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State v Vananalagi [2011] FJHC 512; HAC091.2010S (17 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 091 OF 2010S

STATE

1. SEREVI VANANALAGI
2. ROPATE NAISUA
3. SAMUELA RAKOPETA

Counsels: Ms. T. Leweni for the State
Accused No. 1 - In Person
Accused No. 2 - In Person
Accused No. 3 - In Person
Hearings: 2nd to 15th August, 2011
Summing Up: 17th 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 Counsel and the three accuseds have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State counsel, and as accuseds, 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, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. 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.

C. THE INFORMATION

7. There are five counts in the information. In counts Nos. 1 to 4, you must completely ignore Iowane Salacakau's name on the same, because he had been dealt with previously. We are not concerned with him in this trial. In counts Nos. 1 and 2, Serevi and Ropate were jointly charged with "robbery with violence", contrary to section 293(1)(b) of the Penal Code, Chapter 17 (count No. 1), and "unlawful use of a motor vehicle", contrary to section 292 of the Penal code (count No. 2). In counts Nos. 3 and 4, Serevi, Ropate and Samuela were jointly charged with two counts of "robbery with violence". In count No. 5, Serevi was charged with "resisting arrest", contrary to section 247(b) of the Penal Code.

8. On count No. 1, it was alleged that, on 6th January 2010, at Waimanu Road, Samabula, Serevi, Ropate and another robbed Stephen John Paul of $5,960 worth of properties itemized in the charge, and used violence in the process. On count No. 2, after robbing Stephen John Paul, it was alleged that Serevi, Ropate and another, unlawfully used his motor vehicle registration No. DP 748, by fleeing away in the same. On counts Nos. 3 and 4, it was alleged that, on 7th January, 2010, Serevi, Ropate and Samuela, jointly robbed Amit Prasad of Niranjans Walu Bay Service Station of $634.40 worth of properties; and then Sanjiwan Sami of Vivrass Total Service Station of $399 worth of properties, and they used violence in the process. On count No. 5, it was alleged that, on 7th January 2010, Serevi resisted being arrested by police officers Samisoni and Joeli, when they were doing their duties.

D. THE MAIN ISSUES

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

(i) Count No. 1: Did Serevi and Ropate violently rob Stephen John Paul of $5,960 worth of properties, at Waimanu Road, Samabula, on 6th January 2010?

(ii) Count No. 2: Did Serevi and Ropate unlawfully use Stephen John Paul's motor vehicle registration No. DP748, on 6th January 2010, when they fled in the same?

(iii) Count No. 3: Did Serevi, Ropate and Samuela violently rob Amit Prasad of Niranjan Service Station, of $634 worth of properties, at Walu Bay, on 7th January 2010?

(iv) Count No. 4: Did Serevi, Ropate and Samuela violently rob Sanjiwan Sami of Total Service Station, of $399 cash, at Vivrass Plaza, on 7th January, 2010?

(v) Count No. 5: Did Serevi resisted being arrested by police officers Samisoni Madigi and Joeli Rokorasei, at Korovou, Tailevu, on 7th January 2010?

E. THE OFFENCES AND THEIR ELEMENTS

10. For the accuseds to be found guilty of "robbery with violence", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accuseds;

(ii) stole the complainant's properties, and

(iii) used violence on him, to effect the above theft.

Stealing is the act of taking someone's property without his permission, and with an intention to permanently deprive him of that property. Violence means any type of violence, and include threats of violence. Violence could mean forcefully threatening someone with a pinch bar, on the one hand, to striking someone with a cane knife, pinch bar or other weapon, on the other hand. The motive behind the violence, or threat of violence, is to effect the theft of the complainant's property.

11. For the accuseds to be found guilty of "unlawful use of a motor vehicle," the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accuseds

(ii) drove away

(iii) in the complainant's motor vehicle

(iv) without his permission

12. For Serevi to be found guilty of "resisting arrest", the prosecution must prove beyond reasonable doubt, the following elements:

(i) Serevi

(ii) resisted, or

(iii) willfully obstructed

(iv) any police officer

(v) in the due execution of his duty.

The word "resist" means "to refuse to accept something and try to stop it from happening", or "to use force to stop something from happening".

