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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 096 OF 2009S
THE STATE
vs
1. TADEO QARASAUMAKI
2. ASAELI KOROI
3. PENI WAQAKIBAU
Counsels: Ms. L. Tabuakuro for the State
Accused No. 1 in Person
Accused No. 2 in Person
Accused No. 3 in Person
Hearings: 10th to 16th March, 2011
Summing Up: 18th March, 2011
SUMMING UP
7. The three accuseds were jointly charged with "robbery with violence", contrary to sections 293(1)(b) and 21 of the Penal Code, Chapter 17 [count No. 1], and separately for "receiving stolen properties", contrary to section 313(1) of the Penal Code [count Nos. 2,3, and 4]. On count No. 1, it was alleged that, between 7th July and 20th August 2007, at Suva in the Central Division, the three accuseds counseled others to rob Nitendra Nitesh Singh of $49,776.49 cash and $3,390.46 in cheques, on 20th August 2007, and those counseled, before such robbery, used violence on Nitendra Nitesh Singh. On the 2nd, 3rd and 4th counts, each accused was alleged to have received stolen properties, between 20th August and 20th September 2007; in the case of Tadeo and Peni, $1,000 each, and in Asaeli's case, $2,000, the moneys belonging to Superfood Ltd, and the three knew the same was stolen property when they received the same.
D. THE MAIN ISSUES
8. Although the three accuseds were jointly charged for "robbery with violence", and separately for "receiving stolen properties", the task for you in this case, for each accused, is to answer the following questions:
(i) Did Tadeo, between 7th July and 20th August 2007, counsel others to violently rob Nitendra Singh of $49,776.39 cash and $3,390.46 cheques, on 20th August 2007, at Nabua, in the Central Division? [Count No. 1]
(ii) Did Asaeli, between 7th July and 20th August 2007, counsel others to violently rob Nitendra Singh of $49,776.39 cash and $3,390.46 cheques, on 20th August 2007, at Nabua, in the Central Division? [Count No. 1]
(iii) Did Peni, between 7th July and 20th August 2007, counsel others to violently rob Nitendra Singh of $49,776.39 cash and $3,390.46 cheques, on 20th August 2007, at Nabua, in the Central Division? [Count No. 1]
(iv) On count No. 2, did Tadeo, between 20th August and 7th September 2007, receive $1,000 stolen property from Superfood Ltd, knowing the same to have been stolen?
(v) On count No. 3, did Asaeli, between 20th August and 1st September 2007, receive $2,000 stolen property from Superfood Ltd, knowing the same to have been stolen?
(vi) On count No. 4, did Peni, between 20th August and 1st September 2007, receive $1,000 stolen property from Superfood Ltd, knowing the same to have been stolen?
This case involved three accuseds. You are actually conducting three trials against each accused, together.
E. THE OFFENCES AND THEIR ELEMENTS
9. For the accuseds to be found guilty of "robbery with violence", the prosecution must prove beyond reasonable doubt, the following elements:
(i) the accuseds
(ii) stole the complainant's properties, and
(iii) used violence on him, to effect the above theft.
"Stealing" is the act of taking someone's property without his permission, and with an intention to permanently deprive him of that property. Violence means any type of violence, and include threats of violence. Violence could mean threatening someone with a pinch bar, on the one hand, to striking someone with a cane knife or a weapon, on the other hand. The motive behind the violence, or threat of violence, is to effect the theft of the complainant's property.
10. In this case, the three accuseds are being charged for counseling others to commit "robbery with violence" on Nitendra Nitesh Singh. Section 21 of the Penal Code, reads as follow, "...when an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say:-
(d) any person who counsels or procures any other person to commit the offence..." According to the Oxford Advanced Learners Dictionary, 6th edition, 2002, "counsel" means, "... to listen to and give support or professional advice to somebody who needs help; to advise somebody to do something..." So, in this case, if you are satisfied beyond reasonable doubt that the three accuseds advised others to rob Nitendra Nitesh Singh on 20th August 2007, or gave support to others to rob Mr. Singh, then by virtue of section 21 of the Penal Code, they are just as guilty as those masked robbers who violently robbed Mr. Singh on 20th August 2007.
