State v Rokoua [2005] FJHC 666; HAC0001.2004L (9 March 2005)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC0001 OF 2004L

THE STATE

V

JONETANI ROKOUA

Mr. S. Qica for the State
Accused in Person

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 regardless of what counsel or the accused may have told you the law to be. On matters of fact, you are free to make up your own minds and reach your own conclusions. You have heard State Counsel and you have heard the accused. Each put to you their view of the evidence and how it should be assessed. The State Counsel was doing what he were duty bound to do and his remarks and those of the accused are intended to assist you.

However you are not bound by what they have said if you do not agree with it and similarly if I appear to be expressing any view of the facts you must 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 heard in this case. You must discount anything you may have heard from friends or relatives or read in the newspapers and 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 victim or the accused. 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 gave evidence. Was he evasive, how did he 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 inconsistency 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 made an unsworn statement or he could have made a sworn 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 accused gave sworn evidence and you must give his evidence careful consideration.

You, the assessors are chosen from the community, 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 offences of robbery with violence and unlawful use of a motor vehicle. 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 does not have to prove anything. It is the duty of the prosecution to prove the guilt of the accused. The prosecution must prove each and every ingredient of the offences.

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 offences which are contained in the Information that you will have before you are that JONETANI ROKOUA, on the 27^th day of June 2002, at Nukuloa, Ba in the Western Division, robbed Dhani Ram Sharma s/o Chandrika Prasad of cash $400.00, assorted jewelleries valued at $10,050.00 and wrist watches valued at $1,000.00 to the total value of $11,450.00 and at the time of such robbery did use personal violence to the said Dhani Ram Sharma s/o Chandrika Prasad and further that JONETANI ROKOUA on the 27^th day of June 2002, at Nukuloa, Ba in the Western Division, unlawfully and without colour of right but not so as to be guilty of stealing took to their own use motor vehicle registration number CZ 723, the property of Dhani Ram Sharma s/o Chandrika Prasad.

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

The first witness for the prosecution was Dhani Ram Sharma. He gave evidence that on the night of the 26^th of June 2002, he came home at about 6.30pm. The World Cup soccer was on TV that night. The soccer started at about 11.30pm. That all the family were at home, himself, his wife, 2 sons, 1 son’s wife and daughters. The soccer finished at about 1.30am or a quarter to 2. He went to bed at about 2.00am. He said he went to sleep at about 2.30am. Something woke him up. He heard the dog barking. He on the light and a little later his wife said, wake up, wake up. He thinks it was a quarter to 3.00am and there was a big banging sound which she later found out was the back door hitting the wall.

He and his wife went towards the sound. He saw 4 people carrying a light. They told them to be quiet, that is the 4 people told the witness and his wife to be quiet. The banging things are pushing them back to the place where they were sleeping to their bedroom. He says the people were wearing gloves and masks. They had a knife, pinch bar and a long screwdriver. There were wearing big boots. Pushed them back into their room, beat them a little bit and said where is the money. That they were speaking in Fijian amongst themselves. He says he was scared. They asked for money and they grabbed them, that is his wife and himself. They took what he described as a blanket but later learnt it was a bed sheet that they tore it up into pieces and that they tied him and his wife by the legs and the arms and around the mouth. The bed sheet to which he refers was identified and will be before you when you retire to consider your opinions, that is Exhibit P-1.

He says that they repeated their requests for money which he said, there was no money there, the money was at the shop. They then brought the son, Nilesh to the room and tied him up with the same material and told them not to make a noise. He described the people as one was a very long man and the others were standard size. One man said to him, no problem you give us the money and we leave you. Another said, bustard Indian, they gave me wrong information. He says that they later brought the other son, his second son into the bedroom after about 20 minutes or so.

They tied him up in the same way and put him on the floor. They pulled out the drawers and the cupboards and were throwing things around and they kept asking where is the money and they checked in the ceiling. He says they went into 3 or 4 bedrooms looking for money. When they left, the police came.

Since they left a long knife behind, it was in a blanket. He then described the value of the jewellery, watches and the rings and the like that was stolen. He says there were in the house for about an hour. He says that they demanded the keys to the business van from the second son. That they left in that van. They could hear the van and he did not give consent to them taking the keys or the motor vehicle.

