State v Nagalu [2010] FJHC 152; HAC122.2008S (20 April 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 122 OF 2008S

STATE

V

1. EPARAMA NAGALU
2. JONACANI NACANI
3. PENIJAMINI TUINAVITI
4. SAMUELA VUNISEI

Counsels: Ms. R. Drau for the State Accused No. 1 in Person
Mr. V. Vosarogo for Accused No. 2
Accused No. 3 in Person
Accused No. 4 in Person

Hearing: 6th to 14th April, 2010
Summing Up: 20th April, 2010

SUMMING UP

1. ROLE OF JUDGE AND ASSESSORS
   

1. Madam and Gentlemen Assessors, it is 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. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.

2. State Counsel, Accused No. 1, Mr. Vosarogo for Accused No.2, Accuseds No.3 and 4 have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State counsel, and as accuseds, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.

3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.

2. THE BURDEN AND STANDARD OF PROOF
   

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on 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.

5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused’s guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.

6. Your decision must be based exclusively upon the evidence which you have heard in this Court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accuseds or the victims. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.

100. THE INFORMATION
     

7. The four accuseds were charged with seven counts. Two were for "robbery with violence", contrary to section 293(1)(b) of the Penal Code, chapter 17 [Counts Nos.1 and 3]. One was for "unlawful use of a motor vehicle", contrary to section 292 of the Penal Code. One was for "damaging property", contrary to section 324(1) of the Penal code. One was for "criminal intimidation", contrary to section 330(a) of the Penal Code. One was for "act with intent to cause grievous harm", contrary to section 224(a) of the Penal Code. The last count was "larceny", contrary to section 259(1) and 262(2) of the Penal Code.

8. On count No. 1, it was alleged that, on 5th July 2008, between 1am and 2am, at Nasinu in the Central Division, the four accuseds broke into Ishwar Narayan’s house, and violently robbed him of $5,429 worth of properties, the details of which were itemized in the charge. On count No.2, it was alleged that, after robbing Ishwar Narayan, the four accuseds unlawfully used his motor vehicle, registration number "MEDIA 1", when they fled in the same. On count No.3, it was alleged that, the four accuseds then drove" MEDIA 1" to Suva Town House Motel, at about 3am on 5th July 2008, and violently robbed its receptionist Vitinia Tuisavura of her gold chain, worth $150, and $600. On count No.4, it was alleged that, the four accuseds, after fleeing from Suva Town House in "MEDIA 1", deliberately rammed a pursuing police car, registration number GN 356, and later smashed its windscreen, causing $2,500 damage. On count No.5, it was alleged that, after damaging GN 356, the four accuseds, criminally intimidated Detective Constable 3679 Sachin Chand, who was the front seat passenger of GN 356. On count No.6, it was alleged that, the four accuseds then attacked and injured GN 356’s driver, Acting Corporal 2521 Mitieli Divarua, with an iron rod and a piece of timber. On count No.7, it was alleged that, the four accuseds then fled in "MEDIA 1" to Nasinu Secondary School, abandoned the same, and stole its car stereo and CD changer, worth at total of $2,000.

D. THE MAIN ISSUES

9. The following questions therefore arises:

(i) Did the four accuseds, on 5th July 2008, between 1am and 2am, violently rob Ishwar Narayan of $5,429 worth of properties?

(ii) Did the four accuseds, on 5th July 2008, unlawfully used Ishwar Narayan’s vehicle "MEDIA 1", when they fled from his house?

(iii) Did the four accuseds, on 5th July 2008, at about 3am, violently rob Vitinia Tuisavura of her gold chain worth $150, and $600, in her custody?

(iv) Did the four accuseds, on 5th July 2008, after 3am, unlawfully damaged police vehicle registration number GN 356, when they rammed "MEDIA 1" into it, and later smashed its windscreen?

(v) Did the four accuseds thereafter criminally intimidated GN 356’s front seat passenger, Detective Constable 3679 Sachin Chand?

(vi) Did the four accuseds, then attacked and injured GN 356’s driver, Acting Corporal 2521 Mitieli Divarua, by striking him in the face with a piece of timber and an iron rod?

(vii) Did the four accuseds, on 5th July 2008, steal "MEDIA 1’s" Kenwood car stereo and CD changer, worth $2,000, the property of Ishwar Narayan?

E. THE OFFENCES AND THEIR ELEMENTS

10. For the accuseds to be found guilty of "robbery with violence", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accuseds;

(ii) stole the complainant’s properties, and

(iii) used violence on him or her, to effect the above theft.

