State v Vatukarasa - Summing Up [2010] FJHC 577; HAC28.2008 (27 August 2010)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 28 of 2008

BETWEEN:

STATE
PROSECUTION

AND:

TEVITA VATUKARASA
JALE DYER
ACCUSED-PERSONS

Counsel: Ms. L. Veteivetei - For State
Accused-Persons in person

Dates of Trial: 23rd, 24th and 25th August, 2010

Date of Summing Up: 27th August, 2010

SUMMING UP

Madam Assessor and Gentlemen Assessors:

1. Evidence in this case has now come to an end. At its conclusion, the law requires me - as the Judge who presided over this trial - to sum-up the case to you. Each one of you will then be called-upon by me to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing-up of the case very carefully and attentively as it enables you to form your individual opinion as to facts based on the evidence in accordance with the law with regard to the innocence or guilt of the accused-persons. Your individual opinions, please remember, carry a great weight and they will be considered by court in coming to the final decision of court. This tells how important your task is.

2. In my summing-up of the case to you, I will direct you on matters of law, which you must accept as correct and act upon them. In other words, you are bound by my directions on law, because as I indicated in my introductory remarks at the commencement of the trial, I am the Judge on law who has to oversee that the trial is conducted according to law. I, as the Judge, also have to guide you on law for you to form your own independent opinion as to facts on the evidence in the case according to law.

3. In as much as I am the Judge on law, each one of you is also a Judge. Each one of you is a Judge on facts; and, please bear in mind that you and you alone are the sole judges of facts. Therefore, you yourself will have to decide on facts and such decision on facts cannot be made by anyone else other than each one of you and no one else can influence you in the making of your opinion. And as judges of fact, you can talk, discuss and deliberate on facts of this case among yourselves only. But, each one of you must reach your own conclusion or form the opinion as to facts based on the evidence in this case.

4. Your duty, therefore, is noble and it will ultimately decide whether the accused-persons are 'not-guilty' or 'guilty' of the offences, as charged on which I will deal with shortly.

5. Let me explain a little how your role is so important. Each one of you has attained a certain standard in life and society and possesses a wide experience. Therefore, the reason for your selection to perform the noble task as a judge on facts is that you have a better understanding and knowledge on day-to-day happenings in the society. You can, therefore, grasp and understand them better than a court of law would do because what the evidence seeks to unravel are indeed the facts that come to be in existence in the course of conduct of people or members of the community, of which you are presumed to have a better opportunity and ability of assessing and appreciating.

6. As judges of fact, it is your own duty and responsibility to decide which fact is to be true and acceptable and which one is not acceptable and should be rejected. Similarly, which witness/es to be believed; and, which version/s of the evidence is to be accepted or rejected, are entirely matters for you to decide by yourselves. So, if I happen to express any opinion on facts, or if I appear to do be doing so, you must disregard that and you must form your own opinions without being influenced by such an occurrence. Please remember that, that is because you are the Judges of fact and, even as the presiding Judge, I cannot and should not, either by design or accident, do anything that would affect your opinion of facts of this case. If such an expression appeals to your conscience and if it is in accord with your own opinion, then you may accept it.

7. Counsel for the State has made submissions to you as to how you should find the facts of the case. She has done so in accordance with her duties as counsel for the prosecution on the basis of what she perceived in her own way of thinking and analysis. However, you do not have to accept what she said. If, what she said, appeals to your commonsense and judgment and concurs with your own conclusions, then it is entirely a matter for you to consider accepting it. Otherwise, you are not bound to accept such propositions on facts as advanced by counsel.

8. The 1st accused also made submissions and said that the prosecution has not proved its case. You must consider it very seriously as his submission –even though very short- directly addressed the duty of the prosecution. If you agree that there is a failure of duty of the prosecution to prove its case, you can concur with that. The 2nd accused, however remained silent without making a closing address. You must not consider his silence to his disadvantage.

