State v Dean [2022] FJHC 686; HAC25.2020 (28 October 2022)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO : HAC 25 OF 2020

STATE

vs.

1. SAMIMU DEAN
2. ZUHAIR FARHAAD DEAN

Counsel: Ms. L. Latu with Ms. Lomoloma for Prosecution

Mr. A. Sen for 1st Accused

Mr. J. Rabuku with Ms. B. Navunicagi for 2nd Accused

Dates of Hearing : 11 October 2022 to 25 October 2022

Date of Judgment: 28 October 2022

JUDGMENT

1. The accused were charged on the following information filed by the Director of Public Prosecution:

COUNT 1

Statement of Offence

ARSON: Contrary to section 364 (a) of the Crimes Act 2009.

Particulars of Offence

SAMIMU DEAN AND ZUHAIR FARHAAD DEAN on 30 April 2020, at Benau, Labasa, in the Northern Division, willfully ad unlawfully set fire to the dwelling house of BAL KRISHNA.

COUNT 2

Statement of Offence

ATTEMPTED MURDER: Contrary to section 44 (1) and 237 of the Crimes Act 2009.

Particulars of Offence

SAMIMU DEAN AND ZUHAIR FARHAAD DEAN on 30 April 2020, at Benau, Labasa, in the Northern Division, attempted to murder BAL KRISHNA.

COUNT 3

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Act 2009.

Particulars of Offence

SAMIMU DEAN AND ZUHAIR FARHAAD DEAN on 30 April 2020, at Benau, Labasa, in the Northern Division, murdered NAGAMMA.

COUNT 3

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Act 2009.

Particulars of Offence

SAMIMU DEAN AND ZUHAIR FARHAAD DEAN on 30 April 2020, at Benau, Labasa, in the Northern Division, murdered DHARMI.

COUNT 5

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Act 2009.

Particulars of Offence

SAMIMU DEAN AND ZUHAIR FARHAAD DEAN on 30 April 2020, at Benau, Labasa, in the Northern Division, murdered SUBHADRA.

COUNT 6

Statement of Offence

MURDER: Contrary to section 237 of the Crimes Act 2009.

Particulars of Offence

SAMIMU DEAN AND ZUHAIR FARHAAD DEAN on 30 April 2020, at Benau, Labasa, in the Northern Division, murdered ZAMINDAN HUSSEIN.

2. Both accused pleaded not guilty to the charges. At the ensuing trial, the Prosecution presented the evidence of 18 witnesses and tendered 40 exhibits and documents. At the close of the case for the Prosecution, being satisfied that there is a case for each accused to answer on each count, the accused were put to their respective defences. The accused elected to remain silent but called witnesses. The Court heard the oral submissions of the counsel from both side. Having considered the evidence presented during the hearing and the respective submissions of the parties, I now proceed to pronounce the judgment as follows.
   

Joint Enterprise

3. Although not explicit in the information or opening remarks by the State Counsel, the Prosecution was running this case on the basis of the principle of joint enterprise. Accordingly, the Prosecution must prove beyond reasonable doubt that Saimumu Dean (Poli) and Zuhair Farhaad Dean (Zuhair) committed these offences in the company of each other and each participated in some form in the commission of each offence, irrespective of the degree of his participation. Where two or more persons commit a criminal offence acting together as part of a joint plan or agreement to commit that offence, each one of them will be guilty of that offence. However, no formal plan or agreement is required. An agreement to commit an offence may arise on the spur of the moment. The essence of joint enterprise for a criminal offence is that each accused shared a common intention to commit the offence and played some part to achieve the aim. However, it is important that I look at each of the six charges against each accused separately. They are each quite distinct crimes and the evidence is different on each. Each charge is, in effect, its own trial, and separate consideration and verdicts are required. However, in deciding whether a particular charge is proved, I am entitled to draw on all of the evidence in the case.
   

Burden of Proof and Standard of Proof

4. The accused are presumed innocent until they are proven guilty. The onus or the burden of proof rests on the Prosecution throughout the trial, and it never shifts to the accused. There is no obligation or burden on the accused to prove their innocence or the alibis raised in defence. The Prosecution must prove each accused’s guilt, beyond reasonable doubt. If there is a reasonable doubt, so that the court is not sure of accused’s guilt, the accused must be found not guilty and acquitted. The accused has a right to remain silent and no adverse inference can be drawn if the accused remains silent.
   

The Elements of each Offence

5. On count one, the charge each accused is faced with is Arson. For the purposes of this trial, arson is wilfully and unlawfully setting fire with the intention of causing damage to the dwelling house.
   
6. On the 2^nd count the accused is charged with Attempted Murder. A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted, in this case Murder, had been committed. For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence, and the question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
   
7. On the 3^rd to the 6^th counts, each accused is charged with Murder. To prove the offence of Murder, the prosecution must prove beyond reasonable doubt that the each accused engaged in a conduct with the intention of causing the death of the deceased, or was reckless as to causing the death the deceased and that conduct of the accused caused the death of the deceased.
   

Circumstantial Evidence

8. . This case is entirely based on circumstantial evidence and there is no direct evidence or eye witness accounts as to how the death of each deceased was caused. Circumstantial evidence can, and often does, clearly prove the commission of a criminal offence, but two conditions must be met. First, the primary facts from which the inference of guilt is to be drawn must be proved. No greater cogency can be attributed to an inference based upon particular facts than the cogency that can be attributed to each of those facts. Secondly, the inference of guilt must be the only inference which is reasonably open on all the primary facts which are so proved. The drawing of the inference is not a matter of evidence: it is solely a function of this court based on its critical judgment of men and affairs, common sense, experience and reason. An inference of guilt can safely be drawn if it is based upon primary facts proved and if it is the only inference which is reasonably open upon the whole body of primary facts.
   
9. In a circumstantial case, the fact-finder must look to the combined effect of a number of independent items of evidence when considering each charge. While each separate piece of evidence must be assessed as part of the inquiry, the ultimate verdict on each charge will turn on an assessment of all items of evidence viewed in combination. The underlying principle is that the probative value of a number of items of evidence is greater in combination than the sum of the parts. The analogy that is often drawn is that of a rope. Any one strand of the rope may not support a particular weight, but the combined strands are sufficient to do so. The logic that underpins a circumstantial case is that the accused is either guilty or is the victim of an implausible, unlikely series of coincidences.
   
10. When assessing the evidence in a circumstantial case, it is not sufficient to evaluate each separate strand of evidence in isolation and then stop. Having considered each strand of evidence separately, it is necessary for the decision-maker to then stand back and assess the cumulative effect of all of the different strands of evidence. Consideration of the onus and standard of proof only occurs at the second stage of the process. The individual strands of evidence do not have to be proved beyond reasonable doubt. The onus and standard of proof only comes into play once the combined weight of all of the strands of evidence is being considered.
    
11. All of the charges require the Prosecution to prove the defendant’s state of mind at the time of the alleged offending. This requires the drawing of an inference, based on all of the circumstantial evidence that is relevant to the issue of intention or recklessness. Obviously one cannot see into another’s mind. The fact finder must draw inferences as to the accused’s state of mind from facts proved. The drawing of inferences inevitably involves the application of common sense and of the fact finder’s knowledge of the world and of how it works to prove facts.
    

Alibis

12. Let me now draw my attention to the defence of alibis the accused have set-up where they claim that they were not present at the crime scene, as the first accused was sleeping at home with his wife and the second accused was at home with his parents and other family members when the fire took place. The accused are not obliged to prove their innocence and also not required to give evidence. Even though the accused have put forward the defence of alibi, the burden of proving the case against the accused still remains on the prosecution. The prosecution must prove so that the court is sure that the two accused were present at the scene of the crime as charged in the information. In doing that the Prosecution has to disprove the alibi defence put forward by the defence. If I believe and accept the evidence of the witnesses of the Prosecution as credible, reliable and truthful beyond reasonable doubt, then the Prosecution has discharged its duty of disproving the alibi defence of the accused.
    
13. If I conclude that the alibi of the accused is true or may be true, then the accused cannot participate in the alleged offences and I must find the accused not guilty. If, on the other hand, I am sure, having considered the evidence carefully, that the accused’s alibi is false, that is a finding of fact which I am entitled to take into account when judging whether they are guilty. Merely because the alibi put forward is false the accused must not be guilty. I must bear in mind that sometimes an alibi is invented to bolster up the defence case or because the accused thinks it is easier than telling the truth. The main question for me to answer is: am I sure that this alleged incident involving the two accused actually took place as claimed by the prosecution.
    

How should I approach the caution statement of a co-accused?

14. At the pre-trial conference, Prosecution proposed to tender Zuhair's caution statement as part of its case against him. The Counsel for Poli (1st accused), Mr. Sen, asked the court that the curtain parts of the caution statement which implicate Poli by name should be excluded from the caution statement before it is admitted in evidence. Counsel for the Prosecution agreed to the proposal but the counsel for Zuhair (2nd accused), Mr. Rabuku, objected to the editing of the statement. I ruled before trial that the caution statement of Zuhair should be admitted in its entirety. I now proceed to give reasons for that Ruling in this judgment.
    
15. Mr. Rabuku’s objection was on the basis that, Zuhair, in his statement, while admitting certain parts of the Prosecution case, has given some exculpatory explanations beneficial to his defence and, if those exculpatory parts were deleted, his client will be gravely prejudiced.
    
16. There is no doubt that the parts of Zuhair's statement under caution, which implicates Poli, is prima facie relevant and admissible evidence in the case against Zuhair who is the maker of that statement. It is however not evidence against Poli.
    
17. In the case of R v Lobban [1995] 2 All ER 602 in which the judgment of the Court of Appeal of Jamaica was appealed to the Privy Council, the appellant challenged inter alia the following statement by Carey J:
    

‘In the case where one co-accused makes statements implicating his co-accused, we are not aware of any rule requiring a trial judge to edit such a statement. Indeed, in our judgment, it would be wholly unfair to the maker of the statement who would be entitled to have the statement in its entirety placed before the jury. A trial judge has an undoubted duty to ensure a fair trial but that cannot mean fair to one, and unfair to a co-accused. His responsibility is to both. We have already observed that defence counsel for the co-accused in the instant case intimated that the whole statement was necessary for his defence, and provided reasons therefor. We fail to see how the learned trial judge could have acted otherwise than he did. We think the principle is conveniently set out in the headnote in R v Gunewardene (1951) 35 Cr App R 80.’

18. At Privy Council, counsel for appellant argued that the trial judge should have ordered (as he was invited to do) the editing of the statement of the co-accused so as to exclude the final paragraph which implicated the appellant or at least that part of it which referred to appellant by name. Counsel submitted that failure to do so would amount to a material irregularity which cannot be cured by the directions in the summing up. The Privy Council rejected the argument and dismissed the appeal.
    
19. It is right that in earlier times in the strict theory of the law of evidence the exculpatory part of a mixed statement was not regarded as evidence in favour of the maker's case. That is not the case any longer. In the course of such trial, a statement of the co-accused is relevant and admissible as part of the prosecution's case against the co-accused is the law as it stands today. It is a 'mixed' statement, containing admissions as well as an exculpatory explanation and as such admissible in its entirety.
    
20. In R v Sharp [1988] 1 All ER 65, [1988] 1 WLR 7 the House of Lords deprecated any idea of the jury being told that the exculpatory parts of a mixed statement amount to something less than evidence. Nowadays, it is plainly part of the evidential material which forms part of a case of a defendant who does not testify. No doubt it has less value than oral evidence tested by cross-examination, but the defendant has an absolute right (subject to considerations of relevance) to have his exculpatory explanation fairly placed before the jury as part of his case.
    
21. No doubt, the answers given by Zuhair after Q 160 in his caution interview simply serves to explain how the hat belonged to him has been placed at the crime scene. The argument as to the potential impact of Zuhair’s hearsay incrimination of Poli in his statement remains. However, it would be unfair as against Zuhair to exclude part of his exculpatory explanation. The last parts of Zuhair's statement gives some support to Zuhair’s' defence, and that it was in Zuhair’s interests that the whole of the statement should be admitted.
    
22. This is not a trial by jury or with assessors. The trial judge is learned in law and he knows which part of Zuhair’s statement is relevant to Zuhair’s case and which parts should be excluded as against Poli. The deletion of certain parts of Zuhair’s statement in a case tried by a judge alone would serve no purpose as the judge already knows what is there in the caution statement disclosed to the Court.
    
23. The State Counsel agreed to delete certain parts of Zuhair’s caution interview that implicate Poli. However that agreement does not give discretion to the trial judge to allow the application of Mr. Sen. The discretionary power to exclude relevant evidence applies only to evidence on which the prosecution proposes to rely. It does not extend to the exculpatory part of a 'mixed statement' on which a co-defendant wishes to rely (Lobban). The discretion exists to ensure a fair trial to the defendant, or, in a joint trial, to each defendant without seeking to differentiate between the quality of justice afforded to each defendant. It does not exist when a co-accused is proposing to rely on his own statement (R v Neale (Paul) (1977) 65 Cr App R 304 at 306 Scarman LJ).
    
24. Mr. Rabuku is entitled to insist that evidence tending to support Zuhair's own case, or more accurately, the material favourable to him in a mixed statement, should not be made the subject of editing by the judge. This conclusion is consistent with observations in decisions of high authority. In two cases R v Pearce (1979) 69 Cr App R 365 and in R v Gunewardene [1951] 2 All ER 290, [1951] 2 KB 600, the Court had held that it was unfair to exclude evidence which is exculpatory of the maker of the statement.
    
25. R v Gunewardene [1951] 2 All ER 290, [1951] 2 KB 600–611 in considering an appeal came from Sri Lanka (then Ceylon) Lord Goddard CJ said:
    

'If we were to lay down that the statement of one co-prisoner could never be read in full because it might implicate, or did implicate, the other, it is obvious that very difficult and inconvenient situations might arise. Not infrequently it happens that a prisoner, in making a statement, though admitting guilt up to a certain extent, puts greater blame on a co-prisoner, or asserts that certain of his actions were really innocent and it was the conduct of the co-prisoner that gave them a sinister appearance or led to the belief that the prisoner making the statement was implicated in the crime. In such a case that prisoner would have a right to have the whole statement read, and could, with good reason, complain if the prosecution picked out certain passages and left out others. In this case the statement was clearly admissible against Hanson [the co-defendant] and was read against her, and, although in many cases counsel for the prosecution do refrain from reading passages which implicate another prisoner and have no real bearing on the case against the prisoner making the statement, we cannot say that anything has been admitted in this case which was not admissible, and HILBERY, J., gave adequate and emphatic directions to the jury on the subject.’

