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State v Balekivuya [2011] FJHC 465; HAC095.2010 (1 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 095 OF 2010S

THE STATE

1. SALESI BALEKIVUYA
2. SAIMONI TUKANA

Counsels : Ms. N. Wickramasekera and Ms. M. Tikoisuva for the State
Mr. T. Muloilagi for Accused No. 1
Ms. B. Malimali for Accused No. 2

Hearings : 4th to 26th and 29th July, 2011
Summing Up : 1st August, 2011

SUMMING UP

ROLE OF JUDGE AND ASSESSORS

Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
State and Defence counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.

THE BURDEN AND STANDARD OF PROOF

As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused'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.
Your decision must be based exclusively upon the evidence which you have heard in this Court, from the witness box, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must disregard anything counsels said to each other after their closing submissions. These are not evidence from the witness box, and therefore you should disregard the same. You must decide the facts without prejudice or sympathy, to either the accuseds or the victims. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.

THE INFORMATION

7. A copy of the information had been given to you. This trial concerned count No. 1, "damaging property", contrary to section 369(1) of the Crimes Decree 2009; count No. 2, "attempted robbery", contrary to section 44(1) and 310(1)(a)(i) of the Crimes Decree 2009; count no. 3, another "attempted robbery" charge and count No. 5, "murder", contrary to section 237 of the Crimes Decree 2009.

8. On count No. 1, it was alleged that, accused No. 1, on 4th May 2010, at Grantham Road in the Central Division, wilfully and unlawfully damaged Salesh Chand's motor vehicle, registration No. ED 648, the damage being valued at $520. On count No. 2, it was alleged that both accuseds, attempted to violently rob Rajnesh Chand, on 4th May 2010, at 67 Shalimar Street, Samabula. On count No. 3, it was also alleged that, both accuseds, attempted to violently rob Ashwin Chand, at 67 Shalimar Street, Samabula. On the fifth count, it was alleged that both accuseds, on 4th May 2010, at Shalimar Street, Samabula, murdered Krishneel Singh, by striking his head repeatedly with a spade and kicking him to death.

THE MAIN ISSUES

9. In posing the questions that you will have to answer in this case, I will start with the most serious charge, that is, "murder", then "attempted robbery" and last, "damaging property". This is because, as far as both accuseds are concerned, the murder charge is the most important and serious, and its outcome will affect their liberties.

10. The task for each of you in this case, is to answer the following questions:

(i) Count No. 5: Did Salesi Balekivuya and Saimoni Tukana murder Krishneel Singh, at Shalimar Street, Samabula, on 4th May 2010?

(ii) Count No. 3: Did Salesi Balekivuya and Saimoni Tukana, on 4th May 2010, at 67 Shalimar Street, Samabula, attempted to violently rob Ashwin Chand?

(iii) Count No. 2: Did Salesi Balekivuya and Saimioni Tukana, on 4th May 2010, at 67 Shalimar Street, Samabula, attempted to violently rob Rajinesh Chand?

(iv) Count No. 1: Did Salesi Balekivuya, on 4th May 2010, at Grantham Road in the Central Division, wilfully and unlawfully damaged Salesh Chand's motor vehicle, registration No. ED 648, the damage being valued at $520?

This case involved two accuseds. You are actually conducting two trials against each accused, together.

THE OFFENCES AND THEIR ELEMENTS

11. Under this head, we will start discussing the serious charge of "murder", then "attempted robbery" and then "damaging property". Like paragraph 9 hereof, the murder charge is the most important and serious, and we need to discuss it first, before we discuss the other charges.

12. "Murder", has three essential elements. For the accused to be found guilty of murder, the prosecution must prove beyond reasonable doubt, the following elements:

(i) that the accused did a wilful act; and

(ii) that wilful act caused the death of the deceased; and

(iii) at the time of the wilful act, the accused either:

(a) intended to cause the death of the deceased; or

(b) is reckless as to causing the death of the deceased.

13. On the first element of murder, a "wilful act" is a voluntary act by the accused. It is a feeling of strong determination to do something that he wanted to do. It is what he wanted to happen in a particular situation. For example, in a fight or struggle, punching or kicking his opponent or hitting him with a spade. It must be the physical and voluntary act of the accused. Evidence of self-induced intoxication cannot be used to determine whether or not the accused's action was wilful or not. So, when an intoxicated accused throws a punch or kick or hit his opponent with a spade, during a struggle or fight, he cannot rely on his self-induced intoxication as an excuse that his actions were not wilful.

