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State v Lal [2011] FJHC 199; HAC061.2009S (9 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 061 OF 2009S

THE STATE

V

1. BHARAT LAL
2. JAYANT LAL
3. MOREEN LATA PRAKASH

Counsels: Ms. S. Tagivakatini and Ms. P. Low for the State
Mr. R. Chaudhry for Accused No. 1
Ms. M. Savou for Accused No. 2
Mr. I. Khan for Accused No. 3
Hearings: 3rd to 28th February, 1st to 4th March, 2011
Summing Up: 9th March, 2011
Judgment: 9th March, 2011

SUMMING UP

1. ROLE OF JUDGE AND ASSESSORS
   

1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
   
2. State and Defence counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
   
3. You must disregard Mr. Chaudhry's plea "not to send his client away for 20 years". Sentencing is not your concern in this trial, and you must put that out of your mind completely. Your role is to find out the facts of this case, or what happened in this case. You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
   

2. THE BURDEN AND STANDARD OF PROOF
   

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
   
5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.
   
6. Your decision must be based exclusively upon the evidence which you have heard in this Court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accuseds or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   

100. THE INFORMATION
     

7. The three accuseds were charged with "murder", contrary to sections 199 and 200 of the Penal Code, Chapter 17. It was alleged that, between 20th and 21st June 2009, at Sawani, Nausori in the Central division, they murdered Shalesh Prakash.

D. THE MAIN ISSUES

8. Although the accuseds were jointly charged for the offence of murder, the task for you in this case, for each accused, is to answer the following questions:

(i) Did Bharat Lal murder Shalesh Prakash between 20th and 21st June 2009?

(ii) Did Jayant Lal murder Shalesh Prakash between 20th and 21st June 2009?

(iii) Did Moreen Lata Prakash murder Shalesh Prakash between 20th and 21st June 2009?

This case involved three accuseds. You are actually conducting three trials against each accused, together.

E. THE OFFENCE AND IT'S ELEMENT

9. "Murder", has three essential elements. For the accuseds to be found guilty of "murder", the prosecution must prove beyond reasonable doubt, the following elements:

(i) that the accused did an unlawful act;

(ii) that the unlawful act caused the death of the deceased;

(iii) that at the time of the unlawful act, the accused either:

(a) intended to kill the deceased, or

(b) intended to cause him some serious harm, or

(c) that he knew that death or serious injury would be caused on the deceased, but nevertheless went on to do the act.

10. An "unlawful act", is simply an act not justified in law. For example, I had a grudge against someone. I decided that I am going to use a motor vehicle to run him over, and kill him, and make it look like a motor vehicle accident. However, I couldn't do it alone, so I asked a friend to assist me do the above. He agreed. On a Friday night, at the Suva Traps nightclub, we met the person, and later spiced his drink. He was too drunk to remember anything. We put him in our car, and drove towards Korovou in Tailevu. In a quiet area, we let the person out of our car. He wandered aimlessly on the road. We drove our car at him twice, and later fled the scene. He laid on the road motionless. The act of driving the motor vehicle at the person, without any legal justification, is an unlawful act. In fact, it amounts to "dangerous driving", which is an unlawful act. It is also a criminal offence. It is an unlawful application of force to the person of another, and is therefore an unlawful act.

11. The "unlawful act" must "cause the death of the deceased". This is the second element of murder. Continuing from the above example, we ran our car twice over the person's body. The car ran over his abdomen, causing injuries to the same and his internal organs. The injuries were so severe, resulting in the person's subsequent death. By running the car over his abdomen twice, "it caused the person's death". The "act of running the car twice over the person's abdomen" was a substantial cause of the person's death. Without that unlawful act, the person wouldn't suffer any abdominal injuries, and would therefore not die. The "act of driving the car twice over his abdomen" was a substantial and major cause of his death.

12. The third element of murder is outlined in paragraphs 9(iii) (a), (b) and (c) which concerned the accused's mental state at the time of committing the unlawful act. As a matter of common sense, no one can look into a person's brain, to ascertain the person's intention, at the time of him doing the unlawful act. Nevertheless, his intentions could be inferred from his physical actions and spoken words, and the surrounding circumstances. You must put yourselves in the shoes of the accuseds, and from his physical actions, spoken words, and the surrounding circumstances, you will be able to ascertain his intentions at the time, he was doing the unlawful act.