13. You will have noticed in the information, that the prosecution, in their particulars of offence, on counts No. 1 and 2, uses the phrase, "...SEREVI VANANALAGI, ROPATE NAISUA AND IOWANE SALACAKAU ..." On counts No. 3 and 4, the prosecution, in their particulars of offence, uses the phrase, "SEREVI VANANANLAGI, ROPATE NAISUA, IOWANE SALACAKAU AND SAMUELA RAKOPETA..." The prosecution is alleging that the accuseds committed the above offences, as a group. As a matter of law, I must direct you that when two or more people form a common intention to commit a crime, and in committing the crime, each of them performed different roles, they are all deemed, in law, to have committed the crime, that is, the offence. It matters not, whether or not one committed a minor role or major role, they are each deemed to have committed the offence. This is because each of them helped and encouraged each other to commit the offences.

14. Furthermore, in this case, there are three accuseds on trial. 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 accuseds separately, and come to a separate considered decision on each of them. Just because they are jointly charged does not mean that they must all be guilty or not guilty. Most evidence in this case are admissible against all accuseds. However, regarding their police caution interview 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 person's police caution interview and charge statements, you must totally disregard what the accused said about his co-accuseds on the commission of the offences. You can only take into account what he said about himself, regarding his role in the commission of the crime.

F. THE PROSECUTION'S CASE

15. The prosecution's case were as follows. On 6th January 2010, Stephen John Paul was at his home, at 437 Waimanu Road. At about 9pm, he was busy with his lap top computer in his sitting room. Suddenly, Serevi (accused No. 1), Ropate (accused No. 2) and another broke into his house. They threatened Stephen with a pinch bar, and warned him not to resist. They tied Stephen up with electrical cords, and ransacked his house. They stole Stephen's properties as itemized in count No. 1. Before leaving his house, they took Stephen's car keys.

16. They started his dark blue Subaru vehicle, registration No. DP 748, which was parked outside. They drove away in the same, without Stephen's permission. They shared the properties they stole from Stephen. On the next day, the 7th January 2010, Serevi, Ropate and another were driving around Lami in Stephen's car. Samuela (accused No. 3) joined them. He sat with another in the backseat, while Ropate sat in the front passenger seat, and Serevi did the driving. The accuseds drove through Walu Bay towards Suva.

17. They decided to rob Niranjan's Service Station. Mr. Amit Prasad, a bowser attendant, was at that time manning the counter. Serevi drove DP 748 to the front door of the Service Station. Ropate, Samuela and another jumped out of the car, and took their positions. Ropate and another went into the Service Station, threatened Mr. Prasad with a pinch bar, and stole the properties itemized in count No. 3. They later fled in DP 748 Subaru motor vehicle. They went up Edinburgh Drive, up Princes Road, then Mead Road and then to the Bailey Bridge.

18. The accuseds then decided to rob the Vivrass Total Service Station. At that time, Sanjiwan Sami, was working as a cashier, at the Service Station. Serevi drove the blue Subaru to the Service Station. Ropate, Samuela and another jumped out the car. They took their positions. Ropate and another went into the shop, threatened Sanjiwan Sami with a pinch bar, and stole $399 cash. They later fled in the blue Subaru. They went to Sawani to share the loot, then they went through Nausori towards Korovou, Tailevu. At Korovou town, the accused failed to stop when requested by traffic police officers.

19. The accuseds were pursued by police to Waitoa Settlement. At Waitoa, the accuseds' vehicle DP 748 ran off the road. They fled the scene thereafter. Ropate, Samuela and another fled into the bush. Serevi fled on the road and boarded a bus towards Korovou. He was stopped by the police, however, he resisted being arrested. Serevi was later taken to Korovou Police Station and locked in the cell. Ropate and Samuela were later captured by the police and locked at Korovou Police Station cell. They were later taken to Samabula Police Station. They were each caution interviewed by police. All three accuseds confessed to the crimes alleged against them. According to the police, they voluntarily confessed to the crimes, and as assessors and judges of fact, they are asking you, to find them guilty as charged. That was the case for the prosecution.

G. THE ACCUSEDS' CASES
20. On 8th August 2011, the first day of the trial proper, Serevi pleaded not guilty to counts No. 1 to 5; Ropate pleaded not guilty to counts No. 1 to 4; and Samuela pleaded not guilty to counts No. 3 and 4. In other words, the accuseds denied the allegations against them.

21. When Serevi was called upon to make his defence, he choose to address the court and give sworn evidence. He said, he will not call any witness. In his address to the court, he said, he did not commit the offences and knew nothing about them. Regarding his alleged confessions to the police, he said, the police repeatedly assaulted and threatened him. He said, because of the assaults and threats, he was forced to admit the offences and sign his police caution interview statements. He said, he didn't give his statements voluntarily, and asks you, as assessors and judges of fact, to strike out his alleged confessions, and find him not guilty as charged on all counts. That was Serevi's case.

