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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION
Criminal Case No. HAC 32 of 2015
STATE
V
SIUTA SERU
1ST ACCUSED
ASAELI RABOLECA
2ND ACCUSED
Counsels: Mr. L. Fotofili for the State
Mr. A. Paka (L.A.C.) for 1st Accused
Mr. I. Rakaria (L.A.C.) for 2nd Accused
Dates of Hearing : 8, 9, 12-16 September 2016
Date of Summing Up : 16 September 2016
SUMMING UP
Madam and Sir:
[1] The time has now come for me to sum up this case for you. My duty in summing up is two fold. I will direct you on the applicable law and you must accept what I say about the law. I will sum up the evidence for you but you don’t have to accept what I say about the evidence or Facts as we call it. That is because you are my advisors and you will assess the evidence and after applying the law to that evidence you will tell me in your opinion whether each of these accused is guilty or not guilty of the charges they face. I don’t have to follow your opinions, but I will give them great weight when I come to the make the final judgment of the Court.
[2] You must judge this case solely on the evidence that has been placed before you in this Courtroom and on nothing else. Evidence consists of the oral testimony of all witnesses, together with all documents, and photographs if you think they assist you. You may accept the evidence or reject it. You may also accept part of a witness’ evidence or part of a document and reject the rest. It is entirely a matter for you. You will not consider as evidence anything that someone has told you outside or anything that you may have read or seen in the media. You may have heard me in the course of the trial express an opinion or make a remark about the evidence. You must ignore that completely and come to your own views about the evidence placed before you
[3] Please do not be influenced by any sympathy or prejudice you may feel towards anybody connected with the trial; it is your duty to come to your opinions solely on the facts as you find them in accordance with my directions on the law.
[4] There are two accused before you and there are three counts or charges. The first accused faces all three charges and the second accused faces only the third robbery charge.
[5] It is important that you look at each of the three charges against the first accused separately. They are each quite distinct crimes and the evidence is different on each. Just because you might be sure that he committed one of the crimes does not necessarily mean that he committed any one of the other two. Similarly for a finding of not guilty. Look at each offence separately before deciding if you are sure that he committed that offence.
[6] Now in the same way you must look at each accused separately in respect of the third charge. If you think one is guilty of robbery, it doesn’t mean that the other accused is. I recommend that when you are deliberating you might want to look at the three charges against the first accused using the principle of separation of charges and then look at the case against the second accused quite separately after you have considered the case against the first accused.
[7] The first accused has been charged with murder. I am sure that you all know what murder is – that is the unlawful taking of another’s life, but in law there is a little more to it than that.
[8] Murder is proved when it is shown to you so that you are sure that the person accused did something that caused the death of another person and the accused person intended to cause that death or was reckless as to causing the death of that person.
[9] Therefore in order to summarize the steps involved; you must find so that you are sure:
[10] The second charge that the first accused is facing is one of attempted arson. For the purposes of this trial, arson is setting fire willfully and unlawfully to a building. Attempt is to do something which is more than preparatory to do the act and where the act does not happen. What that means is this: if you find that this first accused did something more than just preparation to set fire to Babu Ram’s house and that the house didn’t burn down, then it is an attempt to arson. We know that the house didn’t burn down so it is for you to decide whether what he did was more than preparation or not. If it was not, then you must find him not guilty. If however you find that he did everything he could to make the house burn but he didn’t succeed then you will find him guilty.
[11] That sounds complicated but I will try to simplify it by giving you an example. Mr. X decides to kill Mr. Y by strangling him with a rope. He buys the rope and he invites Mr. Y around for drinks which is the time he thinks he will kill him. Now all of that is preparatory and at this stage there can be no crime of attempted murder.
[12] Mr. Y comes around for the drinks and Mr. X pours him a few strong ones to try to sedate him. He then gets the rope out and starts pulling it around Mr. Y’s neck. Now this is more than preparatory. He is doing acts which may well result in Mr. Y’s death. Mr. Y unbeknowns to Mr. X is a trained wrestler and is able to defend himself from Mr. X’s actions. He doesn’t die but it is an attempted murder because Mr. X has committed acts more than preparation for the offence.
