State v Ali - Summing Up [2018] FJHC 490; HAC018.2017 (7 June 2018)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 018 of 2017

[CRIMINAL JURISDICTION]

STATE

V

IMSHAD IZRAR ALI

Counsel : Mr. M. Vosawale and Ms. S. Shameem for State

Mr. A. K. Singh for Accused

Hearing on : 15 May 2018 to 05 June 2018
Summing up on : 07 June 2018

SUMMING UP

Madam and gentleman assessors;

1. It is now my duty to sum up the case to you. I will now direct you on the law that applies in this case. You must accept my directions on law and apply those directions when you evaluate the evidence in this case in order to determine whether the accused is guilty or not guilty. You should ignore any opinion of mine on the facts of this case unless it coincides with your own reasoning. You are the judges of facts.
   
2. Evidence in this case is what the witnesses said from the witness box inside this court room, the admitted facts and the exhibits tendered. As I have told you in my opening address, your opinion should be based only on the evidence presented inside this court room. If you have heard, read or otherwise come to know anything about this case outside this court room, you must disregard that information.
   
3. A few things you heard inside this court room are not evidence. This summing up is not evidence. The arguments, questions and comments by the lawyers for the prosecution and the defence are not evidence. A suggestion made by a lawyer during the cross examination of a witness is not evidence unless the witness accepted that suggestion. The arguments and comments made by lawyers in their addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence only to the extent you would consider appropriate.
   
4. A statement made by a witness to the police can only be used during cross-examination to highlight inconsistencies. That is, to show that the relevant witness on a previous occasion had said something different to what he/she said in court. You have to bear in mind that a statement made by a witness out of court is not evidence. However, if a witness admits that a certain portion in the statement made to the police is true, then that portion of the statement becomes part of the evidence.
   
5. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. You must approach the evidence with detachment and objectivity and should not be guided by emotion. You should put aside all feelings of sympathy for or prejudice against, the accused or anyone else. Your emotions should not influence your decision.
   
6. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court, their behavior when they testified and how they responded during cross-examination. Applying your day to day life experience and your common sense as representatives of the society, consider the evidence of each witness and decide how much of it you believe. You may believe all, part or none of any witness’ evidence.
   
7. When you assess the testimony of a witness, you should bear in mind that a witness may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts and also the difficulties in relating those facts they remember in this environment. Sometimes we honestly forget things or make mistakes regarding what we remember.
   
8. In assessing the credibility of a particular witness, it may be relevant for you to consider whether there are inconsistencies in the evidence given by the witness. That is, whether the witness has not maintained the same position and has given different versions with regard to the same issue. This is how you should deal with inconsistencies. You should first decide whether that inconsistency is significant. That is, whether that inconsistency is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. If there is an acceptable explanation for the inconsistency, you may conclude that the underlying reliability of the account is unaffected. You may perhaps think it obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you might not expect every detail to be the same from one account to the next.
   
9. However, if there is no acceptable explanation for the inconsistency which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question. To what extent such inconsistencies in the evidence given by a witness influence your judgment on the reliability of the account given by that witness is a matter for you to decide.
10. Therefore, if there is an inconsistency that is significant, it might lead you to conclude that the witness is generally not to be relied upon; or, that only a part of the witness’ evidence is inaccurate; or you may accept the reason the witness provided for the inconsistency and consider him/her to be reliable as a witness.
    
11. You may also consider the ability and the opportunity a witness had, to see, hear or perceive in any other way what the witness said in evidence. You may ask yourself whether the evidence of a witness seem reliable when compared with other evidence you accept. These are only examples. It is up to you how you assess the evidence and what weight you give to a witness' testimony.
    
12. Based on the evidence you decide to accept, you may decide that certain facts are proved. You may also draw inferences based on those facts you consider as directly proved. You should decide what happened in this case, taking into account those proved facts and reasonable inferences. However, when you draw an inference you should bear in mind that that inference is the only reasonable inference to draw from the proved facts. If there is a reasonable inference to draw against the accused as well as one in his favour based on the same set of proved facts, then you should not draw the adverse inference.
    
13. As a matter of law you should remember that the burden of proof always lies on the prosecution. An accused is presumed to be innocent until proven guilty. This means that it is the prosecution who should prove that the accused is guilty and the accused is not required to prove that he is innocent. The prosecution should prove the guilt of the accused beyond reasonable doubt in order for you to find him guilty. You must be sure of the accused person’s guilt.
    
14. In order to prove that the accused is guilty, the prosecution should prove all the elements of the offence against the accused beyond reasonable doubt. If you have a reasonable doubt on whether the prosecution has proved a particular element of the offence, then you must find the accused not guilty. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. I will explain you the elements of the offence in a short while.
    
15. You are not required to decide every point the lawyers in this case have raised. You should only deal with the offence the accused is charged with and matters that will enable you to decide whether or not the charge is proved against the accused.
    
16. You will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion. But it is not necessary.
    
17. Let us now look at the Information. The Director of Public Prosecutions has charged the accused for the following offence;

Statement of Offence

Murder: contrary to section 199 and 200 of the Penal Code Act 17.

Particulars of Offence

IMSHAD IZRAR ALI on the 1^st day of November, 2009 at Samabula, Suva in the Central Division murdered Rajeshni Deo Sharma.

18. To prove the offence of murder in this case, the following elements must be proved beyond reasonable doubt by the prosecution;
    1. the accused;
    2. committed an unlawful act;
    100. that act caused the death of Rajeshni Deo Sharma (“deceased”); and
    4. the accused committed the said act with malice aforethought.
       
19. The first element of the offence is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that it was the accused who committed the offence and no one else.
    
20. An ‘unlawful act’ is simply an act or behavior that is not authorized by law. Simply, using of force on someone without any legal justification is an unlawful act. The act should be intentional. A person has intention when he means to engage in the conduct in question. This is the second element.
    
21. When you deal with the third element above, that is, the issue whether the unlawful act of the accused caused the death of the deceased, you should remember that the act of the accused need not be the sole or the principal cause, but the act should significantly contribute to the death of the deceased. Therefore, if you are satisfied beyond reasonable doubt that the accused’s conduct significantly contributed to the death of the deceased, that is sufficient to satisfy the third element above.
    
22. With regard to the fourth element which concerns the state of mind of the accused, the prosecution should prove beyond reasonable doubt that the accused acted with malice aforethought. Malice aforethought shall be deemed to be established by evidence proving any one of the following circumstances in relation to this case;

(a) an intention to cause the death of or to do grievous harm to the deceased; or

(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to the deceased, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.

23. Needless to say, it is not possible to have direct evidence regarding a person’s state of mind because no witness can look into the accused’s mind and describe what it was at the time of the alleged incident. Therefore, you should draw an inference on the state of mind of the accused from the relevant facts and circumstances you would consider as proved.
    
24. In order for you to conclude that the accused intended to cause the death of or to cause grievous harm to the deceased, you should be sure that he meant to bring about the death or grievous harm, or that he was aware that death or grievous harm will occur in the ordinary course of events as a result of his conduct. You should consider all the evidence and draw appropriate inferences to ascertain whether the accused had the intention to cause the death of or grievous harm to the deceased.
    
25. If you find that the accused did not have the intention to kill or to cause grievous harm to the deceased or you are not sure whether he had that intention, you should then consider whether the accused had the knowledge that his act or omission will probably cause the death of or grievous harm to the deceased although such knowledge was accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.
    
26. In the event you are satisfied beyond reasonable doubt that the prosecution has proved the first three elements and had failed to prove the fourth element, then you should consider whether the accused guilty of the offence of manslaughter.
    
27. The offence of manslaughter is an offence having a lesser culpability than murder. When you consider whether the accused had committed the offence of manslaughter for the reason that you find that the prosecution has not proved the fourth element of murder as stated above, you should consider whether the prosecution has proved beyond reasonable doubt that the accused intended to cause serious harm to the deceased or the accused had the knowledge that serious harm will be caused to the deceased although such knowledge was accompanied by indifference whether serious harm is caused or not, or by a wish that it may not be caused.
    

Provocation

28. There is one other matter you should remember. Even if you are satisfied beyond reasonable doubt that the elements of the offence of murder are established, if it occurs to you that the act which caused death was done in the heat of passion caused by sudden provocation and before there was time for his passion to cool, the accused is guilty of manslaughter only.
    
29. In the context of this case, ‘provocation’ would mean, any wrongful act or insult of such a nature as to be likely when done to an ordinary person to deprive such ordinary person of his power of self-control and to induce him to commit an assault of the kind which the accused committed on the deceased. When I say ‘ordinary person’, you should think of an ordinary sober person of the accused’s age who has ordinary powers of self-control expected from a person of that age.
    

