State v Vakanawakoro [2011] FJHC 734; HAC179.2010 (20 October 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 179 OF 2010

BETWEEN:

THE STATE

AND:

JOSEVA VAKANAWAKORO

Counsel: Ms. L. Tabuakuro for the State
Accused In Person

Date of Hearing: 17th to 20th October 2011

Date of Summing Up: 20th October 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.

"JOSEVA VAKANAWAKORO is charged with the following offence:

First Count

Statement of Offence

AGGRAVATED ROBBERY: Contrary to Section 311 (1) (a) of the Crimes Decree 2009.

Particulars of offence

JOSEVA VAKANAWAKORO and another on the 26th day of August 2010 at Nakasi in the Central Division robbed on KRISHNEEL NAND of cash $1500.00, one IFONE mobile phone valued at $3200.00 to the total value of $4,700.00 and immediately before such robbery did use personal violence on the said KRISHNEEL NAND.

Second Count

Statement of Offence

THEFT: Contrary to Section 291 of the Crimes Decree 2009.

Particulars of offence

JOSEVA VAKANAWAKORO and another on the 26th day of August 2010, at Nakasi in the Central Division stole vehicle registration number FN 572, a red Toyota, the property of KRISHNEEL NAND."

11. Section 311 (1) (a) of the Crimes Decree 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

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

(i) The Accused

(ii) stole cash, phone and vehicle

(iii) use of violence

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

13. Section 291 of the Crimes Decree describes the offence of theft as follows:

(1) A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property.

(2) for the purposes of this Decree an offence against sub-section (1) is to be known as the offence of theft.

14. In the present case the Accused is not challenging all these elements of the offence except the identity of the Accused. He simply submits that he was not involved in the offence.

15. In this case you may recall the evidence before this Court is that two people involved in the Robbery. This falls under the principle of joint enterprise.

16. 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.

17. 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.

18. 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.

19. 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.

20. You heard and saw Ms. Sulueti Raluve giving evidence. She said she worked at Plus Packaging situated at Nakasi as a Machinist. The factory she worked was a small place. It was a house and had one entrance with a grill gate. Her Managing Director was Mr. Krishneel Nand.

On the 26th April 2010 she was at work with 3 other staffs, the Managing Director was at his office in the same room separated by a glass partition. At around 12 o'clock two Fijian boys had come and asked Kamlesh, a co-worker to see the boss. This witness had stood up from her work station and looked at these two boys. Those boys who came in, one claimed that he is from the LTA and the other claimed to be a police officer.

One of them stood at the gate and the other had gone into Krishneel Nand's office. When Mr. Nand tried to call the police to check about these two people, one who claimed as police officer had prevented Nand from calling the police by holding his hand and took him to the back side of the office.

When the intruders bend to take an iron rod, this witness made use of the opportunity and ran out of the office. When she was out, she had seen both assailants came out from her work place and got into the red colour double cab belongs to Nand which had the registration no. FN 572 and drove away. It was driven by the boy who claimed as LTA officer. She then boarded on a taxi and gone to the police station of Nakasi and lodged a complaint. She had described the physical feature of the assailants to the police and the complaint was recorded at 12.20 noon.

21. On the 3rd of September 2010 she had identified this Accused Joseva Vakanawakoro at the Identification parade. Further this witness clearly identified the Accused in this Court also.

22. The Accused cross examined this witness extensively and suggested that the Police coached her to identify him at the ID parade. The statement made by this witness is before you marked "D1". I want you to consider whether she had identified the correct person or she was guided by police to identify a wrong person. Witness said that she had clearly identified the correct person and she did not make any mistake in the identification parade. It is a factual matter for you to consider whether she had the time and proper light to identify the person and did she describe the accused persons to the police etc,.

23. Prosecution called Maria Adicagi as the 3rd witness. She is related to Sulueti and working with her in the same factory. She had also seen the incident and made statement to the police. But she could not identify any of the assailants in the identification parade and in this Court.

24. Prosecution called four witnesses to rebut the defence of alibi of the Accused person. Alibi means, if I explain in simple terms the accused claims, that at the time of the incident he was elsewhere.

25. Seni Nakawa, Asena Molivou, Meredani Tarukua are the neighbours of the Accused. On the 25th August 2010 there was a funeral at their place. They had seen the Accused at the funeral gathering. Burial was on the 25th and on the 26th August 2010 they were involved in send off the visitors. There was 'burua' ceremony. These sisters were busy in preparing food and other things for their brother who was going to USA. All three witnesses said that they didn't see the Accused at their house or dismantling the shed.

26. Anasa Bainivalu was called by the Prosecution. He said he was a rugby coach at Nausori and he knows the Accused from his childhood. Normally the Accused comes to practices in the afternoon. He could not recall whether the Accused came for training on the 26/08/2010.

27. Next witness called by the Prosecution was A/Cpl. Sukulu Colati. He is attached to Samabula Police Station. On the 01/09/2010 he was asked to record a statement from this Accused. He claims another police officer from Nakasi police station had given the details of the allegation and he put that to the Accused.

28. Since the Accused claims that he had been mislead by the time mentioned in the allegation I reproduce the allegation put to the Accused in the cautioned interview.

"Q11: Are you okay now to start this interview?

