State v Delana - Summing Up [2014] FJHC 336; Criminal Case 158.2010 (16 May 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. 158 of 2010

BETWEEN

STATE

AND

1. FILIPE DELANA
2. SANAILA TABUAVULA

BEFORE THE HON. MR. JUSTICE P. MADIGAN

Dates of hearing: 14, 15, 16 May 2014
Date of Summing up: 16 May 2014

Counsel: Mr. M. Vosawale with Ms R. Uce for the State
Ms T. Leweni for the First Accused
Mr R. Vananalagi for the Second Accused.

SUMMING UP

1. The time has now come for me Madame and Gentlemen to sumup this case. In doing that I will remind you of what I consider to be the important evidence and I will direct you on the law involved. Whatever I say about the law, you must accept and apply it to the facts. Whatever I say about the evidence and the facts, you do not have to accept, unless of course you agree with what I say. You and only you can decide where the truth lies in this case. Only you will decide whether the accused are guilty or not guilty of the charges they face. When you have decided that you will individually tell me what your opinions are after you have deliberated together. I do not have to accept your opinions but I will give them the greatest possible weight when I come to make the final judgment of the Court.
   
2. Counsel have addressed you on the facts but once again you need not adopt their view of the facts unless you agree with them. You will take into account all of the evidence both oral and documentary. You can accept some of what a witness says and reject the rest. You can accept all of what he or she says and you can reject all. As judges of the facts, you are the masters of what to accept from the evidence.
   
3. You must judge this case solely on the evidence that you have heard in this court room. There will be no more evidence, you are not to speculate on what evidence there might have been or should have been. You must judge the case solely on the evidence produced in this court and on nothing else.
   
4. I am not bound by your opinions but I will give them full weight when I decide the final judgment of the Court.
   
5. 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 these two 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 Filipe and Sanaila robbed the Narayan family, then you will find them guilty.
   
6. There are two accused in this case facing two counts. You must considerthe case against and for each accused separately on each count.
   
7. The two accused are charged with one count of aggravated robbery. In law robbery is the theft of property from somebody accompanied by violence of threats of violence to effect the theft. The State must prove to you beyond reasonable doubt in the case of each accused:
   
   • (a) that he committed a theft either by himself or as a member of a pair or group acting jointly together; and
     
   • (b) that at the time of the theft, violence was used or there was a threat of violence.
     
8. Further than that the charge laid by the State is a charge of "aggravated" robbery, so apart from proving the theft of goods, and the use or threat of violence at the time, the State must prove one of two things:
   
   • (i) that at the time of the theft and violence there were more than one person involved; or
     
   • (ii) that at the time, one or more of the robbers was armed with an offensive weapon or anything that appears to be an offensive weapon.
     
9. I think that you will have no trouble finding that this robbery was aggravated in that the evidence from the two Narayans is that there were three robbers and that they were armed with a pinch bar and a bolt cutter.
   
10. If you find that these two accused were two of the robbers on the 22nd July 2010, and you find that they were acting together as part of a plan to steal by robbery, then each of them is jointly liable for whatever every member of the group does. This is called in law the "doctrine of joint liability". So in the execution of an agreed plan then whatever one does, they all do. There are exceptions to this in serious cases of murder etc. but none of those exceptions apply here in this case. What it means in our case is that if you find there is a joint agreement to rob, and there is a robbery then even if one doesn't steal anything or doesn't hit anyone with a bolt cutter, he is still in law liable for these actions if he is part of the group.
    
11. I now want to talk to you about and give you directions on identification evidence. You will recall that the first witness, Mr. Narayan Senior told us that he could identify the first accused as one of the robbers because he was unmasked and because he was seemingly taking the lead in the robbery. This identification is disputed by the first accused and so I must warn you to approach his identification with caution. This is because experience has demonstrated that even honest witnesses can be mistaken in identification. I give you this warning not because I have formed a view of his evidence, but it is because the law requires that in every case where identification evidence is an issue that a warning be given.
    
12. In assessing identification evidence, you must take the following matters into account:
    
    • (i) has the witness known the accused before?
      
    • (ii) For how long did the witness have the accused under observation and from what distance?
      
    • (iii) Was it more than a fleeting glance?
      
    • (iv) In what light was the observation made?
      
    • (v) Was there any obstruction to his view?
      
13. If after taking into account all these considerations, you think that the identification is reliable then you may act on it.
    
14. Mr Narayan Junior's identification of the first accused is somewhat different. He says that in March 2010, he had spent quite some time, he didn't say how long, with the first accused in the holding cells at Suva Magistrate's Court when he had a case of drunken driving. So when he saw him in July, he recognized him. This is called in law recognition rather than identification and it is to be regarded as more reliable than first time identification. You should still however be assessing the identification with the distance the accused is being recognized from, the length of time and the lighting etc.
    