11. For the accuseds to be found guilty of "receiving stolen property", the prosecution must prove beyond reasonable doubt the following elements:
(i) The accuseds
(ii) received any property
(iii) knowing the same
(iv) to have been stolen
It is important for the prosecution to prove beyond reasonable doubt that the accused knew the property was stolen, when he received it.
12. Three accuseds are on trial in this case. Each of the accused is entitled to be tried solely on the evidence that is admissible against him. This means that you must consider the position of each accused separately, and come to a separate considered decision on each of them. Just because they are jointly charged does not mean they must all be guilty or not guilty. Most evidence in this case are admissible against all accuseds. However, regarding their police caution interview statements, which may contain their alleged confessions, the statements therein are only admissible against the maker of the statement, and on no other. In other words, in each accused's police caution interview statements, you must totally disregard what the accused said about his co-accuseds on the commission of the offence. You can only take into account what he said about himself, regarding his role in the commission of the crime.
F. THE PROSECUTION'S CASE
13. The prosecution's case was simple. Prior to the 20th August 2007 robbery on Superfood Supermarket, both Tadeo and Asaeli were employed by the supermarket as security officers. It was their duty to see that everything was in order in the supermarket security wise. It was also their duty to accompany the manager, and the head cashier, to the Westpac Bank to bank their takings, as and when required. The bank was opposite them. Tadeo and Asaeli, as security officers, knew the procedures and details of when the money was taken to the bank. They were often consulted when the money was taken to the bank.
14. According to the prosecution, Peni started meeting Tadeo and Asaeli at the supermarket. He started to "plant the idea of robbery" on the supermarket, in Tadeo and Asaelis' minds. He knew that Tadeo and Asaeli knew inside information on how the supermarket banks its money. Peni, according to the prosecution, influenced Tadeo and Asaeli to attend meetings at Ram Lakhan Park, Indira Gandi School at Ritova Street, Grantham Road and at Brown Street, to plan the robbery at Superfood Supermarket.
15. According to the prosecution, the three accuseds actively participated in the meetings. According to the prosecution, Tadeo and Asaeli, with their knowledge of Superfood Supermarket banking procedures, lended their support and knowledge, to the plans to rob their employer, Superfood Supermarket. This was done with the encouragement and support of Peni. According to the prosecution, the three accuseds collectively and jointly offered their support and knowledge to the plans to rob Superfood Supermarket.
16. On 20th August 2007, the day of the robbery, Tadeo was supposed to accompany the manager (Nitesh Singh) and the bag of money to the Westpac Bank. A car was waiting at the carpark at the back of the supermarket to take the manager and the bag of money to the bank. Tadeo was supposed to accompany the manager to the car and then to the bank. It was his job to protect the manager and the company's money reach the Westpac Bank. However, according to the prosecution, he deliberately left his post, and gave the robbers the opportunity to come and violently rob Nitesh Singh, and fled with the company money. When the robbery was completed, Tadeo wandered back to his post. According to the prosecution, Tadeo's actions were part and parcel of their plans to rob the supermarket.
17. Asaeli took his leave to Vanua Levu, at the time of the robbery. However, according to the prosecution, he had already offered his assistance to the robbery, by attending the prior meetings to the planning of the robbery, and as such, counseled others to commit the robbery. Peni, on the other hand, according to the prosecution, was the link between Tadeo and Asaeli and the robbers. As a result of their assistance and counsel, the alleged robbers gave Asaeli $2,000, Tadeo $1,000 and Peni $1,000. According to the prosecution, the three accuseds knew the money was stolen from Superfood Supermarket, but nevertheless received the same, as their share in the loot. Given the above, according to the prosecution, all the three accuseds should be found guilty as charged. That was the case for the prosecution.
