State v Ratukana [2011] FJHC 351; HAC107.2009 (20 June 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 107 OF 2009

BETWEEN:

THE STATE

AND:

1. TOMASI RATUKANA
2. VILIKESA RATUSOKO
   

Counsels: Ms. L. Tabuakoro for the State
Both Accused In Person

Date of Hearing: From 6th to 16th June 2011
Date of Summing Up: 20th June 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 both 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. State Counsel and both Accused persons made their submissions. That is their duty. The prosecutor to submit how she proved the case and Accused persons 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 offence 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 or she evasive? How did he or she stand up to cross-examination? You are to ask yourselves, was the witness honest and reliable.

10. Both Accused persons were charged under section 293 (1) (b) of the Penal Code for
Robbery with Violence. Particulars of offence were given as follows:

"TOMASI RATUKANA and VILIKESA RATUSOKO with others on 22nd day of June 2009 at Nasinu in the Central Division robbed SAHID HASSAN of cash $7,845.00, cheques valued $6,155.00 and 1 x 12 gauge shotgun valued $700.00 all to the total value of $14,700.00 and immediately before such robbery did use personal violence on Vijay Ram an employee of the said SAHID HASSAN."

11. In order to prove the offence of robbery, the prosecution must lead evidence which satisfies you beyond reasonable doubt of several elements.

12. Firstly, that these accused persons stole money and goods. Stealing is taking of something without the consent of the owner with the intention of permanently depriving the owner of the property.

13. The offence of robbery also has an element of force or violence. It is the stealing of something by an act of force. The force can be either implied from carrying of weapons, or from the numbers of people involved in the incident. So when a group of people enter a shop for instance, to take money without the owner's consent with no intention of returning it then the offence of robbery is committed.

14. 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.

15. 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.

16. If I give you a simple illustration a group of 5 people planning to rob a bank. One stands on the road on watch, one take guard on the gate, 3 people moves in and threaten the bank cashier with a weapon two grabs the money from the table. All of them are liable for robbery, because all 5 people played different part of a common drama. You can make one person liable to another's act. It is possible under common intention theory.

17. Both Accused persons are challenging the voluntariness of their confession to the police. They claim that it was obtain under duress that means they were assaulted and threatened. Both Accused persons were not represented by a legal counsel and they should not be disadvantaged by this. I have an obligation to identify the essential features of their defence and explain this to you.

18. Prosecution called 13 witnesses to prove their case. Both Accused persons gave evidence on their behalf and the 1st Accused called his wife to give evidence on his behalf.

19. While seven were being Police witnesses six were lay witnesses. There are 3 eye witnesses to the incident. No one had identified that these two Accused persons were being involved in the crime. Only material to be considered against both accused persons are the confessionary statements that they made to the police.

20. Prosecution claims that the Accused persons made their statements voluntarily.
Both Accused persons submit that they didn't make a voluntary statements, therefore they claim the confession before the Court was obtained by force.
21. You have heard evidence for the prosecution and the defence on the circumstances of confessions obtained. It is for you to assess the voluntariness, remember that the police officers are trained witnesses who are used to giving evidence in Court. I am not saying this to express my opinion about their credibility. When a confession is the sole evidence such direction is usually given.

22. It will be appropriate for you to consider the evidence given by the lay witnesses i.e. eye witnesses and the confession.

23. You heard and saw 6 witnesses giving evidence none of them had identified these two Accused persons.

24. The police had not recovered any items relevant to the case from these two Accused persons. It is worth to note that the crime officer Inspector Rajesh Maharaj who was the 1st witness to the prosecution said that all stolen items were recovered, the question and answer states as follows:

Q: As an Inspector have you recovered all stolen items?

A: Yes

Q: Did you go and find the money and gun from the vehicle?

A: No.

(At a later stage this witness had answer in the following manner)

Q: Is that only found in the vehicle?

A: As I have stated earlier, I was directing officer in the investigation. I have not done any recoveries and neither had I conducted any search and raid. As a crime officer my duty is only to direct the investigation.

25. The total amount involved in the robbery was $14,000 which consists of $7,845 cash and $6,155 cheques and a gun worth of $700.00. As per the investigators the money recovered was $72.80 and $47.90 worth of coins in two bags. The gun also recovered. But it should be noted that the prosecution had not submitted in Court from where the money and gun was recovered. There is a passing reference that something was recovered from the abandoned get away vehicle.

26. If you accept the statement to be voluntary then you should be considered whether the confession proves the ingredients of the offence. It is the duty of the Prosecution to prove the ingredients of the offence.