15. Just before moving on to the evidence, I will say a little about the law of theft as it applies to the second count. Both accused have been charged with theft of Pranit Narayan's motor vehicle immediately after the robbery. Theft in law is the taking of property belonging to another with the intention at that time of permanently depriving the owner of that property. So in this case, all you need to find is that the car was the property of Pranit that the robbers took it, and at the time they took it they never intended to return it. So it doesn't matter that it was later abandoned in Nailuva Road.
    
16. Well Madam and Gentlemen that is all I wish to say about the law. It is now my duty to sum up the evidence to you so that you can apply the law to the facts of the case.
    
17. The first two witnesses were the Narayan gentlemen who came and told us about the robbery. Mr. Narayan Senior told us that in the early hours of 22nd July 2010 he was awoken by his son yelling out " Dad . Call the Police. There is someone in the house". He dialed the emergency number, a number he incorrectly remembered as 191, and said "come to (address given), there is somebody in the house". At that point a man came and grabbed the phone - he was a tall man and not masked like two others who were shorter and masked. They said that they had smacked his son with a bolt cutter and then all came into the parents' bedroom. There were three intruders, Mr and Mrs Narayan, Mr Narayan Jr. and the house boy. The family were told to sit on the bed while the three intruders took everything out. They took watches, phones, rings, a necklace, about $150 to $200 in cash. The snatched a necklace from the body of the wife, and took her earring's. They were at all times asking for money. They were there for about 30 to 40 minutes and then they asked for a key to the vehicle, a Land Cruiser registered "DX something" .Mr Narayan Sr. said that all the lights in the house were on - the man without the mask was strolling about while the other two "were doing all the work". He said that he was able to have a good view of the tall man, He was very close to him and his view was not impededand he identified the first accused, Filipe Delana as that man. They told the men that they could have whatever they wanted as long as they didn't harm them. They took the key to the vehicle, reversed it from the compound and drove off. He listed in his evidence the property that had been stolen and when cross-examined by Mr. Vananalagi he was asked to explain the discrepancy between the amount of cash set out in the charge and the amount that he had said was stolen.
    
18. I have to direct you Madame and Gentlemen, that in a robbery case there must be evidence only of some of the items stolen and not all as listed. It is not fatal to the charge if there is no evidence of some items being stolen or if there is a discrepancy between the charge and the evidence. What is important is the evidence of the robbery, not an exact recital of the items stolen.
    
19. Mr. Narayan Jr. did not have much to add to the evidence of his father. He was awoken at 3am by the houseboy who told him that there were thieves at the front door. When they gained entry they went straight to his room. He was hit on the head with a bolt cutter and told to sit on the bed. They went through his wallet, took his lap-top and bottles of eau-de-cologne from his dressing table. They then all proceeded to the parents bedroom where we have heard of what happened from Mr. Narayan Sr. except that Jr. gave more evidence of violence when he said that one of the intruders threatened his father by placing a bolt cutter on his father's nose. He said that the lighting was very bright because he had turned all the lights on when he had been first alerted to the invasion. He said that he was able to identify the man with the bolt cutter as the first accused Delana. Apart from the fact that he was very close to him and was under his observation for most of the time, it was more a case of recognition because he had seen him before. They had, in March 2010, spent time together in the holding cells at Suva Magistrates Court when Mr. Narayan Jr. was awaiting trial on a drink/driving charge. He remembered him because of his distinctive large stature. He said he recognized him easily.
    
20. We then heard from several Police witnesses. Samuela V. told of finding the first accused drunk in an apartment hotel. He was there in a room with a girl. He was searched and a car key was found in his underwear. Also found were some bottles of cologne, ladies shoes, 2 mobile phones, 2 sim cards and some coins. He was escorted to Nasinu Police Station and the key was handed to the Investigation Officer.

The investigation Officer (PW4) said that the key that he was given belonged to the vehicle taken in the robbery. It was given back to the owner because the vehicle had already been returned to him. The vehicle had been abandoned in a street just off Nailuva Street.

21. MrBosenawai was the former Police Officer who arrested the second accused at Qauia Village Lami. There were about 15 officers - they arrested him and took him to Nabua Police Station. He denies that he nor anybody else assaulted him on arrest nor was he assaulted on the journey back to the Police Station. He certainly was not assaulted at the Police Station. At the station he was handed over to an officer to be interviewed under caution. Mr. Bosenawai was present during the interview and says that nothing improper happened to the second accused in the course of the interview. He identified the second accused in court as the man that he had been talking about.
    
22. P.C. Semi was the officer who interviewed the second accused on the 23rd July 2010 over two days. He said that he went through all the proper procedures: he had signed the record of interview and the second accused had signed it. He produced the record of interview into evidence and he read it to us. You have a copy of it.
    