G. THE ACCUSEDS' CASES
18. When the information was put to the three accuseds on 14th March 2011, the first day of the trial proper, each of the accused pleaded not guilty to the charges. In other words, each of them denied the "robbery with violence" and "receiving stolen property" charges.
19. When the prosecution closed it case on 16th March 2011, the court found a prima facie case against each accused, requiring them to be called upon to make their defence. The court explained to the accuseds their right to address the court, their right to give evidence on oath and their right to call witnesses, in their defence. Tadeo and Peni choose to give evidence and called no witness. Asaeli choose to give evidence and called his wife as his only witness.
20. Tadeo, in his evidence said, the police threatened to assault him, if he didn't admit the allegations against him. He said, they swore at him repeatedly. He said, he was frightened, and as a result, he gave his statements to the police. According to him, his caution interview statements were forced out of him, and he did not voluntarily give them to the police. He invites you, as assessors and judges of fact, to reject his police caution interview statements. According to him, he knew nothing about this case, and as a result, he should be acquitted of the charges. That was the case for Tadeo.
21. As for Asaeli, he at first, in his evidence, admitted that he participated in the 20th August 2007 robbery. He then said that, some police officers threatened to burn his home and beat him up, if he didn't tell the truth. Asaeli then said, he admitted his role in the robbery, although at the time, he said he was on leave in Vanua Levu. However, when cross-examined by the prosecution, Asaeli admitted being part of the 20th August 2007 robbery. He said, he confessed voluntarily to the police, when he was caution interviewed on 13th October 2007. He said, he signed his interview notes voluntarily. Asaeli called his wife as a witness. She merely said, Asaeli was in Vanua Levu, at the time of the robbery. That was the case for Asaeli.
22. As for Peni, he denied the allegations against him. He admitted, he shops at Superfood Supermarket, at times. He said, he sometimes talks to the security guards for less than 5 minutes. He said, they would sometimes complain to him. He admits, he is a pastor in the "All Nation's Church". He said, he asked the guards sometimes to show him the items he wants to buy. He said, he was threatened and sworn at by police officers before he was caution interviewed. He admitted he was present in the first two meetings when the plan to rob Superfood was discussed. He said, he went there to stop the robbery happening. However, he admitted he received $1,000 the 20th August 2007 robbery. He said, he didn't recruit Tadeo and Asaeli, and did not set up the plan and the "squad" to rob Superfood. He admitted he was caution interviewed by police on 12th and 13th October 2007, and that he was not assaulted or threatened by the interviewing officer. That was the case for Peni.
H. ANALYSIS OF THE EVIDENCE
Uncontested and/or Undisputed facts:
23. After listening to the evidence of the prosecution and defence witnesses, the following material facts were not contested nor disputed by the parties:
(i) On 20th August 2007, at the Nabua Superfood Supermarket, before 11.45am, its Head Cashier (Saleshni Lata Sami) collected all the cash after it was audited. She then packed the cash for banking. She then left the cash with the Manager, Mr. Nitendra Nitesh Singh. The cash was $49,000 plus, and some cheques. She then took the deposit book, and walked to Westpac Bank, opposite the supermarket;
(ii) The manager, with the bag of money, walked out of the Superfood Supermarket, to a waiting vehicle, in their carpark, at the back of the shop;
(iii) The manager went and sat in the vehicle, with the bag of money. Mr. Samson Lal was the driver of the vehicle, at the time;
(iv) Suddenly, a car containing 4 or 5 masked men, armed with cane knives and pinch bars, parked in front of Mr. Lal's vehicle;
(v) Some of the masked men got off their car, and smashed Mr. Lal's front door window, and threw 3 or 4 punches at him. The men also punched the Manager and he was yelling. The masked men grabbed the bag containing the money and fled the scene;
(vi) Neither Mr. Lal or the Manager could identify the masked robbers.