13. In this case, you will not be required to decide on the accuseds' mental state as described in paragraph 9(iii)(b) and (c), because the prosecution is not running its case on these mental states. It had the option to do so, but it choose not to do so. That is their prerogative. The prosecution is simply relying on the mental state mentioned in paragraph 9(iii)(a), to prove its case against the accuseds, beyond reasonable doubt. So, when referring to the example we discussed in paragraphs 10 and 11 above, if the prosecution proved that when I and my friend drove the car twice over the person's abdomen, we intended to kill him, we would be guilty of the offence of murder, because they have satisfied beyond reasonable doubt the mental element mentioned in paragraph 9(iii)(a).

14. If, on the other hand, the prosecution failed to prove beyond reasonable doubt, the mental element required in paragraph 9(iii)(a), but have only proven beyond reasonable doubt the elements mentioned in paragraphs 9(i) and 9(ii), then you are entitled to find me and my friend guilty of the lesser offence of manslaughter. The elements of manslaughter are the first two elements for murder, that is, the accused did an unlawful act, which caused the deceased's death. In this case, if you find that the prosecution has failed to prove beyond reasonable doubt the mental element mentioned in paragraph 9(iii)(a), but they have proven beyond reasonable doubt the elements mentioned in paragraphs 9(i) and 9(ii), then you are obliged to return a verdict of not guilty of murder, but guilty of manslaughter.

15. There are three accuseds in this case. In order to make them jointly liable for the alleged murder of Shalesh Prakash, the prosecution is relying and running it's case on the concept of "joint enterprise". "Joint enterprise" is "when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed, of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence". (Section 22, Penal Code, Chapter 17). In considering each accused, you will have to ask yourselves the following questions: Did each of them form a common intention with each other to murder the deceased? If so, did each of them acted together to murder the deceased? If your answer to the above questions for a particular accused was yes, and you are satisfied beyond reasonable doubt that the elements in paragraph 9(i), (ii) and (iii)(a) are satisfied, he's guilty of murder. It is irrelevant whether or not one committed a minor or major role, if they had the common intention to murder the deceased and acted together, they are each liable for murder.

16. Three accuseds are on trial in this case. Each of the accused is entitled to be tried solely on the evidence that is admissible against him. This means that you must consider the position of each accused separately, and come to a separate considered decision on each of them. Just because they are jointly charged does not mean they must all be guilty or not guilty. Most evidence in this case are admissible against all accuseds. However, regarding their police caution interview statements and charge statements, which may contain their alleged confessions, the statements therein are only admissible against the maker of the statement, and on no other. In other words, in each accused's police caution interview statements and charge statements, you must totally disregard what the accused said about his co-accuseds on the commission of the offence. You can only take into account what he said about himself, regarding his role in the commission of the crime. In this case, most of the inadmissible evidence in the caution interview and charge statements have being blotted out, but in any event, you must keep in mind the above rule, when you deliberate on the case.

F. THE PROSECUTION'S CASE

17. The prosecution's case was simple. Bharat Lal, the first accused, was 35 years old in 2009. He is married to Kamini Devi, and the two had 2 children. They resided at Lot 7, Salato Road, Namadi Heights. Moreen Lata Prakash, the third accused, was 30 years old in 2009. She was married to Shalesh Prakash, aged 39 years old. Moreen and her husband had 2 children, and they resided at Lot 12, Dadakulaci Road, Nadawa.

18. According to the prosecution, Bharat Lal and Moreen Lata Prakash have being having an affair, for over a year. They went together to New Zealand in May 2009 and returned in June. Their relationship was so intense that they reached a stage, where they could not afford to live without each other. Bharat Lal's wife chased him away from their marital home. Moreen's husband knew about the affair, but did nothing.

19. According to the prosecution, Bharat Lal and Moreen Lal planed to kill Shalesh Prakash, so they could live together forever as man and wife. On 20th June, 2009, Moreen Lata pounded some dhatora plants and mixed it with her husband's rum.Late into the evening, her husband drank the rum and got very drunk. Bharat Lal called his nephew, Jayant Lal, accused No. 2, to help him execute their plan. Previously, Jayant Lal had agreed to assist his uncle, Bharat Lal, if he's paid $1,000 plus.

20. Bharat Lal and Jayant Lal, on 20th June 2009, at night came to Moreen Lata's house, and with her assistance, drove Shalesh Prakash away in his company van, registration no. DD409. Jayant Lal was driving the van, while Bharat Lal was a passenger therein. At a secluded spot at the Sawani-Serea Road, the two let Shalesh Prakash out of the van, and later killed him by running the van twice over him. They fled the scene in the van to Nakasi. According to the prosecution, all three accuseds acted as a group in planning and killing Shalesh Prakash by running his company van twice over him, on 21st June 2009, and all should be found guilty of murdering him. That was the case for the prosecution.