26. In admitting the caution interview of Zuhair, I bear in mind that the interests of the implicated co-accused, Poli, must be protected by the most explicit directions to myself to the effect that the statement of one co-accused is not evidence against the other.
    
27. Now I proceed to consider the evidence led in this trial. It was fairly a lengthy trial and I have summarised only the salient parts of evidence of each witness. However, in a circumstantial case, I bear in mind that each piece of evidence relevant to my discussion should properly be dealt with. I may be forgiven for using undisputed nicknames to refer to the complainant –Pinto/ Bindo and the 1st accused -Poli.
    

Bal Krishna (Pinto/ Bindo) (Complainant)

28. Pinto is a market vendor. He is currently residing in Benau, Labasa. Since birth up until 2020, he was residing in Benau with his mother Nagama. Nagamma’s friend Samindan Husain was also living with them for few months prior to April 2020. Apart from them, two other friends of his mother, Shubadhra and Dharmi were also went to sleep in his house on that fateful night- 29 April 2020. All the ladies died when his house caught fire and he made a narrow escape.
    
29. On 30 April 2020, at around 1 a.m., he was woken up to a big sound when the fire started. His mother and other three ladies were sleeping in a separate room. When he ran outside the house, he saw the fire has already spread and the house made up of timber was soon engulfed in the fire. He tried to connect the hose and put the fire out but he couldn’t. When he realised that he could not control the fire, he just moved away. When the National Fire Authority arrived after 40 minutes, his mother and her three friends were already engulfed in the fire in which they all perished. The total cost of damage to his house is $178,000 including all the items of the house. He thought somebody must have burnt the house.
    
30. On 29 April, the day before the fire, Pinto came home after 5.30 p.m. His grandmother and her friends were all having tea at the verandah. While sitting at the verandah, at around 6pm, he saw Poli, his neighbour shinning a torch at his verandah. At around 11 p.m., he saw Poli walking up to his drive way to hid behind his shrine room or temple. He could clearly recognise Poli from the bright light shining from his verandah. His view was not obstructed when he observed Poli for one minute at a distance of 5 meters. Poli then quickly walked home.
    
31. When Pinto was sitting in the verandah, he saw someone shining a torch from Poli’s house- on and off and switching the light in his verandah on and off. He saw three people, one i-Taukei man wearing a hat, Zuhair and Poli standing in the verandah at Poli’s house. The next moment, stones came and fell on his house. He was sitting in the verandah till 11p.m. and went to his room to sleep.
    
32. Before the fire, in 2019, there was a fight between Poli’s son and Zuhair on one part and his friends who had visited him on the other part. Ever since then, his house has been stoned, complaints have been lodged against the accused, but no action was taken by police.
    
33. Describing the bitter relationship he had with the accused, Pinto said- initially they were close and on talking terms. After the fight in 2019, he asked Poli not to throw stones at his house. Poli, in return, demanded $5,000. He refused to give the money and reported the matter to police. The relationship with the second accused Zuhair was also not good after the fight in 2019, and his complaint Zuhair’s father that Zuhair was smoking marijuana near his drive way.
    
34. Under cross-examination by Mr. Sen, Pinto admitted that there is a feeder road beside his temple, used by the public, where Poli was seen in that night. He admitted that there were four families (about 15 people) living in Poli’s house and they all shared the common verandah. Though he reported the stoning to police, he he said he was not given any police reports. Police told him - because he had not seen who was throwing stones, they couldn’t do much. Police kept on saying that he was the culprit and not Poli. He agreed that Poli was never charged or presented in court. He denied that mature plants obstructed the view of Poli’s house from his verandah. He denied that his house had just been varnished prior to the fire.
    
35. When it was suggested that he had not told police in his statement that Poli was hiding and had only told that he saw Poli standing on the road behind his Mandhir at around 11 p.m., Pinto had answer. He admitted that at 11. p.m, it was curfew. He admitted in his witness statement stating that he had received a telephone call from Poli demanding $5000 and that statement is different from his evidence that Poli demanded money in a meeting in town. He denied Poli was in a very cordial relationship with him.
    
36. Under cross-examination by Mr. Rabuku, Pinto admitted having told police on 30 April 2020 that Poli and a person by the name of Bill might have started this fire. He saw Bill wearing a hat. Before the day of fire he had seen Bill in Benau, wearing a hat. From where he was sitting on the verandah, he could hear them calling the name-Bill. He admitted that the hat depicted in the photo that was shown to him (MFI- 1) is almost like the one worn by Bill that day. When he went to give a statement to police on the 30th evening, he was shown a hat. He admitted telling police that he saw Bill wearing a bucket hat on 29th.
    
37. His relationship was not good with Zuhair ever since he reported Zuhair to his father. Zuhair used to swear at him because he played better billiard. Poli used to supply Zuhair with marijuana which Zuhair smoked to stone his house. He did not report to police that marijuana being induced to Zuhair, although he had seen it many times. After the fight in 2019, over marijuana smoking, the issues started to get worse. He admitted that he had not seen Zuhair throwing stones at his house but it was an assumption. He did not have enemies in Benau expect for the accused. The police report numbers got burnt in the fire. He did not follow up with the complaints with high ranking police officers. He admitted that he did not see Zuhair anywhere near the fire.
    
38. Pinto knew Kishore Singh (Kishore) for 10 years. Kishore used to buy grog from him. Kishore did not live with him at Malau or Vunika when Kishore returned from prison in 2020. When Kishore acme back from jail in 2020, Kishore told him that he had just returned from jail and told him certain things. He denied having told Kishore to go to police and implicate Zuhair. Kishore came and spoke to him at the market, near Bimal’s stall. Kishore was the one who had approached him and asked about the burning of his house.
    
39. He denied that he is a witch doctor or medicine man in Benau though he worshipped and held poojas at his Mandir. He admitted playing music on a louder speaker at 7.30 pm when the students get on with their homework. He denied killing goats and chicken and taking sprinkling blood at the Mandir. He denied that the neighbours were angry at his loud poojas resulting them having stoned his house.
    

Akosita Vakiacagi.

40. On 29 April 2020, at around 2pm, Akosita was bringing pandanus (voivoi) leaves from beside Vane’s house to weave a mat. When she was looking on the boundary, she saw Poli, one of her neighbour, crossing to his house. When she asked where he was going, Poli told that he was looking for his missing duck. On that same night the house got burnt. She could smell the kerosene or benzene from the fire. Her eye sight is weak so she could not say if Poli was present in Court. Pinto used to play loud music from his house in the evening.
    
41. Vane Matakece
    

Matakece has been residing in Benau for almost 20 years. On 30 April 2020 a fire occurred at Pinto’s house, 7 or 10 meters away from her house. While she was sleeping, she heard a noise like a cracking sound, louvers were falling, coming from Pinto’s house. When reached the verandah, she heard a noise down below from the cassava patch, someone running from the place where this house got burnt. She didn’t see anyone. She could smell fuel but she could not say whether it’s kerosene or benzene. Two families were already there to put out the fire when she and her husband went near Pinto house. The fire had engulfed from inside the house.

Vinod Kumar Sharan (Vinod)

42. Vinod has been living in Benau since birth. On 20 April 2020, at about 2.30 p.m., he was getting ready to come to the mall to pick dog food. On his way, he met Poli, his good friend, at his place. Poli invited him to join him if he was going to town. When Vinod sat in his taxi, Poly brought a grey-coloured engine oil gallon with a red lid and placed it in the taxi. They both came to town. Poli parked the car opposite downtown and offered him $10.00 and asked him to go and fill benzene. He got out of the car and filled $10.00 worth of benzene. Then he came back and sat in the car and went to pick his dog food. Poli told him that he was going to use the benzene for grass cutting. From town, they returned to Poli’s place. Poli asked him to pick the gallon and put it in the car port. After he had placed the gallon at the car port, Poli told him that they will sit in the afternoon to have grog. He then went home.
    
43. Later in the day, at about 8.15 p.m., he and Poli joined in a grog session at his residence. The grog session lasted till 11 or 11.30 p.m.. Whilst drinking grog, a conversation took place. In that conversation, Poli told him that the benzene was bought for the purpose of burning Pinto’s house. Poli said that he had a DVRO case with Tanzil in which Pinto was the witness. Poli swore and Bindo heard that swearing. Poli had to spend one night in police lock-up so he will burn the house to ashes. In previous meetings, Poli had never talked like that. He was wondering why. Poli also told him that if he informed anyone what he told, he will ask an I-Taukei to assault him and burn his house. As he said this, Poli’s face turned dull, totally changed, not normal and his voice loud. He was afraid that if he told someone, Poli might do the same thing to him. After the grog session, Poli went home. He had to go to work the next day.
    
44. When Vinod heard that Pinto’s house was burning, he was sleeping at home. When a grey-coloured engine oil gallon with a red lid was shown to the witness, he recognised it as the one given to him by Poli on 20 April 2020, to fill benzene with.
    
45. Under cross-examination by Mr. Sen, Vinod admitted he was just listing when Poli threatened him. He believed, given the friendship they shared, that Poli would not do anything to him. Vinod admitted that he was a heavy marijuana smoker and was in police custody for a drug case a few weeks before the house got burnt. He denied that Poli came with the police officers to raid his house. Poli was his ‘great friend’ and he used to go to his house to smoke marijuana.
    
46. Vinod admitted that the conversation with Poli was just a ‘grog talk’. However, when it came to his own self, he was afraid. The discussion happened the day they bought benzene. He did not meet Poli after that. He went to work and was in camp from 20 April 2020. Two to three days thereafter, he came back and went to buy grog from Pinto’s place. When he went to towards Poli’s place, Poli told him ‘the people who go to Bindo’s place is my enemies so you don’t come to my place’. He turned around and came back home because the curfew was about to start at 8 p.m.. At about 8.45 p.m. police came to his house and got him arrested for violating curfew.
    
47. Vinod would go to Pinto’s house and buy grog. He doesn’t know the capacity of the gallon which Poli gave him to fill benzene with. He told Gyan Singh (police) that when he went to buy grog at Pinto’s house, Poli did not want him to go to his (Poli’s) house. Whatever Poli told him, he also told to Pinto.
    
48. Vinod told police what he heard from Poli when the police came to his house. He did not make up a story after his arrest because his relationship with Poli had deteriorated when Poli informed police that he was cultivating marijuana. He denied making up a story to get even with Poli. He admitted not approaching police to tell what Poli had told him because he was afraid and also that he went for work. He denied that he was at work on 20 April 2020.
    
49. He admitted that Poli had told him that he (Poli) wanted Benzene to cut grass. The gallon was however filled with benzene and not premix. He did not question about that. The curfew hours changed after 20th and, after 2-3 days, the curfew came into force from 8 pm.
    
50. Under cross-examination by Mr Rabuku, Vinod said that Pinto is distantly related to him in a village relationship. Pinto is not a priest or medicine man. On a Thursday, he was arrested for violating curfew. One lady Anita was with him at that time. He told Pinto about the conversation on the same evening as he went to Poli’s house to buy grog. On the same evening he got arrested by police for violating curfew.
    

PW. 20 Doctor James Kalougivaki (Pathologist)

51. Doctor James conducted the post mortem examination on remains of four deceased in the Labasa Hospital, mortuary on the 4 May 2020. He tendered the four post mortem reports (PE1- PE4) in his evidence. Human remains basically consisted of bonny fragments of less than 10 c.m. in length. The bones were biologically tested for DNA and DNA analysis confirmed the identity of each deceased. The same testing was done for all the four deceased.
    
52. The primary or the immediate cause of death could not be ascertained due to the severity of the burns. According to the anatomical pathological observation or assessment he found severe third degree or deep chard burns all over the bodies. He opined that the circumstantial cause of death was basically associated with a fatal house fire.
    
53. Apart from conducting the post mortem, he was also asked to transfer some of the exhibits from Nausori Airport straight to the Biology DNA Lab and also the Forensic Chemistry Lab in Suva. This was done on the next day after the examinations of the decedents.
    
54. Under cross-examination by Mr. Sen, doctor admitted that DNA report was not available by 4 May 2020 when he examined the remains of the human bodies. He noted in the reports the presence of C4 to C4 vertebrae basically referring to remains of human beings. Samples were taken from the bones and his reports were based on the DNA analysis report. By the time he prepared the reports on 2 June 2020, the DNA test results were available.
    
55. Conducting a toxicological analysis to find whether there was any possibility of poisoning on a charred body is futile because of the extreme levels of carbon. That is why the immediate cause of death could not be ascertained. When the body is exposed to severe heat, testing them for toxicity would be waste of effort and the results would call for misinterpretations. Although the immediate cause of death could not be ascertained, due to anatomical examination or pathology assessment, the deaths were associated with a fatal house fire as the deceased were found within the house fire.
    

PW 3 Vilimone Vumalumu (Vilimone)

56. On 30 April 2020, at about 9 a.m., Vilimone was at Poli’s house. He went there with Lorima to exchange chilies with marijuana. On their way to Poli’s house, he saw the fire and the fire vehicle coming. They met Zuhair and had a conversation. Zuahir talked about the house that got burnt. Zuhair was happy to see that house got burnt. He also mentioned about the hat that was caught by the cops. Zuhair appeared afraid. He also told as to how they burned down the house. He said that they came with kerosene and spilled it around the house and afterwards they came to a neighbour’s house. When he say ‘they’ Vinod was referring to Zuhair and Poli. He cannot tell whether Zuhair was telling the truth or not.
    
