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High Court of Fiji |
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IN
THE HIGH COURT OF FIJI
AT
LAUTOKA
CRIMINAL
JURISDICTION
Criminal Case No: HAC 131 OF 2006
STATE
V.
WATESONI TABAKI NATA
Hearing: 22, 23, 24, 27, 28, 29, 30, 31October 2008 and 5,
6, 7, 10 November 2008.
Counsel: Ms V. Lidise and Mr. Vodokisomolone for
the State
Mr. Tunidau and Mr. Koya for the Accused
SUMMING UP
Ladies and Gentlemen Assessors,
It is now my duty
to sum up to you in this case.
1] Our function in this trial – that
is, my function as judge and your function as Assessors – have been and
remain quite
different. Throughout this trial the law has been my area of
responsibility, and I must now give you directions as to the law which
applies
in this case. When I do so, you must accept those directions and follow
them.
2] It is also my function to remind you of the prominent features
of the evidence. However, it has always been you responsibility
to judge the
evidence and decide all the relevant facts of this case. You and you alone must
decide what evidence you accept, what
evidence you do not accept and what
evidence you are not sure about; and when you come to consider your opinion, you
and you alone
must do that.
3] You do not have to decide every point
which has been raised; only such matters as will enable you to say whether the
charge laid
against the Accused has been proved. You will do that by having
regard to the whole of the evidence and forming your own judgment
about the
witness, and which evidence is reliable and which is not.
4] The
evidence consisted of the oral testimony of witness who were called to the
witness box.
5] The Accused chose to give evidence, and you must judge
that evidence by precisely the same fair standards as you apply to any other
evidence in the case.
6] You must decide this case only on the evidence
which has been placed before you. There will be no more. You are entitled to
draw
inferences, that is come to common sense conclusions based on he evidence
which you accept, but you may not speculate about that
evidence there might have
been or allow yourselves to be drawn into speculation.
7] The facts of
this case are your responsibilities. You will wish to take account of the
arguments in the speeches you have heard,
but you are not bound to accept them.
Equally, if in the course of my review of the evidence, I appear to express any
views concerning
the facts, or emphasis a particular aspect of the evidence, do
not adopt those views unless you agree with them; and if I do not
mention
something which you think is important, you should have regard to it, and give
it such weight as you think fit. When it comes
to the facts of this case, it is
you judgment alone that counts.
8] You are quite free to discuss the
evidence between yourselves before reaching your conclusions.
9] You may
only consider the evidence you have heard in this trial before reaching your
opinions whether the Accused is guilty
10] In closing addresses to you by
prosecution counsel and the defence counsel, the evidence in this case was
reviewed in great length.
I will not go over the evidence at great length again
as this must still be fresh in your minds. As far as their submissions are
concerned you must give them your best consideration. You have been told to use
your common sense and if I may add, your own personal
experience in dealing with
matters of importance in your daily affairs. It is for you to assess and
evaluate all the evidence from
which you will have to decide what are the true
facts in this case. It is only then will you be able to say where the truth
really
lies.
BURDEN AND STANDARD OF
PROOF
Burden of
Proof
11] In this case the prosecution must prove that the accused
is guilty. He does not have to prove his innocence. In a Criminal trial
the
burden of proving the accused guilt is always on the prosecution. There is no
burden on the accused to prove his innocence. The
accused was under no
obligation to give evidence and if, as in this case, he offered a defence to a
charge, it is not for him to
prove that defence, it is still for the prosecution
to prove that he is guilty.
Standard of
Proof
12] How does the prosecution succeed in proving the
accused’s guilt? The answer is – by making you sure of it. Nothing
less than that will do.
13] Before you are entitled to convict, the
prosecution must have proved each of the accused guilt beyond reasonable doubt.
If guilt
has been proved to that extent, then, and only then will it be your
duty to convict. Unless you are sure of guilt beyond any reasonable
doubt, it
will be your duty to acquit.
14] If after considering all the evidence
you are sure that the accused is guilty, you must return an opinion of
‘guilty’.
If you are not sure, your opinion must be ‘Not
Guilty’
15] This case is about a plan to blow up the Nadi Airport
Terminal Building in effort to destabilize the Mahendra Chaudry led government
who came to power after the 1999 General Election.
The Prosecution says
that JOSAIA WAQABACA initially went to the Western Division and met with
Navitalai Naisoro. At this meeting,
NAVITALAI NAISORO said to JOSAIA WAQABACA,
Joji Bakoso, Maciu Navakasuasua and some others that they had to destroy the
Nadi Airport
with explosives.
The Prosecution says that JOSAIA WAQABACA
later acquired some explosives from Maciu Navakasuasua, who they say delivered 9
gelignite
tubes placed inside a small carton to his home in Suva.
It is
the prosecutions case that JOSAIA WAQABACA was later instructed by NAVITALAI
NAISORO to go to Nadi and collect a payment of
$30,000 for the blowing up of the
Nadi International Airport.
JOSAIA WAQABACA then recruited Savenaca
Tomasi to help him with the job.
The Prosecution says that after JOSAIA
WAQABACA received a telephone call from NAVITALAI NAISORO who instructed him to
go to Nadi
and collect the $30,000, JOSAIA WAQABACA hired a renal car from
Central Rentals on the 5th August 1999, and drove with Savenaca Tomasi
to
Nadi.
When they arrived in Nadi on 5 August 1999, JOSAIA WAQABACA and
SAVENACA TOMASI went to the Nadi Airport and identified the electrical
switch
board room inside the terminal building which they thought would be the best
place to plant their bomb.
In relation to the 4th Count, the Prosecution
says that on 14 August 1999, JOSAIA WAQABACA and Joji Bakoso drove to Nadi in
Sakeasi
Butadroka’s car. The purpose of the trip was to plant explosives
in the terminal at Nadi International Airport.
While they were on their
way, JOSAIA WAQABACA received a call from NAVITALAI NAISORO who told them to
meet him at the Nadi Airport
club.
The Prosecution says that JOSAIA
WAQABACA arrived at the Nadi Airport Club at about 9pm, and that SAVENACA TOMASI
arrived by taxi
one hour later.
The Prosecution says that at sometime
after JOSAIA WAQABACA and SAVENACA TOMASI left the Nadi Airport Club, JOSAIA
WAQABACA dropped
SAVENACA TOMASI off at a bus stop so he could retrieve some
explosives which he had hidden nearby.
It is the Prosecutions case that
at about midnight, JOSAIA WAQABACA and JOJI BAKOSO stopped at a Shell Service
Station and purchased
3 containers of diesel, which they thought would
accelerate the fire from the impending explosion at the airport.
After
that, the Prosecution says that JOSAIA WAQABACA and JOJI BAKOSO continued to
drive around until they arrived at the Nadi Airport
at 2am. There they waited
for SAVENACA TOMASI to arrive. However, he did not show up.
The
Prosecution says at about 3.30am, JOSAIA WAQABACA and JOJI BAKOSO felt that they
could no longer wait for SAVENACA TOMASI, so
JOJI BAKOSO decided to take over.
JOJI BAKOSO then took the explosives into the Airport Terminal toilet, while
JOSAIA WAQABACA stayed
outside and kept watch.
After about 15 to 20
minutes, the Prosecution says that JOSAIA WAQABACA suddenly saw a dozen or so
Fijian women in the area, which
made him frightened. He realized that if there
was an explosion, all of these women would most likely die in the blast.
Believing that this would defeat his cause, JOSAIA WAQABACA rushed into
the Airport Terminal toilet and said to JOJI BAKOSO, who had
placed the
explosives on a toilet seat, that the plan was off!
The Prosecution says
that JOSAIA WAQABACA then took the explosives back to the car and left the
airport.
From the evidence you have heard, it appears that the fact that
JOSAIA WAQABACA and JOJI BAKOSO put the explosives at the Nadi Airport
Terminal
Building is not in dispute.
However, you must decide whether the facts I
have just mentioned are in fact proved, although you may have no difficulty in
deciding
that JOSAIA WAQABACA and JOJI BAKOSO did attempt to plant explosives in
the Nadi Airport, before they aborted their plan at approximately
3.30 or 4.30
in the morning on 15 August 1999.
It is the prosecution case that the Accused was
not present when JOSAIA WAQABACA attempted to destroy the Nadi Airport by
explosives,
but that he is nevertheless guilty of the offence because he
procured its commission. Procuring means that he intended that JOSAIA
WAQABACA
should commit he offence and took steps to ensure that he did, that is by paying
him $2000 to do so.
Before you can convict the Accused of this offence
you must be sure:
1. That JOSAIA WAQABACA in fact committed the offence of attempting to destroy property by explosives, contrary to Section 325 of the Penal Code, CAP 17 and
2. That either the Accused procured JOSAIA WAQABACA to do it in the sense that he set out to cause him to do it, and in fact either directly or indirectly did cause JOSAIA WAQABACA to do it; and
3. That the offence which of attempting to destroy property by explosives committed by JOSAIA WAQABACA was within the scope of what the Accused procured him to do.
The first count
20] The first matter that you must deal with in
this case is did the Accused procure JOSAIA WAQABACA on 6 August 1999 in Nadi,
to
unlawfully and with intent to destroy property, by putting explosives at the
Nadi International Airport Terminal building. Shown
as the First
Count.
In relation to the First Count, the Prosecution says that after
JOSAIA WAQABACA and SAVENACA TOMASI left the Nadi Airport on 5 August
1999, they
drove to Lautoka and spent the night in a room at the Waterfront Hotel. On the
next day, the 6th August 1999, JOSAIA WAQABACA
and Savenaca Tomasi drove to the
Dominion Hotel in Nadi to meet Navitalai Naisoro. [p.10]
When they
arrived at the Dominion Hotel, they were met by Navitalai Naisoro, who was
standing outside. NAVITALAI NAISORO told him
to meet him in room 121. JOSAIA
WAQABACA then parked the rental car outside of room 121. After that, JOSAIA
WAQABACA went inside
room 121, while SAVENACA TOMASI waited outside in the car.
The prosecution says that it was Navitalai Naisoro who opened the door
and let
him in. [p.11]
It is the Prosecutions case that initially, only JOSAIA
WAQABACA and NAVITALAI NAISORO were in room 121. However, Navitalai Naisoro
then
said to JOSAIA WAQABACA "this is where you
will see who will be the carrier of the money." After about 2 minutes,
the Prosecution says that the Accused entered the room from the sliding door and
pulled out a bundle of cash.
The Prosecution says that this is when the Accused
said there was $4,000 and that the rest would come later. The bundle of cash was
then thrown on the bed.
The Prosecution says that Navitalai Naisoro took
$2,000 and told JOSAIA WAQABACA to take the remaining $2,000 which he should use
to by the materials needed to blow up the airport. The Prosecution also says
that the Accused said that the best time to blow up
the airport was at 2.30am
because only 2 or 3 security officers would be around.
The Prosecution
says that this is when the Accused is alleged to have procured JOSAIA WAQABACA
to put explosives at the Nadi International
Airport.
The Prosecution
says that JOSAIA WAQABACA took the $2000 and gave $1000 to SAVENACA TOMASI so
that he could pay for materials to ensure
that the job was done well.
The law on first
count
The accused WATESONI TABAKI NATA is charged with the offence
of attempting to destroy property by explosives contrary to section 21(3)
and
section 325 of the Penal Code, CAP 17. He has pleaded "Not Guilty" to the
charge.
22] Before you can be satisfied that the Accused is guilty of the
first count, the Prosecution must prove the following elements or
ingredients
which constitute the offence:
1. A person in this case the accused
2. Procured
3. Josaia Waqabaca
4. To unlawfully
5. With Intent to destroy property
6. Put explosive substances at the Nadi International Airport Building.
23] The burden is throughout on the
prosecution to prove each
ingredient of the offence beyond reasonable doubt.
25] The
prosecution’s case is that the Accused, WATESONI TABAKI NATA committed
this offence.
26] Procure may mean to persuade, induce or influence. It
can also mean to aid, abet, or counsel. Now that you have heard the evidence,
you should make up your own minds as to what it means, decide what evidence you
accept as being truthful, and if that amounts to
"procuring".
The second matter that you must deal with is did the Accused on the 14th day of August, 1999 in Nadi, incited Josaia Waqabaca, Savenaca Tomasi, and Joji Bokoso to willfully and unlawfully set fire to the house of Krishna Chetty, the property of the Civil Aviation Authority of Fiji at the CAAF Compound in Namaka Nadi. Shown as the Fourth Count.
The
Prosecution says that when JOSAIA WAQABACA and SAVENACA TOMASI arrived at the
Nadi Airport Club on 14 August 1999, the Accused
was also there.
The
Prosecution says that JOSAIA WAQABACA,JOJI BAKOSO, SAVENACA TOMASI and the
Accused all left the Nadi Airport Club together. It
says that they left in
Sakeasi Butadroka’s car, and drove to a house in the CAAF compound.
The Prosecution says that while JOSAIA WAQABACA was driving Sakeasi
Butadroka’s car, the Accused, who was seated in the front
passenger seat,
pointed out the house of Krishna Chetty and said that they should burn it down.
The Prosecution says that this is when the accused incited JOSAIA
WAQABACA, SAVENACA TOMASI, and JB, to willfully and unlawfully set
fire to the
house of Krishna Chetty.
Before you can be satisfied that the Accused is
guilty of the Fourth Count, the Prosecution must prove the following elements or
ingredients
which constitute the offence:
1. That it was the accused
2. Who incited
3. Josaia Waqabaca or Joji Bakoso or Savenaca Tomasi
4. To unlawfully and with intent
5. Burn the house of Krishna Chetty
27] Your
approach to the case should therefore be as follows: if, looking at the case of
the accused, you are sure that he committed
either one or both the offence, is
guilty of that one, or both
offences.
28] Put
simply, the questions for you are:
1. did the Accused procure JOSAIA WAQABACA to plant a bomb at the Nadi Airport?
2. Did the Accused incite either Josaia Waqabaca or Joji Bakoso or Savenaca Tomasi to burn down Krishna Chetty’s house?
29] I
shall deal later in this summing up with the ingredients of the offence of
murder, and the matters which the prosecution must prove
in order to establish
murder. But it suffices for the moment for me to say that the key questions that
you will have to address in
this case are these:
1. Has the prosecution proved that the Accused intended to kill the deceased or to cause her really serious bodily harm? If that is not proved, the 1st accused cannot be guilty of murder. You would then return an opinion of Not Guilty of murder.
30] The case for the
prosecution is that the Accused
is accused, Abdul
Ahmed Ali and Roshni Devi, acting together killed Rukhmani, the deceased. The
particulars of the offence alleged
against them are as follows:
37] Under
the Penal code is committed when 40]The prosecution rely on two main aspects of
the evidence in this case namely –
1. The testimony of JOSAIA WAQABACA and SAVENACA TOMASI; and
2. The expert evidence of Immigration oficers.
41] The prosecution relies on the evidence of 19 witnesses.
The prosecution called a total of 19
witnesses.
In some instances,
the prosecution relies on what is called circumstantial evidence. This is
evidence, when connected with other evidence,
portrays one picture and a very
clear one at
that.
Evidence of
Josaia Waqabaca PW1 and Savenaca Tomasi PW3 .
Both of these witnesses
were granted immunity against prosecution. They are also accomplices to the
offence.
His lordship
will give you certain directions in relation to their
evidence.[p5]
PW
1
The prosecution says that Josaia Waqabaca’s evidence sets
the scope of the events relevant to this case.
He gave evidence of how
he was a member of the Fijian Nationalist Party who did not accept Mr.
Chaudry’s leadership, after he
won the general election in 1999.
As a result, several meetings were held, the first at Flagstaff in Suva
at the house of Joji Bakoso. There they met to discuss their
desire to cause
instability within Suva, through rioting and burning. He also described how he
travelled to the Western Division
with a person called Peceli Vuniwa to look for
someone called Maciu Navakasuasua, who they believed would supply them with some
explosives.
JOSAIA WAQABACA also described a subsequent meeting at the
home of Navitalai Naisoro.
At that meeting, NAVITALAI NAISORO announced
to him, Joji Bakoso, Maciu Navakasuasua and some others that they needed to
destroy the
Nadi Airport, by placing explosives there.
JOSAIA WAQABACA
said that acquired explosives from Maciu Navakasuasua, who delivered them to his
home in Suva. The explosives comprised
of 9 pieces of gelignite tubes which he
kept in a small carton.
JOSAIA WAQABACA explained that he received
several calls from NAVITALAI NAISORO. In one of the phone calls, he said that
NAVITALAI
NAISORO told him to go to Nadi to pick up $30,000 for the blowing up
of the airport. However, by this time, JOSAIA WAQABACA said
that he had already
decided that he would blow up the Nadi Airport, so the payment was just like
"butter on bread" which he accepted.
He then recruited Savenaca Tomasi,
to help him with the job. JOSAIA WAQABACA said that he knew SAVENACA TOMASI
because he was a member
of Fiji National Party, and because he was a
soldier.
After that meeting, he received another call from Navitalai
Naisoro who told him to go and pick up the money from Nadi. On 5 August
1999,
JOSAIA WAQABACA hired a car from Central Rentals and drove to Nadi with Savenaca
Tomasi. He said they reached Nadi at about
midday that day.
JOSAIA
WAQABACA explained that when they got to Nadi, they drove directly to Nadi
Airport. When they got there, they went to the men’s
toilet in the
departure lounge. Behind the toilet block, they found a small room which had an
electrical box, or the main power line.
They decided that this was the best
place for the blast.
JOSAIA WAQABACA explained that from there, they
drove to Lautoka and booked a room at the Waterfront Hotel where they spent the
night.
On the next day, 6th August 1999, JOSAIA WAQABACA and Savenaca Tomasi
left Lautoka for Nadi, and drove to the Dominion Hotel where
JOSAIA WAQABACA
planned to meet Navitalai Naisoro.
JOSAIA WAQABACA said that when he and
SAVENACA TOMASI arrived at the Dominion Hotel, they where met by Navitalai
Naisoro, who was
standing at the front of the entrance car park. NAVITALAI
NAISORO told them to drive their car around to room 121, which JOSAIA WAQABACA
did. JOSAIA WAQABACA said that he parked the car just outside of room 121.
JOSAIA WAQABACA said that although he wanted SAVENACA
TOMASI to go inside room
121 with him, SAVENACA TOMASI said that he would wait in the car. When JOSAIA
WAQABACA went inside room
121, he said that it was Navitalai Naisoro who opened
the door for him.
JOSAIA WAQABACA said that at first, there was only him
and Navitalai Naisoro inside the room. However, Navitalai Naisoro said him
"this is where you will see who will be the
carrier of the money."
After about 2 minutes, he saw the Accused
enter the room from the sliding door. When he saw the Accused he thought he was
just coming
to visit or passing by. JOSAIA WAQABACA said the Accused entered
room 121 and pulled out a bundle of cash notes. JOSAIA WAQABACA
said that he
then heard the Accused say that there was $4,000 there and that the rest would
come later. This money was then thrown
on the bed.
JOSAIA WAQABACA said
that Navitalai Naisoro took $2,000 and told JOSAIA WAQABACA to take the
remaining $2,000 and said it was enough
to purchase additional materials needed
to blow up the Nadi Airport. JOSAIA WAQABACA also said that he heard the Accused
say that
the best time to blow up the airport was at 2.30am because there would
only be about 2 or 3 security officers around.
JOSAIA WAQABACA said that
he knew the Accused because their fathers were brothers.
JOSAIA WAQABACA
also said that at about 11 pm on 14 August 1999, after he had been at the Nadi
Airport Club, he drove the Accused,
JOJI BAKOSO and SAVENACA TOMASI in Sakeasi
Butadroka’s car to a house in the CAAF compound. JOSAIA WAQABACA said that
while
he was driving, the Accused who he said was seated in the front passenger
seat, pointed out the house of Krishna Chetty and said
that they should burn
that house down too because he was a cheeky Indian. However, JOSAIA WAQABACA
said that he was not interested
as he was headed for a bigger job at the Nadi
Airport.
After that, JOSAIA WAQABACA said that he dropped the Accused off
at his home in the CAAF compound. He said that he then dropped SAVENACA
TOMASI
off at a bus stop so that he could retrieve some explosives he had hidden
nearby.
JOSAIA WAQABACA said that at about 12pm, he and JOJI BAKOSO
stopped at a Shell Service Station and bought 3 containers of diesel,
which they
thought would help spread the fire at the airport. Following that, JOSAIA
WAQABACA said that he and JOJI BAKOSO continued
to drive around until they
eventually arrived at the Nadi Airport at 2am. JOSAIA WAQABACA and Joji Bakoso
waited in the car until
about 3.30 for SAVENACA TOMASI to arrive. However,
SAVENACA TOMASI did not show up.
JOSAIA WAQABACA said that at about
3.30am, he and JOJI BAKOSO felt that they could no longer wait for SAVENACA
TOMASI, so JOJI BAKOSO
decided to take over. JOJI BAKOSO then took the
explosives into the Airport Terminal toilet, while he stayed outside and kept
watch.
After about 15 to 20 minutes, JOSAIA WAQABACA said that he
suddenly saw a dozen or so Fijian women in the area, which made him frightened.
He realized that if there was an explosion, all of these women would most likely
die in the blast. He also said that he felt as though
the momentum to get the
job done had been lost.
Believing that this would defeat his cause,
JOSAIA WAQABACA said that he rushed into the Airport Terminal toilet and said to
JOJI
BAKOSO, who had placed the explosives on a toilet seat, that the plan was
off!
JOSAIA WAQABACA then took the explosives back to the car and left
the airport on his own. He said at this point, he and JOJI BAKOSO
went their
separate ways.
PW2
The
Prosecution also relies on the evidence of Ratu Keni Naulumatua. He described
the Accused as a hardworking and good man. He said
that the Accused took him to
the Dominion Hotel on the 13th of August 1999.
Ratu Keni Naulumatua said
that when they got there, they went to room 11, and this is where he saw
Navitalai Naisoro. He also said
that he saw a carton of explosives, which he
described as "gel" along with a detonator which he said Joji Bakoso was
handling.
PW3
Savenaca
Tomasi also gave evidence. He said that he was in the infantry battalion of the
army. He said that he knew JOSAIA WAQABACA
through an organistion called the
Nationalist Manasa Moce.
SAVENACA TOMASI said that JOSAIA WAQABACA came
to his home and asked if he would go with him to the Nadi Airport to collect
some money.
When he agreed, SAVENACA TOMASI said that JOSAIA WAQABACA picked him
up in a white rental car on the 5th of August 2008 and that
they drove to Nadi.
SAVENACA TOMASI said when they reached Naboro, JOSAIA WAQABACA explained
that the reason why they were going to Nadi was to collect
a big sum of money
that they were going to be paid for destroying Nadi Airport.
SAVENACA
TOMASI said that when they got to the Nadi Airport, JOSAIA WAQABACA took him to
a room which he said was the best place to
put the explosives because it
contained the main power supply. After that, they went to the Waterfront Hotel
and spent the night
there.
SAVENACA TOMASI said that when they arrived at
the Dominion Hotel on 6 August 1999, JOSAIA WAQABACA went inside the room, while
he
waited outside in the car. He said that JOSAIA WAQABACA was inside the room
for about 20 or 30 minutes. After that, when JOSAIA WAQABACA
came out, he
remembers seeing that someone else who JOSAIA WAQABACA said was the
Accused.
SAVENACA TOMASI also said that while they were driving through
the CAAF compound on 14 August 1999, the Accused pointed to a house
and said
that is one of the targets which is to be burnt down too.
After that,
SAVENACA TOMASI said that he was dropped of on the main road near the Numuca
public school. After he was dropped off,
he got on a Mini bus which took him to
Suva.
PW8
The
prosecution also called Ronald Anil Kumar, who was the night manager of the
Dominion Hotel in August 1999. Mr. Kumar confirmed
that on the 5th of August
1999, rooms 121 and 122 where booked in the name of Navitalai Naisoro. The
registration card for room 121
and the invoices for the room were tendered by
the Prosecution and marked
P8.
PW15
The Prosecution
also called Vidya Prasad, the accountant for Central Rentals, a rental car
company in Suva. Mr. Prasad confirmed that
Josaia Waqabaca was a regular
customer of theirs. He confirmed that the bundle of Central Rental Car receipts
and Agreement No. 2953
which were tendered by the prosecution and marked P14
were authentic, and they did come from his company.
Mr. Prasad explained
that the Agreement No. 2953 showed that on the 3rd of August 1999 Josaia
Waqabaca rented two cars CX163 and CQ436.
He also said that this Agreement was
extended until 18th August 1999.
In reply to the Accused claim that he
was in Australia from the 5th August 1999 until 19th August 1999, the
Prosecution tendered records,
which it says relate to the Accused travels at
this time.
The first of these documents is marked exhibit P13. It is the
travel history of the Accused from the 10th of July 1999 to the 19th
of August
1999. In that bundle, there is a Departure Card which says that the Accused
departed Fiji for Australia on 15th of August
1999 on flight FJ911/QF392.
The Prosecution also tendered the passenger flight list for 15 August
2008 which was marked exhibit P19. The Prosecution says this
list shows that on
15th of August 1999 the Accused traveled to Australia on Flight FJ911/QF393.
In support of this evidence, the Prosecution also called two Immigration
Officers who gave evidence on the entries in the Accused
passport and in
relation to his travel records.
PW14
Naibuka Vuli a senior Immigration Officer: and
PW17
Josua Mucunabitu
the Acting Immigration Manager – Western Division.
Both of these
witnesses explained that the travel records were generated from their database.
They said that the information was generated
from passenger departure and
arrival cards which are filled out by passengers when they travel.
Both
of these witnesses said that the Departure cards show that the Accused departed
Fiji for Australia on the 15th of August 1999
on flight FJ911/QF392.
In
addition to this, PW14 Naibuka Vuli, said that based on the Accused departure
and arrival cards, he was in Fiji from the 30 of
July until the 15th of August
1999.
When asked to comment on the accuracy of the records kept by Fiji
Immigration, Naibuka Vuli conceded that Fiji probably had the worst
system in
the world.
PW18
The
prosecution also called D/Cpl George Lagi, a Police officer with 18 years of
experience in the Police Force. He explained that
on the 30th of January 2006 he
together with others conducted a search at the Waterfront Hotel and uplifted
Waterfront Hotel Tax
invoice No. 322257M. This document was tendered by the
prosecution and marked exhibit No. P.20. It shows that on the 5th of August
1999
Josaia Waqabaca booked room 103 at the Waterfront Hotel and checked out on
06/08/99. The number of persons listed for the room
was 2.
EXPERT
EVIDENCE
58] In
this case you have heard the evidence Immigration Officers, who were called as
experts on behalf of the prosecution. Expert
evidence is permitted in a criminal
trial to provide you with scientific information and opinion, which is within
the witness’
expertise, but which is likely to be outside your experience
and knowledge. It is by no means unusual for evidence of this nature
to be
called; and it is important that you should see it in its proper perspective,
which is that it is before you as part of the
evidence as a whole to assist you
with regard to one particular aspect of the evidence, namely what caused
Rukhmani’s
death.
59] A
witness called as an expert is entitled to express an opinion in respect of her
findings or the matters which are put to her;
and you are entitled and would no
doubt wish to have regard to this evidence and to the opinion/s expressed by the
experts when coming
to your own conclusions about this aspect of the
case.
60] You should bare in mind that if, having given the matter
careful consideration, you do not accept the evidence of the expert,
you do not
have to act upon it. It is for you to decide whose evidence, and whose opinions
you accept, if any. You should remember
that this evidence relates only to part
of the case, and that whilst it maybe of assistance to you in reaching your
opinion, you
must reach your opinion having considered all the
evidence.
The Defence
When informed of his rights in this Court, the
Accused elected to give evidence on oath although there was no obligation on him
to
do so.
65] As I said earlier the burden is on the prosecution to
prove the case against the Accused beyond reasonable doubt.
66] But
having elected to give evidence, the Accused evidence must be considered and
evaluated and be taken into account along with
all other evidence presented in
the case so you may decide where the truth lies.
67] Now the evidence of
the Accused can have one of three possible effects on the case as a
whole.
68] His evidence may have the effect of satisfying you that he did
not procure or incite in which case you will express the opinion
that the
accused is not guilty as charged: OR
69] His evidence may have the effect
of creating in your minds a reasonable doubt as to whether or not he procured or
incited in ch
case also you will express the opinion that the accused is not
guilty as charged; OR
70] His evidence may have the effect of satisfying
you beyond any reasonable doubt that he procured and incited which case you will
express the opinion that he is guilty as charged.
71] The Accused denies
that he was at the Dominion Hotel with JOSAIA WAQABACA and NAVITALAI NAISORO on
6 August 1999. He also denies
that he was at the Nadi Airport Club on 14 August
1999.
In support of his denials, the Accused relies on a stamp on page 18
of his Passport (Defence Exhibit D2) which he says shows that
he arrived in
Australia on 5 August 1999. He also relies on a stamp in his passport at page 33
which shows that he departed Australia,
from Sydney Airport, on 19 August, 1999.
The Accused says that he was in Australia between these two
dates.
The Accused relies on the fact that because his passport does not
show a departure stamp for either 5 August 1999, or 15 August 1999,
the
irresistible inference is that on both dates he was in a country other than
Fiji. The Accused says that when he arrived in Australia
on 5 August 1999, he
must have done so from a country other than Fiji.
The Accused also says
that as there is no arrival stamp for Fiji, following his departure from
Australia on 19 August 2008, one must
irresistibly infer that when he left
Australia on 19 August 1999, he did not go to Fiji, but to another
country.
Therefore, the Accused says that he was not Fiji when he is
alleged to have been in room 212 of the Dominion Hotel on 6 August 1999,
and
handed money to NAVITALAI NAISORO and JOSAIA WAQABACA as payment to plant
explosives in the Nadi Airport Terminal building.
The Accused also denies
that he was in the Nadi Airport Club with JOSAIA WAQABACA and JOJI BAKOSO on 16
August 1999. The Accused denies
that he left the Nadi Airport Club with JOSAIA
WAQABACA, JOJI BAKOSO and SAVENACA TOMASI and suggested to them that they should
burn
down the house that Krishna Chetty lived in, while they were driving
through the CAAF compound.
As the prosecution has to prove his guilt so
that you are sure of it, the Accused does not have to prove that he was
elsewhere at
the time. On the contrary, the prosecution must disprove this
aspect of his defence.
81] Even if you conclude that this part of the
accused Defence is false, that does not of itself entitle you to convict him.
The prosecution
must make you sure of his guilt.
The Accused also relies
on the confession statement marked as exhibit D1 which was signed by JOSAIA
WAQABACA on 3 January 2006. In
this statement, he retracts the statements he had
previously made regarding the involvement of the Accused and a number of other
people alleged to have been involved in various illegal activities.
In
this statement, JOSAIA WAQABACA said that his previous statements were false,
and that they were only made in an attempt to assist
Maciu Navakasuasua with his
application for Australian residency.
During the cross-examination of
Savenaca Tomasi, the Defence referred to his previous statement which was
tendered by it and marked
as Defence exhibit D5, with its English translation
marked as D5A.
In that statement, Savenaca Tomasi said at question 78
that after Josaia Waqabaca ask him at the Nadi Airport Club if he was willing
to
blow up various things, such as the Aircraft Hanger or the Terminal, or to kill
Chetty, he said that he was not and that he immediately
left the Club and headed
straight to Suva. The Defence says that this evidence is inconsistent with the
evidence that he gave in
Court.
Specific Directions
Circumstantial
Evidence Direction
Reference has been made to the type of evidence
which you have received in this case, and it has been labeled
‘circumstantial
evidence;, and the point has been made that there is no
direct evidence which proves the defendant guilty of this offence. The position
is this:
Sometimes a jury is asked to find some fact proved by
direct evidence. For example, if there
is reliable evidence from a witness who actually saw a defendant commit a crime;
if there is a video
recording of the incident which plainly demonstrates his
guilt; or if there is reliable evidence of the defendant himself having
admitted
it, there would all be good examples of direct evidence against him.
On
the other hand it is often the case that
direct evidence of a crime is not
available, and the prosecution relies upon
circumstantial evidence to prove guilt.
That simply means that the prosecution is relying upon evidence of various
circumstances relating to the
crime and the defendant which they say when taken
together will lead to the sure conclusion that it was the defendant who
committed
the crime.
[It is not necessary for the evidence to provide an
answer to all the questions raised in a case. You may think it would be an
unusual
case indeed in which a jury can say ‘We now know everything there
is to know about this case’. But the evidence must
lead you to the sure
conclusion that the charge which the defendant faces is proved against
him.]
Circumstantial evidence can be powerful evidence, indeed, it can be
as powerful as, or even more powerful than, direct evidence, but
it is important
you examine it with care --- as with all evidence----and consider whether the
evidence upon which the prosecution
relies in proof of its case is reliable and
whether it does prove guilt, or whether on the other hand it reveals any other
circumstances
which are or may be of sufficient reliability and strength to cast
doubt upon or destroy the prosecution case.
Finally, you should be
careful to distinguish between arriving at conclusions based on reliable
circumstantial evidence, and mere
speculation. Speculating in a case amounts to
no more than guessing, or making up theories without good evidence to support
them,
and neither the prosecution, the defence nor you should do
that.
During the trial certain exhibits were tendered. You are free to
consider them during your deliberations.
You have undertaken to try the
case according to the evidence. If a witness comes to court and states what did
or did not happen,
that is evidence of what did or did not happen. Whether you
accept that evidence or not is another matter; but in law it has the
status of
evidence of what he asserts.
On the other hand, if on a previous
occasion, not in this court before you the witness stated what did or did not
happen on a particular
day, that is not evidence that he in fact saw that event.
It is merely evidence that that is what he asserted at some earlier
time.
Previous Inconsistent
Statements
It is suggested by the Defence that previous statements
made by Josaia Waqabaca and SAVENACA TOMASI are inconsistent with the evidence
they gave in this court.
In examining suggested inconsistencies, you
will wish to decide, first, whether there is in fact and in the true context, an
inconsistency;
and if you decide that there is one, you will wish to decide
whether it is material and relevant or, on the other hand insignificant
or
irrelevant.
If there is an inconsistency, it might lead you to conclude
that this witness is generally not to be relied upon; alternatively that
part
only of his evidence is inaccurate; or you may accept the reason he has provided
for the inconsistency and consider him to be
a reliable witness.
IRRELEVANT/EMOTIVE
CONSIDERATION
Do not be sidetracked in your task by irrelevances.
Your task is to reach an opinion according to the evidence, not according to the
newspaper reports, or to prejudices, or to irrelevant sympathies. This trial has
given rise to some publicity. But you do not decide
the case on publicity, for
publicity is not evidence.
98] If after considering all of the evidence
in this case you are not satisfied that the Accused procured Josaia Waqabaca to
unlawfully
and with intent to destroy property, put explosives substances at the
Nadi International Airport Terminal Building, or if you have
any reasonable
doubt about the matter, then it will be your duty to express the opinion that he
is not guilty of this charge.
99] Only if you are satisfied beyond reasonable
doubt from the whole of the evidence that the Accused is guilty of this charge
will
you express the opinion that the Accused is guilty of this offence for
which he now stands trial.
In relation to the Fourth Count, you do not
have to be satisfied that the Accused incited Josia Waqabaca, and Savenaca
Tomasi, and
Joji Bakoso to willfully and unlawfully set fire to the house of
Krishna Chetty. All the Prosecution needs to do is prove to you
beyond a
reasonable doubt that the Accused incited any one of them.
If after
considering all of the evidence in this case you are not satisfied that the
Accused procured Josaia Waqabaca or to unlawfully
and with intent to destroy
property, put explosives substances at the Nadi International Airport Terminal
Building, or if you have
any reasonable doubt about the matter, then it will be
your duty to express the opinion that he is not guilty of this
charge.
99] Only if you are satisfied beyond reasonable doubt from the
whole of the evidence that the Accused is guilty of this charge will
you express
the opinion that the Accused is guilty of this offence for which he now stands
trial.
CONCLUDING
DIRECTIONS
100] You should strive to reach a unanimous opinion,
that is, an opinion upon which you all agreed; whether guilty or not guilty.
101] You will not be asked to give reasons for your opinions, but merely
your opinion itself and your opinions need not be unanimous
although it would be
desirable if you could agree on them.
102] Your opinions are not binding
on me but I can tell you now they will carry great weight with me when I come to
prepare and deliver
the judgment of the Court.
103] On your return to
court, you will each be asked for your opinion.
104] When you retire you
will be taken by my Clerk to your deliberating room. If after your retirement
you require assistance upon
a matter of law, or wish to be reminded of some
evidence, you should please write your question or request on paper and hand
that
paper to my Clerk. You will then be called back to court to deal with the
matter, though there may be a little delay before you are
brought back, because
I shall need to recall counsel and discuss the issue raised with them.
The Clerk will at all times be outside your room. Please do not, on any
account, discuss with him any aspect of the case or procedure
nor ask him any
questions unless it be to ask him to deliver an exhibit to you or to deliver a
written question to me.
Refreshments and lunch will be brought to you,
and it would be irregular for you to split up or go out for any other purpose.
Nor
may you telephone from the Assessors room. I would be grateful if you would
leave mobile telephones with my Clerk and not take them
into the Assessors room
with you.
When you retire, take with you the notes which you have been
making as well as the exhibits.
That is all I wish to say in the way of summing up to
you.
Anthony
J
Sherry
Judge
At Lautoka
10 November 2008
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