G. THE ACCUSEDS' CASES

21. When the information was put to each of the accused on 22nd February, 2011, the first day of the trial proper, each of them pleaded not guilty to the charge. In other words, each of them denied murdering Shalesh Prakash between 20th and 21st June 2009, at the Sawani-Serea Road.

22. When the prosecution closed its case on 4th March 2011, the court in a written ruling, found there was a prima facie case against each accused requiring each to be called upon to make their defence. The court gave them the right to address the court, to give evidence and to call witnesses in their defence. Each accused choose not to give evidence, nor call any witness.

23. Nothing negative whatsoever should be imputed to the accuseds for choosing to remain silent, and called no witness. They were merely exercising their right to remain silent. The burden to prove their guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The prosecution must prove the accuseds' guilt beyond reasonable doubt from the start to the end of the trial. The accuseds are not required to prove their innocence, or anything at all.

24. However, you as assessors and judges of fact, can gauge the accuseds' line of defence by listening to their counsels' cross-examining the 23 State witnesses, and their closing submissions. As for Bharat Lal, accused No. 1, his counsel was right in saying that, the prosecution's case stands or falls, on your acceptance or otherwise of his alleged confessions contained in his caution interview statements [Prosecution Exhibit No. 1(c)] and his charge statements [Prosecution Exhibit No. 5(c)].

25. Accused No. 1, through his counsel, asked you to disregard the above confessions for the following reasons. One, there was no independent eye witness to the crime. Second, he was not properly cautioned when verbally and caution interviewed. Third, he was kept waiting for 4 hours before being caution interviewed. Fourth, his right to a solicitor was not adequately provided. Fifthly, the translation from Hindi to English in the interview notes were not done properly. Sixthly, he was assaulted and threatened by police during the interview and formal charging. Seventhly, the police wrote his statements for him, given his class 8 education. Once you reject the alleged confessions, there was no independent evidence to connect Bharat Lal to the murder of Salesh Prakash, and according to his counsel, he must be found not guilty as charged. That was the case for Bharat Lal.

26. Like Bharat Lal, Jayant Lal (accused No. 2), through his counsel, admitted that the prosecution's case against him stands or falls on your acceptance or otherwise of his caution interview statements [Prosecution Exhibit No. 6(c)] and charge statement [Prosecution Exhibit No. 7(c)]. Through his counsel, Jayant Lal is asking you to reject his alleged confessions abovementioned, for the following reasons. He was assaulted and abused while in police custody. He relied on his medical reports, dated 26.6.09 and 24.7.09, as evidence of assault by police while in their custody. Accused No. 2, through his lawyer, said that if the confession was rejected, there was no direct evidence to link him to the murder of Salesh Prakash, and thus he should be found not guilty as charged. That was the case for Jayant Lal.

27. Like Bharat Lal and Jayant Lal, Moreen Lata, through her lawyer accepted that, the prosecution's case against her stands or falls on your acceptance or otherwise of her caution interview statements [Prosecution Exhibit No. 8(c)]. Her lawyer asked you to reject her alleged confessions in her caution interview, on the following grounds. One, she was assaulted while in police custody, and according to her counsel, her 26.6.09 medical report will verify the above. Second, on her first night in custody, she was made to sleep on the bench. Third, she was not given the right food to eat on her first day in custody. Fourth, she was not given her rights while being interviewed by police. Fifth, the investigation against her was done in a rough and hurried manner. Her counsel said, if the alleged confessions in the caution interview were rejected, there was no direct evidence to link her to the murder of her husband, and thus she should be found not guilty as charged. That was the case for Moreen Lata.

H. ANALYSIS OF THE EVIDENCE

28. All counsels for the State and defence agree that, if accepted, the only compelling evidence against all accuseds were their alleged confessions, contained in their police caution interview statements or charged statements. Before we discuss the deciding issue of the voluntariness of the accuseds' alleged confessions, we will refer to the question and answers in their caution interview statements, in which each of the accused admitted to the three essential elements of murder. This is so, because during cross-examination of State witnesses, and after closing submissions, defence counsels did not question the statements themselves, but question the methods used in getting those statements. After dealing with the above, we will then deal with the issue of the voluntariness of the accuseds' alleged confessions.

Bharat Lal (Accused No.1); Prosecution Exhibit.1(c):
Bharat Lal committed an unlawful act (1st element):

29. Questions and Answers 81 to 163: Bharat Lal described how he and another person went to Shalesh Prakash's house on 20th June 2009, at night, got a drunken Shalesh into his company van registration no. DD409, drove him from Nadawa, through Khalsa and Princes Road towards Sawani-Serea Road. In a secluded spot, Bharat Lal and the other person used the van to kill Shalesh Prakash, by running over him twice, and later fled to Nakasi, in the van.