57. Zuhair said the hat belonged to him. It is a multi coloured bucket hat with red flowers. He had seen Zuhair roaming around Benau wearing it. Zuhair was afraid because it was caught by the police from where the house got burnt, little bit down. He never saw the bucket hat after the incident. After having this conversation, they went to Vunimoli in Zuhair’s vehicle. Zuhair continued the conversation about the fire. Zuhair was requesting him not to leak any information to the cops.
    
58. He used to hang around in Benau and, at Poli’s house, since 2019. In his regular visitstoPoli’s house, he came to know that they were not in good relationship with the neighbour- Pinto. They cursed Pinto because he always reported them to police leading them to be raided. Poli wanted him to go and stone some of the houses. He did not however stone the houses because of family commitments. They also had a conversation as to how to set Pinto’s house on fire. This conversation took place three to two weeks before the burning of the house. Poli was angry when he said this. He did not tell anybody about this conversation as he was afraid.
    
59. Under cross-examination by Mr. Sen, Vilimone agreed that he used to go to Poli’s house very often to smoke marijuana. He admitted going through the witness statement just prior to coming to court and having been told by police what to say. He admitted that he was taken in as a suspect in this case on 30 April 2020. Police put an allegation that it was him that lit the fire at Pinto’s house. He was kept in custody for two days for ‘interview’ as a suspect. He was not assaulted but threatened and the police were forceful on him. They made him answer the questions when they kept on writing. He was really scared when he was threatened that they will take him back and charge for some offence. He had to tell exactly what the police had told him to tell in this court. He agreed that Pinto was the one who pointed at him during the police investigation. When the police found nothing against him, they asked him to put a blame on Poli.
    
60. When Mr. Sen asked whatever he told in court to is not true, Vilimone said that he did not see it but told what they have told me the story of it.

Mr Sen: The police told you the story?

Mr: No, they told me the story.

Mr Sen: No, no I’m not talking about they I’m talking about my client. Poli never

told you a story don’t you agree with you he never told you a story.

Ms Latu: My Lord, perhaps.

Mr Sen: After the incident did Poli, Poli never told you a story?

Ms Latu: If that could be interpreted, My Lord.

Mr Vumalumu: No, Sir.

Mr Sen: Yes, he never told you a story.

Mr Vumalumu: Yes.

Mr Vumalumu: After the, before it happen they have told me the story and once the

incident happen they did not tell me neither we converse with them.

61. Under cross-examination by Mr Rabuku, Vilimone said that he was arrested by Josaia Tudru and in a conversation with Josaia, during transport, he was told that he was under arrest for the burning of the house in Benau. The same officer caution interviewed him. During questioning, he was surrounded by five police officers in a small room. Josaia told him ‘if you don’t tell the truth you’ll be a suspect in this case’... ‘Just tell the truth’. ‘If you going to tell the truth only you will find it easy’-‘how good it is for you’. He was in police custody for two days and sent back home after a statement was recorded. He did not read the statement, just signed it. In the statement, he told the story that Zuhair told him that they burnt the house, but he didn’t see it. He was shown a hat by police and he told them that that hat is Zuhair’s. He agreed stating, under examination in chief, police never showed a hat. He said both statements are true.
    
62. He was given his statement on Monday before trial. When he read the statement he agreed with that statement. He could not tell if what Zuhair was telling is the truth about the fire or not. He denied that he never met Zuhair at all on 30 May 2020 and that Zuhair talked about the fire. He denied making up a story. Then he admitted that police and he made made up a story. He denied that he never went to Vunimoli with Zuhair. Zuhair looked frightened. His statement was recorded on the 1 May 2020.
    
63. He admitted recording a video at home in Wasavulu on his brother’s wife’s phone apologizing to the Dean family. His brother Lisala sent it via Messenger to Poli’s son. In that video, he told that the police forced him to make a statement implicating Zuhair. Saimumu Dean’s son requested him to make that video so that the case could be weaken.
    
64. The IT officer played the said video in Court. In his video Vinod says that no one forced him to record that video; that he gave false information to the police; that if he did not give the information, the police would charge him and that he was so afraid because the CID officers were threatening him. Poli’s son told him what to tell in his statement in the video. However he confirmed that in recording of this video he alone was in control. He agreed Zuhair never had any conversations with him about the video.
    
65. Vinod agreed that he is also known by the name Bill. On 29 April 2020 on the afternoon he was at Poli’s house wearing a bucket hat. When sitting at Poli’s house he could see Pinto’s verandah. The bucket hat that the police had shown him is not similar to the bucket hat he was wearing on that day.
    
66. Under re-examination, Vilimone said that the video was recorded when Poli was in custody. Poli’s son came home and made a request to do a video asking for forgiveness. His brother is Poli’s son’s best friend. When the police continued to ask him, he started informing what he heard from Poli and Zuhair.
    

Leone Matevere Ravula

67. Ravula has been in Benau since 2013. Zuhair and Poli were his neighbours. He usually hanged around with Zuhair and played billiard with him. In 2019, a fight broke out in front of the road to Pinto’s house. Bindo was drunk. They came there to disturb Poli’s son Sonu. Zuhair was part of this fight. At 8 p.m he, Zuhair, Busa and Waisea planned to throw stones at Pinto’s house after the incident stoned Pinto’s house.
    
68. On 29 April 2020, he went to town with Zuhair, to bid farewell as he was going to the village. He gave a colourful flowery bucket hat to Zuhair and Zuhair reciprocated in gave his hat. When a hat was shown to him by the State Counsel, he said that the hat shown to him is of same colours but it’s too old.
    
69. Under cross-examination by Mr Rabuku, Ravula admitted that Pinto’s house has always been stoned by other people in Benau. He bought the bucket hat from the arcade besides Labasa Post Office and gave it to Zuhair on the same day. He tried it before it and was wearing it for about an hour in a sunny day before it was given to Zuhair.
    

Sanjeet Yogeshwar Lal (Interviewing Officer for Poli)

70. On 1 May 2020, Sanjeet Lal interviewed Poli at Labasa Police Station. Poli answered all the questions but was refusing to sign the interview notes. He tendered the English translation in evidence marked as PE-6. Poli was cooperating in the interview.
    
71. Under cross-examination by Mr. Sen, Lal admitted that the accused denied specific allegations of setting fire to Poli’s house and other charges in the information and told exactly where he was at the time of fire. He did not check accused’s alibi.
    

Sergeant Kamlesh Chand (Chief Investigator/ Interviewing Officer for Zuhair)

72. 72. In 2020, Chand was stationed at Labasa Police Station. He was the investigating officer of this case. He compiled the file with all investigations and receipts of the exhibits from the forensic and CIS team and exhibited at the Labasa exhibit with crime writer. He also caution interviewed the second accused. Amongst the exhibits were the clothing, the gallon, the bucket hat and some other forensic items like clothing of deceased, the postmortem reports, the original caution interview of both suspects, the scale and the tabua found outside the house that was caught in fire. The hat was a flowery bucket hat partly red in colour. It was uplifted by the CIS team from the crime scene. The hat was sealed by the CIS team in a plastic bag and was then sent to the forensic lab for the DNA testing. After the completion of the testing, it was brought back and given to be exhibited.
    
73. Sergeant Chand identified the hat (MFI-4) which was handed over to him by CIS Sergeant Darshil. The grey gallon with red lid was received from CIS sergeant Gasio with a sealed envelope labelled. He marked it in his register and handed over to exhibit writer. He identified the gallon (MF-I) in court. It was sent to Suva for testing for presence of accelerant.
    
74. In the course of the interview, the 2nd accused indicated that he knew the place where that gallon was hidden so the interview was suspended and they went together. Upon being pointed out, the CSI team took the photographs and uplifted the gallon that was hidden underneath the floor of Poli’s house. He did not go to that place.
    
75. The interview of Zuhair was conducted on 1 May 2020, and recorded it in English on a laptop. He tendered the record of interview marked as PE-7. Zuhair cooperated with the officers. No complaint was made. At question 186, the interview was suspended for Zuhair to show where the gallon was hidden. He did not force the suspect to lead him to that location. All the questions were answered on his own free will.
    
76. Under cross-examination by Mr. Sen, Sergeant agreed that he had some control over the investigations while the Divisional Crime Officer ASP Rajesh Maharaj was the one who headed. The CSI team did take the photographs and collected all the exhibits and he was not personally involved in those activities. He is aware only of one gallon that was uplifted in his presence on the direction of the accused and not of 5 gallons. The accused pointed out the location to the CSI team. He is not aware if Vilimone was caution interviewed.
    
77. He admitted that, according to evidence recovery log, a number of gallons have been uplifted from 1st accused’s house. The grey gallon was the only one sent to Suva to check for accelerant and to determine the type of accelerant- but he is not aware of the test results.
    
78. There had been a CCTV camera in a nearby house but it was not operational. There was a team detailed to investigate and he as the investigating officer could not do all the things. He agreed he did not find any evidence against Poli at the scene of the crime but the forensic team did.
    
79. Under cross-examination by Mr. Rabuku, Chand said that the CSI team was headed by Sergeant Gasio and the team that came in from Suva was headed by ISP Margret Marshal. Rohit Prasad was the witnessing officer for the caution interview he conducted on 1 May 2020 with Zuhair.
    
80. A statement was recorded that, close to 3 to 4 hours that night, Zuhair was on line talking to his girlfriend Elizabeth. These numbers were checked by the cybercrime team. No report was received from them but he received verbal information that there was no continuous communication was done. He received a statement form Elizabeth.
    
81. He agreed that until the interview was suspended at 1.34 p.m. on the 3 May 2020, having interviewed nearly 42 hours, up to question 156, Zuhair made no admission to the fire. When the interview was suspended at 1.30 p.m., where Zuhair’s father Kamalu Dean came into the police station to see his son.
    
82. Sergeant Chand could not recall if Officer Ajesh Mani or any other officer spoke to Kamalu Dean. He denied that he informed Zuhair and his father that Zuhair will be made a State witness, and that in order for him to do that, he needed to divulge everything he knew about the incident. He denied that there was an agreement that Zuhair will tell what he knew about the fire. Kamalu Dean did not cry in front of him. He or any other officer gave Zuhair cigarettes. He admitted that from question 160 up to the end of the interview, Zuhair Dean started to tell what he knew about the fire. Chand said that Zuhair stated making admissions when he saw the hat in front of him. Zuhair became suspicious how come his hat was brought to the police station. He denied that, based on the promise by the police that Zuhair will be made a State witness, Zuahair agreed to show the gallon. He also denied that, based also on that promise, the police obtained Zuhair’s consent to take a DNA sample. Sergeant Chand admitted that Zuhair denied any involvement in the fire. He denied that he gave instructions to charge the accused under pressure because there was no conclusive evidence about the fire.
    
83. Detective Corporal Asish Kumar and DC Rohit were called as witnesses for Prosecution for them to be subjected to be cross- examined by the Defence.
    

D S Asish Kumar (Charging Officer for Poli)

84. On the instruction of SP Crime Divisional Crime officer Rajesh Maharaj, he went with inspector Mani to arrest Poli on 1 May 2020. He also charged Poli and recorded the statement of Vinod. He did not at any point of the time show the gallon that was retrieved by the forensic team to Vinod.
    

DC 2884 Rohit Vimal Prasad (Witnessing Officer of Zuhair’s interview)

85. Rohit was part of the team of investigators that went from house to house enquiries around Benau. He was also the witnessing officer in the interview with Zuhair. The interview was suspended at question 156 for Zuhair’s to see his father Kamalu Dean. He or interviewing officer did not speak to Kamalu Dean. Kamalu Dean never cried at the Crime Office.
    

Jabez Petueli (Fier Investigator)

86. Petueli is a fire investigator and a fire fighter. He investigated the fire on the 30 April 2020 Benau. When they arrived at the scene, the whole building had collapsed. The fire fighters were putting out the hotspots. He spoke to Pinto, the owner of the house, but he was not in his right frame of mind.
    
87. Petueli prepared a report and, after the vetting process of which, sent to police. He read the report (PE8) in evidence and tendered it. The time of fire is 0137 hours. Area of more damage was identified as the area of origin which is the room marked in the sketch. As the damage was so intense, they could not determine if the fire originated above the floor or from beneath the floor. So the point of origin could not be ascertained. In the night, the fire fighters had located only three bodies and, in the morning, located the fourth. The forensics took soil samples from the area of origin.
    
88. To come to a conclusion as to the cause of fire, they had to eliminate other potential causes and one of that was the use of incense and candle. They could not find any remains of incense. There was no sign of electrical failure either. According to the owner of the house, the house had been painted one week prior to the fire and they could not find any tins of paint or vanish. After eliminating all other causes, they came to a conclusion that the probable cause is incendiary warranting further investigation by the forensics of the Fiji Police Force. They needed the help of the forensics to further test the samples of the residue of what was left in that area.
    
89. Under cross-examination by Mr. Sen, Petueli said that criminal activity was considered as a possible cause of the fire. He agreed that in the statement to police, he had stated ...we found that the fire started from inside the house. That statement was done on the day of the investigation and the report was prepared after that.
    
90. Under cross-examination by Mr Rabuku, Petueli agreed that most accidental fires originate from within the dwelling house. He could not determine whether any accelerant liquid was used to start the fire. In his final report, it does say that it cannot be determined whether the fire originated above the floor, from within or underneath the floor or from outside because the whole floor was burnt so there was no pattern to work on the floor of the fire. Usually if there’s a pattern that remains and he will be able to work with that and identify where the fire had started. His statement to police was based on his internal observation of the fire in the early hours of the morning. After the full investigation, he changed his mind when he did his report.
    

Miliana Raravuso Werebauinona (Principal Scientific Officer)

91. Miliana works as the Principal Scientific Officer for the Fiji Police Forensic Chemistry Lab for the Fiji Police. She oversees the operations of the Fiji Police Forensic Chemistry Lab to ensure that it is able to identify and detect samples that are suspected to be illicit drugs and also to assist law enforcement with the samples that they need for investigations.
    