24. Because the above material facts were not contested, nor disputed by the parties, I must warn you as a matter of law that, you, as assessors and judges of fact, can take the above material facts as been proven by the prosecution beyond reasonable doubt. This enables us to concentrate on the issues that are really disputed in this case. A question that now arises is: In what ways are the three accuseds linked to the above robbery. Remember, the three accuseds are not charged for physically committing the above robbery. They are charged for counseling others to commit the above robbery, and by virtue of section 21(d) of the Penal Code, may be deemed to have taken part in committing the robbery.
25. There was no independent direct evidence to prove beyond reasonable doubt that the three accuseds counseled others to commit the above robbery. The only evidence the prosecution has, to prove that the three accuseds counseled others to commit the above robbery, was their alleged confessions, contained in their police caution interview statements. In other words, the case for the State stands or falls on you, as assessors and judges of fact, accepting or rejecting the accuseds' alleged confessions, contained in their police caution interview statements.
26. Before discussing the deciding issue of the voluntariness of the three accuseds' alleged confessions in their police caution interview statements, we will look at each accused's caution interview statements, to find out whether or not it contained evidence of counseling others to commit the above robbery.
Tadeo Qarasaumaki; Prosecution Exhibit No. 2(b):
27. Questions and Answers 14 to 58, 65 to 70, 86 to 94: Tadeo admitted meeting others at Ram Lakhan Park and Brown Street to plan the 20.8.07 robbery at Superfood Supermarket. Tadeo admitted, they discuss what to do at the time of the robbery, and the roles each would play during the robbery. Tadeo admitted, he had been working as a security guard at Superfood for 1 year. Tadeo admitted in Question and Answer 42 that, on the day of the robbery, when the Superfood money was about to be taken to the bank, he went to the carpark at the back of the shop, and informed one of the alleged robbers that the money was on its way out. Tadeo then admitted that, instead of guarding the money, he went to the bank with the head cashier. Tadeo admitted making contacts with the alleged robbers, and preparing for the day of the robbery. Tadeo admitted, receiving his share of the loot, ie. $1,000 from an alleged robber.
Asaeli Koroi: Prosecution Exhibit No. 1(b):
28. Questions and Answers 7 to 31, 39 to 58, 60 to 62, 64 to 74: Asaeli admitted that, he met others at Ram Lakhan Park, at Indira Gandhi School at Ritova Street, at Grantham Road and Brown Street, to discuss and plan the robbery on Superfood Supermarket on 20.8.07. Asaeli admitted that the others asked him how they could rob the supermarket and he advised them on what to do. Asaeli admitted these meetings occurred 2 weeks prior to the robbery. He admitted, on the day of the robbery, he took his leave to Vanua Levu. After he returned from leave, Asaeli admitted, he collected $2,000 as his share of the loot, from an alleged robber.
Peni Waqakibau; Prosecution Exhibit No. 3(b):
29. Questions and Answers 10 to 48, 65 to 67: Peni admitted that he met others at the Superfood Supermarket, at Indira Gandhi School at Ritova Street, corner of Grantham and Ratu Mara Road to discuss the plan to rob Superfood Supermarket on 20.8.07. Peni admitted that he was the one that started the discussion on the robbery at the supermarket (Question and Answer 17). He admitted he planned the robbery with others (Questions and Answers 24, 25 and 26). Peni admitted he received his share of the loot ie. $1,000 from an alleged robber, and he knew that the money was stolen from Superfood Supermarket. He said, he used the money on his fish business.
30. Paragraphs 27 to 29 abovementioned summarizes the three accuseds' alleged confessions to the charge of counseling others to commit a violent robbery on Nitesh Singh on 20.8.07, and that of receiving stolen properties. 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 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.
31. We will now examine each accused's caution interview statements, and the circumstances in which they were taken, to find out whether or not the accuseds gave their statements voluntarily.