Evidence

30. First prosecution witness (PW 1) was retired Inspector of Police Mr. Maha Ram. He said that;
    1. Upon being informed about a report lodged by the accused on 03/11/09 he visited the scene at 204 Rewa Street, Samabula on the same day. He said the scene of crime officers were already there when he arrived. He entered the house through the back door and he saw a female lying down facing upwards with blood stains. As the scene of the crime officers were doing their investigation, he came out of the house and formed a team to investigate the case.
    2. At the crime scene he noticed that there is no sign of break-in or forced entry. The front and the side gates were intact. He said all the doors were good. He said the female was lying down in the kitchen and blood stains were seen on the floor. He saw that items were scattered.
    100. When he visited the crime scene the accused was also there outside the house. He said the accused was standing in one corner and he noticed that sometimes the accused was sitting down with his hands on his face and looking here and there.
    4. After the investigation they had suspicion about the accused and therefore he directed to bring the accused in. Accordingly the accused was brought to the police station on 12/11/09. Sgt Sunil Kumar brought the accused to the crime office for the interview. He said the accused was normal when he received him and the accused did not make any complaint. He was the witnessing officer and Inspector Abhay Nand conducted the cautioned interview of the accused. The cautioned interview of the accused was tendered as PE 1.
    5. He said he was present throughout the interview and the accused was not assaulted, threatened or verbally abused. He said all the rights were given to the accused. He said at the commencement of the interview the accused wanted to go to the hospital because he had some pains and the accused was accordingly taken for a medical examination at Raiwaqa Health Centre. They did take the accused to the Samabula Health Centre but because it was very busy they took the accused to the next nearest health centre which was Raiwaqa Health Centre.
    6. He said the police officers were not there with the accused when the accused was with the doctor. They were standing away from where the doctor was examining the accused. After the medical examination the accused was again taken to the Samabula Crime office and they continued the cautioned interview.
    7. He said all the answers in the cautioned interview were given by the accused and he did not make up any answers. He said he did not induce the accused to make admissions. He said the accused was given lunch and dinner in the same room. He said sufficient breaks were given to the accused during the interview. He said there is a non- commissioned officer always in the charge room with the station orderly and the inquiry man and they are responsible for prisoners in the cell during the night. He said the accused was allowed to meet his solicitor.
    8. He said the accused voluntarily started confessing during the interview and then they suspended the interview and went to the crime scene with the accused for the scene re-construction.
    9. During cross examination he agreed that the fact that he noticed there were no signs of break-in and that all doors were good are not written in the previous statements he had made that were shown to him. He said since he came to the court regarding this case his mind went directly to the crime scene on 03/11/09 and he still remembers the scene. He also agreed that what he said about the accused standing outside in one corner putting his hands on the face is also not mentioned in his statements.
    10. He denied informing the accused to come to the police station on 12/11/09. He said the accused did not tell him that Cpl. Vereivalu punched the accused and that the accused lost half of one of his teeth.
    11. He agreed that the answer to Question 346 is not there and he said Inspector Abhay Nand may have overlooked to write it.
    50. When it was pointed out that in entry number 130 of the Samabula Station Diary for 12/11/09 it is stated that he instructed that the Prisoner Ali should not have visitors, he said the accused’s solicitor, spouse and ‘religious man’ were not denied to visit the accused by that instruction. When it was pointed out that the accused was given a tablet and a cup of water according to entry number 139 and suggested that it was because the accused started suffering due to the assault and he was threatened, he denied and said that the tablet was given because the accused was diabetic and the accused had his tablets in a small bag which was always kept with the accused.
    13. When it was suggested that the accused was urinating blood because of the assault that infected the accused’s kidney, he said the accused just informed that he was urinating blood but the police officers had not actually seen that. He further said that nobody assaulted the accused. He said the accused was taken care of when in custody and the investigating officer was visiting the accused whenever the accused complained and even at night.
    14. He denied the suggestion that IP Abhay Nand made the accused to do push-ups telling the accused that it will make him fresh. He also denied the suggestion that IP Abhay Nand kicked the accused and that he warned the accused that the accused will get more hiding if he does not cooperate. He denied the suggestion that IP Abhay fabricated the answers in the caution interview.
    15. Again it was pointed out that in entry number 161 of the station diary entries for 13/11/09 it is stated that he had instructed no one should communicate with the accused he said it was regarding anyone other than the solicitor, spouse or the religious person.
    16. During re-examination he said they continued with the cautioned interview because the accused was cooperating and was not objecting. He said the accused was asked to explain what he meant by situational pressure in answer to Q.296 but the accused did not answer that. He said the accused was treated very fairly and the accused was cooperating from the beginning.
        
31. The second prosecution witness (PW 2) was Miliana Utovou. She said that;
    1. She is a pre-school teacher. She said from 2006 to 2009 she was employed by the deceased whom she used to call Sonia. From 2001 to 2003 she studied together with the deceased at USP. From 2008 to 2009, apart from the two of them a student from USP who came to do practical work and the accused were involved in the school.
    2. She said the accused sometimes used to come to the classrooms and cause trouble to the kids. She said according to what she had witnessed the relationship with the accused and the deceased was not good. She had seen the deceased crying most of the time. She said sometimes the accused used to drag and punch the deceased in front of herself and the kids. She said one day the accused nearly threw a chopper at her. She had seen the deceased being dragged and punched on more than one occasion. She said these matters were reported to the police.
    100. During the period she worked under the deceased the accused was unemployed and she had heard and seen the accused ask about the deceased’s money. She said the accused used to ask for money from the deceased on Fridays. She said when sufficient money was not collected during the week the two used to fight. She said when they fought the accused was a different man. She said he is very different when he is angry. She said by saying very different she meant that the accused would throw anything he sees in front of him and he would slap and drag. She had seen the accused throwing cups, spoons, kids’ jig-saw puzzles and even a piece of wood at the deceased. She said the accused had kicked and punched the deceased in front of her and the children when he was angry.
    4. The sitting room of the flat was used as the kindergarten and the other two rooms were used by the deceased and the accused. She said she left that school because she could not face what was going on in the school. Even after she left she had contacts with the deceased because the deceased was her best friend. She said in the month of November before the deceased died in the middle of one night she had received three missed calls from the deceased.
    5. During cross examination she agreed that she does not like the accused because of a dispute she had with the accused. She said she allowed the accused to stay in her house one night because the accused did not have any other place to go as the deceased chased the accused out and threw all his stuff outside the house.
    6. She said she had complained about the accused to the Raiwaqa Police station several times. She agreed that the deceased requested her to withdraw the complaint she made against the accused after she (the witness) was chased out from the school by the accused one day. She agreed that the reason the deceased requested her to withdraw the complaint was because the deceased did not want the accused to be in any problem.
    7. She said her statement was given to her by the police one week before and she had gone through it every day.
    8. She agreed that the accused was a director in the school. She agreed that the deceased did not report about the accused to the police because the deceased loved the accused. She agreed that she did not mention about the accused throwing a chopper at her and throwing items, in her statement made to the police. She said she was in shock when she was at the Samabula Police Station to give her statement and she could not remember at that time. But when she was at home she recollected what happened at school and everything that happened.
    9. She said during re-examination that she resigned from that school on 01/01/09. She said the punching and the dragging started in 2008 before they moved to Howell Road.
       
32. The third prosecution witness (PW 3) was Ana Ue Barbara Naisoro. She said that;
    1. She was living in one of the two flats at 204 Rewa Street from January 2009 to 2010. The other flat was occupied by the deceased and the accused.
    2. On 01/11/09 after lunch while she was watching TV she saw the accused and the deceased arguing outside in the yard. The deceased was seated inside the car while the accused was shouting in Hindi at the deceased. She went to bed around 8pm that day. Late into the night she woke up because of a leg pain and she heard the dragging sound of furniture across the tile floor from the other flat where the deceased and the accused were living.
    100. On 02/11/09 she woke up around 4am and she heard chains rattling. She said that was a common occurrence on a Monday morning because the accused would often leave around 4am on Mondays. However she did not see who was leaving that morning.
    4. She said the gate is made of steel and it is about 6ft in height, 12ft in length.
    5. On 03/11/09 the accused came to see her in her office around midday and asked her if she had seen the deceased. She said she told him that she hasn’t. Then the accused asked her key for the gate. She refused to give her key and told him to come back if he ‘had no luck’ and she will come with him to open the gate. She said the accused was insisting that she give her keys because he was worried about his wife. She said the accused kept repeating himself.
    6. Roughly about an hour later the accused came back saying that he could not get into the compound. She then went with the accused to the flat and opened the gate. She said when they arrived police officers were there.
    7. She said it is not possible for someone to climb over the gate but it is possible to climb over the fence.
    8. During cross examination she said when she saw the accused and the deceased arguing, the accused was beside the car while the deceased was sitting inside the car. She said the couple drove in before they had the argument. She agreed that the accused was worried when he came to see her in her office.
       