9. Your decisions must be solely and exclusively upon the evidence, which you have heard in this court, and upon nothing else. You must disregard anything you must have heard about this case, outside this courtroom. You may have seen or heard news-items in print or electronic media about this case before or during the trial. You must disregard them and your opinions should, only be based on the evidence given in this courtroom.

10. I must give each one of you a word of caution. This caution should be borne in mind right throughout until you reach your own opinions. That is - as you could hear from the evidence - this case involved an alleged incident of midnight robbery and larceny. This may shock your conscience and feelings of safety of members of the public. It is quite natural given the fact that you are also vulnerable to such an incident as members of the public. You may perhaps have your own personal and moral thoughts about such an incident. You may perhaps have your own personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and or emotive thinking.

11. The State alleges that the two accused-persons are responsible for the incident; and, they are accordingly charged on the basis of two offences under our law. You act as judges of facts in this case to decide on legal culpability as set-down by law, to which every one of us is subject to in the society that we live in. Your duty here is to decide whether the two accused-persons could be found guilty under the law on the basis of facts before you. I will deal with the law as it is applicable to the offences in a short while.

12. Before doing so, I must tell you about a very important matter of law in a criminal trial. This is sometimes described as the golden rule in a criminal case. That is the presumption of innocence that an accused person is entitled to in law. The effect of the presumption is that the accused-person is presumed to be innocent until he is proven 'guilty'. In other words, even though, there are offences, with which the two accused-persons are charged, by law they are presumed to have been innocent. This presumption is in force until and unless you form your own opinion at the end of this case solely on evaluation of evidence. Your independent opinion only could remove this presumption after all these proceedings and, your deliberations on evaluation of facts are over.

13. The presumption of innocence, which is always in favour of an accused person, brings into force another very important point of law. That is with regard to the burden - or sometimes referred to as the onus - of proof of the case. The case, as you know has been brought by the Director of Public Prosecutions (DPP) on behalf of the State against the two accused-persons on the basis of an allegation that they committed the offence of 'Robbery with Violence' punishable under Section 293 (1) (b) of the Penal Code. The 2nd accused is also charged for having committed the offence of 'Larceny' under Section 259 of the Penal Code. The burden of proof of these two charges against each one of them, in light of the presumption of innocence that I explained to you, therefore, lies always with the State. To put it simply, the burden of proof of the case against the accused-persons fairly and squarely rests always on the prosecution, that is the State-the complainant. The prosecution is never relieved of that responsibility and its disproof does not shift to the accused-persons.

14. In other words, if I am to put it differently from the perspective of the accused-person, there is no burden of proof whatsoever on the accused. You will recall that the accused-person is presumed to be innocent and, therefore, there need not be any burden on them to prove their innocence. Their innocence is presumed by law.

15. In as much as the burden of proof is on the prosecution, that burden should be discharged by the prosecution on the basis of a certain standard that has been set by law. The standard of proof set by the law is 'proof beyond all reasonable doubt'. Therefore, please remember that the standard of proof in a criminal trial is proof beyond all reasonable doubt. This means that the prosecution, having the burden of proof on its shoulders, should also prove its case against the two accused-persons beyond all reasonable doubt.

16. Madam-assessor and gentlemen-assessors, please note that if the prosecution has not discharged its burden of proof or has not been able to reach the standard of proof as set by law, then the case for the prosecution fails. If you find a reasonable doubt in the case for the prosecution, such doubt should always be given to the accused-persons. You have to remember that at no time the prosecution is entitled to the benefit of any doubt that may occur in the course of the prosecution case or defence case, which I will advert to when I sum-up evidence later.

17. Proof beyond reasonable doubt means that, before you find the accused-persons guilty of the offences charged, you must be satisfied in your mind that you are sure of their guilt. If something puzzles in your mind as to their guilt in respect of the applicable charge/s against them after evaluating facts based on the evidence - that means - that the prosecution has not satisfied you on its standard of proof. In other words, there is a doubt you reasonably perceive as to the commission of the offences as charged by the accused-persons. Such doubt should always be resolved only in favour of the accused-persons. You must, thereupon, express an opinion that they are not guilty.