14. On the second element of murder, "the wilful act must cause the death of the deceased". This simply meant that the accused's wilful act substantially contributed to the death of the deceased. The accused's wilful act must be a substantial contributor to the death of the deceased. In other words, the accused's wilful act was a substantial cause of the deceased's death. For example, A had a fight with B. During the fight, A wilfully punches, kicks and hits B's head with a spade, which caused massive injuries to his head and brain. B was taken to the hospital. Despite proper medical care, B died from his head and brain injuries. A's punches, kicks and hitting with a spade would amount to "wilful acts" that substantially caused B's death. In other words, A's punches, kicks and hits with the spade, substantially contributed to B's death, and this caused the deceased's death.

15. The third element of murder concerned its fault element. There are two fault elements for murder, as described in paragraphs 12(iii)(a) and (b) hereof. We will not be concerned with the fault element in paragraph 12(iii)(b). This is because the prosecution is not running its case on this fault element. It is their prerogative not to do so. As a result, for the accused to be found guilty of murder, the prosecution must prove beyond reasonable doubt that, at the time the accused did the wilful act, he intended to cause the deceased's death. In other words, at the time the accused did the wilful act, he meant to cause his death. Nothing short of this will suffice.

16. As a matter of common sense, no one can look into the accused's head, to ascertain and determine his intentions, at the time of him doing the wilful act. However, throughout the centuries, courts have often relied on what the accused said and did, at the time he did the wilful act, including the surrounding circumstances, to infer his intentions. You must put yourselves in the shoes of the accused, and from his physical actions, spoken words and the surrounding circumstances, you will be able to ascertain his intentions at the time, he was doing the wilful act. For example, in this case, you will have to look at what the two accuseds did on 4th May 2010, their drinking, their coming to Shalimar Street from Jittu Estate, their coming into contact with the deceased and his two friends, the struggle and fighting over the spade, the assaults, the aftermath, the trip to the hospital and the post-mortem reports, to ascertain their intentions, at the time they did their wilful acts. In this case, before the alleged murder, both accuseds consumed a lot of liquor. It was self-induced intoxication. It was said, both were extremely drunk, at the time of the alleged murder, and at the time they allegedly committed the other offences. In ascertaining their intentions, at the time of the alleged murder and the other offences, you must disregard any evidence that suggested that they were too drunk as to be incapable of forming an intent to cause death. A drunken intent to cause death, is still an intent as described in paragraph 12(iii)(a) hereof. In other words, a drunken intent to cause death, is still sufficient to satisfy the third element of murder, as described in paragraph 12(iii)(a) hereof.

17. What happens if you, as assessors and judges of fact, found that both accuseds, or either of them, do not have the intention to cause the deceased's death, at the time they were doing the wilful acts? What happens if you found that, at the time they were, or either of them, were doing the wilful act, they didn't have the intention to cause the deceased's death, but had the intention to cause him serious harm. If you come to this conclusion, provided the first and the second elements of murder as described in paragraphs 12(i) and (ii) hereof are satisfied, you may find both, or either of them guilty of the lesser offence of manslaughter. Manslaughter consisted of the first and second element of murder, as described in paragraph 12(i) and (ii) hereof, but the fault element consisted of "an intention to cause serious harm" to the victim.

18. On the offence of "attempted robbery", for the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused,

(ii) attempted,

(iii) to steal,

(iv) the complainant's property, and

(v) before, during or after

(vi) the attempted stealing

(vii) uses or threatens to use force

(viii) on the complainant

(ix) with intent to steal.

19. Attempt means "an act of trying to do something, especially something difficult, often with no success" or "to make an effort or try to do something, especially something difficult". "Stealing" is the act of taking away someone's property without his permission, with an intention to permanently deprive him of that property. Force means "any type of force", and includes "threat of force". In this case "punches, slapping, pushing" are force, and threats of the same, are also force.