[13] The third count faced by both accused is aggravated robbery. I will tell you about the law of aggravated robbery in two steps. First I will define robbery for you, then I will tell you what aggravated means in law.
[14] Robbery is theft and at the time of the theft, the victim is under force or under threat of force to surrender the property.
[15] An example of that is if at the BSP Bank here in Labasa, Mr. Paka withdraws $1,000 for his weekend entertainment and on leaving the Bank he is pushed against the wall and a knife put to his throat and the money taken from him, then that is robbery. Money taken using force.
[16] A robbery becomes aggravated when it is committed by more than one person or the robber has an offensive weapon with him.
[17] The robbery charge against both accused is invoking a legal principle which we call joint enterprise. In Fiji the law is that if two people are acting together unlawfully with one agreed purpose it doesn’t matter what part each plays but they are both responsible for any criminal offence that is committed in consequence of their actions.
[18] Now what the State is saying in this case is that the two accused acted together with the intention of robbing Babu Ram, and with that intention in mind went to his house to get money. Each of the accused gives a different reason for getting the money but the reason is not really important. If there is an agreement to steal money and money is stolen by both or either of them and if force is used, then they are both guilty of aggravated robbery.
[19] That is all that I wish to say about the Law at this stage. I will turn now to the evidence and summarize it for you. First
the prosecution evidence and then the defence evidence.
Prosecution Case
[20] The evidence in the prosecution case falls into three broad categories. There is direct evidence, a large amount of circumstantial evidence and Police evidence. You should approach these three types of evidence in different ways and I will explain that to you as we go along.
[21] First the State produced into evidence a list of facts that had been agreed by all the parties. (Exhibit P.1). These are facts then that you must accept as true and correct when deciding on this case. Any other facts are for you and only you to decide.
[22] A large part of the State’s case is founded on what we call circumstantial evidence. That is evidence, while not direct such as witnessed or heard, is evidence that the circumstances would lead you to make certain inferences.
[23] Circumstantial evidence can be powerful evidence, indeed, it can be as powerful as, or even more powerful than, direct evidence, but it is important that you examine it with care — as with all evidence — and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt, or whether on the other hand it reveals any other circumstances which are or may be of sufficient reliability and strength to cast doubt upon or destroy the prosecution case.
[24] Finally, you should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing, or making up theories without good evidence to support them, and neither the prosecution, the defence, nor you should do that.
[25] We heard from the deceased’s son who gave us background to the deceased and to his living circumstances. He described the house and told us that he kept fuel in the house (pre-mix) in one of the rooms that was used as a store room. It was kept in plastic gallon containers. Before he died on 19 August 2012 Babu Ram and his wife had just been to Labasa to stay with his son and when here he had sold two goats for which he got $500. He had another $200 with him so when he went back to his house on the 16th four days before he died he had that $700 with him.
[26] We heard from a witness who had loaned his brown horse to another and then finally and reluctantly agreed that he had told Police that at the time of the murder the first accused had possession of the horse. Another witness from Koroinasolo told us that when he was out walking with his wife on August 19, 2012, he saw horse tracks going towards Naqilimoto. He did not see any people nor any horse riders. You might not think that this evidence is very helpful.
[27] Another villager from Koroinasolo told us that he visited Babu Ram to buy tobacco on the 17th August. At the time Babu Ram told him to tell Pita Dabobo to come to his house and buy tobacco at any time. The villager who was related to Dabobo passed the message on. This evidence was mystifying at the time but now that we have heard the whole case you might think it is circumstantial evidence supporting Pita Dabobo’s evidence that he went there on the morning of the 19th to buy tobacco. It’s a matter for you.
[28] Meli Bulitogalevu was an important witness. At least I think he was important; you may not agree. He is closely connected with the first accused Seru as they grew up together and he regarded Seru as his brother. He told us that the sickness of his child was weighing on him and he was sure that it was caused by the “wrong things he knows”. He elaborated to us the “wrong things”.
