IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

LAUTOKA CRIMINAL CASE NO. HAC 089 OF 2010L

STATE

vs

1.	RAFAELE NOA
2.	SIRELI LILO
3.	ILIESA VAKABUA
4.	ILIVASI NAVUNICAGI
5.	EPARAMA TAMANIVAKABAUTA

 Counsels : Mr. S. Babitu and Mr. Y. Prasad for State
 Mr. S. Prakash for Accused No. 1
 Ms. N. Karan for Accused No. 2 
 Mr. I. Romanu for Accused No.3
 Accused No. 4 – Tried in Absentia
 Ms. N. Karan for Accused No. 5
Hearings : 17, 18, 19, 20, 23 to 26 November, 2015
Summing Up : 30 November, 2015

SUMMING UP

A.	ROLE OF JUDGE AND ASSESSORS 

1.	Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.

2.	State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.

3.	You will not be asked to give reasons for your opinions, but merely your opinions themselves and they need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.

B.	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 accuseds. There is no obligation on the accuseds to prove their 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 accuseds' guilt, before you can express an opinion that they are guilty. If you have any reasonable doubt about their guilt, so that you are not sure of his guilt, then you must express an opinion, that they are 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 victims. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favor or ill will. 

C. ACCUSED NO. 4 – TRIAL IN ABSENTIA 

7.	You will notice that when the trial proper started on 20 November 2015, Ilivasi Navunicagi (Accused No. 4) was not present in the dock, in Court. On 6 November 2015, the court granted the prosecution's application to proceed in the absence of accused no. 4.

8.	Section 14(2)(h)(i) of Fiji's 2013 Constitution, reads as follows:

"…Every person charged with an offence has the right – (h) to be present when being tried, unless – (i) the court is satisfied that the person has been served with a summons or similar process requiring his attendance at the trial, and has chosen not to attend…"

9.	This case was more than 5 years old. It was imperative that it be brought to a conclusion in accordance with the law. On 3 November 2010, when the matter was called in the High Court, Accused No. 4 was present. He was present in court on all occasions until 27 September 2011, when he was sought on a bench warrant. He appeared in court again on 10 April 2012, and was remanded in custody. He absconded on 30 October 2013, and had not appeared in court since then. He was well aware of the proceeding. By not attending court, and not attending his trial, the court found he had voluntarily chosen not to attend his trial, and thus the order for his trial in absentia.

10.	However, as assessors and judges of fact, you cannot hold his non-attendance at the trial to his disadvantage. You cannot use his non-attendance to decide against him, or you cannot view his non-attendance negatively. Despite his non-attendance, he still has the right to a fair trial. The burden is still on the prosecution to prove his guilt beyond a reasonable doubt, and that burden stays with them from the start to the end of the trial. The accused does not have to prove anything, at all. In fact, he is entitled to remain silent, as he had choosen in this case by not attending trial, and require the prosecution to prove his guilt beyond a reasonable doubt. The burden of proof is not on the accused. In fact, Section 14(2) (j) of Fiji's 2013 Constitution, reads as follows:

"…Every person charged with an offence has the right to remain silent, not to testify during the proceedings, and not to be compelled to give self-incriminating evidence, and not to have adverse inference drawn from the exercise of any of these rights…"

D. THE INFORMATION

11. We will now discuss the information. You have a copy of the information with you, and I will now read the same to you:

 "…[read from the information]…"

E. THE MAIN ISSUES

12. In this case, as assessors and judges of fact, each of you will have to answer the following questions:

(i) On count no. 1, did the accuseds, between 21 and 22 August 2010, at Lautoka in the Western Division, murder John Leonard Dass?

(ii) On count no. 2, did the accuseds, between 21 and 22 August 2010, at Lautoka in the Western Division, in the company of each other, rob John Leonard Dass of his property, as itemized in the count?

F. THE OFFENCES AND THEIR ELEMENTS

13.	In count no. 1, the accuseds were charged with the murder of John Leonard Dass, contrary to Section 237 of the Crimes Decree 2009. For an accused to be found guilty of murder, the prosecution must prove beyond reasonable doubt, the following elements:

(i)	the accused did a wilful act; and

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

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

(a)	intended to cause the death of the deceased; or

(b)	is reckless as to causing the death of the deceased

14.	On the first element of murder, a "wilful act" is a voluntary act by the accused. It is a feeling of strong determination to do something that he wanted to do. It is what he wanted to happen in a particular situation. This is the physical element of the offence of murder. For example, A wants to shoot B with a gun. A picks up a gun, and shoots B in the heart, and as such, A did "a wilful act". Likewise, if A strangles B on his throat with his hands. When A strangles B on the throat with his hands, he did "a wilful act".