20. On the offence of "damaging property", for the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused

(ii) wilfully and unlawfully

(iii) damaged

(iv) the complainant's property

21. There are two accuseds in this case. To make them jointly liable for the "attempted robberies" and "murder" charges, the prosecution is relying and running its case on the concept of "joint enterprise". "Joint enterprise" is "when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose, an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence" (section 46 of the Crimes Decree 2009). In considering each accused, you will have to ask yourselves the following questions: Did they form a common intention to attempt to violently rob Ashwin Chand and Rajinesh Chand? If so, did they act together to attempt to violently rob the Chands? When the deceased was allegedly murdered as a result of the attempted violent robberies, was this a probable consequence of the same? If your answer for a particular accused was yes, and you are satisfied beyond reasonable doubt that the elements in paragraph 12(i), (ii) and (iii)(a) are satisfied, he's guilty of murder. If they acted together to attempt to rob the Chands, they are also guilty of attempted robberies of the Chands.

22. Two accuseds are on trial in this case. Each of the accused is entitled to be tried solely on the evidence that is admissible against him. This means that you must consider the position of each accused separately, and come to a separate considered decision on each of them. Just because they are jointly charged does not mean they must all be guilty or not guilty. Most evidence in this case are admissible against all accuseds. However, regarding their police caution interview statements and charge statements, which may contain their alleged confessions, the statements therein are only admissible against the maker of the statement, and on no other. In other words, in each accused's police caution interview statements and charge statements, you must totally disregard what the accused said about his co-accuseds on the commission of the offence. You can only take into account what he said about himself, regarding his role in the commission of the crime.

THE PROSECUTION'S CASE

23. On the attempted robberies and murder allegations, the prosecution's case were as follows. On 4th May, 2010, at about 10am, the two accuseds were drinking with others at the Jittu Estate youth hall. A lot of alcohol was consumed during the party, and at times, rolls of marijuana were smoked. The drinking party continued until late in the afternoon. The two accuseds went to Shalimar Street, Samabula at about 5pm. People were returning from work.

24. Krishneel Singh (the deceased), Rajinesh Chand and Ashwin Chand were finishing off their studies at Fiji National University, and were proceeding home. Krishneel was driving a white station wagon, registration No. FP 351. He offered Rajinesh and Ashwin a lift home. However, he was required by his father to pick up some tools from his rented house at 67 Shalimar Street, Samabula. Sometime past 5pm, the three arrived at 67 Shalimar Street, and parked their vehicle at the top of their driveway. Krishneel went down the driveway to collect the tools, while Rajnesh and Ashwin waited in the car for him.

25. Suddenly, Saimoni approached Rajinesh, who was sitting in the front passenger seat. Saimoni forcefully demanded money from Rajinesh. Rajinesh said he had no money. Saimoni then repeatedly punched Rajinesh. Salesi went for Ashwin, who was sitting behind Rajinesh, in the back seat. Salesi threatened Ashwin to give him money. He punched Ashwin and got into the car. Salesi then repeatedly punched Ashwin, who opened the right back car door and fled. Salesi ran after Ashwin, got him to the ground and kicked him. He rushed back to the car. A tenant hit him with a crowbar, dropped the same and fled.

26. While Saimoni was punching Rajinesh, Krishneel came up the driveway with a spade. He hit Saimoni's back to defend Rajinesh. Saimoni turned and held the spade. According to the prosecution, both Saimoni and Salesi tried to snatch the spade from Krishneel. The three of them were struggling for control of the spade. During the struggle, both accuseds were repeatedly punching Krishneel. It was a fierce struggle for control of the spade. They started from the driveway to 67 Shalimar Street and ended downwards at Shalimar Street.

27. Krishneel kicked Saimioni, and he fell down. Saimoni got up and punched Krishneel to the ground. According to the prosecution, both accuseds then kicked Krishneel in the head. Salesi then picked up the spade and repeatedly hit Krishneel's head with the same. According to the prosecution, while Salesi was hitting Krishneel's head with the spade, Saimoni kicked and punched Krishneel in the head, at the same time. When they stopped, they went towards the short cut to Jittu Estate. Salesi ran back and repeatedly hit Krishneel's head again with the spade. Saimoni stopped Salesi, and they left the crime scene towards Jittu Estate. Krishnee's face was covered with blood. He was seriously injured. He was later taken to CWM Hospital. The doctors tried to revive him. However, he died at 6.30pm on 4th May 2010. According to the post-mortem report, the cause of Krishneel's death was "extensive skull fractures with extensive brain injuries due to blows to the head with a blunt object".