33. The fourth prosecution witness (PW 4) was Etuate Naibitakele. He said that;
    1. He is a police officer based at the Nabua Police station and he was based at the Samabula Police station in November 2009. He said he and constable Palu went with the accused on 03/11/09 to check the accused’s residence to check on the accused’s wife and they reached the house around 01.20pm. The caretaker of the house was already there as the accused had already contacted the caretaker to bring the spare keys. He said they could not open the gate using the keys brought by the caretaker. He said there were two gates for that residence, one was a small gate where one person could walk through.
    2. He said the accused then brought one Ana Naisoro who opened the gate. Then they tried to open the front door but they could not. He then went to the back of the building and he noticed that the grill and the back door were partially open and a bunch of keys were hanging on a padlock which was on the grills. There was a hose pipe that ran from outside into the house which stopped the grill and the door from being closed. He said the caretaker was behind him and the accused was behind the caretaker. Then constable Palu came and took the keys from the padlock and asked the accused whether the keys in the padlock are supposed to be with his wife. The accused said that he does not know those keys and they do not belong to them.
    100. Then constable Palu opened the grill and the door and entered the flat. He said the caretaker made his way into the kitchen, constable Palu checked both toilets and bathrooms and the accused was right beside him. All of a sudden the caretaker yelled out saying that somebody is lying on the kitchen floor. At the same time he heard the accused crying out “what happened, what happened” and he saw the accused leaning himself against the kitchen wall.
    4. He said he was surprised of the accused’s response when the caretaker yelled out as he expected the accused to go and check on who is lying on the floor. From where they were standing they could not see the person who was on the floor. He then went to the person lying on the ground and he saw that the head was covered in a pool of blood. He checked the pulse and he could not feel any pulse and the leg was very cold.
    5. He then signalled constable Palu to take the accused and the caretaker out of the building because it is a crime scene. He said he noticed that the house was ransacked.
    6. During cross examination he admitted that he had not mentioned in his police statement that the deceased was lying on the floor in a pool of blood.
       
34. The fifth prosecution witness (PW 5) was Alusio Palu. He said that;
    1. He is a police officer and he was based at the Samabula Police station on 03/11/09. He received a call around 8.20am from the accused. He gave the phone to a woman police constable because the accused was talking in Hindi. He said the accused called from Nadi and complained that the accused’s wife cannot be contacted and that the accused had been informed by a parent that the gate to the kindergarten is locked.
    2. He said the accused came to the Samabula Police station around 1.10pm. He went with constable Etuate and the accused to 204, Rewa Street. They could not open the gate and then the accused brought one lady namely Ana who opened it. The caretaker was also there. They could not open the front door. Then they went to the back of the house and they saw a bunch of keys hanging on the door which was slightly open from inside. He said Mr. Ratnam (the caretaker) told him that he saw a body and then he went to check the body.
    100. He saw a lady lying down facing upwards and the head was covered with blood. He said he saw that the accused was in shock during this time.
    4. During cross examination he agreed that the accused told him when he called that he left the house at 4am on 02/11/09. He also agreed that the accused was very concerned about his house. He agreed that he wrote in his police statement that ‘her head was bleeding” and also agreed that he had not mentioned in his police statement that the deceased was in a pool of blood.
    5. During re-examination he said when he wrote in his statement that ‘her head was bleeding’ he meant that her head was covered in blood.
       
35. The sixth prosecution witness (PW 6) was Sakiusa Jitoko. He said that;
    1. He is with the scene of crime unit for the past 13 years. He holds a graduate diploma in forensic science. He said he went to examine the scene at 204, Rewa Street with WPC Karishma around 3pm on 03/11/09. He said he took a visual examination of the entire area cordoned by the police and WPC Karishma took photographs of the crime scene.
    2. He said the first item he found as one contributing to the death was a white electrical kettle cord which was on the kitchen sink and uplifted it. He tendered the said kettle cord as PE 2.
    100. He examined the deceased’s body. He said the body lay on the kitchen tile floor facing upwards and he could see bruise marks on the neck and on the left jaw. There was blood below the head. There were blood stains below the legs. He noticed that there was a metal chair fallen beside the deceased’s body. He uplifted a black lady’s hand bag and it was tendered as PE 3. He said he also uplifted a black wallet that was found on the dining table and he tendered it as PE 4.
    4. He tendered the rough sketch plan he prepared as PE 5A and the fair sketch plan as PE 5B. He also tendered the photographic booklet compiled with the photographs taken by WPC Karishma as PE 6.
    5. He said the crime scene was under the custody of the crime scene unit for seven days and after that he handed over the keys to the crime officer at the Samabula Police station.
    6. Thereafter as requested by the investigating officer, he attended the reconstruction of the scene that took place on 14/11/09. He said during the reconstruction, the accused showed an iron rod which was inside the bedroom below the double bed and he photographed and uplifted the said iron rod. He tendered that iron rod as PE 7.
    7. During cross-examination he agreed with the suggestion that when he uplifted the items he had no evidence that the said items were connected to the death of the deceased. He said the bruise marks around the deceased’s neck caused him to uplift the kettle cord.
    8. He said he uplifted the kettle cord on 04/11/09. Again when it was suggested that it was picked on 03/11/09, he agreed. He denied the suggestion that the item shown on the photograph number 8 and the lady’s handbag PE 3 does not match. He agreed that he tried to search for items that may have been used on the deceased to cause the injuries and that he had inspected all the bedrooms by 04/11/09. He said he noticed the iron rod on the first day he examined the scene. He denied the suggestion that the iron rod was planted at the scene after the keys were handed over to the investigating officer. He said, the iron rod was marked as crime scene number 6 and photographed on the 14^th. He said that the photograph is not available in the booklet which was prepared before the 14^th November.
    9. He agreed that he had not mentioned in his police statement dated 17/11/09 that the accused showed him the metal iron rod. He said no blood was found on the iron rod, PE 7. He said he recovered some vegetables and fruits inside the accused’s car.
    10. During re-examination he said he uplifted the electrical cord on the 3^rd but he made the markings on the following day. He said the accused showed the iron rod by pointing to it and he did not write that in his statement because at that time there were other police officers.
        
36. The seventh prosecution witness (PW 7) was DC 2195 Samuela Namusu. He said that;
    1. He had been in the Fiji Police force for 28 years and he was stationed at the Samabula Police station in 2009. On 12/11/09 he was instructed by crime officer Samabula to look for the accused. He again said that he received the instructions to look for the accused on 10/11/09.
    2. On 11/11/09 a photograph of the accused was shown to the receptionist of Safs motel and later the receptionist called and informed the police that the accused will be checking out at 10am the following morning.
    100. He went to the Safs motel together with Sgt. Joape, Corporal Viliame and Detective Constable Loki on 12/11/09 at about 10.00am. When they were waiting at the gate next to the reception they were informed by the workers that the accused is coming out from the complex. Corporal Viliame then showed his ID card to the accused and informed the accused that they are police officers. When Corporal Viliame was informing the reason they had to arrest the accused the accused suddenly turned back and wanted to go back to the place where he came out from.
    4. Then he got hold of the accused’s hand. He said when they arrested the accused the accused was shocked and that is why the accused wanted to turn back. Then they escorted the accused to the police vehicle. Inside the vehicle he sat in the front passenger seat, the accused sat in the middle of the back seat and Cpl. Viliame and Constable Loki sat beside the accused. Sgt. Joape was the driver. They reached the Samabula Police Station at 10.20am. It took about 20 minutes to reach the Samabula Police Station because there was traffic that morning.
    5. They handed over the accused to Sgt. Sunil at the Samabula Police Station. Thereafter he came into contact with the accused again when the accused was taken for a medical check-up and then when the accused was taken for the scene reconstruction.
    6. He said when the accused was taken to the hospital he went in another vehicle for security purposes. He said he or the other officers did not conduct themselves improperly towards the accused.
    7. During cross examination he agreed that he had not mentioned in his police statements that the receptionist of the Safs motel called them on 11/11/09. He also agreed that it is not stated in his police statement that the accused suddenly turned back. When it was pointed out that he had stated in the statement dated 02/08/10 that D/Cpl. Vereivalu arrested the accused and he had stated in the statement dated 16/10/17 that he arrested the accused, he said the first statement is correct.
    8. He said even though he had mentioned in his statement dated 02/08/10 that they were tasked to look for the accused on 12/11/09, he said he was tasked on the 10^th as he was also working on another case that day.
       
