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State v Prasad - Summing Up [2017] FJHC 114; HAC339.2015S (14 February 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 339 OF 2015S


STATE


vs


  1. BINESH PRASAD
  2. MATHEW GUNUA

Counsels : Mr. S. Vodokisolomone and Mr. S. Shah for State
Ms. S. Ratu for Accused No. 1
Ms. A. Seruvatu for Accused No. 2
Hearings : 6 to 10, and 13 February, 2017
Summing Up : 14 February, 2017


SUMMING UP


  1. ROLE OF JUDGE AND ASSESSORS
  1. 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.
  2. 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.
  3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and they need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
  1. THE BURDEN AND STANDARD OF PROOF
  1. 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.
  2. 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 so that you are not sure about his guilt, then you must express an opinion, that he is not guilty.
  3. 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 accused 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.
  1. THE INFORMATION
  1. You have a copy of the information with you, and I will now read the same to you:

“... [read from the information]....”


  1. Accused No. 1, Binesh Prasad, in the presence of his counsel, pleaded guilty to all the counts on 31 January 2017; and admitted the particulars of offences on those counts on 1 February 2017. As a result of the above, the court found him guilty as charged on all the eight counts, and convicted him accordingly on all those counts, on 1 February 2017. We will consider this matter further, when we analyse the evidence later.
  1. THE MAIN ISSUES
  1. Because of paragraph 8 hereof, in this case, as assessors and judges of fact, each of you will have to answer the following questions:
  1. THE OFFENCES AND THEIR ELEMENTS
  1. Since Counts No. 2, 3, 4, 5 and 6 involved the serious offence of “murder”, we will discuss this offence first. For an accused to be found guilty of “murder”, the prosecution must prove beyond reasonable doubt, the following elements:
  2. As discussed in paragraph 8 hereof, Accused No. 1 had admitted the particulars of offences of all the eight counts in the information. He had also admitted the prosecution’s summary of facts read to court on 1 February 2017. He admitted wilfully and unlawfully setting fire to Hans Wati’s (PW1) dwelling house on 15 October 2015 [Count No. 1]. This act of arson, in fact, satisfied the first element of “murder” as discussed in paragraph 10(i) hereof. It was Accused No. 1’s wilful act. It was something he wanted to do.
  3. Accused No. 1 also admitted the second element of murder, as discussed in paragraph 10(ii) hereof. He admitted that when he burnt Hans Wati’s dwelling house on 15 October 2015, it resulted in the following people being burnt to death; Jei Narayan [Count No. 2]; Prisika Devi [Count No. 3]; Uleshni Iren Lata [Count No. 4]; Imran Ershad Ali [Count No. 5] and Faria Farnaaz Ali [Count No. 6]. He admitted that his wilful act (arson) was a substantial cause of the death of the above people.
  4. Accused No. 1 admitted the third element of “murder”, as discussed in paragraph 10(iii)(a) hereof. He admitted that when he burnt Hans Wati’s dwelling house on 15 October 2015, he intended to cause the above people’s death by burning them to death. Because of the above, the court found Accused No. 1 guilty as charged on count no. 1, 2, 3, 4, 5 and 6. It then convicted him on those counts on 1 February 2017.
  5. The question for you in this case regarding Accused No. 2, was whether or not he “aided and abetted” Accused No. 1 commit the offences in count no. 1 (arson), and the five murders in counts no. 2, 3, 4, 5 and 6? Section 45 (1) of the Crimes Decree 2009 reads as follows, “...A person who aids, abets...the commission of an offence by another person is taken to have committed that offence and is punishable accordingly...”
  6. In the Oxford Advanced Learner’s Dictionary, Oxford University Press, 6th edition, 2002, the word “aid” means “to help somebody to do something, especially by making it easier”. In the same dictionary, the word “abets” means “to help or encourage somebody to do something wrong”. Both words are verbs. The prosecution must make you sure that Accused No. 2 helped Accused No. 1, by making it easier for him to burn Hans Wati’s dwelling house on 15 October 2015 and thereby burning the victims in counts no. 2, 3, 4, 5 and 6 to death. Alternatively, the prosecution must make sure that Accused No. 2 helped or encouraged Accused No. 1 to burn Hans Wati’s dwelling house on 15 October 2015 and thereby burnt the abovementioned victims to death. The above are the physical elements of the offence.
