State v Sausau - Summing Up [2012] FJHC 1313; HAC111.2009 (27 August 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC111 of 2009

BETWEEN:

STATE

AND:

KOSENI SAUSAU
1st Accused

AND: SEMETI RAVAI
2nd Accused

BEFORE: Hon. Justice P.K. Madigan

Counsel: Ms. A. Lomani for the State
Ms. L. Lagilevu for both accused

Dates of hearing: 22, 23 and 27 August 2012

SUMMING UP

[1] Ladies and gentleman assessors.

The time has come now 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 the truth lies in this case. If I express any particular view of the facts in this summing up then you will ignore it unless of course it agrees with your view of that fact.

[3] Counsel have addressed you on the facts but once again you need not adopt theirs oews of the facts unless you agree with them. You will take into account all of the evidence both oral and documentary. Yn accome of what a wita witness says and reject the rest. You can accept all of what he or she sshe says and you can reject all. As judges of the facts you are masters of what to accept from the evidence.

[4] You musge 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 there mighe been or should have been. You judge the case solely on whon what you have heard and seen here.

[5] The court room is no place for sympathy or prejudice. You must not let your opinions cloud your view of the evidence. You must 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 them not guilty - that doubt must be a reasonable one however, not just some fanciful doubt. The accused do not have to prove anything to you. If you are sure however that Sausau and Ravai abducted Sukul, then you will find them guilty.

[8] There are two accused in this case who are facing the count. You must consider the case against and for each accused separately.

[9] The accused are charged with one count of abduction. Abduction is a legal term for unlawfully depriving somebody of their liberty and to prove the case to you the State have to prove to you, so that you are sure, the following elements:

(1) that Sukul was unlawfully taken away by the accused; and

(2) that either Sukul did not consent to that or any consent was obtained by fraud or force; and

(3) the accused knew that Sukul did not consent or that they were obtaining his consent by fraud or force; and

(4) the accused by taking Sukul intended that he be kept confined or restricted in the vehicle where they put him.

[10] All that means for the purpose of our case is that did these two accused force Sukul to go with them and after they forced him, did they keep him in a place he didn't want to be? There is a defence available to that charge and I will come to that in due course.

[11] I now have to direct you Ladies and Gentleman on the law involving joint participation in a crime. 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 liability 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. Your approach to the case should therefore be as follows: if looking at the case of either accused you are sure that with the intention I have mentioned he took some part in committing it with the other, then he is guilty.

[12] The prosecution case was brief. They rely on four witnesses and a lot of agreed statements and witness statements. Now it is agreed between the parties, in the agreed facts that have been placed before you that both accused went in a green Hilux vehicle to where Sukul lived, on the 17th October 2009. They went up to his flat, brought him downstairs and put him in the vehicle and drove off. The fourth prosecution witness, Nacanieli, was there when the two accused went up to the flat. He told us that one of the men was angry and they were drunk. He said Sukul didn't like what they were doing and he was hesitating. Abdul, the security man told us that Sukul was resisting and "trying to pull back."

[13] From this evidence Ladies and Gentleman, you might think that the State has satisfied the elements of the crime, so that you are sure that a) the accused took Sukul away from his home, b) he didn't want to go (therefore showing lack of consent), c) they confined him in the vehicle so that he had no choice but to go along with them. If you think that and it is a matter for you, then you will find each guilty of abduction.

[14] When the prosecution closed their case, you heard me tell the two accused what their rights are in defence. They could have remained silent and say that the State had not proved the case against them beyond reasonable doubt, or they could give evidence from the witness box on oath and be cross-examined. As you know they both elected to give evidence on oath. Now they did not have to give evidence and the fact that they did, does not relieve the burden on the State to prove their case. The accused don't have to prove anything to you, but having given evidence it is for you to evaluate in the normal way and to give it what weight you think it deserves.