15.	On the second element of murder, "the wilful act must cause the death of the deceased". This simply meant that the accused's wilful act, substantially contributed to the death of the deceased. The accused's wilful act must be a substantial contributor to the death of the deceased. In other words, the accused's wilful act was a substantial cause of the deceased's death. Continuing from the above examples when A shot B in the heart, with a gun, B later died as a result of the injuries to his heart. A's shooting B in the heart (wilful act) was a substantial cause of B's death. Likewise, when A strangles B on the throat, causing asphyxia, resulting in B's death. A's strangling of B's throat (wilful act) set in motion a chain of events that led to B's death (A's wilful act causes B's death), and as such, was a substantial cause of B's death.

16. The third element of murder concerned its fault element. There are two fault elements of murder, as described in paragraphs 13(iii)(a) and 13(iii)(b). In this case, the prosecution is running its case on both fault elements. On the fault element in paragraph 13(iii)(a), the prosecution need to prove beyond reasonable doubt that when the accused strangled the deceased, at the material time, he intended to cause his death. We cannot cut open the accused's head, to find out what his intentions were, at the time he strangled the deceased. But you can examine his conduct at the time, that is, what he said and did, and the surrounding circumstances, to infer whether or not he intended to kill the deceased, when he strangled him. If you find that he intended to kill the deceased, at the material time, you do not need to examine the alternative fault element in paragraph 13(iii)(b). Because, a fault element under paragraph 13(iii)(a) is sufficient to ground a conviction for murder, if the elements in paragraph 13(i), and 13(ii) hereof are also satisfied.

17.	However, if you find that the accused did not intend to kill the deceased when he strangled him, at the material time, then you need to consider the second fault element in paragraph 13(iii)(b) hereof. The question becomes: Was the accused reckless as to causing the deceased's death, when he strangled him, at the material time? In law, a person is reckless with respect to a result if: 

(i)	he is aware of a subtantiable risk that the result will occur, and

(ii)	having regard to the circumstances know to him, it is unjustifiable to take the risk.

The question whether taking a risk is unjustifiable is one of fact. The following questions had to be examined and answered: Was the accused aware of a substantial risk that the deceased would die if he strangled him on the throat? And having regard to the circumstances known to him, was it justifiable to take the risk by strangling him on the throat, at the material time? If you think he was not justified in taking the risk, then he was reckless as to causing the death of the deceased. If you think he was not reckless, then he is not guilty of murder.

18.	If you are sure that all the elements of murder, as expressed in paragraph 13(i), 13(ii) and 13(iii)(a) or (b) hereof, are satisfied; then you must find the accused guilty as charged. If you find that the accused is not guilty of murder, then you are entitled to look at the lesser offence of "manslaughter", although he was not formally charged with the same. Manslaughter consisted of three elements:

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

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

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

(a)	intended to cause serious harm to the deceased; or

(b)	is reckless as to causing serious harm to the deceased.

The first and second element of manslaughter are similar to the first and second element of murder. The difference is the fault element. For manslaughter, the accused must have intended serious harm, not death, alternatively, he was reckless as to causing serious harm, not death, to the deceased.

19.	In count no. 2, the accuseds were charged with the "aggravated robbery" of John Leonard Dass, contrary to Section 311(1)(a) of the Crimes Decree 2009. For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements"

(i)	the accused;

(ii)	in company with one or more persons;

(iii)	steals the complainant's property, and

(iv)	before, during or after the theft;

(v)	uses force, or

(vi)	threatens to use force

(vii)	on another person

(viii)	with intent to commit theft, or

(ix)	escape from the scene.

20.	"Stealing" is the act of taking away someone's properties without his permission, and with an intention to permanently deprive him of the ownership of that property or properties. "Force" means "any type of force, whether or not done physically or verbally, for example, beating someone with a stick or threatening to do the same". The accused, while engaged in the conduct of stealing the complainant's property must be in the company of one or more persons, who are also engaged in stealing the complainant's properties. Stealing as a group, could also be interpreted, as a threat to use force, to subdue any resistance to the will of the group. The act of stealing does show an intention to commit theft.

