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State v Tamanikaisawa [2024] FJHC 543; HAC190.2021 (10 September 2024)

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

Criminal Case No. HAC 190 OF 2021

STATE

V

NOELI JACK TAMANIKAISAWA

Counsel: Ms B Kantharia & Mr T Naimila for the State
Mr T Varinava for the Accused

Hearing : 15, 16, 22, 23 & 24 July 2024

Closing addresses: 1 August 2024

Judgment: 10 September 2024

JUDGMENT

[1] Mr Tamanikaisawa is charged with the following two counts:

First Count

Statement of Offence

MURDER: Contrary to Section 237(a),(b) and (c) of the Crimes Act 2009.

Particulars of Offence

NOELI JACK TAMANIKAISAWA on the 26^th day of September 2021, at Qiolevu Road Nausori in the Eastern Division, murdered one SATYA NAND PILAY.

Second Count

ROBBERY: Contrary to section 310(1)(a)(i) of the Crimes Act 2009.

Particulars of Offence

NOELI JACK TAMANIKAISAWA on the 26^th of September 2021, at Qiolevu Road, Nausori in the Eastern Division, robbed one SATYA NAND PILLAY of his Nokia button mobile phone and $15.00 cash and at the time before the robbery used personal violence on the said SATYA NAND PILLAY.

[2] Mr Tamanikaisawa denies having committed the offences.

[3] Mr Tamanikaisawa is alleged to have robbed and murdered Mr Satya Nand Pillay on 26 September 2021. Mr Pillay was operating his taxi on the day in question. The allegation is that Mr Tamanikaisawa caught Mr Pillay’s taxi with the intention of robbing him. He led Mr Pillay onto a quiet farm road at which time Mr Tamanikaisawa strangled Mr Pillay until he was dead and robbed him of his property.

Count 1 – Murder

[4] The main elements of the offence of Murder are:

1. Mr Tamanikaisawa engaged in conduct;
   
   2. With the intention of causing the death of Mr Pillay or was reckless as to causing his death; and
      
   3. The conduct caused the death of Mr Pillay.
      

Count 2 – Robbery

[5] The main elements of the offence of robbery are:

1. Mr Tamanikaisawa stole a Nokia mobile phone and cash in the amount of $15 from Mr Pillay;
   
2. Immediately before doing so, Mr Tamanikaisawa used force on Mr Pillay with intent to commit the theft.
   

Burden of proof and assessment of the evidence

[6] Mr Tamanikaisawa is presumed to be innocent until he is proven to be guilty. As a matter of law, the onus or burden of proof rests on the prosecution throughout the trial, and it never shifts to Mr Tamanikaisawa. There is no obligation or burden on Mr Tamanikaisawa to prove his innocence.

[7] Mr Tamanikaisawa chose to give evidence, but he does not carry any burden to prove or disprove anything. The burden remains on the prosecution to prove his guilt beyond a reasonable doubt.

[8] As stated, the burden is on the prosecution to prove the charges beyond a reasonable doubt. Each element of the charge must be proved but not every fact of the story. If there is a reasonable doubt, so that the Court is not sure of Mr Tamanikaisawa’s guilt, or if there is any hesitation in my mind on any of the elements, Mr Tamanikaisawa must be found not guilty of the charges and, accordingly, acquitted.

Prosecution Evidence

[9] The prosecution called the following witnesses:

• PW1-Avinesh Pillay
• PW2-Kriesh Narayan
• PW3-Varun Prasad
• PW4-Tevita Dreke
• PW5- Ratu Cavuilati Qiolevu
• PW6 - Ilaitia Dolodolo Tawake
• PW7 – Ms Ema Gade
• PW8 - Ms Melita Marama
• PW9 – Manasa Sevuki
• PW10 Corporal Tom Matebula
• PW11 PC 5734 Jimi Ratulevu
• PW12 Mrs Roselyn Devi
• PW13 Jovilisi Rokovucago
• PW14 Dr. James Kalougivaki
• PW15 Sergeant 4309 Sakeasi Koroi
• PW16 Corporal 5057 Apisai Voravora
• PW17 Inspector Ilaitia Ramaya
• PW18 DC4786 Iliesa Kaivai
• PW19 Ms Tokasa Rokowasa
• PW20 Pita Tamani
• PW21 Detective Inspector Arvind Singh
  

[10] Mr Avinesh Pillay is the son of the deceased, Satya Nand Pillay. He stated that his father was a taxi driver up to the time of his death. His father drove a silver coloured Probox, registration number LT2423. Avinesh Pillay’s evidence is summarised as follows:

1. On Sunday 26 September 2021, he was at home with his parents. His father left the house at about 11am in his taxi to work. Avinesh spent the day at home. At about 2pm, his mother telephoned his father to ask him to pick up a chicken for dinner. His father's mobile number was 8337341 and his mother's mobile number is 8337337. His father advised his mother that he would be home by 4pm.
   
2. His father did not return at the time indicated. The family became worried at about 6pm when his father had still not returned. His mother tried calling his father several times but the call was diverted. They were worried that his father's taxi had broken down and so he and his sister left the house to search for their father. They were unsuccessful and, therefore, went to the police station to report their father missing. They returned home before 9pm as there was a curfew in place at the time between 9pm and 4am.
   
3. At about 11am the next morning, Avinesh received a phone call from his cousin advising that he had found a shoe at Qiolevu. His cousin sent a photograph of the shoe to Avinesh Pillay’s mobile phone. Avinesh was shown photograph 46 of the photograph booklet (Prosecution Exhibit 5). He confirmed it was the same shoe in the picture messaged to him by his cousin on 27 September 2021. Avinesh stated that his mother was able to confirm the shoe was his father’s when he showed her the picture. A number of the family members then left the house to travel to Qiolevu to search for his father. When they arrived, they started calling out his father’s name. A short time later, his cousin, Kriesh Narayan, found his father's body lying in the grass down a slope. The body was naked. This was about 12.30pm on 27 September 2021. A family member called the police who arrived a short time later.
   
4. On Wednesday, 29 September, Avinesh Pillay went with a Police Officer to the CWM Hospital and identified his father's body at the hospital.
   
5. On 30 September 2021, a police officer came to see Avinesh at his home and showed him a key. Avinesh was able to identify the key as belonging to his father's taxi by the key tag on the key. He was also able to identify his father’s taxi from photographs 13 to 18 of Prosecution Exhibit 5.
   

[11] PW2, Mr Kriesh Narayan, is Avinesh Pillay’s cousin. He was informed on the evening of 26 September 2021 that his uncle, the deceased, was missing. The next day, he travelled to Qiolevu with his cousin and their family to search for the deceased. He found his uncle’s body by the side of a farm road lying face upwards. He recognized the face of his uncle. He stated that the body was unclothed. In cross-examination, he confirmed that D.C. Tom Matebula (PW10) recorded his police written statement on 28 September 2023.

[12] PW3, Mr Varun Prasad, is another cousin of Avinesh Pillay. He, too, was involved in the search for his uncle, the deceased, on 27 September 2021. He found his uncle’s shoe on a farm road close to Qiolevu Road and sent a picture of the shoe on his mobile phone to Avinesh Pillay. In cross-examination, he stated that Sergeant Mesulame recorded his written statement on 28 September 2021.^[1] He stated that he had informed Sergeant Mesulame where the body had been found.

[13] Mr Tevita Dreke, PW4, has a farm near to the road where the deceased’s shoe was found. On 27 September 2021, he found the deceased’s shoe and a mask on the side of the road when he was walking to his farm. He found the items near his shed where he stores manure. He placed the mask inside the shoe and placed both by the side of the road.