18. I will now deal with the charges on the information as amended on 23.08.2010 just before commencement of the trial and read over to you, upon which this trial proceeded. They are under Section 293(1) (b) and Section 259 of the Penal Code.

19. The particulars of the offence as alleged by the prosecution under Section 293 (1) (b) against the 1st and the 2nd accused are that:

'TEVITA VATUKARASA and JALE DYER on the 12th day of April, 2008 at Lautoka in the Western Division robbed MADWA NAND S/O BAL GOVIND OF FJ$ 10.00 cash and immediately before the time of such robbery did use personal violence to the said MADWA NAND s/o of BAL GOVIND.'

Therefore, it is clear that it is only the two accused before court who have been charged for robbery with violence on witness Madhwa Nand under count (1). This means that according to the prosecution allegation only two of the accused are alleged to have been responsible for the robbery with violence. Please remember that this undisputed fact is very important when it comes to analyse the evidence in this case because evidence has to be analysed only in relation to the offence for which an accused stands charged.

20. The particulars of the offence under Section 259 as alleged against the 2nd accused are that:

'JALE DYER with others on the 12th day of April, 2008 at Lautoka in the Western Division stole an ipod, an eye glass, suitcase, 6 bula shirts. 6 pairs of long pants, a blood pressure machine and a sugar monitor, all to the total value of USD 1410, the property of Parma Nand Sharma.'

21. The charge of larceny under count (2) is on the basis that the 2nd accused with others unknown committed that offence on witness Pharma Nand Sharma. This means that the prosecution has to prove that the 2nd accused along with others stole the items listed in the charge from witness Sharma. This fact is also very important when you analyse evidence against the 2nd accused in relation to count (2) because you are called upon to see the evidence to fit into the charge only.

22. I must explain the legal basis of these charges. When charges are laid jointly against more than one accused-person in this manner, it brings into focus an important legal principle, which is known as the 'doctrine of joint enterprise'.

23. Usually, a person is liable in law for only acts committed by him and for his conduct and such acts or conduct attract criminal liability if they are unlawful acts or unlawful purposes. The doctrine of joint enterprise is an exception to that general rule, of course, for valid and sound reasons. The principle is explained under Section 22 of the Penal Code, which reads:

'Offences committed by joint offenders in prosecution of common purpose

'When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.'

24. Madam-assessor and gentlemen-assessors, this is how the principle works if I were to borrow the example cited by the learned prosecuting counsel. Three people plan to rob a shop and one stands guard outside looking out for any police surveillance. One man goes inside and holds the security guard, while the other threatens the cashier with a gun and takes all the cash. All three men then make their get-away. Now, you will see that only the third man did the actual act of offence, while the other two helped to execute the plan of robbery. Under the law, each one of them is held liable for the offence of robbery with violence irrespective of the individual roles played by each one of them under the doctrine of 'joint enterprise'. For the principle to work under the section, there should be evidence beyond reasonable doubt that:

(i) There should be two or more persons forming a common intention to prosecute an unlawful purpose;

(ii) In prosecution of that unlawful purpose, an offence/s should be committed; and,

(iii) The commission of such offence/s should be the probable consequence of the prosecution of that unlawful purpose.

25. In dealing with the principle, you must also consider the following factors as matters of law. They are:

(i) The case of each accused must be considered separately. That is, you must find evidence as to what each accused did to demonstrate that he too had shared the intention in common to prosecute the unlawful purpose;

(ii) Each accused must have been actuated by that common intention with the doer of the unlawful purpose at the time the offence was committed and should have contributed in some meaningful way towards the prosecution of the unlawful purpose;

(iii) Each one of them should have known that the commission of the offence is a probable consequence of the prosecution of that unlawful purpose.

