State v Padiyachi [2011] FJHC 434; HAC016.2010 (2 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 016 OF 2010

BETWEEN:

STATE
PROSECUTION

AND:

1. RAVINESH PADIYACHI
2. MOHAMMED NADIM
ACCUSED PERSONS

Counsel: State - Ms. Puamau. S & Ms. Prasad. J
Accused Persons - Mr. Valenitabua. S

Date of Hearing: 19th, 20th, 21st, 22nd, 25th, 26th, 27th, 28th July, 2011.
Date of Summing Up: 2nd August, 2011.

SUMMING UP

Madam Assessor and Gentlemen Assessors.

1. It is now my duty to sum up this case to you. I will direct you on

matters of Law which you must accept and act upon. On matters of fact however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about the facts of the case, or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of fact. All matters of fact are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

2. You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused persons are guilty or not guilty.
   
3. The Counsels for the Prosecution and Defence made submissions to you about the facts of this case. That is their duty as State Counsel and Defence Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.
   
4. You will not be asked to give reasons for your opinions but merely your opinion themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that they will carry great weight with me when I deliver my judgment.
   
5. As a matter of law, I must direct you that the onus or burden of proof rests on the prosecution and it never shifts. There is no obligation on the two accused persons to prove their innocence. Under our criminal justice system an accused person is presumed to be innocent until he is proved guilty.
   
6. The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means you must be satisfied so that you are sure of each of the accused person's guilt before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt then you must express an opinion that he is not guilty.
   
7. 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 you might have heard about this case, outside of this courtroom. You may have seen news items in news papers about this case before and during the trial. You must disregard them and your opinions should only be based on the evidence given in this court room.
   
8. Your duty is to find the facts based on the evidence, apply the Law to those facts.
   
9. The accused persons in this trial are charged with two counts of murder. In count No.1, it is alleged that on 14th December 2009 the two accused persons murdered Ramkrishnan Amirthalingam also known as Ram. In count No. 2, it is alleged that on the 14th December 2009 the two accused persons murdered Rajamanickam Venkatachalam also known as Guna.
   
10. The offence of murder has three elements which the prosecution must satisfy you beyond reasonable doubt.
    

They are:

1. That the accused engaged in conduct; and
2. That conduct caused the death of another person; and
3. That the accused intended to cause the death of the other person by that conduct, or that the accused was reckless as to causing the death of the other person by the said conduct.
   
11. I will now explain these three elements to you.In this case the prosecution says that the death of two deceased person's were caused by cutting their necks by a sharp weapon. Post mortem reports and the evidence of the pathologist speak to the cause of death of the deceased persons. However there is no direct evidence of any witness who saw the accused persons causing the injuries on deceased persons. Prosecution relies on circumstantial evidence to prove that the conduct of the accused persons caused the injuries on the deceased persons. What circumstantial evidence is, I will explain to you in due course. Therefore it is for you to decide whether the accused persons conduct caused the injuries on the deceased persons.
    
12. The second element of the offence of murder that must be proved is that the said conduct of the accused caused the death of the victims. The Law requires a link between the conduct of the accused and the death. Usually the conduct of the accused causes some specific injury to the victim and that particular injury causes the victims death. Usually the conduct of the accused causes an injury which is the sole cause of death. But it is sufficient if it is an operating or substantial cause of death. In this case the pathologist giving evidence said that the cause of death of the body 1 was due to Excessive loss of blood from cut injury to the neck and the cause of death of body 2 was Excessive loss of blood from multiple cut injuries to neck
    
13. The 3rd element that must be proved for the crime of murder is, that the accused persons intended to cause the death or was reckless as to causing death of the victim by their conduct.
    
14. A person's intentions are locked up in his mind. The intent cannot be physically observed. However this intent can be proved by what he said or told others including his statement to the police, or it can be inferred from his conduct prior to, during and subsequent to the commission of the offence.
    
15. The other relevant factors when considering the intent to cause death may be the weapon used, the nature of the injuries inflicted and their number, where on the body the victim was struck. In this case according to the post mortem reports of both victims, there were cut injuries on their necks which had caused the death of the victims. Therefore you decide whether the person or persons who caused the said cut injuries on their necks, intended to cause death or was reckless as to causing death of the victims.
    
16. You should consider all the proved facts and circumstances, and from them you are entitled to draw proper inferences as to the Accused persons conduct, and intentions.
    
17. The accused persons are charged with two separate counts on the information. You must consider the evidence on each count separately and must not assume that if any of the accused persons are guilty on one count, that he must be guilty on the other as well. It is your duty to consider whether the prosecution has proven the accused person's guilt beyond reasonable doubt on each count separately.
    
18. As a matter of Law may I direct you on circumstantial evidence. In this case the prosecution relies on circumstantial evidence.
    
19. In circumstantial evidence you are asked to piece the story together from witnesses who did not actually see the crime committed, but give evidence of other circumstances and events that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime.
    