Bharat Lal's unlawful act caused Shalesh's death (2nd element):

30. The post-mortem report [Prosecution Exhibit No. 10] is not disputed by the defence. The post-mortem report said, "...the cause of death was rupture anterior abdominal wall due to motor vehicle accident..." The estimated time of death was the 21st June 2009, at 2.44am. Questions and Answers 327 to 342: Bharat Lal admitted he and another person killed Shalesh Prakash by running his van over him twice, at a secluded spot on the Sawani-Serea Road. Their unlawful acts caused Shalesh's death.

Bharat Lal intended to kill Shalesh Prakash (3rd element):

31. Questions and Answers 27 to 55: Bharat Lal admitted having an affair with a woman, who is Shalesh's wife. He wanted to stay with the woman as man and wife. He said, he will kill Shalesh (Question and Answer 55). Bharat Lal planned with someone to kill Shalesh (Question and Answer 189). Questions and Answers 289 to 342: Bharat Lal and another drove Shalesh in his van to Sawani-Serea Road and killed him by running his van over him twice. This action showed Bharat Lal's intention to kill.

Jayant Lal (Accused No.2); Prosecution Exhibit No. 6(c):
Jayant Lal's unlawful act (1st element):

32. Questions and Answers 69 to 87, 97 to 101,103 to 121,195 to 199: Jayant Lal admitted he and someone went to Shalesh Prakash's home on 20th June 2009, drove him to Sawani in his van, and killed him by running his van over him twice.

Jayant Lal's unlawful act caused Shalesh's death (2nd element):
33. I repeat what was said about the post-mortem report in paragraph 30 hereof. Questions and Answers 103, 114 to 121, 195 to 199, 214 to 216: Jayant Lal admitted he drove Shalesh in his van to Sawani-Serea Road, and killed him by running the van over him twice. This unlawful act caused Shalesh's death.

Jayant Lal's intended to kill Shalesh Prakash (3rd element):

34. Questions and Answers: 150 to 154, 160, 165 to 168, 171 to 181, 193 to 199, 216 to 219: Jayant Lal admitted that he intended to kill Shalesh Prakash in exchange of $1,000 plus, from his uncle.

Moreen Lata Prakash (Accused No. 3); Prosecution Exhibit No. 8(c):
Moreen Lata's unlawful act (1st element):

35. Questions and Answers 108, 110 to 112, 125, 126, 128, 132 to 147, 161 to 169, 243, 257 to 261, 265 to 270; Moreen Lata admitted she mixed dhatora plant with her husband's rum. Late on 20.6.09, her husband drank the spiced rum and got very drunk. Moreen admitted she assisted two persons take her husband from their home late 20.6.09, in his company van, and the two took him to Sawani-Serea Road, and killed him by running the van over him twice. Moreen was in touch with the two while they were killing Shalesh. Moreen admitted she assisted the two persons by spicing Shalesh's rum, and allowing them to use Shalesh's company van to take him to Sawani, and kill him.

Moreen Lata's unlawful act caused Shalesh's death (2nd element):

36. I repeat what I said in paragraph 30 hereof concerning the post-mortem report. Given the principle of "joint enterprise" mentioned in paragraph 15 hereof, Moreen Lata by assisting the two persons take her husband away on 20.6.09 in his company van to Sawani-Serea Road, to kill him, jointly committed unlawful acts which caused Shalesh's death on 21.6.09.

Moreen Lata intended to kill Shalesh Prakash (3rd element):

37. Questions and Answers 150, 151, 197 to 200, 217; Moreen admitted she and another planned to kill her husband, so that she and that other person could live together as man and wife forever.

38. Paragraphs 29 to 37 abovementioned summarizes the three accuseds' alleged confession to the charge of murder. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, before you can accept a confession, you must be satisfied beyond reasonable that it was given voluntarily by its maker. The prosecution must satisfy you beyond reasonable doubt that the accused gave his statements voluntarily, that is, he gave his statements out of his own free will. Evidence that the accused had been assaulted, threatened or unfairly induced into giving those statements, will negate free will, and as judges of fact, you are entitled to disregard them. However, if you are satisfied beyond reasonable doubt, so that you are sure, that the accused gave those statements voluntarily, as judges of fact, you are entitled to rely on them against the accused.

39. We will now examine each accused's caution interview and charge statements, and the circumstances in which they were taken, to find out whether or not the accuseds gave their statements voluntarily. We will start with Moreen Lata, as she was the first to be caution interviewed by police.