23. It was put to this witness that the interview was fabricated and that many hours of assault of the second accused sapped his will and he was forced by these assaults and by threats to sign the record of interview. The witness denied that the interview was fabricated. I will come back to this when I have set out the evidence of the second accused.
    
24. When P.C. Semi had finished giving his evidence that was the end of the prosecution case. You heard me tell the two accused what their rights are in defence. They could remain silent and say that the State had not proved the case to the requisite standard or they could give evidence and be cross-examined. In either case they had the right to call witnesses if they wished.
    
25. The first accused elected to remain silent. That is his right and you are not to think any less of him or his case because of it. An accused person does not have to prove anything to you, so the fact that he did not give evidence or call witnesses means nothing, one way or the other. You must not assume that he is guilty just because he has not given evidence. The burden remains on the State throughout to prove to you so that you are sure that the two accused are guilty of these two crimes.
    
26. The second accused did elect to give sworn evidence and to call one witness.
    
27. The second accused told us that he was arrested at QauiaVillage . About 15 to 20 Police Officers came.He was assaulted. He was punched in the face and he fell to the ground. On the ground the other officers came and assaulted him while he was on the ground. He was kicked and some were punching him. His hands were cuffed behind his back. He kept saying that he knew nothing about a robbery. They got him up and took him to a vehicle. He was taken in a vehicle to the Nabua Police Station. In the vehicle two officers on each side of him were beating him with fists on his sides and chest. When they arrived at the station, he was taken to an office. He was made to sit on a chair.He said that he didn't know anything about a robbery but they were telling him to tell the truth. He was told to stand up and run up and down in the room. They swore at him and punched him on the chest. They brought chillies and rubbed them on his "privates – front and back". After that they put him in a room where there were several officers. He was given a statement and was told to sign. They were not his answers. He was forced to sign by assaults and threats. They were swearing, slapping and punching. He was taken to Samabula Health Centre where he was examined by Dr. Wah Lee Motel. He asked for a copy of the medical report and despite promises, he was never given one.
    
28. The second accused called one witness, Mr. Benjamin Savou. He was also at Nabua Police Station on the 23rd July 2010 being interviewed for embezzlement, a matter that he was never eventually charged with. So although embezzlement is an offence of dishonesty as you heard me mention at the time, there was clearly not enough evidence to support it. He saw the second accused in the same room as him and he saw him being assaulted. He was beaten on the soles of his feet with a piece of wood. He was punched on the chest. In fact he was only assaulted on his feet and chest. They would hit him for about 10 to 15 minutes every ten minutes or so. Sanaila was yelling but they covered his mouth with a piece of cloth. He was back in the cell when Sanaila was brought back. He couldn't walk so officers assisted him to come back to the cell. They were together in the cell for about 2 to 3 days. He doesn't remember the 2nd accused being taken out for a medical examination.
    
29. Well, Madame and Gentlemen, that was the evidence for the second accused. It is for you to make of it as you will but you will bear in mind that the evidence of the second accused of his treatment in the Police Station is very different from the evidence of his witness.
    
30. I must now give you a direction on how to approach the evidence of the record of interview, which you will realize is a confession by the second accused to the robbery at the Narayan house. The record of interview is evidence for you to consider in the normal way as with any other evidence in the trial but if you think that the evidence of the second accused as to the assaults and maltreatment is true or may be true then you must disregard the evidence of the confession in the interview. Any confession obtained by force is not admissible evidence. You will realize that there is no other evidence against the second accused so if you think he was assaulted then you will find him not guilty of both charges, but on the other hand if you think that he did give these answers in the interview and that they are true, then you will find him guilty on both counts in the information. It is a matter for you.
    
31. That leaves you with how to approach the case against the first accused. From the evidence of the two Narayan men, I think you will have no difficulty in finding that there was a robbery on the night of the 21st/22nd July 2010. That the first accused was part of the robbery will depend on whether you find the identification by Mr. Narayan Sr. of the first accused and the recognition and identification of the first accused by Mr. Narayan Jr. to be reliable, bearing in mind the warnings on identification that I gave you earlier in this summing up. There is also the Police evidence that the first accused was in possession of the key to the Narayan vehicle when he was found in the hotel room with other items that had been stolen in the robbery.
    
32. Well Madam and Gentlemen that is all I wish to say to you in this summing up. You will now retire and consider your opinions. You will be asked individually what your opinions are on each count, for each accused. It would be best if you could all be agreed on your opinions, but that is not strictly necessary. When you are ready you will let my Court clerk know and I will reconvene the Court. Your possible verdict on each count and for each accused is guilty or not guilty. You may retire now but before you do I am going to ask counsel if there is anything that they wish me to add, alter or explain in this summing up.
    
33. Counsel?
    

P.K. Madigan
Judge.

At Suva
16 May 2014