(iv) Common intention must not be confused with same or similar intention entertained independently of each other. Instead, it should clearly be distinguished from similar intention. That is, if you find no evidence to show a particular accused did not share the intention in common with others and that he was actuated by his own intention which was, however, similar to the intention of others, you can find that accused guilty only for what he has committed and not for anything else;

(v) There must be evidence, either direct or circumstantial, of pre-arrangement or some other evidence of common intention. Sometimes, such common intention could occur on the spur of the moment;

(vi) The mere fact of the presence of the accused at the time of the offense is not necessarily evidence of common intention.

26. I must direct you on the application of this legal principle in this case bearing in mind that the two separate charges have been based on that principle but on two different sets of facts. If I am to elaborate, it is the 1st and the 2nd accused only who are covered by the joint enterprise according to the information of the DPP in regard to the offence of robbery with violence in count (1). Therefore, it is their actions only, if revealed by evidence, that can cast criminal responsibility on each one of them or both of them for the offence of robbery with violence.

27. However, insofar as the charge of larceny under count (2) is concerned, it is alleged that the 2nd accused with others, who remain unknown, stole the property. Therefore, the 2nd accused is criminally liable for his actions and those of others unknown, if and only if they were actuated by a common intention to prosecute an unlawful purpose in the prosecution of which the offence of larceny was committed.

28. You must always bear in mind the above legal principles in evaluating facts on the basis of evidence in this case against the accused as the acts and the conduct of each accused have to be considered in two different sets of facts according to the particulars of charges laid against them as stated a little while ago. The principles, therefore, merit its reiteration (Principles reiterated).

29. I will now deal with the offences with which the two accused are charged.

(a) The 1st and 2nd accused are charged in common with the offence of 'Robbery with Violence' punishable under Section 293 (1) (b) of the Penal Code under count No. (1). The Section states that:

'293.-(1) Any person who-

(a)...

(b) robs any person and, at the time of or immediately before or immediately after such robbery, uses or threatens to use any personal violence to any person, is guilty of a felony, and is liable to imprisonment for life, with or without corporal punishment

(b) The 2nd accused is charged under section 259 of the Penal Code. The Section states:

259.-(1) A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof:

Provided that a person may be guilty of stealing any such thing notwithstanding that he has lawful possession thereof, if, being a bailee or part owner thereof, he fraudulently converts the same to his own use or the use of any person other than the owner.

(2) (a) The expression "takes" includes obtaining the possession-

(i) by any trick;

(ii) by intimidation;

(iii) under a mistake on the part of the owner with knowledge on the part of the taker that possession has been so obtained; or

(iv) by finding, where at the time of the finding the finder believes that the owner can be discovered by taking reasonable steps.

30. In law, robbery is an aggravated form of theft. The conduct and/or circumstances that convert an ordinary theft to robbery are described in the above section. In this case, the two accused are charged in common under count (1) for the offence of Robbery with violence. The prosecution therefore must establish beyond reasonable doubt that the two accused acted in joint enterprise and took away FJ$ 10 from Madhwa Nand and immediately before such taking away they used personal violence on him. Violence is offensive behaviour by someone that will cause some harm to another. Violence is different from intimidation and if the conduct of the accused reveals only intimidation there is no offence of robbery with violence committed but only the offence of theft. Please remember that the two accused are charged on the basis of joint enterprise and the prosecution evidence must therefore show that they had shared the intention to do the unlawful purpose and they were actuated by common intention for an unlawful purpose in the prosecution of which the offence of robbery with violence was committed and that they reasonably apprehended the commission of that offence as the probable consequence of the unlawful purpose. In forming your opinion, you must be reminded yourselves of the principles of joint enterprise.

31. You must also bear in mind that a person's intentions are locked up in mind. However, intentions can be inferred by the words spoken out. The intent can be proved by what one tells others, or it can be inferred from one's conduct prior to, during and subsequent to the act or conduct in question.