22. As for Ropate, he choose to address the court, give sworn evidence and call his de facto wife as a witness. In his address to the court, Ropate said, he did not commit the offences, and he was at home, with his de facto wife, at the material time. He said, none of the prosecution witnesses saw him committing the offences. He said, you should not rely on the dock identification. He said, he gave his caution interview statements to the police under duress. He said, he was repeatedly assaulted, and as a result, his caution interview statements were not given voluntarily. He said, the police beat the sole of his feet repeatedly to admit the offence. In his sworn evidence, Ropate repeated the above. He said, he was punched on the mouth, beaten on the sole of his feet and sprayed in the eyes, at Samabula Police Station. He said, he was a home on 6th January 2010 until 2.30pm on 7th January 2010. His de facto wife gave evidence. She confirmed what the accused said above. Ropate asks you, as assessors and judges of fact, to strike out his alleged confession and find him not guilty as charged, on all counts. That was the case for Ropate.

23. Samuela choose to address the court, give sworn evidence and called a witness. In his address to the court, Samuela said the only evidence against him was his alleged confession. However, he said he was repeatedly assaulted and threatened by the police to confess, thus his caution interview statements were not voluntary. He said, the prosecution did not provide any witness to identify him committing the offences. In his sworn evidence, Samuela said, he was repeatedly assaulted and threatened by police officers to admit the offences. He said, he was repeatedly punched in the head and the back of his ear. His eyes were sprayed, and the soles of his feet were beaten. He was kicked in the chest, and he fell on the floor. He said, the police threatened to take him to the military camp. He said, as a result of the assaults and threats, he confessed to the police. He called a witness, but that witness did not take his case any further. He asks you, as assessors and judges of fact, to strike out his alleged confession and find him not guilty as charged, on counts No. 3 and 4. That was the case for Samuela.

H. ANALYSIS OF THE EVIDENCE

24. During their closing submissions, State counsel and the three accuseds seemed to agree that, if accepted, the only compelling evidence against all the accuseds were their alleged confessions in their police caution interview or charge statements. Before we discuss the deciding issue of the voluntariness of the accuseds' alleged confessions, we will refer to the question and answers in their caution interview or charge statements, in which each of them allegedly admitted the offences. This is so, because during cross-examination of State witnesses, and after closing submissions, the accuseds did not question the statement themselves, but questioned the methods used in getting those statements. After dealing with the above, we will then deal with the issue of the voluntariness of the accuseds' alleged confessions.

Serevi Vananalagi's (Accused No. 1) Police Caution Interview Statements
Prosecution Exhibits No. 2(a) & 2(b):

Count No. 1: Robbery with Violence

25. Questions and Answers 14 to 38: The allegation in count No. 1 was put to Serevi. He admitted he was involved. Serevi described how he and others picked out Stephen John Paul's home at 437 Waimanu Road. He described how they broke into Stephen's home, how they threatened him, how they tied him up, how they ransacked his house and what properties they stole. Questions and Answers 42 to 50: Serevi described his share of the loot, and the properties stolen from Stephen's house.

Count No. 2: Unlawful Use of a Motor Vehicle

26. Questions and Answers 14 to 16: The allegation in count No. 2 was put to Serevi. He admitted he was involved. Questions and Answers 39 to 41: Serevi admitted he drove Stephen's vehicle out of his compound, without his permission. He admitted two others were passengers in the car. Questions and Answers 57 to 58: Serevi admitted driving Stephen's blue Subaru car.

Count No. 3: Robbery with Violence

27. Questions and Answers 59 to 64: Serevi described how he and three others decided to rob the Niranjan Service Station at Walu Bay. He said, he drove the Subaru blue car in front of the door to the Service Station shop. The three people in the car got off and assumed their positions. One stood near the car, while two went into the shop. The two later came back with the shop's cash register. They got into the car and fled up Edinburgh Drive, Princes Road, down Mead Road and followed the back road to Bailey Bridge.

Count No. 4: Robbery with Violence

28. Questions and Answers 65 to 69: Serevi described how he later drove the blue Subaru car to the Total Service Station at Vivrass Plaza. He parked near the Service Station shop. The three in the car got out and assumed their positions. One stood near the car, and two went into the shop. Later the two came out with the shop's cash register. They fled in the Subaru car. Serevi drove the car along Ratu Dovi Road, up Kinoya Road, up Khalsa Road, along Princes Road and to Sawani. Serevi described how they shared the loot and drove through Nausori towards Korovou, Tailevu.

