State v Maya - Summing Up [2011] FJHC 258; HAC86.2009 (11 May 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 86 OF 2009

STATE

vs

NOA MAYA

Ms M. Fong for the State
Accused in Person

SUMMING UP

[1] The time has come now, assessors, for me to sum up the case to you and to direct you on the law involved so that you can apply those directions to the facts as you find them.

[2] I remind you that I am the Judge of the Law and you must accept what I tell you about the law. You in turn are Judges of the facts and you and only you can decide where the truth lies in this case. If I express any particular view of the facts in this summing up, then ignore it unless of course it agrees with your view of that fact. You can ignore whatever Counsel says about the facts if you don't agree.

[3] You will take into account all of the evidence both oral and documentary. You can accept some of what a witness says and reject the rest. You can accept all of what he or she says and you can reject all. As Judges of the facts you are masters of what to accept from the evidence.

[4] You must judge this case solely on the evidence heard in this courtroom. There will be no more evidence. You are not to speculate on what evidence there might have been or should have been. You judge the case solely on what you have heard and seen here.

[5] The Courtroom is no place for sympathy or prejudice. If you have prejudice against young men acting violently, don't let that cloud your view of the evidence.

[6] I am not bound by your opinions but I will give them full weight when I decide the final judgment of the Court.

[7] It is most important that I remind you of what I said at the beginning. The burden of proving the case against this accused is on the prosecution. And how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty – that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you. If however you are sure that the accused robbed the occupants in Sugar Street, that you will find him guilty.

[8] The accused is charged with robbery with others. Robbery is committed when a person steals something and at the time of stealing or immediately before the stealing he uses force or puts any person in fear of being then and there subjected to force. So the State must prove to you, so that you are sure that –

(i) This accused;

(ii) Stole items from the house;

(iii) At the time he used force or threatened force putting the victim in fear of force.

[9] You heard the evidence this morning and I don't intend to go over it in detail. Mr. Garana the victim told you about events on the evening of 11 September 2007 in his house at Sugar Street. He said 3 masked men came into his house, armed with pinch bars, they forced him into his bedroom and took jewellery, cash and a portable DVD player. He was panicky and afraid, quite understandably. His sister-in-law had earrings ripped from her ears by hand leading her to go to hospital. The men fled from the scene in a getaway vehicle.

[10] The Police gave evidence of the arrest of the accused and the making of his interview under caution. It was read out to you and you remember it contained a frank confession to the offence of robbery.

[11] You heard me tell the accused his rights and options in defence. He chose to give sworn evidence. Remember that he did not have to say anything, he has nothing to prove; the State must prove that he committed the offence beyond reasonable doubt. Nothing the accused says removes that burden from them.

[12] The accused told you of his arrest on 21st September 2007 and his treatment in the Lautoka Police Station up until his interview on the 23rd September. He said he was assaulted, blindfolded and covered with chillies by many officers over a 2 days period. By the time he got to the interview he had "given up" and confessed out of fear of further assault. He also said that the interview was fabricated entirely by the Police and that the answers are not his – he was just forced to sign.

[13] The accused told you that all the robbers have been convicted and he didn't do it. Firstly, it is not true that all the robbers have been convicted and secondly what happens to others is irrelevant – you are to consider the case against this accused alone on the evidence heard in Court today, and you must not speculate about the fate of others.

[14] I direct you as a matter of law that if you believe that the Police did fabricate this interview and that none of the answers are his then you are to discard it and then find him not guilty. If you are not sure then you will still find him not guilty.

[15] If, on the other hand, you find that he did give the answers contained in the record of interview and that he gave those answers willingly then the interview is evidence for you to consider in the normal way.

[16] If you find that they are his answers, but that they were given as a result of assaults or fear of further assaults then you will consider the interview but it is up to you how much weight you put on it according to the degree of assaults. It is all a matter for you.

[17] You may retire now, and tell the clerks when you are ready with your verdict. You will be asked individually when you return if you find him guilty or not guilty – you need not be all agreed but it would be better if you are.

Paul K. Madigan
JUDGE

At Lautoka
11 May 2011