27. Now I will summarize the evidence of prosecution witnesses. This does not mean you have to consider only what I summarize. I invite you to consider the entire evidence of all witnesses and come to your own conclusion.

28. The 1st witness called was Inspector Rajesh Maharaj. He was a crime officer. He said he directed the investigations. It should be reminded that he had contradicted himself, regarding the recovery of items.

29. The next witness was Sahid Hassan. He was the owner of the place. He had not seen the incident but he was told. He identified the gun. He said he lost $14,000 in cash and cheques.

30. The 3rd witness was Suresh Prasad. He was at the scene of crime on the 22/06/2009. 4 people came in car and rob the house of Hassan. He didn't identify anyone.

31. 4th witness was Rajesh Kumar he was also at the scene. He had seen 4 people came to rob the house of Hassan since they were wearing mask. He couldn't identify any of the assailants.

32. The next witness was Faiyaz Khan. He had not seen the incident, he had only seen green colour G-Tour vehicle. Relevancy of this evidence is left to you to consider.

33. Vijay Ram was the sixth witness called by the Prosecution. He was at the scene of crime. He said that the robbers had taken his mobile phone which is not in the contents of the charge. He also corroborates the other two eye witnesses and he too couldn't identify any of the assailants.

34. Aiyaz Khan was the seventh witness. He had seen a Pajero driven across the road. Is it relevant to this case, if so, how much, is for you to decide.

35. Other seven witnesses were police. Witness PC 3411 Alipate gave evidence to the effect that he charged the 1st Accused. He claims that he had not promised or assaulted the 1st Accused.

36. Mukesh Rao was the 9th witness. He said he charged the 2nd Accused. He also claims that he had not promised or threatened or assaulted the 2nd Accused.

37. Tenth witness was Maikali Masivou. He was the receiving officer. He had received the 1st Accused from Saimoni Qase and he didn't speak to the 1st Accused and Saimoni Qase. This witness had searched and locked the 1st Accused.

38. Matereti Naga was the officer who received the 2nd Accused from Detective Corporal Ilisoni. He had not seen any injuries. He searched and locked the 2nd Accused.

39. Twelfth witness was Semi Tabua. He had escorted the 1st Accused Tomasi Ratukana to Nausori Police Station. Thereafter he had escorted the 2nd Accused Vilikesa Ratusoko to Nasinu Magistrate's Court.

40. The last witness was Virendra Deo. He says he is the station Sergeant and the investigating officer in this case. He had interviewed the 1st Accused and 2nd Accused and recorded their statements. There is no mention of the time and place of arrest. He had not promised, threatened or assaulted any of the accused persons. He had not seen any injuries on the Accused persons.

41. Once the case for the prosecution is concluded, I should remind you again Accused is not bound by law to offer any evidence on his behalf, because the prosecution should prove this case beyond reasonable doubt. The 1st Accused opted to give evidence.

42. The 1st accused said on the date in question namely 22/06/2009 he was at home with his wife and daughter doing screen printing of sulus (ladies garments). He didn't go anywhere on that day. In the cross examination he said he is not known as Tomu. He is known as Ratukana or Tomasi. He gave detailed account of screen printing. He said all Police officers forced him to make this confessionary statement. State Counsel suggested that he was involved in this crime. The 1st Accused says he is not involved in the incident.

43. The 1st Accused called his wife Seini Qalulu. She said that her husband Tomasi Ratukana was with her on the date in question. She was cross examined by the State Counsel she clearly recalled the details of 22/06/2009 but she couldn't recall the details of the date the 1st Accused was arrested.

44. 2nd Accused Vilikesa Ratusoko gave evidence and claimed that he was at Lomaivuna, Naitasiri on the 22/06/2009. He gave detailed account of what he did on that day. Prosecution suggested he was involved in the robbery but he denies the involvement.

45. It should be noted that the Accused persons have taken up the defence of Alibi that means they were not at the place of the incident at the relevant time. The Prosecution suggested that these two Accused persons were taking up the defence of Alibi for the 1st time. Both Accused persons say this is the 1st opportunity they got to take up this defence. Accepting or rejecting the defence is up to you. Before you consider the defence you have to be satisfied that the prosecution had proved the case beyond reasonable doubt.

46. 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 the accused's guilt and you are sure of it. You must find the accused guilty as charged. If you are not satisfied beyond reasonable doubt of the accused's guilt and you are not sure of it. You must find the Accused persons not guilty as charged.

47. 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.

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

State Counsel: No further direction is necessary.

1st Accused: No. I am happy.

2nd Accused: No. I am happy.

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

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

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
Puisne Judge

At Suva
Solicitors
Office of the Director of Public Prosecution for State
Both Accused In Person