92. In this case, her role was to analyse samples that were being submitted for the detection of accelerant and for comparison of soil samples to reference samples. At the conclusion of the analysis, reports were prepared and given back to the investigating officers. There were a total of 5 submissions done and 4 reports complied. Because there were two types of analysis involved, two types of methods had to be used. The first analysis required the detection of accelerant and, for that, an instrument called gastro monograph was used and it allowed her to detect the presence of accelerant in the samples that were submitted. For the soil comparison, a separate instrument called FTIR was used to compare soil samples to a reference sample foe her to be able to detect whether they were from the same origin or not.
    
93. The report on Job No. 2280826 required the analysis of the submission made on 5 May 2020 by Doctor James that contained clothing samples that had the exhibit ID numbers- 19, 20 and 25 and three soil samples which had the exhibit numbers 43, 44 and 45. For the clothing samples, the requirement was to detect if an accelerant was present and for the soil samples they were required to be tested with a reference sample. For the three clothing samples, an accelerant was detected on all three clothing samples. The soil samples tested negative for the reference that they were asked to test it with.
    
94. Miliana comprehensively described the process by which the accelerant was detected on the clothing exhibits 19, 20 and 25. By using that process they were able to tell if what was being detected is a petroleum hydro carbon which is basically what accelerants are made of. Once that’s detected, they then are able to say that an accelerant is detected. However, they were not able to determine the specific accelerant present in the clothing because of the nature of the mixture of a lot of other substances that were present within the sample. They were able to only pick a general profile of the accelerant that is present but not able to specify which accelerant it is. The accelerant detected has a very low melting point and it is easily ignited and can cause fire. Common accelerants which they have on profile were kerosene, unleaded fuel (gasoline), benzene that are generated by the instrument.
    
95. The report on Job No. 2280826 was tendered marked as PE 9. When she was shown exhibits 19, 20, 25 that she received from Dr. James, they were sealed and labeled with exhibit numbers. With reference to those numbers and description, she identified exhibit 19 as red coloured shorts belonging to Saimumu Dean (MFI- 5) exhibit No. 20 as a red and white stripe jersey belonging to Saimumu Dean (MFI- 6) and exhibit No. 25 red coloured sports shorts belonging to Zuhair Farhen Dean (MFI -7) The exhibits items were repacked after the tests, sealed with Job No. 220826 and kept at the lab to be brought to Labasa.
    
96. The report on Job number 220843 was prepared after the receipt of 12 exhibits (clothing, debris and gallon and swabs) submitted to the lab by SP Margaret Marshall and Acting Corporal Sabina. The report prepared was tendered marked as PE-10. In some debris samples, accelerant was detected. Item 7 (Exhibit No. 23) was a gallon in which an accelerant was detected. In exhibit No. 51(b) No. 51 (c) wet and dry swabs taken from Exhibit No. 51(clothing item), an accelerant was detected. In exhibit No. 50 (partly burnt pieces of clothing materials, the piece of bamboo like material), an accelerant was detected. How the dry and wet swabs were taken would be explained by the CSI. After analyzing, the exhibit No. 23 (the gallon) was packaged and sealed and labeled, kept in the Lab and was brought over to Labasa.
    
97. The report on Job No. 220914 was tendered marked as PE 11. This report was prepared upon the submission by Sergeant Gasio where one sample of clothing (SD1/ MFI 8), was received on the 13 May. The result was that an accelerant was detected. The clothing was compared with debris that was submitted under 220913 - Job No. 22019, there was a reference sample that was submitted. A comparison was done with the clothing that was received for 220914 and the comparison produced a negative result.
    
98. The report on Job No. 220913 was tendered marked as Prosecution Exhibit No. 12. This report details the samples that was submitted to the Lab by Sergeant Gasio where they received two samples of soil and debris. The soil and debris were submitted for testing via the GC in which accelerant was detected. The soil sample was subjected to a comparison with the soil sample from defendant and the result was negative.
    
99. Under cross-examination by Mr. Sen, Miliana admitted that her laboratory is not accredited by law. She has no idea of the method of collection of the items by the uplifting officers. The methodology of testing and spectrum that was used to identify the accelerant were not disclosed to the defence. If a request was made they would have provided it to the DPP’s office. If a person driving a gasoline taxi and goes and fills the fuel, his clothes can be contaminated with gasoline.
    
100. When the lid of the gallon (MFI 3) was opened and shown to the witness, she agreed that some liquid was already in there and that it does have a slight odour that is of an accelerant. They didn’t analyse the liquid but the gas that was produced in the head space. She agreed that the gallon had been in a dirty place. Brush cutters are generally powered by premix. She agreed that the instrument she used to detect the accelerant was not calibrated under Trade and Measurements Act.
     
101. Under cross-examination by Mr Rabuku, Miliana agreed that she was not involved in collection of the samples from the scene of the fire but only in the analysis that’s done in the lab. The findings of fire investigators does at the scene in terms of an accelerant is not conclusive in nature. Her analysis she used would determine whether there is accelerant and secondly what type of accelerant. She agreed that the correctness of her findings would depend on the correct decisions of fire investigators who uplifted the samples, the method of extraction of these samples and the method of storage of those samples before they had reached her. She is not aware if the pair of red shorts had been worn by 2nd accused’s brother. If the pair of shorts was used for grass cutting, the presence of accelerant therein is a possibility. She did not agree that the findings of her lab were flawed or unreliable, but admitted it had limitations for the purposes of criminal prosecutions.
     

Gasio (Photographer /CSI)

102. Gasio is currently based in Suva with Crime Scene Investigation Unit (Southern) as the officer in charge. When he was based at the Northern Division as the Senior Crime Officer in 2020, he was appointed as the team leader and the photographer of the fire that happened at Uluibenau on 30 April 2020. Crime Officer Labasa Police Station alerted him about a fire at Uluibenau and arrived at the scene at 2.40 a.m.. When he arrived at the scene, the fire fighters were still trying to control the fire.
     
103. He took photos, prepared a photograph booklet and submitted it to the investigating officer. He tendered the booklet as part of his evidence and explained what those photos depicted. He also took photographs of the bucket hat that was lying in a cassava patch with “voivoi” plants where it seemed like a track, 11.8 metres away from the corner of the house that got burnt. The hat was secured, uplifted and submitted for analysis at the forensic biology lab. It was a flowery bucket hat. He identified that hat in court and tendered it as PE15 and the photos of the hat (PE 14) and of those of the place from where it was uplifted (PE 9-13). Since the hat was to be sent for DNA analysis, he instructed the exhibit collector- Tomasi to do wet and dry swabbing inside the hat at CSI lab at Labasa Police Station. The hat and the swabs taken were secured. On the 5 May, they were taken to Suva by Doctor James and submitted them to forensic biology lab in Suva.
     
104. Photo No. 19 shows the midrange view of the fatal fire scene where charred bones of the four deceased (exhibited as 2, 3, 4 and 5 vide ND report no. 471420) were found. In reference to the sketch map of the burnt house, drawn by Selema Bola, those bones were located at a bedroom. These photos were tendered as PE No.18. Those charred bones and some of the belongings (bangles, wrist watch hair clips etc.) found closer to each of them were put together by Tomasi and packed and sealed separately and taken to Forensic Biology Lab in Suva to establish the identity of each deceased.
     
105. 105. The debris from where the deceased were found were also uplifted for analysis for accelerant. He also visited the house of the deceased Dharmi (photo 42) and uplifted her belongings , green black hair comb, tooth brush pair of slippers (photographs no. 43, 44, 45) to confirm the identity of Dharmi. Apart from her personal belongings, buccal swabs were collected from the siblings and the children of Dharmi. Then they went to deceased Subhadra’s house and uplifted her belongings- a toothbrush (exhibit 11) a silver tongue cleaner and a pink comb (photographs 47, 48, 49)
     
106. Deceased Nagamma’s belongings too was uplifted together with the buccal swab of her son Bal Krishna. Deceased Zamindan Hussain’s brother’s and sister’s buccal swabs were collected and some of the belongings that her relatives have identified as those belonged to the deceased. They were also taken by SP Marshall to the Forensic Biology Lab in Suva to establish the identity of each deceased.
     
107. His team went to house of the suspect Poli (photo no. 53) and seized sports pants (exhibit 19) and red coloured jersey- Labasa Soccer with white stripe No. 18 Vodaphone (Exhibt No. 20) of Poli. Photographs 52, 53, 54 and 55 show the clothing uplifted from Poli house, on his directions. The clothing were still hanging in the wardrobe that was identified by Poli as the jersey and the shorts he was wearing on that previous night. They were packed, sealed, numbered by Tomasi and later transported by SP Marshall to Suva for analysis for accelerant.
     
108. Those photographs were taken during the reconstruction whilst the Poli’s interview was in progress. Interviewing officer, witnessing officer, exhibit collector and sketcher were all present with him. Buccal swab (Exhibit No. 41) of Poli was collected on 4 May during the interview with his consent and Dr James took it to Forensic Biology Lab in Navosa on 5 May. Poli was briefed about his rights, the purpose for which the buccal samples are used and the consequences, before the consent form was signed. The consent form of Poli was tendered as PE 21.
     
109. He also prepared four columned evidence recovery log for all items that were uplifted with the Exhibit numbers which was tendered as PE-20.
     
110. Photo No. 60 shows a mid-range view of 4 litre grey coloured gallon with red lid (exhibit 23) that was uplifted by Tomasi from underneath Poli’s house. 2nd accused pointed out the gallon during his interview and photograph 60 taken. Sketch (MFI 9) was drawn by Bola during the interview conducted by Kamlesh. Since it’s a case of fire all the likely containers (exhibit 21, 22 and 23 and 24) in the house of both the suspects were uplifted. However only Exhibit No 23 was taken for analysis for accelerant.
     
111. Zuhair’s buccal swab was taken with his consent on the same day (4 May 2020) during his interview. The same procedure was followed in obtaining his consent. The buccal swab consent form of Zuhair was tendered as PE 22. One red sports pants with red and black stripes worn by suspect Zuhair (exhibit 25) was uplifted when his brother was wearing it. Upon enquiring at the scene, the suspect pointed at the pants that his brother was wearing. Then the brother kindly removed it to be uplifted and secured by Corporal Tomasi during the reconstruction. It was taken for analysis for accelerant at Chemistry Lab by Margret Marshall.
     
112. Two pieces of burnt cloth pink-blue marked as exhibit 50 was uplifted with partly burnt bamboo like material (exhibit-51) from the area of origin at the crime scene, believed to have been used to start the fire. Wet and dry swabs were done on the bamboo by Tomasi and taken to Suva forensic chemistry lab by Sabina to test for trace of accelerant.
     
113. Remains of 4 bodies could separately be identified before being uplifted. Chard bones of each deceased were uplifted separately and wrapped. Photo No. 2 shows the midrange view of the chard bones of the 4 deceased wrapped separately in white bed sheets. Doctor James had conducted the postmortem on the remains of each deceased separately. After the postmortem examination, photographs 1 to 25 were taken. As indicated by the pathologist, the tissues were photographed, placed inside a container with a fluid and the labelling was done by Corporal Tomasi before being sent for analysis at Biology lab in Nasova for identification. They were to be used to compare reference DNA samples taken from the belongings of the deceased and buccal swabs taken from the relatives of the deceased to identity the 4 deceased ladies in this case.
     
114. Gasio played the role as the case file officer of the CSI for this Benau case and forwarded the report to the investigating officer, Inspector Chand. He ensured that the exhibits uplifted were never contaminated till they reached its final destination which, is the lab. There was no complaint in this regard from any of the labs. He identified in court both accused from whom the buccal samples were taken.
     
115. Under cross- examination by Mr. Sen, Gasio agreed that the investigation was based on the theory that two person went outside the house and set the house on fire. He received information from the fire officer that the fire may have started from inside the house. Base of the house was wooden and it had only one door. According to the complainant, the door was not locked when the fire started. Looking at the original photo, he confirmed that the 2 litre container found underneath the Poli’s house was grey in colour with a red lid and it was dirty.
     
116. Before taking the buccal swabs, the Poli was explained that the test will assist him to exclude him from exhibits found at the scene of the fire. He was particular with items and in picking only some of the clothes on the instructions of the investigator who had received information at the interview process.
     
117. Under cross- examination by Mr. Rabuku, Gasio agreed that the bucket hat was found 11.8 metres away and it was uplifted because it was a foreign object introduced into the scene. He agreed that this hat could have been introduced by anyone or even by an animal. The actual result of the DNA tests can only be elaborated by the biologist.
     
118. His power to extract DNA from an accused for investigation purposes is entirely based on the Constitution. There is no specific legislation in Fiji that guides the extraction of DNA samples from a suspect. He conceded that extracting DNA from a suspect is different from extracting DNA from relatives of the deceased and the former is based on fairness.
     

PW15 Mr. Kishore Singh.

119. In the year 2020, Kishore lived in Malau and was home. Before staying at home in May 2020, he was serving a prison term in Labasa Prison, having been convicted for drunk and disorderly, and bribing a police officer. The sentence was for 9 months but came out in 6 months. While serving, he was tasked to look after laundry of the inmates as a laundry man. He cannot recall when the prison term started and whether he was in prison on June or July. He told the police about the dates and about everything when the things were fresh in his mind. He can’t recall what year he gave his statement to police. He finished serving his term in August 2020.
     
120. When he was in Prison, Poli and Zuhair told him that they set fire to a house belonging to Pinto. They told when he was collecting dirty clothes. He knew Poli as a taxi driver for 10 years before coming to prison, when he was selling grog in the market. He asked Poli why he come to prison. Poli said ‘I have set fire to one Pinto’s house that’s why I am here’. He then moved to another room where he met Zuhair. He asked Zuhair why he was in prison. Zuhair said ‘we have set fire that’s why we are here’. This conversation took place in the main cell block for more than 20 minutes. Poli was inside the cell and he was outside the cell on the passage. Labasa Prison has 12 rooms on each side in the remand block. The first cell was occupied by Poli and the second by Zuhair.
     
121. He first met Poli who said that he lit matches and Zuhair poured benzene. When he then went to Zuhair’s cell, he told the same story. When he was peeping inside the cell looking for dirty clothes, he saw Poli whom he knew as a taxi driver. Then he asked him ‘what happened? Tell me the truth because we are all in Prison’. Then Poli told him that he set fire to one Pinto’s house- Then he said- don’t worry you will be set free later.
     