21.	You will notice in the information that the prosecution, in counts no. 1 and 2, in the particulars of offence, began with the phrase, "…RAFAELE NOA, SIRELI LILO, ILIESA VAKABUA, ILIVASI NAVUNICAGI and EPARAMA TAMANIVAKABAUTA…" The prosecution is alleging that the accuseds committed the above offences as a group. In other words, to make them jointly liable for the above offences, the prosecution is relying on and running its case, on the concept of "joint enterprise".

22.	"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 46, Crimes Decree 2009). In the Oxford Advanced Learners Dictionary, Oxford University Press, 6th ed 2002, the word "probable" means "likely to happen, to exist or to be true", and "consequence" means "a result of something that has happened". In this case, there were five accuseds. Each participant must be shown to have in contemplation the probability of infliction of serious harm on the deceased in the execution of the planned unlawful purpose. You must examine the whole evidence, and consider each accused's case separately.

23.	In considering each accused, you will have to ask yourself the following questions: Did each of them form a common intention to rob John Leonard Dass of his properties, while in the company of each other? If so, was his murder a probable consequence of the robbery? Did each accused know that the violence they contemplated inflicting on the deceased to silence him during the robbery would lead to serious bodily harm? If you think the particular accused contemplated murder, given the surrounding circumstances, then you must finding him guilty as charged. If you think the particular accused contemplated manslaughter, given the surrounding circumstances, then you must find him not guilty of murder, but guilty of manslaughter. If neither of the above, then you must find him not guilty of murder or manslaughter.

24.	Furthermore, in this case, there are five accuseds on trial. 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 that they must all be guilty or not guilty. Most evidence in this case are admissible against all accuseds. However, regarding their police caution interview and charge statements, which may contained 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 person's police caution interview and charged statement, you must totally disregard what the accused said about his co-accuseds on the commission of the offences. You can only take into account what he said about himself, regarding his role in the commission of the crime.

G. THE PROSECUTION'S CASE

25.	The prosecution case were as follows. On 21 and 22 August 2010, Accused No. 1 was 25 years old and unemployed; Accused No. 2 was 30 years old and a small time businessman; Accused No. 3 was 30 years old and unemployed; Accused No. 4 was 31 years old and appeared unemployed, and Accused No. 5 was 19 years old and was unemployed. According to the prosecution, on 21 August 2010, the five accuseds planned to break into John Leonard Dass's house at 32 Kamal Lane, Natokowaqa, Lautoka, and steal some money and properties.

26.	At about midnight on 21 August 2010, the five accuseds assembled outside Mr. Dass's property. They then climbed his fence, and went into his compound. They then took down the wooden shutters of a window. They later cut the burglar mesh wire, and removed 2 louver blades from the window. According to the prosecution, Accused No. 5 then climbed through the window, and opened the main door to let the others into the house.

27.	According to the prosecution, Accused No. 3 was told by the group to stand at the house gate, and act as the look-out. He was to warn the group if anyone approached the crime scene. The other four accuseds went into Mr. Dass's house, ransack the same, and stole the items mentioned in count no. 2 of the information. Accused No. 1 went into the empty bedroom, sitting room, kitchen and Mr. Dass's room. Accused No. 2 went into Mr. Dass's room, the girl's room, kitchen and sitting room. Accused No. 4 went into Mr. Dass's room, the girl's room, the vacant room, sitting room and kitchen. Accused No. 5 went into the girl's bedroom and other parts of the house.

28.	According to the prosecution, Accused No. 4 strangled Mr. Dass to death, and he was assisted by Accused No. 5 and Accused No. 2. Accused No. 2, when he entered the house, went into Mr. Dass's room. Mr Dass was asleep, and Accused No. 2 went and held him, while two others were punching him in the chest. He assisted in the tying of Mr. Dass, and his been taken to the girl's room. Accused No. 4, No. 5 and No. 2 subdued Mr. Dass in his daughter's room. He died later in the same. After ransacking and stealing Mr. Dass's properties, the five accused fled the crime scene.

29.	Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accuseds guilty as charged, on both counts. That was the case for the prosecution.