32. As regards the 2nd count is concerned, the prosecution must show that the 2nd accused had shared the common intention with some others to steal the property stated in the particulars of the charge and took and carried away the property with intent to permanently deprive the owner of such property. For this, you must consider evidence to see whether there was any conduct and/or act by the 2nd accused with others which demonstrate the formation of the common intention to prosecute an unlawful purpose. And that the 2nd accused or others who were alleged to have been in his company were actuated by such common intention. In the case of larceny, you must consider how the taking away of property took place. It can be by way of a trick or intimidation. In either case, the offence of larceny is constituted.

33. Madam-assessor and gentlemen-assessors, the formation of common intention in respect of the two situations in two charges make the mental element of the crime. Taking away the property, committing violence and causing intimidation, as applicable, constitute the physical element. You have to always bear in mind that all these elements should be established by the prosecution at all times together for it to succeed in the proof of charges.

34. It is now time for me to tell you about the nature of evidence that can be offered in a case. A witness can give evidence on his observations, like what he heard, what he saw, and what he perceived by his own senses. That is called direct evidence.

35. As a matter of law I must direct you on circumstantial evidence. In circumstantial evidence, you are asked to piece the story together from witnesses who did not actually see the crime being committed by a particular accused, but give evidence of other circumstances and events that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime by the accused and accused alone.

36. I cite the following situation as an example for circumstantial evidence. Madam assessor, you notice that your pair of bangles on your right hand are found missing. And, you find your office assistant keeping them it in her hand bag. You make a claim to them as you can reasonably infer that she had taken it when they were either fallen from your right hand or as you had kept it somewhere as you went to the washroom. Here, you did not see her taking your bangles, but you can reasonably infer that she had your bangles in whatever way in the absence of a plausible explanation to say that they were her property. However, if you find a lady wearing the bangles similar to yours in her right hand at a market, your inference that she has taken your bangles is not reasonable as there are other possible inferences. For example, it may well be that she had owned a similar pair or that she was wearing a similar pair lost, pawned or sold by another person. So, that lady had taken your bangles is not the only inference in the absence of a unique and distinct mark on the property.

37. Therefore, circumstances are not made of by mere speculation or guesswork. They must be established beyond reasonable doubt and the proved circumstances must only be consistent with the accused having committed the crime. To find an accused guilty, you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the circumstances proved. It must be an inference that satisfies you beyond reasonable doubt that the accused committed the crime and that inference should be irresistible and inescapable on the evidence. Before you can draw any reasonable inference, you must first be satisfied beyond reasonable doubt, that the evidence given by each witness relating to the circumstances giving rise to the issues of fact to be proved is credible and truthful.

38. You must consider all direct evidence - that is what witnesses saw, heard or perceived by their senses, as well as circumstantial evidence.

I will now summarize the evidence in the case.

PW-1: Madhwa Nand

'I recall one Parma Nand hired my taxi. Whenever, he came from America, he hired my taxi. I took him to Galba Street in Lautoka. When I stopped, somebody came near the car and before I took the stuff of Parma Nand, one man came and wanted to hire my taxi. I told my taxi is already booked. He was beside me. Then he grabbed me from behind. My taxi was about 10 metres away. There was light in the house. That light accessed or not I can't remember. 'Do you remember anything?' – 'I can't recall'. He called others and he grabbed me. He used Fijian language. I did not say anything. Six or seven came out when he called. They took the bag of Parma Nand, loose cash amount $10, and stuff of Parma Nand. I called Parma Nand. He was in washroom. He came outside and told the guys to leave me. They freed me after that. They ran away. Nothing was done on me. There was a way going down Parma Nand's house, they went that way. They threw a beer bottle on me but I escaped myself and it hit the gate. Before they ran they did it.'

Cross-Examination by the 1st Accused

'Q: Did you receive any injury on that day

A: No.'