[14] PW5, Ratu Cavuilati Qiolevu, is a farmer who lives at Navuso Village. On the afternoon of 26 September 2021, he was smoking with Serevi and Jovilisi (PW13) at the market opposite a supermarket at Navuso. He saw the Accused get out of his father’s carrier and come to their group. Cavuilati stated that the Accused had a grey knap sack with him. Cavuilati has known the Accused for about 10 years. The Accused told them to go and have a smoke. They then went to Cavuilati’s home to smoke marijuana. Whilst doing so, at about 6.30pm, Jovilisi asked to use a mobile phone that the Accused was holding. Jovilisi then used the Accused’s phone to call Jovilisi’s girlfriend and after using the phone gave it back to the Accused. Cavuilati’s Aunt then came and told the Accused that his mother was calling for him. The Accused then left. Cavuilati identified the Accused in the dock. In cross-examination, Cavuilati confirmed that he made no mention of the phone call by Jovilisi or the Accused’s phone in his written statement to the police. He also stated that he had discussed the case with Jovilisi before coming to court that day. He conceded that he was high from smoking marijuana but did not accept that he was mistaken as to who was originally holding the mobile phone, Jovilisi or the Accused. He was adamant that it was the Accused and that the Accused had passed the phone to Jovilisi.

[15] Mr Ilaitia Dolodolotawake, PW6, stated that he lives at Navuso village. In the early evening of 26 September 2021, between 7 and 8pm, the Accused stopped him on the main road in Navuso and asked him to transport the Accused to Cunningham, which he did, dropping the Accused on the main road at Cunningham about 8pm. He confirmed that the Accused was carrying a bag, describing it as black in colour.

[16] PW7, Ms Ema Gade, stated that in September 2021, her name was registered to a SIM card for phone number 9053308. She stated that the SIM card was used by her daughter, Melita Marama. Ms Melita Marama, PW8, then gave evidence confirming that her mother was the registered holder of the SIM card but that she was using it in September 2021. She received a phone call on the afternoon of 26 September 2021 at about 6pm from phone number 8337341. She called back the number and spoke to a person whom she did not recognize. The person on the other line stated that he was with Jovi. Melita hung up. She confirmed that she had known Jovi for several years.

[17] The next witness, PW9, was Mr. Manasa Sevuki. He lives at Navuso Village. He is a farmer and a driver. He has known the Accused for about 15 years, having met him at high school. On 26 September 2021, Manasa was working (driving) in Nausori town, looking for customers for his minivan. He saw the Accused twice, firstly after 3pm as the Accused was coming to Nausori town. He saw him again at about 4pm. The Accused was sitting in a taxi which drove past Manasa as he was standing at a van stand in Nausori. The Accused was seated in the passenger seat. The Accused waved at Manasa. He was about 5-10 metres from him. There was no one else inside the taxi except the taxi driver. He described the taxi as a grey probox. He stated that he was familiar with the taxi as he ‘would do jobs at Raralevu, I would see the taxi parked at Korociriciri’. He could recall the registration number for that taxi as LT2423. The next day he heard a rumour that a taxi driver driving a probox had been murdered at Qiolevu. Having recalled seeing the Accused in a grey probox taxi the previous day, he assumed the Accused was responsible and reported his sighting of the Accused to the police.

[18] In cross-examination, Manasa denied that male youths in the village were suspected of the murder of the taxi driver and was adamant that he did see the Accused in the taxi on 26 September 2021 as he had said. In answer to my questions, Manasa stated that his relationship with the Accused was good but that that may not be the case now because of the evidence he was providing in court. In further questioning from the Defence, he accepted that if something bad happened in the village, the Accused was usually suspected as being responsible because the Accused had previously been stealing in the village.

[19] The next witness was the police officer that conducted the interview of the Accused, namely Corporal Tom Matebula, PW10. Corporal Matebula has served 11 years with the Police Force and was in the Criminal Investigation Unit at Nausori Police Station in September 2021. On the morning of 30 September 2021, he was instructed by the crime officer to interview the Accused. The witnessing officer was Detective Sergeant Mesulame. Corporal Matebula conducted the interview in the crime office at the police station and did so writing out the questions and answers and having the Accused and the witnessing officer, as well as himself, sign the written document from time to time. The original handwritten document and a typed copy of the interview were tendered as Prosecution Exhibits 1A and 1B. Corporal Matebula stated that prior to the interview, the Accused had an opportunity to speak to a lawyer from the Legal Aid Commission to discuss his legal rights as well as medically examined. He informed the Accused of his constitutional rights before the interview commenced and after each break during the interview. The officer proceeded to read the handwritten interview in its entirety. The following points are noted from the contents:

1. The interview ran from 1.51pm to 5.10pm on 30 September 2021. There was a break at 2.45pm and 3.50 for about 5 minutes for the Accused to drink water and use the bathroom. During the interview, the Accused stated that he and a Manasa had planned to rob a taxi driver and that the Accused had caught a taxi from Nausori Town for this purpose. They drove to a farm road off Qiolevu Road. The Accused stated that the taxi stopped on the side of the farm road - the Accused told the driver that he was waiting for someone to bring the money for the taxi fare. At this point the interview was suspended for the day.
   
2. The interview resumed on 1 October 2021 at 9.34am. There were 5 minute breaks at 10.45am and 12.00 noon. In the interview up to 12noon, the Accused stated that Manasa strangled the taxi driver and dumped his body. Manasa then gave the Accused the deceased’s mobile phone and $50 cash. There was a refreshment break at 12.00 noon. Immediately after the break, the Accused admitted having acted alone. He admitted to strangling the deceased. He described what he had done and how he had dumped the body.
   
3. The interview was suspended at 12.20pm for a reconstruction of the crime scene. At various times during the reconstruction, questions were put to the Accused and recorded in the handwritten record of the interview.
   

[20] In cross-examination, Corporal Matebula accepted that during the suspensions (for breaks) on 1 October 2021 the times the interview was suspended was not recorded in the Station Diary. Also:

Mr Varinava: I put it to you, Mr Matebula, that the interview of Mr Noeli Jack Tamanikaisawa was conducted through a computer? You were asking questions, you entered the same in the computer, and then Mr Tamanikaisawa then answered. Is that correct?

Corporal Tom: No, My Lord it was handwritten.

Mr Varinava: I put it to you Mr Matebula that the handwritten version of the record of interview was only given to Mr Tamanikaisawa to sign before he was taken to court?

Corporal Tom: No My Lord. It was given to him on the day that the interview was conducted.

Mr Varinava: Mr Matebula, I also put it to you that the answers in the record of interview were fabricated...

Corporal Tom: No, My Lord...

[21] In answer to my questions, Corporal Matebula stated that it was not normal practice to record each break during the interview in the station diary. It was normal practice to record only the start and finish times for the interview each day.

[22] PW11, Police Constable Jimi Ratulevu, was with the cybercrime unit at the CID Headquarters of the Eastern Division in September 2021. On 27 September 2021, he was directed to execute a search warrant on Vodafone Fiji for the deceased’s phone number, 8337341 – at this time the deceased was considered a missing person. The time frame sought for the Search Warrant was after 5.30pm on 26 September 2021, as this was the timeframe that the deceased’s taxi was found abandoned. The results were received shortly thereafter on a Vodafone Fiji: Search Warrant Report (Prosecution Exhibit 9).^[2] He has experience reading these results. The Report recorded the phone numbers called and the duration of the phone call. Constable Ratulevu focused on the outgoing calls from the phone and noted five calls from 8337341 to phone numbers 8076116 and 9053308 between 5.32pm and 6.12pm. The phone calls to 9053308 were two seconds and 40 seconds in duration. Constable Ratulevu then arranged for a search warrant from Vodafone for the names of the persons registered to the phone numbers; the name registered for 8076116 was Taraivini Marama, and the name registered for 9053308 was Ema Gade.