Stealing is the act of taking someone’s property without his permission, and with an intention to permanently deprive him of that property. Violence means any type of violence, and include threats of violence. Violence could mean forcefully threatening someone with a pinch bar, on the one hand, to striking someone with a cane knife, pinch bar or other weapon, on the other hand. The motive behind the violence, or threat of violence, is to effect the theft of the complainant’s property.

11. For the accuseds to be found guilty of "unlawful use of a motor vehicle," the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accuseds

(ii) drove away

(iii) in the complainant’s motor vehicle

(iv) without his permission

12. For the accuseds to be found guilty of "damaging property", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accuseds

(ii) willfully and unlawfully

(iii) damages

(iv) any property

To be "willful", is to do something deliberately, well knowing it was wrong. "Unlawful" means that there was no legal justification to damage the said property.

13. For the accuseds to be found guilty of "criminal intimidation", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accuseds

(ii) without lawful excuse

(iii) threatens another person

(iv) with any injury

(v) with intent to cause alarm to that person

14. For the accuseds to be found guilty of "act with intent to cause grievous harm", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accuseds

(ii) with intent

(iii) to do some grievous harm

(iv) to any person

(v) unlawfully wounds

(vi) any person

(vii) by any means whatsoever.

15 "Larceny" is basically "stealing". For the accused to be found guilty of "larceny", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accuseds

(ii) takes away the complainant’s property

(iii) without his permission, and

(iv) with an intention to permanently deprive him of that property.

16. You will have noticed in the information, that the prosecution, in their particulars of offence, on all counts, uses the phrase, "...EPARAMA NAGALU, JONACANI NACANI, PENIJAMINI TUINAVITI AND SAMUELA VUNISEI...". The prosecution is alleging that the accuseds committed the above offences, as a group. As a matter of law, I must direct you that when two or more people form a common intention to commit a crime, and in committing the crime, each of them performed different roles, they are all deemed, in law, to have committed the crime, that is, the offence. It matters not, whether or not one committed a minor role or major role, they are each deemed to have committed the offence. This is because each of them helped and encouraged each other to commit the offences.

17. Furthermore, in this case, there are four accuseds on trial. Each of the accused is entitled to be tried solely on the evidence that is admissible against him. This means that you must consider the position of each accuseds separately, and come to a separate considered decision on each of them. Just because they are jointly charged does not mean that they must all be guilty or not guilty. Most evidence in this case are admissible against all accuseds. However, regarding their police caution interview statements, which contained their alleged confessions, the statements therein are only admissible against the maker of the statement, and on no other. In other words, in each accused person’s police caution interview statement, you must totally disregard what the accused said about his co- accuseds on the commission of the offences. You can only take into account what he said about himself, regarding his role in the commission of the crime.

F. THE PROSECUTION’S CASE

18. The prosecution’s case was simple. They said, all four accuseds planned to rob Ishwar Narayan on 5th July 2008. Between 1am and 2am, they armed themselves with pinch bars, iron rods and stones, and broke into Mr. Narayan’s residence at Laucal Beach Estate. They formed two groups – one to raid the house, and one to guard outside. Mr. Narayan and his wife were confronted, and threatened with injuries, if they resisted. The group stole $5,429 worth of properties, and fled in Mr. Narayan’s vehicle, registration number "MEDIA 1", without his permission.

19. According to the prosecution, they drove to Vatuwaqa. They then drove in "MEDIA 1" to Suva Town House Motel, shortly before 3am. At the time, Ms. Vitinia Tuisavura, was on duty as a receptionist, at the Motel. She had in her custody $600, which belonged to the Motel. The prosecution said, the four accuseds parked "MEDIA 1" in front of the Motel, and ran into the reception area. They broke open a drawer and stole $600 therefrom. They then pinched Ms. Tuisavura’s gold chain, worth $150, and fled the scene, in "MEDIA 1".

20. According to the prosecution, Acting Corporal 1521 Mitieli Divarua and Detective Constable 3679 Sachin Chand, were detailed to pursue the accuseds in "MEDIA 1". They were given police vehicle registration number GN 356, to pursue the accuseds. Mitieli was driving, while Sachin was the front seat passenger. The two met "MEDIA 1" on Princes Road, Tamavua, opposite the new US Embassy, sometime after 3am. They gave chase. They met each other at Kaba Street, Tamavua.

