State v Vatunalaba - Summing Up [2010] FJHC 96; HAC134.2008 (29 March 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 134 of 2008

STATE

V

PAULIASI VATUNALABA

Date of Hearing: 11th & 29th March 2010
Summing Up: 29th March 2010

Counsel: Ms W. George for State
Mr. T. Terere for Accused

SUMMING UP

Madam Assessors and Gentleman Assessor

It is now my duty to sum up to you. In summing up the case I will direct you on matters of law which you must accept and act upon. You must apply the law that I direct you on in this case. On the facts however, it is for you to decide what facts to accept and what facts to reject. In other words, you are the masters of fact.

If, in the course of this summing up, I express my opinion on the facts, or if I appear to do so, it is entirely a matter for you whether you accept what I say or form your own opinions.

Both counsel made submissions to you at the end of the trial, about how you should find the facts of the case. That is their right. But you are not bound by closing submissions. If what they have said appeals to your own sense of judgment, then you may accept them. You are the representatives of the community at this trial and you must decide what really happened in this case.

You will not be asked to give reasons for your opinions but merely your opinions themselves. Your opinions need not be unanimous although it would be desirable if you could agree on them. Your opinions are not binding on me but they will carry great weight with me when I come to deliver my judgment.

On the question of proof, I must direct you as a matter of law, that the prosecution bears the burden of proving the accused’s guilt. That burden remains throughout the trial upon the prosecution and never shifts. There is no obligation upon the accused person to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proven guilty.

The standard of proof in a criminal case is one of proof beyond a reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused person before you can express an opinion that he is guilty. If you have any reasonable doubt about the guilt of the accused you must express an opinion that he is not guilty. You may only express an opinion of guilt if you are satisfied so that you are sure that he committed the offence alleged.

Your opinions must be based solely and exclusively upon the evidence which you have heard in this court and upon nothing else. You must disregard anything you may have heard or read about the case outside this court. Your duty is to apply the law to the evidence you have heard.

The Accused is charged with an offence of larceny by servant. The State says that the Accused between the months of June and July 2008, being employed as a servant of Digicel Fiji Limited stole copper wires valued at $11,200.00 the property of Digicel Fiji Limited. The word servant is just an old fashion word for an employee.

The offence of larceny by servant has several elements which the prosecution must prove beyond a reasonable doubt. They are:

1. The Accused,
   
2. Being an employee of Digicel Fiji Limited,
   
3. Took copper wires,
   
4. The property of Digicel Fiji Limited,
   
5. With the intention of permanently depriving Digicel Fiji Limited of the said property.
   

In this case, the prosecution relies on circumstantial evidence to prove the intention of the Accused. A person’s state of mind is as much a question of fact for you to determine as any other question of fact. It is not possible to have direct evidence of this. No witness can look into the Accused’s mind and describe what he was thinking at any particular time. However, it is something that can often be inferred from all the proved facts and circumstances.

They include, for instance, what the Accused himself actually did. That will often be a very important matter. A person’s actions, in themselves, may clearly show his intention. Other matters that may be relevant are what the Accused said and did before the alleged offence. What the Accused said at the time of the alleged offence. What the Accused said and did after the alleged offence, including his statement to the police.

You should consider all the proved facts and circumstances, including those I have just mentioned, and from them you are entitled to draw proper inferences as to the Accused’s intentions.

There are a number of facts which are agreed in this case. You may accept them as if you had heard them given in evidence by witnesses. These facts are not in dispute.

It is agreed that between June and July 2008 the Accused was an employee of Digicel Fiji Limited and was based at the company’s warehouse in Valelevu. He was employed as a labourer and his duty included cleaning and burning rubbish.

It is not in dispute that the copper wires valued at $11,200.00 were the property of Digicel Fiji Limited. What is disputed by the Accused is that he took the copper wires at all, and therefore that he had the intention of permanently depriving the employer of it.

The prosecution called two witnesses.