28. According to the prosecution, both accused attempted to violently rob Rajinesh and Ashwin, on 4th May 2010. According to them, both accuseds jointly striked Krishneel repeatedly in the head with a spade and kicked him in the skull, resulting in severe brain injuries, causing his death. They are therefore asking you, as assessors and judges of fact, to find both accuseds guilty as charged on the attempted robberies and murder charges.

29. As for the damaging property charge, it was the prosecution's case that Salesi smashed Salesh Chand's car's windscreen with a stone. He also took the stone and threw it on the bonnet of the car. This was on 4th May, 2010. The car was registered as ED 648. The prosecution is asking you to find Salesi guilty as charged on count No. 1. That was the case for the prosecution.

G. THE ACCUSEDS' CASES

30. When the information was put to both accuseds on 11th July 2011, the first day of the trial proper, both accuseds pleaded not guilty to the "attempted robberies" and "murder" charges. Salesi pleaded not guilty to the "damaging property" charge. In other words, both accuseds denied the allegations against them, that is, on counts Nos. 1, 2, 3 and 5.

31. On the "damaging property" charge (count No. 1), Salesi, through his counsel said, he was not properly identified by Mr. P. Pratap (PW4) and Mr. B. Kumar (PW5), at the time the car was damaged. When giving evidence, he said nothing on this count. However, he asks you, as assessors and judges of fact, to find him not guilty on this charge, on the ground that the prosecution has not proven his guilt beyond reasonable doubt.

32. On the "attempted robberies on Rajinesh and Ashwin" (ie. counts No. 2 and 3), both accuseds denied the allegations, when they gave sworn evidence. Salesi, in his evidence, denied demanding money from Ashwin. He also denied ever punching Ashwin on 4th May 2010. However, he said, Rajinesh and Ashwin started the fight, when they swore at him and Saimoni. Saimoni, in evidence, denied demanding any money from Rajinesh. He said, he went to confront Rajinesh because he was swearing at them. He said, he never punched Rajinesh. He said, he only slapped him, but can't recall how many slaps he gave.

33. On the "murder" charge (ie. count No. 5), both accuseds denied the allegation. They admitted that prior to the Shalimar Street incident, they consumed a vast amount of liquor. Both admitted they were pretty drunk before the incident. According to them, the problem started when Rajinesh and Ashwin started swearing at them. Saimoni went to confront the boys not to swear at them. They didn't, so he slapped Rajinesh, but couldn't recall how many times he slapped him. He said, Krishneel came up the driveway and hit him with a spade. He tried to hit him a second time. He grabbed the spade and the two struggled for the same. Saimoni said, Krishneel was strong. Saimoni said, he wanted to disarm Krishneel.

34. Salesi said, he saw Krishneel hit Saimoni with the spade. He said, Saimoni later held onto the spade, and the two struggled for the same. He said, he followed their struggle down Shalimar Street. Suddenly, Salesi said, someone hit him with a crowbar, and fled. He said he wanted to stop the struggle between the two. He saw Saimoni and Krishneel on the ground. He said, Krishneel stood up and picked up the spade. He tried to hit Saimoni with it. He said, he ran to stop Krishneel and the two later struggled for the spade. Krishneel later slid on the road. He said, he lost his temper and hit Krishneel with the spade, but he could not recall how many times. He said, he hit Krishneel to release his anger but he didn't mean to kill him. When cross-examined by Accused No. 2, he said he did the above to protect Saimoni.

35. Saimoni said, his struggle with Krishneel over the spade was designed to disarm him from using the spade against anyone. He admitted punching him during the struggle. He said Krishneel kicked him, and he fell. When he got up, Salesi and Krishneel were struggling for control of the spade. Krishneel slipped to the ground, and Salesi began to him with the spade. Saimoni said, he tried to stop Salesi. He pulled him away and they returned to Jittu Estate.