[23] PW12, Mrs. Roselyn Devi, is the wife of Satya Nand Pillay, the deceased. She explained that they have one son and three daughters. On the morning of 26 September 2021 her husband woke up, had breakfast, washed, and performed his morning prayers before leaving home at about 11.30am to drive his taxi. Mrs. Devi confirmed that she called him at 2pm in respect to dinner arrangements and was advised by her husband that he would bring a chicken and be home by 4pm. Her husband did not return by 4pm and shortly after 5pm she asked her oldest daughter to phone the deceased but she could not get through. They tried calling at various times until about 7.30pm. She sent her son and daughter to Nausori town to look for her husband. They could not find him so they reported him missing to the police. Mrs. Devi was anxious and upset when they could not get contact her husband. Because of the curfew then in place, they could take no further steps to search for her husband until the next day. She was then shown a blue mobile phone which she confirmed was her late husband's phone. This was produced by Mrs. Devi as Prosecution Exhibit 2. She stated that the phone had been gifted to her husband shortly before he died.

[24] PW13, Jovilisi Rokovucago, is 20 years old and resides at Navuso village. He is a childhood friend of the Accused. On 26 September 2021 at about 5pm, he was inside a market near Navuso village smoking cigarettes with Serevi and Cavuilati (PW5). The Accused joined them. The Accused was carrying a bag and had a telephone. Jovilisi checked inside the Accused’s bag and found a Tara's shopping bag with shopping items including chicken, potatoes, wheels snacks and washing powder. He described the phone as blue and black. The four of them subsequently walked back to the village where they smoked cigarettes inside PW5’s house. Jovilisi asked to use the Accused’s phone and tried to call the number 9053308 which belonged to Melita Marama (PW8) who was Jovilisi’s ex-girlfriend. He spoke to Melita asking if her boyfriend was Leone. She hung up but called back a short time later and spoke to the Accused. This was about 6 p.m. Jovilisi described the Accused's conduct that evening as unusual. Each time a car went by the village ‘it seemed like Noeli was hiding beside the house’. He stated that ‘it seemed like he was afraid of something’. Jovilisi identified the Accused in the dock.

[25] In cross-examination, Jovilisi accepted that he had been smoking marijuana when he used the mobile phone and was ‘high’. It was put to Jovilisi that he already had the mobile phone and it was not brought by the Accused. He did not accept this. It was put to Jovilisi that he was mistaken about the phone and the items in the shopping bag because he was high. Again, he rejected this. He accepted that the Accused was normally the main suspect when [bad] things happened in the village. He did not accept that this was the reason he blamed him for being in possession of the phone. Jovilisis stated, ‘It was him that brought the phone’. In re-examination, Jovilisi stated that he was not too high at the time he used the phone and that he was aware of the circumstances around him. In answer to my questions, he stated that he began smoking marijuana after the Accused had joined the group. He had only been smoking marijuana for about four minutes before he, allegedly, used the Accused’s mobile phone.

[26] PW14, Dr. James Kalougivaki, is the pathologist that undertook the post-mortem examination of the deceased. Dr Kalougivaki produced his Curriculum Vitae (Prosecution Exhibit 3). He stated that he has been a pathologist since 2012, had a Bachelor of Medicine and Surgery from 2007, a Postgraduate Diploma in Pathology from 2013, and a Master's in Pathology from 2019. He has conducted thousands of medico legal death investigations. He conducted the post-mortem examination of the deceased on 29 September 2021 and prepared a report on the same date. The report was produced as Prosecution Exhibit 4. Dr Kalougivaki’s evidence was as follows:

1. He found abnormal results in respect to the external body. He found hemorrhaging in the eyes. Internally, he found the presence of pinpoint bleeders or haemorrhages on the scalp. He stated that this was a result of a lack of oxygen being supplied to these areas which he called ‘asphyxia’. He stated that asphyxia is a mechanism of death and may be due to many causes including a lack of oxygen in the atmosphere or an obstruction of the windpipe.
   
2. He found abnormal results in the neck, there being bleeding in the front and side of the neck deep into the flesh as well as deep into the flesh in the front of the spine and ‘a fracture of the bone that’s sitting over the throat’. He stated that the bleeding deep into the flesh demonstrated a high amount of energy or force in that area caused most likely from a blunt force. He stated that the fracture in the neck was a result of ‘extreme amounts of blunt force over the neck’.
   
3. He found injuries to the leptomeninges, being the thin inner membrane around the brain. There was evidence of haemorrhage.
   
4. The next positive finding was the low back where there was a lot of bleeding deep into the muscles, again indicating an extreme amount of blunt force to that area. He stated that this could have been caused by the body being dumped into a car, dropped from the car at a height onto a hard surface and dragged along the ground.
   
5. The findings in the lung were also positive (abnormal). The lungs were expanded with rib indentations. This is an indication of the inability of the air in the lungs to come out, indicating in turn an obstruction of the upper windpipe.
   
6. As to the cause of death, Dr Kalougivaki opined that this was ‘manual strangulation’ secondary to ‘traumatic head and neck injuries’. Further, where there is strangulation basically there is obstruction of the upper airway and ‘it is due to the either use of the hands or the arms or the legs also can be used. It is the compression of the upper airway’. He stated that a significant or extreme amount of force was required to cause the injuries to the neck. In terms of the duration of strangulation required to cause death, he said that this depended on the deceased; the younger the person, the more likely they are able to put up resistance. He stated that the duration here could range from a few seconds to less than four minutes.
   

[27] PW15, Sergeant 4309 Sakeasi Koroi, has 17 years in the Police Force and has spent much of it in the CSI unit. He was the Team Leader in charge of the CSI team deployed to investigate the death of the deceased. He appointed DC Krishneel Kumar as the photographer and DC4786 Iliesa Kaivai as the exhibit collector. Sergeant Koroi provided overall guidance and supervision during the investigation to his team. They were formed as soon as the deceased’s taxi was found in Qiolevu. He stated that the photographs were taken by D.C. Krishneel. He stated that DC Krishneel has migrated to New Zealand and, therefore, he produced the booklet of these photographs, approximately 60 of them (Prosecution Exhibit 5). He stated that D.C. Krishneel video recorded the reconstruction of the crime scene. The five video clips were produced on a CD disc (Prosecution Exhibit 6). Sergeant Koroi was present during the reconstruction. The five clips were then played. Sergeant Koroi explained the various locations where the reconstruction was being conducted. It commenced from Nausori Town (where the deceased allegedly picked up the Accused in his taxi) and proceeded to the alleged location of the strangling, the location where the body was found and finally the location where the taxi was abandoned. The Accused can be seen in the video clips explaining what he allegedly did, where he allegedly strangled the deceased and dumped his body and where he allegedly abandoned the taxi. Sergeant Koroi produced a sketch of the crime scene which he drew himself (Prosecution Exhibit 7).

[28] In cross-examination, Sergeant Koroi accepted that it was D.C. Krishneel who downloaded the five clips to the CD before handing it to the Investigation Officer. He accepted that he was not involved in the downloading, and therefore could not confirm the authenticity of the video recording. In re-examination, he stated that he could confirm the reconstruction seen on the video as being correct, as he was present during the reconstruction. He also stated that it was not possible to edit the recording.

[29] PW16, Corporal 5057 Apisai Voravora, was the officer that charged the Accused on 1 October 2021. He did so following the interview by Corporal Tom (PW10). He typed the charge on a computer in real time. He then printed the document and arranged for it to be signed by himself, the Accused and the witnessing officer, being DC4894 Ulamila Nadakuitavuki. The Accused made a statement, while being charged, expressing remorse and apologizing to the deceased’s family. He stated:

Yes I Noeli Jack Tamanikaisawa wish to make a statement and I want you to write down is what I say and I have been told that I need not say anything unless I wish to do so but I will say will be taken down in writing and given in evidence.

The statement which I gave to Police in my interview is true and I am sorry for what I have done and I would like to apologise to the family of Mr Satya Nand Pillay.

[30] The Accused was informed of his constitutional rights before providing the above statement. It was put to Corporal Voravora in cross-examination that the admission by the Accused was not given voluntarily and that the Accused had been told to admit the offending after the document had already been prepared. Corporal Voravora rejected this. He did acknowledge that the date on the charge statement, being 11 June 2018, was wrong. In re-examination he explained that he had overlooked this date but he had prepared a written statement on the day of the charging confirming that the charge was done on 1 October 2021.