20. I cite the following situation as an example for circumstantial evidence. In a silent night you hear cries of a man from a neighboring house. You come out to see that a man named 'X' is running away from that house with an object in his hand. Out of curiosity you go inside the house to see what really had happened. You see your neighbor 'y' lying fallen with injuries. Here you didn't see 'x' committing any act on 'Y'. The two independent things you saw were the circumstances of the given situation. You can connect the two things that you saw and draw certain inferences. An inference you may draw would be, that 'X' caused the injury on 'Y'. In drawing that inference you must make sure that it is the only inference that could be drawn and no other inferences that could have been possibly drawn from the said circumstances. That should also be the inescapable inference that could be drawn against X in the circumstances. Further in evidence, one witness may prove one thing and another witness may prove another thing. None of those things separately alone may be sufficient to establish guilt but taken together may lead to the conclusion that the accused committed the crime.
    
21. Therefore you must consider all direct evidence as well as circumstantial evidence.
    
22. It must not be mere speculation guesswork. It is not sufficient that the proved circumstances are merely consistent with the Accused persons having committed the crime. To find him guilty you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt that the Accused persons committed the crime.
    
23. Before you can draw any reasonable inferences you must first be satisfied beyond reasonable doubt that the evidence given by witnesses relating to the circumstances giving rise to the issues of fact to be proven, is credible and truthful.
    
24. As a matter of law I must also direct you on the law of joint enterprise. The prosecution alleges that the two accused persons acted jointly to commit murder on the deceased persons Ramkrishnan Amirthalingam and Rajamanickam Venkatachalam as a part of joint enterprise. As a matter of law, when several persons are charged with an offence, the person who actually does the act constituting the offence is not the only one who can be found guilty of it. Anyone who actively assists him to commit the offence is equally guilty of the offence.
    
25. The law also states where two or more persons get together and form an intention to commit an offence together and in the course of committing that offence, another is committed which is a probable consequence of the first contemplated offence, then each is deemed to be guilty of the offence which is finally committed.
    
26. So in this case you must ask yourselves whether the two accused persons jointly agreed to commit murder on the deceased persons. You must ask yourselves first, whether the prosecution has proved beyond reasonable doubt that the accused persons conduct caused the death of the deceased persons and if so then whether the two deceased person's deaths were a probable consequence of that joint conduct. If you are satisfied that they had the common intention to commit murder on the deceased persons, and that they died as a probable consequence of their conduct, they are each guilty of murder, even if only one of the accused persons conduct caused the fatal injury on the deceased persons. You must of course be satisfied beyond reasonable doubt that the conduct of the accused persons which caused the death of the victims was part of a joint plan to commit murder of the victims.
    
27. Prosecution presented certain circumstances surrounding the death of the deceased persons. It is for you to consider whether those circumstances inescapably establish that the conduct of the accused persons caused the death of the deceased persons. It is for you to decide whether by those circumstances you would infer that the two accused persons were acting in joint enterprise as I explained to you.
    
28. As a matter of Law, I must tell you that a witness can give evidence on his observations like what he heard, what he saw, and what he perceived. Only on certain circumstances court would allow witnesses to give their opinions on the matter. These witnesses should be experts on that particular subject. For example you get experts on medical field. Three expert witnesses, Forensic Scientist Dr Donelly, the Assistant Forensic Scientific Officer of the Fiji Police Force PC Jolame and the Forensic Pathologist Dr. Ramswamy Goundar gave evidence, and their expertise on their respective fields were not challenged and therefore their opinions are admissible
    
29. On the basis of these legal principles that I have explained to you, you must consider the evidence in the case and decide what has been proved. As I said earlier it is your function to assess the credibility of witnesses. You decide who is truthful and to be believed.
    

The Evidence

30. Prosecution called 19 witnesses to give evidence.
    
31. 1st witness was Abdul Munaff. He had known the two victims, Ramkrishnan Amirthalingam and Rajamanickam Venkatachalan as friends since 2008 after they came to buy scrap metal. He has arranged the house at Nakasi and the yard for their business.
    
32. He had seen them last on 6/12/2009.Rams' sister had called him and told him to report to Police that they were missing. On 17/12/2009 he had made a complaint to Police that the two victims were missing. Thereafter, he had made statements to Police on 22/12/2009 and on 8/1/2010. 1st accused had been staying with the victims in their house, he said. When the victims visited him, Ravi, the 1st accused also had come with them.
    
33. He said via internet he had spoken to the victims' wives and also to Rams' brother and brother-in law. He said that Rams' brother was similar to Ram.
    
34. The next witness was Jale Pesi, who was operating a scrap metal business in Lautoka. He said the victims wanted him to supply scrap metal to them and he supplied. He also had financially helped the victims when they wanted. On one occasion the victims had introduced the 1st accused to him as their Manager.
    
35. The next witness was Dr. Andrew James Connelly, a Forensic Scientist, who gave evidence on the DNA analysis. His expertise on the field of DNA analysis was not challenged by the defence. The report prepared by him was submitted as Prosecution Exhibit 2.
    
36. Referring to paragraph 2.2.2 of his report he said, that the DNA profile obtained from the portion of bone R A I B matches the reference DNA profile of Lakshmi Amirthalingam, said to be the identical twin brother of the victim Ramkrishnan Amirthalingam. Therefore he said in other words, the chance of finding another person, unrelated to "Ramkrishnan Amirthalingam, with the same DNA profile is expected to be one in 573 million.
    
