State v Johnson [2010] FJHC 357; HAC120.2008 (25 August 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC120 of 2008

STATE

v

RAYMOND JOHNSON

Hearing: 23rd - 25th August 2010
Summing Up: 25th August 2010

Counsel: Mr. L. Fotofili for State
Accused in person

SUMMING UP

[1] We have now arrived at 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 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. You are the complete masters of what you decide the facts to be. In arriving at your conclusions, you must have regard only to the evidence you have heard in this case. You must disregard anything you may have heard from friends or relatives or read in the newspapers, and ignore any advise or suggestions made to you. You must also put aside any feeling of sympathy or ill will either for the complainant or the accused. You must base your opinions on your own objective analysis of the evidence. In assessing the credibility of any witness you would take note of what the witness said and what we lawyers call the demeanour of the witness. To accept a witness as credible you have to ask yourselves two questions: Was the witness honest and was the witness reliable. You will ask was what the witness said credible in itself or did it fly in the face of commonsense. Did the evidence fit in with the rest of the evidence? Did the witness' body language indicate evasiveness? Did the witness' memory appear to be affected by the lapse of time?

[2] I add further that you are not bound to accept all of a witness' evidence nor are you bound to reject all of a witness' evidence although you may. You may however find that some parts of a witness' statement are worthy of acceptance while other parts are not. You are therefore at liberty to accept some parts of a witness' statement and reject other parts. The accused gave evidence and he called witness. They are to be treated in the same manner as any other witness.

[3] The witnesses gave evidence of events that took place two years ago. You should make allowances for the fact that with the passage of time, memories fade. Witnesses, whoever they may be, cannot be expected to remember with crystal clarity events which occurred two years ago. Sometimes the passage of time may even play tricks on memories.

[4] You should also make allowances for the fact that from the accused's point of view, the longer the time since an alleged incident, the more difficult it may be for him to answer it. For example, has the passage of time deprived him of the opportunity to effectively put forward an alibi and evidence in support of it? These are matters for you to consider.

[5] Before I leave this aspect of the summing up I must point out that you, as assessors are chosen at random from the community. You are all possessed of commonsense and knowledge of human affairs. It means that when you enter the assessor's box you do not leave that behind. You are expected to and are required to use your commonsense and experiences of human affairs to assist you in your deliberations.

[6] At the conclusion of this summing up I shall adjourn the Court so that you may retire and deliberate. You are free to discuss the case amongst yourselves but with no one else. However, you must form your own individual opinions. You must consider the evidence against the accused on each count separately. When you are ready the Court will re-assemble. 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. Your opinions are not binding on me, but let me assure you that they will carry a great deal of weight and will greatly assist me at arriving at my judgment.

[7] The accused in trial has been charged with robbery with violence and unlawful use of motor vehicle. To these charges the accused has pleaded not guilty. The law says that a person is innocent until proven guilty. It is for the prosecution to prove the guilt of the accused. It is not for the accused to prove his innocence. Indeed it is not for him to prove anything. Additionally I direct you that the guilt of the accused has to be proved beyond a reasonable doubt, that is, you must be so satisfied as to be sure of the accused's guilt before you can advise me that the accused is guilty. If you have a reasonable doubt as to the guilt of the accused you must advise me that he is not guilty.

[8] The accused's defence is one of alibi. He says that he was not at the scene of the crime when it was committed. As the prosecution has to prove his guilt so that you are sure of it, he does not have to prove he was elsewhere at the time. On the contrary, the prosecution must disprove the alibi. Even if you conclude that the alibi was false, that does not by itself entitle you to convict the accused. It is a matter which you may take into account, but you should bear in mind that an alibi is sometimes invented to bolster a genuine defence.

[9] Section 293(1)(a) of the Penal Code reads:

"Any person who being armed with any offensive weapon or instrument, or being with one other person or more, robs any person is guilty of a felony."

[10] So here, you have to be satisfied beyond a reasonable doubt of the following:

(1) That the accused

(2) Armed with a weapon or in the company of others

(3) Robbed a person.

[11] Robbery is stealing by using force and stealing means the unlawful taking away of someone's property with no intention of returning it.