36. In his closing submissions, Salesi's counsel puts forth two defences, that is, self-defence and provocation. He appeared to be saying that, when he hit Krishneel with the spade, he was trying to defend Saimoni from being hit by Krishneel. He said, as a result, he was not guilty of murder. Alternatively, he appeared to be arguing that, even if he was found to have an intent to kill Krishneel, he was provoked into the same, when Rajinesh and Ashwin swore at them, and later Krishneel hitting his friend with a spade, and then he been hit with a crowbar. As a result, he said, he was not guilty of murder, but guilty of the lesser offence of manslaughter.

37. As for Saimoni, he appeared to be arguing self-defence. He said, when Krishneel hit him with spade, and the two struggled thereafter, he was merely trying to disarm Krishneel, so that he wouldn't hit him again with the spade. He said, Krishneel was strong, and as a result, punched him several times to disarm him. He denied kicking Krishneel in the head, when he was on the ground. As a result, Saimoni is asking you, as assessors and judges of fact, to find him not guilty of murder, as he was lawfully defending himself, and that his actions did not cause Krishneel's death. Those were the case for both accuseds.

H. ANALYSIS OF THE EVIDENCE

Attempted Robberies and the Murder Allegations

38. It is the prosecution's duty to prove both accuseds' guilt beyond reasonable doubt, and that burden stays with them throughout the trial, and it never shifts to the accuseds, at any stage of the trial. On the attempted robberies charge, the prosecution's case stand or falls, on whether or not you, as assessors and judges of fact, accept the evidence of Rajinesh Chand (PW2); Ashwin Chand (PW3); Kenesi Wati (PW6); Salesi's caution interview statements (Prosecution Exhibit 6A & 6B); Salesi's charge statements [Prosecution Exhibit No. 7A & 7B; Saimoni's caution interview statements [Prosecution Exhibit No. 3A & 3B] and Saimoni's charge statements [Prosecution Exhibit No. 4A & 4B].

39. Rajinesh said, on 4th May 2010, after 5pm, he was sitting in the front passenger seat of Krishneel's car, parked in the driveway to 67 Shalimar Street, Samabula. He said he was approached by a Fijian man, wearing a black T-shirt. Saimoni, in his evidence, confirmed he was the man. Rajinesh said, Saimoni threatened him and forcefully demanded money. He said, he had no money and thereafter Saimoni threw punches at him. He sustained injuries as a result, and this was confirmed by his medical report, tendered as Prosecution Exhibit No. 1. In the report, it was stated he suffered bruises to his forehead, abrasion to his nose, swelling to his right jaw and multiple abrasion to the right side of his back.

40. According to Rajinesh, as Saimoni went for him, a yellow vested Fijian boy went for Ashwin. Salesi, in his evidence, confirmed he was the boy wearing the yellow vest, at the time. Ashwin said, Salesi punched him from the outside. He was sitting behind Rajinesh in Krishneel's car. Ashwin said, Salesi opened the left rear car door, and came inside the car. Rajinesh said, Salesi started to punch the right side of his ribs. Ashwin said, Salesi demanded money from him. He said, he had no money. Salesi then threw multiple punches at Ashwin. Ashwin said, he opened the right rear car door and fled. But Salesi pursued him, and pushed him down on the road. Ashwin said, Salesi kicked him on the side and on his back, and later ran to Krishneel's car again. Ashwin received injuries, which were confirmed by his medical report, tendered as Prosecution Exhibit No. 2.

41. While Saimoni and Salesi were attacking Rajinesh and Ashwin, Kenesi Wati (PW6) was standing in her house, next to the driveway, observing them. She confirmed she saw Saimoni repeatedly punching Rajinesh. She said, she saw Saimoni waved to Salesi and another to join him. She said, she saw Salesi join him, and began to attack Ashwin, in the back seat. She said, while Saimoni was punching Rajinesh, Salesi was punching Ashwin. She said, she saw Ashwin fled from the car.

42. In his police caution interview statement (ie. Questions and Answers Nos. 66 to 72, and 83), Saimoni admitted he demanded money from Rajinesh and punched him, on 4th May 2010. In his charge statement, Saimoni admitted he was looking for money at the time. As for Salesi, in his police caution interview statement (ie. Question and Answer 62), he admitted punching Ashwin to get some money from him. When he was formally charged for attempting to rob Rajinesh and Ashwin on 4th May 2010, at Shalimar Street. Samabula, Salesi admitted the offences.

