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State v Colanaudolu - Summing Up [2017] FJHC 382; HAC121.2016S (24 May 2017)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 121 OF 2016S


STATE


vs


JOSUA COLANAUDOLU


Counsels : Mr. L. Burney and Ms. S. Lodhia for State
Mr. M. Fesaitu, Ms. L. David and Ms. S. Daunivesi for Accused
Hearings : 1 to 5, 9 to 12, 15 to 19, 22 and 23 May, 2017
Summing Up : 24 May, 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. THE MAIN ISSUES
  1. 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. The accused faced 12 counts. Four involved “abduction”, contrary to section 252 of the Penal Code, chapter 17, and section 282(c) of the Crimes Act 2009 (ie. Counts no. 1, 3, 5 and 9). Six involved “rape”, contrary to section 149 and 150 of the Penal Code, chapter 17 and section 207(1) and (2)(a) of the Crimes Act 2009 (ie. Count no. 2, 4, 6, 8, 10 and 11). One involved “indecently annoying females”, contrary to section 154(4) of the Penal Code, chapter 17, (count no. 7), and one involved “murder”, contrary to section 237 of the Crimes Act 2009 (count no. 12).
  2. We will start our discussion with the most serious offence of “murder”, then we will consider “rape”, then “abduction” and finally “indecently annoying females”.
  3. For the accused to be found guilty of “murder” (count no. 12), the prosecution must prove beyond reasonable doubt, the following elements:
  4. On the first element of murder, a “willful act” is a voluntary act by the accused. It is a feeling of strong determination to do something that he wanted to do. It is what he wanted to happen in a particular situation. This is the physical element of the offence of murder. For example, A wants to shoot B with a gun. A picks up a gun, and shoots B in the heart, A did a “willful act”. Likewise, if A assaults B. When A assaults B, A did a “willful act” to B.
  5. On the second element of murder, “the willful act must cause the death of the deceased”. This simply meant that the accused’s willful act, substantially contributed to the death of the deceased. The accused’s willful act must be a substantial contributor to the death of the deceased. In other words, the accused’s willful act was a substantial cause of the deceased’s death. Continuing from the above examples when A shot B in the heart, with a gun, B later died as a result of the injuries to his heart. A’s shooting B in the heart (willful act) was a substantial cause of B’s death. Likewise, when A assaults B, it caused serious injuries to her body, leading to B’s death. A’s assaulting B, set in motion a chain of events that led to B’s death, and as such, was a substantial cause to B’s death.
  6. The third element of murder concerned it’s fault element. There are two fault elements for murder, as described in paragraphs 11(iii) (a) and 11(iii) (b). It would appear that the prosecution is running its case on both fault elements. It need only satisfy one fault element, to prove the charge of murder. We will therefore begin by discussing the first fault element, and then move on to the second fault element.
  7. On the first fault element, the prosecution must make you sure that when the accused did “the wilful act”, he “intended to cause the death of the deceased”. You cannot cut open the accused’s head, to find out what his intentions were, at the time he allegedly assaulted the deceased to death. But you can examine his conduct at the time, that is, what he said and did, and the surrounding circumstances, to infer whether or not he intended to kill the deceased, when he allegedly assaulted her. If you find that he intended to kill the deceased, at the material time, that would be sufficient to support the third element of murder, that is, an intention to kill.
  8. As to the second fault element of murder, the prosecution must make you sure that when the accused did “the wilful act”, he “was reckless as to causing the death of the deceased”. A person is reckless with respect to a result, if he was aware of substantial risk that the result will occur and having regard to the circumstances known to him, it was unjustifiable to take the risk. The question whether taking a risk was unjustifiable is one of fact for you. Was the accused aware of a substantial risk that the victim would die if he continually assaulted her? And having regard to the circumstances known to him, was it justifiable to take the risk of repeatedly assaulting her, at the material time? If you think, he was not justified in taking the risk, then he was reckless in causing her death. If you think he was not reckless, then he is not guilty of murder.
  9. If you find all the elements of murder, as described above, proved beyond reasonable doubt by the prosecution, then you must find the accused guilty as charged. If you find one of the above elements of murder not proved beyond reasonabled doubt, then you must find the accused not guilty as charged.
  10. If you find the accused not guilty of murder, you may need to consider the lesser offence of “manslaughter”. A person, as a matter of law, may be convicted of the lesser offence of “manslaughter”, although he was not formally charged with the same. The first and second element of “manslaughter” are similar to that of “murder”, as described in paragraphs 11(i) and 11(ii) hereof. The only difference between the two offences are their fault elements. In “manslaughter”, the prosecution must prove beyond reasonable doubt, the following elements:

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

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

(iii) at the time of the willful act, the accused either;

(a) Intends the willful act to cause the deceased serious harm; or
(b) Is reckless as to causing serious harm to the deceased.
  1. If you find the accused guilty of “manslaughter”, you may find him guilty accordingly.
  2. For the accused to be found guilty of “rape”, the prosecution must prove beyond reasonable doubt, the following elements:
  3. In law, the slightest penetration of the complainant’s vagina or anus by the accused’s penis, is sufficient to satisfy element 20(i) or 20(ii) above, and it’s irrelevant whether or not the accused ejaculated.
  4. Consent is to “agree freely and voluntarily and out of her own free will”, and she must have the necessary mental capacity to give her consent. If consent was obtained by force, threat, intimidation or fear of bodily harm or by exercise of authority over her, that “consent” is deemed to be no consent. The consent must be freely and voluntarily given by the complainant. If the consent was induced by fear, it is no consent at all.
  5. It must also be established by the prosecution beyond reasonable doubt that the accused knew the complainant was not consenting to vaginal or anal sex, at the time. You will have to look at the parties’ conduct, at the time, and the surrounding circumstances, to decide this issue.
  6. For the accused to be found guilty of “abduction” (ie. Counts 1, 3, 5 and 9), the prosecution must prove beyond reasonable doubt, the following elements:
  7. In the Oxford Advanced Learner’s Dictionary, Oxford University Press, 6th edition, 2000, the word “abducts” means “to take somebody away illegally, especially using force” and the word “sodomize” means “to have anal sex with somebody, that is, a man put his penis into somebody’s anus”. The accused must therefore take the complainant away illegally, especially using force, and then sodomized the complainant. The prosecution must make you sure that the accused did the above.
  8. For the accused to be found guilty of “indecently annoying a female” (ie. Count no. 7), the prosecution must prove beyond reasonable doubt, the following elements:
  9. The accused must be shown to have intended to insult the modesty of the female complainant. This is the fault element of the offence. The accused, with this intention, must accompany this intention, with a physical act, that will be seen by the female complainant.
  10. There are 12 counts in the information. You must consider each count separately, and come to a considered decision on each of them, in the light of the total evidence presented at the trial.
  1. THE PROSECUTION’S CASE
  1. The prosecution’s case were as follows. On 14 March 2016, the accused (DW1) was 39 years old, married with a young daughter. He is from Verata Tailevu, but had lived all his life at Vunibuabua Settlement, Deuba. He was the “chief bouncer” at the High Tide Bar at Pacific Harbour. The first complainant (PW2) in counts no. 1 to 4 was 32 years old. She is married with 6 children. She resided at Lepanoni Settlement, Deuba for most of her life, and is a neighbour of the accused. She is a full time mother.
  2. The second complainant (PW3) in counts no. 5 to 7 was 35 years old. She is PW2’s elder sister and lived most of her life in Lepanoni Settlement. The third complainant (PW4) in count no. 8 was 22 years old. She is the accused’s elder brother’s daughter. Her parents are separated and she lived with the accused’s grandmother at Lepanoni Settlement. Mere Ailevu was the fourth complainant. She is the deceased. At the time of her death on 14 March 2016, she was 14 years old. She lived with her parents at Lepanoni Settlement, Deuba.
  3. According to the prosecution, between 1st April 1998 and 31 December 1999, the accused attacked PW2. PW2 was 14 years old at the time, and her parents used to send her to the shop to buy things for the family. The accused was 23 years old at the time. According to the prosecution, while returning from the shop, the accused forcefully grabbed PW2, covered her mouth with a hand and forcefully took her to his house. In the house, he subdued her by punching her thighs, forcefully took off her clothes and inserted his penis into her vagina without her consent. After having sex with her, the accused warned her not to tell anyone about the incident, or he will kill her. According to the prosecution, the accused did the above to her on eight separate occasions until February 2000 [counts no. 1 to 4].
  4. Between the 1st June to 31 July 2002, according to the prosecution, the accused, now 26 years old, did a similar act to PW3. PW3 was 20 years old at the time. The accused were their neighbours at the time. PW3 and her parents were sleeping in their house. It was night time. PW3 was breastfeeding her baby daughter. The accused came into their house without their permission. He forced PW3 out of the house. He covered her mouth with a hand and put a knife to her throat and warned her not to raise the alarm or he will injure her parents and baby daughter. He forcefully took her to a dog house outside, forcefully subdued her by punching her thighs, forcefully took off her clothes, and inserted his penis into her vagina without her consent. According to the prosecution, the two were disturbed, and the accused fled the scene [count no. 5 and 6].
  5. Between 1 January and 31 December 2004, PW3 went to her sister’s house to do some laundry. It was at night and the lights in the house were dim. While doing the laundry, PW3 heard the floor creeked. She turned around to look. She quickly turned on the light and saw the accused standing there fully naked. She saw his penis. The accused later fled the scene [count no. 7].
  6. On 16 November 2012, according to the prosecution, the accused went to his sister’s residence at Makosoi Housing, Deuba. He went there to get his niece, PW4. PW4 was the daughter of his elder brother and was 18 years old at the time. According to the prosecution, the accused told PW4 that her father was looking around for her. PW4 decided to accompany her uncle, the accused, to see her father. Instead, the accused forcefully took PW4 to the beach, forcefully subdued her by punching her thighs and ribs, and forcefully inserted his penis into her vagina, without her consent. He had sex with her for about 20 minutes. PW4 fainted as a result of the above attack. The accused left her there and fled the scene [count no. 8].
  7. The last complainant was Mere Ailevu, the deceased. According to the prosecution, the accused worked at the High Tide Bar at Deuba from Saturday evening to Sunday morning. Sunday was the 13th of March 2016. According to the prosecution, the accused and his friends spent the whole of Sunday drinking liquor. He later went home to have his dinner. He was very drunk. He fell asleep while having his dinner. He woke up late in the night and wandered around towards the village market. According to the prosecution, he saw a girl there and forcefully picked her up. He later carried her across the Queens Road, and threw her over a fence. According to the prosecution, he later carried the girl to the beach. He hit her head with his elbow to subdue her. At the beach, he forcefully inserted his penis into her vagina, and later, her anus, without her consent. After raping her, he left her at the beach. The girl was discovered dead at the beach on Monday. The cause of death was massive brain injuries.
  8. The matter was reported to police. An investigation was carried out. The accused was arrested. He was caution interviewed four times. He was later charged for abduction, rape and murder. The complainants are PW2, PW3, PW4 and Mere Ailevu. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged on all counts. That was the case for the prosecution.
  1. THE ACCUSED’S CASE
  1. On 12 May 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 all 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 his wife and another, as his witnesses. That was his right.
  2. The accused’s case was very simple. On oath, he denied the allegations against him. He denied raping PW2, PW3 and PW4. He also denied raping Mere Ailevu. He denied murdering her. He said, the allegations against him were a fabrication by police. He said, his alleged confession in his four caution interview with the police, were nothing but a fabrication by police. He said, the police assaulted and threatened him to confess to the offences, while he was in their custody. He said, his charge statement, which contained his alleged confession, were fabrication. He said, the police forced him to sign his interview and charge statements. He said, the police rubbed chillies in his anus to pressure him to confess.
  3. He said, his caution interview and charge statements were not given voluntarily and they were given without his own free will. He asks you to disregard them because the confessions were not true. Because of the above, the accused is asking 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