[15] The first accused told us that after drinking beer for 3 to 4 hours he had gone with the second accused to drop off a work-mate and his wife in Nausori. While they were out the boss called to say that his son was in trouble and they were to hurry and bring the vehicle back. On the way back his passenger, the second accused suggested going to see Sukul. They wanted to see him to talk about the rumours he was spreading about them using the money he had stolen to buy drinks for all the Fijians. He said that a complaint about Sukul stealing the money had been lodged at Raiwaqa Police Station by the office girl. So they went to Sukul's house. He hugged him and took him downstairs to talk. He told Sukul that the boss wanted to see him because he hadn't been coming to work. They went to the car and the first accused opened the door and told him to get in. Sukul kept saying "wait" and he didn't want to get in. He said that from there they were going to drop off a hitch-hiker they had picked up and then go straight back to the workshop. He said that the plan was to ask him about the money in front of the boss and then take him to the Police Station. In cross-examination he admitted that Sukul was not consenting to get in the car and also he lied to him about the reason for taking him. Nor did they think of handing him over to the Police before they got to the workshop.

[16] The second accused also gave evidence. He had been drinking beer since about 9am before they went out in the vehicle. He agreed that it was his idea to go and see Sukul about the rumour he was spreading. They got into Sukul's flat. They said they wanted to talk and took him downstairs. They told him he had to talk to the boss. They got to the car and Sukul refused to get in so this witness, the second accused, pushed him into the car. They wanted him to talk to the boss and then they were going to take him to the Police Station. The second accused was worried about the allegation that Sukul was making because he was about to be terminated because of it. He asked Sukul about the allegation on the way but Sukul said it was a lie. In cross-examination this witness admitted that they had lied to Sukul about the reason they wanted him to go with them, that Sukul refused to go with them and that he had pushed him into the vehicle.

[17] The office girl gave evidence to say that she had given $500 to Sukul when he was working there, the money being for petty cash. She said that he disappeared with the money and also that he had tried to have one of the company's excavators transferred into his own name. She had reported the stolen money to the Police at Raiwaqa. She admitted that she had made no attempts to contact Sukul apart from an unanswered phone call.

[18] The last witness for the defence was a Policeman from Raiwaqa who had received the report. It was a report from the office girl that Sukul had stolen $500 in cash from the company. The Police looked for Sukul but couldn't locate him. So when they couldn't find him, they did nothing and the report is still sitting idle today. He admitted to me that Sukul had never been given a chance to explain, nor that he had ever gone for trial in a Court of law.

[19] Well, Ladies and Gentleman that was the case for the defence and I must direct you that in law there can be a defence to the charge: in our law private citizens (as the two accused undoubtedly are) may arrest another person if that person is seen to be committing a serious offence or the citizen suspects that the person has committed a serious offence AND that a serious offence has been committed. Therefore in our case, theft of $500 from the company (if Sukul did indeed steal it) would be a serious offence, but in order to be able to rely on the defence they must prove to you the following elements:

(1) that a serious offence HAS been committed;

(2) that they were in fact arresting Sukul;

(3) that they forced Sukul into the car against his will solely because they thought that he had committed the offence; and

(4) that they were about to take him immediately to a Police Officer or to a Police Station.

[20] Now you may immediately see two or three problems with this defence being available to the accused. First is that there is no evidence before you whatsoever that the offence of theft has been committed, that is that Sukul had actually stolen the money from Power Plants. We have the allegations of the accused, and we have the suspicions of the office girl. They can be no more than suspicions because Sukul was never given an opportunity to defend himself either to the Police or to a court of law; in short the offence has not been proved, so it would be unsafe to say that a serious offence has been committed. Secondly for the defence to succeed, it must be shown to you that, in all probability, the two accused when forcing Sukul into the car against his will intended to take him immediately to the Police. The evidence suggests otherwise; they were taking him to their boss, so that the "truth could be told" and THEN they were going to take him to the Police Station and lastly there is no evidence from either of the accused that they were in fact arresting him.

[21] It is all a matter for you Ladies and Gentleman. If you think that in all probability Sukul has stolen the money and if you think that in all probability that they were arresting him and taking him straight to the Police, then the defence of citizen's arrest is available and you will find both of the accused not guilty. If on the other hand you think that there is no evidence that Sukul had stolen the money and the accused were not taking him immediately to the Police then they are not entitled to make a citizen's arrest and you will find them each guilty of abduction.

[22] That is all I wish to say Ladies and Gentleman. It is now time for you to deliberate and decide on your verdicts. It would be most desirable if you could all three agree on your verdicts but that is not essential. When you are ready please let one of my staff know and I will reconvene the Court.

[23] Any redirections, Counsel?

Paul K. Madigan
JUDGE

27 August, 2012