State I told the Accused what his options were; he elected to remain silent but 3 witnesses were called to give evidence on his behalf, 2 of whom said that the Accused had been with them during the time when the offences were committed.
The first witness was:

OLE NADAVU

[55] He said that on the morning of 25th March he had finished work at 7.00 am and went to the bus depot where he met the Accused. The Accused told him that he was on his way to Nadali and the witness decided to accompany him. They travelled by bus, did some shopping and then went to the home of the Accused's grandmother. The witness was unable to recall her name. He said that they had stayed at the home of the grandmother until after school had finished for the day.

He said that in travelling to Nadali he had in fact gone past his own home. He said that it was on Monday of last week that he had first been asked to recall his movements on 25th March. He said that the Accused was not drunk, although he was able to smell alcohol, nor did the Accused say anything about drinking with his father in law. You will recall the evidence of Kelera Bora, undisputed by the Accused, that she had arrived home in the afternoon of the same day to find the Accused drunk on the door step .According to the witness it would take 45 minutes on the bus to travel from the grandmother's village to Nauvalatu where Kelera Bora found the Accused.

[56] The second witness was the sister of the Accused's grandmother, LITIANA VALE. She said that the Accused and Ole Nadavu arrived at her home at about 9am; they spent the time talking and having lunch and the 2 of them left at between 3 and 3.30pm. She said that the Accused had not been drinking and there was no smell of alcohol on him, there was nothing unusual about him that she noticed. She said that she had been asked the day before she came to this court to be here to give evidence. Again you may wish to compare that account with the undisputed evidence of Kolera both as to the condition of the Accused when she saw him and the time that she saw him. The State says that the Accused could not have been in 2 different places at once.

[57] The final witness was PENNE TECKE.
He said that he had been brought into custody at Nabua police station on the morning of 27th March at about 5am and he was there in a cell until approximately 10am. He said that he had witnessed the Accused being assaulted and one of the police officers was holding a pinch bar. He said that the Accused had suffered severe injuries to his eyes, his ankles and his head and he was bleeding heavily. The witness said that he remained silent about what he had seen because he was frightened. The state invites you to compare that account with the evidence of Dr Singh as to the physical condition of the Accused when he saw him.

Graham Cottle
JUDGE

At Suva
29th day of November, 2010.