[29] He said that on the night before Babu Ram died he was drinking grog with the first accused and a few others in Cubue. They drank grog until about 1am and then they drank rum as a “wash-down”. They continued drinking the rum (including the first accused) until about 5am when the drinking session broke up and he, the witness went home. At that time he saw Seru riding Kaminieli’s brown horse and carrying a cane knife.
[30] The next morning he saw Seru again at about 10am lying down at Vilikesa’s house. He was not wearing shoes and his legs were covered with what appeared to be red mud or soil. By then Meli had heard rumours of what had happened at Naqilimoto from an Indian boy and the state of Seru concerned him, so he told Seru to go and wash his legs. Seru did wash his legs then went to breakfast.
[31] Later he heard from Seru what had happened at Naqilimoto. He had gone there with Asaeli. They had gone to the old man there, tied him up and asked him about money he kept there. While this was going on, Pita Dabobo arrived. Asaeli went out to Pita Dabobo and Seru stayed inside trying to subdue the old man. Babu Ram struggled and was able to free himself. He tried to reach for his gun. Seru knew that Babu would use his gun and for that reason he (Seru) used the cane knife to chop him. They then returned to Cubue. Meli said that the Asaeli that Seru was talking about was the second accused.
[32] Meli didn’t tell anybody about this in 2012 and he believes it was for that reason that his son got sick. He did at one time tell the story to Pita Dabobo who is his uncle and who was the first suspect in this case. He and Pita were both being held in custody at the Labasa remand centre. Pita was a suspect for this case and Meli was being held as a suspect in a minor sexual offence case.
[33] Pita, quite understandably reported this information to the authorities and Meli’s Police statement was taken from him in May 2013.
[34] The next witness was another “confession” witness Mr. Marika Sau. Again I think he is important but it is for you to decide how important he is.
[35] Marika told us that he is a religious worker praying for people and doing evangelical work. He was originally from Navunievu in Bua but in June 2013 was living in Nakasi near Suva. He knows Seru and Seru came to stay with him for a few months in 2013. Marika helped him to find a job as a security man. He and Seru were close. They had grown up together in Bua. They talked often and Marika would pray for him.
[36] One day very late at night Seru came to him and asked if they could talk. He told him about the events in Naqilimoto. Marika had already heard from relatives about this killing. Seru said that he knows about the murder so Marika told him to tell the story from beginning to end. Seru told him the following:
[37] “Asaeli had come to him one day asking for help to pay a fine. They talked and they went to Babu’s house. He went on a horse. Babu was having breakfast. They went in, threatened him with the knife, tied him up and then looked for money. They found $500. During this time they saw Pita Dabobo approaching. Asaeli brandished the knife towards Pita. There was silence inside the house. He went out on to the verandah and he saw blood. He saw benzene inside the house so he burnt the house and ran outside. Asaeli was waiting for him on the roadside.”
[38] Marika reassured him and prayed for him.
[39] The next morning the Police called looking for Seru.
[40] Kamal Singh was a close friend of Babu Ram. He met him nearly every day and would stay with him helping him to look after the cattle. On the day Babu died Kamal was staying there but went at 6.15 in the morning to the nearby house belonging to Mothi. He was looking after the house while Mothi was away in Suva. When he got there he cooked food for Mothi’s dogs and fed them and he fed the chickens. He was about to close up and leave when he saw Pita Dabobo approaching calling “Mothi Mothi”. Kamal told him that Mothi was away and asked him what was wrong.
[41] Pita said that he had gone to Babu’s house and was approaching calling “Tamana” Tamana” .when he saw a masked person holding a knife who chased Pita away.
[42] Kamal and Pita armed themselves and decided to go and investigate. They were too scared to go into the house but peered through the louvres. They saw a body lying in a pool of blood in the sitting room.
[43] Pita then went by fast horse to report the matter to the relatives in Vatubogi. Kamal went back to Mothi’s house where there was a phone. He was able to get a message through to Suva to tell Mothi what had happened
[44] Kamal said that Babu kept fuel in his house and also that Babu was well known for selling raw tobacco from his house.