37. Referring to paragraph 2.4 of his report, the witness said that the DNA profile obtained from the RV16: swab of blood-like stain on bathroom door matches the reference DNA profile of Lakshmi Amirthalingam. Assuming that Lakshmi Amirthalingam is the identical twin brother of Ramkrishnan Amirthalingam, he said that the chance of finding another person, unrelated to Lakshmi Amirthalingam or Ramkrishnan Amirthalingam, with same DNA profile is expected to be approximately one in 573 million.
    
38. Further referring to paragraph 2.8 of his report, he said that the DNA profile obtained from the tooth brush RA3 matches the DNA profile of male A.
    
39. Referring to paragraph 2.7 of his report, he said the DNA profile obtained from the tooth brush RA4 matches the DNA profile of Padiyachi.
    
40. Prosecution called Roshni Singh to give evidence next. She resides at No. 44, Willow Street, close to the house of the two alleged victims at No. 33, Willow Street.
    
41. She had been working for the 2 victims Ram and Guna in their Housework. No. 33 Willow Street house which Ram and Guna were residing was owned by her brother-in- law. 1st accused had been the Manager of Ram and Guna. She said in the night Ram and Guna used to sleep in the sitting room and 1st accused used to sleep in the Master bedroom.
    
42. On 13/12/2009 when she went with her son to make roti to Ram and Guna, they had been drinking alcohol in the sitting room. 1st accused and 2nd accused had been drinking grog sitting on the porch at the back. After making roti, she had gone back home with his son at about 9.30pm. That was the last day she had seen Ram and Guna, she said.
    
43. She identified the chopping block, chopper, and the mopping brush which were in the house and also clothes, a pair of sunglasses and 2 mobile phones which belonged to Guna and Ram.
    
44. Thereafter on another day, she had seen both accused persons and a friend at No. 33 Willow Street house. That had been the Saturday of the following week. All that week she had not seen Ram and Guna.
    
45. Ravi had told her that Ram and Guna had gone to West. She said that was on 16th December 2009. During the period she worked there, she had never seen Ram and Guna's relatives there.
    
46. She further said, in a room there were two suitcases, one black and the other navy blue. 2 pairs of shoes she identified as shoes which were in the shoe case.
    
47. After 23rd when she had gone to the to the house at 33 Willow street to get her blender and the roti plate, she had asked Ravi for the rug which was missing from the sitting room. 1st accused had said that Ram and Guna had vomited and that they washed the rug.
    
48. 1st accused had further said, due to the cyclone the rug had flown away to the match factory from the tool room. Although she told the1st accused to bring it, he had not complied, she said. Later she had brought the rug from the match factory with the help of her son. She said that Ram and Guna treated 1st accused well.
    
49. The next witness was Ronish Singh, the son of Roshni Singh. On 13th December 2009, he had gone to 33 Willow Street with his mother to make roti. He said when he asked Ram whether to switch on the light for the accused persons, Ram had said "let them be like that" and Ram didn't look normal. Then Ravi had told him to not to listen to them and to switch on the light. He said it was as if they have fought before.
    
50. On 14th December at about 6.30 – 7.00pm he had wanted to tie the dog at 33 Willow Street as it was raining. Ravi had been at Ajay's place. He said that Ravi did not allow him to go inside the house when he asked for the house key. He said that it was not normal. Ravi had said "let dog find his own house". When Ravi opened the Hilux from the alarm key he had taken the key, opened the side gate and tied the dog. He said that he did not see Ram and Guna.
    
51. On 14th December he had seen Ravi followed by Ajay going to 33 Willow Street. After about 2 – 3 days Ravi had given them the key to put the lights on saying that he was going to Western. He had gone and switched on the kitchen and sitting room lights. Ravi had told him that Ram and Guna had gone out of home and that he was going to look for them. He said when he went to the house to switch on the lights, it was unusual. House was disturbed, there was no rug, cushion was lying on the floor, he said.
    
52. He said Ravi was angry on Ram and Guna. Ravi had told him that they have run away taking lots of money from outside.
    
53. Witness identified some of the articles marked as they belonged to Ram and Guna. He identified the laptop as Rams'. He too had used it before.
    
54. A rough sketch of the area at Willow Street was produced. He said that he did not tell Police that Ravi refused to allow him to tie the dog first. However, he said that Ravi argued with him to not to enter the house. Further he said that he did not tell the Police that Ravi told them that Ram and Guna had run-away from home. He also said that he didn't tell the Police that house was disturbed and that the rug was missing as nobody asked him. He said that when Ram and Guna went to West before, they took the Hilux. Ram and Guna had not allowed anyone to smoke inside the house, but Ravi used to smoke in his room, he said.
    
55. The next witness was Ajendra Vikash. He lives in Benai, Ba and Mohammed Janiff's house is beside his house but about 100 meters away.
    