[12] In so far as personal violence is concerned, if you are satisfied beyond a reasonable doubt that the complainant had a knife pointed to him immediately before his property was taken from him, that would be use of force. You then have to consider whether force was used to carry out the robbery.

[13] Unlawful use of a motor vehicle, is defined as "the unlawful taking without a colour of right to take for his own use or the use of another, any vehicle." This means that the question is whether the vehicle was taken without the consent of the owner without any right to do so, but with no intention of stealing it.

[14] The last question that you have to consider is whether the accused was one of the perpetrators in either or both the counts. You are not to be concerned about the others involvement. Do not speculate what has happened to others or draw any adverse inference against the accused because others are not in the dock.

[15] At this point I would like to say that the law is if two or more people jointly commit a crime, each one is responsible and liable for the actions of another. For example if two people go together to steal money from a shop, but only one goes inside and carries out the stealing, and the other one stands at the door as a look out, they both would be guilty of stealing, if anything was stolen. If you have a reasonable doubt about the accused's participation in the robbery you will advise me that he is not guilty.

[16] The first prosecution witness was Sanish Kumar Singh, who told you that six men entered his home at Lot 71 Ratu Dovi Road on 14 June 2008 at 3 am by cutting the padlock on the burglar grill-door with a bolt cutter and breaking the double door with a pinch bar. The intruders were armed with pinch bar, bottles and stones. The first guy who appeared to be the ring-leader pointed a knife at him and demanded money. The intruders ransacked the house and took jewellery and electronic items, before fleeing in the complainant's vehicle registration no. DL726, without his consent. The vehicle was later found abandoned on a location. Two weeks later, that is, on 28 June 2008, Sanish Kumar attended an identification parade at Valelevu Police Station where there were 10 people and he picked out the accused as one of the six people involved.

[17] At this stage I must give you a direction on identification.

[18] Evidence that the accused has been identified by a witness as doing something must, when disputed by the accused, be approached with special caution because experience has demonstrated, even honest witnesses have given identification which have been proved to be unreliable. I give you this warning not because I have formed any view of the evidence, but the law requires that in every case where identification evidence is involved, that the warning be given.

[19] In assessing the identification evidence, you must take such matters into account:

(1) Whether the witness has known the accused before? Sanish Kumar said he had never seen the accused before the incident at his home on 14 June 2008.

(2) For how long did the witness have the accused under observation and from what distance? Was it more than a fleeting glance? Sanish Kumar said that he observed the accused for ten minutes from a distance of 1 meter inside his bedroom. His description was that the accused was a medium built Fijian man, who spoke good English. The accused had a pompom on his head but his face was not covered. The accused pointed a knife to the witness and demanded money. The witness said that the accused packed the stolen items in a bag in his presence.

(3) Did the witness have any special reason to remember? Sanish Kumar said he would never forget the face of the accused because of the incident.

(4) In what light was the observation made? According to Sanish Kumar the bedroom was well lit because the intruders switched on the two feet tube light when they entered the bedroom.

(5) Whether there was any obstacle to obstruct the view. Sanish Kumar said he clearly saw the face of the accused because nothing obstructed his view.

[20] In cross-examination, it was suggested to Sanish Kumar that he saw the accused in a police vehicle at Valelevu Police Station on the day before the identification parade. Sanish Kumar denied seeing the accused at Valelevu Police Station before the identification parade. He said he went to the Station to identify the instruments allegedly used in the robbery. He said a police vehicle stopped in front of him when he was in the car park. He spoke to the driver of the police vehicle but he did not look who was sitting at the back seat.

[21] Did Sanish Kumar see the accused on the day before the identification parade at Valelevu Police Station? Was the identification parade fairly conducted? Was the identification of the accused by Sanish Kumar suggestive? Is the identification of the accused by Sanish Kumar reliable? These are matters entirely for you to consider.

[22] The next witness was DC Anish Chandra. He gave evidence that during a caution interview on 28 June 2008, the accused consented to participate in an identification parade. The interview was suspended for the accused to participate in an identification parade.

