State v Serukalou [2011] FJHC 270; HAC154.2008 (13 May 2011)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 154 OF 2008

BETWEEN:

THE STATE

AND:

1. KELEPI SERUKALOU
2. EMORI NAQOVA
3. JOSATEKI CAMA
4. ASESELA TAWAKE
   

Counsels: Mr. Jasveel Singh for the State
Mr. Akuila Naco for all Accused Persons

Date of Hearing: 4th to 12th May 2011

Date of Summing Up: 13th May 2011

SUMMING UP

1. Ladies and Gentleman Assessors. We have come to the final stage of this trial. You were listening to all witnesses, State Counsel and Counsel for the Accused persons. Now it is my duty to give the summing up to you. In the summing up I will be directing you on matters of law, which you must accept and act upon. Regarding the facts of the case, I do not wish to give an opinion, but if I give so you may accept or reject. You are not bound as in matters of law. In brief you have to accept my direction on law and you can judge independently when it comes to facts of the case. Because you are the judge of facts.
   
2. Both the State Counsel and Counsel for the Accused persons made their submissions. That is their duty. The prosecutor to submit how he proved the case and Defence Counsel to say that the case is not proved. You are not bound by their submission. You are the representative of this society in this trial. After assessing all evidence you must decide whether these accused persons are guilty or not guilty to offences they are charged.
   
3. After, all these submissions you will be asked to retire for your verdict. Your verdict should be either guilty or not guilty. You will not be asked to give reasons for your decision. Your opinion can be unanimous or divided. It will be preferable if it is unanimous but the decision has to be your own decision. Your opinions are not binding on me but it will be persuasive. I will give them the greatest weight when I deliver my judgment.
   
4. In criminal cases the standard of proof, I must direct you as a matter of law, that the prosecution bears the burden of proof in the case. The burden remains throughout the trial and it never shifts. There is no obligation upon the accused persons to prove their innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proven guilty. This is a golden rule.
   
5. The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of guilt of the accused person before you 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 that he is guilty; if you are satisfied of that you are sure that he committed the offence alleged.
   
6. As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.
   
7. As I informed you in my opening address, your decision must base exclusively upon the evidence which you have heard in the Court, and upon nothing else. You must absolutely disregard anything you might have heard about this case outside of this court room. It is important that you must decide the fact without prejudice or sympathy to either accused or the State. One of your duties is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   
8. As I addressed to you all on the commencement and during the trial that you would have heard from media and others about this case. Whatever you heard are not evidence. What you heard and saw in the Court are the evidence. You are not supposed to consider anything outside of the Court. I request you to consider the admissible evidence before you and to avoid all other matters out of the trial.
   

9. In assessing the evidence, you are at liberty to accept the whole of witnesses
Evidence or accept part of it and reject the other part or reject the whole. In deciding on the credibility of any witness, you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he evasive? How did he stand up to cross-examination? You are to ask yourselves, was the witness honest and reliable.

10. 1st Accused Kelepi Serukalou has pleaded guilty at the commencement of this case. You must not draw any adverse inference against other Accused persons from the fact that 1st Accused Kelepi Serukalou has pleaded guilty. You must assess the evidence you heard in the Court to determine the guilt or otherwise of Accused persons. In law, the guilt or otherwise of one accused does not determine the guilt or otherwise of another.

11. Now we will consider the charge against Accused persons.

"Count 1
Statement of offence (a)

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(b) of the Penal code, Cap 17.

Particulars of Offence (b)

KELEPI SERUKALOU, EMORI NAQOVA, JOSATEKI CAMA and ASESELA TAWAKE with others on the 18th day of August, 2008 at Nakasi in the Central Division, robbed RISHI SEGRAN f/n Surendra of $62,972.34 cash and cheques with the total sum of $1,033.76, the properties of Rajendra Prasad Foodtown Supermarket and immediately before such robbery did use personal violence on the said RISHI SEGRAN f/n Surendra."

12. Section 293(1) of the Penal Code states as follows:

"Any person who:

(a) being armed with any offensive weapon or instrument, or

being together with one other person or more, robs, or assault with intent to rob, any person; or

(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 ........."

13. As per the above section the major elements of the offence of Robbery with Violence stands as follows:

(a) Firstly, that the Accused persons stole money. Stealing is taking of something without the consent of the owner with the intention of permanently depriving the owner of the property.

(b) The offence of Robbery also has an element of force or violence. It is the stealing of something by an act of force.

14. In this case the Prosecution and the Accused persons had agreed that there was a robbery of money and force used on the victim. The major ingredient to be proved is the identity of the Accused persons.

15. The prosecution relies on the principle of joint enterprise to prove the charges
against the accused. In law, it is not only the person who actually does the acts constituting the offence, who can be guilty of that offence. Other people present and participating can also be liable. People who help or encourage another person to commit an offence are also guilty of that offence.

16. If several people decide to commit an offence together, and all of them participate and assist each other in doing it-each of them is guilty of the crime that is committed. This is so, even though individually, some of them may not actually do the acts that constitute the offence.

17. I may give you an example. Five persons plan to rob a bank. One gives the idea and the plan of operation and stays at home. Other four proceeds to the bank. One drive the vehicle and wait near the gate of the bank, 3rd one wait near the gate on the look out, two enters the bank with a weapon and keeps the Manager at gun point and the other person takes the money from the vault. When they run out the one wait near the gate signals the vehicle, when the vehicle comes all escape from the scene of crime. In this example you would have noticed it is only one person who took the money from the vault but under the joint enterprise principle all 5 people can be held responsible.

