State v Tulagi - Summing Up [2014] FJHC 241; HAC069.2008S (4 April 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 069 OF 2008S

STATE

vs

ADRIU TULAGI

Counsels : Ms. M. Fong and Ms. S. Navia for the State
Accused in Person
Hearings : 31 March, 1 to 3 April, 2014
Summing Up : 4 April, 2014

SUMMING UP

1. ROLE OF JUDGE AND ASSESSORS
   

1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
   
2. State Counsel and the accused have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State Counsel and accused, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
   
3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
   

2. THE BURDEN AND STANDARD OF PROOF
   

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
   
5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.
   
6. Your decision must be based exclusively upon the evidence which you have heard in this court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   

100. THE INFORMATION
     

7. You have a copy of the information with you, and I will now read the same to you:
   

"... [read from the information]...."

4. THE MAIN ISSUES
   

8. In this case, as assessors and judges of fact, each of you will have to answer the following questions:
   
   • (i) On count no. 1, on 3 March 2008, at Navua in the Central Division, did the accused with others, violently rob complainant no. 1 of $5,880 worth of properties?
     
   • (ii) On count no. 2, on 3 March 2008, at Navua in the Central Division, did the accused with others, unlawfully used complainant no. 1's motor vehicle registration no. DI 789, when they fled from her home?
     
   • (iii) On count no. 3, on 5 March 2008, at Nasinu in the Central Division, did the accused with others, violently rob complainant no. 2 of $3,110 worth of properties?
     
   • (iv) On count no. 4, on 5 March 2008, at Nasinu in the Central Division, did the accused with others, violently rob complainant no. 3 of $5,150 worth of properties?
     

5. THE OFFENCES AND THEIR ELEMENTS
   

9. Counts no. 1, 3 and 4 involved the offence of "robbery with violence", under the Penal Code, Chapter 17. Under the Penal Code, there were 2 types of "robbery with violence". For count no. 3 and 4, for the accused to be found guilty of "robbery with violence", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused,

(ii) stole,

(iii) the complainant's property or properties, and

(iv) before, during or after the above theft,

(v) used personal violence
(vi) on the complainant.

10. "Stealing" is the act of taking someone's property or properties, without his permission, and with an intention to permanently deprive him of that property. For example, taking your money without your permission, and using it on myself. Also, taking your mobile phone or your jewellery, and treating the same as mine, without your permission. "Personal violence" means any type of violence, for example, hitting someone with a stick or iron rod, and includes threatening someone with the same. The violence must be done before, during or after the act of stealing.

11. For count no. 1, for the accused to be found guilty of "robbery with violence", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused,

(ii) being armed with an offensive weapon, or

(iii) being together with one or more persons,

(iv) steals

(v) the complainant's properties.

12. The word "stealing" has the same meaning described in paragraph 10 hereof. Prior to the act of stealing, the accused must be armed with an offensive weapon, or present with one or more persons. Offensive weapons includes any instrument that is used to threaten the complainant, at the time – for example, a stick, iron rod, pinch bar, cane knife, stones etc. The presence of one or more person, with the accused, prior to the act of stealing, is used to frighten the complainant to part with his or her properties.

13. On count no. 2, for the accused to be found guilty of "unlawful use of a motor vehicle", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused,

(ii) drove away,

(iii) the complainant's motor vehicle,

(iv) without his permission

14. You will notice that in the particulars of offence in the information on all counts, the prosecution used the phrase, "...ADRIU TULAGI together with others..." The prosecution is alleging that the accused committed the above offences, as a group. As a matter of law, I must direct you that when two or more persons form a common intention to commit a crime, and in committing the crime, each of them performed different roles, they are all deemed, in law, to have committed the crime, that is, the offence. It matters not, whether or not one committed a minor role or major role, they are each deemed to have committed the offence. This is because each of them helped and encouraged each other to commit the offences.

F. THE PROSECUTION'S CASE
15. The prosecution's case were as follows. On 2 March 2008 (Sunday), the first complainant (PW1) was in her house in Deuba. She had just parked her four wheel drive vehicle in her garage, and was relaxing in her home. It was about 5 pm. At 7pm, she had her dinner, and at 9 pm, she went to sleep. Before doing so, she securely locked her doors and windows. A few minutes pass mid night (ie. on 3 March, 2008, Monday), she was suddenly awoken. All her lights were switched off.

16. She saw 4 figures looking into her bedroom through her window. She screamed at them to go away, but to no avail. The group then broke her window, and entered her bedroom. They threatened her, and enquired about money and other valuable items. They ransacked the house. They were armed with cane knives, pinch bars and a chain saw. They stole the items mentioned in count no. 1. They then fled in the complainant's four wheel drive (DI 789). Only the vehicle and her handbag were recovered, a few days later. The matter was reported to police.