  7. The prosecution must also make you sure that, at the time Accused No. 2 helped or encouraged Accused No. 1 to burn Hans Wati’s dwelling house, he intended or was reckless in helping Accused No. 1 burnt Hans Wati’s house. The prosecution must also make you sure that when Accused No. 2 helped Accused No. 1 burnt the victims in counts no. 2, 3, 4, 5 and 6 to death, he intended or was reckless in helping Accused No. 1 burnt the above victims to death. The above are the fault element of the offence.
  8. Count No. 7, involved the offence of “attempted murder”. For an accused to be found guilty of “attempted murder”, the prosecution must prove beyond reasonable doubt the following elements”
  9. In this case, Accused No. 1 had pleaded guilty and was convicted of attempting to murder Jotishma Neelam on 15 October 2015. Did Accused No. 2 help or encourage Accused No. 1 attempt to murder Jotishma Neelam on 15 October 2015, and did he have the intention to burn Jotishma to death? Accused No. 2’s conduct must be more than merely preparatory to the commission of attempted murder and this is a question of fact for you.
  10. Count No. 8 involved “damaging property”. Accused No. 1 had admitted unlawfully damaging Mohammed Khalil’s taxi LT 2786 on 15 October 2015 when he damaged the same by fire. Did Accused No. 2 assist Accused No. 1 damage the taxi with fire on 15 October 2015, and did he have the necessary intention to assist Accused No. 1 damage the same?
  11. Remember, there are eight counts in the information. You must consider each count separately, in the light of the evidence presented, and come to separate considered decision on each count.
  1. THE PROSECUTION’S CASE
  1. The prosecution’s case were as follows. On 15 October 2015, Accused No. 1 was 33 years, married with a daughter. His wife was Uleshni Iren Lata, the victim in count no. 4. His daughter was Prisika Devi, the victim in count no. 3. He used to reside with his wife and daughter at his in-laws house at Lot 59 Navosai Road, Narere. Accused No. 1’s relationship with his wife and in-laws were in turmoil. There was a “domestic violence restraining order” against him forbidding him to stay with his wife and daughter at his in-laws house. He was also required not to contact his wife, daughter and in-laws.
  2. Accused No. 1 was unhappy about the above arrangement. Accused No. 1 was a taxi driver by profession. Accused No. 2 was 22 years old at the time. He was a foundation science student at the University of the South Pacific. He came to Fiji from Papua New Guinea when his father came to work in Fiji in 2010. Accused No. 1 became Accused No. 2’s family friend when he regularly provided taxi service for his family. On 14 October 2015, Accused No. 1 went to Nadi to pick up a friend from Nadi. The friend came from New Zealand. Accused No. 2 met Accused No. 1, and agreed to accompany him to Nadi.
  3. On 14 October 2015, the two accuseds went to Nadi in a rental car. They booked into a hotel in Nadi. Accused No.1’s friend’s flight from New Zealand was cancelled. They stayed in Nadi for the night. On 15 October 2015, they decided to return to Narere via Lautoka, Ba, Tavua and Rakiraki direction. While coming to Narere, according to the prosecution, Accused No. 1 began to vent his family frustration to Accused No. 2. He told Accused No. 2 that his wife’s family was doing “black magic” on him. He blamed his in-laws for separating him from his wife and daughter by getting the “domestic violence restraining order” against him. He told Accused No. 2 that he will burn his in-laws house down and kill everybody in that house.
  4. At Tavua, Accused No. 1 gave Accused No. 2 $50 to buy a cane knife, a pair of gloves and a file. When they arrived at Rakiraki, Accused No. 1 gave Accused No. 2 $20 to buy 3 20 liters plastic containers. At Korovou, Accused No. 1 filled the above plastic containers with fuel at a service station. They then drove to Narere. In the early evening, they parked their car near his in-laws dwelling house at Lot 59 Navosai Road, Narere. They drank some liquor. At about 11 pm or thereabout, Accused No. 1 told Accused No. 2 to take the plastic containers containing fuel to the veranda of his in-law’s dwelling house. According to the prosecution, Accused No. 2 complied with Accused No. 1’s request, in exchange for his taxi fare home.