H. THE ACCUSEDS' CASES

30.	On 20 November, 2015, the first day of the trial proper, the information was put to the accuseds, in the presence of their counsels. Each of them pleaded not guilty to the charges. As for Accused No. 4, the court entered a not guilty plea to the charges, on his behalf. So, each of the accuseds was taken to be disputing the allegations against them. When a prima facie case was found against each accused, at the end of the prosecution's case, wherein each accused was called upon to make a defence, accused no. 1, 2, 3 and 5 choose to give sworn evidence and called no witness, in their defence. Accused No. 4 was deemed to have choosen to remain silent. That was their rights.

31. The defence's cases were very simple. As for Accused No. 1, he admitted on oath, that, he with others, broke into Mr. Dass's house, at the material time. He admitted, he stole $70 cash from the empty bedroom. He denied strangling Mr. Dass to death, and denied every assisting in the same. As for Accused No. 2, on oath, he denied the two allegations against him. He admitted he was arrested by police on 23 August 2010. He admitted he was caution interviewed by police on 24 August 2010. He said, he was repeatedly assaulted by police. Chillies were rubbed on his anus and private parts. He said he gave his police caution interview statements involuntarily, and asks you to disregard the same.

32. As for Accused No. 3, on oath, he admitted he was part of the group that broke into Mr. Dass's house, at the material time, and stole the items mentioned in count no. 2. However, on oath, he said he was only acting as the "look-out" for the others, while he was standing near Mr. Dass's gate. He said, it was his role to warn the others if someone came to the crime scene, while they were offending. He said, he expected the others would use force, if Mr. Dass resisted. He admitted, he was caution interviewed by police on 23 August 2010, but asked you to disregard the same, as he was assaulted by police. He appeared to say that he did not strangle Mr. Dass to death.

33.	As for Accused No. 4, because of his non-attendance, he was deemed to have choosen to remain silent. He was caution interviewed by police on 2 September 2010, and was formally charged on 6 September 2010. In his charge statement, he admitted the two charges against him. However, we will discuss his alleged admission when we analyze the evidence later. As for Accused No. 5, on oath, he denied the aggravated robbery charge (count no. 2). He appeared to say that he participated in no robbery on 21 and 22 August 2010. He admitted he was caution interviewed by police on 2 September 2010, and formally charged on 4 September 2010. In the charge statements, he admitted the two charges against him. However, he said the statements were not his, and you should disregard the same, because the police repeatedly assaulted him, when he was in their custody. We will discuss the statements further, when we analyze the evidence later.
34.	In any event, because they pleaded not guilty to the two charges in the information, the accuseds are asking you, as assessors and judges of fact, to find them not guilty as charged on both counts, and acquit them accordingly. That was the case for the accuseds.

I.	ANALYSIS OF THE EVIDENCE

(a)	The State's Case Against the Five Accuseds:

35.	The State's case against the five accuseds was based primarily on four types of evidence:

(i)	Booklet of Photographs (Prosecution Exhibit No. 27);

(ii)	John Leonard Dass's Post – Mortem Report (Prosecution Exhibit No. (26);

(iii)	The Five Accuseds' Interview and Charge Statements:

Accused No. 1 - interview statements [Prosecution Exhibit 1(A) and 1(B)]

-	charge statement [Prosecution Exhibit 5]

Accused No. 2 - interview statements [Prosecution Exhibit 20(A) and 20(B)]

-	charge statement [Prosecution Exhibit 21(A) and 21(B)]

Accused No. 3 - interview statements [Prosecution Exhibit 7(A) and 7(B)]

-	charge statement [Prosecution Exhibit 22(A) and 22(B)]

Accused No. 4 - interview statements [Prosecution Exhibit 6(A) and 6(B)]

-	charge statements [Prosecution Exhibit 23(A) and 23(B)]

Accused No. 5 - interview statements [Prosecution Exhibit 15(A) and 15(B)]

-	charge statements [Prosecution Exhibit 24(A) and 24(B)]

(iv)	Circumstantial Evidence. This included the inferences of fact to be drawn after considering all the above evidence. We will now discuss the above evidence.

(b)	The Booklet of Photographs [Prosecution Exhibit No. 27]:

36.	In analyzing the evidence, it was fitting to start with the "Booklet of Photographs", of the crime scene at 32 Kamal Lane, Natokawaqa, Lautoka, as depicted in photos 1 to 5. These photos captured the crime scene, as it occurred five years ago. It showed you the point of entry at photos 3 and 4, including the ransacked status of the house as shown in photos 5, 6, 7, 8, 9 and 10. Photos 9, 10, 11, 12, 13, and 14 showed the position of the deceased, when the crime was discovered by police.