37. The eighth prosecution witness (PW 8) was Abhay Nand. He said that;
    1. He joined the police in 1984 and in 2009 he was based at the CID Headquarters, Suva. On 04/11/09 he was directed to assist the crime officers of the Samabula Police Station with regard to this case. He said he had to analyse the evidence from the witness statements and he also assisted in writing some of the witness statements.
    2. On 12/11/09 he was instructed to conduct the cautioned interview of the accused. Accordingly, he conducted the cautioned interview of the accused at the crime office at Samabula Police Station and Inspector Maha Ram was the witnessing officer.
    100. He said the accused looked a bit scared and pale. He identified PE 1 as the original cautioned interview statement he recorded. He also tendered a typed version of the cautioned interview as PE 1A. He then read the cautioned interview in court.
    4. He said on 14/11/09 during the reconstruction of the scene the accused showed an iron rod and thereafter the forensic officers collected that iron rod. He said he had missed out in writing the answer at Q.346.
    5. He said as the accused wanted to see a doctor after Q.16, the police took the accused to the Raiwaqa Health Centre. He said the accused was not threatened, assaulted or verbally abused when the interview was recorded from 12/11/09 to 14/11/09.
    6. During cross examination it was suggested that the accused was not allowed to read the caution interview because it took him 87 minutes to read the typed version in court and according to the interviewing notes the accused was given only 47 minutes to read the hand written version. He denied and said that the accused was given the opportunity to read the interview. It was also suggested to him that if the caution interview was given for the accused to read the accused would have pointed out that there is no answer for Q.346.
    7. He agreed that it is not mentioned in his police statement that the accused looked a bit scared and pale. He said he cannot recall being present when the accused was examined by the doctor. He denied the suggestion that the accused started to change his story about the key after the accused was threatened to be assaulted by police officers. He agreed with the suggestion that the accused had been giving different versions regarding what happened.
    8. When he was questioned about the answer given to Q.296 where the accused had said ‘situational pressure’, he said when the accused was asked in the following question what he meant by situational pressure the accused’s answer was ‘I wish to remain silent on that’.
    9. It was suggested that the first two versions in the cautioned interview were false because the accused gave them due to the fear of assault from police officers. He said that those were the answers the accused gave and there was no assault or threat made to the accused. He also denied the suggestion that he had fabricated answers to Q.217, Q.218, Q.230 and various answers after Q.232.
    10. When he was asked why the accused was not given a break between Q.153 and Q.196 and also between Q.197 and Q.267 he said the accused was informed in the beginning that he can ask for breaks and the accused did not ask for any breaks during those questions.
38. The ninth prosecution witness (PW 9) was Dr. Sereana Tagici Wood. She said that;
    1. She graduated as a doctor in 2006. She was attached to the Raiwaqa Health Centre in 2009. She said she examined the accused on 12/11/09 when he was brought to her by two police officers. The medical report she prepared was tendered as PE 8.
    2. She said that during the examination only the accused was there inside the consulting room. She said the two police officers were outside the door. She said the accused complained of chest pain. According to her the accused had told her that he is having a chest pain which radiated to the left arm and also had stated that he is feeling dizzy. She was also informed that the accused was under medication and that he was a patient at the special outpatient department in Colonial War Memorial Hospital (“CWM”).
    100. She said the symptoms associated with a heart attack were not present when she examined the accused.
    4. She said the accused had a past medical history of kidney stones in September 2009. She was also told that the accused is a diabetic patient and he is taking insulin two times a day. She said some of the symptoms of having kidney stones would be; having pain on passing urine, having blood in the urine, severe lower back pain and pain that comes in waves.
    5. Her initial impression was that the accused was alert, not in any respiratory distress and the accused was answering questions well. There was no severe or immediate signs of distress. She had noted that the chest pain was only verbal. She said that the accused did not have the symptoms a person who is having a chest pain would be having.
    6. She said she noticed a left abdominal laceration which was 1cm X 1cm during the physical examination. The accused’s head, eyes, ears, nose and throat were normal. The accused’s chest was clear, abdomen was soft and his hands and legs were normal. She said the accused’s ECG, blood pressure and the random blood sugar were also normal.
    7. She said she was not able to confirm how old the laceration was. She said a laceration is a break or tearing of the skin. The laceration she observed was not bleeding and it did not look fresh. It was just there. She said when she observed that the accused’s head, eyes, ears, nose and throat were normal that means that the accused was not having any infection, laceration, bleeding, contusion or discharge in those areas.
    8. She said there were no other markings on the abdomen apart from what she had written. Her professional opinion was that the accused was fit to make a statement.
    9. She also recorded that the accused was having a depressed demeanour. By that she meant that the accused’s mood was low; was feeling low and speaking low.
    10. During cross examination she said she relies on the medical report and her memory to give her evidence. She said they would remember unusual cases, high risk cases and serious cases. She was asked to point out in the medical report where the accused had complained of assault. She said it is not there. When she was asked whether the two police officers who escorted the accused could hear the conversation between her and the accused she said ‘I wouldn’t know’. She said when somebody punches, there will be redness and swelling straightaway. When it was suggested to her that the pain in the accused’s chest was due to assault she said she did not see any signs of assault.
        
39. The tenth prosecution witness (PW 10) was Inspector Mukta Ahmed. He said that;
    1. He has been in the police for 29 years. In 2009 he was based at the CID Headquarters Major Fraud Unit. On 14/11/09 he was directed by his supervisor to record a charge statement of a murder suspect at the Samabula Police station. Accordingly he recorded the charged statement of the accused. He said the accused did not make any complaints to him when the accused was brought to him. He said the accused looked normal. The charge statement of the accused was tendered as PE 9. He said the answers recorded in PE 9 are the answers given by the accused and the statement after Q.6 was made by the accused. He said he or the witnessing officer did not make any false promise, threaten or assault the accused.
    2. During cross examination he denied the suggestion that he did not ask the accused whether he wants to make a statement. He denied the suggestion that he knew the accused prior to charging. He denied the suggestion that the accused never made the statement written in the charge statement and that he told the accused to sign as the court will consider that the accused had no intention to kill. He also denied the suggestion that he told the accused that he will have more problems if he does not sign.
       
40. The eleventh prosecution witness (PW 11) was retired Dr. Ramaswamy Ponu Swamy Goundar. He said that;
    1. He conducted the post-mortem of the deceased on 13/11/09 and he signed his report on 10/11/09. His CV was tendered as PE 10 and the post-mortem report he prepared was tendered as PE 11.
    2. He said the estimated time of death was between 9pm and 11pm on 01/11/09. He said in arriving at that approximate time of death he had taken into account the history as given by Police Officer Atish Lal who was present during the examination; rigor-mortis and also putrefaction of the body. He said rigor-mortis starts immediately after death and goes on for approximately 24 hours or so. Thereafter the rigor-mortis starts waning off.
    100. He said the history given by the officer was that there was a disturbance in the flat according to the neighbour in the adjacent flat.
    4. Explaining injury number 01 in the post-mortem report he said a contusion is the haemorrhage in the skin and just below the skin in the soft tissue without any breach in the skin surface. He said it can be caused by striking or even a compression on the skin. He said given the size of the contusion, very severe force must have been applied. He said injury number 02 is a groove on both sides of the contusion that is described under injury 01 and the impression created was quite deep and went around backwards around the neck. In his opinion, the injuries number 01 and 02 could have been caused by the kettle cord PE 2.
    5. On injury number 03 he had observed that the lips and whole of the face were dark blue in appearance. He said the haemorrhage in the mouth he had noted under injury 04 was due to the rupture of the blood vessels inside the mouth. He explained that those injuries could be caused due to whatever caused the first two injuries.
    6. He said the injuries number 05 and 06 noted in the eyes are usually caused by asphyxia.
    7. Injury No. 07 which was over the left jaw bone, he said, is likely to have been caused by a blunt object.
    8. He said injury number 8 which was observed under the skin where injury number 02 was placed, also suggest that compression must have been applied.
    9. He said the injury number 09 could have been caused by the severe pressure on the area where the injury No. 01 is located.
    10. Explaining injury number 10, he said that injury on the right side of the skull could have been caused by a blunt object and severe force should have been exerted. He said such injury could lead to loss of consciousness and also blood loss if the blood oozes out.
    11. Explaining the 11^th injury he said he noted haematoma over the fourth neck bone and this would have been also caused by the compression over this area.
    50. He said the injury noted at number 12 was over the sixth neck bone and it could have been caused by a blunt object.
    13. Upon being shown the rod tendered as PE 7 he said the injury number 10 can be caused by such an iron rod.
    14. He said the injury number 07 could have been caused by a kick.
    15. He said in his opinion the cause of death was asphyxia due to strangulation.
    16. During cross examination he said he did not form an opinion regarding the time of death when he visited the scene on 03/11/09 because he would not examine the body and would not disturb the scene when they visit the crime scene. He agreed that Police Officer Atish Lal informed him that there was a disturbance in the deceased’s house between 9 and 11pm. When he was asked is it possible that the deceased may have died sometime before 6pm on 02/11/09 given that there was no rigor-mortis in the deceased’s body when he examined the body, he said ‘no’.
    17. When he was asked about a statement found in a book on forensic medicine to the effect that it is only within the first 12 to 18 hours that any reasonable accuracy can be expected as to the time to death, he pointed out that the book the defence counsel was quoting from is a 1978 edition which is pretty old and lots of changes have taken place since then. He also pointed out that what was suggested by the counsel was only an opening statement of a paragraph and there are number of factors which can alter the assessment of the time of death.
    18. When he was asked whether his estimated time of death would have been different if he was not informed of what Police Officer Atish Lal told him, he said ‘no’. He said the other two factors he had considered are the two strong indications and as he mentioned in his report that the approximate time of death was more than 48 hours and he just “put it as 8 to 11”.
    19. He agreed to the suggestion that after he was told by the Police Officer Atish Lal that there was a disturbance between 9pm and 11pm and based on the other two factors he came to the conclusion that the deceased died between 9pm and 11pm.
    20. When he was asked whether the injury number 07 could be consistent with a fall on the concrete floor especially if the person was pushed backwards, he said ‘no’ and explained that in such a case the person would hit the back of the head on the floor or if the person fell on the side of the face the injury will be on the left side of the face. He said the injury he described was confined to the left jaw bone only. He also said ‘no’ when he was asked whether the injury number 10 could have been caused by falling on the floor with a ‘hard push’.
    21. He said the smooth cord with which the injuries number 01 and 02 had been caused should have the diameter of approximately 10mm because the groove he noted was 10mm.
    5. He said injecting insulin on the abdomen will not produce a laceration. He also said that, given the food that was noted in the deceased’s stomach the deceased would have had a meal an hour or two before she died.
       