Count No. 5: Resisting Arrest

29. Questions and Answers 70 to 74: Serevi described how they wanted to rob some more shops along Kings Road towards Korovou. However, he said, they were chased by police to a village. They fled. He said, he fled along the main road while the others fled down a cliff. He said, he boarded a bus coming to Suva. He admitted, the police stopped the bus, arrested him, and took him to the Korovou Police Station. In their evidence, police officers Samisoni (PW5) and Joeli (PW4) said, Serevi resisted arrest by refusing to get out of the bus and wanting to escape from them.

Ropate Naisua's (Accused No. 2) Police Caution Interview Statements
Prosecution Exhibit No. 1(a) and 1(b)

Count 1: Robbery with Violence

30. Questions and Answers 9, 10, 20 to 50: The allegation was put to Ropate and he said he understood it. Ropate described how he met two others, and they decided to break into and rob the occupant of 437 Waimanu Road. He described how they armed themselves with a pinch bar, went to 437 Waimanu Road and broke into the house. They threatened Stephen John Paul with the pinch bar, tied him up, ransacked his house and stole the properties mentioned the charge. Questions and Answers 56 to 61: Ropate described the items they stole from Mr. Stephen. Questions and Answers 63 to 67, 89: Ropate described how they shared the stolen loot.

Count No. 2: Unlawful Use of Motor Vehicle

31. Questions and Answers 51 to 53: Ropate described how he and two others fled in Stephen John Paul's blue Subaru car, after violently robbing him. Ropate said another person drove the car, while he sat in the front passenger seat.

Count No. 3: Robbery with Violence

32. Questions and Answers 71 to 75: Ropate described how he and three others robbed the Niranjan Service Station at Walu Bay. He said, they drove to the Service Station shop. One waited in the car, while one stood at the main door. He said, he and another went into the shop. Ropate described how he threatened the cashier with a pinch bar and he stole the cash box, went out of the shop, and they fled the scene in the Subaru blue car. They went up Edinburgh Drive, up Princes Road, down Mead Road and onto Ratu Dovi Road.

Count No. 4: Robbery with Violence

33. Questions and Answers 76 to 84: On arriving at Ratu Dovi Road, Ropate described how he and three others decided to rob the Total Service Station at Vivrass Plaza. Ropate said, they drove the car to the front door of the Service Station shop. The others assumed their positions. Ropate described how he ran into the shop with a pinch bar and threatened the cashier to give him all the money. Ropate described how he stole the cash register, went outside, and they all fled in the car. They went up Kinoya Road, Khalsa Road and towards Sawani. They shared the loot at Sawani, and then went through Nausori towards Korovou, Tailevu.

Samuela Rakopeta's (Accused No. 3) Police Caution Interview Statements
Prosecution Exhibit No. 3(a) & 3(b):

Count No. 3: Robbery with Violence

34. Questions and Answers 6, 31 to 43: The allegation was put to Samuela and he said he understood it. Samuela described how he joined three others travelling around in a blue Subaru car on 7th January 2010. He said, he went with the three to Niranjans Service Station at Walu Bay. He said, two of the boys in the car went into the Service Station shop with a pinch bar. Later they came out with a small safe. Samuela said, they gave the safe to him and he put it in the car. They later fled the scene. They drove up Edinburgh Drive, up Princes Road, down Mead Road and then to the Bailey Bridge.

Count No. 4: Robbery with Violence

35. Questions and Answers 44 to 50: Samuela described how he and three others drove to the Total Service Station at Vivrass Plaza. Two of the occupants of the car got out with a pinch bar and went into the shop. One of them threatened the cashier, and they walked out with the till. Samuela said, they gave him the till, and they fled in the car. Questions and Answers 60 to 63: They drove to Sawani, where they broke open the till and shared the money. Samuela said, they gave him the till and he threw it into the Sawani River. Samuela said, they later drove through Nausori towards Korovou in Tailevu.

Samuela Rakopeta's Charge Statement; Prosecution Exhibit No. 6

36. Samuela was formally charged with count No. 3 and 4 on 9th January 2010. The particulars of offence in count No. 3 and 4 in the information were formally put to Samuela, at the time he was formally charged. He said, he understood the charge when it was read to him. He said, he wished to make a statement. In his statement, Samuela admitted committing the offences in count no. 3 and 4. He said, he was sorry and asked for forgiveness.

