Hearing: 25^{th March – 22nd April 2008}

Summing Up: 22nd April 2008

Counsel: Mr. W. Kuruisaqila & Ms L. Lagilevu for State

Mr. J. Semisi for Accused 1, 2, 3, 4, 6-8

Mr. S. Karavaki for Accused 5

Madam Assessor and Gentlemen Assessors. It is now my duty to sum up to you. In summing up, I will direct you on matters of law which you must accept and act upon. You must apply the law as I tell you the law is, in this case.

As far as the facts of this case are concerned, what evidence to accept, what weight to put on certain evidence, which witnesses are reliable, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts, or if I appear to do so, it is entirely a matter for you whether you accept what I say, or form your own opinions. In other words, you are the masters and the judges of fact.

Counsel for the prosecution and the defence have made submissions to you about how you should find the facts of the case. They have the right to make such comments, in accordance with their duties as counsel. However, you are not bound by what counsel on either side have told you about the facts of the case. If you think that those comments appeal to your common sense and judgment, you may use them as you see fit. You are the representatives of the community in this trial and it is for you to decide which version of the evidence to accept or reject. Mr. Semisi in his closing address suggested that if you find the accused guilty they would lose their lives. This is not correct in law. In any event the penalty in this case, if the accused are found guilty is not your concern. Disregard what counsel said about penalty.

You will not be asked to give reasons for your opinions, but merely your opinions themselves, and you need not be unanimous although it would be desirable if you could agree on them. Your opinions are not binding on me but I can assure you that I will give them great weight when I deliver my judgment.

On the issue of proof, I must direct you as a matter of law that the onus or burden of proof lies upon the prosecution to prove the case against each accused person. The burden remains throughout the trial upon the prosecution and never shifts. There is no obligation upon the accused to prove their innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he or she is proved guilty.

The standard of proof is one of proof beyond reasonable doubt. This means that before you can find the accused guilty of the offence charged, you must be satisfied so that you are sure of his guilt.

If you have a reasonable doubt about the guilt of the accused then it is your duty to express an opinion that the accused is not guilty. It is only if you are satisfied so that you feel sure of the guilt of the accused that you can express an opinion that he is guilty.

Your opinions must be based only on the evidence you have heard in this courtroom and upon nothing else. Whatever you have read about this case in the media or elsewhere, you must totally disregard. Your duty is to apply the law to the evidence you have heard.

There are 8 Accused persons in this case. The first 7 are charged with murder. The 8th Accused is charged with being an accessory after the fact to murder. As a matter of law, you must consider the evidence against each accused person separately. You must not assume that because you find there is enough evidence to convict one, that the others must also be guilty. Consider the case against each accused separately.

Murder is an offence defined by the Penal Code. The 7 Accused persons are charged with the murder of Tevita Malasebe on the 4th and 5th of June 2007 at Valelevu in the Central Division. Murder is committed when a person causes the death of another person by an unlawful act with malice aforethought. Murder has three essential elements which the prosecution must prove:

The Accused caused the death of the deceased.

By an unlawful act.

With malice aforethought.

 

In this case all three elements of the offence of murder are disputed by the defence, so you must carefully consider the evidence for each element.

The first element is that of “causing death” or causation. Did the Accused cause the death of Tevita Malasebe? The prosecution has not led direct evidence that each individual accused person assaulted the deceased at all. The prosecution relies on circumstantial evidence to show that it was the accused who were responsible for the death of the deceased. In law, the term “caused death” means simply that the act or acts of the accused were the substantial or operating cause of death. If for instance, the deceased’s life might have been saved if he had been taken to hospital earlier, that is irrelevant provided you are satisfied beyond reasonable doubt that it was the act or acts of the accused which were the substantial cause of death. And that Tevita Malasebe died as a result of assaults on him.

There is no direct evidence that any of the accused laid a hand on the deceased. Indeed for some of the accused persons there is no evidence that these Accused even entered the Crime Office on the night of the 4th of June.

Instead the prosecution relies on circumstantial evidence and the doctrine of joint enterprise to prove its case. In law, the person who actually delivers the fatal blow in a murder case, is not the only person who is guilty of the murder. Anyone who aids or abets the principal offender, anyone who counsels or procures or advises the principal offender is also guilty of murder. Furthermore, when two or more persons get together and form a common intention to do something unlawful together and in the course of doing that unlawful act, another offence is committed which is a probable consequence of the planned offence, then each of those who are part of the plan is also guilty of the resulting offence, even if he or she did not do the act which actually constitutes the offence.

Let me give you an example. If a group of men plan to commit a robbery carrying firearms, and in the course of the robbery the security guard guarding the premises gets shot by one robber, all the robbers are guilty of his murder even if they did nothing to actively contribute to the murder. So the robber standing guard outside and who never enters the premises is guilty of murder as well as the robber who actually fired the shot. This is because when you commit an armed robbery, it is a probable consequence of that common intention that someone will get shot and be seriously injured or killed. This is the doctrine of joint enterprise.

In this case the prosecution says that all accused persons were part of a common intention to bring Tevita Malasebe to the Valelevu Police Station to assault him prior to his interrogation. The prosecution’s case is that all the accused either actively assisted in this plan or did nothing to stop the assault which, as police officers, they had a duty to do in law, and that the death of the deceased as a result of the assault was a probable consequence of that planned assault for which each Accused 1 to 7 must be responsible for. In considering whether or not there was a joint enterprise involving each accused in this case, ask yourselves:

Was there a joint common intention to bring Malasebe to the station to assault him?

Was each of the accused in the dock party to that common intention?

Was the death of Malasebe as a result of the assault, a probable consequence of the assault?

 

In considering these questions, you may look at all the circumstances of the case as led in the evidence.

That brings me to the law on circumstantial evidence. There is no direct evidence of a joint enterprise, or of a common intention to assault Tevita Malasebe in police custody. No one saw the alleged assault and gave evidence about it. Instead the prosecution relies on all the circumstances of the case to try to prove that the only reasonable inference available to you is that these Accused were part of that joint unlawful enterprise and that they caused the death of the deceased.