  5. According to the prosecution, Accused No. 1 gave Accused No. 2 his taxi fare and he went home. Accused No. 1 then used the fuel in the plastic containers to burn his in-laws’ house down, and killed his wife, daughter, his father in-law and two tenants, when he burnt them to death. He also attempted to murder Jotishma Neelam and damaged Mohammed Khalil’s taxi. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find Accused No. 2 guilty as charged, on all counts. That was the case for the prosecution.
  1. THE ACCUSED’S CASE
  1. On 7 February 2017, the first day of the trial proper, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to the charges. In other words, he denied the allegations against him. When a prima facie case was found against him, at the end of the prosecution’s case, wherein he was called upon to make his defence, he choose to give sworn evidence and called no witness. That was his right.
  2. The accused’s case was simple. On oath, he denied aiding and abetting Accused No. 1 commit the offences in count no. 1 to 8. He said, Accused No. 1 was a family friend. He provided taxi service for his family when they first arrived in Fiji from Papua New Guinea in 2010. He said, he agreed to accompany Accused No. 1 to Nadi on 14 October 2015, to pick up his friend from New Zealand. He agreed that the friend did not arrive and they returned to Narere via the Kings Road on 15 October 2015. He agreed Accused No. 1 gave him money to buy three 20 liter plastic containers from Rakiraki. He said, Accused No. 1 filled the containers with fuel at a service station in Korovou. He agreed they were drinking liquor near Accused No. 1’s in-laws’ dwelling house at about 11pm on 15 October 2015. He agreed he complied with Accused No. 1’s direction to take the containers full of fuel to the in-law’s house veranda, in exchange for his taxi fare. He said, he had no intention to kill anyone whatsoever that night.
  3. He said, he knew Accused No. 1 was angry at his wife and in-laws for “breaking up” his family. He said, he knew Accused No. 1 told him that night he was going to burn down his in-laws house and kill everybody that night. However, he said, he did not believe Accused No. 1 was capable of carrying out his threats. He said, he was not guilty on charged.
  4. As far as his caution interview and charge statements taken by police, he said the same were a fabrication by police and he asked you to disregard the same as he did not give the same voluntarily and it was made without his free will. Because of the above, he asks you, as assessors and judges of fact, to find him not guilty as charged on all counts. That was the case for the defence.
  1. ANALYSIS OF THE EVIDENCE
  1. In analysing the evidence, please bear in mind the directions I gave you in paragraphs 4, 5 and 6 hereof on the burden and standard of proof. In the acceptance and/or rejection of the evidence presented at the trial and your role as assessors, please bear in mind the directions I gave you in paragraphs 1, 2 and 3 hereof. In analyzing the evidence, we will first discuss the “Agreed Facts” and its significance. Then we will discuss the State’s case against the accused, which will be based on what is often termed a “Judicial Notice”, and the accused’s alleged confessions in his police caution interview and charge statements. Then, we will discuss the Defence’s case, and the need to look at all the evidence.
  2. The parties submitted an “Agreed Facts”, dated 2 December 2016. A copy is with you. It contained 13 paragraphs of “Agreed Facts”. These facts are not disputed by the parties. You may treat the “Agreed Facts” as established facts, and that the prosecution had proven the same beyond a reasonable doubt, because the parties do not dispute the same.
  3. Accused No. 2 was charged with aiding and abetting Accused No. 1 commit the offences in counts no. 1, 2, 3, 4, 5, 6, 7 and 8. The State’s case against the accused was based on two types of evidence, first, the principle of judicial notice, and second, the accused’s alleged confessions in his police caution interview and charge statements.