122. Then he went to another cell to collect clothes. There were a lot of I- Taukei boys present in that cell and there was only one Indo- Fijian by the name of Zuhair. He came to know Zuhair in the prison. When he had called him to the door, he told Zuhair ‘Poli has told me everything, if you have done something, just tell me everything, since we are in Prison he will not tell anyone’. Zuhair told him ‘I poured the benzene and Poli lit fire’. It was day time and nothing was blocking his view. Then he collected the clothes and came back. He recognised Poli and Zuhair sitting in the dock.
     
123. He was released from prison two weeks after this conversation, in the year 2020. After being released from Prison, he came to the market where he met one Bimal, a market vendor, and he told Bimal what he heard from Poli and Zuhair. Then Pinto came there and Bimal told Pinto what he heard. After that Pinto called police and DPP called him. Thereafter, police came and took him and took a statement. He told everything he heard from Poli and Zuhair in prison. He knew Pinto for the past 10 years as both of them used to sell grog in the market.
     
124. Under cross-examination by Mr Sen, Kishore said that two weeks after he was released from prison in August 2020, he came to the market. He could only remember that he told police when he has been released from prison. He has forgotten, the exact dates. He has no idea as to how DPP’s office got his number. He only told two people Bimal and Pino, who knew his number as he was dealing grog with them.
     
125. He conceded that, according to the records, he was sentenced to Prison on 18 November 2019. He is not really sure of the date he was released. He had no interaction with Poli prior to going to Prison. Although he is not telling lies, he admitted that he told police and two people about what he heard from Poli and Zuhair despite the promise he had given to them that he will not tell anyone. He told because this is a big issue where three people died and a house got burnt. They (Poli and Zuhair) told him in prison about burning of a house and then he came to know that Pinto’s house was burnt.
     
126. He knew Labasa Vaturekuka Prison has very strong surveillance cameras. He admitted that he was sentenced to imprisonment, on 7 July 1998 for 3 months consecutive to another term he was already serving for being convicted for larceny. He served his last term when he was caught drunk with his friends who behaved disorderly. He told the police officer that he did not do anything and offered the officer money. After trial, he was found guilty. He was in prison for small cases once in a year.
     
127. After coming out of prison, he went fishing and returned after two weeks. He forgot the dates as to how long before his release, this conversation took place in prison. He admitted that he gave a statement to police after he came out of Prison in August 2020 and another statement on 9 June 2021 to inspector Kamlesh Chand. He did not change anything and told the same story on those two occasions. He used to collect the clothes, wash, hang and spend time with the officers. It’s a whole day exercise.
     
128. He admitted that in his statement dated 9 June 2021, he had mentioned that the conversation with Poli took place while distributing clothes and that he gave the clothes from the window. He was the one collecting, washing and returning the clothes. He collected the clothes from the door. He does not know about the window. There is a door and there is a window type provision above. I gave all the clothes from there. He denied the proposition that he had never met Poli or Zuhair or having had a conversation with them in prison. He was only a customer and did not want to help Pinto, he only told the truth.
     
129. Under cross-examination by Mr Rabuku, Kishore said that when he took stand in trial in the bribery case, the court rejected his denial and found him guilty after trial. The court found him lying that’s why he was found guilty. Then he said that he admitted giving money to the officer.at trial. He cannot remember the date of his release, but admitted that, according to the records, he had come out of prison in May 2020. Prior to meeting Poli, he knew nothing about the fire. He denied making up a story with Pinto and taking it to police late for money. When he made his statement sergeant Chand believed him.
     

Corporal Tomasi Korovaturaga (Evidence Collector)

130. Tomasi was the evidence collector. He assisted Inspector Gasio to uplift the exhibits from the scene, to take buccal samples and the exhibits to be sent to the labs and for photographing. Sergeant Gasio uplifted a flowery bucket hat from the scene of arson and he only did the wet and dry swabbing for DNA tests at the Biology lab. He uplifted the red shorts (PE 26), and a red coloured jersey Labasa soccer with white stripe (PE 27) from Poli’s room during reconstruction upon being pointed out. 4 litre grey coloured gallon (PE 28) was also uplifted during the reconstruction upon being pointed out by Zuhair Dean from under the verandah of Poli’s residence. During the reconstruction he also uplifted a red coloured red coloured sport shorts with stripe black, white and yellow (PE 29) during reconstructions of Zuhair. Apart from those, all the items uplifted and swabs taken which have been entered in the Evidence Recovery Log were sent to Suva either for accelerant or DNA analysis.
     
131. Under cross-examination by Mr. Sen, Tomasi said that the remains of four bodies could separately be identified and separately bundled. Poli was not present when the 4 litre grey gallon was uplifted. He agreed that the gallon was covered with soil and dirt and was in the same condition when it was uplifted.
     
132. Under cross-examination by Mr. Rabuku Tomasi agreed that before the pair of shorts was uplifted his brother was wearing it.
     

Selema Bola (Skether)

133. Bola prepared a fair sketch plan of the scene of crime on 1 May 2020, the day after the house was burnt according to Pinto’s information. He tendered it as PE 36. He also prepared a fair sketch plan during the reconstruction at Zuhair’s residence and marked on it the place the grey gallon with red lid was located. Sketch was tendered marked as PE 37. The residences of the two accused shared the same roof but different compartments.
     
134. Corporal Sabina Miriama, played the role of the recorder. On 8 May 2020, she transported one of the items (Exhibit No. 50) that was required to be taken for analysis at chemistry lab. The exhibit was handed over by Corporal Tomasi.
     

Paulini Saurogo (DNA Analyst)

135. Paulini is the Senior Scientific Officer for the Fiji Police Forensic Biology and DNA Laboratory at Nasova. She spoke about her detailed list of academic qualifications, training in DNA extraction, quantitation, polymerase chain reaction and capillary electrophoresis method facilitated by the life technologies of Australia. She has been employed by the Fiji Police Forensic and Biology and DNA laboratory since 2014 and in June 2018, appointed as a scientific officer and just been appointed as the senior scientific officer.
     
136. She was assigned as a case officer for this case. In preparing DNA reports for court proceedings, they follow quality assurance measures with strict documentation. Every examination taken place is always verified in every processes and steps of the processes of reporting, not only DNA reports, but processes starting from the item examination till coming down to the 4 stage DNA analysis, interpretation and reporting.
     
137. DNA is genetic blue print of an individual that inherits from his or her parents, half from mother and half from father. No two individual has the same DNA profile unless they are identical twins. DNA is contained in all body tissues. She categorised DNA evidence into physical DNA evidence such as blood, hair and touch or trace DNA evidence, transferred via skin cells through handling of objects or touching, often deposited in little amounts.
     
138. To extract touch DNA evidence from a surface, if it’s on a hard surface, they will use wet and dry technique whereby two swabs are used simultaneously to collect as much DNA as possible. Wet and dry swabbing can even be done at the crime scene. When it comes to clothing, the right technique of collecting DNA would be adhesive tape uplifting, usually done in the laboratory at Nasova, the only laboratory for the Fiji Police Forensic Department. After collecting DNA samples, they go through the four stage analysis described in appendix 2 of her report.
     
139. In the extraction process, the DNA is isolated from the evidence samples with the help of an automated instrument called express nucleic acid extraction machine.
     
140. The extraction is then forwarded to quantitation, the 2^nd stage of DNA analysis, to find the quantity of DNA in a particular sample with the help of machine 7500. Once the quantity of DNA in that particular sample is determined, they have to ensure that the DNA concentration exceeds the lowest limit for detection which is 0.00225 monogram per micro litre. Anything that’s lower than that is unreliable.
     
141. The 3^rd stage is amplification done through Polymerase Chain Reaction (PCR) with the help of thermal cycler to make enough copies of DNA so that the analyst would be able to interpret a full DNA profile.
     
142. After amplification, the result is forwarded for capillary electrophoresis, the last state of DNA analysis whereby it detects the DNA profile. In this process, the collected data is uploaded into a software (gene mapper IDX 1.5 version) which converts the data to a readable data which is the DNA profile for analyst to interpret.
     
143. She said the all the instruments used in the lab are accredited quarterly or annually by a well-known DNA instrument manufacturer who have their own human identification team consisting of forensic specialists. They do the testing before distribution and they also visit their clients and offer training. They also check the laboratory procedures including Fiji Police Forensic Biology Lab.
     
144. In this matter, she compiled two DNA reports, one concerning the accused, dated 11 May 2020, and the other dated 8 June 2020 for identification of the deceased. She tendered the reports in evidence marked as PE 38 and PE 39 respectively. She confirmed that all the samples sent for analysis underwent the 4 stages described above.
     
145. Upon completion of the four stage process, they will have crime scene evidence DNA profile and the reference DNA sample profiles from the known person of interest or the victim for interpretation. Then they compare these evidence samples against the person of interest or the victim and also go through the elimination process.
     
146. Paulini described the summary of her findings as per her report. The DNA profiles obtained from the reference samples of Poli (exhibit 4.C1 from exhibit 4 -the buccal FTA) was compared with the DNA profiles obtained from the representative evidentiary items submitted for examination. The DNA profiles obtained from the reference sample of Zuhair (Exhibit 5. C1 from Exhibit 5) was compared with the DNA profiles obtained from the representative evidentiary items submitted for examination.
     
147. The mixed DNA profile obtained from the representative samples of the bucket hat (exhibit 1.1.C1 from exhibit 1) consisted of major and minor components. At least 3 individuals have contributed DNA unequally to this samples. The DNA profile obtained as a major component matched the DNA profile of Zuhair. The minor components were from unknown individuals. DNA profile obtained from the representative samples, (exhibit 1.2 C1, 1.4 C1) from exhibit 1 (the bucket hat) and (exhibit 2. C1) from exhibit 2 wet and dry swab (exhibit 3. C1) from exhibit 3 (wet and dry swabs) no profile comparison could be made for theses exhibits. The complete DNA profile obtained from the representative samples (exhibit 1.3 C1) from exhibit 1 (bucket hat) matched the DNA profile of Zuhair. Therefore, Zuhair cannot be excluded as being the contributor of this representative sample.
     
148. Wet and dry swabbing done by CSI was not the right technique for uplifting skin cells from the clothing exhibits therefore they used the right technique to uplift the skin cells by using the tape lifts or adhesive tape for uplifting the skin cells to determine the person that was wearing that particular hat. Exhibit 2 and exhibit 3- (the wet and dry swabs) that were uplifted from the crime scene by CSI did not have required concentration of DNA.
     
149. The contact DNA uplifts uplifted at the lab from exterior of the crown of the bucket hat (exhibit 1.1) was a mix DNA profile which meant at least three individuals have contributed DNA unequally. Zuhair cannot be excluded as the major contributed to this DNA profile. The minor contributors were unknown individuals. She identified the bucket hat (PE 16) in court that was sent to her by CSI for analysis.
     
150. The contact uplifts uplifted from the rim of the hat (Exhibit 1.3), a complete DNA profile obtained (a full DNA profile is obtained from a single source contributor) from the sample was consistent with DNA profile obtained from the reference DNA sample of Zuhair. Therefore, Zuhair cannot be excluded as the contributor to the sample.
     
151. She described her conclusion as follows: As no two individuals has the same DNA profile, since it’s a complete profile that comes from a single contributor and, looking at the 24 locations it has the same alleles, same as that of Zuhair, he cannot be excluded as a contributor of the uplifts from the DNA profile that was obtained from the uplifts of the rim of the bucket hat. From the interior of the hat, there was no mix DNA profile, it’s just only one single contributor, saying that only one person had been wearing that particular exhibit. The sole contributor is Zuhair.
     
152. She then described the report dated 8 June 2020 on identification of the deceased. She has obtained reference samples of the relatives of the deceased or their personal effects that were found in order to identify the four deceased, Subhadra Wati, Zamindan Hussein, Dharmi and Nagamma. She read in evidence the summary of her findings given in the report.
     
153. She managed to get complete evidence samples DNA profile of unidentified individuals. She managed to identify late Subhadra Wati, Nagamma and Subhadra Wati. All evidence samples were compared with the reference samples that were provided to the laboratory. That’s how she identified which evidence samples belongs to which deceased. The personal effect that was submitted for Zamindan Hussein’s identification contained a mix DNA profile and therefore she had to exclude the jacket. The fourth deceased couldn’t be identified because her personal effects, the jacket, contained DNA of more than one contributor so she couldn’t use that as a reference sample. Since she managed to identify the other three bodies with the tissues and the bone samples that were provided, the unidentified deceased body 1 was assumed be that of Zamindan Hussein.
     
154. A muscle tissues had been uplifted from deceased 2, during post mortem. The complete female DNA profile obtain from the sample was consistent with the DNA profile obtained from the toothbrush belonging to Subhadra Wati therefore deceased body 2 could be identified as Subhadra Wati.
     
155. A muscle tissue, uplifted from deceased 3 during post mortem NMLC 28/20, exhibit 24.C1, a complete DNA profile obtained from the representative sample sub exhibit 24.C from exhibit 24 muscle tissue. Anand Singh cannot be excluded as being the biological son or relative of the deceased therefore deceased body 3 could be identified as Dharmi.
     
156. Exhibit 26 muscle tissue uplifted from decease 4 during post mortem NMLC 28/20. A complete DNA profile was obtained from the representative sample sub exhibit 26.C1 from exhibit 26. Lal Krishna cannot be excluded as being the biological son or relative of the deceased therefore deceased body 4 could be identified as Nagamma.
     
157. Under cross-examination by Mr Sen, Paulini confirmed that she had not received a request from the DPP’s office, based on the request made by the Defence asking for the results, the method and the procedure of the DNA analysis. She did genetics in one of her field of studies but has not done a forensics or organic chemistry degree. The Appendix 2 of her report gives the general method used in the laboratory for Fiji Police Force. She agreed that she is not the government analyst in terms of Family Law Act or her lab represents an accredited lab by the Attorney General, but she is an analyst for the Fiji Police Force. She agreed that calibration and maintenance had to be done by the Chief Inspector from the Trade and Measurement Department and such calibration certificate has not been obtained for all the machines that were used. But they were accredited by DNA Consumer Board and subjected to External Quality Assurance Program of Life Technologies, Australia. She denied that the results are flowed and that they have no credibility. She confirmed that she is a qualified calibrator.
     