21. According to the police, "MEDIA 1" ran straight at GN 356 and collided headon with it. GN 356’s engines stopped and its doors automatically locked. Some of the accuseds got out of "MEDIA 1" armed with iron rods, and pieces of timber, and moved towards GN 356 in a threatening manner. They smashed the car’s windscreen with the iron rods. Constable Sachin jumped through the window, and fled to a nearby house for safety. One of the men smacked driver Mitieli in the face with a piece of timber. He was injured. The men later got into "MEDIA 1", and fled the scene. Mitieli and Sachin managed to identify some of the men.

22. According to the prosecution, "MEDIA 1" was found abandoned at Nasinu Secondary School, in the morning, with its Kenwood car stereo and CD changer stolen. The matter was reported to police. An investigation was carried out. Police identification parades were organized. All the accuseds were caution interviewed. Accused No.2, 3 and 4 made confessions to the police. A stolen mobile phone was found in accused No.2’s residence. Acting Corporal Mitieli identified accused No.1, 2, and 3 at subsequent police identification parades. Constable Sachin only identified accused No.1 at a police identification parade. According to the prosecution, the evidence they have, proved beyond reasonable doubt that all accuseds were guilty as charged.

G. THE ACCUSEDS’ CASE

23. When accused No.1 was put to his defence, he choose to remain silent. That was his right. There was no obligation on him to prove his innocence. The burden is on the prosecution to prove his guilt beyond reasonable doubt throughout the trial. You must therefore, as assessors and judges of fact, impute nothing negative about accused No.1 choosing to remain silent.

24. However, you can nevertheless determine accused No.1’s defence from his closing submission. He is correct in saying that the only evidence linking him to the seven counts, were the identification evidence of Acting Corporal 2521 Mitieli Divarua, and Detective Constable Sachin Chand. He said, these identification evidence were weak, and therefore, you should disregard them, and finding him not guilty as charged, on all counts. The truth or otherwise of accused No.1’s contention, will be determined when we analyse the evidence, later.

25. As for accused No.2, three types of evidence were tendered to link him to the 7 counts. First, he allegedly confessed to the police when caution interviewed on 8th July 2008. Second, Acting Corporal 2521 Mitieli Divarua identified him as one of the men, who got out of "MEDIA 1" on 5th July 2008, and attacked him with an iron rod. Third, a mobile phone, stolen from Ishwar Narayan’s house on 5th July 2008, was recovered from his residence at Jittu Estate, on 9th July 2008, during a police raid. When giving evidence, in his defence, accused No.2 said, his confession to the police were not voluntarily given, because he was repeatedly assaulted and threatened by police. He produced medical and x-ray reports to prove the above. They also disputed the correctness of Acting Corporal Mitieli’s identification evidence. They said, it was of a weak quality, and therefore should be disregarded. As to the mobile phone found in his home, they said, the phone was not produced in court, and therefore the prosecution’s evidence on the same, was weak. In summary, accused No.2 said, the confession and identification evidence should be disregarded. No mobile phone was provided in court. As a result, he should be found not guilty as charged, on all counts.

26. Accuseds No.3 and 4, in their defence said, they knew nothing of this case. They said, they were assaulted and threatened while in police custody, and as a result, they were frightened and confessed. They said, their confessions were not given voluntarily. Both produced medical reports to confirm the above. They said, their confessions should be disregarded, and they be found not guilty as charged on all counts. In addition, accused No.3 said, Acting Corporal Mitieli’s identification evidence against him was weak, and therefore it should be disregarded.

H. ANALYSIS OF THE EVIDENCE

Uncontested and/or Undisputed facts:

27. In this case, after carefully listening to the evidence of all the prosecution and defence witnesses, it would appear that the following material facts, were not contested nor disputed by the parties:

(i) That between 1am and 2am on 5th July 2008, approximately four men broke into Ishwar Narayan’s residence at Laucal Beach Estate, and violently robbed him of $5,429 worth of properties, the details of which were contained in count No.1;

(ii) After robbing Ishwar Narayan, the four men fled in his motor vehicle, registration number "MEDIA 1", without his permission;

(iii) The four men then proceeded to Suva Town House Motel, approximately before 3am, in "MEDIA 1", and violently robbed its receptionist, Ms. Vitinia Tuisavura, of her gold chain worth $150, and $600, in her custody;

(iv) The four men then fled from Suva Town House Motel in ‘MEDIA 1" towards Princes Road, Tamavua, where they were spotted and pursued by a police motor vehicle, registration number GN 356. GN 356 was driven by Acting Corporal Mitieli Divarua. Detective Constable Sachin Chand was sitting in the front passenger seat;