Moreen Lata Prakash's Caution Interview Statements

40. Moreen was brought to Nausori Police Station on 22.6.09, at 11am. At 11.35am, Inspector Uttam, WCpl. Susana and Corporal Ami Chand were briefed, and tasked to verbally interview Moreen. At 11.45am, Moreen was escorted to the Crime Office, and verbally interviewed from 11.48am. At 1.05pm, Moreen was served lunch of rice and chicken chopsuey, but she refused. Interview was suspended at 1.30pm. Moreen refreshed herself. She had a cup of water. Interview recommenced at 2.30pm. At 4.35pm, verbal interview suspended for Moreen to refresh herself. At 4.45pm, verbal interview recommenced. At 6.16pm, dinner of rice and mutton served on Moreen, but she refused. It will be noted, according to the Crime Diary, Prosecution Exhibit No. 12, Moreen was given proper meal and rest breaks, during the verbal interview. The fact that she refused to eat was her prerogative. According to Corporal Ami Chand and Corporal Susana, Moreen was not assaulted or threatened during the verbal interview.

41. Moreen's caution interview began at 10.30pm, on 22.6.09. The necessary caution and right to counsel was given. Only 19 questions and answers were given. At 11.45pm, the interview was suspended for Moreen to rest. Moreen slept in the Police Station on a bench. According to Corporal Ami Chand, the Nausori Police Station cells were full of drunks, and they could not put Moreen with them. He said, this practice was normal and not a new thing. He said, Woman Police Officer Mere was with Moreen throughout the night.

42. On 23.6.09, Moreen was served breakfast at 10.15am, but she refused it. She was escorted to the Crime Office. Her caution interview commenced at 10.30am. The necessary caution and right to counsel was given to her. At 10.45am, her interview was suspended to enable her to see her brother and uncle. At 11.30am, interview recommenced. The necessary caution and right to counsel were given. 3 questions and answers were given. At 1.15pm, interview suspended. Moreen had vegetable fried rice and a can of coke for lunch, which was supplied by her uncle and brother. At 3.15pm, interview commenced with the necessary caution and right to counsel given. 24 questions and answers were given. At 4.10pm interview suspended for rest. Interview resumed at 4.25pm, with the necessary caution and right to counsel given. 40 questions and answers given. Interview suspended at 7.10pm, for Moreen to have dinner ie. vegetable fried rice. At 7.30pm, interview recommenced with the necessary caution and right to counsel given. At 8.40pm, Moreen given a break to go to toilet and refreshed herself. At 9pm, interview commenced, and the necessary caution given. 29 questions and answers given. At 10pm, interview suspended for Moreen to rest. At 10.20pm, she was escorted to Korovou Police Station and locked in cell.

43. On 24.6.09, Moreen had breakfast at Korovou Police Station [see Prosecution Exhibit No. 17]. Caution interview recommenced at 10.20am, and the necessary caution and right to counsel was given to her. 8 questions and answers were given. At 11.45am, the interview was suspended. At 12.35pm, interview recommenced and the necessary caution and rights given to her. 26 questions and answers were given. At 1.05pm, the interview was suspended. At 1.25pm, Moreen was given lunch, roti, bhaji and uto curry brought by her uncle. She refused the meals provided by police. The interview recommenced at 2.20pm with the necessary caution and rights given to her. 10 questions and answers were given. Interview suspended at 2.55pm for Moreen to freshen up. Interview recommenced at 3.05pm. The necessary caution and rights given to her. 37 questions and answers given. Interview suspended at 6.55pm, and Moreen had her dinner, vegetable chopsuey. At 7.10pm, she was escorted to Korovou Police Station, and locked in the cell.

44. On 25.6.09, at 9.53am, Moreen had her shower. At 10.35am, interview commenced. The necessary caution and rights given. Moreen sees her lawyer, Mr. Sharma of Sigatoka. At 10.40am to 11am, Moreen sees her lawyer in private. At 11.05am, interview suspended. Moreen had meal of bhaji roti and cup of water, brought by her brother. Interview recommenced at 11.30am, with the necessary caution and rights given. 28 questions and answers given. At 1.35pm, interview suspended for Moreen to have lunch of vegetable chopsuey and water. After lunch, Moreen rested. Interview recommenced at 6.30pm, and the necessary caution and rights given. 7 questions and answers given. Interview suspended at 6.50pm. Moreen taken back to Korovou Police Station, after having her vegetable chopsuey and rice dinner.