A case of circumstantial evidence relies on a variety of sources of evidence. One example of how it works is this. One day you find your house broken into. The items stolen are clearly identifiable by you because you have put your initial on your DVD and TV screen. The day after the burglary, your DVD and TV screen with your initials are found inside your neighbour’s house. His son is seen to be spending a lot of money at Traps Bar. His fingerprints are found on your kitchen door. On the basis of all this evidence, you are entitled to draw a reasonable inference that your neighbour’s son committed the burglary in your house, because there is no other reasonable inference that you can draw from the evidence which is consistent with the son’s innocence. However, if for instance you did not initial the stolen items and cannot be sure that these items in your neighbour’s house is yours, and if there are no fingerprints found then the evidence of the neighbour’s son’s spending would not be sufficient for you to draw an inference of his guilt. This is because there are other possible reasonable hypotheses for his sudden wealth.

Therefore, with circumstantial evidence you must look at all the evidence together and ask yourselves whether the only reasonable inference you can draw from the evidence is the guilt of the accused. You must ask yourselves whether there can be any other explanation for the evidence which is also consistent with the accused’s innocence. That is the law on circumstantial evidence.

The second element of the offence is that the acts of the accused was unlawful. As a matter of law, I must direct you that if you are satisfied beyond reasonable doubt that the accused in a joint enterprise were responsible for assaults on the deceased, then in law there is no excuse for such an assault. The police have no powers to assault suspects in their custody unless of course the suspects are resisting arrest. That is not the case here. The evidence is that the deceased never resisted arrest and if the accused assaulted him, or were party to an assault on him it was unlawful and not justified in law.

The fact that the deceased might have been a known criminal, or that he was suspected of a robbery makes no difference to this rule. No matter who the suspect is, he or she has a right not to be assaulted by the police, a right not to be subjected to torture or degrading treatment. These are rights guaranteed by our Constitution.

Furthermore police officers have a special role given to them by the law. Section 17(3) of the Police Act says that “It shall be the duty of every police officer …… to prevent the commission of offences, and public nuisances, to detect and bring offenders to justice ……” So police officers cannot stand by and allow offences to be committed in front of them. They must prevent the commission of those offences, and bring the offenders to justice. They have the same duty even when their fellow police officers are committing criminal offences.

If therefore you accept that Tevita Malasebe died as a result of multiple assaults on him while in police custody then you may accept that such assaults were unlawful, thus satisfying this element of the offence.

The third element of the offence of murder is malice aforethought. The term is misleading because it suggests premeditation. That is not what malice aforethought means. The term is defined by our Penal Code to mean either –

an intention to cause death or grievous harm to another person; or

 

knowing that the act done by the accused will probably cause death or grievous harm, even if the accused is indifferent or doesn’t care whether death or grievous harm will be caused or not.

 

Of course no one can really say what is in a person’s mind. Only that person can know for sure. However, we all know that a person’s conduct or behavior can be evidence of a person’s intention. For this reason, it is open to you to deduce or infer what was in the accuseds’ minds in the circumstances, from the conduct of each. In this case you must ask yourselves whether, the injuries on Malasebe were inflicted either with intention to cause death or serious harm, or with indifference or recklessness as to the serious harm caused.

Those are the elements of the offence of murder. In relation to the 8th Accused, Pita Matai, the prosecution does not allege that he was a party to murder. The 8th Accused is charged under section 388 of the Penal Code. That section says that a person who assists another, who is to his knowledge, guilty of an offence, in order to enable him to escape punishment, is an accessory after the fact to the offence. The elements of the offence are:

The Accused

Assisted another

Who to his knowledge had committed an offence

In order to assist him/her to escape punishment.

 

In this case the defence disputes all of these elements. The defence says that Pita Matai did not assist anyone to escape punishment, nor did he know that an offence had been committed. So you must consider the evidence in relation to each element of offence carefully. What I have said about circumstantial evidence applies also to the prosecution case against the 8th Accused. However, for the purpose of this offence, you must be satisfied beyond reasonable doubt that the 8th Accused gave active assistance to those whom he knew had committed an offence before you can find him guilty on Count 2.

A further legal direction I must give you is that what one accused says about another in his caution statement to the police, is not evidence against the others. A police statement is only evidence against the maker of it. So if the 8th Accused for instance named other accused persons in his statement, you cannot take that into account against those other accused.

The prosecution evidence is that the deceased Tevita Malasebe, a 30 year old man was taken from his home by police officers on the 4th of June 2007 at about 12 midnight. His mother, Anisa Solivolili said that Lole Vulaca (the 1st Accused) came into the house and did not tell her why he was taking the deceased, but promised to bring him back. The deceased was handcuffed at his home and the 1st Accused told her that he was following the others to make sure they did not assault her son. She then also went to the Valelevu Police Station with her other two sons and arrived there about an hour later. There, the police officers in the charge room denied that her son was at the station. While there she and her son saw the vehicles which had taken the deceased, parked at the station.

She heard noises from the Crime Office, noises she described as rumbling, and shuffling. She went towards the noise from the outside of the station, calling out her son’s name. She believed that he was being assaulted in the Crime Office. Outside the Crime Office, she saw 3 people sitting on the bench. One of them she identified as the 4th Accused. One of the men chased her away from there. She re-entered the charge room, then sat in a chair just outside the charge room. While waiting there she again saw the 4th Accused, coming out of the Crime Office entrance. He was wearing a black jacket and black ¾ pants and he whispered to a police officer in the charge room. He looked at the deceased’s mother and son, then went slowly out. She saw the 4th Accused again the next day at the hospital, and she and her son accused him of being one of the men who had taken her son. When she saw her son the next morning, it was at the CWM Hospital. He was dead, with visible bruises all over his body.

She was vigorously cross-examined by both defence counsel. She said under cross-examination that she had heard the noises from the Crime Office and that she had told the police this when she made her statement but did not know why this was not written down. She also maintained that the 1st Accused had told her that he had to go to the station to ensure that they did not beat up her son. It was suggested to her that her son was not at the Valelevu Police Station that night, but she said that she believed that he was there because she saw the two vehicles which had escorted her son away, were parked at the station.

The evidence of DC Amani Bosenawai of the Strike Back team was that at 4am on the 4th of June 2007, he was instructed to assist the Valelevu Police in a robbery investigation. He arrived at Valelevu Police Station after 11am. He was briefed with others by the 8th Accused Sgt. Pita Matai. The crime men present at the briefing were the 1st Accused, the 2nd Accused, the 3rd Accused and other crime officers. They were called back to Valelevu Police Station at 6pm for another briefing by Sgt. Pita (the 8th Accused). They went out to look for suspects and returned again at 9pm and 11.30pm. At the 11.30pm briefing the 8th Accused asked for assistance to arrest Tevita Malasebe. At this briefing, the 1st Accused, 2nd Accused, the 6th Accused, the 7th Accused, the 3rd Accused and 5th Accused were all present. These officers with DC Amani, left in 3 vehicles to arrest the deceased. One was driven by the 1st Accused, one by DC Matai and the third by Sgt. Epeli Vamosi. DC Amani was in the same vehicle as the 2nd Accused, and Sgt. Vamosi. At the deceased’s house, the 1st, 2nd and 3rd Accused spoke to the deceased’s mother. The deceased was then put into GN503 (the planning vehicle) driven by Constable Matai. The vehicles then went back to Valelevu Police Station. Sgt. Epeli Vamosi then asked the 8th Accused if the Strike Back team from Nabua could be released. DC Amani was then released and he went off duty.

That was also the evidence of Cpl. Simione Rarasea from the Nabua Strike Back team. He identified the 1st Accused but said he could not recall who the other officers were who went to arrest the deceased. He said that the 5th Accused Jone Cama was not in the vehicles going to arrest the deceased.

WPC Saleshni Devi who was in the charge room from 12 midnight on the 4th of June saw the 1st Accused sitting in the vehicle outside. She also heard someone crying. WPC Kharti was on duty from 11pm in the charge room. No one was brought into the charge room that night for her to register and lock in the cell. She said that after midnight she heard voices and the sound of crying coming from the Crime Office. She said she heard this between 1am and 2am.

At 5am, Cpl. Eremasi of CID came into the charge room and went to the cells. He took out a blue mattress and went out of the charge room through the back door. Under cross-examination, she said that she heard the sound of crying between 1am and 2am, and that the noise came from the direction of the Crime Office. She said she did nothing about it and carried on with her work. She said that when Cpl. Eremasi took the mattress, he did so openly. In cross-examination by Mr. Karavaki, she agreed that CID officers sometimes got tired and that perhaps Cpl. Eremasi wanted the mattress to rest on it for a while. She was not asked to identify Cpl. Eremasi in the dock as the 7th Accused.

WPC Sesenieli Cagi was on duty from 10.45pm, as the station orderly. At 1.10am the deceased’s brother Samu came in looking for his brother. At 2am she heard a man yelling, while she was in the charge room. She then saw a bald-headed policeman in civilians carrying a blue mattress. In cross-examination she said the sound of yelling came from the direction of the Crime Office, that she had never heard such a thing before and she did not want to go to that side. She was not asked to identify the bald-headed policeman.

The deceased was next seen by Cpl. Mosese Kalidole. He was at the station washing his hands behind the Crime Office at around midnight on the 4th of June. He saw the 5th Accused Jone Cama, and the 8th Accused Pita Matai talking beside the sink. He saw two vehicles parked outside the station and he saw the 1st Accused and a Fijian man whom he later came to know was the deceased, come out of the vehicle and go straight into the Crime Office. Corporal Kalidole left the station after he was told by the 8th Accused to interview the deceased the next morning. The next morning he was picked up by the 8th Accused and the 7th Accused. He went into the Crime Office at 6.30am and saw the deceased lying down facing up. He had breathing difficulties and was touching his stomach. Cpl. Kalidole went and told the 8th Accused what he had seen.

The evidence of SC Ritesh Lal was that he was on duty at Valelevu Police Station from 11pm to 7am on the 4th of June 2007. He heard a cry from the Crime Office saying ‘wailei’ at about 3am. At 4.30am he walked behind the Crime Office and a police officer who he knew as “Jone” came out of the Crime Office. He was not able to recognize him now. He told SC Ritesh Lal to go away to the other side of the station.

The evidence of Sgt. Vereniki Seru was that suspects brought to the station come into the charge room so that the station orderly can enter his or her name in the station diary. If in remand, the suspect must be kept in the cell, and when taken out of the cell for interrogation, this is also noted in the station diary.

PC Pita Qiolevu gave evidence that on the 4th of June 2007 he was on duty from 11pm to 7am. Passing the Crime Office between 4am and 4.30am he heard the sound of loud crying. The voice was saying “Officer please have mercy on me.” It then said several times “Officer please let me live.” PC Qiolevu told DC Jone (the 5th Accused) this. The 5th Accused was standing just outside the Crime Office. There was no response.

At 6.45am PC Samuela Vinakayawa (PW11) went into the Crime Office, and saw the deceased lying on the floor. He was wearing a t-shirt and asked for a drink of water. WPC Taraivini came to the Valelevu Police Station before 8am. She saw the 2nd and 4th Accused sitting outside the Crime Office. They looked tired and worried. Inside the Crime Office she saw a Fijian male on the floor, lying on a blue tarpaulin or mattress. He was not moving. She made a phone call and went back to her barracks. On her way to attend a police tribunal at 8am, she saw that the same man with the blue tarpaulin or mattress was being loaded into the back of GN174. The 1st Accused was driving and the 2nd Accused and the 6th Accused were sitting at the back.

WPC Maca Baleinimoto also said that she saw the 2nd and 6th Accused loading a body into the police van. She also saw DC Rusiate (the 4th Accused) standing outside the Crime Office.

Several extra-mural prisoners gave evidence. PW14 Koresi Wainiqolo said that he came to work at the station at 7am. He saw four CID men carrying a bag from the Crime Office, loading it into the twin cab and drive away. They were the 1st Accused, the 2nd Accused, the 4th Accused and the 6th Accused. He shouted to his friends outside the bure “someone is dead and is being loaded into the lorry.” He said that he thought the man was dead from the way he was thrown into the vehicle.

Another extra-mural prisoner Zarif Ali said that he was at the station from 6.55am on the 5th of June. He cleaned parts of the station. He was then told to clean the Crime Office by the 2nd Accused. He was told three times. When he went to the Crime Office, he saw human faeces and urine on the floor. The room smelt bad and he left. The 2nd Accused asked him again to clean the Crime Office. Later he saw the 4th Accused wearing hand gloves, cleaning the mess on the floor of the Crime Office. He then saw a police twin cab parked towards the bure. He saw two legs with blood clot marks on his feet on the open tray of the vehicle. Then he saw the 6th Accused push that person’s legs in, close the tray of the vehicle and jump in. Then the witness was told by the Sergeant to clean the mattress lying next to the sink. He cleaned it and put it back into the cell.

Another extra-mural prisoner Jimi Qailau arrived at Valelevu Police Station at 7am. He saw the 1st Accused lying down in the police bure. He saw a police officer “Jo” take a blanket and throw it onto a rubbish heap. The witness went to take rubbish from outside the Crime Office, and found a white bucket with wet underwear in it. He threw it onto the rubbish heap. He also saw the vehicle leave with the 1st, 2nd and 6th Accused in it. He did not identify the officer “Jo” as any one of the Accused.

Under cross-examination all the eye-witnesses who saw the loading of the deceased into the van, agreed that they could not say for sure whether he was alive or dead. Koresi Wainiqolo said that he believed the man to be dead because of the way he was thrown into the van, and because the officers had not opened the boot of the tray to put him in.

Under cross-examination Jimi Qailau said that when he made his police statement, he had told the police that Wainiqolo had told him that the deceased was “loaded” into the van. This was contrary to his court evidence during which he said he had been told by Wainiqolo that he had been “thrown” into the van.

The State called medical evidence from Dr. Balbinder Kuar, Elia Batibasaga and Emi Raceba. Dr. Kuar was on duty at the CWM Hospital from 8am on the 5th of June. At 8.30am the deceased was brought in on a trolley. She said that the patient had no life sounds, no breath and no heart sounds. The two men who brought him in were police officers who told her that the patient had been lying somewhere on the streets. She tried to resuscitate the patient but with no success. She declared him dead.

The Staff Nurse Raceba saw the deceased wheeled in by two men. One of them was the 1st Accused. The other was identified by a colleague as the 4th Accused.

Another nurse Elia Batibasaga saw the deceased at CWM Hospital when he was brought in on a trolley. He connected the deceased to an ECG monitor and saw that the tracing was a flat line. This meant that the deceased was dead. He saw no other sign of life and he told Dr. Kuar that the patient was dead on arrival. They tried to resuscitate him but with no success. He signed the Notification of Death form and noted that the deceased was “dead before arrival.” In his opinion, the deceased had been dead for “quite a while” because he was cold and clammy all over the body. He said perhaps for two hours or more. It was suggested in cross-examination that he lacked the qualification to make that assessment. He accepted this as fair comment.

Evidence was given by scene of crime investigators that when they arrived at the scene at Valelevu Police Station, the Crime Office had not been cordoned off. It had been cleaned but there were pieces of broken timber inside and outside the Crime Office.

ASP Tokowara Parker is ASP Crime Nasinu and is and was in June 2007, overall responsible for crime investigations in the Nasinu and Valelevu areas. At 7am, IP Ramasibana briefed him that the deceased had been arrested early in the morning. At 10am, IP Ramasibana informed him that the deceased had been taken to hospital. Later he was told that the deceased was dead. They went together to the CWM hospital with the 4th Accused who was driving. At the hospital, he saw black spots on the deceased’s stomach, back and legs. The deceased’s mother accused the 4th Accused as being one of the officers who had come to her home early in the morning and taken her son away. The 4th Accused denied this.

IP Ramasibana was in June 2007 the Crime Officer Valelevu. On the 5th of June 2007, he arrived at the Valelevu Police Station at 7am. After 8am, the 8th Accused Sgt. Pita Matai told him that they had brought the deceased, and that he had breathing difficulties and had to be taken to the hospital. Later he was informed by an officer at the Central Police Station that he should come to view a body. He went with ASP Parker and the 4th Accused.

The pathologist Dr. Prashant Samberkar gave evidence of the post-mortem. The deceased died of shock and internal hemorrhage, due to multiple bruises as a complication of multiple blunt impacts. There were 38 external injuries of bruises, abrasions and handcuff abrasions. There were two imprint abrasions on the back. He listed 16 internal injuries of extensive hematoma, fractured ribs (the 6th, 7th, 8th and 9th) and large areas of hematoma over the abdominal wall, and over the right and left feet. A histopathology report showed systemic shock and blunt trauma of the brain, lungs, heart, liver, spleen and kidneys. The sections showed diffuse congestion. He found the bruises on the deceased to be recent in origin. He found that the deceased died within 8 hours of examination. He described “blunt trauma” as the cause of most of the injuries which means a body striking a flat surface or irregular surface or an object, instrument or weapon striking the body. He described the handcuff abrasions as being caused by a tight ligature around the wrists. In describing the kind of force necessary to cause the injuries he found, he said that in his opinion there were multiple blunt impacts using an object, instrument or weapon such as a rod, flat wooden plank or multiple kicks to that area. In relation to some injuries such as injury 17, he said a fall could also have caused them. He was of the opinion that a flat wooden plank such as Ex. 13 could have caused the imprint abrasions. He described the injuries on the soles of the feet as “falanga” or repetitive blunt trauma to the soles of the feet. He said that this was found in police custody deaths, and was evidence of a torture technique.

Dr. Prashant was vigorously cross-examined by both defence counsel. He was asked how he could rule out that the deceased’s injuries could be caused by a motor vehicle accident. He said that in his opinion the injuries were caused by kicking, punching and falling, and were not consistent with motor vehicle injury. He also ruled out rugby as a cause of the injuries. In relation to the “falanga” injuries on the soles of the deceased’s feet, Dr. Prashant said that these injuries could not have been caused by running barefoot on a rough surface.

He was cross-examined about his visit to the scene with crime investigation. It was suggested that this visit deprived his findings of the necessary independence. He said that visiting the crime scene was one of the primary duties of the pathologists, and that pathologists all over the world visited crime scenes to help them in their findings on a post-mortem. He agreed that if Tevita Malasebe had died at the crime scene, police procedure was that he should have been left there and the scene cordoned off. From the information that this had not happened in this case, he assumed that death must have occurred on the way to hospital. However, he said that this was still a case of “death in police custody” because the police took the deceased to hospital. He said he did not direct the seizing of the wooden pieces of wood which in his opinion was consistent with the imprint abrasions, but he might have advised the police to uplift them.

In response to questions asked by me (the court) he explained rigor mortis, saying that it would normally set in (in Fiji) between 3-6 hours after death. In the case of the deceased there was no sign of rigor mortis. Describing the changes in the body after death, he said that for the first two hours after death, the muscles of the body relax. This is called suspended animation.

In relation to the age of injuries, he said that bruises remained bluish or crimson for the first 12 hours after the injuries were inflicted. Thereafter they turned violet, green, dark yellow then after 3-4 weeks, light yellow. In his examination-in-chief the doctor had said that the external injuries found on the deceased were bluish or crimson, which meant that they were recent in origin.

In further questioning by counsel, the doctor said that the expulsion of faeces from a person’s body would occur within the first 2 hours after death that is, during the period of suspended animation. He confirmed that when he conducted the post mortem, rigor mortis was present.

Cpl. Jioji Ravaqa gave evidence that he seized exhibits on the 5th of June 2007, including handcuffs (Ex. 14), 2 pieces of broken timber found in the Crime Office (Ex. 13) and outside the Crime Office window, and a blanket from the rubbish heap outside the police compound (Ex. 17).

The prosecution tendered caution statements of some of the accused. The 1st Accused said that on the night of the 4th of June 2007 he had been instructed by D/Sgt. Matai (the 8th Accused) to conduct a raid on the deceased’s house in Newtown. The raid involved three police vehicles. At the deceased’s house, he spoke to his mother. The deceased was handcuffed and taken to the police station. At the police station the 1st Accused arrived at the Crime Office. The deceased was already inside with the crime men who had escorted him. He said he then left believing that the proper procedures would be followed. He refueled the vehicle, came back to the station and slept inside the vehicle. He then gave the key to the vehicle to the 4th Accused who was outside in the verandah and went home. He came back to the station at 5.30am when the 2nd Accused woke him up. He lay down under the mango tree on a wooden platform. He was then instructed by the 8th Accused to go to the Criminal Records Office. On his way he was called back by the 8th Accused who told him to take the deceased to hospital. The 2nd, 4th and 6th Accused carried the deceased into the vehicle on the blue cell mattress. He drove to the hospital and dropped the deceased, the 4th and 6th Accused there. He then went to the Crime Records Office and went back to the station. He denied any knowledge of assault on the deceased.

There was no interview tendered for the 2nd Accused and you must not speculate about the reason for that. The 3rd Accused said he did not know anything about the interrogation of the deceased. However he admitted accompanying the other crime men and Strike Back team on the “raid” on the deceased’s house, saying he had gone voluntarily although he was not part of the team. He said that after escorting the deceased to the Valelevu Police Station, he went home in his car as he was very tired and sleepy. He came back to the Station after 8am.

The 4th Accused said that he was part of the “raid” on the deceased’s house and he was in the vehicle driven by the 1st Accused GN184. He said he did not go inside the deceased’s house guarding the informer. He said that the vehicle conveying the deceased arrived first at the Valelevu Police Station and he could not recall if the deceased’s name was entered in the cell book. He said that when he saw the deceased in the Crime Office, he was fully clothed wearing a white t-shirt with ¾ pants. He said he had not kept a record of the raid or of any interrogation of the deceased. He said he did not see anyone punching or kicking the deceased. He agreed that he had been in the Crime Office after the deceased was brought in, for about 30 minutes. He said that all the crime men who were involved in the raid were in the Crime Office, with some other police officers. They were laughing. After he reported off duty he went to sleep. Finally he said he saw no one kick or punch the deceased, that the deceased was involved in a robbery at the Valelevu Industrial and that the deceased had been in the getaway vehicle which had crashed into the sidewalk when a ten wheeler truck had reversed into it.

The 5th Accused denied that he had been the Recorder during the operations that night, and said he had no idea who had gone to raid the house of the deceased. He said he had not accompanied the raid team and did not know what time they had left. He said he did not know the deceased and he was not present when the 8th Accused briefed DCO Southern at 7pm about two suspects of the robbery including the deceased. He said that during the night he had prepared the docket on the case in the Computer Room and the Crime Officer’s office. The latter is on the top floor of the station. The Computer Room is next to the Crime Office on the ground floor. He agreed that he was on duty on the 4th of June and he later agreed that he had been at the briefing at 7pm with DCO (Southern). He said he had been instructed to prepare the docket for Jone Savui another suspect in the same robbery. At the same briefing, the 5th Accused came to know that the deceased was also a suspect.

The 6th Accused said in his statement that he was on duty on the 4th of June 2007 during the day. He said that he was at home during the night and in the morning he was detailed to take the deceased to hospital because he was sick.

There was no interview tendered for the 7th Accused and again you must not speculate about why this is the case. The 8th Accused told the police that he formed a team to investigate the robbery at Golden Manufacturers in Valelevu. The offence had been committed on 31st May 2007 at 10am. On 3rd June, Jone Savui was interviewed. He implicated the deceased. On 4th June 2007, a team from Strike Back was sent to Valelevu Police Station. They looked for the suspects and returned at 11pm. He told them to stand down but they asked to make another attempt to locate the suspects. While the 8th Accused was still at the station, the vehicle with the deceased in it, arrived. The vehicle was driven by Constable Matai. Escorting him were the 2nd Accused, 3rd Accused and Constable Setoki. He instructed them to lock the deceased in the cell and he would be interviewed by Constable Kalidole the next morning. He and Constable Kalidole left the station at 1.17am. At 5am, the 7th Accused came to his house and asked him to bring Constable Kalidole to the station. They went together to Waila at 6am. They brought Constable Kalidole back to the station and the 8th Accused instructed him to interview the deceased. After 7am, Constable Kalidole came to his home and told him the deceased was having breathing difficulties. The 8th Accused instructed the 1st Accused to return to the station to convey the deceased to the hospital. The 8th Accused saw the deceased lying on the floor of the Crime Office. He was carried into the vehicle and the 1st Accused drove him to the CWM Hospital. The 8th Accused briefed Crime Officer Ramasibana. After lunch he was told by Crime Officer that the deceased was dead.

In the same interview he said he saw the deceased arrive in a vehicle. He was handcuffed and looked well with no sign of weakness. He was escorted by the 2nd and 3rd Accused and Constable Setoki, into the Crime Office. He said that when he saw the deceased lying on the floor the next morning, the deceased was finding it difficult to breath.

That was the case for the prosecution.

At the end of the prosecution case, you heard me explain several options to the accused. They could have given sworn evidence, unsworn evidence or remained silent. They chose to remain silent as was their right. They had a right to remain silent because the burden to prove their guilt remains on the prosecution at all times. The accused do not have to prove anything. You must therefore, not draw any adverse inferences from the fact that the accused have chosen to remain silent.

From the cross-examination of the prosecution witnesses and from the submissions of defence, it is quite clear what the defence position is. In relation to the 1st to the 7th Accused it is that the 1st, 2nd, 3rd, 4th, 6th and 7th Accused were all part of a lawful arrest of the deceased. The defence position is that Tevita Malasebe was wanted by the police for questioning in relation to a robbery at the Golden Manufacturing Company on the 31st of May 2007. His name had been revealed by another suspect Jone Sovui. Malasebe was taken to the Crime Office at Valelevu Police Station, in handcuffs. He entered the Crime Office after midnight on the 4th of June. Thereafter the defence position is that there is no evidence that any of the accused assaulted him, or caused his death or were part of a joint plan to assault him.

In relation to the 1st Accused, he did not enter the Crime Office, slept in his vehicle and later went home. The next morning he was instructed to convey the deceased to the hospital.

The 3rd Accused said he was at home after the raid of the deceased’s house. The 4th Accused said he only entered the Crime Office for 30 minutes and that he never assaulted the deceased nor saw anyone else do it. The 5th Accused’s position was that he was the recorder that night and never entered the Crime Office. The 6th Accused’s position was that he was at home and was only instructed to take the deceased to hospital.

The 8th Accused’s position is that he saw the deceased arrive at the station and gave instructions that he be locked in the cell. He went home after arranging for his interview to be recorded the next day. When he saw the deceased the next day, he thought he had breathing problems and ordered that he be sent to hospital because he was still alive.

So the defence case is very clear. It is that there is doubt about Dr. Prashant’s independence from the police force, that Malasebe did not die in police custody as a result of police assault, and that even if he did so die, the Accused are not responsible, and for the 8th Accused, he did nothing to assist anyone who was responsible because he did not know that an offence had been committed.

As I have said before, this is not a case of direct evidence. No one is able to give evidence about what occurred in the Crime Office at Valelevu Police Station from midnight to about 6.45am to Tevita Malasebe. You must look at all the circumstantial evidence and ask yourselves what inferences you can draw from the evidence.

The prosecution position is that this was a joint enterprise to assault Tevita Malasebe at the police station, and that whether or not any of the Accused actually hit Malasebe they were all part of the unlawful plan to assault him. In law, a police officer is expected to prevent offences committed. Unlike the rest of us who have no such duty, a police officer cannot stand by and watch an offence being committed. If he watches it being committed, and it is within his power to stop it, and he does nothing to stop it, he is aiding and abetting a criminal offence and is as guilty of the offence as the perpetrator. But of course you must first be satisfied so that you are sure, that the officer was present when the offence was committed, and could have stopped it but did not, or alternatively that the officer was part of a joint plan to commit the offence. In the case of a joint plan, you must be satisfied so that you are sure that each accused had a common plan to assault.

The prosecution relies on the following pieces of evidence to prove the joint enterprise and the guilt of each accused:

The briefing at Valelevu Police Station at 11.30pm at which all the accused were present and were part of the investigation team.

 

The use of 3 vehicles to effect the arrest.

The statement of the 1st Accused to the deceased’s mother that he had to get back to the station to ensure that Tevita Malasebe was not assaulted by the police officers escorting him.

The failure of the escorting team to take the deceased into the charge room which would have been normal police procedure.

The fact that none of the police officers in the charge room knew that Malasebe was in the police station.

The fact that Malasebe was not locked in the cell to await interview.

The sounds of crying heard by several police officers, emanating from the direction of the Crime Office from between 1am to 4.30am.

The evidence of PC Qiolevu who heard a loud crying voice between 4 to 4.30am in the Crime Office saying “Officer please have mercy on me” and “Officer please let me live” which suggested police assault.

The evidence of the extra-mural prisoners and women police officers who saw the loading of the deceased into the police vehicle after 7am on the 5th of June, who saw injuries on the deceased’s legs, and some of whom said that in their opinion the deceased was dead.

The evidence from Dr. Kuar that one of the police officers escorting the deceased’s body said that the deceased had been found “lying somewhere in town.”

The cleaning of the Crime Office when it must have been obvious to the police officers that there would be a police investigation.

The throwing away of a blanket which smelt of faeces on a rubbish heap, the discovery of a wet pair of underpants in a bucket outside the Crime Office, and the presence of pieces of wooden plank inside and outside the Crime Office.

The presence of each of the Accused at the briefing at 11.30pm, and their presence at the station during the night, as well as the presence of four when Malasebe was conveyed to hospital.

The evidence of Dr. Prashant which is that the injuries on the deceased were consistent with multiple blunt trauma, consistent with handcuffs or wire restraining the wrists, consistent with beating with wooden planks causing imprint abrasions, and consistent with repeated injury on the soles of the feet causing “falanga” which he identified as a known police interrogation torture technique.

 

The prosecution says that all this evidence compels you to conclude beyond any reasonable doubt that the deceased Tevita Malasebe was brought to the station to be assaulted, that he was severely assaulted by police officers over a period of almost 4 hours with the use of wooden planks, kicks and punches while the deceased was handcuffed, that each of the 7 Accused 1-7, were part of that joint enterprise and did nothing to stop it and indeed tried to evade discovery of what had occurred by cleaning the crime scene and throwing away evidence, and that each is guilty of the murder of Tevita Malasebe.

In relation to the 8th Accused, the prosecution says that the 8th Accused knew that Malasebe had been at the police station all night, and must have seen the injuries on Malasebe which other witnesses have described as black marks on the legs and bruises all over the abdomen. Knowing what had occurred, he instructed the removal of Malasebe from the Crime Office thus assisting in preventing the offenders from being discovered. He also told IP Ramasibana, his superior that Malasebe had contracted breathing difficulties and had been taken to hospital, which the prosecution says, was untrue.

The defence position is, as I have described it, that the Accused were not at the scene, were not part of any joint enterprise and that all the evidence relied upon by the prosecution was done openly and not with any intent to hide evidence.

It is for you to decide whether you can draw inferences from the evidence and whether you are satisfied of the guilt of each Accused separately beyond reasonable doubt. In relation to some Accused, the prosecution led evidence which might indicate that they lied about details about that night. One example is the evidence of Dr. Balbinder that she was told by the two officers escorting the deceased that they had found him lying somewhere in town. The evidence of Staff Nurse Emi Raceba is that the two officers were the 1st Accused and an officer called Rusiate.

As a matter of law I must direct you that lies by the accused person can be considered by you to decide on the evidence in this case. However before you can do this, you must consider the following. Firstly you must be sure that what the accused said is a deliberate lie. Secondly you should remember that people lie for different reasons, sometimes out of nervousness for instance or to protect other people. It is only if he lied because of a consciousness of guilt that you may rely on the lie as evidence which strengthens the prosecution case. Thirdly you must be sure that the lie was about a material fact in the case.

I now turn to the case against each Accused.

The 1st Accused on his own statement to the police was the person conducting the “raid” on the deceased’s house. It was he who spoke to the deceased’s mother. The deceased’s mother said that he did not tell her the reason for the raid but said that he had to get back to the station to make sure the deceased was not assaulted. He was seen by Constable Mosese Kalidole, going into the Crime Office with the deceased. He was seen by WPC Saleshni Devi sitting in his vehicle outside the station. He was seen by Jimi Qailau an extra mural prisoner lying down in the police bure at 7am. He looked as if he had been up all night. Shortly after that the 1st Accused was instructed to take the deceased to hospital. According to the nurse, Emi Raceba, he was of the two who wheeled the deceased in and one of the two who spoke to her saying that they had been directed to bring the man in to hospital on the way to court. She had to ring Valelevu Police Station to find out his name because he was identified as “Mr. X.”

Does this evidence prove beyond reasonable doubt that the 1st Accused was part of a joint unlawful enterprise, to assault Malasebe? If so, was the death of Malasebe a probable consequence of the assault? And whoever assaulted Malasebe causing the injuries described by Dr. Prashant, did he do so with malice aforethought? That is with at least a knowledge that death or serious injury could be caused?

These are the matters for you to consider.

The 2nd Accused was identified by DC Amani as part of the arresting team. At the deceased’s house, the 2nd Accused also spoke to the deceased’s mother and the deceased was brought to the station with the 2nd Accused. Thereafter no one said that the 2nd Accused was seen at the station until after 7am when WPC Taraivini saw him sitting outside the Crime Office looking tired and worried. The deceased was lying on the floor in the Crime Office motionless. He was then seen loading the deceased into the police van. The evidence of Jimi Qailau and Koresi Wainiqolo was that the 2nd Accused was also in the van as it drove away. At 6.55am Zarif Ali was cleaning the station. According to him during the morning the 2nd Accused asked him three times to clean the Crime Office but it smelt badly of faeces and urine and he did not do it.

The questions for you are these: Was the 2nd Accused part of a joint unlawful enterprise to bring the deceased to the station to beat him? Was the deceased’s death as a result of the beating, a probable consequence of that joint enterprise? Did the Accused either take part in the beating or allow it to happen without stopping it? Could he have stopped it? Did those who beat him do so with knowledge that death or serious harm would probably be caused?

The evidence is that the 3rd Accused was present at the 11.30pm briefing, and during the arrest of Malasebe. According to DC Amani, the 3rd Accused was one of the 3 officers speaking to the deceased’s mother. Thereafter, no one identified him as being at the station. Nor was he identified as being present when the deceased was taken to hospital. In his caution statement, he said he had escorted the deceased back to the station but went home thereafter.

Was he part of a joint enterprise to bring the deceased back to the station to beat him? Even if he did not beat him himself, did he know that the deceased was being beaten and did nothing to stop it? Was the death of Malasebe a probable consequence of a plan to beat him? Was the assault on him done with malice aforethought?

The 4th Accused

The prosecution evidence is that the 4th Accused was also in the briefing meeting at 11.30pm and the arresting party which escorted the deceased to the hospital. Thereafter the mother of the deceased said that she saw him sitting outside the Crime Office when she was chased away from that part of the station at about 1am. She also said she saw him in the charge room whispering to a police officer and looking at her. Then she saw him again later the next day at the hospital.

In relation to this evidence, although the defence does not dispute that the 4th Accused was in the arresting party or at the hospital, it is disputed that he was seen by the deceased’s mother at the station at about 1am. So you have to consider the nature of this identification before you can accept it. In considering the evidence of identification, ask yourselves for how long she saw him, in what light, whether she had seen him before, and how accurately she described him. She was never asked to identify him in an identification parade, so she saw him she says, 4 times, once at her house, twice at the station and once at the hospital. Consider this evidence carefully because she identified him in court as the 4th Accused.

If you accept her evidence of identification of the 4th Accused to be reliable, and if you accept it, then the 4th Accused was seen at the station outside the Crime Office and in the charge room between 1am and 2am. He was seen by WPC Taraivini after 7am sitting outside the Crime Office with the 2nd Accused, looking tired and worried and with a Fijian man lying on the floor of the Crime Office, not moving. He was seen by extra-mural prisoners loading the deceased into the van, and after Zarif Ali failed to clean the Crime Office, he was seen by him to be cleaning the Crime Office of the faeces and urine on the floor, wearing hand gloves. This part of his evidence was not disputed by the defence.

According to Staff Nurse Emi Raceba, the name of Rusiate was given by one of her colleagues as one of the two officers who brought the deceased to the hospital. These were the two officers who told the doctor the deceased had been lying somewhere, that they did not know his name and they had been asked to drop him at the hospital on the way to court. And of course it is not disputed by the defence that the 4th Accused did go to the hospital with the deceased.

He was seen again at the hospital with ASP Parker and IP Ramasibana and when the deceased’s mother accused the 4th Accused as being one of the officers who had come to her home and taken her son away in the presence of these senior officers, the 4th Accused denied this.

In his caution statement however, he said he had taken part in the arrest of the deceased, that he saw the deceased inside the Crime Office fully clothed, and that he had been in the Crime Office for 30 minutes. He said he then reported off duty and went home.

Did the 4th Accused lie in the hospital about going to the deceased’s house? If so, why did he lie? Was he lying because of a consciousness of his own guilt, or for some other reason? Remember what I told you about lies. Before you can rely on it as a piece of evidence showing the Accused’s guilty knowledge, you must be satisfied so that you are sure that the Accused did deliberately lie, and that he did so out of guilt and not for any other reason and the lie was about a material fact in the case.

Taking the evidence into account together, is the guilt of the Accused the only reasonable inference you can draw? Was he part of a joint unlawful enterprise to bring the deceased to the station to beat him? And if so, was the death of Malasebe a probable consequence of that joint enterprise? Did the 4th Accused know the deceased was being beaten in the Crime Office, and did he encourage it by not stopping it? Could he have stopped it? Was Malasebe assaulted with malice aforethought?

The 5th Accused was, according to DC Amani, part of the briefing meeting at 11.30pm at which Sgt. Pita discussed the proposed arrest of Tevita Malasebe. The 5th Accused in his caution interview appears to have denied this at first, but later admitted it. Defence counsel in his closing submissions explained that he was only denying that he was told about the name “Tevita Malasebe.” DC Amani said that all the officers at the briefing went to the deceased’s house, but this was contradicted by Cpl. Simione Rarasea who said that the 5th Accused did not go with the arresting party. In his caution statement he said he did not go but spent time in the Crime Officer’s Office upstairs or in the Computer Room which is next to the Crime Office, working on Jone Sovui’s docket. He was on duty on the 4th of June according to his statement.

The prosecution evidence is that Cpl. Mosese Kalidole saw him talking to Sgt. Pita Matai (the 8th Accused) behind the Crime Office at about midnight before the deceased arrived. SC Ritesh Lal saw an officer whom he knew as “Jone” come out of the Crime Office at 4.30am an hour and a half after he heard a cry “wailei” in the Crime Office. This officer who told SC Lal to go to the other side of the station was not identified in court as the 5th Accused. PC Pita Qiolevu spoke to the 5th Accused at about the same time however, between 4 to 4.30am when sounds of loud crying could be heard from the Crime Office saying “Officer let me live.” He said he told the 5th Accused about this but he did not respond.

There is no further evidence of the 5th Accused at the station that night. However, if you accept the evidence of PC Qiolevu and the evidence of DC Amani, and Cpl. Kalidole, then you should ask yourselves whether the 5th Accused was part of an unlawful joint enterprise to assault the deceased. Did the 5th Accused know what was happening in the Crime Office? Did he stand by and let it happen when he should have stopped it? Was the death of Malasebe a probable consequence of a joint enterprise to beat him? Was Malasebe beaten with malice aforethought? Is the 5th Accused’s guilt the only reasonable inference you can draw from this evidence?

DC Amani said that the 6th Accused was present at the briefing and present at the arrest. There is no evidence that he was at the station thereafter, but he was identified by the WPC’s and the extra-mural prisoners as being one of the police officers who took the deceased to hospital. WPC Maca said it was the 2nd and 6th Accused who loaded the deceased and Zarif Ali said that the 6th Accused pushed the deceased’s legs into the vehicle after Ali saw the legs with black blood clots on them. In his caution statement he said he was at home at night on the 4th of June and came in to work in the morning.

Was the 6th Accused part of an unlawful joint enterprise to bring the deceased to the Valelevu Police Station to beat him? Is this the only reasonable inference you can draw from this evidence? Was the death of Malasebe the probable consequence of the joint enterprise? Was he beaten with malice aforethought?

DC Amani said that the 7th Accused was present at the briefing and present during the arrest. WPC Karti saw a CID officer she called Corporal Eremasi come into the charge room at 5am to bring a mattress out of the cell and into the charge room. She did not identify the 7th Accused in court. WPC Sesenieli Cagi saw a bald-head policeman in civilian clothes carrying a mattress between 2am and 3am. She did not identify any of the Accused as being this person. However you can see that the 7th Accused is not bald-headed at all.

That is the evidence in respect of the 7th Accused. Again on this evidence, is the only reasonable inference you can draw that the 7th Accused was a party to this joint enterprise? Was it he who brought the mattress into the Crime Office? Did he know therefore that Malasebe was being beaten in the Crime Office? Was he a party to it because he didn’t do anything to stop it? Was Malasebe beaten with malice aforethought? These are the questions for you to consider.

There is inconsistent evidence about the condition of the deceased at 7am on the 5th of June. DC Kalidole, DC Samuela and the 8th Accused in his interview all said that the deceased was alive and was taken to hospital. The evidence of the extra-mural prisoner and the WPC’s was that he looked dead. Elia Batibasaga said that when he saw the deceased at the hospital he was “cold and clammy.” His notes say that his body was stiff. Dr. Prashant said that the expulsion of faeces normally occurred in the first two hours after death. Zarif Ali said that there was faeces and urine on the floor. The seized blanket smelt badly of faeces. Which version of the evidence you accept is a matter for you.

However, if you accept that Malasebe was removed from the Crime Office on the 8th Accused’s orders when he was dead, then you must ask yourselves whether in giving this order the 8th Accused was knowingly assisting those who had committed an offence on Malasebe to help them to escape detection. IP Ramasibana’s evidence was that the 8th Accused told him the deceased had “breathing difficulties.” Was this a deliberate lie? Was it told to protect those who assaulted and killed Malasebe?

In his interview he said he did not see any injuries on Malasebe. Defence counsel say that he did not know any crime had been committed so he was not assisting anyone.

In asking yourselves whether the 8th Accused did knowingly assist the perpetrators of an assault on the deceased, you must ask yourselves what the 8th Accused knew on the morning of the 5th, whether he had seen the injuries on Malasebe described by ASP Parker, by the extra-mural prisoners, by the doctors and nurses at the hospital and by the deceased’s mother.

If he had known that an unlawful act had occurred in the Crime Office, then should he have preserved the crime scene for investigations? If the deceased was dead, should he have ordered his removal? And in not preserving the scene, was the 8th Accused knowingly assisting his men to evade detection? Are you satisfied of that beyond reasonable doubt?

These are the questions for you to consider.

Remember that in considering circumstantial evidence you must be satisfied beyond reasonable doubt that the only reasonable inference available to you is the guilt of the Accused before you can find them guilty. If you find that there are other reasonable inferences you can draw which are consistent with the Accused’s innocence or if you have a reasonable doubt about it, then you should find each not guilty.

Remember also to consider the case against each Accused separately.

Your possible opinions on each count are either Guilty or Not Guilty.

Nazhat Shameem

JUDGE

 

At Suva

22nd April 2008