[23] Assistant Superintendent Sami Suren was then called to give evidence of the identification parade. ASP Suren was called to conduct the identification parade because he was an independent person. He had no prior involvement in the case. He said he followed proper procedures to conduct the identification parade. Nine people were called to participate in the parade. All nine participants were Fijian men, medium built and between the age of 18 and 38 years. The accused was advised of the procedure. He elected to stand between the sixth and the seventh men in the parade. The witness, Sanish Kumar was kept in a different room. He was escorted to the Crime Office by another police officer. Sanish Kumar identified the accused without any hesitation.

[24] In cross-examination ASP Suren said it is not proper to show a witness the suspect before the identification parade. He said he was not aware if the witness had seen the accused on 27 June 2008, the day before the parade.

[25] PC Arvind Lal was the police officer who escorted Sanish Kumar to the identification parade in which the witness identified the accused. PC Lal said Sanish Kumar was kept in the Crime Sgt.'s Office while the parade was conducted in the Crime Office of Valelevu Police Station.

[26] Sgt. Jolame and DC Pita were the investigating officers. Sgt. Jolame said that on 27 June 2008, Sanish Kumar came to Valelevu Station to identify instruments alleged to be used in the robbery. In cross-examination Sgt. Jolame said nothing was found at the accused's residence after a search was conducted by the police.

[27] That was essentially the case for the prosecution.

[28] The accused is not represented by counsel and he should not be disadvantage by this. I have an obligation to identify the essential features of his defence and explain these to you.

[29] The accused chose to give evidence and as I have said his evidence must be scrutinized and assessed just like any other witness.

[30] He said he was not involved in the alleged offences. He was at home on 14 June 2008 at 3 am when the incident is alleged to have taken place and knew nothing about the robbery or the taking of the vehicle. He said earlier in the evening he drank grog with his wife across the road at his neighbour's house.

[31] The second witness for defence was his wife Sulueti Waqa, who at first said the accused returned home at around 11 pm after drinking grog with her at their neighbour's house, but later she said the accused was with her from 9 pm to 3.30 am when he retuned home. When she came home around 4 am she saw the accused in the house.

[32] You are to judge from what you saw and heard in court. You are to ask yourself questions such as whether the evidence rings true, whether the witness was evasive or hesitant. You are to have regard to his or her demeanour and whether the evidence discloses any motive for lying.

[33] You saw and heard all the witnesses. It is for you and only you to decide whether to accept or not to accept either part or whole of their evidence.

[34] The accused says to you that you disbelieve the prosecution witnesses and asks you to believe the defence witnesses, especially his alibi witness. The accused says Sanish Kumar is mistaken about identification of him and that the identification parade was unfair because the witness had seen him on the day before the parade. He therefore says the State has not proved the case beyond a reasonable doubt.

[35] The prosecution says to you that Sanish Kumar is not mistaken about identification of the accused because he had an ample opportunity to see the accused's face from a close distance for a reasonable period of time in good lightening condition. The prosecution says the accused's alibi is unreliable and should be rejected. The prosecution submits that they have proved the case beyond a reasonable doubt.

[36] To summarise Madam and Gentleman assessors, if you are satisfied beyond a reasonable doubt -

(1) that a robbery of Sanish Kumar took place; and

(2) he was threatened with a knife as he says; and

(3) that the accused was one of the persons involved

you will advise me that he is guilty on count 1.

[37] If you have a reasonable doubt about any of the three you will advise me that he is not guilty.

[38] Similarly if you are satisfied that the accused was one of the persons involved in taking away of the vehicle, you will advise me that he is guilty on count 2.

[39] If you have a reasonable doubt you will advise me that he is not guilty.

[40] Remember you are to take into account the total evidence. You may pay such regard to address by the prosecution or the accused, but you are not bound by them.

[41] That is all I wish to say to you. You may now retire to consider your opinions. Take as much time as you like. If you need any clarification on any aspect of the law or facts, please send me a note through my clerk.

[42] When you are ready with your opinions the court will reassemble to receive them in open court.

Daniel Goundar
JUDGE

At Suva
25th August 2010