(v) At Kaba Street, Tamavua, "MEDIA 1" rammed and collided headon with GN 356, causing its engine to stop and its doors to automatically lock. Four men jumped out of "MEDIA 1", armed with iron rods and pieces of timber. They came towards the police car in a threatening manner. They smashed the windscreen with the iron rods and pieces of timber. Constable Sachin Chand was intimidated by the men. He jumped through the police car window, and fled to a nearby house for safety;

(vi) One of the men took a piece of timber and smacked Acting Corporal Mitieli Divarua on the face, while he was still seating on the driver’s seat. He was wounded on the face. Then another three of them rushed towards Mitieli and attacked him with iron rods and pieces of timber. He was further wounded as a result;

(vii) After a while, the men got back in "MEDIA 1", and fled from the scene towards Nasinu Secondary School. "MEDIA 1" was abandoned there by the men, and its Kenwood car stereo and CD changer, worth $2,000, were stolen.

28. Given that the above material facts were not contested, nor disputed by the parties, I must warn you as a matter of law that, you, as assessors and judges of fact, can take it that the above material facts had been proven by the prosecution beyond a reasonable doubt. This enables us to concentrate on the issues that are really disputed in this case. The issue that is disputed in this case is: whether or not, the four men mentioned in paragraph 27 above, are the four accuseds, in this case? From the prosecution’s view point, they say, the four men mentioned in paragraph 27 above, are the four accuseds in this case. The defence say, the prosecution were mistaken, and they were not involved in this case.

Alleged Confessions by Accuseds No. 2, 3 and 4:

29. Since the burden of proving the four accuseds’ guilt beyond reasonable doubt lies on the prosecution throughout the trial, it would be prudent for us to examine the prosecution’s evidence against the four accuseds. Against accuseds No.2, 3 and 4, the prosecution first relied on the confessions it obtained from them. As a matter of law, I must warn you as assessors and judges of fact that, a confession obtained from an accused person is strong evidence against him, provided he gave it voluntarily, that is, out of his own free will. Evidence that the accused has been assaulted, threatened or unfairly induced into giving those statements by the police, will negate free will, and the possible rejection of the confession by the trier of fact, in this case, yourselves as assessors and judges of fact.

Accused No.2:

30. Accused No.2 was caution interviewed by PC 2888 Ifereimi, from 8th July 2008, at 5.59pm to 9th July 2008 at 4.20pm. He was asked a total of 120 questions. On 8th July 2008, he was asked 34 questions from 5.59pm to 7.56pm, when the interview was suspended for accused No.2 to sleep. He was given a 13 minutes break between 7.35pm and 7.48pm, and was given chicken curry and rice for dinner. The interview re-started on 9th July 2008, at 11am and concluded 1 hour 40 minutes later for lunch and rest. 73 questions were asked between 11am and 12.40pm. In answering Questions 42, 43, 44, 45, 49,53, 54, 55, 56, 57, 59, 61, 63, 64, 65, 66, 69, 74, 75, 77, 78 and 79, accused No.2 confessed to counts No.1, 2 and 3. He was given a 25 minutes break before lunch.

31. At 1.20pm, accused No.2’s interview recommenced. It finished 3 hours later at 4.20pm, with a 40 minutes break between 2.45pm and 3.25pm, for accused No.2 to attend a police identification parade. 38 questions were asked. In answering Questions 92, 98, 99, 100, 101, 106, 107, 110, 112, 113, 114 and 117, accused No. 2 confessed to counts No. 4, 5, 6 and 7. Accused No.2’s caution interview notes were tendered in evidence, as Prosecution Exhibit No.3. In answering Question 118, accused No.2 said he was not forced, threatened or given promises to confess. He said, he confessed in his own free will.

32. PC 2888 Ifereimi, in his evidence said, he did not assault, threaten or made promises to accused No.2, nor saw any police officer assault, threaten or made promises to accused No.2 before, during and after the interview.

33. However, in his evidence, accused No.2 said, he was assaulted and threatened by police officers, before and during his caution interview. He said police officer Namata assaulted his head. Constable Viliame punched his left jaw. He said, Constable Namata then hit him with a stick. He said, other police officers swore at him. During the interview, he said, Namata came in and slap his head to tell the truth. He said, he suffered injuries, and produced a medical and x-ray reports to prove his injuries. Note he was x-rayed on 1st April 2010 – approximately 2 years after the incident. When the above allegations were put to Constable Namata and Constable Viliame, they both denied his allegations. The prosecution’s version and accused No.2’s version of events were completely at odds with each other.