[45] Apart from the evidence of Pita Dabobo and the evidence of the two doctors, the rest of the prosecution was taken up by evidence from the Police.
[46] We heard from the very senior Lady Officer Margaret Marshall who was in the Police party first attending to the scene. She took us through the photographs and she told us that although fingerprints were lifted they were not suitable for analysis and therefore no assistance to either the prosecution or the defence.
[47] We then heard from officers who arrested and interviewed each of these two, the first accused by Viliame Nagatalevu and the second accused interviewed by Tavita Savou. The records of interview were produced and read in evidence. You have them before you. In addition there was produced the record of the formal charge put to the first accused by Elia Woqosoqo and the accused’s response to that charge.
[48] I want to take some time now to tell you how you should treat these interviews and their records.
[49] As you are aware, both accused have made allegations of assaults and threats which forced them to sign the records. Our Constitution states that nobody should be forced to incriminate themselves; so if you think that the allegations of Police abuse made by each of the accused are true or may be true then you are to disregard the interviews and judge the case on the remaining evidence. If however you don’t believe the allegations of assault by punches, or threats then you are to look at the interviews as evidence in the normal way and give that evidence the weight you think it deserves.
[50] Remember to look at the case of each of the accused separately. Both accused say that none of the answers are theirs; the interviews were fabricated by the Police and they were forced to sign because of the assaults on them. So in the case of either of the accused, if you think he is telling the truth then you must discard that interviews and not rely on those records as evidence. If you don’t believe them about the assaults then you must take a second step. You will decide whether the Police have fabricated the answers or not. If you think they have, then you will discard the interview; if you think that the answers in each case are the answers of that particular accused then you must decide if it is true or not. If not fabricated and true than you can use it as evidence
[51] So to use a record of interview against an accused you must be satisfied so that you are sure that
[52] In addition to these interviews under caution, you have the answer of the first accused to his formal charge and you are to treat that in the same manner as you treat the caution interview. If he was assaulted then ignore it. If he wasn’t assaulted then decide if he said it or the Police made it up. If he said it, decide whether it is true. If it’s true you may use it in evidence against him.
[53] I must give you one further legal direction with regard to the records of interview. Whatever a suspect says in an interview is only evidence against him alone; whatever he might say about anybody else is not evidence against that other person, unless it is evidence given orally in Court. So in the case of the first accused’s interview, he says a lot about the second accused’s role in this affair. He did not repeat those allegations when he gave evidence so you cannot use what he says about Asaeli when deciding on the guilt of Asaeli or not. You can only use Asaeli’s own statement and what he says therein if you think his answers are obtained without assault, and are true.
[54] I turn now to the medical evidence.
[55] The lady doctor from Labasa Hospital said that on the 18th June 2013, the Police brought both accused to her for a formal medical examination. She examined each of the two accused for about ten minutes and concluded that both had healthy hearts and healthy lungs and neither had any sign of bruising swelling or other injury.
[56] The Doctor James is the Head of Pathology with the Fiji Police. He explained to us the meaning of Dr. Goundar’s post mortem report after that Doctor’s (Dr. Goundar) examination of Babu Ram’s body. He explained that Dr. Goundar’s report reveals a chop wound on the upper neck of the body stretching across the left side of the face from spine to jaw bone. It was a deep wound which would have been inflicted by considerable force to cause a cut in the bone protecting the spine. It would have been almost certainly inflicted with one blow with a sharp, heavy and elongated object. It is a wound consistent with chopping by a cane knife.
[57] The cause of death was excessive loss of blood caused by that deep and severe cut.
[58] He was of the opinion that it would have been inflicted just before or around the time that the victim was eating.
[59] Before closing the prosecution part of this summing up I want to talk to you about the evidence from and relating to Pita Dabobo.
[60] As you are aware, Pita was the first suspect in this murder and he was arrested and questioned under caution. He was also formally charged. In those out of court documents he appears to have freely and willfully admitted that he killed Babu Ram and that he attempted to burn the house down.