The son had called the police. He says the police untie themselves when they came. He was interviewed by the police. He says in answer to questions in cross-examination that they, that is the 4 men were acting drunk, he could smell liquor and one was holding a liquor bottle. He was asked questions as to the particular identity of the various items of jewellery and as to whether he had any receipts or invoices for those items or not. He gave evidence of the jewellery that was stolen and that is in fact sufficient evidence of that aspect of the matter. He says that much of the jewellery was gifts from other people to members of the family.

The second witness for the prosecution was Deepak Kumar Sharma. He says he is married with 2 daughters. He lives in the same house as his father who was the first witness. He has that on the 26^th of June at about 8.30 he had dinner. He was in his compound and that from the labourers' house he heard Fijian music. It was loud and it got higher and he thought something was happening. That night, Brazil was playing Turkey and the soccer started at about 11.30pm. At about 2.30am, he went to bed and went to sleep. About 2.30am to 3.00am he heard the dog and switched on the light. Then he turned off the light and went back to sleep. Later, he heard the back door opened with a big bang and he heard the lock hit the wall. He got out of bed. His wife woke up. His bedroom was the first bedroom from the backdoor. He says the intruders went pass his room and later came back and said, they would kill his two daughters. He opened the door and they came in, punched him, hit him with a knife. They asked for money. He says that they were talking in Fijian and English and that they asked and opened the door in English. They were built like Fijian man but he did not see their faces. They had a knife, a torch and a stone like object. He says two men came into his room. They asked where the $30,000.00 for the motor vehicle was. He told them there was no cash money at home. They then he says drag him to his parent’s room. They tore a bed sheet, tied his legs and mouth, kicked him and asked where the money was. He was very nervous and it was the first time he experienced the robbery in his house. So they were all tied and hoping nothing would happen. He gave them whatever they wanted. He says they told him if you come up with anything, we would kill you and your family. He described briefly the items that were stolen. They were swearing, he says in Fijian and again is the expression, Indian bustard. He says it took 40 minutes to an hour and one of the people came and apologized and said they had misinformation and asked for the keys to the vehicle. He heard the van starting and stopped at the gate and restarted and went ahead. He says he didn’t consent to give in or lending them the vehicle and he pretended that the vehicle was not working but later gave them the keys for the safety, he says of his family. He says his brother contacted the police whilst he was under the bed. He is really frightened and nervous for his children and then the police came to investigate.

He was similarly asked in cross-examination details of invoices and receipts for the items of jewellery and again said many were gifts and the like but again described those items that had been taken and once again, the production of invoices is not material, not a material fact for this prosecution.

The next witness for the prosecution was Eremasi Tuikubulau. He says that on the 26^th of June 2002, he came from the village and took passengers to town. He stayed in town and left to go home later. He says that the accused stood beside his carrier, requested that he take cane cutters. He knew the accused. He says he had known him for years. He identified the accused in court. He says that the accused asked him to go to Moto and dropped cane cutters and that there were 7 people to be conveyed. He says his sister lives opposite and that is where he was. He says that two of people sat in the front, one of those two was the accused and that there were two other people that he knew, one was Jone and the other Qoro. He says they were wearing long trousers, gloves and pompom and one was holding on to a sack.

He drove them to a house for the driveway on the right hand side of the road. He stopped at the driveway and he says the accused then said, go back now. He says it was about 2.00am to 2.30am in the morning. He went home and went to sleep.

He says that the Jone he referred to he knew very well because he is his cousin. He knew the house where the accused was as the house of Mr. Jerry. They had long black sleeves and long black pants. In cross-examination, he was asked if he discussed his evidence with the prosecution and he said no but in any event, the prosecution like any other counsel is entitled to interview witnesses. He was asked what movie he had been to see that night with his sister and others and said “Moon on Rouge”. He was questioned as to how he knew the accused and he said he knew the accused as he was sitting beside him in the front seat of the carrier. He says Jone was the person holding the sack that he described. He again in cross-examination that he described the clothing that the people were wearing that they were all wearing black clothes, long trousers, black hand gloves and pompom. That he was able to see the 7 of them. He wasn’t able to recognize the others apart from the 3 he already identified. He says he turned his trafficator on the vehicle to see them as they alighted from his carrier. He could see them in the rear vision mirror.

