State v Varani [2011] FJHC 269; HAC070.2010S (1 April 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 070 OF 2010S

STATE

vs

LEPANI VARANI

Counsels: Mr. J. Singh for the State
Accused in Person
Hearings: 28th to 31st March, 2011
Summing Up: 1st April, 2011

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 and the accused 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 accused, 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 accused or the victim. 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.
   

C. THE INFORMATION

7. The accused, Lepani Varani, was charged with "aggravated robbery", contrary to section 311(1)(b) of the Crimes Decree 2009. It was alleged that, on 8th February 2010, at Nasinu in the Central Division, he with others, when armed with offensive weapons, namely a pinch bar and metals, stole $5, 767.82 worth of properties, from "Rups Big Bear". The details of the properties stolen were itemized in the information, a copy of which, is with you.

D. THE MAIN ISSUE

8. Your task in this case, is to answer the following question:

(i) Did Lepani Varani, with others, while armed with offensive weapons, namely a pinch bar and metals, stole $5,767.82 worth of properties from "Rups Big Bear", on 8th February 2010, at Nasinu in the Central Division?

E. THE OFFENCE AND ITS ELEMENTS

9. For the accused to be found guilty of "aggravated robbery", the prosecution must prove beyond reasonable doubt, the following elements of the offence:

(i) the accused;

(ii) steals;

(iii) the complainant's property; and

(iv) during the theft;

(v) uses an offensive weapon to force; or

(vi) threatens to use an offensive weapon to force;

(vii) another person

(viii) with intent to commit theft; or

(ix) to escape from the scene.

10. "Stealing" is the act of taking away someone's property or properties without his permission, and with an intention to permanently deprive him of the ownership of that property or properties.

11. An "offensive weapon" is any "article made, or adapted for use for causing injury to, or incapacitating a person", for example, a knife, pinch bar, gun, iron rod, piece of stick etc. The offensive weapon must be capable of causing injury to, or incapacitating a person, when used by an offender, to commit the offence.

12. You will notice in the information, that the prosecution, in their particulars of offence, used the phrase, "... LEPANI VARANI, with others ...", at the beginning of their particulars of offence. The prosecution is alleging that the accused committed the offence with the aid of others. The others were not charged by the prosecution, for whatever reason or reasons. Those reasons are none of our concern. Nevertheless, 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 or major role, they are each deemed to have committed the offence.

F. THE PROSECUTION'S CASE

13. The prosecution's case was simple. At Nasinu, pass the Wainibuku bridge, is the "Rups Big Bear". It is a huge building painted in yellow. On 8th February 2010, after midnight, the "Rups Big Bear" complex was being guarded by two of its employees. The two security officers were Sikeli Manu (PW1) and Samuela Kata (PW2). They said, after patrolling the complex, they sat down at about 2.30am to write their reports. Suddenly, they were attacked by 4 men, armed with a pinch bar, knife and an iron rod. They were threatened with serious injuries if they resisted. The men were masked, and as a result Sikeli and Samuela could not identify them. They tied the security guards up and left them in the guard room.

14. The men later broke into the "Rups Big Bear" complex, ransacked the same, and stole the items mentioned in the charge. They later fled the scene. In the morning, after 8am, Vikash Chand the manager, found that the men attempted to break open their safe, but they could not succeed. The matter was reported to the police. An investigation was carried out. On 23rd March 2010, the accused was arrested from a vacant house in Sarawa Settlement. He was taken to Nausori Police Station. On 25th March 2010, the accused was caution interviewed by police, at the crime office, in Nausori Police Station. He admitted that he was part of the group that broke into "Rups Big Bear" on 8th February 2010. As a result, he was charged for aggravated robbery. According to the prosecution, he gave his confession voluntarily, and as a result, he should be found guilty as charged. That was the case for the prosecution.

G. THE ACCUSED'S CASE

15. When the information was put to the accused on 30th March 2011, he pleaded not guilty to the charge. In other words, he denied the allegation against him. When a prima facie case was found against him, he choose to give sworn evidence. That was his right, although the burden to prove his guilt beyond reasonable doubt lies on the prosecution from the start to the end of the trial. On oath, Mr. Varani denied the allegation against him. He admitted, he made a confession to the police when caution interviewed on 25th March 2010. However, he said, he only confessed because the police and military officers were threatening his family between February and March 2010.