41. The twelfth prosecution witness (PW 12) was Rishi Ram. He said that;
    1. In 2009 he was a Justice of the Peace (JP) and on 14/11/09 he conducted a face to face interview with the accused on the request of the crime officers from Samabula Police Station. He said this interview was conducted sometime after midday.
    2. During the interview there were no one else present apart from him and the accused. When he first looked at the accused the accused looked like he was very upset. He said he recorded the interview and the accused and himself signed on the last page. He said he had conducted about seven to eight interviews in other murder cases and he had followed the same practice where the signatures are placed only on the last page. He tendered the statement he recorded as PE 12.
    100. He said he could not do much apart from conducting the interview at that time because the accused was already taken to the hospital and was already given medical attention.
    4. He said the accused lifted the shirt and showed him some scratch marks on the back side and it looked like when someone had scratched by finger nails.
    5. During cross examination he agreed that the accused told him that, from the time the accused was arrested the accused was assaulted by police officers. He denied the suggestion that the accused complained that the accused was not given his medication. He agreed that when he saw the accused the accused was very tired due to long hours of questioning by the police officers. He said the accused did not show his stomach.
       
42. The thirteenth prosecution witness (PW 13) was Sunil Kumar, the Crime officer based at Lami Police Station. He said that;
    1. On 03/11/09 he was on duty at the Samabula Police Station. He went to 204 Rewa Street, Samabula upon being briefed with regard to an Indian lady who had been found dead inside that house.
    2. After he saw the body, he immediately took charge of the scene, cordoned the area and briefed his supervisors and the scene of crime officers. When the scene of crime officers arrived he handed over the scene to them.
    100. He said when he went to the scene he saw the accused sitting beside the house quietly and was facing Rewa Street.
    4. He said on 12/11/09 at about 10.30am Cpl. Samuela brought the accused to the Samabula Police Station and handed the accused over to him. He took the accused and handed him over to Inspector Abhay and Inspector Maha Ram.
    5. After some time the same day, he was instructed by Inspector Maha Ram to arrange a vehicle for the accused to be taken to a doctor. The accused was first taken to Samabula Health Centre, but because it was very busy they took him to the Raiwaqa Health Centre.
    6. After that the accused was again taken to the Samabula Police Station for the continuation of the interview. He visited the interview room in order to see whether anything else is required from him.
    7. He said the accused was locked in the police cell in the afternoon. When the accused was in police custody during the day the responsibility of the accused was with him and the interviewing officers. After the accused was locked in the cell, the uniform officers who were on duty manning the station were responsible for the accused.
    8. He said the accused was arrested on 12/11/09 and was taken to court on 16/11/09. As the investigating officer he was aware of the accused’s health. He said the accused was taking a diabetic injection and the accused also had some tablets which he did not know for what purpose.
    9. He said that he did not conduct himself improperly towards the accused and he did not witness any other police officer conducting himself inappropriately towards the accused.
    10. During cross examination he said the iron rod was shown by the accused on the day of the scene reconstruction which was on the 14^th and because of that there is no photograph of the iron rod in the booklet, PE 6. He denied the suggestion that an iron rod was not uplifted from the scene by the crime scene officers and said that it was uplifted by Corporal Jitoko.
    11. A document containing a flow chart of incoming and outgoing calls of the accused’s phone and the deceased’s phone was tendered as DE 2. He agreed that there were several calls made from the accused’s phone to the deceased’s phone on 02/11/09.
    50. He agreed that he was aware that the accused had complained that the accused was urinating blood and also that the accused was not taken to a hospital. He agreed with the station diary entry where it says that he instructed the accused to be taken to the hospital if the accused requested. He denied the suggestion that the accused told him that he wants to go to the hospital when he visited the accused at 12.18am on 13/11/09.
    13. He said the accused was given a pillow, blanket and a mattress. When he was questioned about the station diary entry number 87 on 15/11/09 where one of the accused’s relatives had come to see the accused, he said he got to know about that when he returned with the accused from the hospital. He said that person did not come back to the station though he was informed to come back.
    14. He denied the suggestion that the accused was not allowed to have a shower until 15/12/09. He said the non-commissioned officers are responsible for taking the prisoners to have a bath or to the wash room and sometimes when the entry is made that the prisoner has been released to go to the wash room the prisoners have a bath as well as the wash room and the bathroom are in one room.
    15. When he was questioned about station diary entry number 125 on 15/11/09, he said the tablets given were the same medication the accused was using which was in the accused’s bag.
    16. During re-examination he said in the flow chart of calls the six calls made from the accused’s phone to the deceased’s phone were not received by the deceased.
    17. He said after he was informed that the accused was urinating blood he went to the station and spoke to the accused. He said the accused asked for his medication and thereafter he informed the accused and the officers that if the accused urinates or complains the accused should be taken to the hospital by the Southern Division Command Centre Quick Response team. He said there were no complaints after that.
    18. He said, according to their procedure the accused was taken to the hospital two times and that is why he was again taken to the hospital on 15/11/09.
        
43. That was the case for the prosecution. At the end of the prosecution case you heard me explain several options to the accused. He had those options because he does not have to prove anything. The burden of proving an accused’s guilt beyond reasonable doubt remains on the prosecution at all times. The accused opted to give evidence on oath.
    
