State v Kaulawe - Summing Up [2011] FJHC 332; HAC073.2008 (7 June 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 073 OF 2008

STATE

vs

1. TEVITA KAULAWE
2. KALIVATI TABUA
3. NIKOTIMO RATUMAINABUKELEVU
4. MISIWENI VULAMI
   

Mr. S. Qica for the State
First and Third Accused in Person
Second and Fourth Accused absent

SUMMING UP

[1] Ladies and gentleman assessors.

The time has now come for me to sum up this case to you and to direct you on the relevant law 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.

[3] You will take into account all of the evidence both oral and documentary.

[4] You must judge this case solely on the evidence that you heard in this Court room. There will be no more evidence and 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 Court Room has no place for sympathy or prejudice. You may have strong religious views but you would never left that interfere with a finding on the evidence before you.

[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 important that I remind you of what I said to you at the beginning. The burden of proving this case against the first, third and fourth accused is on the prosecution. And how do they do that? By making you sure of it. Nothing less will do. That 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 them 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 these accused broke into the temple and set it alight then you will find them guilty.

[8] You will note that on the information there are four accused persons named but you have only seen two; the first and the third accused. The second and fourth accused are missing and it is not for you to wonder why. I direct you to ignore any evidence you may have heard against the second accused, and I don't think there has been any. I do not require you to reach a verdict on the second accused – you can leave his case to one side; nevertheless I direct you to make a finding of guilty or not on the part of the fourth accused. I must speak to you now about making a finding of guilt against an absent accused.

(a) You obviously have heard no evidence from him. Even if he was here it would have been his right to remain silent and to require the prosecution to make you sure of his guilt; there is no burden on him to prove anything.

(b) You must not assume that an absent accused is guilty because he is not here. His absence does not help the prosecution to prove its case against him in any way at all.

(c) Equally you must not speculate or guess as to the reasons for his absence, and you must not hold his absence against him.

(d) You try this case according to the evidence, and you will assess it just as carefully as you would have done if the fourth accused was here.

(e) But you will appreciate that there is no evidence from him at this trial to undermine, contradict or explain the evidence put before you by the prosecution.

[9] The three accused whose cases you are dealing with face one charge of sacrilege and one count of arson. You must look at each accused separately and at each charge separately. Just because one accused might be guilty of one charge does not necessarily mean that he is guilty of the other.

Similarly, the evidence against each of the three is different. Finding one guilty of a charge doesn't mean the others are so necessarily guilty.

[10] Sacrilege is rather a serious offence. It is proved when –

(a) the particular accused whose case you are considering,
(b) breaks into a place of worship, and
(c) commits a crime inside after breaking in.

If you find therefore when looking at the cases of each of these accused that he either broke into the temple, or he was one of a group who had jointly decided to break into the temple, and when in the temple one of the group stole money then you will find him guilty of sacrilege. If you do not find that that happened, or you are not sure then you will find that particular accused not guilty.

[11] I wish to say something here about acting as a group – in law we call it joint enterprise. The prosecution's case is that the three accused committed this offence together. Where a criminal offence is committed by two or more persons, each of them may play a different part, but if they are in it together as part of a joint plan or agreement to commit it they are each guilty. The essence of joint responsibility for a criminal offence is that each accused shared the intention to commit the offence and took some part in it (however great or small) so as to achieve that aim.

[12] So in our case, if on looking at the case against any particular accused you are sure that with the intention I have mentioned he took some part in committing it with the others, then he is guilty.

[13] Arson is also a serious offence. It is committed when –

(a) a particular person.
(b) willfully and unlawfully.
(c) sets fire to a building.

[14] You will have no trouble probably in finding on the evidence that a match was lit and as a result material caught alight, spreading fire very quickly through the temple. You must however also find that the fire was lit willfully and unlawfully OR that the accused who lit the match was reckless. You will the accused persons guilty (on the basis of joint enterprise) if you find that the person who lit the match was reckless in that he recognized that some burning or charring might occur but he nonetheless went ahead and lit the lamp. On this aspect of the case you must be sure that the accused actually recognized that there was a risk of damage to the building.

[15] The bulk of the prosecution's case against the three accused that you are looking at is based on the cautioned interviews that each conducted with the Police on their arrest. They each made incriminating admissions to the elements of the offences of sacrilege and arson. The prosecution says that you can rely on these interviews because they were freely and voluntarily made by each of the accused. If you agree and you think that the accused did actually say the things contained in those interviews, then indeed you can use them as evidence for or against the particular accused that you are looking at.

[16] That is all I wish to say to you on the law.

[17] The evidence is a matter for you – it came from the custodians of the temple and from the Police and from the accuseds' cautioned interviews. I will make no further reference to the evidence.

[18] You may now retire and consider your verdicts. You must give me separate opinions or verdicts on each of the first, third and fourth accused persons. You do not have to be unanimous although it would be better if you are. When you are ready, tell one of the Court staff and I will reconvene the Court.

Paul K. Madigan
JUDGE
At Lautoka
7 June 2011