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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Criminal Case No: HAC 105 of 2006
STATE
V
PENIASI TIRIKULA
Hearing: 9th February – 16th February 2009
Summing Up: 16th February 2009
Counsel: Mr. A. Rayawa for State
Ms B. Malimali & Ms M. Savou for Accused
SUMMING UP
[1] Madam Assessor and Gentlemen Assessors. It is now my duty to sum up to you. In doing so, I will direct you on matters of law which you must accept and act upon. You must apply the law as I direct you in this case.
[2] As far as the facts of this case are concerned, what evidence to accept, what weight to put on certain evidence, which witnesses are reliable, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts, or if I appear to do so it is entirely a matter for you whether you accept what I say or form your own opinions. In other words you are the masters and the judges of facts.
[3] Counsel for the prosecution and the defence have made submissions to you about how you should find the facts of this case. They have the right to make these comments because it is part of their duties as counsel. However you are not bound by what counsel for either side has told you about the facts of the case. If you think that their comments appeal to your common sense and judgment, you may use them as you think fit. You are the representatives of the community at this trial and it is for you to decide which version of the evidence to accept or reject.
[4] You will not be asked to give reasons for your opinions, but merely your opinions themselves, and you need not be unanimous although it would be desirable if you could agree on them. Your opinions are not binding on me but I can assure you that I will give them great weight when I come to deliver my judgment.
[5] On the issue of proof, I must direct you as a matter of law that the onus or burden of proof lies on the prosecution to prove the case against each accused person. The burden remains throughout the trial upon the prosecution and never shifts. There is no obligation upon the accused to prove his innocence. Under our system of criminal justice an accused person is presumed to be innocent until he is proved guilty.
[6] The standard of proof is one of proof beyond reasonable doubt. This means that before you can find the accused guilty of the offence charged, you must be satisfied so that you are sure of his guilt. If you have a reasonable doubt about the guilt of the accused, then it is your duty to express an opinion that the accused is not guilty. It is only if you are satisfied so that you feel sure of the guilt of the accused that you can express an opinion that he is guilty.
[7] Your opinions must be based only on the evidence you have heard in the courtroom and upon nothing else. Whatever you have read or heard about this case in the media or elsewhere, you must totally disregard. Your duty is to apply the law to the evidence you have heard. The Accused was originally charged on two counts of the Information, for robbery with violence and manslaughter. As a matter of law I decided that there was no case to answer for the Accused on the charge of manslaughter because there was no evidence of a link between the alleged assault by the accused and the death of Hamid Ali. Please disregard the second count altogether. The Accused is now charged solely with the offence of robbery with violence.
[8] The offence of robbery with violence is defined by our Penal Code. Section 293(1)(b) says that any person who robs any other person and at the time of the robbery, or before or after it uses or threatens to use any personal violence to any person is guilty of the felony of robbery with violence.
[9] The Information alleges that the Accused, on the 24th of April 2006 at Lami robbed Sue Gong Joo Ha and Michael Hamid Ali of various items including a dvd player and discs to the total value of $2,800 and at the time of the robbery, used personal violence to Sue Gong Joo Ha and Michael Hamid Ali. The elements of the offence that the prosecution must prove beyond reasonable doubt are:
[10] In this case the defence does not now dispute that Michael Hamid Ali and Sue Gong Joo Ha were robbed on the 24th of April 2006 in their house in Powell Crescent, Lami. Nor does the defence dispute that they were both assaulted during the robbery. What is disputed is that the Accused was involved in the robbery. That is the real issue in this case.
[11] Because neither of the two victims of the robbery are available to give evidence, we have heard no evidence about exactly what was stolen during the robbery other than the evidence of Iliesa Vakaloloma who referred to cash, a dvd player, a camera, and discs.
[12] As a matter of law, the prosecution does not have to prove that each and every item named in the Information was stolen during the robbery. As long as you are satisfied beyond reasonable doubt that some of the items referred to were stolen in the robbery, you can be satisfied so that you are sure that there was a robbery. You do not have to be sure that each and every item alleged in the information was stolen in the robbery.
[13] I will now define the word "robbery" to you. In law, a robbery is simply stealing by force. Stealing is when a person takes property belonging to another person with the intention of permanently depriving that person of that property and without the consent of the owner.
[14] The defence of course disputes that the Accused was involved in the robbery. If you accept the evidence of Iliesa Vakaloloma then there is direct evidence that the Accused was part and parcel of this robbery and himself assaulted Michael Hamid Ali. However there is no direct or circumstantial evidence that he also assaulted Sue Gong Joo Ha. In law, the person who actually commits an assault or robbery is not the only person who commits the offence. Any one else who assists him in the offence by knowingly aiding and abetting him, and anyone who encourages him to commit the offence is also guilty of the offence. Furthermore when two or more persons form a common intention to commit a crime together, and in the course of committing a crime some other crime is committed which is a probable consequence of that first intention, then each member of the group is guilty of the final offence. So when a group of men decide to break into a house carrying weapons, and during the break in someone gets injured then each member of the group is guilty of causing that injury even if only one of them actually inflicted the assault.