Tadeo Qarasaumaki's Caution Interview Statements:
32. Tadeo was caution interviewed by DC 1993 Pita Tuvusa, on 12.10.07, beginning at 12.56pm. He was given his right to counsel. He said, he had a stomach ache, but refused to see a doctor, when offered. The allegation was put to him, and the necessary caution was put to him. 27 questions and answers were given. Interview suspended at 2.15pm for lunch. Interview recommenced at 2.55pm. The necessary caution was given. 37 questions and answers given. Interview suspended at 5.25pm for a break. Accused had a drink of water. Interview recommenced at 5.40pm. The necessary caution was given. 9 questions and answers given. Interview suspended at 6.15pm for a break. Interview recommenced at 6.36pm. 3 questions and answers given. Interview suspended at 6.55pm for accused to rest.
33. Interview recommenced on 13.10.07, at 9.30am. The necessary caution was given. 7 questions and answers given. Interview suspended at 10.25am for a break. Interview recommenced at 11.30am. 1 question and answer given. Interview suspended at 11.40am for lunch. Interview recommenced at 1.30pm. The necessary caution was given. 34 questions and answers given. Interview concluded at 6.35pm.
34. It would appear from the above that when Tadeo was caution interviewed, his rights were given to him and the necessary caution was given to him. The necessary meal and rest breaks were given to him. DC 1993 Pita Tuvusa said, he did not assault, threaten or made promises to Tadeo before, during and after the caution interview. He said, he saw no police officer assault, threaten or made promises to Tadeo when he was in police custody. He said, Tadeo signed the interview notes on all pages. In Question and Answer 116, Tadeo admitted he gave his statements voluntarily. Yet, in his evidence, Tadeo said, he was sworn at, and threatened by the police, before his interview. He said, he was so afraid that, he admitted the questions put to him. The prosecution's version of events is different from the accused. Which version you accept is a matter for you, after taking into account all the other evidence.
Asaeli Koroi's Caution Interview Statements:
35. On 13.10.07, at 10am, D/Corporal 1852 Samisoni Ralulu began caution interviewing Asaeli. His right to counsel was put to him. The allegation was put to him and he was cautioned. 32 questions and answers given. Interview suspended at 2.00pm. Interview recommenced at 2.10pm. 5 questions and answers given. Interview suspended at 2.25pm. Interview recommenced at 2.30pm. 21 questions and answers given. Interview suspended. Interview commenced 40 minutes later. 4 questions and answers given. Interview suspended for lunch. Interview recommenced 1 hour later. 18 questions and answers given. Interview concluded at 6pm.
36. It would appear from the above that the necessary cautions and right to counsel was put to Asaeli when he was caution interviewed. He was given the necessary rest and meal breaks. Samisoni Ralulu said, he didn't assault, threaten or made promises to Asaeli before, during and after the interview. He said, Asaeli didn't complaint to him on anything while in police custody. Asaeli, in his evidence said, the police threatened to beat him up and burn his house before the interview. However, when cross-examined by the prosecution, he said he gave his caution interview statements voluntarily, and he also signed the statements. This is a matter for you to consider, after considering all the other evidence.
Peni Waqakibau's Caution Interview Statements:
37. Peni was caution interviewed on 12.10.07 by Sergeant Pita Sorowaqali, beginning at 4.04pm. His right to counsel was given to him. The allegation was put to him and he was cautioned. 48 questions and answers were given. Interview was suspended at 8.35pm for search and for Peni to rest. Interview recommenced on 13.10.07, beginning at 3.20pm. The necessary caution was given. 22 questions and answers given. Interview concluded at 4.25pm.