158. Under cross examination by Mr. Rabuku, she agreed that since she found two other DNA contributors for the hat, there is possibility that either of other two persons might have dropped it there but she cannot ascertain that. She agreed that it is also possible that if the person who was in possession of the hat touched somebody else and touched the hat and that’s where the skin cells would have been transferred (Secondary transfer). How long a DNA deposit would last on clothing would depend on various factors such as environmental factors which would break down DNA fragments. She cannot tell when Zuhair deposited his DNA on that bucket hat. She analysed the hat on 7 May 2020.
     
159. The statement of SP Margret Marshal (PW 25) dated 11 May 2020 and the analysis request form dated 7 May 2020 were tendered by consent as part of the agreed fact. The case for Prosecution was closed having led evidence of 18 witnesses and tendered 40 exhibits and documents.
     

Case for Defence

Case for 1st Accused

Etike Taito Katafogo.

160. Katafogo is the Officer-In-Charge of the Labasa Correction Centre. There are two cell blocks, one is the dormitory and the other is the main cell block. In 2020, it had 16 cells- 8 on each side. But he wasn’t at the Labasa Correction Centre at that time. After going through the records he could confirm that there had been a prisoner by the name of Kishore Singh. He was sentenced on the 18 November 2019 and released on 17 May 2020. The SOP does not allow that the remandees and the convicts to mingle together or even talk to each other. A convicted prisoner can’t freely walk without a prison officer and start talking to remand prisoners. Surveillance cameras have been installed and being watched. Even the prisoners who do laundry work should be accompanied by a prison officer. Each cell in the front has a grill door. Window is at the back of the cell at 6 feet hight. No one can see the prisoner and talk to him through the window, unless he climbs up.
     
161. Under cross-examination by Ms. Latu, he confirmed that, in 2020, he was not there in Labasa when Kishore Singh was serving. He talked about the policy that is in place in prison. He wouldn’t be in a prison to monitoring what the other officers are doing all the time. He wouldn’t know if the policy is strictly followed in prison during 2020. Normally a convicted serving prisoner who is about to return home would be given responsibilities to do laundry for inmates and would go around and collect dirty clothes and distribute clean clothes in prison. Only when they are distributing the clothes, they can just go and drop the clothes off and come back. He drew a rough sketch to depict the front grill door of a cell and tendered to court (PE 40). The space in those grill allow people to see through inside.
     

Yasmin Nisha

162. Nisha is the wife of Poli and is married to him for 21 years. Polo’s taxi is run by benzene. In 2020, the fasting started in April and the curfew was effective from 8 p.m till 5 a.m. The fire broke out at Pinto’s house sometimes between 1.30 a.m and 2 a.m. Poli was sleeping at that time. Before fire, Poli came home at 7 p.m. He performed Muslim rituals and went to sleep. She slept with her husband and had sex with him around 12 midnight. After having sex, they slept. He did not leave home at any time after that.
     
163. Poli had three pairs of jerseys and two shorts. Police came and took one jersey from his cabinet 3 days after the fire and they put it on the bed. Vinod never brought a 4 litre gallon of benzene home at any time. They have plenty gallons at home because they change oil in the car. Vinod was not a frequent visitor at her place. Vinod and Pinto are relatives. Vinod visits Poli’s house. She couldn't remember Poli visiting Vinod’s house on 20 April 2020 to come back at 11.30 p.m, after having grog. Poli never moved around in the curfew hours. They had no animosity with Pinto’s family. Nagamma used to come to her house and hire their taxi.
     
164. Under cross -examination by Ms. Lomaloma, she admitted giving two statements, first one on 30 April 2020, and the other on 2 May 2020. In her first statement, she had not mentioned about having sex with her husband that night. She admitted stating in her first statement, that ‘at about 12 midnight, my husband came and slept beside me’ but in evidence denied giving an exact time. She did state to police that she was having sex that night. She denied making up a story after three days in her second statement. She denied speaking to Zuhair before he was arrested. She admitted the DVRO case with Anwer and Ponto giving evidence against Poli.
     

Case for 2^nd accused

Titilia Ditamana

165. Titilia is married to one Kamalu Dean for 30 years. Zuhair is his youngest son. They are residing in Benau, in a big family house where Poli’s family also live. Together with her daughter’s child and her two sons and her husband, she lived in her side of the family house.
     
166. On 29^th of April 2020 after breaking fast at 6 p.m, and prayers, she went for cooking. Her two sons Zuwaid and Zuhair went to her sister-in-law at Naduna and returned before curfew at around 9.45 p.m. Upon their arrival, they came to the verandah. She went to sleep at the sitting room. There are two rooms, separated with curtains. One room was occupied by Zuhair and the other by her daughter and the granddaughter. The elder child used to sleep with the grandmother on the other side.
     
167. While sleeping, she could hear the sound of tin and also the shout of the people. She woke up and woke up her husband. When she moved the curtain, she saw Pinto’s house on fire. Then she went and called Zuhair. Zuhair was on the call to someone. Zuhair wanted to go and help, she told him not to go because it was curfew. Zuhair never left the house that night to go anywhere. Had he left the house, she would have seen him leaving. Police never asked where Zuhair was on that night.
     
168. Under cross-examination, Titilia confirmed that before she heard the sound, she was sleeping. She agreed that even if Zuhair had walked out of the house or even gone to the toilet, she wouldn’t know because she was sleeping.
     
169. That’s the case for Defence
     

Analysis

170. There is no dispute that the house in Benau that belonged to Pinto and her mother was completely burnt down by the fire that took place on the wee hours of 30 April 2020. The Prosecution says that the fire was not accidental and that the accused, acting in joint enterprise, wilfully caused it with the intention of destroying the dwelling house and also intended to cause the death or were reckless as to causing the death of the occupants and that as a result of the fire four ladies named in counts 3 to 6 of the information died.
     
171. There is no direct evidence or eye witness accounts to implicate the accused or link them to the fire. The Prosecution solely relies on circumstantial evidence to prove the case on each count and against each accused. The theory of the Prosecution is that an accelerant (benzene) was used and that it was introduced from outside of the house to cause the fire.
     
172. The 1st accused at the outset disputed almost everything of the Prosecution case except the admissibility of his caution interview. His defence is one of complete denial and in support of which an alibi was also set up. During the course of trial however, his counsel Mr. Sen conceded that the fire destroyed the house of Nagamma and that four people perished in that fire. They however did not stop disputing the identity of the deceased. The 2nd accused, on the other hand agreed on many things. He did not dispute that the fire was not accidental. He did not dispute the admissibility of the caution interview or the DNA reports. The position of the 2nd accused is that he was not there at the crime scene when the fire started and had no hand in the fire. He also set up an alibi right from the beginning, at his caution interview as his defence. Counsel for both accused informed court that they do not dispute the chain of custody of the exhibits.
     
173. Before venturing into the analysis of evidence, it is important to identify the proposed strands of circumstantial evidence against each accused that would establish the primary facts from which the Prosecution is inviting the Court to draw the necessary inferences in coming to its judgment. I would summarise those strands as follows:
     
174. Against the 1st accused -Poli

Animosity /Motive- Poli had an animosity with the complainant-Pinto and that motivated the commission of these offences.

Preparation- Poli did certain things in preparation to commit these offences well in advance.

Confessions- Poli made confessions to Kishore Sing.

Chemical evidence- An accelerant was found in the clothes that Poli admitted to have been wearing on the day of the fire.

The 4 litre grey coloured engine oil gallon which he filled benzene with 10 days prior to the fire and uplifted from the 1st accused’s house tested positive for accelerant.

Post conduct Poli did not support to douse the fire of his neighbour

175. Against the 2nd accused- Zuhair

Motive The Zuhair had an animosity with Pinto

Confessions The Zuhair made confessions to Vilimone and Kishore

DNA evidence The DNA extracted from the rim of the flowery bucket hat matched that of Zuhair.

Chemical evidence The clothes Zuhair admitted to have been wearing on the day of the fire tested positive for accelerant.

Knowledge Zuhair had knowledge of the place where the 4 litre grey coloured gallon was used was hidden.

Post conduct Zuhair did not support to douse the fire of his neighbour

176. Now, I proceed to analyse the evidence led in trail to see if these strands or primary facts of circumstantial evidence have been proved by the Prosecution.
     
177. The Prosecution called complainant, Bal Krishna (Pinto), as its first witness. His evidence was intended to prove three strands, animosity, motive and preparation. Pinto’s evidence is also important in establishing the identity of the deceased.
     

Animosity

178. 178. The position taken up on behalf of the 1st accused (Poli) is that there was no animosity between the two families. The 2nd accused (Zuhair) took a slightly different approach- He says that the entire neighbourhood was up in arms over the noisy rituals/witch-crafting performed by Pinto, who, according to Zuhair, is a witchcraft /medicine doctor and, therefore, even if there was an animosity between the two families, it is not logical to put the blame only on the Dean family.
     
179. Pinto’s evidence is that, ever since the fight in 2019 in which Zuhair and Poli’s son were involved, the Dean family has been at odds with him. Since then, his house got stoned, complaints lodged with police, Poli demanded $ 5000. He also said the relationship was not good with Zuhair ever since he reported Zuhair to his father about marijuana consumption. Zuhair used to swear at him because he played better billiard. He believed Poli supplied Zuhair with marijuana to stone his house.
     
180. In his statement to police Pinto had mentioned about Poli’s demand of $ 5000, although there is a minor discrepancy as to the mode the demand was made. He gave a plausible explanations as to why he was unable to tender documents to prove that complaints were in fact made to police. He said police did not take his complaints seriously and that the copies of complaints got destroyed in the fire. His evidence as to the 2019 fight with Poli’s son and Zuhair was also corroborated by Leone Ravula and, as to their plans to stone the house, by Ravula and Vilimone Vumalumu (Vilimone).
     
181. Poli himself admitted in his caution interview at Q 54 and Q55 that he is not in good terms with Pinto. At Q 64, he talks about the DVRO case in which Pinto had given evidence against him. This fact was confirmed by Poli’s wife- Nisha Bi in her evidence. Vinod Sharan (Vinod) in his evidence confirmed how angry Poli was on the people who were associated with Pinto. Poli had told Vinod- ‘the people who go to Bindo’s place is my enemies so you don’t come to my place’. Poli at Q-206 in the caution interview admitted making such a statement to Vinod. Poli also admitted in the caution interview that he totally stopped people, including Vinod Sharan, from coming to Pinto’s house for witch-crafting. Poli admitted he was angry on Pinto from the time he heard from Fariq that Pinto will do witchcraft on his children and kill them (Answer to Q 76). Poli admitted saying to Shahista Bi “look child he swore at Muslims’ while looking at the fire from his verandah (Answer to Q 273). According to Q 129, he had never gone to assist to help douse the fire. I accept the evidence of Pinto that both the accused persons had an animosity towards him.
     

Motive

182. The evidence shows how this animosity has motivated Poli to get even with Pinto. Poli had told Vinod that he had to spend one night in police lock-up so he will burn Pinto’s house to ashes. Poli at Q 207 of his caution interview admitted part of this statement. As he said this, Poli’s face turned dull, totally changed, not normal and his voice loud. Vilimone said Poli’s family cursed Pinto because he always reported them to police leading them to raid their house so Poli wanted him to stone the house that was burnt. They also had a conversation as to how to set Pinto’s house on fire. I accept that there was a strong motive on the part of the accused to get even with Pinto.
     

Poli’s Preparatory Conduct

183. Pinto’s evidence suggests that Poli was up to (doing) something on the night of 29 April 2020. He saw a shining a torch from Poli’s house. At around 11 p.m., Poli had walked up to his drive way and hid behind his temple. Then Poli quickly walked home and started switching his light at his verandah on and off. The Prosecution suggests that Poli was signaling Krishna’s presence in the verandah. Poli in his caution interview admitted that he was shining his torch that night to check if anyone was there and that he kept on switching his lights on and off to chase away the stray dogs.
     
184. Pinto said he could clearly recognise Poli from the bright light shining from his verandah. His view was not obstructed when he was observing Poli for one minute, at a distance of 5 meters. Although Krishna, in describing Poli’s movements, had not used the particular word ‘hid’ in his statement to police, he told basically the same story in Court. He admitted that the curfew was on, but the fact remains that quarantine curfew was observed in breach in most peripheries in Fiji. Even if Krishna had called police to inform about Poli’s curfew breach, Poli would be home by the time police arrive. I have no reason to disbelieve Pinto’s evidence on this point (preparation) and its reliability.
     
185. On 29 April 2020, during daytime, when Akosita was looking for pandanus (voivoi) leaves in the cassava patch close to the boundary, she saw her neighbour, Poli, crossing to his house. Being curious, she asked where he was going. Poli said he was looking for his missing duck. The photographs show that the track or foot path along the cassava patch with pandanus plants. Akosita’s eyesight was not as good as it used to be to recognise Poli in Court. However, she knew Poli well as his neighbour when she recognised him in the cassava patch, nearly two years before she came to give evidence. There is no evidence that Poli was raising ducks at his place. I accept the evidence of Akosita.
     
186. The evidence of Vinod is also important in this regard (preparation). When Vinod joined Poli in his taxi on 20 April 2020, ten days prior to the fire, Poly brought a grey-coloured engine oil gallon with a red lid and filled it with benzene at the bowser. Poli ensured not to drive his taxi to the filling station. He parked it somewhere else and asked Vinod to walk to the station to buy benzene. Poli told Vinod that he was going to use the benzene for grass cutting. However, at the conversation that took place that same night at Vinod’s place, Poli divulged the real purpose of buying benzene. Poli told him that the benzene was bought for the purpose of burning Pinto’s house.
     