43. As assessors and judges of fact, you can only rely on the accuseds' alleged confessions in their police caution interview and charge statements, if you are satisfied beyond reasonable doubt and are sure that the accuseds gave their statements voluntarily to the police. If you find evidence that the accuseds were assaulted, threatened or made unfair promises to give their statements, these would negate free will, and you are entitled to disregard these statements. However, if you find the accuseds gave their statements out of their own free will, you are entitled to use them against the accuseds.

44. You have heard different versions on the voluntariness of the accueds' statements from the parties. I don't want to have bore you with the details. Suffice to say that from the police point of view, they said, they did not assault, threaten or made unfair promises to the accueds before, during and after taking their statements. Both accuseds, on the other hand, said exactly the opposite. They said, they were repeatedly assaulted, threatened and made unfair promises before, during and after their statements were taken. The police said, both accuseds gave their statements voluntarily, while the accuseds said exactly the opposite. Consider both accuseds' medical reports, tendered as Prosecution Exhibits Nos. 9A & 9B (Salesi) and 12 (Saimoni). Which version of events to accept is a matter for you.

45. On the whole, the prosecution's evidence on the attempted robbery charges on Rajinesh and Ashwin are pretty solid. This is so, despite the accuseds' denials. All the prosecution's witnesses were sober on the day, while both accuseds were extremely drunk, at the time. However, which version of events to accept on the attempted robbery charges, is a matter for you.

46. On the "murder" charge, the case for the State stands or falls, on whether or not you, as assessors and judges of fact, accept the evidence of Kenesi Wati (PW6); Ashwin Chand (PW3); Meliki Radravu (PW8); Doctor Goundar (PW14), who submitted Krishneel's post-mortem report, Salesi (DW1) and Saimoni (DW2). The scenario you are concerned with is what happened from the time Krishneel parked his car on the driveway to 67 Shalimar Street after 5pm on 4th May 2010, to 6.30pm on the same day, when he was declared dead at CWM Hospital, by Doctor Livai Baleivolivoli (PW19).

47. We have already touched on the evidence concerning the attempted robberies on Rajinesh and Ashwin. Kenesi Wati lived at 65 Shalimar Street, which was next to the driveway of 67 Shalimar Street, where Krishneel parked his car. She said, she at first saw Salesi, Saimoni and another person standing in front of her gate. Krishneel's car was parked on the driveway to 67 Shalimar Street. She saw Krishneel go down the driveway. She saw Rajinesh and Ashwin sitting in Krishneel's car. Saimoni went to talk to Rajinesh. She saw Saimoni punching Rajinesh. She saw Saimoni wave to Salesi to join him. She saw Salesi punch Ashwin. She said, it took about 15 minutes for Saimoni and Salesi to attack the boys. She saw Ashwin flee from the car.

48. She said, she then saw Krishneel, the tenant and an old man walk up the driveway with a fork, spade and crowbar. She said, Krishnel had the spade. The tenant held the crowbar. She said, Krishneel saw Saimoni punching Rajinesh in the front passenger seat of his car. Half of Saimoni's body was in the car, while half was outside. His lower half was outside the car. She said, Krishneel took the spade and hit Saimoni in the back. Ashwin, who was lying on the road at the time, confirmed what Kenesi said. Saimoni and Salesi, in their evidence, confirmed what Kenesi said. Kenesi said, Krishneel tried to hit Saimoni a second time, but Saimoni got hold of the spade, and the two struggled for the control of the spade. Kenesi said, Salesi was with Saimoni. The tenant hit Salesi with the crowbar, dropped the same and fled.

49. Ashwin said, Saimoni and Salesi were both trying to snatch the spade from Krishneel. Meliki Radravu (PW8) confirmed what Ashwin said. Meliki was behind the struggling boys, observing what was happening. According to Meliki, Saimoni and Salesi was trying to take the spade away from Krishneel. According to her, it was a fierce struggle between the three. Meliki said, Saimoni was punching Krishneel. In his evidence, Saimoni said, he was giving Krishneel multiple right hand punches. Meliki said, while Saimoni was punching Krishneel, Salesi was holding the spade. This struggle continued from the driveway to the bottom of Shalimar Street. Meliki said, she saw Krishneel fall to the ground, after being punched by Saimoni and Salesi. Kenesi Wati also confirmed this.