[31] Inspector Ilaitia Ratu Ramaya, PW17, was the investigating officer in charge of the murder investigation. He was at the police station on 1 October 2021 when the Accused’s brother, Pita Tamani (PW20), arrived to surrender a button phone that was allegedly the deceased’s mobile phone. Inspector Ramaya completed a form on the same day confirming receipt of the phone from Mr Tamani. The form was signed by Mr Tamani (Prosecution Exhibit 10). The mobile phone is described in the form as a ‘blue & black nokia button mobile phone’. A mobile phone, Prosecution Exhibit 2, was then shown to Inspector Ramaya. He confirmed that it was the same phone as he had received from Mr Tamani on 1 October 2021.

[32] In cross-examination, Inspector Ramaya was asked whether the mobile phone had been misplaced by the police after receipt from Mr Tamani. He denied this, stating that the phone had been stored in the crime officer's room. It was photographed on 15 July 2024. It was put to Inspector Ramaya that the phone was not the same phone that had been received by him in October 2021. He again denied this.

[33] Inspector Ramaya explained, at my request, the normal process for exhibiting. He stated that upon receipt of an exhibit, it is placed in a plastic bag and recorded in the police station exhibit book and then stored in the exhibit room. When the exhibit is removed from the exhibit room, this is recorded in the exhibit book. The mobile phone was not registered in the exhibit book nor stored in the exhibit room. Instead, it was placed in a plastic bag and stored in the crime room by Sergeant Arvind. Inspector Ramaya stated that this was contrary to normal police practice.

[34] PW18, DC4786 Iliesa Kaivai, was with the CSI team during the murder investigation. He took photographs on 6 October 2021. The photograph booklet that he compiled was produced as Prosecution Exhibit 11. He took photographs of the house that the Accused had slept in the night after the death of the deceased. The Accused was photographed as pointing to a location on a wooden beam in the house where the keys to the deceased’s taxi was allegedly found - photographs 7 and 8.^[3] He also took photographs on 15 July 2024 of, allegedly, the deceased’s mobile phone provided by Pita Tamani on 1 October 2021 (Prosecution Exhibit 12).

[35] I asked Constable Kaivai whether the car keys for the deceased’s taxi were on the wooden post when he took then photograph. He confirmed the same and said that the keys were then exhibited. He could not recall what the keys looked like. An object can be seen on the photograph but the object cannot be made out.

[36] PW19, Ms Tokasa Rokowasa, was working at Tara’s supermarket on 26 September 2021. She stated that the deceased came in at about 2pm and purchased ‘chicken, potatoes, cold power, beans, and wheels and bongos’. They were placed in a Tara’s plastic bag by Tokasa. She described the deceased as a regular customer although could not recall his name. She stated that his taxi normally parked at a local taxi stand, opposite the supermarket. She was able to confirm that she was the cashier that served the deceased as this seen on the internal CCTV camera footage which is kept at the Supermarket.

[37] PW20, Pita Tamani, is 26 years old and an older brother of the Accused. At the time of the events in late September 2021 he was staying at Cunningham. He recalled that on the evening of Sunday, 26 September 2021, the Accused arrived home when he was already sleeping. The next day the Accused gave him a button phone. On or about 1 October his mother told him to take this phone to the police station which he did. He described the phone as a black button phone. When he delivered the phone to the police he signed a form, being Prosecution Exhibit 10. He recognized his signature on this form. He stated that he could not recall whether the phone was also blue, as recorded on the form. The phone, Prosecution Exhibit 2, was shown to Mr Tamani but he could not recall if that was the same phone he had provided to the police. The Prosecution endeavored to have Mr Tamani recall the blue colour by providing his earlier police statement to him in an effort to refresh his memory. Mr Tamani still could not recall. The Prosecution applied to have Mr Tamani declared hostile. I declined the application. I was not satisfied that Mr Tamani was hostile. He had been cooperative up to this time and it was more than conceivable, given that almost 3 years had passed since he last saw the phone, that he had forgotten its colour.

[38] In cross examination Mr Tamani confirmed that he thought the phone was black and stated that the phone produced in court was not the same phone he gave to the police.

[39] I asked Mr Tamani whether he can read English which he confirmed he can. He also confirmed that he could read the details on the police form he signed on 1 October 2021 which described the phone that he had supplied to the Police as being blue and black.

[40] The final prosecution witness, PW21, was Detective Inspector Arvind Singh. He is the Crime Officer at Nausori Police Station and has been in the Police Force for 35 years. In 2021, he was the Crime Sergeant at Nausori Police Station. He explained the exhibiting process. He stated that once an exhibit was seized, a search warrant form was prepared for the item, an entry is then made in the station diary or the investigation diary. The item is shown to the Accused if they are then in custody and/or being interviewed, it is exhibited, recorded in the exhibit register, and then stored in the exhibit room. He confirmed that this, in fact, happened with the mobile phone that was received from Mr Tamani in October 2021. Inspector Singh produced the two station diaries for the 2021 and 2022 calendar years wherein a record was made of the exhibit entry for the mobile phone. Copies were made of the two pages and produced as Prosecution Exhibit 13 and Prosecution Exhibit 14. With respect to the former, the exhibit register number is 899/21, recorded on 4 October 2021 at 9.24am for a blue and black button phone. For the 2022 year, it is recorded as 829/2022. Inspector Singh stated that some of the exhibits for this case, which he considered to be a high profile case, was kept by him inside his locker at the police station. With respect to the mobile phone, it was kept in the exhibit room but had been misplaced for a time.

[41] In cross-examination, the Defence brought the following concerns to light:

1. Whilst it is usual practice to exhibit the item on the same day it is shown to the suspect and/or received, here being 1 October 2021, the phone was not exhibited until 4 October 2021. Inspector Singh explained in re-examination that the reason for this is that by the time the interview of the Accused concluded after 6pm on 1 October, the exhibit writer had left for the day and the exhibit room was not open during the weekend. It was, therefore, exhibited on Monday morning.
   
2. The mobile phone had been released from the exhibit room on 31 July 2023 but there is no record of it being returned. Inspector Singh stated in re-examination that the reference to ‘R’ in red in the Register suggests that it was returned but a record of the date appeared to have been overlooked by the exhibit writer

[42] It was put to Inspector Singh, in cross-examination that he could not be certain that the mobile phone that was produced in court was the same mobile phone that was handed to the police on 1 October 2021. He agreed as he was not the person that exhibited the mobile phone on 4 October 2021 but in re-examination suggested that the records demonstrate that the mobile phone (Prosecution Exhibit 2) was one and the same.

[43] Inspector Singh had stated in examination in chief that the car keys for the deceased’s taxi were released to the son of the deceased - the car keys having allegedly been retrieved by the police from the Accused. I asked Inspector Singh why this had been permitted when the evidence was critical circumstantial evidence allegedly connecting the Accused to the deceased’s taxi. Inspector Singh stated that the family required the car for its use and for this reason the decision was made to release the keys. I inquired why they could not have had a spare key cut instead or arranged for a photograph of the keys. Inspector Singh agreed that this should have been done.

[44] The Prosecution closed its case.

Defence Evidence

[45] I informed Mr Tamanikaisawa that I was satisfied that there was a case for him to answer. I explained his three options, being that he could provide sworn evidence, remain silent and/or call witnesses to support his case. I explained that if he remained silent that no adverse inferences would be drawn against him. Having discussed it with his counsel, Mr Tamanikaisawa elected to provide sworn evidence.

[46] The Accused’s examination-in-chief was brief. He spoke in the Itaukei language. He stated that on 26 September 2021 he took the day off work and after 12 noon went to Nausori supermarket to see his father. Later, at about 5pm, he and his father did some shopping and the Accused then joined Jovilisi (PW13) ‘and them’ at the market. They smoked marijuana and Jovilisi called his girlfriend on his own phone. Jovilisi then gave the phone to the Accused and told him that he could hold onto it and use it. The Accused put the phone in his pocket and took it with him. He then left for Cunningham and he arrived home late while his family were asleep. He stated that the admissions he gave during the interview and while being charged were a result of assaults on him and that he was simply given the written statements to sign and did so because of the assaults.