44. The accused said in his evidence that;
    1. He is a diabetic patient who is on insulin therapy, he has a kidney problem and heart issues. He said he came to know the deceased after she made an advertisement on paper in 2008. He spoke to her over the phone and then they started their friendship from there. He said his relationship with the deceased was very healthy, very cordial, very understanding and very loving.
    2. He went to live with the deceased in early 2008. He was asked by the deceased to assist her with her pre-school. His role in the pre-school was to assist in the administration work, all office duties including banking, organising salaries for the staff and any other work.
    100. He said he used to go to the Western side from 204, Rewa Street almost every second or third week. He used to leave Suva normally on early Monday morning at about 3.30am or 4am.
    4. He said on 01/11/09 he with the deceased, went to watch a movie in the morning, had lunch at McDonalds and did some shopping at Nabua. They came home around 3.00pm and they slept for a while. He said when they reached home around 3.00pm, he opened the gate and he shouted at his wife to drive the car in as she was scared to drive in because of the narrow driveway. Thereafter he went and drove the vehicle inside. He said when he said shouted it is not in the sense that he was angry but he called out to her to drive in.
    5. They woke up around 5.30pm. They did some cleaning and the deceased washed the clothes and hanged them outside. Thereafter they had a shower and had dinner. After dinner the deceased ironed his clothes. Around 8pm they went to the room and they pulled the bed to change the bed sheet. Thereafter both of them were lying on the bed and he was reading the Saturday paper listening to the radio. He said they had to pull the bed forward to change the bed sheets and it was the sound the witness Ana Naisoro was referring to. While they were sleeping there was a call on the deceased’s mobile and the deceased told him that it was a wrong number.
    6. They woke up at 3.30am on 02/11/09. He said the deceased changed her clothes and prepared his breakfast. After he had his shower they ate one sandwich each. Thereafter the deceased packed the coffee and the leftover sandwich for him to take. He said they made coffee using the gas stove as their electrical jar stopped working about a week before. He said the deceased opened the main door from inside and the grill door using the keys. She then wore her red sports shoes and put his clothes together with the food in the car. He said the deceased opened the gate for him, they kissed at the gate and the deceased told him to bring mangoes from Ba. Then it started to drizzle and the deceased told him that she has to pick the clothes from the line outside. Then he drove off.
    7. He said the previous night the deceased was wearing a light blue top and mini pants. The mini pants were left on the table. He identified the said pants on photograph number 7 and number 9 in PE 6. He said when he left, the lights outside and inside the house were on.
    8. He said he stopped at Lami to withdraw some cash from the ATM and pumped fuel. He stopped at Sigatoka to urinate. After going to Nadi he went to Ba. He said, on that day he tried to call the deceased several times but there was no response. He thought that she is busy in school.
    9. On 02/11/09 he received a call from a parent asking him why the school was not open that day. He said he called another parent who told him that the school is okay. That evening he went to his uncle’s house to show his car as he was selling it. On 03/11/09 the same parent who called him the previous day called him again around 7.00am and told him that the school is not open. He quickly dressed up, picked some mangoes and some egg plants from home and left for Suva. He arrived in Suva before 1.00pm. On his way to Suva he called Samabula Police Station and requested police to go and check on the school because he was unable to get in touch with the deceased and because he was very worried. He came to 204, Rewa Street and called out, but there was no response from inside. He couldn’t go inside because he did not have the keys and it was impossible for him to jump over the fence because in 2009 he was big and fat. He said he left the keys with the deceased before he left for Nadi.
    10. He went to Ana Naisoro and asked whether she had seen or know anything about the deceased who told him ‘no’. He said that Ana Naisoro told him that she heard the pounding of garlic after he left. She refused to give the keys for the gate. Thereafter he went to his landlord to get the spare keys. He was told to first report to the police and to come with the police because the agreement was not under his name. Accordingly he went to the Samabula Police Station.
    11. He said after he went to 204, Rewa Street with the police they could not open the gate with the keys brought by the landlord. Therefore he went and brought Ana Naisoro who opened the gate. He said police officer Palu and himself were trying to open the front door with the keys provided to them while Mr. Ratnam and police officer Etuate went to the back side of the building.
    50. He was informed by police officer Palu to come to the back of the building and there they saw the door and the grill were opened about a quarter. He said police officer Palu entered the house first, then Mr. Ratnam, then the other police officer and then himself. When they entered the kitchen he saw the deceased on the floor and he was asked to identify. He was in tears and he could not see the deceased lying on the floor. He wanted to hug the deceased but was stopped by the police officers. After that police officer Etuate and he checked the pulse and he was told that the deceased is no more. He said when he first saw the deceased lying in the kitchen he could not describe himself, he was in tears, he was in shock and unable to believe what he had seen.
    13. Thereafter he was told by police officer Palu to walk into the house and confirm if anything is missing. He was taken up to the office. He said $300.00 in the office, a digital camera and the deceased’s three mobile phones were missing. He said on the previous Friday he could not do the banking and the money was there for the weekend. He said the drawer was opened and there was no money. He said the $300 was supposed to be paid as the rent on 02/11/09. He said he was supposed to bank the fees of the students and it was about ‘$350 something’ all together in total.
    14. He said his car and the keys to his parents’ house at Ba were confiscated by the police on 03/11/09. He was only left with one pair of clothes. He was taken to the mortuary on 03/11/09 where he identified the body of the deceased. Then he was taken to Samabula Police Station where his plain statement was recorded. Thereafter he was going to the police station daily trying to meet the investigating officer Sunil Kumar or Inspector Maha Ram and Inspector Maha Ram told him that there is no need to come on a daily basis and he was given Inspector Maha Ram’s mobile number. On 11/11/09 between 5.00pm and 5.30pm he spoke to IP Maha Ram over the phone and he was informed by IP Maha Ram that the investigation is completed and he was asked to come and collect the car from the police station with the permission to drive from the LTA. He said he told IP Maha Ram that he will come early next morning and that he is staying at the Safs apartment in Robertson Road.
    15. He said he had no luggage when he checked in on 11/11/09 into Safs apartment. He checked out at 7.30am on 12/11/09. When he came to the road he was intercepted by four individuals claiming to be police officers and was told to get into a white twin cab. He said no identity card was shown to him but he got into the vehicle because he was scared. When he was inside the vehicle he was told that he is a killer and he killed his girlfriend.
    16. He said he was seated in the back seat in the middle between Joape and Vereivalu. Constable Loki was the driver. As soon as he sat, Samuela who was in the front seat turned around and started slapping him on his left cheek. He put his head down but Samuela continued to hit him on his head until the vehicle started moving. The vehicle went to Raiwaqa Police Station where Mr. Joape picked a pair of white boots and then he was taken to Nabua Police Station.
    17. At Nabua Police Station he was given a blank paper and was asked to sign and admit that he had killed his wife. When he refused to sign Mr. Vereivalu assaulted his chest and back. Then the police officers forcefully removed his clothes and made him do press-ups. While he was doing that he was kicked on his stomach and the groin area. He said Vereivalu hit him on the left side of his face and one of his teeth broke into half. The police officers took photographs and swore at him. Thereafter he was taken to the Samabula Police Station. He said the assault lasted around 30 minutes at Nabua Police Station.
    18. On his way he was threatened by the police officers that he will be killed and thrown in Colo-i-Suva. At the Samabula Police Station he was handed over to the investigating officer Mr. Sunil Kumar. He told Sunil Kumar that he was assaulted by police officers and showed the broken tooth. Sunil Kumar told him to tell the boss when they go upstairs.
    19. He was then taken to IP Maha Ram and IP Abhay Nand and he told them that he had been assaulted. He said he requested to go to the hospital but he was told to wait till the interview commenced. He said he was not willing to continue with his cautioned interview because he could not speak to his lawyer. He first said that his answer to Q.11 was that he was not willing to continue until he speak to his lawyer. Later he said, to Q.11 he answered ‘he will call me later’. He said he was not given his mobile phone to call his father though before Q.14 it is written that he was given the opportunity.
    20. He said he wanted to be seen by a doctor due to the chest pain and the body pain from assault. He said he was first taken to Samabula Health Centre but because there was a doctor with the same surname ‘Ali’ the police took him to Raiwaqa Health Centre. He said he informed the doctor that he was assaulted and he showed the doctor his broken tooth. He also showed the doctor the assault marks on his back and the laceration on his stomach.
    21. Thereafter he was taken back to the Samabula Police station. He said he never spoke to his lawyer on the phone at 12.53pm. He said he was not willing to continue with the interview without consulting his lawyer. He said after the breaks he was not informed that he has a right to remain silent and he was not cautioned. He said as it is recorded, it is correct that at 2.35pm on 12/11/09 his lawyer called in to see him. He said he was able to speak to his lawyer in private for 5 minutes. He said his lawyer advised him to remain silent but when he told the interviewing officers they made fun of his lawyer saying that there is no constitution, no human rights and the country is under a state of emergency.
    5. He said he was not given a pillow, a blanket or a mattress when he was in the police cell. He could not sleep on the first day because he was having body pains, he was urinating blood and the environment was so dirty where he had nothing to sleep on. He said on the next day he complained to the police officers that he was unable to sleep and regarding the blood in his urine. The police officers made him do press-ups so that he will feel fresh. He said on that day he was not able to seek legal advice because his lawyer was busy and he did not agree to continue with the interview without seeking legal advice.
    23. He said before he was asked Q.190 he was threatened that he will be killed and thrown in Colo-i-Suva if he does not confess. Because of that in answer to Q.195 he created falsehood to persuade the officers so that they do not beat him. The answers to Qs.197, 204 and from 208 up to 237 were the first version he created which was false, in order to persuade the officers. He had no idea how the deceased died. He created another version regarding the recharge card and buying of kerosene because the police were not satisfied with his answers. He gave the answer to Q.247 because the police were not satisfied with his answers.
    10. He said in the questions after that, the police started fabricating the answers. He said regarding Qs.248 to 251 he was told that there is an iron rod and he should use that in his confession. When he said ‘no’ the police fabricated that version. He said he don’t know whose iron rod it is and it is not his. He said the answer to Q.259 is not his.
    25. He said the electrical kettle was not working and in the photographs 12 and 13 the cord is neatly placed without any disturbance to the surrounding items. He said if anyone used this cord and threw it back, it would have knocked the other items.
    26. He said the answer to Q.156 is not his. The answer to Q.187 is his but one word is missing and it should read ‘I had left it with my wife at the main gate’. He said he was told to say that he threw the keys. He was made to do press-ups at that time and he was assaulted in his stomach and groin area. He said the answers to Qs.217, 218, 230, 248 to 282 are fabricated. He said the answer to Q.280 is his answer and that night he was wearing a sulu wrap-around. He said the answers to Qs.283, 286 to 290 are not his. His answers to Qs. 291 to 298 where he say he ‘retrack’, it was falsehood and he was forced to retract because the police wanted their fabricated version to go in. What he had stated in answer to Q.296 was because he was put under a lot of pressure and the police were forcing him to say their version after that.
    27. He said, before going for the reconstruction of the scene he was told that he will be given an iron rod and to agree with the police that he had used it. He refused to go to the scene reconstruction but he was forced to go. He said the answer to Q.343 is not his. He said there is no answer to Q.346 because the police forgot to fabricate the answer. He said the answer to Q.353 is partially fabricated and the second part is fabricated. The answer to Q.354 is not his. The second part of the answer to Q.355 where it says that he did not want to implicate himself is fabricated. Answers to Qs. 357, 358 to 363 are not his.
    28. He said the caution interview is not his voluntary statement, the third version is fabricated and the first and second versions were ‘falsehood’ created by him to persuade the police. He said the charge statement at PE 9 was made on false promise as he was told to sign it because the court will look at the intention and he will get leniency. He said the charging officer was well known to him and he told the charging officer how he was assaulted and forced. He said the charging officer started giving him moral teachings from the Quran and he was told that if he did not listen to the charging officer he will have more problems.
    0. He said that the interview was not read back to him. He said he was not allowed to have a shower until 15/11/09. He was not able to inject insulin to himself from 12/11/09 to 15/11/09. He said he was in police custody for about 100 hours and during that time he was not allowed to have visitors. He said he showed Mr. Rishi Ram all his injuries.
    30. During cross examination when he was asked how often he would use the wash room, he said minimum about twice in an hour and it varies. Then when it was suggested to him that on 02/11/09 when he left Suva for Nadi he only stopped once at Sigatoka to urinate, he said he also stopped in Lami. When it was suggested that between 9 to 11pm on 01/11/09 he had an argument with the deceased he denied. He denied the allegations against him.
    31. When it was suggested to him that he did not rush back to check when he was informed that the pre-school had not opened on 02/11/09, he said he did not do that but he could not believe that the school did not open. He said when he entered the property he did not immediately check the back door because he was given the keys to open the front door and the back door cannot be opened from outside.
    32. When he was asked whether he expect his evidence that he was assaulted for 30 minutes at Nabua Police station to be believed when his medical report on 12/11/09 does not show any injuries, he said the whole process of assault, stripping naked and taking photos took about 30 minutes and there were injuries on his back and stomach at the time of examination. He said the doctor found a laceration by 1cm X 1cm when it was again suggested that he was never assaulted because the doctor did not find any injuries.
    33. When it was suggested that he did not inform his lawyer regarding how he was treated during his arrest, he said he did inform the lawyer about the assault and the lawyer told him to remain silent throughout the rest of the interview. When it was suggested that he continued to answer the questions after the meeting with his lawyer, he said it was under threat and fear. When it was suggested that on 13/11/09 after being informed that his lawyer is in court he agreed to continue with the interview, he said he does not agree and he was made to do press-ups and the officers present at the crime office kicked his stomach and the groin area and out of fear he had no choice.
    34. When he was asked why he would want to create falsehood about the death of his own de-facto partner, he said he does not know how his partner died. He created falsehood to persuade the officers that they would not assault or torture him. He said the police officers were forcing him to say that he killed her and they were assaulting him to do that.
    2. During re-examination he said he got to know that the school did not open that day around 8pm on 02/11/09 and he called couple of parents to check on the school and the deceased and they called him back to say that everything is okay. He said he was very worried and concerned about the school and the deceased and that is why it made him to seek help from the police where he called the Samabula Police Station on his way to Suva. He said since 03/11/09 was the second day he was unable to contact the deceased he was very worried that day.
    36. He said he left to come to Suva within 15 minutes after he was notified that the school is not open on 03/11/09. He said he did not go to the back of the house because the caretaker gave him keys to open the front door. He said when he checked from the gate after he arrived in Suva, the back door and the grill appeared to be closed. He said all the doors seemed locked to him.
        