Accused No.3:

34. As for accused No.3, he was caution interviewed by DC 2991 Clint, on 14th July 2008, beginning at 3.15pm and ending at 8.30pm. 94 questions were asked. He was given 3 timely breaks at 4.50pm, 6.30pm and 7.25pm. In answering Questions 13, 14, 15, 37, 38, 39, 40, 41,42,43,44,45,47,48, 49, 51, 52, 53, 54, 55, 56, 57, 58, 59, 61, 63, 64, 65, 68, 69, 70, 71, 72, 75, 77, 78, 79, 81, 82, 83, 84, 85, 87, 88 and 90, accused No.3 confessed to all the seven counts. In fact, he admitted he was part of the group that committed the crimes mentioned in the seven counts. On 14th July 2008, at 8.30pm, the interview was suspended for dinner and rest. On 15th July 2008, the interview recommenced at 3.20pm and concluded at 4pm. 10 questions were asked. The caution interview was read back to accused No.3 at 3.49pm and concluded 2 minutes later. In answering Question 101, accused No.3 said, he gave his statements out of his own free will. In answering Question 102, he said he was not forced, threatened or made promises to confess. He said, the caution interview statement was a true record of his statements. Accused No.3’s caution interview statement was tendered as Prosecution Exhibit No.4.

35. In his evidence, DC 2991 Clint said, he did not assault, threatened or made promises to accused No.3, nor saw any police officer, assault, threaten or made promises to accused No.3 before, during and after the caution interview. He said, he can’t recall seeing any injuries on accused No.3.

36. However, in his evidence, accused No.3 denied the above. He said, he was beaten and punched by the police during arrest from his village in Wainibuka, and while on transit in a police vehicle to Nabua Police Station on 13th July 2008. He said, he was also assaulted and threatened by police at Nabua Police Station. However, he didn’t name the police officers concerned. He said, during his interview, some police officers came into the room and punched him. He said, he was injured as a result. He produced his medical report, dated 17th July 2008, as evidence of his injuries. Like accused No.2, the prosecution’s version of events and accused No.3’s version of events were completely at odds.

Accused No.4:

37. As for accused No.4, he was caution interviewed by DC 2660 Apisai Dredreyara, on 15th July 2008, beginning at 8.32pm and ending at 10.23pm. 60 questions were asked. In answering Questions 22, 30, 37, 40, 41, 42, 43, 44, 45, 47, 48, 49, 50, 52, 53, 54, 55, 56, 58 and 60 accused No.4 confessed to counts No.1, 2 and 3. On 16th July 2008, the interview started at 9.42am and concluded at 10.33am – about 1 hour 11 minutes later. 30 Questions were asked. In answering Questions 62, 65, 67, 68, 69, 70, 71, 72, 73, 74, 77, 78, 79 and 82, accused No. 4 confessed to counts No. 4, 5, 6 and 7. In answering Question 87, the accused said, his caution interview statements were true. He also said, his statements were given out of his own free will (Question 88) and that he was not forced, threatened or made promises to confess (Question 89). He admitted, he didn’t make any complaint, while in police custody (Question 90). The interview notes were tendered as Prosecution Exhibit No.5.

38. In his evidence, DC 2660 Apisai said, accused No.4 was normal during his interview, and he saw no injuries on him. He said, the accused made no complains of police assaults or threats before, during or after the interview. DC 2660 Apisai said, he didn’t assault, threaten or made promises nor saw any police officer assault, threaten or made promises to accused No. 4 before, during and after the interview.

39. However, when accused No. 4 gave evidence, he denied the above. He said, prior to his interview, he was punched by police officers, at Nabua Police Station. He said, during the interview, DC 4322 Namata beat his legs and then beat his hands. He said, his hands were swollen. He said, he was very frightened, and as a result, he confessed. He produced his medical report, dated 17th July 2008, as evidence of his injuries. However, when DC 4322 Namata was cross-examined, he denied beating accused No.4. He said, he was not involved in the arrest of accused No.4. Like accuseds No.2 and 3, accused No.4’s version of events were completely at odds with the prosecution version of events.