56. On 15th December 2009, around 1.00pm he had gone to get the cattle with Mosheen. They have crossed Janiffs' house on the way. At Jannifs' house, Nadim had been there. Padiyachi also had been there. A vehicle twin cab had been there, parked in Janiffs' compound. Front side of the vehicle was facing towards the road and back of the vehicle was facing the house, he said. Janiff is Nadims' father.
    
57. Further he said that he saw a quite deep pit dug at the back of the house. It was a fresh soil pit, he said. When he asked Nadim about the pit, Nadim had told that after one week labourers will come and dump the garbage. He said that on his way back also the vehicle had been there. He said that he didn't know who dug the pit.
    
58. The next witness was Mohammed Moshin. He is a cousin of 2nd accused Nadim. He lives in Benai, Ba since birth.

59. On 15th December 2009, he had gone to the farm with his neighbor Ajay. When they passed Nadims' compound there had been a vehicle parked. A Hilux twin cab, he said. Nadim had been there with another boy. He had not seen inside the tray of the vehicle as it had been covered. He also had seen a pit approximately 1 foot dug and a spade at the back of Nadims' house. When he asked, Nadim had said that the pit was to put garbage and that they had come to clean the house after cyclone.
    
60. On the way back he had met Nadim again and had asked him to come to his house for lunch. Nadeem had said that they had brought lunch. He said on the way back from the farm he was on horseback and he didn't notice the pit. He had seen the pit on his way to the farm.
    
61. Answering a question by the Defence Counsel whether Nadim came to his house later asking for a wheel spanner, he said that Nadim came when he was cutting grass in the afternoon.
    
62. The next witness was DC 3016 Kamal Goundar. He too had gone to the Benai, Ba secondary crime scene at about 7.00pm with other officers on 16/1/2010. He has seen the toilet pit in the back of Janiffs' house. He has seen a black suitcase with clothes packed by the side. The head of body was visible, he said. Then they have cleared the soil and had seen a human body inside the suitcase. Uniformed officers have guarded the scene. On 17th he had recorded the statements of witnesses from nearby houses. He identified photographs No. 1, 2, 3 and 4. He has recorded the statement of Moshin.
    
63. The next witness was Cpl. Irshad Ali. On 16/1/2010 he was attached to the Ba Police Station. He had received the call at about 6.30pm from his wifes' uncle Mohammed Munif saying that a labourer whilst digging a toilet pit had found a human body. Janiff is his father in-law and Nadim is his brother in-law, he said. He had gone to the scene with other officers. He had seen the labourer standing beside the pit toilet where the suitcase was partly seen. Labourer had been Junia. Mohammed Munif and Hansraj had been present. He too identified the photographs No. 1-4. With the help of other officers they have cleaned the soil on and around the top of suitcase and he had seen a human head with hair. He identified photo No. 10 as how the body was. Until the Forensic party arrived, the pit was covered and kept with a corrugated iron, he said. On the 17th he had gone to the scene again around 6.30am. He said that the 2 suspects were brought to the scene. Forensic team, Pathologist and crime officers had come to the scene. He had been there when both the suitcases were removed from the pit. However, he said at that time he was at the other end looking after the civilians. When the suspects were brought he has seen both bodies outside the 2 suitcases.
    
64. Prosecution then called PC 3237 Aveen Kumar to give evidence. On 16/1/2010 he too had gone to the crime scene at Benai, Ba. He too has seen the suitcase inside the pit. On 17/01/2010 he said when the suitcase was removed; there had been another suitcase underneath the 1st one. Pathologist has conducted the post mortem on both bodies at the scene. He identified the photographs 5, 6, 10 and 23.
    
65. The next witness was Hans Raj. He had known Janiff for 10-15 years and is familiar with Janiffs' property at Benai, Ba. Janiff had told him as there is another 4 years left in the lease of the property, for him to work in the farm and apply for a lease. Nobody had been there in that property. On 5/1/2010 afternoon he had met Janiff at his home in Nakasi and requested to hand over the property for which Janiff agreed. On 7/1/2010 Janiff had gone with them to Benai, Ba and had handed over the keys. Junia had gone with them. He identified the photos No. 1, 2, 3 and 4. He said on that day they did not dig a pit toilet but it was dug on 15/01/2010. He had told Junia to dig a pit toilet. He described to you in cross-examination how the two old pit toilets were.
    
66. The next witness was Kaminieli Rokotavaga who is known as Junia. He said that on the instructions of Hans Raj he had dug a toilet pit. He said it was on the 15th but on a Saturday. He confirmed that it was on a Saturday. He said when digging he has dug on to a suitcase. When he tried to elevate the suitcase with the spade it had slipped and the zip was opened and he had seen a dead body inside. Witness demonstrated to you how the dead body was inside the suitcase. He had left the spade and had gone shouting to Raj. Raj had called his neighbor Muniff and Muniff had called Police. With agreement of both parties, prosecution and defence, a rough sketch of the area was marked and produced. Witness said that he dug at that place, as there the soil was soft.
    
67. The next witness was IP Uttam Naidu who has caution interviewed 1st accused from 12/1/2010 – 15/01/2010. e HH He said that investigation started on the two missing Indian Nationals. Police have failed to contact the victims through their mobile phones.
    

