State v Nonu [2011] FJHC 623; HAC136.2010 (22 September 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 136 OF 2010

BETWEEN:

THE STATE

AND:

JOSEPH NONU

Counsel: Ms. T. Leweni for the State
Accused In Person

Date of Summing Up: 22nd September 2011

SUMMING UP

1. Lady and Gentlemen Assessors. We have come to the final stage of this trial. You were listening to all witnesses, State Counsel and Accused person. 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 the Accused person made their submissions. That is their duty. The prosecutor to submit how she proved the case and Accused person 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 this accused person is guilty or not guilty to offence he is 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 person to prove his 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 is 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 she/he evasive? How did she/he stand up to cross-examination? You are to ask yourselves, was the witness honest and reliable.

10. The Director of Public Prosecution had preferred following charges against the Accused.

"JOSEPH NONU is charged with the following offence:

Statement of Offence

AGGRAVATED ROBBERY: Contrary to Section 311 (1) (b) of the Crimes Decree No. 44 of 2009.

Particulars of offence

JOSEPH NONU on the 15th day of July 2010 at Nasinu in the Central Division being armed with an offensive weapon stole an Easytel phone valued at $45.00, a Nokia mobile phone valued at $29.00, a Casio wrist watch valued at $150.00, 2 x Innk Recharge Card valued at $10.00, assorted BH cigarettes valued at $52.20, assorted kava valued at $30.00 and cash of $1,128.00 all to the total value of $1,444.20, the property of MOHAMMED ISHAQ."

11. Section 311 (1) (a) (b), 311 (2) and 311 (3) (a) (b) states as follows:

(1) A person commits an indictable offence if he or she —

(a) commits a robbery in company with one or more

other persons; or

(b) commits a robbery and, at the time of the robbery,

has an offensive weapon with him or her.

(2) for the purposes of this Decree, an offence against sub-

section (1) is to be known as the offence of aggravated robbery.

(3) In this section —

"offensive weapon" includes —

(a) an article made or adapted for use for causing injury to, or

incapacitating, a person; or

(b) an article where the person who has the article intends, or

threatens to use, the article to cause injury to, or to incapacitate, another person.

12. Considering the above section the elements of the offence of Aggravated Robbery are:
    

(i) The Accused

(ii) stole phones, wrist watch, cigarette, kava and cash.

Stealing means taking of things without the consent of the owner with the intention of permanently depriving the owner of the property.

(iii) use of violence

(iv) use of offensive weapon

13. In this present case the Accused does not challenge that there was a robbery at the virtual complainant Mohammed Ishaq's place on the 15th July 2010. But he submits that he was not involved in the offence. In other words he challenges the main ingredient namely the identity of the Accused.

14. In this case you may recall witnesses said there were more than one person involved in the offence. The 2nd witness Seremaia Waqasavou said there were 3 people came in. The State Counsel did not submit anything on joint enterprise.

15. Considering the facts of the case I want you to consider the principle of joint enterprise. 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. Presently, only one Accused person is standing before you. I want you to consider the evidence against him and I request you to not to draw any adverse inference against him. He should be judged by the evidence before this Court not with any assumptions or myths.

19. Considering the elements of the offence in the light of the evidence before this Court. You will find the 1st witness Mohammed Ishaq told Court that he is running a Groceries Kava and refreshments shop at 7th miles Ratu Dovi Road. He normally keeps his collection for 3 to 4 days and then banks it.

On the 14/07/2010 he was at the shop with his employee Seremaia Waqasavou. After midnight at about 12.50am (15/07/2010) he had closed the shop. On hearing of breaking of something he looked around them he had found a fair guy standing in the passage. When he confronted that person he had gone away. Thereafter somebody had broke into the shop and attacked him with a pinch bar. He had felt blacked out and dropped on the bed. That time he couldn't see anything but he was able to hear. He got to know the assailant got hold with his employee and punched him. After about 5 minutes he got up and ran for his life. At that time he was chased by the robber. He went to the junction stopped a taxi and got into it and went to the police.

20. The 2nd witness Seremaia Waqasavou also corroborated the above narration of facts.

21. It should be noted that both eye witnesses who were at the scene of the crime could not identify any of the assailants including the Accused before this Court.

22. Witness Timaima Wati gave evidence in Court and told that on that night she was travelling with her husband who is a taxi driver through Ratu Dovi road. At that time an Indian man came in front of the vehicle and got almost knocked down. At that time she had noticed that he was chased by another man with a knife in hand. She had seen him at a close proximately (i.e. 3.20 meters). According to her there were sufficient light provided by the street lights. She clearly identified this Accused as the person who was chasing the victim.

This witness and her husband boarded the virtual complainant and had gone to the Valelevu Police Station. She had noticed the victim was bleeding from his head.

When they went to Valelevu Police Station and dropped the virtual complainant. Two Police officers got into the back seat of the taxi and requested them to go to the scene of crime. Taxi proceeded to that place, near the place where they picked up the victim, this witness had recognized the Accused who was crossing the road and shown him to the police.

23. The Accused was picked up by the Police officers and brought to Valelevu Police Station promptly. When he was searched by the Police officers they found, a Casio brand silver coloured strap wrist watch and a $2.00 note beneath the underwear of the Accused. The Accused claimed that he picked it up on the road but the victim says that it was his watch snatched by the robber. You saw the victim wore it in this Court and it correctly fitted into his wrist.