Semi Niubalavu was employed as a cleaner at the Digicel Warehouse in Valelevu. He said he could recall a Saturday in the month of June or July, he saw the Accused burning copper wires with another person, behind the warehouse. He said the copper wires were being burnt together with other trash. Semi saw the Accused taking the copper wires from inside the warehouse. The Accused told Semi that the copper wires were trash and were not going to be used again. Semi reported the matter to Jack.

Jack Sotia gave evidence. He said he was the store man at the Digicel Warehouse in Valelevu. He found copper wires were missing from the Warehouse in the month of June or July 2008. On a Saturday he saw the Accused burning some cartons. He did not see the copper wires. He suspected the copper wires were hidden underneath the cartons. When Jack asked the Accused why he was burning cartons, the Accused replied "settee" meaning everything was normal. Later on the same day, when the security officer hosed the burning area, Jack saw burnt copper wires. The Accused and the security officer were standing at the location of the burnt copper wires. Jack said the burning removed the insulation from the copper wires. He said as a result of the burning the copper wires were of no value to Digicel Fiji Limited. The wires were in bulk and would have required two people to move it. When Jack asked the Accused why he burnt the copper wires as they were going to be used in the Nadi office, the Accused replied not to say anything about it. Jack said the Accused swore at him and walked away. In cross examination, Jack said the Accused swore because he was angry with him for persistently asking whether he took the copper wires.

At the end of the prosecution case you heard me give the Accused several options. He could have remained silent, or given evidence. He chose to remain silent. You must not hold his silence against him. The exercise of right to silence cannot amount to an admission of any kind nor can it be taken to reflect a guilty conscience. The reason he was given his options was that he does not have to prove his innocence. The burden of proving his guilt rests on the prosecution at all times.

You may think that the caution statement of the Accused gives an insight of the defence case. The defence case is one of a complete denial.

The issue for you to decide is whether over the period between June to July 2008, the Accused stole copper wires from Digicel Fiji Limited. Did he take the property of his employer with intention to permanently deprive the company?

The prosecution says the Accused removed the copper wires from inside the warehouse and burnt it with the intention of depriving the employer of the property. The prosecution relies on the evidence of Semi who saw the Accused taking the copper wires from inside the warehouse. The copper wires were burnt and Digicel Fiji limited was permanently deprived of the property. The prosecution says that intention of the Accused can be inferred from the conduct of the Accused. He covered the wires under the cartons to burn it and when confronted as to why he burnt the wires he told Jack not to say anything. You may draw the inference that the State is asking you to draw if you are satisfied beyond a reasonable doubt as to feel sure that the only reasonable inference that is available on the proven facts is that the Accused had an intention to permanently deprive his employer of the copper wires when he took them from the warehouse.

The defence says that the Accused did not take the copper wires. The defence says that the Accused only burnt thrash and the copper wires he burnt were used wires. The defence says that the Accused did not have an intention to permanently deprive his employer of the property. The defence says that the Accused did not steal anything.

Which version of the facts you accept is entirely a matter for you. If you have a reasonable doubt about the guilt of the Accused you must find him not guilty. But if you are satisfied of the Accused’s guilt beyond a reasonable doubt then your proper opinion is guilty.

Madam and Gentleman assessors, that concludes my summing up of the law and the evidence in this particular trial. We have now reached the stage where you must retire to your room to deliberate together and form your individual opinions on the charge against the Accused. When you have reached your separate decisions you will all come back into Court and you will each be asked to state your opinion as to whether the Accused is guilty or not guilty of the charge. The possible opinions you could have in this case as I have already explained to you are that the Accused is guilty or not guilty of larceny by servant.

Would you please now retire to consider your opinions? When you have made your decisions would you please advise the Court officer and the Court will reconvene to receive your opinions?

Thank you.

Daniel Goundar
JUDGE

At Suva
29th March 2010

Solicitors:
Office of the Director of Public Prosecutions, Suva for the State
Legal Aid Commission, Government Buildings, Suva for the Accused