[61] The first thing I will state is that Pita Dabobo is not on trial here. Seru and Asaeli are. But his history and evidence are very relevant to your deliberations. He tells us in his evidence that he was assaulted, punched and kicked by the Police after arrest and it was because of those assaults he agreed to whatever the Police put to him. He says that he wasn’t in his right mind at the time.
[62] Because of his confession which he says is false, he was being held in the Labasa remand Centre (Vaturakuka) awaiting trial. It was in that centre that he met up with Meli Bulitogalevu who told him what Siuta Seru had told him. Realising that this could be his ticket to freedom the authorities were alerted to this new information and the result was that the charges against Pita were eventually dropped.
[63] What does this mean for us? If you accept the admissions of Siuta Seru (our first accused) as being unforced and true then you have two persons claiming to be the murderer.
[64] My suggestion to you is to decide on the value of Pita Dabobo’s admissions first. You will bear in mind his evidence that it was forced from him, you will bear in mind the Police acceptance of his innocence by offering him a “sevusevu”, and that it is an admitted fact that the prosecution withdrew the charge against him in September 2014. You will bear in mind other evidence in this trial either for or against Pita being the murderer. You will also bear in mind that apart from Pita’s allegations of assault we have no other evidence in this trial about the taking of that interview and charge; nor have the Police been given the chance to give evidence relating to the generation of those exhibits.
[65] If you decide that it was a genuine confession then you would have to find these two accused not guilty of the counts they face.
[66] If on the other hand you decide that his confession is not true and that he didn’t commit the murder or arson then you will forget about his admissions and go on to decide the case as evidenced against the two accused in this case which includes Pita’s evidence for the Prosecution.
[67] He went on to give evidence in this trial. He told us that he got a message to go to see Babu Ram. He walked there on the morning of the 19th August and he intended to buy tobacco from him. As he approached the house he called “tamana” “tamana” but there was no response. He approached the kitchen door when it opened and a person wearing a mask came out brandishing a knife. Pita was shocked and scared and turned to run. The person lifted the knife as if to chop him. He ran down towards Mothi’s house. When he got near Mothi’s house he shouted out his name three times. Kamal came running towards him from the plantation. He then corroborated Kamal’s evidence in that they armed themselves and went back to Babu’s house. Kamal peeped through the window and said that Babu had been chopped and was lying down. Pita rode a horse and rode to Bua. He went back to Naqilimoto and waited until the Police arrived.
[68] That was the end of the prosecution case and you heard me explain to the two accused persons what their rights are in defence. They could give evidence and say that the State had not proved the case beyond reasonable doubt or they could give sworn evidence from the witness stand. In either case they were entitled to call witnesses. Defence Counsel told me that they had similarly advised their clients and received instructions as a result. In this case both accused elected to give evidence. You must consider their evidence in the normal way and give it the weight that you think fit. If you don’t believe either or both of them it doesn’t necessarily make him guilty. The prosecution must still prove to you so that you are sure that he or she committed the crime. But if you think that either or both is telling the truth or might be telling the truth then you will find that person not guilty.
The Defence Case
[69] The first accused, Siuta Seru (“Seru”) gave evidence under oath. He told us that he lived with 5 other young people in Cubue in 2012. They slept in one house and the cooking and living areas were in another house. In August 2012 he got injured on the farm. He hurt his ankle area and was taken to the Bua nursing station for treatment. The wound was treated and stitched by Nurse Luisa and he was sent home to recuperate. From the 17th August he was resting and lying at home. He was given tablets and told not to move around a lot. On the 18th August (Saturday) he was at home sleeping and he awoke on the 19th August at around 7am. He prepared himself for morning prayers which were held usually from 6am to 7am. He went to the prayers. It wasn’t far away so he walked although he was limping. At about 7am he went home and had breakfast and then lay down. He spent the whole of that day lying down .He doesn’t know anything about Naqilimoto. He had never been there. The first time he went there in 2013 taken by Policemen. He never talked to Meli Bulitogalevu about the Naqilimoto affair. He hardly ever talked with Meli because Meli is a trouble maker and gets Form 4 girls pregnant.