38. It could be seen from the above that Peni was given his right to counsel, and was cautioned. The necessary breaks were given to him. Sergeant Soroaqali said, he did not assault, threaten or made promises to Peni before, during and after the caution interview. He said, Peni didn't make any complains to him at all, before, during and after the interview. He said Peni signed the interview notes at the end of the interview, and he counter-signed them. He said, he saw no injuries on him, while in police custody. In Question and Answer 70, Peni agreed he gave his caution interview statements voluntarily. Yet, Peni said, when police officers brought him down to be interviewed at the Nabua Police Station, they repeatedly swore at him. He said, they also threaten to beat him up. He said, he was so frightened before the interview. He said, Sergeant Pita Soroaqali promised him to be co-operative, so they can go home early. He admitted, under cross-examination, that Sergeant Pita did not assault or threaten him during the interview. He said, when he appeared in the Magistrate Court, and High Court, he didn't make any complains of any untoward police behavior while in their custody. These are matters for you to decide, after taking into account all the other evidence.
The Other Evidence
39. In this category falls the sworn evidence of all the three accuseds. Tadeo said, he was sworn at by police officers, while in their custody. He said, the police threaten to beat him up, if he didn't co-operate. He said, he was afraid, and as a result, answered all the police questions. When cross-examined, he admitted assisting the manager do Superfood Supermarket banking, and that he had personal knowledge of the shop's banking procedures, and the time for banking. He admitted working with Asaeli Koroi at the supermarket. He admitted, he knew Peni Waqakibau. He admitted, he signed his interview notes. He admitted he didn't complain to the police, the Magistrate Court and the High Court of any untoward police behavior, while in police custody. He said, on the day of robbery, he was working as security officer. He denied the allegations against him.
40. Asaeli Koroi admitted his role in the robbery at Superfood Supermarket on 20.8.07. He said, he was involved in the planning of the robbery, although he was on leave in Vanua Levu at the time. When cross-examined, he admitted he participated in the 20.8.07 robbery. He admitted, he gave his police caution interview statements voluntarily.
41. As for Peni Waqakibau, he said the police swore at him and threaten to beat him up, if he didn't co-operate. He said, he was frightened as a result. When cross-examined, he admitted meeting a Siga in church. He admitted he was a pastor at the All Nation's Church. He admitted he shoped at Superfood Supermarket, and would talk to the security guards for not less than 5 minutes at a time. He admitted, they would complain to him, at times. He admitted, he talked to a Siga to talk to the security guards. He admitted, Siga gave him $1,000 after the 20.8.07 robbery, as his share in the loot, and he knew the money was stolen. He admitted Pita Soroaqali did not assault or threaten him during the interview. He admitted, he signed his caution interview statement when the interview concluded. He said, he gave his statements voluntarily.
42. The accuseds' sworn evidence are further "aids" to you, as assessors and judges of fact, to assess the credibility of the statements the accuseds made in their caution interview statements. You will be asking yourselves, whether or not, the accuseds' sworn evidence assist you in understanding the voluntariness or otherwise of their caution interview statements. They are basically further evidence, to assist you deliberate in this case.
43. You have now heard the evidence of the prosecution and defence witnesses. You have watched them in court give evidence. What were their demeanours like? How did they react to being cross-examined and re-examined? Were they forthright? Were they evasive? Were they argumentative? How did they dress to Court? How did they conduct themselves 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
44. Remember, it is for the prosecution to prove each of the three accuseds' guilt beyond reasonable doubt. It is not for the accuseds to prove their innocence. The burden of proof lies on the prosecution to prove the accuseds' 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 their guilt, you must find them 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 their guilt, you must find them not guilty as charged.
45. Your possible opinions for each accused are as follows:
(i) Count No.1 - Robbery with Violence
Accused No. 1 - Guilty or Not Guilty
Accused No. 2 - Guilty or Not Guilty
Accused No. 3 - Guilty or Not Guilty
(ii) Count No. 2 – Receiving Stolen Property
Accused No. 1 - Guilty or Not Guilty
(iii) Count No. 3 – Receiving Stolen Property
Accused No. 2 - Guilty or Not Guilty
(iv) Count No. 4 – Receiving Stolen Property
Accused No. 3 - Guilty or Not Guilty
45. You may now 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 No. 1: In Person
Solicitors for Accused No. 2: In Person
Solicitors for Accused No. 3: In Person
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