[15] So when this group of men decided to break into the house of Michael Hamid Ali and Sue Gong Joo Ha, what was their intention? Were the assaults on Michael Hamid Ali and Sue Gong Joo Ha a probable consequence of a group of men breaking into an occupied house? If you are satisfied of this beyond reasonable doubt and you accept that the Accused was a member of this group and was involved in the robbery, then you may find him guilty of the robbery of both the victims even if you do not know who actually inflicted the assault on Soo Gong Joo Ha. That is the doctrine of joint enterprise.
[16] The prosecution relies on the evidence of Camari Makasiale that she found cd’s in her sister Mereia Seasea’s room on the 25th of April 2006. These cd’s were identified by the victim’s wife in hospital according to the police and were also identified by Constable Asaeli who seized them. In relying on this evidence the prosecution submits that the only explanation for their presence in Mereia’s room is that the Accused put them there and no one else. You will recall from Mereia’s evidence that when she returned home at 12 midnight, she met the Accused there under her house. The defence submits that the evidence of the identification of the cd’s is inconsistent, that we do not know where they came from and who put them in Mereia’s room.
[17] In relying on this evidence, the prosecution relies on circumstantial evidence. Circumstantial evidence is evidence which implicates an accused person not directly but on the basis of several indirect sources. So for instance if you find money in your purse missing and the only other person who had access to your purse was your spouse, and he or she was seen shopping when he or she had no personal means, you might accept his or her guilt beyond reasonable doubt because it is the only reasonable inference to be drawn from the circumstances. However if other people had access to your purse you might have reasonable doubts about the guilt of your spouse because there are other reasonable explanations for the missing money which are consistent with your spouse’s innocence.
[18] So that is the test for circumstantial evidence. Taking all the circumstances together, the fact that Mereia was the Accused’s girlfriend, the description of the cd’s by the witnesses, the time she saw the Accused that night including the time she saw him at midnight, are you satisfied beyond reasonable doubt that the only reasonable inference to be drawn is that these are the same cd’s stolen in the robbery at about 7pm that night and that the Accused put them in Mereia’s room? If your answer is ‘yes’ then you may rely on this evidence. If you have a reasonable doubt about it you may not.
[19] I now come to the evidence of Iliesa Vakaloloma. This witness was originally charged with committing this same offence. However the State offered him immunity, on the condition that he give evidence as a witness in this trial. You heard him say that he was one of the men who committed the robbery and that the Accused was also part of the enterprise and that he saw the Accused assault Michael Hamid Ali during the robbery and steal a dvd player and cd’s.
[20] In law Iliesa Vakaloloma is an accomplice. Accomplices often give evidence against accused person and of course their evidence must always be approached with caution. This is because accomplices may want to implicate others to save themselves or may exaggerate other people’s role in the offence and diminish their own. For this reason, the law says that it is dangerous to convict on the evidence of accomplices alone and that even if you accept the evidence as credible and reliable you should look for other independent evidence to corroborate the evidence of an accomplice. However, even if you find no such corroboration, it is still open to you to convict the Accused on the evidence of Iliesa Vakaloloma alone, as long as you have warned yourself about the dangers of it.
[21] What sort of evidence can corroborate the evidence of an accomplice? Firstly the evidence must be independent of the accomplice. Secondly the evidence must implicate the Accused person. And thirdly the evidence must be relevant to the issues in the trial. In this case there is evidence capable of corroborating the evidence of Iliesa Vakaloloma but it is a matter for you whether you accept these pieces of evidence as corroboration in fact. One such piece of evidence is that cd’s identified by the victims to the police were found in the house of Camari Makasiale, in the room of Mereia Seasea the then girlfriend of the Accused. The defence however disputes that these were the cd’s from the robbery saying that there are too many inconsistencies in their description. Camari said she sold them to a neighbor who informed the police. If you accept that the Accused and no one else put the cd’s in Mereia’s room, and that these are the cd’s from the robbery, then that evidence is capable of corroborating the evidence of Iliesa Vakaloloma. Whether it is corroborative in fact, whether they are the same cd’s and only the Accused put them there, is a matter for you to decide.
