State v Moce [1994] FJHC 83; Haa0158s.87s (19 July 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAA0158 OF 1987

STATE

v.

SAKEO MOCE

Counsel: Ms. S. Kaimacuata for State
Accused in person

Hearing: 18 & 19 July 1994
Summing Up: 19 July 1994

SUMMING UP OF PAIN J.

Gentlemen Assessors, it is now my duty to sum up this case to you. You will then be required to consider your verdicts. Each of you must give a separate opinion whether the accused is guilty or not guilty.

In coming to your decision you must apply the law as I explain it to you. It is my duty to regulate the procedure of the trial and direct you on the law. Those directions on the law must be followed by you.

However I do not decide the facts. That is for you. As I speak to you you may feel I have formed some view on a particular of question of fact. If you disagree with the version of facts that I appear to be expressing then please feel completely free to disregard my opinion. All matters of fact are for you and you alone. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject. You decide what facts are proved and what inferences you can properly draw from those facts. You then apply the law as I explain it to you and decide whether the verdict should be guilty or not guilty.

You must come to that decision solely upon the evidence you have heard from the witnesses. If you have previously heard anything about this case or the people involved through the media or some other source you must ignore that completely. The law requires that the accused is to be judged solely upon the evidence sworn to him in this court. In considering that evidence you are expected to apply your common sense and everyday knowledge of human nature and people You must please put aside any feelings of prejudice or sympathy which may occur to you one way or the other and arrive at your verdict calmly and dispassionately.

The charge against the accused is set out in the information that you have a copy of. This charge is brought by the State and the onus of proving it rests on the state from beginning to end. There is no onus on the accused at any stage to prove his innocence or to prove anything else. He does not need to give evidence. In this case he has chosen to do so but he still carries no onus. The law is that the State must prove the essential ingredients of the charge beyond reasonable doubt before there can be a verdict of guilty. That is the standard of proof I mean when I say throughout this summing up that the State must prove some matter. Proof beyond reasonable doubt. That is a classical phrase that you will have heard many times. Those words are clear and will be readily understood by you. They mean just what they say. A reasonable doubt is a doubt which you find is reasonable in the circumstances of this case. If after a full consideration of the evidence and bearing in mind the directions I give to you, you find the charge proved beyond reasonable doubt, your opinion must be guilty. On the other hand if you are left with a reasonable doubt your opinion must be not guilty. That standard of proof is something I suggest you should have particular regard to in this case.

The accused is charged with the offence known as robbery with violence. This is defined in the Penal Code as being committed by somebody who robs another person and at the time of or immediately before or immediately after such robbery uses or threatens to use personal violence to any person. In this case it is alleged against the accused that he robbed Darven Singh and at the time of such robbery used personal violence on Mr. Singh. There are two legal ingredients that must be proved for this offence.

1. That a robbery was committed and

2. That at the time of that robbery the robber used personal violence on another person.
   

I must explain these two matters to you. Robbery is really an aggravated form of theft. The theft is aggravated because it is carried out by using violence against the victim or putting the victim in fear of violence. There are three ingredients that must be proved to constitute robbery. First is proof of conduct by the robber which constitute violence to the victim or is sufficient to put the victim in fear of such violence. This could for instance be knocking the victim to the ground or merely raising a weapon and threatening to strike the victim. The second ingredient that must then be proved is that the robber took money or some other goods or property from the victim. It can either be taken from him personally such as a watch he is wearing or be property in his presence and under his immediate and personal care. The property must be taken away by the robber and this must be against the will of the victim. The third and final element that must be proved is a felonious or criminal intent on the part of the robber. He must using the violence or threat for the purpose of taking property with the intention of stealing it. That is taking somebody else's property that he has no right to with intent of permanently depriving the owner of it. So those are the three elements of robbery. Violence or threats to intimidate the victim, the taking of property and an intention to steal.

For the present offence of aggravated robbery the further ingredient that must be proved is that at the time of the robbery the robber actually used personal violence on another person.

The robbery is actually committed when the robber takes the property. It must be proved that at that time he used personal violence on another person. That is some actual violence to the other persons body. A common illustration of this would be a punch or a hit with a weapon. However it need not be that severe. Any degree of personal violence is sufficient.

That completes my explanation of the charge of robbery with violence. For the prosecution to establish this offence what must be proved is the robbery as I have described it and personal violence to some person at the time the robbery was committed.

If that offence is established then of course the prosecution must still prove that it was committed by this accused.

In this case the prosecution relies on the evidence of Mr. Singh the bus driver. If you accept his evidence about what happened it means that a man got into his bus and sat immediately behind him. When Mr. Singh was reversing his bus to turn at the bottom of Ragg Avenue this man punched him. It must have been a hard blow because it caused a momentary loss of consciousness or dizziness to Mr. Singh. The man then took the bag of the day's takings and ran off.

If this happened that man clearly used violence to steal the money. That violence was a personal assault by punching Mr. Singh at the time he stole the money. You could conclude that this was the crime of robbery with violence as I have explained it to you.

The question would then be whether the prosecution has proved that it was committed by this particular defendant. It would not be sufficient if the prosecution has merely shown that it might have been this accused or that it probably was him. Before you could conclude that he is guilty, it must be proved beyond reasonable doubt that it was him.

The Defendant denies committing the offence and he has given evidence on oath. I must remind you that when an accused gives evidence he assumes no onus of proof. That remains on the State throughout. This evidence must be considered along with all the other evidence and you can attach such weight to him as you think appropriate. You will generally find that an accused gives an innocent explanation and one of three situations then arises.

1. You may believe him and if you believe him then you must acquit him he did not commit the offence.
   
2. Alternatively without necessarily believing him you may say "Well that might be true". If that is so it means there is a reasonable doubt in your minds and so again you must acquit him.
   

The third possibility is that you reject his evidence as being untrue. If that is so then he has not discredited the evidence of the crown witnesses in any way. That does not mean that he is therefore guilty of the offence. The situation would be the same as if he had not given any evidence at all. The evidence of the prosecution witnesses must still prove that he committed the offence before he can be found guilty.

The prosecution case comes within a very narrow compass. Two very brief witnesses are relied upon. The prosecution says that Mr. Singh identifies the accused as the robber and the accused admitted this in his caution statement to Inspector Waisake. However I suggest that you should look very closely and critically at the evidence to see if this is so.

The accused is not represented by Counsel. I therefore have a duty to point out to you the weaknesses in the prosecution's evidence.

I deal first with the question of identification. The accused denies he was the person involved. In this case I must warn you of the special need for caution in considering the value of the identification evidence given by Mr. Singh. The reason for this is the danger that a wrong identification will cause a miscarriage of justice and there have been cases where this has happened. It is not a question of a witness being untruthful but mistakingly believing the person seen at the crucial time was the accused. With this genuine belief a mistaken witness can nevertheless be a convincing one. You must evaluate the evidence by examining all the circumstances to determine the strength or quality of the identification. It is for you to assess the value of the evidence that has been given. To do this you must closely examine the circumstances in which the alleged identification came to be made. Generally this will include such matters as how long did the witness have the person under observation. Was it a significant period or just a fleeting glimpse. At what distance and what light. How long elapsed between the original observation and any subsequent identification of the accused as that person. How was any subsequent identification made. Such matters as this go to quality of the identification evidence. The poorer the quality the greater the danger. The circumstances in which Mr. Singh saw the offender are that Mr. Singh was in the driver's seat of the bus. It was night time. The person entered the bus. He did not pay. The driver did not speak to him. The man just went straight in and sat behind the driver. Those circumstances you may think give very little time to observe the person. Mr. Singh said in his evidence that he had not seen the person since that day. That is over 7 years. In over 7 years he had never observed that man again. He was asked by the prosecutor if that man was in court and he said that he thinks it was the accused. Now Gentleman that is not a positive identification. And then when asked something further later he said that this was not because he actually recognised him but because he has a squint, something wrong with one eye. So he thinks it's him because he's got a squint. And that's the evidence. Not only did he not positively identify the accused but it was done in circumstances that make his evidence most unreliable in any event. It is what we called dock identification. I must warn you that any dock identification is notoriously suspect, particularly, when there has been no other identification since the time of the incident. You see a witness coming into court is expecting to confront the offender. He or she knows that a person has been charged with the offence and then there would be a natural tendency in those circumstances to assume the accused in court must be the offender. He has a special place in the courtroom and is easily identified. He is not selected out from a group of people and there is a danger that he may be identified because he is the person in court that the witness assumes must be the offender that the witness saw on the earlier occasion. For those reasons the evidence must be considered with great caution and in this case it has little or no probate of value. That is particularly so because such a long period of time has passed and the witness is not positive about the identification.

However the uncertainties of the identification of the accused do not stop there. What about an identification parade. That is the proper and reliable method of confirming identification. The accused says that it was never held. Inspector Waisake says it was held on the afternoon of the interview. He was the officer in charge of this case. He said the accused and the bus driver were there although he did not attend himself. Mr. Singh also said that it was held. This was said by him in his cross examination by the accused. That's the first mention that was made of an identification parade. He said he was taken to the Police Station to identify the person. You will remember I asked him to clarify what happened and he said, "I could not recognise the person". If an identification parade was held why did the police and prosecution not bring evidence about this. If you are satisfied it was held and Mr. Singh could not identify the accused, then this would surely support the accused's defence that he was not the man.

In all the circumstances I am bound to tell you that the prosecution evidence of identification is pathetically weak. There has been no positive identification. There are a number of unsatisfactory features in this evidence. It would be dangerous to found a conviction on it.

Turning now to the caution statement. The accused says that he did not say what has been recorded. But even if he did, does it really advance the prosecution case? You see, it is not sufficient for the prosecution to show that the accused committed a robbery of a bus driver. It must be proved that he committed the particular robbery on Mr. Singh on the 4th of April 1987. That is the charge that he is facing. There were some similarities between what is in the caution statement and what Mr. Singh said. It happened in Ragg Avenue. The bus driver was punched. Money was taken. But when the accused was interviewed, the specific details were not put to him and there are significant gaps. For instance the date and time were never put to the accused, to identify the particular incident that he was being interviewed about. The interview was on the 29th of June. The robbery occurred almost three months before on the 4th of April. The date and significant features of this robbery were never put to him to specifically identify the occasion that he was being interviewed about. Is it the police case that only one such robbery of a bus driver has ever taken place in Ragg Avenue? If so, well of course, there is no evidence been called by them to show that. And what about the location. In the statement that Inspector Waisake read to you, he put to the accused an allegation that the accused stole from a bus driver at the junction of Ragg Road and Verrier Road. That is what the answers must have been referring to. Yet the robbery of Mr. Singh occurred at the bottom of Ragg Avenue at the junction of the road we now know is Damu Road. Further the statement refers to two men committing this offence. Inspector Waisake told the accused, "you and another stole from a bus driver". The accused in the answers of which evidence has been given is alleged to have said, "I punched him then we robbed him. The second person I have forgotten his name". Yet Mr. Singh said that the robbery of him involved one person only. The accused put a question to him in cross examination. "How many men got on the bus and robbed you". Answer - one - Mr. Singh said he saw another man outside standing on the corner but he was not with the person who robbed him.

There were also other inconsistencies that the accused pointed out in Mr. Singh's statement to the police and his evidence. In all these circumstances if the accused was represented, his counsel would be making very strong submissions to you that whatever may be in the caution statement it has not been proved to relate to this particular charge.

That is all I need to say to you. You must now consider all the evidence and see if the charge has been proved against this accused beyond reasonable doubt. That is the standard that must be met before he could be found guilty. Your deliberations are done together but I remind you that on your return to court you will each be asked to give separately your opinion of whether the accused is guilty or not guilty.

Would you please now retire to consider your opinions. When you have made your decisions would you please advise the court officer and the court will reconvene to receive your opinions. Thank you.

JUSTICE D.B. PAIN

HAA0158S.87S