(c)	John Leonard Dass's Post-Mortem Report [Prosecution Exhibit No. 26]:

37.	From the "Booklet of Photographs", we go to the deceased's post-mortem report. The report is crucial to the allegation of "murder" in count no. 1, and the second element of "murder", as discussed in paragraphs 13(ii) and 15 hereof. The cause of the deceased's death was asphyxia due to manual strangulation. Doctor Goundar (PW14) said, if pressure was applied to the upper part of the neck, death could occur within 3 to 5 seconds. PW14 also said, if pressure was applied at the bottom part of the neck, death could occur within 15 minutes. The deceased was 71 years old at the time. To understand the alleged manual strangulation, one had to examine sketch 4 in the post-mortem report, and injuries no. 5 and 6, as reported in page 2 of the post mortem report. As explained by Doctor Goundar (PW14), injuries no. 5 and 6 abovementioned showed that the strangler used his two hands to pressure the neck, and it was a deliberate strangulation of the deceased. This evidence was important when considering the third element of murder, as described in paragraph 13(iii)(a) or (b), 16, 17 and 18 hereof. The question becomes: Did the strangler intend to cause the deceased's death, or was he reckless as to causing the deceased's death?

38.	The post-mortem report appeared to show that only one person strangled the deceased to death. If another person had to be made jointly responsible for the deceased's death, it would have to be done on the principle of "joint enterprise" or aiding and abetting the commission of crime. The principle of "joint enterprise" had been discussed in paragraphs 22 and 23 hereof. A person who aids, abetes, counsel or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly (Section 45 of the Crimes Decree 2009). For the offence of murder, the aider and abetter must intend or was reckless in causing the deceased's death. For the offence of manslaughter, the aider and abetter must intend or was reckless in causing the deceased serious harm.

(d)	The Five Accuseds' Caution Interview and Charge Statements:

39.	We will now discuss the 5 accuseds' caution interview and charge statements. When discussing these statements, you must take on board what I said in paragraph 24 hereof. We will discuss the above statements in two parts. First, we will locate and identify the statements in which the accused appeared to have admitted the charges in the information. Second, I will give you directions on the law on how to approach these statements. We will begin with Accused No. 1.

Accused No. 1

40.	Accused No. 1's police caution interview statements were tendered as Prosecution Exhibit No. 1(A) and 1(B), and his charge statements as Prosecution Exhibit No. 5. In questions and answers 26 to 33, 34 to 37, 42, 45 to 51, 52 to 57, 65, 72, 73 and 95 of Prosecution Exhibit 1(B), Accused No. 1 admitted "aggravated robbery", that is, count no. 2. He denied murder (count no. 1) – see questions and answers 34, 35, 59 and 61 of Prosecution Exhibit No. 1(B). In his charge statement, Accused No. 1 also admitted count no. 2 (aggravated robbery), but denied count no. 1 (murder).

Accused No. 2:

41.	Accused No. 2's police caution interview statements were tendered as Prosecution Exhibit No. 20(A) and 20(B), and his charge statements as Prosecution Exhibit NO. 21(A) and 21(B). In questions and answers 74, 75, 82, 86 to 110 and 112 of Prosecution Exhibit 20(B), Accused No. 2 admitted count no. 2 (aggravated robbery), but denied count no. 1 (murder). However, in questions and answers 94, 95, 96, 97, 99, 102, 108 and 110 of Prosecution Exhibit No. 20(B), Accused No. 2 admitted assisting in lifting the deceased from his room to the girl's room, admitted holding the old man to stop him struggling and shouting in his room, while two others repeatedly punched the old man in the ribs, admitted assisting in tying up the old man's hand and legs, and later untying him, admitted putting the old man between 2 beds in the girl's room. These admissions were important on the question of whether or not Accused No. 2 was guilty of murder or manslaughter on the principle of joint enterprise, or aiding and abetting the commission of a crime. In question and answer 18 of his charge statement, Accused No. 2 admitted aggravated robbery, but denied murder. 