2. PW-2: Parma Nand Sharma

'I can't be sure whether it was 11/3 or 11/4. I remember going to Lautoka on 11/4/08 night. I remember taking a taxi to Lautoka. It was before 11pm. I went to the airport to pick up friends and then to Lautoka. I dropped off people. I came to Galbar Street. Soon after the taxi came, I went with some of the belongings and rushed to the washroom. Soon after, I saw front of the taxi was open and four people close to the taxi. They surrounded the taxi driver. I did not go outside. The car was parked outside the gate front facing the house. They were grabbing the belongings and left nothing in the car and ran away. I went inside and called Police.

I can recall the things brought by police – shirt, suitcase, some parts of the blood pressure monitor, I-pod speakers. I identified them as mine.'

3. PC 3841 Simione

'I did a search on Tevita Vatukarasa (Accused 1). On 18/4/08 I was involved with Tevita Vatukarasa. When he was brought to the Police Station, I was on duty as an inquiry man. I was involved only when he was escorted to Magistrates Court from the cell. At no stage, he complained to me.

I was also involved with Jale Dyer. I released him from the cell and took him to be interviewed by Sergeant Martiona. I see Jale Dyer present in Court. Accused 2 identified. I identified Accused 1. J. Dyer never complained of any treatment at Police Station.

Answering cross-examination, he said he did not see any injury on the 1st Accused. He could not remember when the 1st Accused and the 2nd Accused was brought to the Police Station.'

4. PC 3220 Ronald

'I recall bringing in Jale Dyer to the Police Station. He was a suspect in a case of robbery. We went with PC

Allan, DC Vimal, DC Nimlesh, PC Rajneel and he was arrested from his house and escorted to Lautoka Police Station. He was co-operative at arrest no force used. He was not the only suspect in this case. Tevita Vatukarasa was another suspect. Tevita Vatukarasa was arrested before. Tevita Vatukarasa interviewed by Police. I was present at the interview. I did not conduct the interview. PC Rajneel conducted the interview. There was a record of that interview. Suspects rights were given to him. Charge was admitted by Tevita Vatukarasa. It was not because I forced him to admit. No questions were answered against his will.

There was a search at Tevita Vatukarasa's house. I was involved in the search. There were things recovered from Tevita Vatukarasa's house. These were brief case, clothing, Bula shorts, Ipod speakers, diabetes machine. They were identified by owner of the items. I recalled charging Tevita Vatukarasa. There was a record of charging.'

Answering cross-examination by the 1st Accused, the witness said right to engage a lawyer was not recorded but it was verbally given. Answering further, he said that he did not assault the 1st Accused. When he was questioned as to whether someone ought to have been present when he was being questioned witness said his rights were given and he voluntarily signed.

5. PC 3021 Rajneel

'I was detailed by supervisor to be the investigating officer. I came across suspects Tevita Vatukarasa and Jale Dyer. I received information from a member of public who wished to remain anonymous. I acted on this information. On suspicion I arrested Tevita Vatukarasa. In the caution interview, he admitted commission of the offence. Tevita Vatukarasa was arrested at his residence, 50 metres ahead of Simplex Lane, 100 metres to the left. There was a search at his residence. There were recoveries made. Brief case, Bula shirt, Ipod speakers, medical machines. There were shown to the owners and he identified. Mr. Parma Nand Sharma was the owner. There were the same items reported stolen.

Q: Was there another arrest?

A: Yes. The other person was arrested at Natokowaqa. He is Jale Dyer. I conducted a search at Jale Dyer's residence. There was a recovery of a Jacket. I can't recall whether it was part of the items stolen. It is identified by the complainant.

There was an interview conducted on Jale Dyer by late Sergeant 2234 Maritino. There was a record of the interview language in Fijian. This was translated into English.

Ipod speakers, Bula shirt and brief case recovered from Tevita Vatukarasa. Medical machines from Tevita Vatukarasa. Accused 1 identified by witness.

Jacket recovered from Jale Dyer. Accused 2 identified by witness.

Cross-Examination

Q: Questions 1 to 33 were not answered by me but by the informant

A: No.

Q: I put it to you that from the information you gathered you put that into writing in caution interview there was no one to witness?