Alleged Identification Evidence and Circumstantial Evidence:

40. The second type of evidence the prosecution was relying on to connect accuseds No.1, 2 and 3 to the seven counts, was a combination of what is termed "identification evidence" and "circumstantial evidence". "Identification evidence" is the evidence of witnesses identifying suspects at the crime scene, at the material time. "Circumstantial evidence", is drawing inferences of facts, from proven facts. For example, A breaks into B’s house, and steals therefrom. B owns a pajero which was parked in his garage. A, when fleeing from B’s house, stole his pajero, as a getaway. C saw A driving B’s pajero an hour after the home invasion. No-one saw A break into B’s house. Given that A was seen driving B’s pajero an hour after the house break-in [a proven fact], it could safely be inferred that he broke into B’s house, at the material time. Such inference of fact is often termed "circumstantial evidence".

41. In this case, while Acting Corporal Mitieli was being attacked by 4 men coming out of "MEDIA 1", on 5th July 2008, after 3am, he identified one of them as accused No.3, who he said, he saw smacked the police car windscreen with a piece of timber, and later smacked his face with the same. He also said that, three other men came to him, and started beating him up with pieces of wood, pinch bar and iron rod. They were not wearing masks. He saw the one with the iron rod, and he turned his face away. He said, he saw his face clearly, and identified him as accused No.2. Mitieli said, he also saw the driver’s face. He reversed "MEDIA 1", drove the same next to Corporal Mitieli, who clearly saw his face. He identified him as accused No.1. Police Constable Sachin Prasad said, he also identified accused No.1 as the driver of "MEDIA 1", when he fled to a nearby house, 5 to 7 footsteps away. He said, a 4 feet tube light from the house clearly showed accused No.1’s face. He was not wearing a mask.

42. The prosecution therefore, was relying on Acting Corporal Mitieli’s identification evidence against accused No.1, 2, and 3, and Constable Sachin’s identification evidence against accused No.1, to connect them to the seven counts. It was therefore essential for me, to warn you as assessors and judges of fact that, whenever the case against the above accuseds depends wholly or substantially on the correctness of Acting Corporal Mitieli’s and Constable Sachin’s identification evidence, which the defence alleged to be mistaken, I must warn you of the special need for caution before convicting the three accuseds in relying on the correctness of Mitieli’s and Sachin’s identification, because an honest and convincing witness could also be mistaken. Secondly, you must closely examine the circumstances in which the identification was made. How long did Mitieli and Sachin have the three accuseds under observation? At what distance? In what light? Was the observation impeded in any way? Has the witness seen the three accuseds before? Is there any special reason for remembering the three accuseds’ face? How long elapsed between the original observation and the subsequent identification in a police identification parade? Thirdly, are there any specific weaknesses in the witness’s identification evidence?

Accused No.3:

43. Mitieli said, when Constable Sachin fled from the police vehicle, he saw a Fijian boy come out of "MEDIA 1" with a piece of timber. He saw the boy smack the car windscreen, and then smack his face with the timber while he was still seating in the driver’s seat. He said, the man was not wearing mask, and he clearly saw his face. He said, he observed this boy for 3 to 4 minutes. He identified him in court as accused No.3. It was about 2am in the morning. He said, two lights from nearby houses, and the headlight of "MEDIA 1" clearly exposed accused No.3’s face to him. He said accused No.3 came near him, about an arms length, and then retreated to about 5 or 6 footsteps away. He said, his observation was not impeded in any way. He said, he had seen the accused before, when he was working in police cells for 2 years. He said, a special reason for remembering his face was that, he wacked him on the face, and was challenging him to a fight. When cross-examined by accused No.3, Mitieli said he attended a properly held police identification parade, at Nabua Police Station, on 18th July 2008 – 13 days after the incident. Mitieli said, as soon as he started to identify accused No.3, he immediately apologized to him and asked for forgiveness. He said, he was 100% sure that he has identified the right person, that is, accused No.3. Is there any special weakness in Mitieli’s identification evidence? It would appear there was none.

Accused No.2:

44. As for accused No.2, Mitieli said, three men attacked him with pinch bars, iron rods and pieces of wood after accused No.3 smashed his face with a piece of timber. The men were not wearing masks. He said, he saw a guy with an iron rod. When he saw his face, the man looked away. He then tried to grab the iron rod from the man. He identified this man in court, as accused No.2. When cross-examined by accused No.2, Mitieli said, it was about 2am in the morning. He said, he observed accused No.2 for about 5 to 6 seconds, and then wrestle the iron rod from him for another 5 to 6 seconds. So, in a sense, Mitieli observed accused No.2 for a total of 10 to 12 seconds. When Mitieli wrestled the iron rod from him, his face was an arms length from him. Mitieli said, the lights from nearby houses and "MEDIA 1" headlights, exposed accused’s No.2’s face clearly to him. Mitieli said, there was no impediment in his observing accused No.2’s face. Mitieli said, accused No.2’s face is familiar to him. Mitieli said, a special reason for remembering his face, was that he attacked him with an iron rod.