16. Lepani also said, Sergeant Aminiasi (PW4), Sergeant Virendra (PW7) and Sergeant Tikiko (PW9) threatened and unduly induced him to confess to the crime. He said, he gave his alleged confessions involuntarily and not out of his own free will. As a result, Mr. Varani is asking you, as assessors and judges of fact, to reject his alleged confession, and dismiss the case against him. He said, the only evidence that connected him to the crime was his alleged confession. The security guards never identified the robbers. He asks you to reject his confession and find him not guilty as charged. That was the case for the accused.

H. ANALYSIS OF THE EVIDENCE

17. In this case, after listening to the prosecution and defence witnesses, it was clear that the parties do not dispute the following material facts:

(i) That, on 7th February 2010, after 8pm, Sikeli Manu (PW1) and Samuela Kata (PW2), were working as security guards for "Rups Big Bear" at Nasinu;

(ii) That Sikeli and Samuela were patrolling the "Rups Big Bear" Complex, to ensure that no-one breaks into and steal items from the complex;

(iii) That at about 2.30am on 8th February 2010, Sikeli and Samuela were attacked by 4 masked men, who had a pinch bar, an iron rod and knives, as weapons;

(iv) That with the aid of the pinch bar, iron rod and knives, the 4 masked men threatened Sikeli and Samuela not to resist, or they will be seriously injured;

(v) As a result of the threats, Sikeli and Samuela did not resist, they were tied up and left in the guard room;

(vi) The 4 mask men then broke into the "Rups Big Bear" complex, ransacked the same and stole the items mentioned in the charge;

(vii) The 4 masked robbers fled the scene thereafter;

(viii) Sikeli and Samuela could not identify any of the 4 robbers, as they were masked;

(ix) The matter was reported to the police, who carried out an investigation;

(x) That Mr. Lepani Varani was arrested as a suspect, at Sarawa Settlement in Waila and brought to Nausori Police Station on 23rd March 2010;

(xi) That Mr. Lepani Varani was caution interviewed by Sergeant Virendra Deo (PW7) in the English language, in the crime office, at Nausori Police Station, on 25th March 2010.

18. Because the above material facts were not disputed by the parties, as assessors and judges of fact, you can take it, as a matter of law that, the prosecution has proven the above material facts beyond reasonable doubt. They were not disputed facts. The only issue left for you to find out in this case was, whether or not, Mr. Lepani Varani was one of the 4 masked robbers, that attacked and tied up Sikeli and Samuela on 8th February 2010, broke into "Rups Big Bear", ransacked the complex and stole the items mentioned in the charge.

19. The obvious difficulty for the prosecution in this case was that, they had no eye witness to place Mr. Lepani Varani, at the crime scene, at the material time. All the 4 robbers were masked, at the material time, so no-one, including the security guards Sikeli and Samuela, could identify their faces, at the time. So, there was no direct evidence, to place Mr. Varani, at the crime scene, at the time of the robbery. That was the prosecution's difficulty.

20. How can the prosecution connect Mr. Varani to the "aggravated robbery" at "Rups Big Bear", on 8th February 2010? The prosecution produced the accused's caution interview statements (Prosecution Exhibit No. 3(a) – the original handwritten version, and 3(b) – the typed version) as evidence to connect Mr. Varani to the 8th February 2010 aggravated robbery at "Rups Big Bear". According to the prosecution, Mr. Varani voluntarily confessed to the crime, when he was caution interviewed by Sergeant 2280 Virendra Deo, at the crime office, in Nausori Police Station, on 25th March 2010. The interview started at 3.35pm and it concluded at 5.25pm. The duration of the interview was 1 hour 50 minutes.