17. On 5 March 2008 (Wednesday), at about 1.13 am, complainant no. 2 (PW2) and his wife, complainant no. 3 (PW3) were fast asleep in their house at Nadera. They were suddenly awoken by the barking of their dogs. PW2 then switched on all the lights inside and outside their house. They went into the sitting room. They saw 5 "i-taukei" boys standing in front of their porch. They forced open the front door, armed with a cane knife, a pinch bar and a cutter. Both complainants surrendered to the boys, and told them to take whatever they want, but to spare their lives.

18. The "i-taukei" boys ransacked the house and stole the properties mentioned in counts no. 3 and 4. Both complainants were extremely frightened by the robbery. At about 1.20am on 5 March 2008, the boys fled the crime scene. The matter was reported to police. An investigation was carried out. None of the complainants identified any of the robbers. However, on 6 and 10 March 2008, the accused was arrested and caution interviewed by police at Navua and Valelevu Police Stations. In the interviews, the accused admitted being part of the group that violently robbed the complainants, at the material times. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.

G. THE ACCUSEDS' CASE
19. On 31 March 2014, the first day of the trial proper, the information was put to the accused. The accused had waived his right to counsel. He pleaded not guilty to the offences. In other words, he denied the allegations against him. When a prima facie case was found against him, at the end of the prosecution's case, he choose to give sworn evidence, in his defence. He called no witnesses. That was his right.

20. In his sworn evidence, the accused denied all the allegations against him. He said, he did not violently rob the complainants, as alleged. He admitted, he was arrested by the police, and caution interviewed by them, on 6 and 10 March 2008, at Valelevu and Navua Police Stations. He admitted that, he allegedly confessed to the allegations in the caution interview statements. However, he asks you, as assessors and judges of fact, to disregard his alleged confessions in his police caution interview statements, because they were given involuntarily and without his own free will.

21. The accused said, the police assaulted and threatened him, when he was arrested. According to him, they punched him several times, hit his back with a stick, put lighted cigarette butts on him and sprayed chilles on his eyes and private parts. He also said, the police interview officers assaulted and threatened him, during the interview. Because of the above, the accused asks you to find him not guilty as charged, and acquit him accordingly. That was the case for the defence.

H. ANALYSIS OF THE EVIDENCE

(a) Undisputed Evidence:

22. When the three complainants [ie. PW1 (Navua), PW2 and PW3 (Nadera)] gave evidence, on the fact that, some "i-taukei" youths broke into their houses, at the material times, and violently stole their properties, as itemized in counts nos. 1, 3 and 4, the accused never challenged their evidence as to the same. In other words, the complainants' evidence that a group of robbers violently broke into their houses, and violently stole their properties, at the material times, was not disputed by the parties. You have heard the complainants' give evidence, on how the robbers (approximately, on each occasions, a group of 4 or 5 boys) violently broke into their houses in the early hours of the morning, in the case of PW1 – on 3 March 2008; in the case of PW2 and PW3 – on 5 March 2008 – 2 days apart. The patterns of the robberies were similar.

23. The complainants were attacked in the early hours of the morning while fast asleep. Their doors and windows were forcibly broken into. Four to five "i-taukei" males were involved, and armed with cane knives, pinch bars, and other weapons. The complainants were violently threatened. Then the youths forcefully stole their properties. In terms of the elements of "robbery with violence" described in paragraphs 9 and 11 hereof, all the elements of "robbery with violence" were not disputed by the parties, except the identities of the robbers. So, you may take it that the prosecution had proven beyond reasonable doubt that, the three complainants were violently robbed of their properties, at the material times. It is a matter for you.

24. PW1, the first complainant, also said the robbers fled her home in her four wheel drive vehicle, registration no. DI 789, after robbing her, on 3 March 2008. They never sought her permission. In fact, they forced her to give them her car key. She was frightened, and she gave them the key. They used her car without her permission. The car was later recovered abandoned, after the robbery. In terms of the elements of count no. 2 (ie. unlawful use of PW1's motor vehicle), as described in paragraph 13 hereof, the prosecution had proven the elements of the offence, except the identity of the robbers.

25. So, you will see that, the prosecution's main difficulty, in this case, as far as the offences were concerned, were the identity of the robbers, who violently attacked the complainants, at the material times. When cross-examined none of complainants said, they saw the accused, at the crime scene, at the material time. In other words, the prosecution could not provide any identification evidence to connect the accused to the crimes alleged. That was the problem presented to the prosecution in this case.

(b) The Accused's Alleged Confessions [Prosecution Exhibits 1(A) (hand-written version); 1(B) (typed version); 2 (hand-written version) and 3 (typed version)]:

26. To resolve the problem of connecting the accused to the crimes alleged, the prosecution relied on the accused's alleged confessions, he allegedly gave the police, when they caution interviewed him on 6 March 2008 at Nabua Police Station, and on 10 March 2008 at Navua Police Station. Note that these interviews were done so soon after the alleged offences on 3 and 5 March 2008. It could be argued that, the matters were still fresh in the accused's mind, and there possibly was not enough time to "think out" his answers.