45. You may have noticed that I have not reproduced the entire evidence that was led. I have reproduced the evidence which I consider necessary to explain the case and the applicable legal principles to you. If I did not refer to any evidence which you consider important, you should still consider that evidence and give it such weight you may think fit. As I have already explained, which evidence you would accept and do not accept is a matter for you to decide. In this case, there are certain facts which are agreed by the prosecution and the defence. You have been given copies of those agreed facts. You should consider those facts as proven beyond reasonable doubt.
    

Medical Opinions

46. The ninth and eleventh prosecution witnesses gave their medical opinion based on what they had observed and their experience. You are not bound to accept their evidence. You will need to evaluate their evidence for its strengths and weaknesses, if any, just as you would with the evidence of any other witness. It is a matter for you to give whatever weight you consider appropriate with regard to the observations made and the opinion given by the two doctors. Evaluating their evidence will therefore include a consideration of their expertise, their findings and the quality of the analysis which supports their opinion.
    

Circumstantial evidence

47. Circumstantial evidence is evidence of various circumstances that may lead to the conclusion that an accused committed a particular offence, when taken together. It must not be mere speculation or guesswork. It is not sufficient that the proved circumstances are merely consistent with the accused person’s guilt. To find an accused guilty only on circumstantial evidence, you must be satisfied beyond reasonable doubt that the inference of guilt is the only rational conclusion to be drawn from the circumstances you consider as proven when taken together. Before you draw any inference you must first be satisfied beyond reasonable doubt that the evidence given by witnesses relating to the circumstances is credible and truthful.
    
48. It is important that you examine circumstantial evidence with care as with all evidence and consider whether the evidence upon which the prosecution relies on to prove its case is reliable and whether it does prove the guilt of the accused, or whether on the other hand it reveals any other circumstances which cast doubt upon or destroy the prosecution case.
    
49. In this case the prosecution has presented certain circumstantial evidence and the alleged admissions made by the accused in his cautioned interview PE1 (typed version PE 1A) and the charge statement PE 9.
    
50. There was evidence regarding the following circumstances among others apart from what is stated in the cautioned interview statement and the charge statement;
    1. The deceased was with the accused the entire day on 01/11/09 and especially they were at 204, Rewa Street from 3.00pm that day.
    2. On 01/11/09 while witness Naisoro (PW 3) was watching TV after lunch she saw the accused shouting at the deceased in the yard. She said they were arguing. The deceased was inside the car and the accused was beside the car. The accused said he shouted at the deceased around 3.00pm, but not in anger, because the deceased was scared to drive inside through the narrow roadway.
    100. According to the accused he left the house 204, Rewa Street after 3.30am on 02/11/09. PW 3 heard chains rattling and she said the accused would often leave around 4am on Mondays.
    4. The accused tried to call the deceased on his way and there was no response. The defence relied on the flow chart DE 2. The accused said he was informed by a parent that the school was closed on 02/11/09 around 8.00pm the same day. He said the last call he made to the deceased on that day was before he slept that night. But according to DE 2, the last call was made at 5.37pm on 02/11/09. You should remember that the accused in answer to Q.336 in the cautioned interview had said that he had another phone which had the number 8724722. So there is a possibility that he had used this other phone to call the deceased.
    5. Accused said that he got the call from the parent regarding the school being closed on 03/11/09 around 7.00am the same day. He did not say that he tried to call the deceased at any time on 03/11/09.
    6. The accused called the Samabula Police Station on 03/11/09 around 8.20am and informed WPC Shaleshni that he is unable to contact his wife and requested the police to check his residence at 204, Rewa Street. [Admitted Fact 14 and 15]
    7. The deceased’s body was found at 204, Rewa Street inside the kitchen when PW 4, PW 5, the caretaker and the accused went inside the house on 03/11/09.
    8. The post-mortem examination of the deceased’s body was conducted at 6.00pm on 03/11/09.
    9. From the evidence of PW 11, it was apparent that he was influenced by what he was said to be informed by the Police Officer named Atish who was not a witness in this case, regarding the disturbance between 9.00pm and 11.00pm when he concluded that the time of the death was between 9.00pm and 11.00pm on 01/11/09. However, he said, based on the other two factors, he would come to the same conclusion even if he was not given the above information. He explained that the rigor-mortis starts waning off 24 hours after death and it takes another 4 to 6 hours for the muscles to loosen. When PW 11 examined the body at 6.00pm on 03/11/09, rigor-mortis was not present. PW 11 also said that the approximate time of death was more than 48 hours and he just wrote as ‘8 to 11’ in the report. He was confident that the time of death cannot be within 24 hours. When the opinion of the doctor where he said the time of death should be approximately 48 hours is considered, it would take us to 6.00pm on 01/11/09 and according to the accused the deceased was with him at that time at 204, Rewa Street. However, you should remember that this is an approximate time and not an exact time.
    10. PW 3, the neighbour who resided in the adjoining flat said that she went to bed around 8.00pm on 01/11/09 and she heard the dragging of furniture when she woke up ‘late into the night’ because of the leg pain. The accused said in his evidence that he dragged the bed around 8.00pm and he went to bed early. He also said that the sound PW 3 would have heard is that moving of the bed.
    11. According to the accused’s evidence he was informed that the pre-school at 204, Rewa Street was not opened on 02/11/09. The same clothes the deceased was wearing when he left the house at about 4.00am on 02/11/09 were on the deceased’s body when the body was found on 03/11/09. You remember the accused said that the deceased’s mini pants were kept on the table and he identified that on photographs 7 and 9 in PE 6.
    50. According to the opinion given by PW 11 the cause of death is asphyxia due to strangulation and the injuries No.1 and No.2 he noted in his report tendered as PE 11 can be caused by the kettle cord (PE 2) which was recovered from the kitchen at 204, Rewa Street. Further, in his opinion, the injury No. 10 in the said report could have been caused by PE 7, the iron rod recovered from 204, Rewa Street according to the police. However, the defence says that PE 7 was not recovered from that house.
        
51. As I have said before, when you consider the evidence relating to the circumstances, first you have to decide what circumstances have been proved beyond reasonable doubt and you should consider only the circumstances that were proved beyond reasonable doubt in drawing an inference.
    

Cautioned Interview and the Charge Statement

52. In dealing with this cautioned interview statemendered as PE 1 (E 1 (typed copy PE 1A) and the charge statement PE 9, you must decide the following;
    1. Did the accused make the statementement in question? If you are not sure that he made it, the matter ends there. You should disregard the statement.
    2. If you are sure that the accused made it, then you should consider whether the statement wae voluntarily. You have to be sure that the statement was nwas not obtained with oppression and it was not obtained in an unfair manner. If you are not sure that the statement was made voluntarily, then you should disregard it.
    100. If you are satisfied that the statement was made voluntarily, then you should decide whether you are sure that the statement is true. Which means that you should consider the cautioned interview statement as yuld consiconsider the evidence given by a witness. You may accept the entire statement to be true or a part of it is true or you may consider the entire statement is not true. You may rely only on what you would consider to be true.
         
53. The prosecution says that PE 1 and PE 9 contains admissions made by the accused and that the accused had made those admissions voluntarily.
    
54. The defence says that the accused did not make any admissions in PE1 and PE 9. The accused says that there are three versions in his cautioned interview. The accused says the first two versions in the cautioned interview are false statements which he created out of fear to avoid being beaten up and tortured by the police and the third version in the cautioned interview and the statement in the charge statement are fabrications by the police.
    
55. The accused says that he was assaulted by the police from the time he was arrested and during the cautioned interview. He also says that he was not given his right to counsel, he was not allowed to exercise his right to remain silent, he was not cautioned after every break, he was not allowed to have visitors, he was not given necessary medical attention including his medication, he was subjected to inhuman treatment by the police, and those circumstances led him to lie to the police where the first two versions are concerned. The accused says that he was not given an opportunity to read his cautioned interview before he signed. The accused says that the officer who recorded the charge statement told him that the court will be lenient on him if he make the statement written after Q.6 in the said charge statement and also threatened him by saying he will have problems if he did not sign.
    