However, after the twin brother of one of the victim came to Fiji, he said that they were informed that somebody else had answered the phone. Thereafter, with the assistance of the Vodaphone, he said that they had managed to trace the hand phone with a new sim with Nadims' wife.

68. The next witness was D/Sgt. Abinesh. He has recorded the 2nd accused Mohammed Nadims' caution interview statements on 14th and 15th January, 2010.
    
69. The next witness was D/Sgt. Julian Lauwakai. He was based at Forensic Division of Police Force, Fiji. He had been the team leader of the team who went to Benai, Ba. PC Jolame and WPC Maria had been present. He has directed Sgt. Rusila and DC Koroi to take photographs. Photographs were produced without objection. PC Jolame and Sgt. Rusila had uplifted the samples from the bodies. PC Jolame had uplifted samples to extract DNA. They were uplifted after the post mortem examination, he said. They had removed left thumbs of the victims for finger print identification. However, he said that there were no existing finger prints to match.
    
70. On 18th January, 2010 they have gone to primary crime scene at Nakasi at 33 Willow Street. Photographs taken there was identified and produced without objection. They were taken on his instructions, he said. He had directed PC Jolame and Maria to look for blood-like stains. They have examined the sitting room, all rooms and bathrooms. Chopper and chopping block (wax board) were uplifted.
    
71. On 20th January, 2010 the witness with PC Jolame had inspected the vehicle Hilux Reg. No. FN491. 26th January 2010 they had again gone to 33 Willow Street for closer examination and to remove tiles for examination. He said there was no finger prints found in the chopper. There had been no blood stains on the mattress and settees and pillows or blankets. He said that there were small blood-like stains found in the bathroom and on tiles of the sitting room. He said that PC Jolame and WPC Maria did the actual uplifting of blood-like stains.
    
72. The next witness was Atish Chand, a Senior Technician from the Vodaphone. He explained how a mobile phone can be tracked by the IMEI (International Mobile Equipment Identity) number. Police had come with a search warrant and they had given the Police with the data they wanted on Mobile Phone Number 8686364. Witness did not know whose mobile number was this, as at that time no registration of phones were done. The relevant documents about the details of the calls of this mobile number during the relevant period was marked and produced in court. The IMEI number of the particular hand set had been 352430029256900. He said last call taken from the mobile number 8686364 was at 2.10am on 14/12/2009. It had been a missed call to 9722251.
    
73. The next witness was PC Jolame Yacyisrael. He is the Assistant Forensic Scientific Officer of the Forensic Biology and DNA Laboratory at Totogo Police Station. His expertise in the said field was not challenged by the defence.
    
74. On 17/1/2010 he has gone to Benai, Ba to the secondary crime scene. WPC Maria was asked to assist him in uplifting biological samples, he said. After autopsy was completed on Body No. 1 by the Pathologist Dr Goundar, DNA samples were extracted, he said. From Body No.1 a thigh bone and hairs were extracted. They were sealed and labeled as RV1 and RV2. From the Body No. 2 also right thigh bone and hairs were uplifted and sealed and labeled as RA(1) and RA(2) respectively, he said.
    
75. At Ba Police Station he was introduced to one Mr Lakshmi Narayan Amirthalingam, said to be a twin brother of one of the deceased. He has taken a Buccal sample from him. He has handed over the samples to the Forensic Science lab. On 18/1/2010 he had gone to primary crime scene at 33 Willow Street, Nakasi with D/Sgt. Julian, D/Cl Leone, PC Viliame from Crime Science Investigation Unit and with PC Koroi and WPC Maria of his unit. After photographs were taken at the scene, he with Maria had uplifted samples. First he had uplifted two tooth brushes from the washing sink in the wash room at the back of the house and labeled them as RA3 and RV3. He had uplifted two popule swabs from a clever, one from the blade labeled as MN 1.1 and the other from the handle which was labeled as MN1.2. This clever had been underneath the sink of the back kitchen area. He has taken the items immediately to the laboratory in Suva. In his presence Maria had tested the blood-like stains at the primary crime scene. They have used the Hemastix test. On 18th January 2010 they have only done an initial test on the living area and he said that on 18th they did not uplift any blood-like stains. On that day they have tested only around the middle part of the living room close to the coffee table.
    
76. On 20th January 2010 he has uplifted 2 toothbrushes, one from the window of the bathroom adjacent to the kitchen and the other from the shelf of the same bathroom. They were labeled as RA5 and RA4 respectively. Same day they have examined the Toyota Hilux vehicle Reg. No. FN491. He said that blood-like stains were uplifted from the back tray of the vehicle and it was tested positive for blood.
    
77. On 26th January 2010 he had conducted a search on full area of the living room. They had found blood-like stains towards the front of the cabinet, when you enter from the front door. They have taken 4 swabs from those stains and he said that they were tested positive for blood. They have removed a square tile from the living room floor but it was negative for blood, he said. They have further uplifted 6 swabs from the main living room area and those were tested positive for blood, he said. They had also uplifted a swab of a horizontal blood-like stain from the bathroom adjacent to the kitchen and that too was tested positive for blood, he said. All these swabs were labeled as RV6 – RV16. In that, he said 6 swabs uplifted from living room were labeled RV6-RV11 and the swabs from below the cabinet was labeled as RV12-RV15, swabs from bathroom adjacent to kitchen was labeled as RV16.
    