[47] In cross-examination the Accused stated:

1. When he joined Jovilisi he was carrying a bag but he had clothes inside not shopping items.
   
2. He stated that it was Jovilisi who had the mobile phone and not the Accused. Jovilisi took the SIM card out of the phone, gave the phone to the Accused and told the Accused that he could use his own SIM card in the phone. The Accused did not have a SIM card but he kept the phone. He stated that he gave the phone to his brother Pita Tamani the next day. He could not recall if the phone was blue. He described it as black.
   
3. He confirmed that he was medically examined on two occasions around the time of his interview with the police. He thought the phone call with the Legal Aid lawyer was with a Social Welfare Officer.
   
4. He stated that when he was arrested at the house in Cunningham the police officers ‘started to assault me’. That, ‘I was sitting down below and they were punching me, they didn’t punch my face’. He stated that he did not disclose the assaults to the medical practitioner when he was examined on 1 October because the police officers were present during the examination – Dr Olimiva Tuamono who conducted the medical examination on 1 October 2021 provided evidence in the voir dire that the examination was conducted in a separate room where the police officers were not present.
   
5. With respect to the police interview, it was put to the Accused that he could have had a legal practitioner present or a church/family member. The Accused stated that he did agree to this ‘because the police officers kept assaulting me . Mesu and Tom Matebula [PW10] the two that had interviewed me and I was really scared’. The Accused stated that the two Officers wrote the contents in English but explained it to him in Itaukei. They gave the copy to him and told him to sign. He stated that the police gave him many documents to sign and he did so. It was not his evidence but what the Police Officers had themselves prepared. He had asked for one of his family to come but the police denied him that opportunity. He also stated that during the interview he was threatened and assaulted by Corporal Matebula (PW10) and Sergeant Mesulame and he was scared.
   
6. Before the reconstruction the police officers had told him what to say which is why he was able to explain the offending and locations in the video clips of the reconstruction.
   
7. It was put to him that Manasa (PW9) saw him in the deceased’s taxi in Nausori. The Accused responded that he did not know how Manasa had seen him.
   
8. He stated that Sergeant Mesulame told him at the police station that they were related through the Accused’s father but he didn’t know they were related.
   

[48] He provided the following evidence in response to my questions:

1. He thought he was arrested on 29 September and not 30 September although when asked to provide more details it is clear that the events he described as occurring on 29 September were the same events that occurred, according to the police, on 30 September 2021.
   
2. He stated that there was only one assault on him by the police and this occurred when he was arrested from his home in Cunningham. He was assaulted by about five officers. They punched and kicked him for about 15 minutes and he covered his face with his hands/arms while this was happening.
   
3. During his interview he was not assaulted but was threatened.
   
4. It was explained to the Accused that Manasa (PW9) had said during the trial that he saw the Accused in the deceased’s taxi and that Jovilisi (PW13) and Cavuilati (PW5) both stated that the phone used by Jovilisi on 26 September 2021 was the Accused's phone. I asked why they would tell lies to the court. He stated that they hated him. He did not know whether they were mistaken or making it up.
   
5. He stated that he did not know and had not met Sergeant Mesulame before being interviewed at the police station on 30 September 2021 - that it was Mesulame who told him that they were related.
   

Analysis

[49] On Sunday 26 September 2021, Mr Satya Nand Pillay left his family home at about 11am to work, driving his taxi. At 2pm, he spoke to his wife by phone making arrangements to pick up food for dinner. He told her he would be home by 4pm. Shortly after the call, he purchased groceries at Tara's supermarket. The groceries included chicken, potatoes, washing powder, wheels and bongos. They were placed in a Tara's plastic bag. Mr Pillay did not return home as expected at 4pm. His family became worried after 6pm when he was still not home and they could not reach him by phone. His son and daughter reported him missing that evening. At or about this time, the police received a report of Mr Pillay’s abandoned taxi being located in Qiolevu.

[50] The next day, Mr Pillay’s family organised a search party to look for Mr Pillay in Qiolevu. Their search took them to a farm road off Qiolevu Road where Mr Pillay’s nephew discovered Mr Pillay’s body by the side of the road. A subsequent post-mortem examination revealed that Mr Pillay died by strangulation, suffering significant injuries to his neck and low back.

[51] The State's case is that Mr Tamanikaisawa was responsible for the strangulation and death of Mr Pillay. It claims that Mr Tamanikaisawa caught Mr Pillay’s taxi at about 4pm on 26 September 2021 with designs to rob Mr Pillay. Mr Pillay was led to the farm road off Qiolevu Road, After placing a manure bag in the boot of the taxi Mr Tamanikaisawa grabbed Mr Pillay from behind and strangled him around the neck until he lost consciousness and died. Mr Tamanikaisawa put the body in the boot of the taxi, drove down the farm road a short distance, and dumped Mr Pillay’s naked body in a grassy area by the side of the road. Mr Tamanikaisawa then stole the taxi but did not get far as the taxi ran out of petrol. Mr Tamanikaisawa abandoned the taxi on Qiolevu Road having stolen $15 cash from Mr Pillay, his mobile phone, and the groceries in the Tara’s shopping bag. He also took the keys for the taxi. He met up with his father a short time later and ended up at a supermarket near Navuso Village where, at about 5.30-6pm, he joined three friends, including Cavuilati (PW5) and Jovilisi (PW13). They smoked marijuana. Jovilisi asked to use Mr Tamanikaisawa’s mobile phone which had been stolen from Mr Pillay. Jovilisi used the phone to call his ex-girlfriend. Jovilisi noticed the Tara’s shopping bag and its contents in Mr Tamanikaisawa’s carry bag.

[52] The next day Mr Tamanikaisawa gave Mr Pillay’s mobile phone to his elder brother, Pita Tamani. Mr Tamanikaisawa was arrested three days later on 30 September 2021. He admitted to the robbery of Mr Pillay but claimed that another person, Manasa, strangled Mr Pillay. The next day, on 1 October 2021, Mr Tamanikaisawa admitted to acting alone and killing Mr Pillay. In a reconstruction of the crime scene, Mr Tamanikaisawa described his movements and actions from the time he caught Mr Pillay’s taxi in Nausori town.

[53] The Defence case is that Mr Tamanikaisawa did not see Mr Pillay on 26 September 2021 or get into his taxi. Mr Tamanikaisawa was in Nausori town that afternoon but helping his father with shopping. He spent much of the time waiting around for his father and walking around town. Eventually, at about 5pm, they did the shopping. Mr Tamanikaisawa then joined his friends at the market near Navuso village and smoked marijuana. He did have a carry bag when he met his friends but denies that any groceries were in the carry bag. Mr Tamanikaisawa claims that the phone Jovilisi used to call his ex-girlfriend was Jovilisi’s phone and that after speaking with the ex-girlfriend Jovilisi gave the phone to Mr Tamanikaisawa. The next day was Mr Tamanikaisawa’s 18^th birthday, and he says that Jovilisi gave him the phone as a birthday gift. He later gave that phone to his brother the next day. With respect to the admissions in the interview, charge statement and reconstruction, he states that he was assaulted when arrested on 30 September 2021 and threatened throughout by the police. He states that the alleged admissions were fabricated by the police and that he signed the documents from the police because he was scared.

Elements of the offence of Murder

[54] The State must establish the following elements beyond reasonable doubt to establish that Mr Tamanikaisawa is guilty of murder:

1. Mr Tamanikaisawa engaged in conduct;
   
2. The conduct caused Mr Pillay’s death; and
   
3. Mr Tamanikaisawa engaged in the conduct with the intention of causing the death of Mr Pillay or was reckless as to causing his death.
   