Accused No. 3:

42.	Accused No. 3's police caution interview statements were tendered as Prosecution Exhibit No. 7(A) and 7(B), while his charge statements were tendered as Prosecution Exhibit 22(A) and 22(B). In questions and answers 46 to 53, 64 to 70, 78 to 98, 103 to 106, 108 and 115 to 130 of Prosecution Exhibit 7(B), Accused No. 3 admitted count no. 2 (ie. aggravated robbery), but denied murder in questions and answers 96, 89, 90 and 91. In his charge statement, he repeated the above stand in question and answer 9.

Accused No. 4:

43.	Accused No. 4's police caution interview statements were tendered as Prosecution Exhibit No. 6(A) and 6(B), and his charge statements as Prosecution Exhibit No. 23(A) and 23(B). In questions and answers 19, 25, 27, 28, 35 to 38, 45 to 47, 51 to 59, 62 to 77, 80 to 92, 98 to 100 and 104 of Prosecution Exhibit No. 6(B), Accused No. 4 admitted count no. 2 (aggravated robbery), but denied murder. He admitted been near to the old man in questions and answers 68 to 71, 81 to 84 and 37 of Prosecution Exhibit No. 6(B). However, in his charge statement, Accused No. 4 admitted both aggravated robbery and the murder of the deceased.

Accused No. 5:

44.	Accused No. 5's police caution interview statements were tendered as Prosecution Exhibit No. 15(A) and 15(B), while his charge statement as Prosecution Exhibit No. 24(A) and 24(B). In questions and answers 33, 36 to 38, 43, 49, 58, 60, 61, 63, 70 to 75, 77, 78, 88, 91, 93 and 98 Prosecution Exhibit No. 15(B), Accused No. 5 admitted count no. 2 (aggravated robbery), and denied murder in question and answer 66. However, in his charge statement, Accused No. 5 admitted count no. 1 (murder) and count no. 2 (aggravated robbery) in question and answer 6 of Prosecution Exhibit No. 24(A) and 24(B).

Approach to the Five Accuseds' Interview and Charge Statements:

45.	In the five accuseds' police caution interview statements, all the accuseds confessed to count no. 2 (aggravated robbery), but denied count no. 1 (murder). In the charge statements, Accused No. 1, 2 and 3 repeated the above stand. However, Accused No. 4 and 5 confessed to count no. 1 (murder) in their charge statements. When considering the above confessions, I must direct you as follows, as a matter of law. A confession, if accepted by the trier of fact - in this case, you as assessors and judges of fact – is strong evidence against its maker. However, in deciding whether or not you can rely on the five accuseds' above confessions, you will have to answer two questions, in each accused's situation. First, whether or not the accused did in fact make the statements contained in his police caution interview and charge statements? If your answer is no, then you will have to disregard those caution interview and charge statements. If your answer is yes, then you have to answer the second question, for each accused: Are the confessions true? In answering the above questions, the prosecution must make you sure that the confessions were made, and they were true. You will have to examine the circumstances surrounding the taking of the accuseds' statements from the time of his arrest, his time while in police custody, the caution interview, the formal charging and when he was first taken before the courts. If you find that the police did not assault, threaten or made promises to them while in their custody, and that they gave their statements voluntarily and out of their own free will, you may give more weight and value to the statements and use the same in your deliberation. If its otherwise, you may give it less weight and value, and may disregard the same in your deliberation. It is a matter entirely for you.

46.	In this case, you have heard the parties differing accounts on how the interview and charge statements were taken. You have heard the accuseds' sworn evidence on the same. Accused No. 1 did not challenge the weight and value of his interview and charge statements. In his evidence, he admitted count no. 2, but denied murder. Accused No. 2 denied both charges on oath. He asks you to disregard his caution interview and charge statements, because he said he was repeatedly assaulted and threatened by the police when arrested and when caution interviewed. He said, he was forced to give and sign his interview and charge statements. He appeared to say that his statements were not given voluntarily, and they were not the truth, and thus you should disregard them. As for Accused No. 3, he confirmed he gave his caution interview and charged statements. On oath, he confirm what he said in his caution interview and charge statements. He said, he was merely acting as the "look-out" for the others, at the material time.

47.	As for Accused No. 4, because of his non-attendance at the trial, he was deemed to have choosen to exercise his right to remain silent. In his charge statement, he confessed to count no. 1 (murder) and count no. 2 (aggravated robbery). As for Accused No. 5, he acknowledged that he was interviewed and formally charged by police. In the charge statement, he confessed to count no. 1 and 2. However, he denied giving his statements voluntarily and out of his free will, and ask you to disregard the same.