45. On 26.6.09, at 9.15am, Moreen had breakfast (roti, jackfruit, and cup of water). Interview commenced at 9.30am, with the necessary caution and rights given to her. 8 questions and answers given. At 10am, Moreen reads her interview notes. At 10.30am, Moreen finished reading her interview notes. At 10.50am, interview suspended. At 12.15pm the interview recommenced after Moreen met her brother, uncle and daughter. They brought her lunch ie. rice and vegetable chopsuey, which she ate. The necessary caution and rights were given. 8 questions and answers given. At 12.45pm, Moreen's caution interview was concluded. She was formally charged for murder between 1.15pm and 1.50pm. At 1.52pm, she saw a Justice of Peace, Mr. Moti Lal. At 2.25pm, she was escorted to Nausori Magistrate Court. At 3.30pm, she was remanded in custody by the Nausori Magistrates Court. At 3.55pm, she was medically examined at Nausori Health Centre by Doctor J. Danford.

46. It would appear from the above that when Moreen was caution interviewed, the necessary caution, her rights to counsel, her rights to be visited by family members and other rights were given to her. There were adequate breaks and rests given to her. Her right to have a meal was given to her, although it was her prerogative to refuse them. Corporal Ami Chand and Corporal Susana Yaca, who were present throughout her interview said, they and no police officer assaulted, threatened or made unfair promises to Moreen while being interviewed, and while in police custody. They said, she was crying most of the time, and was wiping her eyes and face with a face towel or handkerchief. She was seen by Moti Lal, a Justice of Peace, who asked her whether she was treated well by police, to which she answered yes. She was also seen by Doctor Danford who found, "...slight swelling over her left cheek, slight tenderness over her left cheek and slight swelling over her left eyelids..." Were these injuries caused by a punch or the repeated wiping of a teary left eye over five days of interview? These are matters for you to decide after considering all the evidence of the witnesses and the documents and exhibits they submitted.

Bharat Lal's Caution Interview and Charge Statements

47. Bharat Lal was the second person to be caution interviewed by police. He was brought to the Nausori Police Station on 23.6.09, at 12.35pm. At 2.45pm, Bharat Lal was served his lunch. The formal caution interview commenced at 4.30pm. The standard caution, right to counsel and other rights were given to him. 18 questions and answers were given, before the interview was suspended at 9.20pm. Bharat Lal then had his dinner of chicken stew and cassava. The interview recommenced at 9.35pm. The necessary caution was given. 55 questions and answers were given. The interview was suspended at 10.55pm, for accused to rest.

48. On 24.6.09, the interview commenced at 10.30am. The necessary caution was given. Bharat Lal admitted having tea and bread for breakfast. 15 questions and answers given. Interview suspended at 11.11am for a break. Interview commenced at 11.20am. 27 questions and answers given. Interview suspended at 12.35 pm for accused to have lunch. At 12.55pm, accused's wife and 2 sons called to visit him and they returned at 1.15pm. Interview recommenced at 1.20pm, and the necessary caution was given. 12 questions and answers given. Interview suspended at 2.10pm, for accused to relieve himself. Interview recommenced at 2.15pm. 26 questions and answers given. Interview suspended at 3.35pm to reconstruct the scene. Interview recommenced at 5.40pm after reconstruction. The necessary caution, and other rights given to the accused. 26 questions and answers given. Interview suspended at 7.21pm, for accused to have dinner ie. fish and cassava. Interview recommenced at 7.40pm. 5 questions and answers given. Interview suspended at 7.50pm for accused to rest.

49. On 25.6.09, the interview commenced at 10.40am. The accused admitted he had breakfast. The necessary caution and other rights were given to the accused. Bharat Lal admitted his parents visited him for 35 minutes. 27 questions and answers given. Interview suspended at 1.20pm, for accused to have his lunch ie. chicken chopsuey and cassava. Interview recommenced at 1.45pm. The necessary caution was given. 21 questions and answers were given. Interview suspended at 3.40pm to check and photograph dhatora plants. Interview recommenced at 5.45pm. The necessary caution was given. 30 questions and answers were given. Interview suspended at 7.15pm for accused to have his dinner ie. chicken chopsuey and rice. Interview recommenced at 7.35pm. The necessary caution was given to him. Accused admitted his sister and brother-in-law visited him. 24 questions and answers given. Interview suspended at 9,00pm for accused to rest and sleep.

50. On 26.6.09, the interview started at 8.05am. The necessary caution and other rights were given to the accused. He said, he had breakfast. 51 questions and answers were given. Interview was suspended at 9.45am, for a short break. Interview recommenced at 9.50am. Accused admitted his parents saw him during the short break. 43 questions and answers given. Interview suspended at 12.00pm for accused to have his shower and a short break. Interview recommenced at 12.20pm. The necessary caution was given. 17 questions and answers were given. Interview concluded at 1.10pm. Accused had his lunch of chicken chopsuey and rice. From 1.15pm to 2pm, accused was formally charged. Accused admitted that he and another took Shalesh Prakash in his company van from his home on 21.6.09 to Wailase, and bumped him twice with the van, registration no. DD 409. At 2.06pm, Bharat Lal saw Justice of Peace Moti Lal, who asked him how he was treated by police, to which he said "very well". At 2.35pm, accused was escorted to Nausori Magistrate Court, which remanded him in custody at 3.30pm. At 4.12pm, accused was examined by Doctor Danford at Nausori Health Centre. He observed "nothing abnormal detected". On 24.7.09, Doctor Chand examined the accused, and found some injuries on him, but said these were recent and not June 2009 injuries.