(a) Introduction:

  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 analysing the evidence, we will first discuss the “Agreed Facts”, and its significance. Then we will discuss the state’s case against the accused in its chronological order, that is, dealing first with the first complainant’s (PW2) allegations in counts no. 1 to 4; then the second complainant’s (PW3) allegations in counts no. 5 to 7; then the third complainant’s (PW4) allegation in count no. 8, and lastly Mere Ailevu’s complaints in counts no. 9 to 12. Then, we will consider the defence’s case. Lastly, we will look at the need to consider all the evidence.

(b) The Agreed Facts:

  1. The parties submitted an “Agreed Facts”, dated 9 May 2017. A copy is with you. It had 11 paragraphs of “Agreed Facts”. They also tender by consent the accused’s medical report dated 22 March 2016. The report was later tendered, by consent, as Prosecution Exhibit No. 13. The above facts are not disputed by the parties, and thus you may treat the same as established facts, and that the prosecution had proven those facts beyond a reasonable doubt. The significance of the “Agreed Facts” was that it provided a background to what happened to Mere Ailevu from 13 March 2016 at 2pm to 1.30pm on 14 March 2016 (Monday) when her body was discovered at Loloma Beach, Pacific Harbour, and what transpired thereafter. The “Agreed Facts” is relevant when we come to discuss Mere Ailevu’s case from count no. 9 to 12.

(c) The State Case Against the Accused on the Abduction and/or Rape complaints by PW2, PW3 and PW4:

  1. On count no. 1 to 4, on PW2’s allegations against the accused, the State relied primarily on PW2’s sworn evidence. You have heard PW2 give evidence on oath in court. Before the State laid the rape charges against the accused (ie. Count no. 2 and 4), the State charged him with two “abduction” charges in counts no. 1 and 3. In considering the “abduction” charges, please take on board the directions I gave you in paragraphs 24 and 25 hereof. PW2 said, in April 1998, her parents sent her to the shop and the accused followed her. PW2 said, the accused waited near a flower bed. PW2 said, when she returned from the shop, the accused grabbed her and threatened to punch her if she resisted. PW2 said, he then forcefully took her to his house, while gagging her mouth. PW2 said, at his house he forcefully took off her clothes, punched both her thighs, laid ontop of her, and forcefully inserted his penis into her vagina, without her consent. PW2 said, after 10 minutes, he stood up and warned PW2 not to tell anyone about the incident, or he will kill her. PW2 said, she was 14 years old at the time and was tiny. PW2 said, the accused was older than her at the time and was bigger. PW2 said, the accused did the above acts to her 8 times between 1 April 1998 and February 2000 at Navua in the Central Division.
  2. Note that count no. 1 and 2 are representative counts. That meant that if you accept one incident of “abduction” and/or “rape” between 1 April 1998 and 31 December 1999, that in itself is enough to ground a verdict of guilty on those counts. And when considering PW2’s rape complaint in counts no. 2 and 4, please bear in mind the directions I gave you in paragraphs 20, 21, 22 and 23 hereof. On PW2’s own sworn evidence, if you find her a credible witness and accept her sworn evidence, that in themselves are enough to ground a conviction for “rape” in counts no. 2 and 4. A crime can be proven by one witness alone, if his or her evidence, is accepted by the trier of fact, in this case, you as assessors and judges of fact. On the “abduction” complaint in counts no. 1 and 3, the prosecution may find themselves in difficulty. The elements of “abduction” are outlined in paragraphs 24 and 25 hereof. On PW2’s own sworn evidence, the accused abducted her, but did not sodomize her. As a result, an essential element of “abduction” as noted in paragraph 24 (iv) hereof was not satisfied.
  3. In addition to PW2’s sworn evidence, the State was also relying on the accused’s alleged confession when he was caution interviewed by police. The caution interview note was tendered in evidence as Prosecution Exhibit No. 4. In questions and answers 32 to 37, 41 to 42, 57 and 62, the accused admitted he had taken PW2 to his house on several occasions and had sexual intercourse with her. The police said he was given his constitutional rights, his rights to counsel, was given the standard rest and meal breaks and was formally cautioned. The police said he gave his caution interview statements voluntarily and they were true. Pending our discussion later on how to approach the above evidence, if you accept PW2’s sworn evidence and the accused’s above alleged confession, you may find the accused guilty as charged on count no. 2 and 4. On count no. 1 and 3, because the prosecution appeared to have failed to satisfy the fourth element of abduction as described in paragraph 24(iv) hereof, you may find the accused not guilty as charged. It is a matter entirely for you.
  4. Count no. 5, 6 and 7 involved the second complainant (PW3). On oath, PW3 said, the accused had been their neighbour for more than 15 years. PW3 said, she gave birth to her baby daughter on 30 May 2002. PW3 said, she was 20 years old at the time, and normally breastfed her daughter. PW3 said, sometimes after the birth of her daughter, she was breastfeeding her at night. Her parents were asleep in the sitting room. She was in a room with her daughter. PW3 said, the accused entered their house without their permission. He was armed with a knife. PW3 said, the accused came into her room and told her to go outside. PW3 said, she resisted. PW3 said, the accused put a knife to her throat and warned her not to raise the alarm or he will injure her parents and daughter. PW3 said, he forcefully took her outside the house and forced her into a dog house. PW3 said, he then forcefully inserted his penis into her vagina, without her consent. PW3 said, when she resisted, he punched her on the left thigh. PW3 said, he was thrusting his penis in and out of her vagina for 1 hour. On count no. 7, PW3 said, she was doing laundry at her sister’s house in 2004. It was night time and the light in the house was dim. PW3 said, she heard the floor creeked. She turned the light on and saw the accused standing there fully naked. She saw his penis. On seeing the light, PW3 said, the accused fled.
  5. In considering count no. 5, 6 and 7, please take on board the directions I gave you in paragraphs 20, 21, 22, 23, 24, 25, 26 and 27 hereof. See whether or not the sworn evidence of PW3 satisfy the elements of the offences mentioned in counts no. 5, 6 and 7. In addition to PW3’s sworn evidence, the State was also relying on the accused’s alleged confession to some elements of “rape”, when he was caution interviewed by police. His caution interview statements were tendered in evidence as Prosecution Exhibit No. 5. In questions and answers 21 and 22, the accused said he knew PW3 very well, as they were neighbours. From questions and answers 30 to 33, the accused admitted the two had previously had sexual intercourse, and he repeated this in question and answer 46. According to the State, when interviewed, the accused was given his constitutional rights, his right to counsel, was formally cautioned and given the standard rest and meal breaks. According to the State, he gave the above statements voluntarily and out of his own free will and the same were true. Pending our discussion later on how to approach the above alleged admissions, if you accept PW3’s sworn evidence and his above alleged confession, you may find him guilty as charged on counts 6 and 7. However, on count no. 5, the State may find a difficulty. Nowhere did PW3 said, she was sodomized by the accused, and consequently the fourth element of “abduction” as described in paragraph 24(4) hereof had not been satisfied, and you may find the accused not guilty as charged on count no. 5. In any event, it is a matter entirely for you.