[22] Another piece of evidence is that the Accused was drinking at Qauiya at the house of Makasiale with Vakaloloma, Petaia Vuli, and Jeke Vakararawa. These were the people Vakaloloma said committed the robbery with him. Mereia Seasea said that the Accused was also there. The Accused himself denies any knowledge of the robbery. If you accept the evidence that he was there that night then this evidence is capable of corroborating Vakaloloma’s evidence in relation to Accused’s presence in Qauiya that night. It is for you to decide whether it is corroborative in fact. There is no corroborative evidence in relation to the Accused’s presence in the house of Hamid Ali, only the evidence of Vakaloloma himself.
[23] On the issue of the evidence of Vakaloloma the questions for you are:
[24] In this case of course Iliesa Vakaloloma was granted immunity from prosecution. The letter of the DPP was tendered and it reads as follows:
"On the basis of your signed statement to the police dated 26th February, 2008 which you have acknowledged as true and correct, and, in the interests of justice. I am prepared to grant you immunity from prosecution in respect of the offence of Robbery with Violence contrary to section 293(1)(b) of the Penal Code (Cap 17) and Manslaughter contrary to section 198 and 201 of the Penal Code (Cap 17) with which the above-named, PENIASI TIRIKULA and others are charged. The offer of immunity is made on the basis that you, ILIESA VAKALOLOMA if called by the State as a witness in the trial of PENIASI TIRIKULA and others will give truthful evidence in accordance with the aforementioned statement."
[25] Again it is important to take his immunity status into account when deciding what weight to give to his evidence. However the DPP is given power to grant immunity from prosecution to offenders so that these offenders can give evidence against co-offenders without the fear of incriminating themselves. It is for you to decide whether this is an offender lying to implicate another to save his own skin, or an offender telling the truth about how the offence was committed in return for his own immunity.
The Prosecution Case
[26] The evidence from the police witnesses IP Jale Cokonavalu and Corporal Tevita Ranacika is that on the 24th of April 2006, a report was received at the Lami Police Station at 7.35pm that a robbery had occurred at 8 Powell Road, Qauiya Lami. When police attended the scene, they found the house ransacked, Michael Hamid Ali sitting in the sitting room bleeding heavily from the head, blood on the kitchen floor with a digging fork nearby and Michael Hamid Ali’s wife Soo Gong Joo Ha lying on a bed in a bedroom, semi-naked with bruises over her face, crying in pain. She was covered with a sheet, shorts were put on her and she and her husband were taken to hospital.
[27] The evidence of PC Asaeli Tuivoka Rauli was that he received cd’s from an informer Camari. He identified two of the cd’s in court and said he remembered those but not the others. Under cross-examination he said he seized the cd’s from an informer’s house and not Camari’s house. He gave the cd’s to JP Jale who took them into custody as exhibits. IP Jale went to the hospital and showed Su Gong who confirmed that they had belonged to Michael Hamid Ali. He identified the plastic bag in which the cd’s were kept and the cd’s in court. He also gave evidence that a digital camera seized from a house I Vatuwaqa. The camera (Ex. 4) was also identified by the wife of Michael Hamid Ali as theirs and he seized it and kept it in his custody. IP Jale in cross-examination said that the camera had photographs of Michael Hamid Ali and a Chinese lady on it according to Adele Robinson, the lady from whom he seized it. Now this lady Adele Robinson could not give evidence because she is in the Cook Islands so this evidence of what she said to IP Jale was hearsay and cannot be relied upon. You should disregard it.
[28] Camari Makasiale’s evidence was that Iliesa Vakaloloma is her cousin and that on the 25th of April 2006, she was at home and found in the room of her sister Mereia Seasea 10 discs in a plastic bag. She took them to her neighbour’s house and sold them to her in return for bus fare. She had never seen the discs before, prior to the 25th of April 2006. She described the discs and said that she did not recognize the plastic bag but did recognize the discs. She said that she had watched one at home before giving them to the neighbor. It was the movie "Raw."
[29] Mereia Seasea her sister said that on the 24th of April 2006 she was the Accused’s girlfriend. On that day in the afternoon, she was drinking with Jeke Vakararawa, Iliesa Vakaloloma, Petaia Vuli, and Peniasi Tirikula (the Accused). She heard Jeke Vakararawa say that they were going to steal from the house where the cd’s were later found. She left to go to town and they were still drinking there at 8pm.
[30] Under cross-examination she said she did not see each one at 8pm but could hear their voices laughing and shouting behind the house. She did not know anything about the cd’s.