The Accused Engaged in Conduct

[55] There are two competing versions of the Accused’s alleged conduct on 26 September 2021. The Prosecution say that Mr Tamanikaisawa caught Mr Pillay’s taxi the afternoon of 26 September 2021 and robbed and killed him. Mr Tamanikaisawa says he did not do so and that he remained in Nausori town over the material time waiting for his father.

[56] The Prosecution relies principally on admissions made by Mr Tamanikaisawa to the police on 30 September and 1 October 2021. If the admissions are true, then Mr Tamanikaisawa did engage in the conduct alleged by the Prosecution. The admissions by Mr Tamanikaisawa were as follows:

1. In the interview, Mr Tamanikaisawa admitted he was involved in the robbery of Mr Pillay but initially laid the blame for the plan and committing the murder on ‘Manasa’. On 30 September 2021, he told Corporal Matebula that he travelled to Nausori town on the afternoon of 26 September 2021. Once there, Manasa suggested that they rob a taxi driver. Mr Tamanikaisawa agreed to be involved. It was planned that Mr Tamanikaisawa would catch the taxi, lead the taxi driver to a road off Qiolevu Rd and wait for Manasa who would follow in his own car. Mr Tamanikaisawa caught Mr Pillay’s taxi. Once at the farm road he told the taxi driver that another person was bringing the fare. The interview was suspended on 30 September 2021 at this point.
   
2. On the morning of the second day of his interview, 1 October 2021, Mr Tamanikaisawa continued with his account of the events on 26 September. He stated that Manasa arrived on the farm road a short time later and told them to load a sack of manure into the boot of the taxi. After this was done, just as the driver closed the boot Manasa put his arm around the driver’s neck and choked him until he was motionless. Manasa then placed the body in the boot of the taxi and drove down the slope and dumped the driver’s body. Manasa gave Mr Tamanikaisawa $50 cash and Mr Pillay’s mobile phone. Mr Tamanikaisawa took the taxi but it ran out of petrol. He then left the taxi and took Mr Pillay’s Taras shopping bag with the grocery items. He also took the car keys with him. He made three calls on Mr Pillay’s mobile phone (which correspond with calls to 8076116 made between 5.32pm and 6.09pm)^[4]. He identified Mr Pillay on CCTV footage shown to him buying his groceries at Taras supermarket. He denied having strangled Mr Pillay. At this time, the interview was suspended for a 5-minute break at 12 noon.
   
3. Immediately after the break, Mr Tamanikaisawa admitted to strangling Mr Pillay. Mr Tamanikaisawa is recorded as having stated ‘Yes I admit that I strangled him to death but I did not mean for him to die’. When asked why he blamed Manasa he explained:
   

I was afraid because I did not intend to kill the taxi driver so I thought to push the blame on Manasa. Also my guilty conscience was lying heavily on me so I just confessed it to the Police Officer when I came back from drinking water.

4. Mr Tamanikaisawa proceeded to describe the same account of his offending but this time without the involvement of Manasa, detailing how he strangled Mr Pillay. He stated:
   

...I choked him from behind by wrapping my right arm around his neck and squeezed tightly with all my strength and when the driver tried to wriggle free, I kept on applying my choke-hold on him until I felt his head fall backwards on my shoulder.

...

He was then motionless and not moving so I knew he was unconscious.

5. Mr Tamanikaisawa then placed the body in the boot of the taxi, drove down the slope and dumped the body in the grass by the side of the road.
6. The interview was suspended so that a reconstruction could be conducted. Mr Tamanikaisawa took the police officers to the locations from where he caught the taxi up to the place he dumped the body of Mr Pillay and abandoned the taxi. He is seen on the video clips explaining in English his actions at the different locations. He walked the officers from the site where he allegedly strangled Mr Pillay and placed him in the boot of the taxi and drove down the slope. The two officers followed Mr Tamanikaisawa on foot as he walked to the site where he dumped the body by the side of the road. Mr Tamanikaisawa stopped at the site where the body was dumped. He identified where he placed the body and place where he placed Mr Pillay’s clothes. He explained the sequence of his actions. The last clip is of Mr Tamanikaisawa near the abandoned taxi. He explained that it ran out of petrol and that he took items from inside the taxi before heading to Navuso.
   
7. The interview was resumed after the reconstruction. Mr Tamanikaisawa confirmed that a ‘black and blue button Nokia phone’ shown to him was the ‘same phone I took from inside the taxi after I had abandoned it at Qiolevu Road’. He explained that he also stole $15 cash from inside the taxi. He was shown ‘car keys recovered from you at Cunningham’. Mr Tamanikaisawa accepted that it was ‘the Car keys for the Taxi’.
   
8. The final admission by Mr Tamanikaisawa is contained in the charge statement wherein he confirmed that his admissions during the interview were true and he apologized to Mr Pillay’s family.
   

[57] Mr Tamanikaisawa states that the admissions were a result of assaults and threats by the police and the written admissions were fabricated by the police. Further, that up until noon on 1 October 2021, he had made no real admissions. This only changed when he received threats from the Investigating Officer during a 5-minute break in the interview. Mr Tamanikaisawa points to a number of internal failures and inconsistencies by the police. For example, a failure to record each suspension of the interview in the Station Diary; breaches of internal police Standing Orders - the interviewing officer, witnessing officer and charging officer were all involved in the murder investigation (having recorded witness statements); this placed the police officers with knowledge of the circumstances of the offending allowing them to fabricate the admissions contained in the interview and Charge Statement; the witnessing officer during the police interview (Sergeant Mesulame) was related to the Accused.

[58] I am required to determine whether Mr Tamanikaisawa made the admissions freely and that they are true. In order to do so, I must assess the evidence available including the evidence from the prosecution witnesses and Mr Tamanikaisawa. I keep in mind the following factors when determining the credibility and reliability of a witness such as: promptness, spontaneity, probability, improbability, consistency, inconsistency, contradictions, omissions, interestedness, disinterestedness, bias, and the demeanour and deportment in court - see Matasavui v State [2016] FJCA 118; AAU0036.2013 (30 September 2016, State v Solomone Qurai (HC Criminal - HAC 14 of 2022).

[59] In Liberato and Others v The Queen [1985] HCA 66; 159 CLR 507 at 515 the court discussed the approach to be taken where there are conflicting versions of evidence given by the Prosecution and the Defence witnesses. Brennan J stated:

When a case turns on a conflict between the evidence of a Prosecution witness and the evidence of a defence witness, it is commonplace for a judge to invite a jury to consider the question; who is to be believed? But it is essential to ensure, by suitable direction, that the answer to that question (which the jury would doubtless ask themselves in any event) if adverse to the defence, is not taken as concluding the issue whether the Prosecution has proved beyond reasonable doubt the issue which it bears the onus of proving. The jury must be told that; even if they prefer the evidence for the prosecution, they should not convict unless they are satisfied beyond reasonable doubt of the truth of that evidence. The jury must be told that, even if they do not positively believe the evidence for the defence, they cannot find an issue against the accused contrary to that evidence if that evidence gives rise to a reasonable doubt as to that issue. His Honour did not make clear to the jury, and the omission was hardly remedied by acknowledging that the question whom to believe is “a gross simplification”.^[5]

[60] In State of UP v M K Anthony (1985) 1 SCC 505, the Court stated:

While appreciating the evidence of a witness, the approach must be to ascertain whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, then the court should scrutinize the evidence more particularly to find out whether deficiencies, drawbacks, and other infirmities pointed out in the evidence is against the general tenor of the evidence. Minor discrepancies on trivial matters not touching the core of the case should not be given undue importance. Even truthful witnesses may differ in some details unrelated to main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and a refined lawyer.^[6]

[61] In Bharwada Bhoginbhai Hirjibhai v State of Gudjarat [1983] INSC 72; (1983) 3 SCC 217, the Court stated:

A witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a videotape is replayed on the mental screen ... The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person's mind, whereas it might go unnoticed on the part of another .... It is unrealistic to expect a witness to be a human tape recorder..... In regard to exact time of an incident, or the time duration of an occurrence, usually people make their estimates by guesswork on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time sense of individuals, which varies from person to person.... Ordinarily a witness cannot be expected to recall accurately the sequence of events which takes place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on...^[7]

[62] I considered Mr Tamanikaisawa’s allegations against the police (in respect to his admissions) in my ruling on the Voir Dire hearing. I was satisfied that there was no evidence to support the allegations. However, I have received additional evidence on these allegations during the trial in the form of the sworn evidence from Mr Tamanikaisawa. He stated that he was assaulted by five police officers on 30 September 2021 when he was arrested. He states that these officers kicked and punched him repeatedly over several minutes. Thereafter, over that day and the next, he was constantly threatened with harm if he did not admit to the offending. He says that out of fear he signed the documents presented to him by the police which contained the fabricated admissions.