  6. Count no. 8 involved the third complainant (PW4). In her sworn evidence, PW4 said, she was asleep at her aunty’s house at Makosoi, Deuba, early morning on 16 November 2012. PW4 said, she was 18 years old at the time. The accused, who was her dad’s younger brother, woke her up at 8am. PW4 said, the accused told her that her dad was looking for her and he was taking her to him. PW4 said, the accused was drunk. They went in a taxi towards Lepanoni Settlement. However, they stopped at the Pearl Resort. PW4 said, the accused bought some beer and told PW4 that he will finish his beer first before they go to her father. PW4 said, the accused later forced her to a nearby beach. PW4 said, she resisted him. PW4 said, the accused pushed her to the ground. PW4 said, he then delivered two hard punches to her thighs, and later another two hard punches to her ribs. PW4 said, she screamed. PW4 said, the accused warned her not to scream or he will kill her. They were all alone. PW4 said, the accused later inserted his penis into her vagina without her consent, and had sex with her for about 20 minutes. PW4 said, it was painful and after a while, she fainted. PW4 said, when she recovered, the accused had already fled the scene.
  7. In support of their case against the accused on count no. 8, the State was also relying on the accused’s alleged confession to the police when he was caution interviewed. The accused’s caution interview statements were tendered in evidence as Prosecution Exhibit No. 3. According to the State, they asked the accused 85 questions and he gave 85 answers. The State said, the accused was given his constitutional rights, his right to counsel, he was formally cautioned and given the standard rest and meal breaks. The State said, he was not assaulted or threatened while in police custody, and he gave his interview statements voluntarily and out of his own free will. In questions and answers 30, 38 to 42, 44 to 56 and 59 to 62, the accused allegedly confessed to raping PW4 at the material time. When considering PW4’s case, please take on board the directions I gave you in paragraphs 20, 21, 22 and 23 hereof. If you find PW4 to be a credible witness, and you accept her sworn evidence, that in itself could support a rape conviction, and you are entitled to find the accused guilty as charged on count no. 8. As I’ve said before, a crime could be proven on the basis of the sworn evidence of one witness alone, if the trier of fact, accepted her evidence. Pending our later discussion on how to approach the accused’s above alleged confessions, his alleged confessions merely supported PW4’s sworn evidence, and you are also entitled to rely on the same to find the accused guilty as charged on count no. 8. In any event, it is a matter entirely for you.
  8. We now come to counts no. 9 to 12, that is, Mere Ailevu’s case. In this case, the State failed to provide any eye witnesses to prove the offences laid against the accused. This is not unusual in most criminal cases, because most crimes of rape and murder cases were often committed without the presence of any eye witness. This was obviously a difficulty for the prosecution. But that does not mean the crimes cannot be proven by the use of other forms of evidence. In this case, to connect the accused to counts no. 9 to 12, the State first relied on the accused’s alleged confession to the police when he was caution interviewed and formally charged. His caution interview statements were tendered in evidence as Prosecution Exhibit 6(A) – i-Taukei version, and 6(B) – the English version. His charge statements were tendered in evidence as Prosecution Exhibit 9(A) – I-Taukei version, and 9(B) – the English version. During the caution interview, the accused was taken for a scene re-construction, and the same were video taped, and stored in a disc, which was tendered as Prosecution Exhibit No. 8. The State also provided a written transcript of what was said during the scene re-construction and the same were tendered in evidence as Prosecution Exhibit No. 7(A) – i-Taukei version, and 7(B) – the English version. All the above exhibits contained alleged admissions by the accused on all elements of the offence from count no. 9 to 12.
  9. According to the State, when the accused was caution interviewed and formally charged, he was given all his constitutional rights, was given his rights to counsel, was formally cautioned and was given the standard rest and meal breaks. The State said, he was not assaulted or threatened to confess while in police custody. They said, he gave his interview and charge statements voluntarily and out of his own free will. In questions and answers 101, 103, 107, 114, 117, 121, 125, 126, 128 to 132, 135, 136, 139, 149, 151, 152, 154 to 159, 161, 162, 166 to 169, 173, 176, 178, 179, 183, 197, 201 to 204, 207, 220 to 222, 224, 226 and 229 to 231 of Prosecution Exhibit No. 6(B), the accused allegedly confessed to the crimes in count no. 9 to 12. On 29 March 2016, the police took the accused on a reconstruction of the crime scene. They video recorded the same and stored it in a disc as Prosecution Exhibit No. 8. Its written transcript were tendered as Prosecution Exhibit No. 7(A) and 7(B). In the video recording, the accused admitted the offences in count no. 9 to 12. Note, during the trial, the defence never cross examine the State on the video recording. In question and answer 13 of the charge statement, Prosecution Exhibit No. 7(B), the accused confessed to count no. 9 to 12. He said the following, “...I am confessing to the offences I have been charged with. I am regretting the mistakes I did. I want to seek forgiveness to the family of Mere Ailevu for the mistakes I’ve committed...” The State said the accused voluntarily signed all the pages of his caution interview and charge statements.