27. In any event, regarding PW2 and PW3's Nadera complaints, as revealed in counts nos. 3 and 4, the accused was caution interviewed by former Police Officer Ifereimi Tauva (PW4) at Nabua Police Station on 6 March 2008. The interview started at 2.45 pm and concluded at 8.35 pm. The police asked 115 questions and the accused gave 115 answers. The police gave the accused the standard caution, and also his right to counsel. There was about 1 hour 5 minutes break to visit the crime scene. When interviewed, the accused admitted he was part of the group that violently robbed PW2 and PW3 at Nadera, at the material time. [see Questions and Answers 45 to 94 of Prosecution Exhibit No. 1(A) and 1(B)].

28. As far as PW1's complaint was concerned, as revealed in counts nos. 1 and 2, the accused was caution interviewed by Police Officer PC 966 Lui Daurewa (PW5) at Navua Police Station on 10 March 2008. The interview started at 8.35 am and concluded at 2.20 pm. The police asked the accused 63 questions and he gave 63 answers. The standard caution and his right to counsel were given to him. There was a break of 2 ½ hours for the scene visit. When interviewed the accused admitted the offences [see Questions and Answers 5 to 59 of Prosecution Exhibit No. 2 and 3].

29. The above admissions by the accused, when cautioned interviewed by the police, amount to a confessions to the crimes alleged in counts nos. 1 to 4. However, before you consider the accused's above alleged confessions, I must direct you as follows. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, before you can accept a confession, you must be satisfied beyond reasonable that it was given voluntarily by its maker. The prosecution must satisfy you beyond reasonable doubt that the accused gave his statement voluntarily, that is, he gave his statements out of his own free will. Evidence that the accused had been assaulted, threatened or unfairly induced into giving those statements, will negate free will, and as judges of fact, you are entitled to disregard them. However, if you are satisfied beyond reasonable doubt, so that you are sure that the accused gave those statements voluntarily, as judges of facts, you are entitled to rely on them for or against the accused.

30. In this case, the voluntariness of the above accused's alleged confessions was hotly disputed by the parties. As is customary in this type of dispute, the police said, they did not assault, threaten or made promises to the accused before, during and after the caution interview. The arresting police officers said, they did not assault, threaten or made promises to the accused during his arrest, and while being taken to the other police stations.

31. The accused, on the other hand, said exactly the opposite. He said, both caution interview officers assaulted him and threatened him to admit the offence, to make it easy for everybody. He said, when he was arrested, the police repeatedly punched his stomach, hit his back with a stick and put lighted cigarette butts on his body. He said, they sprayed chillies on his eyes and private parts. He said, he was threatened by police that he will be killed if he did not confess to the crimes.

32. He produced a copy of a medical report, Defence Exhibit No. 1, as evidence of police assaults. Although the medical report was strictly hearsay documentary evidence, I allowed it in, in the interest of fair trial to the accused. Please, read the report carefully. The prosecution cross-examined the accused on the report. In D(10) of the report, the doctor recorded the accused's complaint as follows, "...patient says he was assaulted by police officer 2 days ago. 2 days ago he was beaten several times..." In D(12) of the report, the doctor recorded, "...blue mark, slight bruise and swelling on left eyes and jaw...no other marks seen on body...no signs of fractures...no signs of assault..." In D(13) of the report, the doctor concluded as follows, "...History of two days physical abuse, does not correlate with examination...no bruises noted on body..." In D(14), the doctor wrote, "...Only significant injury is on face. Does not correlate with history of repeated abuse..." It appeared that, the medical report does not confirm the accused's allegation that he was repeatedly assaulted by police for 2 ½ days prior to 7 March 2008. Furthermore, the accused admitted in cross-examination that, the defect to his left eye had been there since 2000, when he was in Form 4. In any event, what you make of the medical report is entirely a matter for you.

33. You have observed the police officers and the accused giving evidence in court on whether or not he gave his alleged confessions voluntarily and out of his own free will. I will not bore you with the details. Their evidence are still fresh in your minds. What were their demeanours in court? Were they forthright or evasive as witnesses? Who, from your point of view, was telling the truth? Who was the more credible witness of the two, the police officers or the accused? If you accept that the accused gave his confessions voluntarily, then you must find him guilty as charged, on all counts. If you accept that he gave his confession involuntarily and not out of his free will, you must find him not guilty as charged on all counts. It is entirely a matter for you.

I. SUMMARY

34. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused's guilt, you must find him not guilty as charged.

35. Your possible opinions are as follows:

(i) Count No. 1 : Robbery with Violence : Guilty or Not Guilty

(ii) Count No. 2 : Unlawful use of a Motor Vehicle : Guilty or Not Guilty

(iii) Count No. 3 : Robbery with Violence : Guilty or Not Guilty

(iv) Count No. 4 : Robbery with Violence : Guilty or Not Guilty

36. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerks, so that we could reconvene, to receive your decisions.

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva

Solicitor for Accused : In Person