21. According to the prosecution, from questions and answers no. 13 to 45, Mr. Varani told the police how he was induced by some of his mates to rob "Rups Big Bear" on 8th February 2010. He then told the police, how he and his mates walked up to "Rups Big Bear" carrying pinch bars and house breaking implements. He described how they tied up Sikeli and Samuela with ropes and piece of cloths. These ropes and pieces of cloths were tendered as Prosecution Exhibit Nos. 1 and 2. He then described how they broke open "Rups Big Bear", and how they attempted to break the safe, but couldn't. He then described how they were disturbed by "sounding motor vehicles", and how they fled. He said, they didn't steal anything, but this is a matter for you, if you accept his confession, and the surrounding circumstances.

22. As a matter of law, I must direct you that, a confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, before you can accept a confession, you must be satisfied beyond reasonable doubt that it was given voluntarily by its maker. The prosecution must satisfy you beyond reasonable doubt that the accused gave his statements voluntarily, that is, he gave his statements out of his own free will. Evidence that the accused had been assaulted, threatened or unfairly induced into giving those statements, will negate free will, and as judges of fact, you are entitled to disregard them. However, if you are satisfied beyond reasonable doubt, so that you are sure, that the accused gave those statements voluntarily, as judges of fact, you are entitled to rely on them against the accused.

23. You can see that, the case for the State stands or falls, on your acceptance or otherwise of the accused's caution interview statements [Prosecution Exhibit No. 3(a) and 3(b)]. The central issue that you have to decide now, is whether or not, Lepani Varani, gave those statements voluntarily to the police. In other words, did he give his caution interview statements out of his own free will?

24. In deciding the above issue, you will have to look at all the surrounding circumstances, that is, from the time he was arrested, while at the Police Station, while being interviewed, to the time he was produced in the Nasinu Magistrate Court. He was arrested on 23rd March 2010 from Sarawa Settlement, caution interviewed on 25th March 2010, and produced in the Nasinu Magistrate Court on 26th March 2010.

25. You have heard the conflicting views on the issue of the voluntariness of the accused's confession in the courtroom. Generally speaking, all the police witnesses said, the accused was not assaulted, threatened or unfairly induced into making his confession from the time of his arrest, caution interview, and when produced in court. The accused and his witnesses appear to say that, the accused was threatened and unfairly induced into giving his confession.

26. No evidence was produced in court to show that the accused suffered any physical injuries from his arrest on 23rd March 2010 to his being produced in the Nasinu Magistrate Court on 26th March 2010. The police officers who arrested and caution interviewed Varani said, he was very co-operative and he answered the questions normally. They said, he was not assaulted, threatened or unfairly induced into confessing. When Varani was cross-examined, he admitted he co-operated with police at the time of his arrest, and no force or threats was done on him. He also admitted that no force or threats was done on him when escorted to Nausori Police Station in a police vehicle. Under cross-examination, Varani admitted Sergeant Virendra asked the questions and he gave the answers during the interview. To this, you must consider the defence's position as mentioned in paragraphs 15 and 16 hereof.

27. You have heard the evidence of the 9 prosecution witnesses and the 3 defence witnesses. You have watched them in court give evidence. What were their demeanour like? How did they re-act to being cross-examined and re-examined? Were they forthright? Were they evasive? Were they argumentative? How were they dressed to court? How did they conduct themselves generally in court? Given the above, my directions on the law, your life experiences and common sense, you should be able to decide which witness's evidence, or part of a witness's evidence is reliable, and therefore to accept, and which witness's evidence, or part of his evidence, is unreliable, and therefore to reject, in your deliberation.

I. SUMMARY
28. Remember, it is for the prosecution to prove the accused's guilt beyond reasonable doubt. It is not for the accused to prove his innocence. The burden of proof lies on the prosecution to prove the accused's guilt beyond reasonable doubt, and that burden stays with them throughout the trial. If you accept the prosecution's version of events and you are satisfied beyond reasonable doubt and are sure of his guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt and are not sure of his guilt, you must find him not guilty as charged.

29. Your possible opinion in this case is:

(i) Aggravated Robbery - Guilty or Not Guilty

30. You may retire to deliberate. Once you have reached your decisions, you may inform the clerk, so that we could reconvene to receive them.

Salesi Temo
Acting Judge

Solicitors for the State : Office of Director of Public Prosecution, Suva.
Solicitors for Accused : In Person