78. On the 29th they have gone to 33 Willow Street for the 4th time. He said that they were checking the house in a systematic way. On that day on the wall of a room adjacent to the wash room area they have found a swipe pattern blood stain. He said that 6 swabs were taken from that and was labeled as DF 1 to DF 6. He said in the bathroom adjacent to the kitchen there was another blood stain on his chest height. They also have detected blood like stains on the floor of the passage leads to the kitchen, which was tested positive for blood. The swabs taken from that were labeled as DF 7 to DF 9.
    
79. There were wooden partitioned rooms and they have found blood like stains on a wall which was tested positive for blood he said. The swabs taken from this was labeled DF 10 and DF 11. He said that certain samples were sent to Australia for further testing, and was tested by Dr. Donelly and the team. In cross examination he said that hair samples were not sent for DNA testing. He further said that they found blood like stains on the 18th January 2010, but it was tested negative for blood in the hemastix test.
    
80. Samples taken from the blood found in the back of the tray of the vehicle was labeled as RV 4, he said. He has not determined whose blood was that and he had not received any directions to send the same for DNA testing he said. From the dry swabs RV 6 to RV 11 taken from the living room, only RV 8 was sent for DNA testing he said. RV 16 swab which was taken from the bathroom adjacent to the kitchen area was sent for DNA analysis. According to Dr. Donelly's report it matched with the DNA profile of Lakshmi Amirthalingam he said.
    
81. The next witness was the forensic pathologist Dr. Ramaswamy Punnuswamy Goundar. He conducted the post mortem examinations on the two dead bodies. His expertise on the field of pathology was not challenged by the defence.
    
82. He has conducted the post mortem examinations on the two bodies at the scene. He said that he assigned identity on the bodies on the information given to him at the scene.
    
83. The body No. 1 alleged to be of Raja Manickam Venkatachalam was shown in photographs No. 9, 10, 11 and 12. Body No. 2, the person name designated Ramakrishnan Amrithalingam was shown in photographs No. 23 and 24, he said. Both the bodies had been at a putrefied state. Post mortem reports of body No. 1 and 2 were produced marked as Exhibits P 15 and P 16 respectively.
    
84. He said in body No. 1 there were two external injuries. Injury No. 1 was a deep cut across the lower part of the neck measuring 14cm in length. He said that injury was caused by a sharp weapon with an amount of force. He said that the chopper exhibit 11, could be consistent and a weapon like that could cause the said injury and due to excessive bleeding it would cause immediate death. It has completely severed the underlying soft tissue, bilaterally, jugular veins, carotid arteries, nerves and strap muscles of the neck. The 2nd injury was an irregular cut over the right maxillary area extending from the angle of the nose running backwards. Organs in the thoracic cavity, abdominal cavity and the brain were putrefied. Rigor mortis was absent.
    
85. According to his report P 15, The cause of death was ' Excessive loss of blood from multiple cut injuries to neck'. However answering to a question he said that on body no. 1, there was only one cut injury to the neck and when he said multiple cut injuries it was a mistake. He further said that a number of organs were damaged due to that cut injury to the neck.
    
86. He said that the estimated time of death from putrefaction and mummification would be approximately three to five weeks prior to the date of the post mortem examination.
    
87. According to his report on body No. 2, there had been five external injuries. Injuries number 1 and 5 were cut injuries to the neck. Injury No. 5 had been a deep cut across the back of the neck exposing the underlying cervical vertebra and occipital bone and the brain tissue. Injuries no. 2 and 3 were cut injuries to the face. Injury No. 4 had been a cut injury extending from the left outer canthus of the eye, running across temporal bone and left ear. The underlying temporal bone had fractured in multiple areas. External organs in the thoracic cavity, abdominal cavity and the brain had been putrefied. He said that the body was decomposed and the Rigor mortis was absent.
    
88. He said that the estimated time of death would be approximately three to five weeks prior to the date of post mortem examination.
    
89. The cause of death of the body no. 2 was 'Excessive loss of blood from multiple cut injuries to neck'. He said that the cut injuries no. 1 and 5 to the neck would have caused the death. He said that injuries No. 1 and 5 could have been caused by a sharp object, and that the chopper, like exhibit No. 11 would be consistent.
    
90. In cross examination he said that the estimated time of death they give in a post mortem report is the estimated time the police usually give them. He, admitting that there is a mistake said, 'If you take on the face value of the report, then it is a mistake. But I have expressed my opinion on my findings.' He said that he could have separately given his estimated time of death in the reports.
    
91. In P 15 report on the body No. 1, he had not mentioned about clothing. He admitted that it would have been an oversight. In P 16 report he said the clothing was a green check Sulu. When showed the photograph P 23, he said that sulu is in the upper part of the body.
    