[63] I found Mr Tamanikaisawa’s evidence to be unsatisfactory and unconvincing. He initially stated that he was assaulted by the interviewing officer (Corporal Matebula) and the witnessing officer (Sergeant Mesulame) but later stated that he was only assaulted at the time of his arrest. If he had suffered the beating that he contends happened when he was arrested, he would almost certainly have been left with multiple injuries to his body, such as bruises and abrasions. The injuries would have affected his ability to move freely and comfortably and would have been visible and picked up in one or both of the two medical examinations conducted on 30 September and 3 October 2021. The examination on 30 September 2021 was conducted at 12.09pm, only hours after the alleged beating. He also states that he had been coached on what to say during the reconstruction before they left the police station. Having viewed the video clips I note that there was no hesitation demonstrated by Mr Tamanikaisawa with explaining what happened and where. He demonstrated a familiarity of the events and locations that could only come from personal knowledge and not a result of coaching back at the police station.

[64] It was suggested that Mr Tamanikaisawa made no real admissions until after the break at 12 noon on 1 October 2021 when he says he received threats by the investigating officer. I do not accept this proposition. Mr Tamanikaisawa made significant admissions before the break in question. He had admitted to being involved in the robbery and the only part he had denied was the strangling of Mr Pillay which he placed on Manasa. I am satisfied that Mr Tamanikaisawa tried to downplay his role in the murder by creating a false story of an accomplice who was responsible for the murder.

[65] Mr Tamanikaisawa stated that the police fabricated the admissions and he signed the documents put to him out of fear. If that were correct, then why would the police fabricate only partial admissions up to 12 noon on the second day of the interview.

[66] Accordingly, I reject Mr Tamanikaisawa’s evidence given at trial. It is self-serving and contrary to the admissions he made to the police. Although I reject Mr Tamanikaisawa’s evidence, that does not mean he is guilty. The onus remains on the Prosecution to prove that each of the elements are satisfied beyond a reasonable doubt.

[67] I accept Mr Tamanikaisawa’s admissions in the interview and reconstruction as truthful. I make this finding for the reasons stated above but also for the following reasons:

1. The level of detail provided in his admissions is consistent with Mr Tamanikaisawa having personal knowledge of the circumstances of Mr Pillay’s death.
   
2. Having watched the video reconstruction, I am satisfied that Mr Tamanikaisawa was describing events known to him and not coached.
   
3. His admission of his role in the offending is entirely consistent with the other evidence available. Manasa Sevuki (PW5) saw Mr Tamanikaisawa in Mr Pillay’s taxi at about 4pm only a short time before Mr Pillay went missing. This appears to have been the last sighting of Mr Pillay before he went missing. Ratu Cavuilata Qiolevu (PW9) and Jovilisi Rokovucago (PW13) both saw Mr Tamanikaisawa in possession of Mr Pillay’s stolen phone shortly after Mr Pillay went missing. Jovilisi used Mr Pillay’s phone to call his ex-girlfriend and the Vodafone records confirm this. Jovilisi also saw a Taras’ groceries bag in Mr Tamanikaisawa’s carry bag. The items in the bag matched the groceries purchased by Mr Pillay from Taras’ supermarket only 4 hours earlier. While Mr Tamanikaisawa refutes this evidence, I am satisfied that the evidence from the prosecution witnesses is reliable and correct. They were all friends of the Accused. They have no reason to provide false evidence and they were adamant as to the accuracy of their recollections despite being challenged in cross-examination.
   

[68] Although I accept the admissions by Mr Tamanikaisawa as being true it is necessary to address a number of matters raised by the Defence, namely:

1. The Defence questioned whether the mobile phone produced in court (Prosecution Exhibit 2) is the same phone that Mr Tamanikaisawa provided to his brother on 27 September 2021 (who in turn handed it to the police on 1 October 2021). The exhibit register shows that the phone was released on 31 July 2023 but does not record the date it was returned (if indeed it was). Inspector Singh (PW21) accepted that the phone was misplaced in the exhibit room for a time. I agree that the record of the chain of custody for this item is unsatisfactory. That said, in my view the production of the physical evidence (the mobile phone) in court is not critical. What is more important, in the context of Mr Pillay’s stolen phone, is that Mr Tamanikaisawa had possession of that phone only 1-2 hours after Mr Pillay had gone missing – this is established from the evidence of Jovilisi (PW13) and Cavuilati (PW5) and the Vodafone phone records (Prosecution Exhibit 9).
   
2. In my decision on the Voir Dire I ruled that an alleged admission to Inspector Ramaya during a break in the police interview was inadmissible. I found that it was neither appropriate nor fair for the investigating officer to question Mr Tamanikaisawa during a break in the formal interview. The Defence argue that on the basis of this ruling the admissions by Mr Tamanikaisawa thereafter are tainted and should not be admitted. Inspector Ramaya stated that the admission was made to him on 30 September 2021 and that he prepared a written statement that day regarding the admission. The Defence say that the admission was, in fact, made on 1 October during the break at 12 noon (there is a discrepancy in Inspector Ramaya’s evidence regarding the time of the admission; he states in his written statement that the admission was made at 12noon on 30 September but the interview did not commence that day until 1.51pm). He stated in court that that time must have been later that day on 30 September 2021. Irrespective of the time and day of the admission I am satisfied that the admissions made by Mr Tamanikaisawa after the 12noon break on 1 October 2021 were freely given. Corporal Matebula reminded Mr Tamanikaisawa of his constitutional rights upon recommencement of the interview at 12.05pm on 1 October 2021. Mr Tamanikaisawa acknowledged that he understood his rights.
   
3. The Defence argue that the evidence of Manasa Sevuki (PW9) is unreliable. Reference is made to his clearly inaccurate account of the amount of time he observed Mr Pillay’s taxi with the Accused in the car. He stated that he observed the taxi for about 30 minutes and observed Mr Tamanikaisawa’s face in the taxi for about 20 minutes. In reality it could not have been more than 20-30 seconds. The point of his evidence was that he saw the Accused in the car who waved at him. It would not require more than a few seconds for Manasa to see and recognize the Accused. His description of the duration simply shows he has a poor sense of time.
   
4. The Defence objects to the production of the CD of the clips of the reconstruction on the basis that Sergeant Koroi did not record the clips or download the clips to the CD. Further, there was a question whether one of the clips was complete. I dealt with this in my ruling on the Voir Dire. Sergeant Koroi was present during the reconstruction and part of the CSI team; indeed he led the team. He was able to confirm first hand that the clips were accurate.
   
5. Finally, the Defence suggests that other persons could equally have committed the alleged offences. The Defence identify Manasa (PW9) and Jovilisi (PW13) – the former because he was identified by the Accused as an accomplice in the police interview and the latter for making a phone call from Mr Pillay’s stolen phone. The allegation against Manasa, based on Mr Tamanikaisawa’s admission of his own offending does not advance the present allegation. The allegation against Jovilisi also lacks merit given that the other person present at the time of the phone call, Cavuilati (PW5), supports Jovilisi’s account that the Accused gave the phone to Jovilisi.
   