[70] In 2013 he was in Suva. He went there in January 2013 to further his studies at FNU in automobile engineering. For a while he lived with an Uncle in Tacirua and in June 2013 he moved to Nakasi to stay with Marika Sau. He found a job with a Security Company working as a security officer in Vatuwaqa. He would work from 6am to 8pm leaving home at about 4am and returning around 10pm. He had his own key to come and go, He never once had a conversation with Marika about Naqilimoto.
[71] On 11 June 2013 he was arrested at TFL tower in Nausori. It was his day off and he was visiting a close friend who worked there as a security officer. He was arrested by P.C. Jimione (“Jimmy”), a policeman from Nabouwalu. Jimmy punched his ribs and asked why he had run away from to Suva. He told Jimmy he hadn’t run away. He was in the capital to study. He was sworn at and told to get into the vehicle and was taken to C.I.D. headquarters in Toorak. On the journey he was punched in the ribs by an unknown officer and sworn at by the driver. At the offices (HQ) he was again punched on his back and sworn at. He was told whether he admitted or not, he was still going to jail. Before the interview started, Viliame the interviewing officer showed him Meli’s statement in which it said he had confessed to Meli. Seru read the statement and told Viliame he knew nothing about it. He was again assaulted and he thought that that was normal police procedure. When his statement was taken he was sitting opposite Viliame and there was a computer between them He was asked questions and gave answers but he believed Viliame was writing his own answers. He says that on looking at the interview, none of the answers are his. He was telling the officer that he knew nothing. He did sign the interview but didn’t know what was in it. He was never able to read it. He was told that if he signed he could go home so he signed. After three days interview in Suva he was taken to Nabouwalu Police Station. At Nabouwalu he saw Asaeli there. Jimmy again assaulted him on the ribs.
[72] He remembers being taken for a reconstruction along with Asaeli. They were taken to Naqilimoto. At the places, Savou told him where to stand and point where things happened. He told Savou that he didn’t know these places but Savou gave all the directions.
[73] He was taken to Labasa Hospital on the 18th June 2013 by Savou. A doctor saw him and she checked his face and heart and filled out a report. She never asked him to take off his T- shirt. He was never given a chance to make any complaint to the doctor because Savou was present all the time.
[74] He never shared with anybody about the abuse because he thought it was normal police procedures.
[75] On the 24th June 2015 he was again arrested by the Police. He was in the village at the time and they took him to Nabouwalu. When he got there he was told to drink grog with them. He drank grog and they started questioning him and recording the answers on a computer. He was shown his charge statement made that day and Seru said that the answer to charge accorded to him was not made by him but are the words of Policeman Elia. It was printed off and he signed it inside the station without being given a chance to read it. He was “grog doped” when he signed it.
[76] He never made complaint about his treatment to the Magistrate because when he eventually got to Court his mistreatment was so far back he had forgotten what they did to him. It was only when represented by Legal Aid lawyers that he came to find out he had been mistreated.
[77] In finishing his evidence he said that Marika Sau was not a pastor and he had never prayed with him. He had no idea about the murder, the arson nor the robbery.
[78] The first accused (and the second accused) raise the defence of alibi. They both say that they were not at the scene of the crime when the offences were committed. Because the prosecution has to prove their guilt so that you are sure of it, they do not have to make you sure of their alibi. On the contrary, the prosecution must disprove the alibi. Even if you consider that the alibi is false, that does not in itself entitle you to convict the accused. It is a matter you may take into account, but you should bear in mind that an alibi is sometimes raised to bolster a genuine defence.
[79] The first accused called an alibi witness. It was Laisiasa who said he was staying with Seru in Cubue in August 2012. He remembers waking up on 19th August 2012 at about 8 am and having breakfast. He was with his wife and the “young people” including the first accused had just returned from early morning prayers. Seru had injured his leg so he limped in and had breakfast. They stayed at home all day apart from going to church in the morning. The night before, he was home but he doesn’t know where Seru was that evening.