56. If you believe the accused that the answers he outlined were fabricated by the police or if you think they may have been fabricated and not given by the accused, then you should disregard those answers.
    
57. If you believe the accused that he was forced to give the answers that constitute what the accused identified as the first two versions, due to oppression or unfairness he was subjected to or if you think what he says may be true and therefore those answers are not given voluntarily or may not have been given voluntarily, you should disregard those answers.
    
58. You should only consider the statements in the cautioned interview and the charge statement if you are satisfied that the prosecution has proven beyond reasonable doubt that the accused had made them voluntarily.
    
59. With regard to the issue of administering caution, the interviewing officers said that it is not necessary to caution the accused after every break. They would administer the caution in the beginning of the interview and they will do it again only after longer breaks. What is necessary is for the police to explain the accused of his rights as an accused person so that he is aware of those rights when he answers the questions.
    
60. An accused has a right to consult his lawyer. There is no dispute in this case that the said right had been explained to him. The accused was further informed that he has the right to seek the assistance from the Legal Aid Commission. According to the notes in PE1 the accused opted to consult a private lawyer by the name of M. A. Khan and when he had called the lawyer, the lawyer was not available. The accused does not dispute this. What is required by law is to afford the opportunity for the accused to consult a lawyer and you may consider that this opportunity had been given to the accused in this case.
    
61. According to PE1 the aforementioned lawyer had spoken to the accused over the phone at 12.53pm, that is, before the commencement of the interview after the accused was produced before the doctor for the medical examination. It was not suggested to the interviewing officer (PW 8) or to the witnessing officer (PW 1) that the accused never spoke to the lawyer at 12.53pm on 12/11/09 as stated in PE1. In fact the defence counsel asked PW 8, for how long Mr. M. A. Khan spoke to the accused over the phone. However the accused in his evidence said that he never spoke to his lawyer at 12.53pm on 12/11/09 as stated above.
    
62. Thereafter on the same day the said lawyer had visited the accused at 02.35pm and had been with the accused till 2.50pm. This is well before the accused was questioned on the incident in question. The accused says that his lawyer told him to remain silent but the interviewing officers made fun of the lawyer’s advice and basically told the accused that he had no rights. However, you would find in answer to Q 297 the answer is that “I wish to remain silent”. Further, in answer to Q292 and Q 294 the accused had said “no comments”.
    
63. The accused also says that he was not given sufficient breaks especially given his diabetic condition where he had to urinate at least two times in an hour. The interviewing officer said that the accused was informed in the beginning that he can ask for breaks. You would note that before Q 75, the interview had been suspended at 4.00pm till 04.20pm on the request of the accused to have a break. Before Q 268, the interview was suspended at 06.10pm till 06.35pm for the accused to relieve himself and to rest.
    
64. You would also note that before Q 158, the interview notes had been given to the accused to read at 09.38am and he had returned the notes at 09.53am.
    
65. You may take the above observations into account among other factors and the evidence when you deal with the cautioned interview and the charge statement.
    

Evidence regarding the relationship between the accused and the deceased

66. According to the evidence of PW 2, she had observed the accused’s behaviour towards the deceased prior to 01/01/09 and the alleged incident had taken place about 10 months later, on 01/11/09. Therefore, there is no clear link between the events she witnessed and the incident in question which the accused is charged for. Even if you believe her evidence, the fact that she saw the accused assaulting prior to 01/01/09 is not sufficient to establish beyond reasonable doubt that the accused assaulted the deceased on 01/11/09. The accused denied what she said in her evidence and he also said that the relationship with the deceased was “very healthy, very cordial, very understanding and very loving”. To Q.109 where the accused was asked about his relationship when he moved in with the deceased, the answer is “Very cordial, very accommodating”. Again in Q.353 when he was asked to describe his relationship, the answer is “very healthy, very cordial and accommodating, bit stubborn and persistent at times”. However the accused said in his evidence that the second part of this answer is fabricated by the police. The defence also pointed out that PW 2 did not like the accused and there were inconsistencies between her evidence and her statement made to the police. If you accept the evidence of PW 2 with regard to what she said what she saw regarding the relationship between the accused and the deceased, you may only consider that evidence to assess the credibility of the accused and to assess whether what the accused said in his evidence and the cautioned interview regarding the nature of his relationship with the deceased is true.
    

Hearsay Evidence

67. PW 1 said in his evidence that during the investigation the police did not find any evidence from the neighbours that someone had gone to the compound or had jumped through the fence. Please remember that you did not hear evidence from any witnesses or the ‘neighbours’ regarding this fact. This witness did not perceive this fact from his own senses. He also agreed during cross-examination that this is not mentioned in his previous statements and the defence counsel had highlighted this as an inconsistency.
    
68. Therefore, please remember, if you believe that this evidence of PW 1 is true, it will only establish that no evidence had been received and recorded by the police during their investigation regarding someone going into the compound in question and it cannot be taken to come to the conclusion that no one had in fact gone to the compound during the relevant time.
    
69. You would also note that according to PW 12, Mr. Rishi Ram, the statement he tendered as PE 12 contains what was told by the accused to PW 12. If you believe the evidence of PW 12 that he wrote what exactly the accused told him in PE 12 when he had the face to face interview with the accused on 14/11/09, you can only conclude that the accused had told PW 12 what is recorded in PE 12, but cannot come to the conclusion that the facts stated therein are true. This is because PW 12 did not witness the facts the accused was talking about. You can however, consider the contents of PE 12 in the event you accept that the accused made that statement to PW 12, to assess whether the accused was consistent regarding his claims against the police.
    
70. The prosecution says that on 01/11/09 the accused struck the deceased with an iron rod, kicked her left jaw bone, then strangled her and caused her death; and the accused had the intention of causing death or grievous harm to the deceased.
    
71. The accused denies the allegation and says that the deceased was alive when he left the house, 204, Rewa Street after 3.30am on 02/11/09 to go to the West and thereafter he saw the dead body of the deceased when he went inside the house on 03/11/09 with the police. He says that he does not know how the deceased died.
    
72. The defence points out that there were many inconsistencies in the evidence given by the prosecution witnesses and the previous police statements they have made. It was submitted that the memory of a person cannot improve after 9 years. You should follow the directions I have given you on inconsistencies when you deal with the inconsistencies in this case.
    
73. The prosecution has tendered the cautioned interview statement (PE 1) and the charge statement (PE 9) and says that they contain voluntary admissions made by the accused. The accused denies making any admissions and says that first two versions in PE 1 are false given due to oppression and unfair treatment, and the third version in PE 1 and PE 9 are fabricated by the police.
    
74. Please remember that if you are satisfied beyond reasonable doubt that the accused caused the death of the deceased by an unlawful act but you are not satisfied beyond reasonable doubt that the accused had the intention to cause the death or grievous harm to the deceased or that the accused had the knowledge that his act will probably cause the death of or grievous harm to the deceased then you should find the accused not guilty of murder and consider whether he is guilty of the offence of manslaughter.
    
75. In the above circumstances, if you are satisfied beyond reasonable doubt that the accused intended to cause serious harm to the deceased or the accused had the knowledge that serious harm will be caused, then you should find the accused guilty of manslaughter.
    
76. Further, even if you find that all the elements of the offence of murder have been proved beyond reasonable doubt but if it occurs to you that the act which caused death was done in the heat of passion caused by sudden provocation, that is, any wrongful act or insult made by the deceased of such a nature as to be likely when done to an ordinary person to deprive such ordinary person of his power of self-control and to induce him to commit an assault of the kind which the accused committed on the deceased; you should find the accused guilty of manslaughter.
    
77. You must remember to assess the evidence for the prosecution and defence using the same yardstick but bearing in mind that always the prosecution should prove the case against the accused beyond reasonable doubt.
    
78. I must again remind you that even though an accused person gives evidence, he does not assume any burden of proving his case. The burden of proving the case beyond reasonable doubt remains on the prosecution throughout. An accused’s evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
    
79. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise;
    
    • (i) You may believe the explanation and, if you believe him, then your opinion must be that the accused is ‘not guilty’.
      
    • (ii) Without necessarily believing you may think, 'well what he says might be true'. If that is so, it means that there is reasonable doubt in your mind and therefore, again your opinion must be ‘not guilty’.
      
    • (iii) The third possibility is that you reject the accused’s evidence. But if you disbelieve the accused, that itself does not make him guilty of the offence charged. The situation would then be the same as if the accused had not given any evidence at all. You should still consider whether the prosecution has proved all the elements beyond reasonable doubt.
      

If you are sure that the prosecution has proved all the elements, then your proper opinion would be that the accused is ‘guilty’ of the offence.

80. Any re-directions?
    
81. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charge against the accused. If you need to peruse the exhibits tendered apart from the documents where you have been given copies or you want to peruse the originals of those documents, please seek the assistance of the court clerks. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
    
82. Your opinion should be as follows;

Murder – guilty or not guilty

If not guilty

Manslaughter – guilty or not guilty

Vinsent S. Perera
JUDGE

Solicitors;

Office of the Director of Public Prosecution for State.
A.K.Singh Lawyers for Accused.