  10. Note that the defence hotly disputed the voluntariness of the above alleged confessions by the accused. However, we will consider this when we discuss the defence’s case. Nevertheless, when considering the above alleged confessions, I must direct you as follows. 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 as alleged by the police above. 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.
  11. If you accept the accused’s above confessions, then you will have to find the accused guilty as charged on counts no. 9 to 12. If you don’t accept the same, you will have to look at the other evidence to find out whether or not the accused is guilty as charged on counts no. 9 to 12.
  12. On the other types of evidence, the State relied on what is often termed circumstantial evidence. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and the defendant which they say when taken together will lead to the sure conclusion that it was the defendant who committed the crime. It is not necessary for the evidence to provide an answer to all the questions raised in a case. You may think it would be an unusual case indeed in which a jury can say “We now know everything there is to know about this case”. But the evidence must lead you to the sure conclusion that the charge which the defendant faces is proved against him. Circumstantial evidence can be powerful evidence, but it is important that you examine it with care, and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore, before convicting on circumstantial evidence you should consider whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution case. 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.
  13. The State called Josivini Maria (PW5) and Logapila Salailagi (PW9) who attended the Assembly of God church opposite the Queens Road, near the crime scene from 7pm to 10pm on 13 March 2016. Both of them said, they saw the accused carrying something across his chest with both hands, and he crossed the Queens Road to the beach side, after 10pm on 13 March 2016. They said they saw Josua throw something over the fence. Both PW5 and PW9 have resided in Lepanoni Village for a long time and knew Josua well. PW5 and PW9 were with Maraia Kula (PW6) and Sereti Chapman (PW7) at the same time. PW6 and PW7 said they were attending the same church as PW5 and PW9 and the church concluded after 10pm. Both PW6 and PW9 said they saw a huge man carrying something across the Queens Road towards the beach side and threw the same over the fence. They said they couldn’t identify the man. All the above witnesses said the lights from the passing vehicles allowed them to see the man. You have heard the evidence of these witnesses in court, and it is for you to judge their credibility. Note how similar their stories are to the accused’s alleged confession in his caution interview statements and when taken for a scene reconstruction. Look at how he explained in the video recording how he carried Mere across the road and threw her over the fence.
  14. Next, consider Doctor James Kalougivaki’s (PW1) evidence, and how he described the injuries suffered by Mere. PW1 tendered Mere’s Post Mortem report as Prosecution Exhibit No. 2. Mere cannot speak during the trial because she is dead. However, she can speak to us through her injuries and the cause of her death as recorded in her post-mortem report. Please, read the post-mortem report carefully. In the Booklet of Photos, tendered as Prosecution Exhibit No. 11, you can see the built of Mere in Photo 8, 9 and 10. You have seen the accused during the whole of this trial. He is certainly a big and strong man, compared to Mere. Doctor Kalougivaki said Mere died of massive brain injuries as a result of blunt force trauma. Is it possible that when the accused threw her over the fence and when she landed on the ground, did that lead to the injuries? Is it possible that the accused elbow assault to Mere’s head caused those injuries? Is it possible that the accused further assaulted her to subdue her to enabled him to rape her? What does Mere’s injuries, as recorded in the post-mortem report tell you?
  15. Furthermore, consider the rape complaints of PW2, PW3 and PW4. All these ladies complained against the accused attacking then when they were young girls and then raping them. His methods of attack appeared similar in their cases and Mere’s case. He starts off by taking them by force, subdues them by force and the punching of the thighs and then raping them. What do these stories tell you. What do all the above circumstantial evidence tell you? Does the circumstantial evidence lend more credibility to his alleged confession to the police? Whatever you decide, is a matter entirely for you.
  16. If you accept the above confession and/or circumstantial evidence, then you must find the accused guilty as charge on count no. 9 to 12. If otherwise, you will have to find the accused not guilty as charged on count no. 9 to 12.