48.	The police caution interview officers, charging officers and witnessing officers said, they did not assault, threaten or made false promises to the five accuseds, while they were in their custody. They said, all the accuseds were given their right to counsel, right to talk to their relatives, formally cautions and given the standard rest and meal breaks, when they were caution interviewed and formally charged. The police officers said all the accuseds gave their statements voluntarily and out of their own free will. The police said, none of the accuseds complained to the Magistrate Court or the High Court of any police misbehaviour. No medical report was produced in court to verify injuries suffered as a result of alleged police assaults. Because of the above, the prosecution ask you to take into account the accuseds' interview and charge statements in your deliberation. Which version of events to accept and/or reject is entirely a matter for you.

(e)	Circumstantial Evidence:

49.	You must consider all the evidence we had discussed above together. If you accept all the accuseds' caution interview and charged statements, then you will accept that all of them admitted jointly participating in the aggravating robbery (count no. 2) against Mr. John Leonard Dass, at the material time. Accused No. 4 and 5 had confessed to the murder (count no. 1) of Mr. Dass, and the aggravated robbery (count no. 2) against him, at the material time, in their charge statements. As for Accused No. 1, he denied murdering Mr. Dass in his police statements and in his sworn evidence. Accused No. 2 denied both charges on oath. However, if you accept Accused No. 2's caution interview statements, he admitted going into the old man's room, holding him to stop him struggling and shouting, while two persons repeatedly punched him on the ribs. He also admitted assisting in tying the old man's hands and legs, and carrying him to the girl's room. Was the deceased's death foreseeable to him at the time? Did he aid and abett the killing of Mr. Dass, and whether or not he was guilty of murder or manslaughter. Accused No. 3 said he was outside the house, at all material time, acting as the "look-out". He denied strangling the deceased.

50.	The prosecution is relying on circumstantial evidence to prove guilt against Accused No. 2 and 3. They are relying upon evidence of various circumstances relating to the crime and the defendant which they say when taken together will lead to the sure conclusion that it was the defendant who committed the crime. Circumstantial evidence can be powerful evidence, but it is important that you examine it with care, and consider whether the evidence upon which the prosecution relies in proof of its case is realiable and whether it does prove guilt. Furthermore, before convicting on circumstantial evidence, you should consider whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution's case. Finally, you should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing, or making up theories without good evidence to support them, and neither the prosecution, the defence nor you should do that.

J. SUMMARY

51.	Remember, the burden to prove the accuseds' guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accuseds, at any stage of the trial. The accuseds are not required to prove their innocence, or prove anything at all. In fact, they are presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accuseds' 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 so that you are not sure of the accuseds' guilt, you must find them not guilty as charged.

52. Your possible opinions are as follows:

 (i) Count No. 1: Murder : Accused No. 1 : Guilty or Not Guilty
 Accused No. 2 : Guilty or Not Guilty
 Accused No. 3 : Guilty or Not Guilty
 Accused No. 4 : Guilty or Not Guilty
 Accused No. 5 : Guilty or Not Guilty

 (ii) Alternative to Count No. 1 if found Not Guilty of Murder - 
Manslaughter: Accused No. 1: Guilty or Not Guilty
 Accused No. 2: Guilty or Not Guilty
 Accused No. 3: Guilty or Not Guilty
 Accused No. 4: Guilty or Not Guilty
 Accused No. 5: Guilty or Not Guilty

 (iii) Count No. 2: Aggravated 
Robbery: Accused No. 1 : Guilty or Not Guilty
 Accused No. 2 : Guilty or Not Guilty
 Accused No. 3 : Guilty or Not Guilty
 Accused No. 4 : Guilty or Not Guilty
 Accused No. 5 : Guilty or Not Guilty

51. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Lautoka
Solicitor for Accused No.1 : Legal Aid Commission, Suva.
Solicitor for Accused No. 2 : N. Karan, Barrister and Solicitor, Suva
Solicitor for Accused No. 3 : I. Romanu, Barrister and Solicitor, Suva.
Solicitor for Accused No. 4 : Tried in Absentia
Solicitor for Accused No. 5 : N. Karan, Barrister and Solicitor, Suva.