State v King - Summing Up [2011] FJHC 618; HAC40.2010L (5 October 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 40 OF 2010L

BETWEEN:

STATE

AND

JOE KING
[First Accused]

SANJEEV MOHAN
[Second Accused]

Mr T. Qalanauci for the State
Ms. V. Tamanisau [LAC] for the First Accused
Mr. H.A.Shah with Mr M. L. Degei for the Second Accused

Date of Hearing : 3rd and 4th October, 2011.
Date of Summing Up : 5th October, 2011.

SUMMING UP

[1] The time has come now assessors for me to sum up the case to you and to direct you on the law involved 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 the Judges of the facts and you and only you can decide where thth lies in this case. If I have any particular view of the the facts in this summing up then you will ignore it unless of course it agrees with your view of that fact.

[3] Counsee adve addressed you on the facts but once again you need not adheir views oews of the facts unless you agree with them. You will take into account all of the evidence both oral and documy. Yo accept some of w of what a witness says and reject the rest. You can accept all of what heat he or she says and you can reject all. As judges of the facts you are masters of what to accept from the evidence.

[4 must judge udge this case solely on the evidence that you heard in this Court room. There will be no more evidence, you are not to speculate on what evidence tmight have been or should have been. You judge the case sole solely on what you have heard and seen here.

[5] The court room is no place for prejudice or sympathy. You might hate the thought of men invading homes and stealing possessions of others. Perhaps you have been victims at some stage. But you must put that from your mind and judge this case solely on the evidence produced in this Court and nothing else.

[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 most important that I remind you of what I said to you when you were being sworn in. The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This 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 him 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 the accused whose case you are considering did rob Ms. Nisha that night, then you will find him guilty.

[8] Each of these accused is charged with aggravated robbery. Robbery in law is the theft of something from someone accompanied by violence or threats of violence, to affect the theft. The State must prove to you beyond reasonable doubt in the case for each of these accused:

(i) that he committed a theft either himself or as a member of a group acting jointly together;

(ii) That at the time of the theft, violence used being used or threatened.

[9] The prosecution say that the robbery was aggravated. A robbery may be aggravated in two ways:

(a) If the robbery is committed by two or more persons acting together,

Or

(b) if the robber is armed with any offensive weapon or anything that appears to be an offensive weapon.

I think you will give no trouble in finding that the robbery was aggravated on both counts, numbers and offensive weapons. It doesn't matter that there was only one cane knife and who was holding it. It is the prosecution case that they were all acting together and they are therefore each responsible.

[10] 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 opinion about each. Because they are jointly charged does not mean that they must be both guilty or not guilty. The prosecution has and I too have referred to joint responsibility and I wish to tell you a little more about the law in that regard. The prosecution's case is that the two accused committed this offence with another. When 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 so as to achieve that aim.

[11] A rather unusual, but not uncommon aspect of this case is that the prosecution has presented their case to you in the main by way of agreed facts. What that means is that the two accused are not disputing most of the evidence. They just say - O.K. There was a robbery but it wasn't me.

[12] You heard the evidence of the victim of the robbery and her father whose evidence was read to you. It is agreed that there was a robbery on the night of the 29th April at Wairabetia. Her evidence is useful because she has told us about the cane knife and how scared and threatened she felt by it; which is a necessary ingredient of the offence. She also said that the three were all Fijian, a point you may wish to consider in the case of the second accused, but bear in mind that she also said she was petrified and didn't look closely at them. The Police investigating officer told us of the reconstruction at the scene with the first accused who showed them the cane knife that was used in the robbery. He also produced the heart -shape money box which had been stolen as well as the getaway flip-flops. The balance of the prosecution case was put before you as agreed facts which you must accept.

[13] The agreed facts tell us that there was robbery on the 29th April 2010 when three men entered the victim's house. Being three of them, you might find that it was an aggravated robbery. They stole goods as referred to in the charge they face. Most importantly, each one of these two accused before you made a confession to the offence and their confession statements are put before you as part of the agreed facts. The first accused tells in his interview of how three of them made a plan to go to a house in Wairabetia and they did in fact go. They took 2 cane knives. They took the till which was on top of the table. He threw the knife in the bushes outside when he left. He was wearing black flip flops which he left there outside the house. They shared the money. The first accused says he knew nothing about the mobiles or the biche de mer. He went home with his share of the money.

[14] The second accused said in his interview that he lives in Korovuto but came to Lautoka on the 29th April 2010 to meet a friend, who wanted him "to do a job". The job was to go to Wairabetia to steal biche de mer. He went inside with two others until one of the gang said to leave. On his way out he picked up two "plastic biche de mer". The next day he went to his friend's house to collect his share. His share was $300.

[15] At the end of the prosecution case you heard me explain to each accused his rights in defence. Both of them elected to give evidence. Now as I told you at the beginning, an accused person does not have to give evidence. He does not have to prove anything to you. His giving of evidence does not relieve the burden on the prosecution to prove its case beyond reasonable doubt.

[16] The first accused says at on the evening of the 29 April, he was drinking grog at a birthday party all evening. He was arrested by the Police the next day and they dragged him to the Natakowaqa Police Post where he was "hassled" and dragged about. He was then taken to Lautoka Police Station and locked in a cell. He was interviewed the next day. He told the Police about the birthday party but they didn't believe him. They kept asking him questions and put him on the floor, someone stood on his back and another forced his leg up. He was in pain and couldn't stand it. He was forced to sign and couldn't read what they had written. The money found on him was his fishing money. He said in answer to my questions that when he went to the reconstruction he was forced to produce the knife, money box and flip flops. It was not he who pointed them out. Well that is a factual matter for you Madam and Gentlemen.

[17] The second accused in his evidence said that he was forced to make his confession because of an indecent assault on him with chillies. The contents are not true; they were obtained by force and on 29th April, he did not invade the house at Wairabetia.

[18] I now come to the law on confession statements. Each accused says that his confession is not true. In deciding for each accused whether you can safely rely on the admissions you must decide whether they were or may have been obtained by force or assaults as both accused allege. If you think they were or may have been, you are to disregard them entirely and not rely on them. So in our case if you believe the first accused was assaulted on the floor while he was making his interview and if you think the second accused was indecently assaulted with chillies immediately before he made his; or you think that that may have been true then you must ignore that confession.

[19] If however you are sure that the accused whose case you are considering made the confession and it was not obtained by physical abuse, you must nevertheless decide whether you are sure that the admissions are true. If, for whatever reason, you are not sure that the admissions are true you must disregard them. If on the other hand you are sure that they are true, you may rely on them.

[20] Another important direction I must give you on cautioned interviews is this. Whatever one accused says in his interview is evidence against him alone and nobody else. If for example the second accused says he did the robbery with Jo King, then in law that is not admissible evidence against Jo King.

[21] Well, that is all I wish you say to you, Madam and Gentlemen. You can go out and deliberate on your opinions now. Your opinions need not be unanimous but it would be better if they are. When you are ready, please let one of my staff know and I will reconvene the Court but before you go I will ask Counsel if there are any redirections required.

Paul K. Madigan
JUDGE

At Lautoka
5th October 2011