(d) The Defence’s Case:

  1. On oath, the accused (DW1) denied all the allegations against him. On oath, he said he did not abduct or rape PW2, PW3 or PW4 as alleged. He asks you to disregard all his alleged confessions to the police as contained in his four caution interview statements and charge statements. You have heard him in court complained that the police assaulted, threatened and forced him to confess to the allegations against him. I will not bore you with the details because they are still fresh in your mind. He said, on the date of his arrest on 20 March 2016, he was taken to Dakunikoro and repeatedly assaulted by police. He said, he was repeatedly punched and kicked by police. Chillies were later rubbed and inserted into his anus. He said, he was assaulted and threatened by police at Navua Police Station when interviewed and charged. He said, when taken to the Magistrate Court, he complained about police assault. He was medically examined on 22 March 2016 at CWM Hospital, and his medical report was tendered at Prosecution Exhibit No. 13. On 30 March 2016, he was medically examined at Navua Hospital, and his medical report was tendered as Prosecution Exhibit No. 10.
  2. The 22 March 2016 medical report only recorded “minor laceration on left side of tongue”, “mild swelling and tenderness on left jaw”, “tenderness behind left ear”, “tenderness over right costal region” and “no laceration, no bruises or bleeding in the anal or rectal region”. You have all seen the police officers who gave evidence in this trial. If they had really punched and kicked the accused as alleged, obviously more serious injuries than noted above would have been visible. Furthermore, there was no injuries to his anal and rectal regions, and this suggested that no chillies or huge police fingers were inserted into his anus. In his 30 March 2016 Medical Report, out of the 5 identified injuries, four of them were of the “tenderness” variety, that is, “pain on touch”. Doctor Tabua (PW19) said, if the patient was faking the “tenderness”, it was difficult to determine whether or not he was telling the truth. Looking at both medical reports, it would appear that they do not support the accused’s allegation of police assault. However, how you treat the reports is entirely a matter for you.
  3. If you accept the accused’s version of events, then you will have to find him not guilty of all counts.