187. At this stage, I must explain why I should believe Vinod’s evidence. The Defence suggested that Vinod made up this story and told lies in Court. Why should Vinod make up a story against Poli whom he described as his great friend and marijuana companion? It was suggested that Poli had tipped off the police to raid Vinod for planting marijuana and also that police accompanied Poli in the raid to arrest him. So to get even with Poli, it was suggested, that Vinod made up this story. Vinod flatly denied this suggestion.
     
188. Poli, in the same conversation had told Vinod that if his plan was leaked to anyone, he will ask an I-Taukei to assault Vinod and burn his house. Vinod admitted he was just listening when Poli was threatening him under his own roof. Vinod had not told the police of what he heard from Poli until the fire. It was suggested that this behaviour is implausible.
     
189. Vinod in my opinion aptly justified his behaviour. He described the mixed feelings and the dilemma he encountered. Given the friendship they shared, he believed Poli would not do anything to him. So he did not take Poli’s words seriously. At the same time, when it came to his own self, he was afraid that if he told someone, Poli might do the same thing to him. As Poli said this, Poli’s face turned dull, totally changed his voice and became loud. He did not go straight to police to tell what he heard from Poli for two reasons, he was afraid and also that he went to work in the camp the following morning.
     
190. After 2-3 days, Vinod returned from the camp and had gone to Pinto’s house to buy grog. When he was on his way back, Poli told Vinod- ‘the people who go to Bindo’s place is my enemies so you don’t come to my place’. This type of a conversation was admitted by Poli himself, in his answers at the caution interview (Q69 and Q70).
     
191. When Vinod heard about the fire at Pinto’s house, just 10 days after the talk, he would have realised how much weight he should have given to Poli's words which he thought at that time to be a mere ‘grog talk’. He must have gone to police to make a statement when he realised that Poli has walked the talk.
     
192. When a grey-coloured engine oil gallon with a red lid was shown to the witness, he recognised it as the one given to him by Poli on 20 April 2020, to fill benzene. Before it was shown, he had already described the gallon as a grey-coloured engine oil gallon with a red lid. Vinod had handled this gallon twice on that day as he filled it with benzene. He would have been quite familiar with this gallon as he was the one who took it to the bowser and then unloaded and put it in Poli’s car port. Poli himself, in his caution interview admitted going with Vinod to the bowser, to buy Benzene, but denied it was him that bought benzene. It should be noted here that Mr. Sen cross-examined Vinod that benzene was bought for grass cutting. I am not in a position to form an idea as to how much worth benzene could fit into that gallon without evidence to discredit Vinod.
     
193. Poli’s wife is not aware if Vinod had ever brought this gallon home. She said they had plenty such gallons in their house. If it was a brand new one, one would have accepted the argument that such gallons are freely available in the market for anyone to buy and therefore could not be characterised. But this particular gallon is distinguishable in that it was old and covered with dust, the sticker on the front is torn. Before it was shown to the witness, the learned Prosecutor should have made the witness to describe the distinguishable features of the gallon in greater detail. That was not done. However I am satisfied that Vinod correctly identified the gallon as the one he filled benzene with.
     
194. This gallon had not been shown to Vinod at the time when he gave the statement to police. There appears to be a reason for that. It had been uplifted from Poli’s house upon being pointed out by Zuhair, during his interview. According to the record, the reconstruction took place on 3 May 2020 whereas Vinod had given his statement on 1 May 2020. Therefore, the police would not have been able to show this gallon to Vinod at the time of his statement. Vinod did not deny that he is distantly related to Pinto as stated by Poli’s wife. However, that does not prevent me from accepting Vinod’s evidence.
     

Confessions

195. Now I turn to the evidence of Vilimone. He is an important witness in the Prosecution case in that he is one of the witnesses who testified to the confessions made by Zuhair. He also spoke about the animosity and the pre-planning on the part of the accused which I have already dealt with. It is not disputed that Vilimone was one of the first persons to be arrested for this offence as a suspect. I would name him the trigger point of the whole police investigation. However, I would approach his evidence with greater caution in light of his evidence under cross-examination. It would compel me to treat him as ‘someone closer’ to a State witness who has received a pardon. However, I would not treat him as a co-accused per-se or complici dei crimini because the police had no evidence against him as far as the fire is concerned.
     
196. Despite the heavy onslaught on his credibility by the Defence Counsel, I would still believe Vilimone told the truth in his examination-in-chief. I have to justify my reasons as his evidence was already acted upon to support Pinto’s evidence on animosity and pre-planning.
     
197. 197. Vilimone said in his examination- in-chief that he met and had a conversation with Zuhair after fire on 30 April 2020, at about 9 a.m., when he went to Poli’s house with his friend- Lorima to get marijuana. In this conversation, Zuahir talked about the house that got burnt. Zuhair was happy to see that house got burnt. Zuhair also mentioned that the hat belonged to him had been caught by the cops. Zuhair appeared afraid. Zuhair also told Vilimone as to how he and Poli burned down the house. Zuhair said that they came with kerosene, spilled it around the house and, afterwards, they came to a neighbour’s house. Zuhair was afraid because it was caught by the police from where the house got burnt. He never saw the bucket hat after the incident. After having had this conversation, they went to Vunimoli in Zuhair’s vehicle and continued their conversation about the burnt house. Zuhair was in fear and was requesting him not to leak any information to the cops.
     
198. There is no dispute that Vilimone is a close friend of Poli’s son and a frequent visitor to Poli’s place to smoke marijuana. This fact was admitted by Poli in his interview. Zuhair, in his caution interview, admits that he met Vilimone and Lorima that day and had a conversation (Answer to Q 139) but completely denies having told anything about burning the house. Under cross-examination, Vilimone admitted that he was arrested by police as a suspect in this matter and the police officers threatened him to ‘tell the truth’. He admitted that he was not assaulted but threatened and the police were forceful on him. He was really scared when he was threatened that they will take him back and charge for some offence.
     
199. Yes, I have no doubt that Vilimone was arrested and his statement recorded under police duress. Under duress, did he tell the truth or not? That’s what I am required to find out in this trial. The Defence argues that his evidence should not be acted upon because he made up a story to save his own skin. I would consider this argument in the circumstances under which Vilimone’s statement was recorded and also what has happened when he went home.
     
200. I bear in mind that even unlawfully obtained evidence could be adduced against an accused if the interests of justice require it to be admitted (Section 14(2) k of the Constitution of Fiji). Ascertainment of truth in a criminal trial and punishing offenders will definitely serve the interests of justice.
     
201. Few hours before the fire, Pinto had seen from his verandah, Poli, Zuhair and an I-Taukei boy-wearing a ‘cap’ in a conversation on Poli’s verandah. (Poli, in his interview said that he, from his verandah, could clearly see people doing rituals in Pinto’s verandah) Pinto overheard the conversation in which the i-Taukei boy was being called “Bill”. Pinto suspected this Bill was also involved with Deans in causing fire to his house and passed what he saw and heard to police. That’s how Vilimone got arrested.
     
202. Vilimone admits that he is nick named Bill and that he was at Poli’s house on that night wearing a cap and that he was arrested on Pinto’s information. In this context, it is natural for the police to arrest him and him to fear that he would be wrongly implicated if the truth was not revealed. He was arrested soon after the fire and gave his statement on 1 May 2020. It would be observed that he did not have much time to fabricate such a story with full of other information consistent with other evidence led in this trial.
     
203. Under cross- examination, Vilimone frankly admitted that he was addicted to Marijuana and the main purpose of him visiting Poli was that, the addictive. In this context, he appeared to have put himself in a dilemma-whether to tell the truth or to save his friend’s father (Poli)/marijuana supplier and also standby his own video recorded at the behest of his friend- Poli’s son. This video was recorded when the accused were still in remand. Poli’s son approached him and requested him to make a video to ‘weaken the Prosecution case’. He acceded to his friend’s request and sent the video via Messenger to Poli’s son. That was the video that was played in court house on the request of Mr. Rabuku.
     
204. Vilimone maintained, even under cross-examination that, in a conversation that took place at Poli’s house three to two weeks before the burning of the house, as to how to set Pinto’s house on fire. During this conversation, Poli looked angry. So did not tell anybody about it as he was afraid. It would be observed that Vilimone while admitting he was forced by the police officers to ‘tell the truth’, he maintained that what he told the police and his evidence in chief was what he heard from Zuhair. When Mr. Sen asked whatever he told in court is not true, Vilimone said that he told what ‘they’ have told him the story of it.
     

Mr Sen: The police told you the story?

Mr: No, they told me the story.

Mr Sen: No, no I’m not talking about they I’m talking about my client. Poli never

told you a story don’t you agree with you he never told you a story.

Ms Latu: My Lord, perhaps.

Mr Sen: After the incident did Poli, Poli never told you a story?

Ms Latu: If that could be interpreted, My Lord.

Mr Vumalumu: No, Sir.

Mr Sen: Yes, he never told you a story.

Mr Vumalumu: Yes.

Mr Vumalumu: After the, before it happen they have told me the story and once the

incident happen they did not tell me neither we converse with them.

205. Under cross-examination by Mr Rabuku, Vilimone said that, during questioning, he was surrounded by five police officers in a small room. Josaia told him ‘if you don’t tell the truth you’ll be a suspect in this case’... ‘Just tell the truth’. ‘If you going to tell the truth only you will find it easy’-‘how good it is for you’. I am convinced, Vilimone at this stage told the truth to police and he repeated the truth in court in his examination-in-chief. My reading of Vilimone’s evidence is that, in his statement to police, he felt obligated to tell the truth to police to escape wrongful prosecution. Under cross-examination, he felt bound to repeat what he said in his video and to support his friend and his father, his marijuana supplier. He appeared giving evidence under influence of marijuana as suggested by Mr. Sen. Who drugged him? we don’t know.
     
206. The second recipient of Zuhair’s confession is Kishore Singh (Kishore) whom the Defence Counsel described as a ‘jail house snitcher’. Kishore said when he was serving in Prison, Poli and Zuhair told him that they set fire to a house belonged to Pinto. Defence argues that Kishore’s evidence is inconsistent, implausible and that he has belatedly made up a story to help Pinto for money.
     
207. Whilst Kishore was serving a sentence in the Labasa correction Centre, he was tasked to look after laundry of the inmates as a laundry man. There is no dispute that he was sentenced to Prison on 18 November 2019, being convicted for bribing a police officer. His term was for 9 months but he came out after serving only six months on remission. Although he said he was released in August 2000, but based on the records, he conceded he was released in May 2000, if he served only 6 months, exactly on 17 May 2020. These dates were confirmed by the OIC Kotafogo called by the Defence. There cannot be any dispute that both Kishore and accused were being detained at the same time at the Labasa Correction Centre until Kishore’s release.
     
208. It was argued that it is implausible that a serving prisoner has been allowed walk freely and to talk to remandees. Katafogo, the present OIC of the Labasa Correction Centre called by the Defence, agreed, according to the standard regulations, (SOP) it was not possible. However, under cross examination, he also agreed that, in 2020, he was not the OIC in Labasa CC when Kishore was serving and therefore he could not tell what happened in 2020. He talked about the general policy that should be followed in a prison. He agreed an OIC wouldn’t be in a prison to be monitoring what the other officers are doing all the time. He wouldn’t know if the policy was strictly followed in prison during 2020. He agreed that a convicted serving prisoner who is about to be released would generally be given responsibilities to do laundry for inmates and would go around and collect dirty clothes and distribute clean clothes.
     
209. Kishore, when he was selling grog at the market, had known Poli as a taxi driver. In that context it is natural for Kishore to ask Poli why you came to prison, what happened?– Tell me the truth because we are all in Prison. Then Poli told him that he set fire to one Pinto’s house- Then Kishore said- don’t worry you will be set free later. Poli also said he lit matches and Zuhair poured benzene. Then he goes to Zuhair’s cell, there were a lot of I- Taukei boys in that cell and Zuhair was the Indo- Fijian. Kishore had not known Zuhair before but had just spoken to his uncle Poli. When he had called at the door, he told Zuhair ‘Poli has told me everything, if you have done something, just tell me everything, since we are in Prison he will not tell anyone’. Zuhair replied ‘I poured the benzene and Poli lit fire’. There is no implausibility in this part of Kishore’s evidence.
     
210. Kishore had been released from prison two weeks after this conversation. He changed his trade from grog to fishing and had gone fishing. He returned after two weeks and had come to the market where he met Bimal, a market vendor. He told Bimal what he heard from Poli and Zuhair. Then Pinto had come there and Bimal told Pinto what he heard. It was a chance meeting. Pinto in his evidence confirmed that. After that, Pinto called police and DPP called Kishore. Thereafter, police came and took him and took a statement. He told everything he heard from Poli and Zuhair in prison. I do not see anything unrealistic or implausible in this evidence. The circumstances under which the information reached the DPP’s office do not suggest it was concocted for money or any other benefit in return.
     
211. The accused were never arrested on this information. They were already in remand for the fire and the information Kishore passed to police was no news to them. It certainly helped the police in the investigation and, the DPP, in prosecution. There was no suggestion however that police or DPP conspired with Kishore to make up a story. The circumstances under which the information reached the police do not allow me to consider Kishore a ‘jail house snitcher’ in the sense the American Criminal Justice System has used this term.
     
212. Only thing Kishore remembers is the fact that he passed this information to police about two weeks after his release. He has forgotten the exact dates. That is natural. He has no idea as to how DPP’s office got his number. He only told two people Bimal and Pinto. They knew his number as he was dealing grog with them. No doubt, Pinto had a real interest in the information. It can be assumed that Pinto passed it to the DPP’s office.
     
213. Kishore admitted that he did not keep his promise to Poli that he will never tell anyone. This promise became a lie when he told Bimal, Pinto and police. His explanation is that he revealed this information for greater good because in this incident three people had died and a house got burnt.
     
214. There is no dispute that Kishore had, in his record, a number of previous convictions which he frankly admitted. Amongst them however there is no perjury conviction. Mere fact that Kishore had previous convictions does not allow me to consider him to be an unreliable witness. In the bribery matter, he had denied the charge but at the trial he said he admitted bribing a police officer and the court found him guilty. No doubt, in that matter, he had a strong motive to lie even if he had in fact lied. But why would he lie in this case?
     