50. Meliki said, Krishneel was motionless when he was on the ground, after he fell. Meliki said, she saw Saimoni kick Krishneel on the head, when he was motionless on the ground. At that time, Salesi was holding the spade. Meliki said, she saw Salesi hit Krishneel in the head more than 5 times. In his evidence, Salesi confirmed hitting Krishneel on the head, but he couldn't recall how many times. Meliki said, she saw Saimoni punching Krishneel on the ground, while Salesi was repeatedly hitting Krishneel's head with the spade. Meliki said, she saw Salesi using both hands on the spade when he hit Krishneel's head. She said, Salesi used the edge of the spade to hit Krishneel's head. Meliki said, she saw Saimoni punching and kicking Krishneel's head, while Salesi was hitting Krishneel's head. She said, she shouted at them to stop assaulting Krishneel, as he might die. Salesi and Saimoni then went towards the short cut to Jittu Estate. Meliki said, Krishneel was lying on the road, head down and was very still.

51. Meliki said, she went down to check on Krishneel. She called him to find out whether or not he was alive. Meliki said, the crowd warned her to flee as Salesi was returning with the spade. Meliki said, she fled to the top of Shalimar Street. She looked back and saw Salesi repeatedly hitting Krishneel on the head with the spade again. She said, she saw Saimoni run back and took Salesi away. In his evidence, Saimoni confirmed this. Afterwards, Salesi and Saimoni returned to Jittu Estate, through the "short cut". Krishneel was lying in a pool of blood. He was later taken to CWM Hospital. He was unconscious. The doctors tried to revive him to no avail. Krishneel was pronounced dead at 6.30pm on 4th May 2010.

52. On 5th May, 2010, a post-mortem was carried out on Krishneel's body. This report was tendered as Prosecution Exhibit No. 5, by Doctor Gounder (PW14). The human body is always a vital piece of evidence in murder cases. Although Krishneel is dead, he "speaks" to you, as assessors and judges of fact, through his injuries. His injuries, as recorded in his post-mortem report, will tell you how he met his death. In the report, 21 external injuries and 8 internal injuries were recorded. When Doctor Goundar was describing these injuries, he confirmed that most of the external injuries to his head were caused by a blunt object, ie. kicks, fists or a hard object. According to Doctor Goundar, the repeated hits to Krishneel's head via kicks, fists or a hard object caused most of the external injuries to his head, which caused massive injuries to his skull and brain. He said, the "k shaped" injuries on Krishneel's head, was caused by a spade.

53. Doctor Goundar said the cause of Krishneel's death was "extensive skull fractures with extensive brain injuries due to blows to the head with a blunt object". Even Doctor Livai Baleivolivoli (PW19) said, when Krishneel arrived in hospital, they were only going through the motion. With his brains severely injured, it was only a matter of time for him to pass away. He did so at 6.30pm on 4th May 2010.

54. In his evidence, Salesi said, he saw Krishneel hit Saimoni with the spade. He saw the two fiercely struggle for control over the spade. He said, he followed the two down Shalimar Street. He said, he went to stop the two, but he was hit with a crowbar. He said, he saw Krishneel and Saimoni lying on the ground. He saw Krishneel stand up and picked the spade to hit Saimoni. He ran and grabbed the spade. Krishneel fell down. According to Salesi, he hit Krishneel to defend Saimoni. Alternatively, he said, he was provoked when he was sworn at and hit with a crowbar, and thus he is not guilty of murder, but manslaughter. Salesi's version of events is somewhat different from the State witnesses. This is a matter for you.

55. As for Saimoni, he said he struggled with Krishneel to defend himself from being hit with the spade. He denied kicking Krishneel in the head. He admitted punching Krishneel in the head, to make him release the spade. He said, he did not intent to kill Krishneel. Again Saimoni's evidence is somewhat different from the other State witnesses. This is again a matter for you.