45. Assistant Superintendent of Police Selesitino Babakoro carried out a properly held police identification parade, at Nabua Police Station, on 9th July 2008 – 4 days after the incident. He arranged for 11 men to stand in the parade. Accused No.2 was brought in and stood among the men. Corporal Mitieli was brought in. He was requested to identify the suspect. He immediately identified accused No.2 as the person who attacked him with an iron rod, on 5th July 2008. It could therefore be seen that Mitieli identified accused No.2 in a properly held police identification parade, 4 days after the incident. Are there any special weaknesses in Mitieli’s identification evidence? There appeared to be none.

Accused No.1:

46. As for accused No.1, Mitieli said, the driver of "MEDIA 1" reversed from their damaged police vehicle GN 356. The driver drove "MEDIA 1" to beside the GN 356’s driver’s seat, where he was seating. He stopped there for a while. Mitieli said, he clearly saw his face, and identified the person in court as accused No.1. He then drove off towards Princes Road. When cross-examined by accused No.1, Mitieli said, he first saw accused No.1’s face when he rammed "MEDIA 1" into GN 356. At that time, he observed his face for 2 seconds. When he reversed, came next to his car, stopped for a while, and then drove off, Mitieli said he observed his face for 60 seconds (1 minute). Mitieli said, accused No.1 was 2 to 6 footsteps away during his observation. Mitieli said, the area was well lighted from nearby house’s lights and from "MEDIA 1" headlights. He said, there was no impediment while he was observing accused No.1. He said, he had never seen the accused before. He said, because of what happened to him that night, that was a special reason for remembering accused No.1’s face. Mitieli said, he identified accused No.1 in a properly held police identification parade, at Nabua Police Station, on 9th July 2008 – 4 days after the incident. Are there any special weaknesses in Mitieli’s identification evidence against accused No.1? There appeared to be none.

47. Constable Sachin said, he saw 4 armed men coming out of "MEDIA 1". They struck GN 356’s windscreen with iron rods. He said, he panicked, jumped out the car window, and fled to a nearby house, for safety. He said, he saw the face of the driver of "MEDIA 1". He said, he observed his face for 30 to 40 seconds, and accused No.1 was 5 to 7 footsteps away. He said, there were enough lights from nearby houses and a 4 feet tube light from the house he was at, clearly exposed accused No.1’s face. It seemed that this was the first time Constable Sachin had seen accused No.1. He said, his observation was not impeded in any way. A possible special reason for remembering accused No.1’s face was the attack on him that night. In a properly held police identification parade on 9th July 2008 (4 days after the incident), Constable Sachin clearly identified accused No.1 from a line up of 13 men of like characters. Are there any special weaknesses in Constable Sachin’s identification evidence? There appeared to be none.

Alleged Stolen Property found in Accused No.2’s residence:

48. The third type of evidence the prosecution relied on to connect accused No.2 to count No.1, was the whereabouts of Nitesh Narayan’s LG sliding mobile phone (gold plated). Nitesh gave evidence that this phone was his, and it was stolen from his home at Kishore Bindi Drive on 5th July 2008. He resided with Ishwar Narayan. He said, he was called to Nabua Police Station, on 9th July 2008, to identify the phone. He did, and he told the police, the phone was his. Detective Sergeant Joape Ravunibola said, he recovered the above phone from accused No.2’s residence, at Jittu Estate, in a police search, on 9th July 2008. The phone was not produced in court as an exhibit.

Considering all the evidence together, that is, the alleged confessions, identification and the stolen mobile phone found in Accused No.2’s home:

49. You have heard the differing contentions of the prosecution and the accuseds on the confessional and identification evidence, including the stolen mobile phone found at accused no.2’s home. Remember, it is for the prosecution to prove the accuseds’ guilt beyond reasonable doubt, and that burden stays with them throughout the trial. They have provided evidence to show that accuseds No.2, 3 and 4 confessed to the seven counts, in the information. They provided evidence to show that they confessed to the seven counts voluntarily, that is, out of their own free will. Of course, the prosecution’s version were disputed by the accused No.2, 3 and 4, and they each gave sworn evidence, to say why. They said, they were assaulted and threatened, and that’s why they confessed.