215. Kishore’s evidence is that he gave a statement to police two weeks after his release from Prison and, another statement on 9 June 2021 to inspector Chand. He does not know why his statement took twice. He said he did not change anything and told the same story on both occasions.
     
216. He admitted that in his statement dated 9 June 2021, he had mentioned that the conversation with Poli took place while distributing clothes and that he gave the clothes from the window. In his evidence, he said he was collecting dirty linen and the collecting happened through the door. He was the one collecting, washing and returning the clothes. In his evidence, he emphasised that he was collecting the clothes from the door and that the cell had a door and a window type provision above. Katafogo, the OIC, confirmed Kishore’s evidence on the architecture of the prison cell. The inconsistencies highlighted, if any, are not material enough to discredit Kishore’s version. I accept that Kishore told the truth about what he heard from Poli and Zuhair.
     

Chemical / DNA Evidence

217. The crime scene investigators (CSI) uplifted certain items from the crime scene upon being pointed out by the accused during their respective caution interviews/ reconstructions. Some of those items were sent to the Fiji Police Forensic Chemistry Lab (FCL) to test for accelerants. In addition to those, swabs were taken from some of those items and also from the accused for DNA testing at the Forensic Biology Lab (FBL). The fact that those items were uplifted by the CSI and the chain of custody thereof were not disputed by the Defence. The first accused challenged the results and the process by which those results were arrived at. The second accused to a certain extent challenged, in an indirect manner, the admissibility of results of the Biology Lab.
     
218. At pre-trial conferences held before trial, counsel for both accused informed Court that they are not challenging the admissibility of the DNA reports. However, Mr. Rabuku, in the course of cross-examination of police witness Chand appeared to challenge the admissibility of the reports as well.
     
219. Mr. Rabuku made it very clear that his client accepts the fact that the bucket hat uplifted 11.8 m away from the burnt house belonged to his client so he won’t be surprised about the positive results of the DNA tests. However, IO Chand was questioned on the basis that the consent to submit to buccal swabs was obtained by giving a promise that Zuhair would be made a State witness. Chand vehemently denied the allegation. It is clear that Zuhair has given his consent and signed the consent form (PE 22). At the interview, he has been properly informed of his rights- the purpose of the swabbing and that the results of the DNA test, if turn out to be positive, will be used against him at the trial. There is no evidence that the buccal swabs were obtained unfairly. Therefore, question of Zuhair’s DNA report being admitted into evidence does not arise.
     
220. Exhibits 19 (red coloured shorts printed with No. 18) and Exhibit No. 20 (red and white striped jersey) were uplifted from Poli’s house upon being pointed out by Poli as being the clothes Poli had been wearing on the day of the fire. Exhibit 25 (red coloured sports shorts) was uplifted upon being pointed out by the Zuhair from his house as being the short he was wearing on the day of the fire. Exhibit No 23 (4 litre grey-coloured gallon with red lid) was uplifted from family house shared by the accused, upon being pointed out by the Zuhair. All those exhibits were sent to FCL to confirm the presence of accelerant and identity of the accelerant.
     
221. Principle Scientific Officer Miliana Werebauinona of FCL confirmed the presence of accelerant on each of those items. However her testing process could not confirm the identity of the particular accelerant found. The machines she used in her lab could only say that the accelerant found is one of the mineral hydro carbons available in Fiji- Benzene, kerosene or gasoline (petrol), not more than that. However, the fact remains that all of them are accelerants capable of causing fire. She found the accelerant detected had a very low melting point so that it is easily ignited and can cause fire.
     
222. Mr Sen vigorously challenged the reliability of the testing process and the results it produced. The same challenge was made in respect of the DNA testing process. I concede that non-disclosure of the process and the procedure before trial by the DPP’s office, despite repeated requests, has put the Defence at a disadvantage when it comes to effectively challenging the results. However, the fact that Mr. Sen’s coming on board at the 11th hour to defend the 1st accused, even after the trial was fixed, would have made the things difficult to the DPP’s office.
     
223. I have no doubt the Scientific Officer Miliana is qualified and experienced in her field. She comprehensively explained the techniques, the processes and the machines she used in her lab. It is true that she was not able to produce the calibration certificate updates and standards certificates. She frankly admitted that the machines are not capable of identifying the particular accelerant present. I am satisfied that she produced reliable and credible results.
     
224. If this challenge was made in a traffic case of speeding or drunk driving where the police officers solely rely on a machine to prove their case, I would have upheld the objection of the Defence. However, this is not such case. The test results would certainly be evaluated against other evidence led in the trial. I accept the test results of the FCL that all the exhibits stated above tested positive for accelerant and it is capable of causing fire and that benzene is not ruled out.
     
225. It was suggested from the bar table that the clothes of a grass cutter or a taxi driver running his taxi with gasoline could be contaminated with accelerant. That may be true. However, where is evidence in this case to explain why those clothing had accelerant on them? Where is evidence why an engine oil gallon should contain accelerant at least in small quantity?
     
226. Now, I am coming to the gallon (Exhibit 23) that was uplifted by the CSI from the family house both the accused shared and its significance in this case as an important strand of circumstantial evidence. The Defence asked the question why this particular gallon was singled out when a number of gallons were uplifted from this house after the fire. The answer lies partly in the caution interview of the 2nd accused. While exonerating himself from the fire, the 2nd accused, during his caution interview, willingly lead the CIS team to where this gallon was hidden. That shows the second accused had knowledge as to the place where it was hidden.
     
227. Then what is the connection between this particular gallon and the fire? This gallon is then recognised by Vinod, who accompanied Poli to the bowser to fill benzene 10 days before the fire. Poli, at the grog session on the same night, did reveal the real purpose of buying benzene- to set Pinto’s house on fire. The reason for this particular gallon being singled out form other gallons and sent to the FCL is logical and understandable.
     
228. It was suggested that this gallon by its appearance was full of dust and dirt and that it had not been used recently. The dilapidated condition which Mr. Sen criticised is what makes this gallon significant. No sensible taxi driver would use such a gallon if he intended the fuel in it to be used in his car. Poli initially said benzene is to cut grass. No sensible brush cutter would use such a gallon to fuel his brush cutter if he really cared for his machine. Such a gallon would certainly be used to fill accelerant to cause a fire. I am satisfied that this gallon was used by the 1st accused to fill benzene 10 days before the fire and the same was used to set Pinto’s house on fire.
     
229. The next topic is the flowery bucket hat (Exhibit No1). There is no dispute that this bucket hat was uplifted soon after the fire by CSI team 11.8 metres away from the house that got burnt. As far as the photographs (Photo No 9 and Photo No. 11) would show, it has been uplifted from the track / foot path along the cassava patch with pandanus plants where Akosita said she saw Poli crossing to his house during daytime.
     
230. Zuhair does not dispute the hat was his. The DNA test produced by Paulini confirmed that Zuhair’s DNA is present both on the crown and the rim and Zuhair is the sole DNA contributor to the rim and the major contributor to the crown where he shared his DNA with two others who were not identified. According to her comprehensive and interesting explanation, the unidentified DNA could be what she described as touch DNA that may have been deposited by a secondary contact. The high concentration of only Zuhair’s DNA on the rim of the hat suggests that he had been wearing it recently before the fire. The emphasis on the word ‘recently’ is important because Paulini said, with environmental factors and time, DNA could be disintegrated or destroyed.
     
231. However, Zuhair denies his presence at the crime scene or any involvement with the fire. Mr Rabuku from bar table advanced various theories as how his client’s DNA could be present on the hat and the numerous ways this hat could have come to the place from which it was uplifted. However, there is no explanation from Zuhair based on evidence except for his explanations in his caution interview.
     
232. According to the answers given to Q- 94, Q-96, and Q- 98, he had been in the verandah, wearing his multi-coloured hat at about 3.45 p.m. on 29 April 2020 that was few hours before the fire. At answer to Q 160, he said he was surprised when his aunty Ashmin Nisha told him that she was taken to police station to give her statement, when police showed her multi coloured hat which was inside one plastic.....
     
233. Mr. Rabuku highlighted a turning point of the interview where Zuhair started to come up with various admissions (I would rather say explanations exonerating himself). Mr. Rabuku attributed this sudden change to a police intervention in which Zuhair was offered a pardon, after having had a discussion with his father. After Q 160, Zuhair has come up with an explanation as to how his hat came to the place where it was uplifted. He has volunteered to show the place where the 4 litre gallon was hidden.
     
234. Sergeant Chand, the IO /interviewing officer, having disagreed with Mr. Rabuku’s suggestion took a different view to explain Zuhair’s turning point. It was the time the hat was shown to Zuhair. Zuhair would have realised the futility of his denials when his hat has been caught by police. In this context, Zuhair’s explanations appear to represent an escape route. He would have realised that his friend Vilimone has peeled off the bean and betrayed him despite his request.
     
235. Q 160 was put on the 3rd day of the interview and by that time, Vilimone had already told police, on 1 May 2020, what he heard from Zuhair regarding the hat. Zuhair had told Vilimone how he had dropped the hat after setting fire to the house and escaped to a neighbour’s place. The confession made to Vilimone which I have accepted puts Zuhair definitely at the crime scene and his hat found 11.8 meters away from the burnt house confirmed the truthfulness of Zuhair’s confession.
     
236. The confessions made to Vilimone and Kishore and other circumstantial evidence which I have accepted placed the accused at the crime scene. I am of the considered opinion, that all the strands of circumstantial evidence on primary facts were proved by the Prosecution.
     
237. Both the accused denied their presence at the crime scene and any involvement in the fire. Although they had nothing to prove in this case, they advanced an alibis and in support for which, the first accused called his wife Yasmin Nisha, and the second accused, his mother, Titilia Ditamana. Whether they prove the alibis or not, the burden is on the Prosecution and it never shifts to the accused. If they are able to create a reasonable doubt in my mind, I would give the benefit of that doubt to the defence and acquit them.
     
238. According to Nisha, when the fire broke out at Pinto’s house sometimes between 1.30 a.m and 2 a.m., Poli was sleeping. After Muslim rituals, he had gone to sleep with her. At around 12 midnight however they had broken the sleep to have sex. After having sex, they slept again. She said Poli never left home after that.
     
239. In her first statement to police, she had not mentioned about her having sex with her husband that night. According her first statement, Poli had come to sleep with him ‘at about 12 midnight. These inconsistencies suggest that Nisha has made up a story in her second statement which she has given 3 days after her first statement to bolster up her husband’s defence which he had taken at his caution interview in which the Poli had said he was having sex with his wife when the fire broke out. No doubt, Nisha has an interest in defending her husband. Nisha’s evidence is not appealing to me thus rejected.
     
240. According to Titilia, her son Zuhair sleeps in a separate room. On that night she and her husband had gone to sleep and while sleeping, she had heard the sound of tin and also the shout of the people. It was that sound that had woken her up. When she moved the curtain, Poli’s house was already on fire. Then she had gone to Zuhair. Zuhair had been on the phone. She said Zuhair never left the house that night. However she agreed that even if Zuhair had walked out of the house or even gone to the toilet, she wouldn’t know because she was sleeping. Her evidence does not show that, at the time the fire started, Zuhair was home. Titilia has a real interest in her son. Her evidence is not appealing to me.
     
241. The alibis raised by the accused do not create any reasonable doubt on the already established version of events of the Prosecution case that placed the accused at the crime scene.
     
242. Was the fire accidental? The Prosecution proved the fire was not accidental and that it was wilfully lit. Evidence of the fire officer and scientific officer Miliana confirmed that the fire is not accidental. The burnt bamboo like material and clothes tested positive for accelerants. Neighbours had smelled kerosene or benzene when the fire was on. The evidence is overwhelming to find the fire was not accidental. The fire officer initially thought that the fire had originated from inside the house. On that basis, he made the witness statement. In the process of investigation and in the elimination process, he changed his mind. He was not convinced that the point of origin of fire was inside the house. Accordingly, his report was done.
     
243. Did four people perish in the fire? Was the identity of each deceased established? DNA evidence and evidence of the pathologist confirmed Pinto’s evidence that four ladies perished in the fire and of their identity. There was no suggestion from the Defence that the deaths of the four ladies were caused other than by fire. Even if Pinto’s evidence that his house was not varnished recently is rejected, the fire officer did not find any evidence connecting the fire to varnish, thus eliminated the possibility of causing fire by varnish.
     
244. Was the cause of death of each deceased proved? The remains of four human bodies were clearly identified by the CSI team and parceled separately. Pathologist confirmed that although the immediate cause of death could not be determined, he opined that the circumstantial cause of death was basically associated with a fatal house fire. Conducting a toxicological analysis to find whether there was any possibility of poisoning on a charred body was futile because of the extreme levels of carbon they contained. That is why the immediate cause of death could not be ascertained.
     
245. Did the Prosecution prove elements of each offence beyond reasonable doubt? Once it is established that the accused are jointly responsible for the fire, the only reasonable inference that can be drawn is that they intended to cause the death of the deceased. Poli had admitted in the interview that he knew that Pinto, her mother and another lady was living in the house. Even if the accused were not aware of the fact that Nagamma had two visitors that night that does not matter. The fact remains that the house at that time was occupied by at least three people. That knowledge is sufficient to draw the necessary inference that the each accused intended to cause the death of the deceased and they were reckless as to causing death. In causing the fire, the accused were reckless as to causing death of the visitors as well.
     
246. Pinto luckily managed to escape the fire. Obviously the murderous intention on the part of each accused is established. So is the acts of the accused which were more than preparatory in causing the death of Pinto. The Prosecution proved the 2nd count beyond reasonable doubt.
     
247. The primary facts from which the inference of guilt is to be drawn have been proved by the Prosecution. The inference of guilt on each count is the only inference which is reasonably open on all the primary facts which have been proved in this trial. The Prosecution proved all the six counts beyond reasonable doubt.
     
248. I find both the accused guilty on each count and convict them accordingly.

Aruna Aluthge
Judge

28 October 2022
At Labasa

Counsel:
- Office of the Director of Public Prosecution for State
-A.K Singh Law for 1st Accused
-John Rabuku Lawyers for 2nd Accused.