A: Not correct. PC 3220 Ronald was present.

Q: Could that be correct when you are in the same party?

A: I believe it is the facts in an investigation. Any Police Officer witnessing this caution interview - rather records independently as a witness.

Q: How could this be correct when this was no identification parade?

A: Witnesses could not identify the suspects and in such cases, we are using different modes of investigations.

Q: Everything in this caution interview is made up?

A: Not correct.

Q: How could that be incorrect been you received information?

A: Tevita Vatukarasa's house was searched. Partial properties were recovered.

Q: After how many days properties were recovered?

A: It was after 2 years and can't recall it properly.

Q: You said that you were intelligent, why can't you recall what happened 2 years ago?

A: I worked for the Intelligence Department.'

Accused 2 – no questions

The case for the prosecution was closed with the evidence of those witnesses and exhibits marked as Exhibits PE1)–(4), which are before you. You must consider those exhibits before your opinions are formed

39. After the case for the prosecution was closed, you may recall, that I explained the rights available to the two accused. I was under duty to do so. You must not misunderstand that the exercise of my power under law as requiring the accused to answer the charges and that that it was a call to prove their innocence or disprove the case for the prosecution. There is no such compulsion but the 1st accused on his own free will came forward and gave evidence. That evidence too should be considered. He said:

'On the day the incident took place on the 11/04/08 12.30am early Saturday morning My Lord I, Tevita Vatukarasa, sworn by this Bible that I was at home sleeping. My Lord on the 18/04/08 after 7 days I was confronted by PC 3021 Rajneel Chand at home. He escorted me to the Shirley Park Police Post for interrogation for an offence that took place on the 11/04/08 at 12.30am. (The State has compromise the trial by changing the date of the offense that took place). My Lord the interviewing officer unlawfully took my statement by oppressing me (mentally torture) without giving me breakfast and lunch and not giving me time to relieve myself when nature calls and not giving me a drop of water to drink during and after the interview.

My Lord, the interview was unlawfully taken from me by using oppressing and assault by the interviewing officer during and after the interview.'

Answering cross-examination, he said that he did not steal the things that were said to have been recovered from his house. He denied the suggestion that he was lying to save him.

40. The second accused, too chose to give evidence from the witness box and said that he did not commit these offences and asked for forgiveness. Answering cross-examination that he was asking for forgiveness because he committed the offences, he flatly denied and rejected all the suggestions of the prosecution.

41. You must consider this evidence very carefully and take into account that they chose to give evidence whilst facing serious charges their demenaour and deportment should be considered in that context and you must not entertain any adverse views against their conduct in the witness-box.

42. I have summarized all the evidence before you. But, still I might have missed some evidence. That is not because they are unimportant but due to an oversight. You heard every item of evidence and you should be reminded yourselves of all that evidence and form your opinions on facts.

43. In this case there is no evidence on identification of anyone of the two accused committing the offences. There is only evidence from the two witnesses that the incident of taking away of the property from the taxi of Madwa Nand took place on the 12th April, 2008 without identification of any offender.

44. The prosecution alleges that it was the two accused, who are responsible for the incident involving the two witnesses. The prosecution relies only on two items of evidence. Those are the cautioned-interview statements and the matters relating to recovery of property.

45. Cautioned-Interview statements have to be considered cautiously by you because they are confessions made to a police officer. They are made admissible in view of cautions administered on the makers of the statements by police officers. Those two statements are before you. In considering them you have to consider the position taken-up by the two accused that they were subjected to assault and that they were influenced to make admissions to the commission of the offences. If you find that cautioned statements are not reliable and safe to act upon you can reject that evidence. If you choose to accept cautioned-statements as reliable and safe, then you must consider whether each statement discloses an admission to the commission of offence/s in the respective charge.

46. You must remember that in count (1), only the two accused are sought to be brought under the joint enterprise doctrine for the offence of robbery with violence. Therefore, you must consider only their individual acts to find them guilty for the alleged offence of robbery with violence under count (1). If there is no admission as to the taking of FJ$10 after using violence by anyone of them, you must find them not guilty.