[80] The Bua Medical Centre nurse told us that according to her medical records, Seru came to the centre on the 17th August with a leg injury. She did wound closure including stitching. She prescribed panadol and antibiotics and sent him home with instructions not to get the wound wet and to keep the stitches in for 7 days. She could not remember anything else.
[81] The second accused (“Asaeli”) also gave sworn evidence.
[82] He said he has lived in Nawaca all his life while his wife is from Navunievu.
[83] In the last week of August 2012 he and his wife and 2 children were in Navunievu attending to his yaqona business. When he got there he heard about the death of the “Indian man”.
[84] On the 19th August 2012 he woke up and went to prayers at 4am. He went back home at 5.30am and had breakfast. They went to church again all morning and rested at home for the rest of the day apart from going to the afternoon service.
[85] He doesn’t smoke and he doesn’t drink alcohol. He doesn’t know Seru; the first time he met him was when they were put together at Nabouwalu Police Station. He had never been to Naqilimoto until he was taken there by the Police.
[86] With regard to his interview he said that he was arrested by Savou and taken to Nabuowalu Police Station where he was interviewed for about 5 days. He gave the answers about his personal circumstances but he didn’t give any of the other answers. He claims that the answers were fabricated by the Police. He was once punched by Savou after the CID team arrived from Suva. He was at all times saying that he knew nothing about this affair and that he had never been to Naqilimoto. During the reconstruction he was told where to point out places of interest.
[87] He was taken to Labasa Hospital for a medical examination. He had recurring pain and shortness of breath from the assault but he was not able to tell the doctor this. He thought assault by Police was normal.
[88] He knows nothing about the robbery and the answers were all made up by the Police.
[89] When he was at Nabouwalu Police station he saw the Police assaulting the first accused. He was in a room down the passage and he could see it.
[90] The second accused called his wife as his alibi witness. She said that on Saturday the 18th August her husband was working on the farm and just slept at home that night. On the 19th they woke up and went to early morning prayers. They came back home around 5am for breakfast. They went back to church at 9.30am and came home for lunch at about 12. They stayed home for the rest of the day apart from going back to church that afternoon. Her husband doesn’t smoke; nor does he drink alcohol.
[91] It was put to this witness in cross=examination that she had originally told Police in June 2013 that she did not see her husband that Sunday morning. In fact he had gone out the night before and she didn’t see him until Sunday lunchtime.
[92] The witness said that what she was saying in Court was true and that the Police had fabricated that earlier statement. It wasn’t given to her to read and they told her to sign it. You have seen that statement.
[93] Sir, and Madam I want to give you a further direction in law at this stage about evidence. It is what is called inconsistent statements. In particular with this witness and on several other occasions in this trial it has been pointed out to a witness that he or she has said something different in a previous police statement. The law says that whatever a witness says in Court is the definitive evidence. In some cases you might think that the differences are unimportant such as there being a difference in time or date for example, or you may think that the differences are more important. If so, while accepting the evidence in Court as the proper evidence you might think that the very different version given before would make the evidence of that witness unreliable and you might not give it much weight. It is all a matter for you. However in the case of the second accused’s alibi evidence the difference is fundamental. She tells the Police she doesn’t know where her husband was on 18th/19th August while she says in Court that they were going to church all day. Because the difference is fundamental and because she claims that the Police have fabricated her earlier out of court statement you may well think that you cannot rely on her evidence in Court and you will give it little weight. However as with all questions of evidence you will make the final decision as to the value of her alibi evidence yourselves.
[94] Well Madam and Gentlemen, that brings me to the end of this rather long summing up. You may retire now and consider your opinions. The only possible verdicts in respect of each charge is “guilty” or “not guilty”. It would be best if you could both be agreed but that is not strictly necessary. Please tell one of my staff when you are ready and I will reconvene the Court. You may now retire, but before you do I will ask counsel if they wish me to add or change any legal direction.
[95] Counsel?
P. K. Madigan
Judge
At Labasa
16 September 2016
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