92. The last witness for the prosecution was the investigating officer D/Sgt Mukthar Ahmmed. He said that Abdul Munaff made a complaint to Nakasi Police Station and that it was referred to the CID from the Indian High Commission. On 22nd December 2009 delegates from the Indian High Commission have come with the two passports accompanied by Ravinesh Padiyachi. The two passports were produced.
    
93. They have obtained a plain statement from Padiyachi on 22nd December 2009. Padiyachi had told that the two Indian nationals had gone to the west as they were stressed. Padiyachi also had told that he went to the west on the 15th December 2009. In that he had not told that he went to the west with anybody. He had not told that he went to Beni Ba.
    
94. On 30th December 2009 they have recorded a statement from Mohommed Nadim. In that statement Nadim had said that Ravinesh took Nadeem to the west on the 15th. They had gone to Lautoka and then to Ba. They also had visited his house at Beni Ba.
    
95. He had seen the discrepancy in the statements of Padiyachi and Nadim and they had let them go and had further investigated, he said.
    
96. In Nadeems statement which was marked and produced as exhibit P 20, Nadim had told that he stole a mobile phone of Guna and has given its number.
    
97. The Toyota Hilux vehicle No. FN 491. which was repossessed by the Merchant Finance Company for non- payment of the loan, was seized by them he said. The purchaser of the vehicle had been Ramkrishnan Amirtalingam and it was under the company Blue waves, he said. The said twin cab had been under the control of Padiyachi at that time.
    
98. He said that when he went to get the mobile phone which was stolen, Nadeem had given him two mobile phones saying that he stole them on the 14th December morning. The said phones were exhibited. Guna's telephone number had been 8686364. They have taken the records of Guna's telephone number from Vodafone.
    
99. On 30th December Ravinesh had handed over to him, the pair of sun glasses which he had told that belongs to Ram. Before that he said that he had seen Ravinesh wearing them.
    
100. He said that they seized the two pairs of shoes that was exhibited, after Nadeem confessed that they were stolen.
     
101. The laptop which was exhibited was handed over to CID by Ravinesh, he said.
     
102. On the 16th January 2010 there had been a report that a body was seen at Benai, Ba. He had been present when the post mortems were conducted. He said that requests were made for post mortem examinations by police in pursuant to the Inquest Ordinance. The request forms were signed by ASP Kishor Kumar requesting post mortems to be held on the bodies found on 16.01.2010 at 6.30 pm. The request forms were produced in evidence. The clothes seized from Nadim's house were identified by him and produced.
     
103. After taking possession of the Toyota Hilux vehicle, it was handed over to the Forensic team, he said. From 6.1.2010 to 20.1.2010 the vehicle had been at CID head Quarters in safe custody. Nobody used the vehicle during that period, he said.
     
104. He said that he knew that certain items were uplifted from No. 33 Willow Street, Nakasi. Some of these items were sent to Australia and that was the responsibility of the forensic team, he said.
     
105. Tendering the travel history of Rajamanickam Venkatachalam he said that to date there is no record that he has left the country.
     
106. In cross examination he said that there is no eye witness who saw the accused persons chopping the necks of the bodies found in Benai, Ba or who saw or heard the accused persons planning to execute the unlawful act.
     
107. That was the evidence for the prosecution.
     
108. At the end of the prosecution case, you heard me explain several options to the accused persons. They have these options because they do not have to prove anything. The accused persons opted to remain silent. That is their right to do so. You must not draw any adverse inferences from their choice to remain silent.
     
109. The cautioned interview statements of the accused persons and were produced in evidence. Remember, whatever each accused had told in his cautioned interview statement is evidence only against the accused who made it, and cannot be taken against other accused.
     
110. The written agreed facts are before you. You may accept those facts as if they had been led from witnesses from the witness box.
     
111. Madam and Gentlemen assessors, you heard the evidence of many witnesses for several days on behalf of the prosecution. If I did not mention a particular witness or a particular piece of evidence, that does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.
     
112. You must decide which witnesses are reliable and which are not.
     
113. You may have observed that when some witnesses gave evidence there were some inconsistencies between the evidence before this court and the statement given to the police. What you should take into consideration is only the evidence given by the witness in court and not any other previous statement given by the witness. However you should also take into consideration the fact that such inconsistencies between the evidence before court and statement to police can affect the credibility of the witness.
     
114. Prosecution says that the accused persons are guilty of murder of Raja Manickam Venkatachalam and Ramakrishnan Amirthalingam. It is not in dispute that one of the bodies found in Benai, Ba on 16th January 2010 and properly excavated on 17th January 2010 belongs to Ramakrishnan Amirthalingam. Prosecution relies on the DNA evidence and the other circumstantial evidence placed before you to prove that the other body was of Rajamanickam Venkatachalam. In paragraph 2.8 of his report, Dr Donelly has opined that the DNA profile obtained from the green tooth brush said to have been uplifted from the bottom shelf of the toiletries compartment matches the DNA profile of body 1, Male 'A'.
     