37. Paragraphs 25 to 36 abovementioned summarizes the three accuseds' alleged confessions to the charges they faced. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, before you can accept a confession, you must be satisfied beyond reasonable that it was given voluntarily by its maker. The prosecution must satisfy you beyond reasonable doubt that the accused gave his statements voluntarily, that is, he gave his statements out of his own free will. Evidence that the accused had been assaulted, threatened or unfairly induced into giving those statements, will negate free will, and as judges of fact, you are entitled to disregard them. However, if you are satisfied beyond reasonable doubt, so that you are sure, that the accused gave those statements voluntarily, as judges of fact, you are entitled to rely on them against the accused.

Did the three accuseds give their caution interview and/or charge statements voluntarily?

38. On the above issue, the parties' versions of events differ widely. As is often customary when it comes to deciding the voluntariness of the accuseds' caution interview and charge statements, the accuseds said they were assaulted and threatened to admit to the offences, while the police witnesses said exactly the opposite. The police witnesses said they did not assault or threaten the accuseds to admit to the offences. The police witnesses said, the accuseds gave their statements voluntarily and out of their own free will.

39. On 7th January, 2010, SC 906 Joeli Rokorasei and Corporal 2243 Samisoni Madigi were doing police traffic duties at Namalata. According to the two police officers a blue Subaru, registration No. DP 748 sped past them. Despite being ordered to stop, they sped away. Joeli recognized Serevi and Ropate in the front seats of the car. With the aid of a private vehicle, the two officers pursued DP 748 to Korovou town, and then to Waito. At Waito, the two and others fled into the bush. Serevi hopped on a bus to Suva, but was later arrested by the officers. In the course of his arrest, he resisted the same by trying to free himself and escape. In any event, Serevi was later brought to Korovou Police Station, and then to Samabula Police Station.

40. At Samabula Police Station, Serevi was caution interviewed the same day, from 7.45pm to 9.05pm. DC 3476 Sukulu Colati caution interviewed him. Serevi was given his dinner and his rights to counsel etc. before the interview. He was also given the standard caution. 24 questions and answers were given before the interview concluded for the day.

41. As for Samuela, he was recaptured by the villagers at Waito and handed to the police on 7th January 2010. He was later locked at the Korovou Police Station, and then taken to Samabula Police Station. Ropate was captured at Waito in the early hours of 8th January 2010, at 1am. He was handed over to the police, and escorted to Korovou Police Station. He was later conveyed to Samabula Police Station.

42. On 8th January 2010, from 10.10am to 4.40pm, Samuela was caution interviewed by DC 3761 Jone Veitaqomaki. 84 questions and answers were given. Samuela was given his right to counsel and was formally cautioned before the interview. He said, he has had his breakfast and was ready to be interviewed. He was given a 4 hours break, after 12.50pm. At the end of his interview, he said, no force or threats were made on him to give his statements (see Questions and Answers 80 and 81).

43. On 8th January, 2010, from 11.50am to 6.55pm, Serevi's caution interview continued. 40 questions and answers were given. Serevi was again formally cautioned. He said, he has had his breakfast. He was given the normal meal and rest breaks during the interview. At the end of the interview, Serevi said he gave his answers out of his own free will, and he was not threatened by the police (see Questions and Answers 78 and 79).

44. From 5.30pm to 7.32pm, on 8th January 2010, Ropate was caution interviewed by DC 2991 Clint, at Samabula Police Station. At the beginning of the interview, he was given his right to counsel and other rights. He was allowed to contact his mother by phone. He was formally cautioned. The allegations was put to him. 53 questions and answers were given, before he had his dinner and rested. On 9th January 2010, Ropate's interview continued from 9.35am to 1.20pm. Before the interview, he confirmed he had his breakfast. He was formally cautioned again. 43 questions and answers were given. At the end of the interview, Ropate said he gave his answers out of his own free will, and he wasn't forced or threatened by the police (see Questions and Answers 94 and 95).

45. On 8th January, 2010, Serevi was formally charged. He made no statements. On 9th January, 2010, Ropate and Samuela were formally charged. Ropate made no statements, while Samuela did make a statement. In his charge statement, Samuela admitted committing the offences for which he was charged with. He said, he was sorry and asked for forgiveness.