51. It could be seen from the above that when Bharat Lal was caution interviewed, the necessary cautions and other rights were given to him. He was given the standard meal and rest breaks. He was allowed to see his wife and children, including his parents. He was allowed to have showers etc. Both his caution interview officer, Nitin Nilesh and witnessing officer, Surend Prasad said, they did not assault, threaten or made promises to Bharat Lal during his caution interview. They said, they saw no injuries on him. Pradip Lal, who formally charged Bharat Lal, and Manoj Mani, who witnessed the same, said they did not assault, threaten or made promises to Bharat Lal during the formal charging. They said, they saw no injuries on him. When he visited Moti Lal, the Justice of Peace, who asked him how the police treated him, he answered "very well". When he was medically examined by Doctor Danford at Nausori Health Centre, he found no injuries on him. When examined by Doctor Neelesh Chand on 24.7.09, Doctor Chand said his injuries were too recent, and couldn't have occurred in June 2009. These are matters for you to decide. You must consider the above, including all the witnesses' evidences and the documents and exhibits they submitted to decide whether or not Bharat Lal confessed voluntarily.

Jayant Lal's Caution and Charge Statement

52. He was the last to be interviewed. Jayant was brought to Nausori Police Station on 23.6.09, at 5.25pm. At 6pm, he was verbally interviewed. At 7.06pm, he was given his dinner ie. vegetable chopsuey. At 7.53pm, his caution interview started. He was cautioned, his right to counsel explained to him, and his other rights were also given to him. 52 questions and answers were given. At 9.33pm, he had a glass of water. 14 questions and answers were then given. At 9.51pm, the interview was suspended for accused to go to the toilet and drink water. Thereafter 26 questions and answers were given before the interview was suspended at 10.45pm, for the accused to rest.

53. On 24.6.09, after Jayant had his breakfast of egg sandwich and tea, the interview commenced at 10.18am. The necessary caution was given. 2 questions and answers were given. At 10.22am, Jayant visited the washroom and had a drink of water. The interview recommenced at 10.30am. 7 questions and answers were given. The interview was suspended at 11.34am for a break. At 11.42am, the interview recommenced. 11 questions and answers were given. The interview was suspended at 12.31pm for lunch and reconstruction of scene. The accused had chopsuey and cassava for lunch. After the scene visit, the interview recommenced at 5.15pm. The necessary caution was given. 18 questions and answers were given. The interview was suspended at 6.35pm, to enable Jayant to see his wife and in-laws. He also had fried fish and cassava for dinner. At 7.20pm, the interview recommenced. 6 questions and answers were given. At 7.30pm, the interview was suspended, to enable Jayant to rest.

54. On 25.6.09, after Jayant Lal had his shower, change of clothing and breakfast (egg sandwich and tea), the interview recommenced at 10.19am. The necessary caution was given. 5 questions and answers were given. Interview was suspended at 10.29am, to enable Jayant to see his mother and father. Interview recommenced at 10.45am. 13 questions and answers were given. Interview was suspended at 12.14pm, for accused to have tea and bread. Interview recommenced at 12.20pm. 28 questions and answers were given. Interview suspended at 1.28pm, for accused to have lunch ie. chicken chopsuey and cassava. Interview recommenced at 1.54pm. 9 questions and answers given. Interview suspended at 2.20pm for rest. Interview recommenced at 2.38pm. 10 questions and answers were given. Interview suspended at 3.47pm for a break. Interview recommenced at 4pm. 6 questions and answers given. Interview suspended for search and reconstruction at 4.32pm. Interview recommenced at 6.45pm. The necessary caution was given. 4 questions and answers were given. Interview suspended for dinner and rest. Accused had chicken curry and rice for dinner.