He was asked if he ever taken a group of cane cutters earlier in the morning and he said no and asked if he ever taken people at night to other villages and said yes he had. He was asked what he was wearing and he described three-quarter trousers and a round neck. It was put to him that he was lying and he said he was not. It was put to him that he had relatives of police officers and he said no. In re-examination he was asked by the State Counsel whether he was sure that it was the accused sitting in the carrier that night and he said yes.

The next witness for the prosecution was Corporal Dwarka Prasad, the witnessing police officers. He says on the 6^th July 2002, he was on afternoon shift and was instructed to witness the statement being taken from the accused. He identified the accused. The interview he says was conducted in English. He says that the interviewing officer, Esira Bari, is now in Liberia on peacekeeping duties. He identified the caution interview and indicated that there had been no confession by the accused in the course of the interview and it was tendered by consent, as Exhibit P-2 and you will have that interview document before you when you deliberate it and you should read it. You should read all of it.

In cross-examination, the officer was asked by the accused if all allegations put to him he said yes. He was asked if he had denied involvement and the officer said yes. The officer said he denied all the allegations.

That was then the close of the case for the prosecution and as I have indicated earlier, I then put to the accused the various options that he had and he chose to give sworn evidence and to call witnesses on his behalf. The witnesses that he chose to call on his behalf were witnesses to give an alibi, to say that he was somewhere else at the time the offence was committed.

Section 229 of the Criminal Procedure Code prescribes that on a trial before this court an accused shall not without the leave of the court adduce evidence in support of an alibi unless the accused within 21 days of any transfer order from the Magistrates Court to this court gives notice of the particulars of the alibi. The accused was transferred from the Magistrates Court to this Court on the 9^th of December 2003 and the court record shows that on that date the Learned Magistrate warned the accused of the provisions of section 229 of evidence of alibi to be given within 21 days of today. No such notice was given and accordingly, leave of this court was required to enable the accused to call the alibi witnesses and that leave was given. It is then a matter for you to assess the evidence given by the alibi witnesses in the circumstances in which it was given and without notice having previously been given.

The accused gave sworn evidence as I have said. He says the World Cup soccer was on and he would not want to miss that, particularly with Brazil playing, his favorite team. He says it started at 11.30pm. He remembers his big brother and his big brother’s son, his brother’s wife and one nephew were also present. He says after the TV news, his brother proposed they drink grog and wait for the soccer. They started drinking grog and continued drinking grog until nearly 2.00am when they had dinner and went to sleep. He remembered sleeping with his nephew. That he has never met Jone or Qoro. He says that Eremesi says that he knew him but they are from different areas and he doesn’t know Eremasi. He says that coming from Ba to soccer crazy town and he would not want to miss that soccer match.

He says in answer to cross-examination by State Counsel that he does not know Eremasi. It was put to him that Eremasi visits close to where he resides, he says he has never seen him and he doesn’t know him. It was put to him that most carrier drivers in Ba are Indian and that Eremasi is Fijian, he still says he doesn’t know him. He says he asked how long he has been in Ba, he says as long as he is been born. It was put to him that he was lying and he says that he still maintains that he doesn’t know him. He says again in answer to further questions that on the 26^th and 27^th June, he was at home. That he was wrongly charged with these offences. He says that he told the police at all times that he was at home. He says he only answer the questions that the police asked of him. He says that didn’t indicate in the record of interview who he was with because he only answered the questions he was asked. He says he did tell them that information in a verbal interview or discussion prior to the caution interview.