50. As to the evidence of identification, the prosecution argued that you can rely on Acting Corporal Mitieli’s identifying accused 1, 2, and 3 at the crime scene at Kaba Street, Tamavua when the three were attacking him as a group. Mitieli identified accused No.2 and 3 attacking him with iron rods and pieces of timber, while accused No.1 drove "MEDIA 1". Constable Sachin also identified accused No.1 driving "MEDIA 1", at the time. The prosecution argued the quality of their identification evidence were of a high quality, as the two policemen subsequently identified accused No.1, 2 and 3 later in a properly held police identification parade. The prosecution asked you, as assessors and judges of fact, to accept their version. Of course, the three accuseds argued otherwise. They said, Mitieli and Sachin’s identification evidence were of a low quality, and thus should be rejected.

51. As to the mobile phone found at accused No.2’s residence, Nitesh Narayan said, it was stolen from his home, on 5th July 2008. The police recovered the same during a police raid on 9th July 2008 – 4 days later after the break-in at Nitesh Narayan’s residence. The accused denied he stole the same.

52. You have heard all the prosecution and defences’ witnesses. You have seen them give evidence in court, and how they responded to cross-examination and re- examination. You have observed how they answered questions – were they forthright, evasive or argumentative? How did they behave in court generally? What was their demeanour like? Given the above, my directions on the law, your life experiences and common sense, you should be able to decide which part of a witness’s evidence was reliable and therefore to be accepted, and which part was unreliable and thus to be rejected.

I. SUMMARY

53. In summary, if you accept the prosecution’s version of events on the confessions, the identification evidence and the stolen mobile phone found at accused No.2’s home, and you are satisfied beyond reasonable doubt and you are sure of all the accuseds’ guilt, you must find them guilty as charged on all counts. If you have a reasonable doubt on the prosecution’s version of events on the confessions, the identification evidence and the stolen mobile phone found in accused No.2’s home, and you are not satisfied beyond reasonable doubt and you are not sure of the accuseds’ guilt, you must find all accused’s not guilty as charged on all counts.

54. Your possible opinions are:

(i) Accused No. 1 - Guilty or Not Guilty on Count No. 1

Accused No. 1 - Guilty or Not Guilty on Count No. 2

Accused No. 1 - Guilty or Not Guilty on Count No. 3

Accused No. 1 - Guilty or Not Guilty on Count No. 4

Accused No. 1 - Guilty or Not Guilty on Count No. 5

Accused No. 1 - Guilty or Not Guilty on Count No. 6

Accused No. 1 - Guilty or Not Guilty on Count No. 7

(ii) Accused No. 2 - Guilty or Not Guilty on Count No. 1

Accused No. 2 - Guilty or Not Guilty on Count No. 2

Accused No. 2 - Guilty or Not Guilty on Count No. 3

Accused No. 2 - Guilty or Not Guilty on Count No. 4

Accused No. 2 - Guilty or Not Guilty on Count No. 5

Accused No. 2 - Guilty or Not Guilty on Count No. 6

Accused No. 2 - Guilty or Not Guilty on Count No. 7

(iii) Accused No. 3 - Guilty or Not Guilty on Count No. 1

Accused No. 3 - Guilty or Not Guilty on Count No. 2

Accused No. 3 - Guilty or Not Guilty on Count No. 3

Accused No. 3 - Guilty or Not Guilty on Count No. 4

Accused No. 3 - Guilty or Not Guilty on Count No. 5

Accused No. 3 - Guilty or Not Guilty on Count No. 6

Accused No. 3 - Guilty or Not Guilty on Count No. 7

(iv) Accused No. 4 - Guilty or Not Guilty on Count No. 1

Accused No. 4 - Guilty or Not Guilty on Count No. 2

Accused No. 4 - Guilty or Not Guilty on Count No. 3

Accused No. 4 - Guilty or Not Guilty on Count No. 4

Accused No. 4 - Guilty or Not Guilty on Count No. 5

Accused No. 4 - Guilty or Not Guilty on Count No. 6

Accused No. 4 - Guilty or Not Guilty on Count No. 7

You may retire to deliberate. The clerks will advise me when you have reached your decisions, and we will reconvene, to receive them.

Salesi Temo
Acting Judge

AT Suva
20th April 2010