A: Yes

I am Detective Corporal 2476 Sukulu Colati of Samabula Police Station. I wish to question you in regards to the allegation that you on 26th August, 2010 (Thursday) at about 4.45pm at Plus Processing, Nakasi you entered the office and stole items valued $2300.00, cash $1500.00 with vehicle registration No. FN 572. Before this you personated to be a police officer and LTA officer. In which all property stolen belongs to Krishnil Nand. After unlawfully using vehicle FN 572 you used the said vehicle to rob Kundan Singh supermarket, Tamavua and stole cash amounting to $1500.00. In which you were armed with the cane knives and pinch bars. In which you are not obliged to say anything unless you wish to do so but what you say may be put down into writing and given in evidence."

29. The Accused claimed that he had been mislead by the time given to him by Cpl. Colati. By reading the statement you may note that the police officer had given particulars of two incidents happened on the same day. The time mentioned was 4.45pm. This statement was recorded on the 03/09/2010 and the Accused had completely denied all the allegations against him.

30. You heard station sergeant Virendra Deo giving evidence. He said he was the investigation officer in this case and he charged the Accused on the 3rd September 2010. According to the charge it reads as follows:

"Q: Can you sign to say that your rights were properly given before being charged?

A: Yes Sign: Joseva Vakanawanoro Wit: D/Sgt. 2280 Virendra

You are now charged for the First Count – Aggravated

Robbery: Contrary to section 311 (1) (a) of the Crimes Decree No. 44 of 2009, that you with another on 26/08/2010 at about 1200hrs at Vishnu Deo Rd, Nakasi robbed and assaulted one Krishneel Nand of cash $1,500.00 and one Apple brand I mobile fone valued at $2,300.00 and one driving licence valued $14.00, all to the total value of $3,800.00, the property of the said Krishneel Nand. Second Count – Theft: Contrary to section 291 of the Crimes Decree No. 44 of 2009 that you with another on 26/08/2010 at about1200hrs at Vishnu Deo road, Nakasi unlawfully used a twin cab vehicle Registration No. FN 572 which later found abandoned on 28/8/2010 at CWM hospital car park, the property of Krishneel Nand. Do you wish to say anything? You are not obliged to say anything unless you wish to do so but whatever you say will be taken down in writing and given in evidence."

When he was asked by the charging officer whether he wish to make a statement, the Accused made a statement denying all the allegations against him. Further he had said that he doesn't know how to drive a vehicle.

31. The question before us is, whether the Accused was misled by the allegations put at the cautioned interview. Prosecution claims that this had happened on 3rd of September 2010 and the defence of alibi is taken only in the recent past.

32. Sergeant Virendra Deo claimed that he conducted the identification parade in accordance with the accepted norms and procedures. He had kept 9 persons including the Accused and one of the witnesses had identified the Accused. You may recall he explained the structure of the police station of Nakasi.

33. Once the State Counsel closed the case for the Prosecution, Defence called from the Accused. He opted to give evidence and to call witnesses on his behalf. I should remind you the Accused has no obligation to prove anything because as I addressed to you at the beginning of the trial and this summing up the Prosecution should prove the case beyond reasonable doubt. The burden never shifts to the Accused.

34. The Accused Joseva Vakanawakoro gave evidence and said he had been misled by the interviewing officer by mentioning the time as 4.45pm on 26/08/2010. Further he said at the relevant time i.e. between 11 to 12 noon he was at his neighbour's house dismantling the shed which was put up for a funeral. He submits he was not involved and he doesn't know anything about this case.

35. He called Etuate Ratu who is 17 years old cousin of him. He said that on the 26/08/2010 between 11am to 12noon the Accused was with them dismantling the sheds at their neighbours. When he was cross examined he said he had not made any statement to the police and he will do anything to help out his uncle the Accused.

36. On the request of the Accused with every short notice Wallace Wise was brought from medium prison to give evidence. He said he doesn't know the Accused but on the 03/09/2010 while he was in the cell of Nakasi Police Station, he had heard the police officers briefing 2 girls to identify a person with beard and red T-shirt. He had met the Accused subsequently in the cell. He guesses that the police had referred this Accused to those girls. It should be noted at this point that, according to the station sergeant Virendra Deo the cell and the police reception rooms were situated far away and one cannot hear anything or see each other's room.

37. The next witness was Uate Camaitoga. You saw him he is 17 years old boy from neighbouring house. He said he had seen the Accused dismantling a shed on 26th of 2010 (sic). He did not mention which month. He did not make any statement to the police. For the 1st time he speak about this in this Court.

38. 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.

39. 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.

40. 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.

41. 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.

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

State Counsel: 1. Procedure of conducting the ID parade may be explained.
2. Further section 125 be explained.

Accused 1. At the relevant time I was not there, that may be explained.

I have already explained to you that the police witness claims that the ID parade was conducted on accepted norms and procedure. It is up to you to accept the witness or not.

The 2nd issue raised by the State Counsel was the procedure of calling alibi witnesses. I have explained to you what is an alibi. Accused can call witnesses in accordance with law but as per our law the Accused is entitled to call any witnesses on his behalf. Acceptance of their evidence is in your hand. Are they giving credible evidence or not, should be evaluated after comparing witnesses for the prosecution and defence.

The Accused wanted me to address that his witnesses says at the relevant time he was at his neighbour's house. You have an eye witness saying he was at Nakasi at the scene of crime and 3 witnesses from his neighbouring house says he was not seen at the relevant time at their house but 2 boys says he was with them at the neighbouring house at the relevant time. These witnesses evidence were summarized earlier it is up to you to decide what is the truth.

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

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

44. 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