It was put to him that the alibi was an afterthought, he said that is not so. He has no reason to lie. He then called Jeremaia Naqiri, his cousin brother; with him he was living at the time, who is a lecturer at the FIT in Automotive Engineering. He says Brazil was playing Turkey, he recalls that it was the World Cup in 2002. He says that he is also from Ba. He says that they watched the soccer together. He describes who was present. He was asked if he knew Eremasi, he said he didn’t know anybody by that name. He says the telecast started at about 11.30pm. He says the accused had been living with him in the house for 5 or 6 years. He again describes that they were drinking grog from about 10.45pm or 11.00pm and the game finished about 1.00am and they continued drinking grog till about 2.00am. They had their supper and retired to bed.

He was asked if he recalled any 4 wheel drive carrier and he said he would have heard it if it came and there were no interruptions. He says his eldest son was there. His second son, his nephew, his wife and the accused were all there. There were all present watching the football.

It was put to him that he is a responsible person with a responsible position and he agreed with that. He said that the house had 4 rooms and that he went to bed in a different room from the accused. He was asked why he didn’t go to the police with the information that the accused was residing with him and was with him on the night of the 26^th and 27^th of June, he said I think that is the matter to be settled in court. He says he was asked the day before yesterday for the first time to give evidence on behalf of the accused. It was the first time he says that he was asked to recollect the events of the 26^th and 27^th June 2002. He is a head of his section at FIT.

The next witness for the accused was his nephew, Waisake Deivanua. He is a student. Jeremaia is his uncle. He was staying in that house and he has been there for 5 years. He played soccer for Ba under 19 and Tailevu and he was chosen for Suva District. He attended FIT in Ba 2001, 2003 and since 2003 he has been in Suva. He is studying Fabrication and Welding. He says that they watched Brazil play Turkey and watched the live coverage in his uncle’s house. He describes that he was there with his uncle, the accused, his uncle’s two sons and his wife. All the males were drinking grog. He was asked if he knew one Eremasi and he said no. He was asked if he knew Qoro and he said no. He said he had dinner after grog and went to sleep. He was asked if he saw the accused leaving the house and he said no. He says he got a message from his uncle to give evidence on Tuesday. He is 24 years of age and he says he has never been charged with any offence. He gave all that evidence you will recall in Fijian and then he was cross-examined by State Counsel who put to him that he could speak English, which he did and he was then cross-examined as you will recall in English.

It was put to him that he was responsible that he knew not to cheat during exams, he was responsible citizen of Fiji in answered to those questions. He says he learnt a few months later that the accused had been charged with this offence. He was asked why he didn’t go to the police post, which was in a walking distance and tells the police what he knew he didn’t answer the question. He says he goes to church. He was asked if he had informed the pastor and he said no. He was asked if he loved his uncle, that is the accused, he said yes. Questions were put to him, and that he repeated that he was at home with him on that night. He says that he stays with his uncles to continue his education and that he assists in his school fees.

I repeat that the assessment of the evidence is a matter for you as is the assessment of the witnesses. If there is anything I have highlighted you should ignore the fact that I have done so. If there is anything that I haven’t mentioned then you should take it into account.

In this trial, a critical issue is the issue of identification of the accused. There is the evidence of Eremasi for you to consider. Evidence that the accused has been identified by witnesses doing something must whenever it is disputed by the accused, be approached by you with special caution before you accept it as 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 not to the honesty with which it was given.

The reliability of an identification of a person depends upon the circumstances in which the witness observed the person who he has identified as the accused and anyone of those circumstances may possibly led to error. It is a matter for you to consider for example, how long was the period of observation and in what light was it made, from what distance was it made, was there anything about the person observed which would 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 in all identification cases.

This warning of the need for special caution before accepting the evidence of identification is one which is to be given in every such case. 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, and I have nothing to do with that decision which you have to make. You should not interpret this direction as indicating any particular view which I may have formed one way or the other.

This particular case, you have the identification evidence of Eremasi and you have the alibi evidence of the two witnesses called by the accused.

If you are satisfied beyond reasonable doubt, that the accused committed one or both of the offences with which he is charged, you will find him guilty. If, however, you are not satisfied beyond a reasonable doubt, then you will find him not guilty of one or both of the offences. 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. The evidence includes the exhibits, the bed sheet and the caution interview.

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. 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.

JOHN CONNORS
JUDGE

At Lautoka
9 March 2005