18. The Prosecution brought two witnesses. The 1st witness was the victim Rishi Segran. He said on the 18th August 2008 at about 11.20 in the morning he had gone to deposit money at Westpac bank at Nakasi branch. He went in a car with the General Manager. He had cash $62,972.34 and cheques for the value of $1,033.76 in a carton. When he got down from the car and took few steps, a Fijian youth came infront and snatched the carton and ran away. This witness shouted "thief, thief" and chased behind him.

When the snatcher ran, a van came close to him and he was picked up the same and escaped from the scene of crime. He chased behind the van but he couldn't make it.

He didn't identify the youth who grabbed and the people in the getaway van. He had lodged a complaint with the police and made a statement to them. The witness had recognized himself in the Close Circuit Television (CCTV) video footage.

19. The next witness called by the Prosecution was Semiti Rokobuli. He is a Police officer attached to the intelligence Unit of the Fiji Police Force. During the relevant time he was detailed to Counter Strike Unit at Nabua Police Station on that date i.e. 18/08/2008. He was off duty had gone to the New World Supermarket to do his shopping with his wife.

When he was passing the Westpac bank he had seen a Fijian youth running and an Indian guy was yelling and chasing him. At that time a van had turned infront of him. He had identified 3 inmates of the van, the driver was 4th accused Asesela Tawake, 2nd Accused Emori Naqova was in the front seat and the 3rd Accused Josateki Cama was in the rear seat. The van went and picked up the Fijian youth who was running, and fled away from the car park towards Nausori.

He said he had a clear look of the vehicle for about 15 seconds and identified the inmates of the van. But when the video was played, it was about 6 seconds duration that he had to see them. This witness said that he knows these Accused persons before this incident very well and he would have seen them more than 100 times. The factual questioned is can a person identify and recognize a known person within few seconds. It is a factual issue for you to decide.

He said that he made a statement to the police on the same day and entered into the private note book, which is an official note book. It was given to the Central Police Station, when he went last Monday to collect, he couldn't get it.

He is a trained police officer attached to the intelligence division of the police. Was this factor made him to make a proper assessment of identification? It is a factual matter, for you to decide.

20. The CCTV recording was played and replayed on many occasions you would have made your own observation. It can be observed in both cameras that the carton was snatched from the victim Rishi Segran. He was chasing behind the Fijian youth. Security guards of the bank were also chasing behind the snatcher, a van slowly moves in, follows the snatcher and picks him up and makes it way out of the scene. It is notable that the victim Rishi Segran and the witness Semiti Rokobuli were seen in the live CCTV recording.

21. If you believe the testimony of the 2nd witness Semiti Rokobuli the next question is was the van there by accident or on a preplan. If the snatcher suddenly or accidentally got into the van the inmates may not know the crime so they cannot be held responsible.

22. Further you have heard the van was chased by the victim, security guard and one of the windows of the van was smashed, the van didn't stop but proceeded from the scene of crime, was it an accident or preplanned operation. It is for you to decide.

23. When the defence called all 3 Accused persons remained silent. As I told you at the beginning, the burden of proving the offence beyond reasonable doubt lies with the prosecution. The Accused persons need not prove their innocence. That's their rights. You are not entitled to presume anything against them because of their silence.

24. You heard submissions of the State Counsel and Defence Counsel. You are not bound to accept all. Those are not evidence before the Court. It is only a narration of facts you are advice to consider all evidence placed before you and take free and fair decision.

25. As you are aware there are three accused persons in this trial, you have to consider evidence against each of the accused persons separately, and decide whether they had committed the offences as charged. Because, one accused is found guilty the other accused need not be found guilty. If there is evidence for the charge against these accused persons you may find them guilty, if not they should be found not guilty

26. I humbly request you to consider not only my summary but all evidence before the Court and come to your own conclusion. If you are satisfied beyond reasonable doubt of these accused persons guilt and you are sure of it. You must find these accused persons guilty as charged. If you are not satisfied beyond reasonable doubt of these accused persons guilt and you are not sure of it. You must find these accused not guilty as charged.

27. As I explained to you in my opening address and at the beginning of the summing up you have to take your own decision after considering the evidence before the court. You will not be asked for the reasons for your decision. Your possible verdict will be guilty or not guilty.

28. Let me ask both State Counsel and the Counsel for the Accused persons whether they have anything to be addressed to you?

Mr. Naco: The second witness had told the court that he chases behind the van but in the video recording he was not seen doing so that may be addressed.

State Counsel: Identity of the accused persons by the second witness.

29. You heard the evidence of the witness and saw the recordings of the CCTV the witness didn't run behind the van immediately but he had been seen going towards that side after a little while.

Further regarding the identity I have addressed you all enough I think that is sufficient.

30. Now let me ask the Assessors need any clarification.

Assessors inform the Court they are happy with the summing up.

31. You may retire to deliberate. I may request you to take all the documents marked before the Court and your notes. You should consider all documents and evidence and come to your own conclusion. Once you have reached your decision, please advice the Court Clerk so that we can reconvene the Court to receive them.

S Thurairaja
Judge

At Suva
Solicitors

Office of the Director of Public Prosecution for State
Naco Chambers for all Accused Persons