  4. We will start, with the principle of “judicial notice”. As discussed in paragraph 8 hereof, Accused No. 1, in the presence of his counsel, pleaded guilty to all the eight counts on 31 January 2017. The prosecution’s summary of facts were read to him on 1 February 2017. He admitted the particulars of offences on all eight counts. In other words, he admitted that, on 15 October 2015, at Nasinu in the Central Division, he wilfully and unlawfully set fire to the dwelling house of Hans Wati, his mother-in-law. He also admitted that, in the process, he burnt his wife, daughter, father-in-law and Mr and Mrs Ali to death, and he intended to cause their death. He admitted attempting to murder Jotishma Neelam, on the same occasion, with intent to cause her death. He admitted pouring benzene from a container towards his wife and setting her on fire. He admitted pouring benzene around Hans Wati’s dwelling house, and lighting the same.
  5. He admitted buying through Accused No. 2, three 20 liters yellow plastic containers from Rakiraki and filling the same with super unleaded benzene from a Mobil Service Station in Korovou. He admitted using the same benzene to set his mother-in-laws house on fire, and killing five people therein on 15 October 2015. He admitted attempting to murder Jotishma Neelam on the same date. He admitted damaging Mohammed Khalil’s taxi LT 2786, worth $18,500 at the time, when the fire damaged the same. Because of his above admissions, the court found Accused No. 1 guilty as charged on all the eight counts in the information, and convicted him on those counts, on 1 February 2017. As a matter of law, I direct you to take judicial notice of the above admissions by Accused No. 1, the court finding him guilty of all eight counts and his convictions on all eight counts, as your finding of facts in this case. You will have to treat the same as established facts, by virtue of the principle of judicial notice.
  6. Next, the State relied on Accused No. 2’s alleged confessions in his police caution interview and charge statements, to support its case. PC 3704 Temesi Tuimoro (PW5) caution interviewed Accused No. 2 on 16, 17, 18 and 19 October 2015. 116 questions were asked by PW5 and 116 answers were allegedly given by Accused No. 2. The interview started on 16 October 2015 at 4.30 pm and concluded on 19 October 2015 at 4.10 pm. According to PW5, Accused No. 2 was given his right to counsels and other rights. PW5 said, he was formally cautioned and was given the standard rest and meals breaks. The caution interview statements were tendered in evidence, as Prosecution Exhibit 7(A) – hand written version, and 7(B), the typed version. The interview was done in English.
  7. During the interview, Accused No. 2 admitted he was aware of Accused No. 1’s murderous intention and his desire to burn his mother-in-law’s dwelling house, when they were coming from Tavua. He admitted buying a cane knife, gloves, a file and 3 20 liter yellow plastic containers from Tavua, and Rakiraki on the instructions of Accused No. 1. He admitted, on their way to Narere from Rakiraki, Accused No. 1 said he will kill his mother-in-law, father-in-law, wife and daughter and burn the family home down. He admitted that Accused No. 1 filled the containers with fuel at Korovou. He admitted that, on Accused No. 1’s instruction, he carried the containers full of fuel to Hans Wati’s veranda, before he received his taxi fare to go home. He admitted he tried to discourage Accused No. 1 from carrying out his plan. Please, refer to questions and answers 48, 49, 57, 60, 76, 77, 78, 79, 82, 84, 101, 104 and 106 of Prosecution Exhibit No. 7(B). When interviewed, the accused’s sister, Ms Bettyanne Gunua, was present throughout.
  8. DC 1853 Luke formally charged Accused No. 2 on 20 October 2015, at Valelevu Police Station. Detective Sergeant 2561 Vinod Chand (PW7) witnessed the formal charging. The charge statement was tendered in evidence as Prosecution No. 8. PW7 said Accused No. 2 was given his right to counsel. In question and answer 10 of Prosecution Exhibit No. 8, Accused No. 2 made a conflicting statement while denying the offences, he appeared to admit assisting Accused No. 1 commit the offences.