47. These legal principles in regard to the cautioned-interview statements must also be borne in mind. Firstly, it is admissible only against the maker of the statement. Secondly, any implication of any other person/or persons, who are not referred to in the charge, should not be considered to attract liability on joint-enterprise for the offence of robbery with violence under count (i) because the count alleges only the presence of two accused before court.

48. Therefore, as regards the first count, you must read the cautioned statement carefully to find out whether there is unequivocal admission of robbery of FJ$10 from witness Madhwa Nand by the 1st accused. Any reference to a plan of committing robbery alone will not be sufficient as it is only an act of preparation. Under law, in this case, such a plan or preparation will not be enough to find the 1st accused guilty of the substantive offence of robbery with violence.

49. Similarly you must find out whether there is unequivocal admission by the 2nd accused in regard to an act of robbing of FJ$10 from the witness-Madhwa Nand in the cautioned statement. Again you must remember his admission is only admissible against him only and any implication of the 1st accused in the statement is not evidence against the 1st accused.

50. Therefore, if you do not find any unequivocal admission in regard to the act of robbery alleged in the 1st account, you must find the 1st and the 2nd accused not guilty of the charge in count No(1).

51. As regards the 2nd count, you must find out whether there is unequivocal admission on the part of the 2nd accused in his cautioned statement as to the theft of the items listed in count (2) in order to find the 2nd accused guilty for the commission of the offence of larceny.

52. As regards the recovery of property, I must tell you that the prosecution failed to produce any evidence on the recovery of property from the two accused and as to their identification by witness-Sharma. He gave evidence that the police brought some items like shirt, suit case, i-pod speakers, blood pressure monitor and that he identified them as his. But, the property in question was not produced in court by the prosecution. Even though, there is no hard and fast rule to produce the relevant property in court, such production carries an essential corroborative value to the case in the absence of any other independent evidence. Moreover, there is only a sworn testimony as to the recovery and their identification without affording the opportunity to you-assessors to verify the evidence on recovery. It also denied the right of the accused to question on the recovery and identification of the productions. You must consider this aspect also when you consider evidence on the recovery of property.

53. While the recent possession of lost property furnishes incriminating evidence against an accused person who possessed them, the absence of such evidence in court could render such recovery and identification questionable. This is a matter for you to decide whether the alleged recovery and identification were a myth, especially when those properties are neither produced nor explanation given for their non-production by the prosecution. If you feel that a witness's statement alone would be sufficient, then it is entirely a matter for you to decide.

54. When considering the evidence of property you may recall that there was evidence that certain property was recovered form the 1st accused. You must remember that there is no charge now against the 1st accused on the basis of recovery of that property. Therefore you must disregard that evidence against the 1st accused.

55. As regards the 2nd accused, there is only evidence as to the recovery of a jacket without any description and without any marks of identification. Jackets are a common household item! But, there is no charge on the basis of the recovery of the jacket against the 2nd accused. The count (2) against him alleges the theft of 'an i-pod, an eye-glass, suitcase, 6 bula shirts, 6 pairs of long pants, a blood pressure machine and a sugar monitor'. There is no evidence to show that anyone of them has been recovered from the possession of the 2nd accused despite the charge alleges so. There is no reference to the receiving those items in the charge in the caution interview stated of the 2nd accused. Therefore, as regards the 2nd accused, evidence on recovery of property is not consistent with the charge and you can disregard that evidence against the 2nd accused. Always remember that the prosecution had to prove it beyond all reasonable doubt.

56. Madam assessor and Gentleman assessors, this concludes my summing up of the Law. Now you may retire and deliberate together and may form your individual opinions on the charge against each accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court, and you will be asked to state your separate opinion.

I thank you for your patient hearing to my summing-up.

You may retire to consider your opinions now.

Priyantha Nawana
Puisne Judge

At Lautoka
27th August 2010