46. All the accuseds were medically examined by Doctor James Danford at Samabula Health Centre on 11th January 2010, at 8.30am. Serevi complained that police punched him in the head and hit his soles with a baton. The doctor found tenderness on his scalp and both soles. Ropate complained that police punched him on the mouth and hit the soles of his feet with a police baton. The doctor found an infected laceration with bruise on his right inner lip, and tenderness on his soles. Samuela's complaint was similar to Serevi's. The doctor found a 1 cm skin deep cut on his left sole, tenderness on his soles, bruise on his breast and tender swelling over the right temporal area and behind the right ear.

47. All the accuseds were produced in the Suva Magistrate Court on 11th January 2010. None of them complained to the Magistrate of any police assaults or threats when they were in police custody. When the three accuseds first appeared in the High Court on 7th May 2010, none of them complained to the High Court of any police assaults or threats while they were in police custody. All the police officers who formally arrested, conveyed the accuseds from Waito to Korovou Police Station, from there to Samabula Police Station, who caution interviewed and formally charged them, who escorted them to Samabula Health Centre said, they didn't assault, threaten or made promises to the accuseds while they were in their custody.

48. The accuseds said exactly the opposite when they gave their evidence, and when they made their closing submissions. Serevi, in his closing address said, the police repeatedly assaulted him and threatened him to admit the offence. He said, because of the assaults and threats, he admitted the offences, and signed the caution interview statements. When cross-examined, he said he was assaulted while on transit from Korovou Police Station to Samabula Police Station. He said, he was punched about 20 times in the ribs. He said, they were hard punches. He said, while being interviewed, he was punched 18 times. However, when he complained to Doctor Danford, on 11th January 2010, he said he was only punched in the head and hit on the soles. He never complained to the doctor on the above alleged assaults. As to the injuries he allegedly suffered, there was none. There were only alleged tenderness around the scalp and soles. Please, refer to Prosecution Exhibit No. 7 (Serevi's Medical Report).

49. Ropate, in his closing submission, said the police punched him in the mouth and beat the soles of his feet. He said, his caution interview statements were forced out of him. He said, he gave his statements under duress. He said, he was at home, at the time of the offence. He repeated the above when he gave evidence on oath. Please, refer to Prosecution Exhibit No. 8 (Ropate's medical report). When cross- examined by the Prosecution, he admitted writing to the court in challenging his alleged confession, that he was sprayed in the eyes, anus and the scrotums. He also admitted that he told the court that he was punched in the chest, ribs and head by the police. He admitted, he also told the court the police stomped on him, when he fell to the ground. He admitted he didn't tell the above to the doctor in D(10) of his medical report. He also admitted he didn't complain to the Magistrate Court or the High Court about any police assaults or threats, when he first appeared in those courts. He said, he was at home, at the time of the offence. He called his de facto- wife to confirm the above.

50. Samuela, in his closing submission said, he was assaulted and threatened by police to admit to the offences. He said, his charge statements were incorrect. He said, no- one saw him commit the offence. In his evidence, Samuela said the police repeatedly assaulted him, and threatened to take him to the military camp, if he didn't admit to the offences. He said, he was sprayed in the eyes. He said, he was punched on the head, and on the back of his ear. He said, the police beat the soles of his feet. He said, he was kicked in the chest and he fell on the floor. When cross- examined, Samuela said he was not assaulted at Korovou Police Station, and when taken therefrom to Samabula Police Station. However, he admitted writing to court stating that he was assaulted at Korovou Police Station. He also admitted he didn't tell Doctor Danford in D(10) of his medical report, some of what he is saying above. Please, refer to his medical report in Prosecution Exhibit No. 9. He admitted, he didn't complain to the Magistrate Court or the High Court of any police assaults or threats, when he first appeared in those courts. He maintained he was assaulted by police to confess. He called a witness, who did not advance his case any further.

51. You have heard the differing version of events between the prosecution and the defence, on the issue of whether or not the accuseds' alleged confessions were given voluntarily. On which version of events you will accept, as assessors and judges of facts, will be a matter for you.

52. You have heard all the prosecution and defence witnesses, in this matter. You have observed them give evidence in the courtroom. You have observed their behavior in the courtroom – were they well mannered or otherwise? Were they evasive while giving evidence? Were they argumentative, while giving evidence? How did they dress to court? Given the above, my direction on the law, your life experiences and common sense, you should be able to decide which witness's evidence, or part of his evidence you consider reliable, and therefore to accept, and which witness's evidence or part of his evidence, you consider unreliable, and therefore to reject in your deliberation.

I. SUMMARY

53. Remember, it is for the prosecution to prove each of the three 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.

54. Your possible opinions are as follows:

(i) Count No. 1: Robbery with Violence