115. When the samples for DNA was obtained at Benai, Ba samples from the thigh bone of male A (Body 1) was labeled as RV 1 and the sample from the thigh bone of male B (body 2) was labeled as RA 1. According paragraph 2.2, 2.2.1 and 2.2.2 of the DNA report of Dr. Donnelly, DNA sample taken from body 2 alleged to have been from the body of Ramkrishnan Amirthalingam matches the DNA profile of Lakshmi Amirthalingam said to have been the twin brother of Ramakrishnan Amirthalingam. According to the evidence of PC Jolame the tooth brush labeled RA 3 was uplifted on 18th December 2010 from the wash room of No. 33 Willow Street, Nakasi. DNA report of Dr. Donnelly says that the DNA profile obtained from the tooth brush RA 3 matches the DNA profile of Male A. Male A refers to body No. 1. Therefore it is for you to decide on the evidence placed before the court including the above mentioned DNA evidence, whether the body no. 1 belongs to Rajamanickam Venkatachalam or not.
     
116. Prosecution says that the accused persons are guilty of murder of Ramkrishnan Amirthalingam and Rajamanickam Venkatachalam. To prove the elements of the offences of murder they rely on circumstantial evidence. Prosecution presented certain circumstances including the following.
     
117. That, the victims were seen last on the 13th December 2009 evening at 33 Willow Street, Nakasi with the two accused persons. That, on 14th December, the 1st accused had told that the victims had gone to the west. That, on 15th December 2009 the two accused persons were seen at the residence of the 2nd accused at Benai, Ba. The house had been vacant. That, two witnesses have seen the accused persons and they have seen a pit dug in the back yard of the house. That, the vehicle Toyota Hilux belonged to the victims company had been parked there in the property at Benai, Ba. Front of the said vehicle had been facing the front of the property and the back tray had been facing the back side of the property. That, after the victims went missing the said vehicle was used by the 1st accused. The vehicle was later repossessed by the Merchant Finance Company. Although the 1st accused had told that the victims went to the West, the vehicle which was used by the victims had been there with the 1st accused. That, the bodies alleged to be of the victims, were found buried at the same 2nd accused residence at Benai, Ba on the 16th January 2010. One of the bodies found was agreed to be of the victim Ramkrishnan Amirthalingam.
     
118. That, blood like stains were found at the victims house at Nakasi and some of them were tested positive for blood. Blood like stains found in the back tray of the vehicle was tested positive for blood. That, the motive of the accused persons that can be inferred is, to take the belongings of the victims. That, the last telephone call taken from the phone No 8686364 which belongs to a victim was at 2.10 am on 14th December 2009.
     
119. Prosecution says that the only inescapable inference that can be drawn from the evidence including the above is that the two accused persons caused the death of the two victims. I have explained to you what circumstantial evidence is. It is up to you to draw the proper inferences from the evidence placed before you.
     
120. Defence says that there is no evidence to implicate the two accused persons with the death of the two victims and that the prosecution has failed to prove the charges beyond reasonable doubt against the accused persons. In that, the defence says among other facts the following. That, there are no eye witnesses who saw the accused persons slashing the necks of the victims and that there are no witnesses who saw them burying the victims at Benai, Ba. No murder has taken place at Nakasi and DNA evidence should not be relied upon. No DNA was found in the weapon. Evidence of Ajey and Moshin should not be relied upon, as their evidence is contradictory. Blood samples taken from the tray of the vehicle was not sent for DNA analysis. There is a reasonable doubt as to why it took time to find the blood samples. There was no motive evident.
     
121. You may decide what inferences you properly draw from the evidence placed before you.
     
122. The pathologist Dr. Goundar in his evidence said that the estimated time of death of both the victims was approximately 3 to 5 weeks prior to the date the post mortem examination was conducted. However in his written reports P15 and P16 he has written the estimated time of death as 16/01/10 1830hrs. Clarifying the discrepancy he said that when they give the post mortem report, they give the estimated time police usually give them. He has written the time as the police had given to him.
     
123. Prosecution submitted the request for post mortem examination forms filled by the police, requesting the post mortem examinations to be held, as exhibit 25a and 25b. In the said forms it is mentioned that the bodies were found at about 6.30pm on 16.01.2010. That is the exact time the pathologist has entered as the estimated time of death in the post mortem reports. You heard the evidence of other witnesses as to the date and time the bodies were found buried and how they were found. Therefore it is for you to decide on the said evidence and the state of putrefaction of the bodies, whether you accept the evidence of the pathologist that the estimated time of death was 3 to five weeks prior to the date of the post mortem examination or not.
     
124. You may use your commonsense when deciding on the facts.
     
125. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.
     
126. I have explained the legal principles to you. You will have to evaluate all the evidence and apply the law as I explained to you when you consider the charges against the accused persons has been proved beyond reasonable doubt
     
127. Your possible opinions on each accused on each count are either Guilty or Not Guilty.
     
128. Madam and Gentlemen assessors, this concludes my summing up on the law. Now you may retire and deliberate together and may form your individual opinions on the charges against the accused persons. 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.
     
129. You may retire to consider your opinions.
     

Priyantha Fernando
JUDGE

At Suva
2nd August 2011.