55. On 26.6.09, after having his breakfast, Jayant Lal's interview commenced at 9.00am. The necessary caution was given. 9 questions and answers were given. At 9.45am, the accused read his caution interview statements and completed the same at 11.35am. 3 questions and answers were given. The interview was concluded at 11.40am. Between 12pm and 1.15pm, Jayant Lal was formally charged for murder. He admitted that he and another agreed to go to Shalesh Prakash's house, to take him to Sawani in his own vehicle, and bumped him twice with the same, and fled to Nakasi. At 1.25pm, Jayant saw Moti Lal, a Justice of Peace, who asked him how he was treated by police, to which he said "he was treated well". Between 2.10pm to 2.22pm, Jayant was medically examined at Nausori Health Centre by Doctor Danford. He found no injuries on him, although he complained he was stomped on his front thigh by a police officer. Doctor Danford noted "tenderness felt over anterior aspect of his thighs". On 24.7.09, Doctor Neelesh Chand medically examined Jayant. He found the injuries too recent, and couldn't have occurred in June 2009.

56. It would appear from the above that when Jayant Lal was caution interviewed and formally charged, the necessary caution and rights were given to him. The standard meal and rest breaks were given to him. He was allowed to see his wife, in-laws, mother, father and brother. According to Kaiyum Ali, the caution interview officer and Sajnesh Nand, the witnessing officer, they did not assault, threaten or made promises to Jayant Lal during his interview. Arvin Singh, who formally charged Jayant Lal, and Sakenasa Loganimoce, who witnessed the same said, they did not assault, threaten or made promises to Jayant Lal, during the formal charging. All the above police officers said, they saw no injuries on the accused, when he was in their custody. The Justice of Peace, Moti Lal, said the accused told him he was treated well by police. Doctor Danford, in his 26.6.09 medical report, found no injuries on him, although he had tenderness on his thighs. Doctor Chand said, his 24.7.09 medical report found the injuries on Jayant were too recent, and it couldn't have occurred in June 2009. These are matters for you to decide after considering all the witnesses' evidence, the documents and exhibits submitted by them.

The Other Evidences:

57. In this category falls the dried plant of dhatora (Prosecution Exhibit No.2), white electric wire (Prosecution Exhibit No.3), empty rum bottle (Prosecution Exhibit No. 4), photographs 1 to 8 (Prosecution Exhibit No. 18), photographs 9 to 14 (Prosecution Exhibit No. 19), photographs 15 to 28 (Prosecution Exhibit No. 20), front light cover (Prosecution Exhibit No. 21) and pounding equipments (Prosecution Exhibit No. 22). In themselves, these evidences prove nothing, but a possible motor vehicle accident (photographs 1 to 8). However, when you link these exhibits to the caution interview and charge statements of the three accuseds, they certainly add "flesh" to their statements. The exhibits are there to assist you, as assessors and judges of fact, assess the credibility of the statements the three accuseds made in their caution interview and charge statements. In a sense, the exhibits are nothing more then "aids" to you assessing the credibility of the accuseds' statements in their caution interview and charge statements. Of course, the acceptance or otherwise of these statements, will depend on you deciding whether or not those statements were given voluntarily to the police.

58. You have now heard the evidence of the 23 prosecution witnesses. You have watched them in court give evidence. What were their demeanours like? How did they react to being cross-examined and re-examined? Were they forthright? Were they evasive? Were they argumentative? How did they dress to Court? How did they conduct themselves in Court? Given the above, my directions on the law, your life experiences and common sense, you should be able to decide which witness's evidence, or part of a witness's evidence is reliable, and therefore to accept, and which witness's evidence or part of his evidence, is unreliable, and therefore to reject, in your deliberation.

I. SUMMARY

59. Remember, it is for the prosecution to prove each of the three accuseds' guilt beyond reasonable doubt. It is not for the accuseds to prove their innocence. The burden of proof lies on the prosecution to prove the accuseds' guilt beyond reasonable doubt, and that burden stays with them throughout the trial. If you accept the prosecution's version of events and you are satisfied beyond reasonable doubt and are sure of their guilt, you must find them guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt and are not sure of their guilt, you must find them not guilty as charged.

60. However, if you find some of the accuseds have committed an unlawful act, which caused Shalesh's death, but at the time, did not have the mental state described in paragraph 9(iii) (a), and you are satisfied beyond reasonable doubt, you may return a verdict of not guilty of murder, but guilty of manslaughter.

61. Your possible opinions are as follows for each accuseds:

(i) Murder - Guilty or Not Guilty

(ii) alternatively, Not Guilty of murder, but Guilty of manslaughter,

62. You may retire to deliberate. Once you have reached your decisions, you may inform the clerk, so that we could reconvene to receive them.

Salesi Temo
Acting Judge

Solicitors for the State: Office of Director of Public Prosecution, Suva.
Solicitors for Accused No. 1: Gordon & Chaudhry Lawyers, Suva.
Solicitors for Accused No. 2: Legal Aid Commission, Suva.
Solicitors for Accused No. 3: I. Khan & Associates, Lautoka.