(e) The Need to Consider all the Evidence:

  1. In this case, the prosecution called 23 witnesses, 13 police officers and 10 civilians. The defence called 3 witnesses, that is, the accused, his wife and a civilian. Altogether there were 26 witnesses, on whose evidence, you will have to make a decision. Thirteen exhibits were submitted by the prosecution. The parties submitted an Agreed Facts. You must consider each witnesses’ evidence carefully and compare them. If I fail to mention some evidence you consider important, please take them on board. After looking at all the evidence, you should be able to decide whether or not the accused was 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:

(i) Count No. 1 : Abduction : Guilty or Not Guilty

(ii) Count No. 2 : Rape : Guilty or Not Guilty

(iii) Count No. 3 : Abduction : Guilty or Not Guilty

(iv) Count No. 4 : Rape : Guilty or Not Guilty

(v) Count No. 5 : Abduction : Guilty or Not Guilty
(vi) Count No. 6 : Rape : Guilty or Not Guilty
(vii) Count No. 7 : Indecently : Guilty or Not Guilty

Annoying Female

(viii) Count No. 8 : Rape : Guilty or Not Guilty
(ix) Count No. 9 : Abduction : Guilty or Not Guilty
(x) Count No. 10 : Rape : Guilty or Not Guilty
(xi) Count No. 11 : Rape : Guilty or Not Guilty
(xii) Count No. 12 : Murder : Guilty or Not Guilty
  1. You may 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 : Legal Aid Commission, Suva.

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