  9. If you think Accused No. 2 made the above admissions, I direct you to approach the above evidence in the following way. 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, in deciding whether or not you can rely on a confession, you will have to decide two questions. First, whether or not the accused did in fact make the statements contained in his police caution interview and charge statements? If your answer is no, then you have to disregard the statements. If your answer is yes, then you have to answer the second question. Are the confessions true? In answering the above questions, the prosecution must make you sure that the confessions were made and they were true. You will have to examine the circumstances surrounding the taking of the statements from the time of his arrest to when he was first produced in court. If you find he gave his statements voluntarily and the police did not assault, threaten or made false promises to him, while in their custody, then you might give more weight and value to those statements. If it’s otherwise, you may give it less weight and value. It is a matter entirely for you.
  10. If you accept accused no. 2’s above alleged confession, then you may find him guilty as charged on all counts. If otherwise, then you will have to find the accused not guilty as charged on all counts. It is a matter entirely for you.
  11. In his sworn evidence, Accused No. 2 admitted he was with Accused No. 1 prior to him setting Hans Wati’s dwelling house on fire on 15 October 2015, resulting in five people been burn to death, the attempted murder of Jotishma and the damage to Mr. Khalil’s taxi. He said, he was aware that Accused No. 1 had expressed his intention to burn his in-law’s dwelling house and kill everybody. Accused No. 2 said, on Accused No. 1’s instruction, he bought for him 3 20 liter yellow plastic containers. Accused No. 2 said Accused No. 1 filled the same with petrol at Korovou. He admitted, on Accused No. 1’s instruction, he carried the containers full of petrol to Han Wati’s veranda. Accused No. 2 said he had no intention whatsoever to kill anybody that night. He said, he was not reckless because he did not believe that Accused No. 1 would kill anybody that night. According to him, Accused No. 1 was a kind soul and wouldn’t do what eventually took place.
  12. As far as his caution interview statement were concerned, he said the police were not fair on him. He said, they did not fully explained his rights to him. He said, the statements were a fabrication by police. He appeared to say that the crimes were committed by Accused No. 1, not him. He said, although he bought the fuel plastic containers on the instruction of Accused No. 1, and also carried the same to Hans Wati’s veranda on 15 October 2015, he had no intention whatsoever to kill anybody that night. This was shown by him persuading Accused No. 1 not to attack his family. He also hid the cane knife from Accused No. 1. In his charge statement, Accused No. 2 denied committing the offences. He asks you to disregard his alleged confessions in his interview and charge statements, because they were not voluntarily made. He said, he had no intention to kill anyone and was not reckless in what he did that night.
  13. If you accept the accused’s version of events, you will have to find him not guilty as charged on all counts. It is a matter entirely for you.
  14. Ten prosecution’s witnesses gave evidence in this case:
  15. The defence called Accused No. 2 (DW1) as their only witness.
  16. Ten Prosecution’s Exhibits (PE) were tendered:

PE No. 7(B) - Typed Interview Notes

(viii) PE No. 8 - Charge Statement
(ix) PE No. 9 - Jotishma Neelam’s Medical Report
(x) PE No. 10 - Nation Fire Authority Fire Investigation Report, dated 16.10.15
  1. You must consider all the above evidence together in deciding whether or not Accused No. 2 is guilty as charged on all counts.
  1. SUMMARY
  1. Remember, the burden to prove the accused’s guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution’s version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused’s guilt, you must find him guilty as charged. If you do not accept the prosecution’s version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused’s guilt, you must find him not guilty as charged.
  2. Your possible opinions are as follows:
  3. You may now retire to deliberate on the case, and once you’ve reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.

Salesi Temo
JUDGE


Solicitor for State : Office of the Director of Public Prosecution, Suva.
Solicitor for Accused No. 1 : Legal Aid Commission, Suva
Solicitor for Accused No. 2 : A. Seruvatu, Barrister and Solicitor, Suva.

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