The conduct caused the death of Satya Nand Pillay

[69] The evidence from the pathologist, Dr. James Kalougivaki (PW14), is unequivocal. Mr Pillay died by manual strangulation, secondary to blunt force to his neck and head. Mr Tamanikaisawa’s description of his killing of Mr Pilllay, contained in his interview with the police (of strangling Mr Pillay to his throat/neck, moving and dragging the body to the boot of the car and finally to the place it was dumped) is consistent with the injuries seen on post-mortem examination. Dr. Kalougivaki confirmed the same in his evidence.

[70] That being the case, Mr Tamanikaisawa’s ‘conduct’ caused the death of Mr. Pillay.

The accused either intended to cause the death of the deceased or was reckless as to causing the death of the deceased.

[71] In State v Rai [2022] FJHC 224 (22 July 2022), Temo J^[8] explained the requirements here as follows:

7. The third element of murder concerned its fault element. There are two fault elements for murder...It would appear that the prosecution is running its case on both fault elements. That is permissible. They need only satisfy one fault element, to prove the charge of murder. They are alleging that when the accused assaulted Ms. Fieyan Chen, he intended to cause her death, or in the alternative, was reckless in causing her death.
   
8. On the first fault element, the prosecution must make the court sure that when the accused did “the wilful act”, he “intended to cause the death of the deceased”. You cannot cut open the accused’s head, to find out what his intentions were, at the time he allegedly assaulted the deceased to death. But the court can examine his conduct at the time, that is, what he said and did, and the surrounding circumstances, to infer whether or not he intended to kill the deceased, when he allegedly assaulted her. If the court finds that he intended to kill the deceased, at the material time, that would be sufficient to support the third element of murder, that is, an intention to kill.
   
9. As for the second fault element of murder, the prosecution must make the court sure that when the accused did “the wilful act”, he “was reckless as to causing the death of the deceased”. A person is reckless with respect to a result, if he was aware of a substantial risk that the result will occur and having regard to the circumstances known to him, it was unjustifiable to take the risk. The question whether taking a risk was unjustifiable is one of fact for the court. Was the accused aware of a substantial risk that the victim would die if he assaulted her? If he was aware of the substantial risk that the deceased would die if he assaulted her, and he nevertheless took the risk, he was reckless. If otherwise, he was not reckless.^[9]
   

[72] Mr Tamanikaisawa stated in the police interview, after he admitted killing Mr Pillay, that he did not intend to do so. It appears that he was suggesting that he had strangled Mr Pillay to incapacitate him in order to rob him. His actions demonstrate that if he did not intend to cause the death of Mr Pillay, he most certainly was reckless with respect to causing the death by his conduct and must have known there was a substantial risk that Mr Pillay would die. It bears rehearsing Mr Tamanikaisawa’s own words, describing his actions that led to choking the life out of Mr Pillay. He stated in the police interview:

...I choked him from behind by wrapping my right arm around his neck and squeezed tightly with all my strength and when the driver tried to wriggle free, I kept on applying my choke-hold on him until I felt his head fall backwards on my shoulder.

...

He was then motionless and not moving so I knew he was unconscious

Elements of the offence of Robbery

[73] Mr Tamanikaisawa’s admissions in the police interview also establish his guilt for count 2. Mr Tamanikaisawa stole Mr Pillay’s mobile phone and $15 cash from inside the taxi. Immediately before doing so, he strangled Mr Pillay; the purpose of doing so (as expressed by Mr Tamnikaisawa’s own words in the interview) was to steal Mr Pillay’s property.

[74] The factual presumption arising out of possession of recently stolen property also operates on the present facts. The presumption was described in the following terms by the Supreme Court in Rokodreu v State [2022] FJSC 36 (25 August 2022):

[30] In common law jurisdictions there is a presumption that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. In order to apply this presumption, the prosecution is required to establish several requirements.

1. Stolen property
2. Recent possession
3. Exclusive and conscious possession
   

When the above factors are established, the possessor has to give an account as to how he came to possess. In other words, he should give a reasonable or a plausible explanation.

1. Stolen Property:
   

[31] The property must be stolen property. It is therefore necessary to establish the identity of the property. In this case witnesses Arvind Chand Prakash and his wife Alini Prakash had identified the property which belonged to them such as jewellery, mobile phones which are personal to them. They identified this property at the police station and in courts.

2. Recent Possession:
   

[32] The property should be recently stolen property. In other words, recent possession has to be established. According to the evidence, the robbery has taken place on 18 March 2009 after 10.00 p.m. The accused joined witness Aisea Bani and others who were having drinks at about 3.00 a.m. in Kaleli, Lautoka and they were in their company having drinks when the police came and arrested the accused and others and recovered the blue bag which was in the possession of the accused containing stolen items. These items were recovered within twelve hours after the commission of the offence. The items such as jewellery which will not change hands many a times such as cash. Therefore, the prosecution has established the property was recently stolen property.

3. Exclusive Possession
   

[33] The next element the prosecution is required to prove is that the stolen items were in the exclusive possession or control of the accused. Inspector Iakobo Vaisewa recovered the blue bag which was in the possession of the accused. That bag contained stolen items. The accused denied that he was in possession of the stolen property and alleged that police fabricated evidence. However, the assessors and the trial judge accepted the evidence of Inspector Iakobo Vaisewa as truthful. The accused did not give a reasonable account as to how he came to possess these items.

[34] The case of Wainiqolo v State [2006] FJCA 49; AAU0061.2005 [28 July 2006] is relevant to this case. It states:

"The principal ground relates to the so-called doctrine of recent possession which is that where property has been stolen and is found in the possession of the accused shortly after the theft, it is open to the Court to convict the person in whose possession the property is found of theft or receiving. It is no more than a matter of common sense and a Court can expect assessors properly directed to look at all the surrounding circumstances shown on the evidence in reaching their decision. Clearly the type of circumstances which will be relevant are the length of time between the taking and the finding of the property with the accused, the nature of the property and the lack of any reasonable or credible explanation for the accused's possession of the property. What is recent in these terms is also to be measured against the surrounding evidence.”

[75] Mr Tamanikaisawa was in possession of Mr Pillay’s stolen phone less than 2 hours after Mr Pillay had gone missing. The fact that the mobile phone was Mr Pillay’s and was in Mr Tamanikaisawa’s exclusive possession is established by the evidence of Jovilisi (PW13) and Cavuilati (PW5), supported by the Vodafone records (Prosecution Exhibit 9). Mr Tamanikaisawa did not account for the possession in his evidence at trial, he simply refuted that he had possession.

Determination

[76] I remind myself that the burden to prove Mr Tamanikaisawa’s guilt beyond reasonable doubt lies with the prosecution throughout and it never shifts to Mr Tamanikaisawa. There were two conflicting versions provided by the State and the Defence at trial. Although I reject Mr Tamanikaisawa’s version as being untrue, I remind myself that the Prosecution still carries the burden of proving beyond reasonable doubt that the offences were committed by Mr Tamanikaisawa. I am satisfied that the Prosecution has done so.

[77] I am sure that Mr Tamanikaisawa’s admissions in the police interview are a true account of his offending on 26 September 2021. The account is detailed. It is consistent with the circumstantial evidence from the prosecution witnesses.

[78] In view of the above, I find Mr Tamanikaisawa guilty as charged of murder contrary to s 237 of the Crimes Act, and guilty of robbery contrary to 310(1)(a)(i) of the Crimes Act and he is, accordingly, convicted.

.....................................

D. K. L. Tuiqereqere

JUDGE

Solicitors:

Office of the Director of Public Prosecutions for the State
Office of the Legal Aid Commission for the Accused

^[1] Sergeant Mesulame was the witnessing officer during the interview of the Accused on 30 September and 1 October 2021.
^[2] The Report was admitted by consent on 22 July 2024.
^[3] He circled on photograph 8 where the keys were found.
^[4] Vodafone Fiji: Search Warrant Report; Prosecution Exhibit 9.
^[5] My emphasis.
^[6] My emphasis.
^[7] My emphasis.
^[8] Now Acting Chief Justice.
^[9] My emphasis.