56. In terms of the elements of murder described in paragraphs 12(i), (ii) and (iii)(a) hereof, as assessors and judges of fact, do you accept the prosecution's version of events that:

(i) both accuseds acted together, when Salesi repeatedly struck Krishneel's head with a spade, while Saimoni was kicking his head, while he lay motionless on the ground, and these actions constituted "wilful acts", as described in paragraph 12(i) hereof; and

(ii) that the accuseds' wilful acts, as described above, caused extensive fractures to Krishneel's skull, which lead to serious brain injuries, causing his death; and

(iii) that at the time the accuseds were committing the above wilful acts, they obviously intended to cause Krishneel's death.

57. On the issue of self-defence, if you think both accuseds were or may be acting in lawful self-defence, they are entitled to be found not guilty of murder. Because the prosecution must prove both accuseds' guilt, it is for the prosecution to prove that both accuseds were not acting in lawful self-defence, not for the accuseds to establish they were, and you must consider the matter of self-defence in the light of the situation which they honestly believed they faced. You must first ask whether they honestly believed that it was necessary to use force to defend themselves at all. This would not be the case if they were the aggressor or knew they did not need to resort to violence.

58. If you are sure that they did not honestly believe that it was necessary to use force to defend themselves, they cannot be acting in lawful self-defence, and you need consider this matter no further. But what if you think that they honestly believe or may honestly have believed, that it was necessary to use force to defence themselves? You must decide whether the type and amount of force they used was reasonable. Obviously, a person who is under attack may react on the spur of the moment, and he cannot be expected to work out exactly how much force he needs to use to defend himself. On the other hand, if he goes over the top and uses force out of all proportion to the attack on him, or more force then is really necessary to defend himself, the force used would not be reasonable. So you must take into account the nature of the attack on the accuseds, and what they did. If you are sure that the force they used was unreasonable, then they cannot be acting in lawful self-defence, but if you think that the force they used was or may have been reasonable, they are entitled to be acquitted.

59. Now, we consider the defence of provocation. If you are sure that the accuseds unlawfully killed Krishneel, intending to kill him, they are guilty of murder, unless you conclude that this may or may have been a case of provocation. Provocation is not a complete defence, leading to a verdict of "not guilty". It is a partial defence, reducing what would otherwise be murder to the lesser offence of manslaughter. Because the prosecution must prove their guilt, its for the prosecution to make you sure that this was not a case of provocation, and not for them to establish that it was.

60. Provocation has a special legal meaning, and you must consider it in the following way. Firstly, you must ask yourselves whether they were provoked in the legal sense at all. A person is provoked if he is caused suddenly and temporarily to lose his self-control by things that have been said or done by a person or other persons, rather than just by his own bad temper. It was claimed by the defence that Rajinesh and Ashwin swore at them, and Krishneel hit Saimoni with the spade, and the tenant hit Salesi with a crowbar. Then they continually struggled for the spade. If you are sure that they were not provoked in that sense, the defence of provocation does not arise, and they are guilty of murder.

61. But if you conclude that they were or might have been provoked, in the sense in which I have explained, you must then go on to weigh up how serious the provocation was for these accuseds. Is there anything about them which may have made what was said or done affect them more than it might affect other people? Finally, having regard to the actual provocation and to your view of how serious that provocation were for the accuseds, you must ask yourselves whether a person having the powers of self-control to be expected of an ordinary sober person, of the accuseds' age and sex, would have been provoked to lose their self-control and do what these accuseds did. If you are sure that such person would not have done so, the prosecution will have disproved provocation, and they are guilty of murder. If, however, you conclude that such person would or might have reacted and done as they did, your verdict would be not guilty of murder, but guilty of manslaughter.

62. As for the "damaging property" charge, Salesi confessed to the same in his caution interview. Please refer to Question and Answer 57 of his caution interview. In his charge statement, Salesi also confessed to the charge.

I. SUMMARY

63. Remember, it is for the prosecution to prove each of the two accuseds' guilt beyond reasonable doubt. It is not for the accuseds to prove their innocence. The burden of proof lies on the prosecution to prove the accuseds' guilt beyond reasonable doubt, and that burden stays with them throughout the trial. If you accept the prosecution's version of events and you are satisfied beyond reasonable doubt and are sure of their guilt, you must find them guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt and are not sure of their guilt, you must find them not guilty as charged.

64. Your possible opinions are as follows:

(i) Count No. 5: Murder: