State v Tuilaselase - summing up [2005] FJHC 573; HAC0023.2004L (16 August 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0023 OF 2004L

THE STATE

V

PENIASI TUILASELASE

Mr. N. Nand for the State
Accused in Person

Date of Hearing: 16 August 2005
Date of Summing Up: 16 August 2005

SUMMING UP

Ladies and Gentleman Assessors,

We have now arrived at the stage of the trial, where I am required to sum up to you.

During the course of this summing up, I shall give you directions on the law and you are bound to accept those directions. On matters of fact, you are free to make up your own minds and reach your own conclusions.

If I appear at any stage to be expressing any view of the facts, you should reject such view unless you yourselves are of the same opinion. If I omit to mention evidence which you think is important you must take it into account, just as if I stress evidence which you think is unimportant, you must disregard the fact that I stressed it.

In arriving at your conclusions, you must have regard only to the evidence you have heard in this case. You must discount anything you may have heard from the media or outside the courtroom and you must ignore any advice or suggestions that may have been made to you. You must also put aside any feelings of horror or revulsion or sympathy either for the accused or the victim. You must base your opinions on your own objective analysis of the evidence.

In assessing the evidence, you are at liberty to accept the whole of a witnesses evidence or accept part of it and reject another part or reject the whole. In deciding on the credibility of any witness, you are to take into account not only what you heard but what you saw. You should take into account the manner in which he or she gave evidence. Was he or she evasive, how did he or she stand up to cross-examination? You are to ask yourselves was the witness honest and was the witness reliable.

Of course in any trial, there are bound to be some inconsistencies in the evidence of a witness and inconsistency with others. You are to ask yourselves did the inconsistencies, if any, relate to peripheral matters or did the inconsistency go to the core of the witnesses evidence and was it of sufficient significance to affect his credibility.

At the end of the prosecution case, you heard me explain several options to the accused. He could have remained silent. He could have given sworn evidence or he could have done as he did and made an unsworn statement. These options were given to him because there is no obligation on him to give evidence. The prosecution has the burden of proving guilt at all times. The fact that the accused made an unsworn statement was his right but you should take into account that it was not a statement made under oath and subjected to cross-examination.

You, the assessors are chosen from the community and you represent a pool of common sense and experience of human affairs. You do not leave that common sense and experience behind when you enter the courtroom. You are expected to and indeed required to, use that common sense and experience in your deliberations. In deciding upon any proposition put to you, you are to ask yourselves whether it accords with your common sense or is it an affront to your common sense and experience.

At the conclusion of this summing up, I shall adjourn the Court so that you may retire and deliberate. You are free at that time to discuss the case amongst yourselves but with no one else. However, you must form your own individual opinions. When you are ready, the Court will reassemble. You will then be asked to state your individual opinions in Court. You will not be asked for the reasons for your opinions. Your opinions need not be unanimous, but it is desirable that they are.

The accused stands charged with the offence of robbery with violence and as you are aware, he has pleaded not guilty. Under the laws of this country, an accused person is presumed to be innocent until proven guilty. He does not have to prove his innocence and indeed he is not have to prove anything. It is the duty of the prosecution to prove the guilt of the accused. The prosecution must prove each of the ingredients of the offence.

Not only must the prosecution proved the accused’s guilt, it must prove it beyond a reasonable doubt. This perhaps is the most important direction of law that I can give to you. This means that you must be so satisfied as to be sure of the accused’s guilt before you express the opinion that he is guilty. If after considering all the evidence in this case, you are left with a reasonable doubt as to the guilt of the accused, then you must advise me that the accused is not guilty.

The particulars of the offence which are contained in the Information that you will have before you are that the accused on the 14^th day of May 2004 at Lautoka in the Western Division, robbed Nitin Pala s/o Hari Jiwan of assorted jewelleries valued at $37,000.00 and immediately before the time of such robbery did use personal violence to the said Nitin Pala s/o Hari Jiwan.

You have heard the evidence and I don’t propose to recite it to you but I do propose to very briefly refer to it.

The first witness for the prosecution was Nitin Pala. He told you that he is the owner of the jewellery store. He told you what he did on the morning of the 14^th May 2004 that he most relevantly collected items of jewellery from his safe, that he was carrying them to his workshop, going up at certain stairs, he felt a hand on his shoulder back, he was then pushed and ultimately ended up in a toilet and there were two people, one was behind him and another one in there. You have heard his evidence as to him reaching back and pulling off what he later learned

to be a mask from the person behind him. You have heard that he was pushed to the floor, that he was held by the legs, that he could see the man holding him, that the man holding him did not have a mask on at that time and that a man holding him, he subsequently identified as being the accused and in his evidence today identified that person as being the accused.

You have heard him say that he was then robbed of the jewelleries described in the charge. That he also offered a watch and a telephone which were not taken. You have heard him saying the fear that he felt at that time. He said he was about a metre from the face of the person that he subsequently identified as the accused.

You have heard his evidence that on the 18^th May 2004, he attended an identification parade at the Lautoka Police Station and said that on walking into the venue, he immediately identified the accused. He was then told that it had to be done under a proper process and he subsequently identified from the nine people in the line up, the accused. He tells you why he identified as to the beard, the built and that he was the person who had the knife.

You have then heard evidence from Inspector Jone Baravi, the officer who set up the parade, the officer who selected the nine people. He told you how he selected them that they of similar build and of the same race. He told you that the accused did not object to any of the people in the line up and he told you that the accused was given the option of where he wished to stand and he chose to stand between person number eight and number nine. He then also told you of the first witness, that is Nitin Pala, walking in to the venue and he immediately identifying the accused and being told to wait and attend the process properly. He told you how the process was done that Nitin Pala walked up, touching with both hands and he described with an open palm, how he pushed the tenth, missed the ninth, continued up the line, pushing each person and saying not him, missed the second, pushed the first then went back again to the ninth and said this is him, the ninth being the accused.

That was then the evidence for the prosecution.

The evidence for the defence, was the defendant, the accused, gave an unsworn statement from the dock where he told you most relevantly, that he wasn’t there; that he was at home at Nailaga Village, Ba with his wife, son and his wife’s sister on the 14^th May, the time the offence was committed and it wasn’t him.

He told you other things about the police ringing him on the day or earlier and the parade not taking place, of being taken to the Police Post to be interviewed of his house being searched and nothing being found.

You then have the evidence of the wife of the accused, who gives evidence that on the 14^th May, the accused was at home with her, their son and her sister at Nailaga Village, Ba. She similarly gives evidence that the house was searched and that is the evidence for the accused.

You have heard the accused saying that he had wanted to call the sister of his wife but she is not present today, as she had gone to Suva.

That is the evidence that is before you.

I am required as a matter of law to give you specific directions with respect to identification in cases such as this. Evidence that the accused has been identified by witnesses doing something, whenever it is disputed by the accused, it must be approached by you with special caution before you except that has been reliable. That caution is necessary even though you may be satisfied that the witness has been giving completely honest evidence when saying that he identified the accused. This particular direction relates to the reliability of the identification evidence given not to the honesty with which was given.

Special caution is necessary before accepting identification evidence because of the possibility that even completely honest witnesses may have been mistaken in their identification. I am not suggesting that the evidence of such a witness must be regarded as unreliable. My task is no more than to draw your attention to the possibility that the evidence of such a witness may be unreliable and explain why that is so, so as to enable you to exercise the special caution which is required in determining whether to accept that evidence as reliable and what weight is to be given to it.

The reliability of an identification of a person depends upon the circumstances in which the witness observed the person whom he has identified as the accused and anyone of those circumstances may possibly lead to error. For example, how long was the period of observation? In what light was it made and from what distance was it made? Was there anything about the person observed which could have impressed itself upon the witness? Was there any special reason for remembering the person observed? How long afterwards was the witness asked about the person seen? How did the description then given compare with the appearance of the accused? Each of those matters must be considered by you.

It is perhaps easy to understand the possibility of error when the evidence is given by someone who has not previously known the accused, but errors may also occur even when the witness has previously known the accused. This warning of the need for special caution before accepting the evidence of an identification is one which is given in every case, in which such evidence is disputed by the accused. It is not given because of any particular view which I may have formed concerning the reliability of the identification evidence in the present case. The weight to be given to that evidence is a matter for your decision, not mine, I have nothing to do with that decision which you have to make. You should not interpret what I have said as indicating any particular view which I may have formed one way or the other.

You must look at the evidence that is before you in the light of the direction that I have given you. You must look at the evidence in particular that the witness said he was only one metre from the face of the accused. You must look at the evidence that it was the 14^th May and the 18^th May, a short period of time, one might think. You must look at the circumstances in which the witness formed the view of the recognition of the accused and in looking at that evidence, you must do so in the light of the caution that I have expressed to you.

Remember that in arriving at your opinions, you are to have regard to all of the evidence and not merely the evidence that I might have referred to or that, you think, I might have highlighted.

In making your deliberation, you should take into account that there is being no property recovered and you should take into account the evidence of the accused of his denial and that there is in fact no confession whatever made in the course of the investigations on the evidence.

Ladies and Gentleman Assessors, that is all I wish to say to you. You may retire now to consider your opinions. If there is any clarification that you need, please send the message by the clerks. During your deliberations, take as such time as you need. When you are ready with your opinions, I will receive them individually in open court and remember you will not be asked for the reasons for your opinion. Your opinions do not have to unanimous but it would be good if they were.

Ladies and Gentleman Assessors, I apologise for bringing you back so quickly. The State Counsel pointed out an omission on my part in my summing up to you. You will recall there being two people present. Mr. Pala referred to a person behind and a person in front and I am sure you don’t need reminding that there were significant references to there being two people and of course, there is only one person before the court and that is the accused.

In an offence such as this, it is not necessary for both people to be charged with the offence. Any one person who participates in the commission of the offence is as guilty as the other or as innocent as the other. The principle which might very simply be described as a joint enterprise applies to anyone who participates irrespective of their level of participation.

I apologise for not having made that point in the course of my summing up. This time you can retire and I don’t propose to annoy you again.

JOHN CONNORS
JUDGE

At Lautoka
16 August 2005