[31] The evidence of Iliesa Vakaloloma was that he went to his Uncle Makasiale’s house in Qauiya Lami on the 24th of April 2006 at about midday. A function was planned but it was cancelled and he stayed to drink liquor with Jeke Vakararawa, Petaia Vuli, Peniasi Tirikula and his cousin Mereia Seasea. After drinking for several hours he heard Jeke Vakararawa tell the Accused that they should go and break into a house. At about 6pm or 7pm Jeke pointed out a house to break into and the Accused went in first, followed by Vakaloloma and Jeke Vakararawa. Vuli stood outside the front door. An Indian man and a Chinese lady were inside the house and they both ran to the kitchen to try to escape. The Indian man held a pitch fork which he wanted to defend himself with. Vakaloloma pulled it away from him and Vakararawa and the Accused held him. He tried to escape and Vakaloloma heard shouting in the kitchen. He then saw the Accused punch the man and the man fell down in the kitchen, his head hitting the floor. He saw Vakararawa punching the Chinese lady, and he went around the house looking for things to steal. He saw an envelope under the bed containing money. He took that and a camera (Ex. 4) which he gave to Vuli. He did not share the money with anyone. He saw the Accused carrying a dvd player and a plastic bag with cd’s in it. He identified the bag as Ex. 5. He said that Vakararawa took other items from the house which he thought was a phone and another camera.
[32] They then left the house and Vakaloloma went back to his home in Cunningham. He said he was originally charged with the offence but the charges were later dropped when the DPP offered him immunity.
[33] Vakaloloma was vigorously cross-examined by defence counsel about the date of the robbery and why he recalled it, his identification of the fork, the camera and the bag with cd’s in it. He was also cross-examined on his two previous statements to the police, one of which was a caution statement, and the other a plain statement on the basis of which he was granted immunity. In neither statement had he told the police about the plastic bag with the cd’s in it.
[34] Previous statements made by witnesses are often used to cross-examine them in court to attack their credibility. This is because a person who gives different and inconsistent accounts off the same incident may be thought to be unreliable.
[35] However, as a matter of law, what a witness says out of court is not evidence. It is what he or she says in court, that is evidence upon which you can rely. The cross-examination of a witness from a previous statement is only to assist you to decide what weight you can put on the evidence of the witness. But an out of court previous statement is not evidence.
[36] In considering Vakaloloma’s evidence you are entitled to ask yourselves whether he made previous inconsistent statements about the plastic bag carried by the Accused, and also about Mereia Seasea’s presence at the drinking party and the presence of other boys also. You will recall that the details of these matters were not in his previous statements. The State says that his testimony was more detailed than in his statements because he was being cross-examined about the day in question and his memory was jogged. The State says there is no inconsistency, only greater detail. The defence says there are inconsistencies between his statements and his evidence and that his evidence is therefore unreliable and untruthful. You must reach your own conclusions on the matter.
[37] If you accept his evidence as being reliable and credible, you must look for corroboration of his evidence because as I have told you, he is in law an accomplice. You may find corroboration from the evidence of the seizure of the cd’s in the house of the neighbor of Mereia Seasea, if you accept that they are the same cd’s and that only the Accused could have put them in Seasea’s room, from the evidence of Mereia that the Accused was present at the drinking party and the break-in plan was being discussed. These pieces of evidence if you accept them are capable of corroborating the evidence of Vakaloloma if you accept the evidence as being reliable and if you accept that the only reason why the video cd’s were in the room of Mereia was because she was the girlfriend of the Accused. If you consider that there may be other ways the cd’s found their way to her room unconnected to the Accused then of course that evidence is not corroborative because corroboration must implicate the Accused person.
[38] That is the case for the prosecution.
The Defence Case
[39] The Accused person was told by me at the end of the prosecution case that he had several options. He could have remained silent, he could have given sworn evidence, or made an unsworn statement. He had these options because the burden of proving his guilt remains on the prosecution at all times. He does not have to prove anything.
[40] He opted to make an unsworn statement. It was his right to do so as you heard me explain. However in deciding what weight to put on his statement you are entitled to take into account the fact that the prosecutor was not able to ask him any questions, or to cross-examine him.
[41] His statement was that he knows nothing about this case, that he did not commit the offence and that he was not at the house of Michael Hamid Ali and his wife that day.
[42] That was the defence case.
Summary
[43] The prosecution therefore relies on the evidence of Iliesa Vakaloloma, Mereia Seasea, Camari Makasiale and the police witnesses to show not only that there was a robbery but that the Accused person was part of it, and that he assaulted Michael Hamid Ali in the course of the robbery and stole some of the items listed in the charge. The defence says that Iliesa Vakaloloma is an accomplice, that he has a motive for implicating the Accused, that he lied on oath, that his evidence is unreliable and that the Accused person is not guilty of this offence.
Issues
[44] The questions for you are these:
[45] Your possible opinions are guilty or not guilty. You may retire.
Nazhat Shameem
JUDGE
At Suva
16th February 2009
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