24. Other items recovered by the Police from the Accused were a Nokia brand mobile phone and 7 currencies notes. The virtual complainant identified the mobile phone and claimed that belongs to him.

25. Considering the evidence for the Prosecution that there is no witness to identify that this Accused was involved in the Robbery.

26. Prosecution witness says that the Accused was found chasing the victim immediately after the Robbery. You have to consider whether the Accused was involved in the Robbery or he was in a separate act of chasing the victim.

27. Prosecution claims that finding of stolen items immediately after the robbery warrants a presumption that the Accused was involved in the crime. The rules of evidence provides "the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business in their relations to the facts of the particular case"

Illustration given was "that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession"

In this case a wrist watch was found under the underwear of the Accused and a Mobile phone was found within the possession of the Accused. The Prosecution submits this Court to presume that the Accused was involved in the Robbery but the Accused submits an explanation that he had found the watch on the way and picked it up. No explanation offered for the possession of the mobile. It is a factual matter for you to decide.

28. Now I summarise the evidence for the Prosecution and the Defence.

29. Mohammed Ishaq was called as the 1st witness. He said he was at his place on the 14/07/2010 midnight after closing his shop. It was robbed by a person. He said he was attacked by a pinch bar and he received a bleeding injury. He submitted that the robber had robbed 1. Easytel phone-1, 2. Cash-$1200, 3. Nokia mobile phone-1, 4. Benson & Hedges 10's 18-packets, 5. Grog-1 kg, 6. Rose petal perfume, 7. Small bag-1, 8. Casio wrist watch-1. He didn't identify the assailants including the Accused before this Court.

30. Seremaia Waqasavou was the next witness. He was an eye witness to the incident. He said he was working for Mohammed Ishaq, on the said day 3 people came in and attacked the boss and him. He also couldn't identify on any of the suspects.

31. 3rd witness called by the State was Timaima Wati. She had not seen the robbery but had seen this Accused was chasing the victim. She claims that she had clearly identified the Accused with the help of the street light. Further she had assisted the Police to apprehend this Accused within few minutes. The Accused said that she could not have identified him at that time.

She doesn't know the Accused or the victim. She claims to be an independent witness. It is up to you to decide whether she is telling the truth or not. It is a factual matter for you to decide.

32. 4th witness called by the Prosecution was Detective Corporal 3175 Roy Senibici. He was a Police Officer attached to Valelevu Police Station. He was involved in the investigations. He had prepared the sketch of the scene of crime. He had uplifted some of the productions such as gas lighter, jeans, pinch bar and a weeding knife. He had followed the normal procedure and prepared a search list and exhibited all the items.

33. Detective Sergeant Lemeki Mawalu was the next witness called by the State. He is also a Police officer attached to the Valelevu Police Station. On the 15/07/2010 early morning while he was at the station received a complaint about a robbery at a shop in Laqere. When he came down, a taxi had come with the victim and the 3rd witness. Keeping the victim at the station he had gone with another Police officer and the couple in the same taxi to the place of incident. Almost near to the said place the Accused was arrested on an information provided by the 3rd witness Timaima Wati. He further investigated into the matter and prepared a search list.

34. The last witness called by the State was Detective Corporal 3389 Elia Salabuco. He corroborated the above witness. He had searched the Accused and found the items which we discussed earlier. He had listed all productions and prepared a search list.

35. When the State Counsel closed the case for the Prosecution this Court called defence from the Accused. He opted to give evidence and called witnesses for him. I should remind you that the Accused has right to remain silent but he opted to give evidence.

36. The Accused Joseph Nonu said that he was drunk and he was in search of his girl friend's sister's home to meet his girlfriend there he was arrested by the police. Further he said he picked up a wrist watch on the way and kept it with him. He said he was not involved in any offence. He firmly submits that he was at the wrong place at the wrong time.

37. The Accused called 4 witnesses for him. The 1st witness was his girlfriend Julia Vuniduvu. She said they had a quarrel on the 14/07/2010 due to the Accused couldn't make it for the date that they had on that date. She said that the Accused called her at 1am on 15/07/2010.

38. The next witness called was Sanaila Tabua. He said on the 14/07/2010 he was in the cell block. When the Accused was admitted to the cell, he was drunk and smelling of liquor.

39. The next witness was Sukulu Tikoitoga. You heard him saying he was involved in the church. On that day he was involved in devotion at the Evergreen church. He had seen the Accused was fully drunk and walking on the road. Further he had seen the Accused picking up something silver in colour. Is it possible of seeing so minutely at that night. Further he admitted that he had not informed this to the Police.

40. The next witness called by the defence was Alipate Vakadewavosa. He said on the 15/07/2010 he was remanded by the Magistrate Court of Nasinu and he was taken to the Police Station of Valelevu. It was about 10am and he had seen the Accused who was fully drunk. Further he had seen the Accused wearing a white T-shirt.

41. Both the State Counsel and the Accused addressed you all. It is up to you to accept or reject their submissions but you have to consider all evidence before you make a final decision.

42. I request you to consider not only my summing up but also to consider all evidence before this Court, submissions of the State and the submissions made by the Accused.

43. After carefully analyzing all the evidence if you are satisfied beyond reasonable doubt then you can find the Accused guilty to the charge. If you are not satisfied and if you think there is a reasonable doubt created in this case then you must find the Accused not guilty as charged.

44. 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.

45. Let me ask both State Counsel and the Accused person whether they have anything to be addressed to you?

State Counsel: None.

Accused: None.

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

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

47. 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
Accused In Person