State v Lesumailodoni - Summing Up [2014] FJHC 465; HAC094.2013S (24 June 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 094 OF 2013S

STATE

vs

1. JOSEVATA LESUMAILODONI
2. APIMELEKI WAQANACEVA
3. VILIAME QATIVI
   

Counsels : Mr. T. Qalinauci for the State
Mr. M. Fesaitu for Accused No. 1
Mr. E. Koroi for Accused No. 2
Accused No. 3 in Person

Hearings : 12, 13, 16 and 23 to 25 June, 2014
Summing Up : 26 June, 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 and Defence Counsels, including Accused No. 3, have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, and Accused Person, 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 accuseds. There is no obligation on the accuseds to prove their 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 accuseds' guilt, before you can express an opinion that they are guilty. If you have any reasonable doubt about their guilt, then you must express an opinion, that they are 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 accuseds or the victims. 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. Accused No. 1 was charged with counts nos. 1 to 6. He pleaded guilty to all counts, except count no. 3. Accused No. 2 was charged with counts nos. 3 to 6. He had pleaded guilty to all counts, except count no. 3. So, as far as Accused No. 1 and 2 are concerned, this trial is only concerned with count no. 3. In considering count no. 3, you must take out of your mind and disregard the fact that they have pleaded guilty to other counts. You must consider count no. 3 separately, and put out of your minds the fact that they had pleaded guilty to other counts. Accused No. 3 was charged with counts nos. 1 to 4. As you have seen, he had pleaded not guilty to all the counts. 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, did Accused No. 3, between 29 and 31 January 2013, at Waidroka, Navua, in the Central Division, entered George Henius's House as a trespasser, with intent to commit theft?
     
   • (ii) On count no. 2, did Accused No. 3, between 29 and 31 January 2013, at Waidroka, Navua, in the Central Division, steal George Henius's outboard engine and bolt cutter?
     
   • (iii) On count no. 3, did Accused No. 1, 2 and 3, between 30 and 31 January 2013, at Waidroka, Navua, in the Central Division, entered Toby Buchin's building as trespassers, with intent to commit theft?
     
   • (iv) On count no. 4, did Accused No. 3, between 30 and 31 January 2013, at Waidroka, Navua, in the Central Division, steal Toby Buchin's properties, as itemized in count no. 4?
     

5. THE OFFENCES AND THEIR ELEMENTS
   

9. Count nos. 1 and 3 involved the offence of "aggravated burglary", contrary to section 313(1)(a) of the Crimes Decree 2009. For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:
   
   • (i) the accused;
   • (ii) in company with one or more persons;
   • (iii) enters or remains;
   • (iv) in a building;
   • (v) as a trespasser;
   • (vi) with intent;
   • (vii) to commit theft.
     
10. The key word in the above offence is the word "trespasser". A trespasser is someone who does not have permission, express or implied, to be in a building. In other words, if you don't have permission to enter or remain in a building, but nevertherless entered or remained in the building, you are a trespasser. You don't have authority to enter or remain in the building. For example, a thief who enters or remains in a building, to steal, is a trespasser.
    
11. Likewise, another key word in the offence is the word "building". A "building" includes "a part of a building", "a structure (whether or not movable), a vehicle, or a vessel, that is used, designed or adapted for residential purpose". A dwelling house is, of course, a building. A "container", used as a "storeroom", positioned near a dwelling house, is part of a building. Likewise, a car-port, positioned near a dwelling house, is part of a building. It is therefore arguable that Tony Buchin's storeroom container, in count no. 3, is part of his house, which is nearby.
    

12. It must also be noted that for "aggravated burglary", when the accused enters or remains in a building as a trespasser, with intent to commit theft, he must do the same in cohort with one or more persons. In other words, when he enters or remains in the building as a trespassers, with intent to commit theft, he must do the same with the assistance of one or more persons.

13. Counts Nos. 2 and 4 involved the offence of "theft", contrary to section 291(1) of the Crimes Decree 2009. For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused

(ii) dishonestly

(iii) appropriates

(iv) property belonging to another

(v) with the intention
(vi) of permanently depriving
(vii) the other of the property.

14. "Theft" is another word for "stealing". "Stealing" is basically to take something away, without the owner's permission, and with the intention of permanently depriving the owner of ownership of that property. For example, I saw $1,000 in your wallet. I took your wallet, got the $1,000 and spent it on myself, without your permission. What I did above is basically called "theft" or "stealing".

15. You will notice in count no. 3 of the information that, the prosecution, in their particulars of offence, began with the phrase, "...JOSEVATA LESUMAILODONI, APIMELEKI WAQANACEVA and VILIAME QATIVI..." The prosecution is alleging that the accuseds committed the above offence, as part of a group. To make them jointly liable, the prosecution is relying on and running it's case, on the concept of "joint enterprise".

16. "Joint enterprise" is "when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed, of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence" (Section 46, Crimes Decree 2009). In considering the accuseds' cases, you must ask yourselves the following questions: Did they form a common intention, to trespass on Toby Buchin's storeroom container, with intent to commit theft, at the material time? If so, did they acted together in trespassing in the storeroom container, with intent to commit theft, at the material time? If your answer is yes, then the accuseds are guilty as charged on count no. 3.

17. Furthermore, in this case, there are three accuseds on trial. Each of the accused is entitled to be tried solely on the evidence that is admissible against him. This means that you must consider the positions of each accused separately, and come to a separate considered decision on each of them. Just because they are jointly charged, does not mean that they must all be guilty or not guilty. Most evidence in this case are admissible against all accuseds. However, regarding their Police caution interview statements, which may contained their alleged confessions, the statements therein are only admissible against the maker of the statement, and no other. In other words, in each accused person's police caution interview statement, you must totally disregard what the accused said about his co-accuseds on the commission of the offences. You can only take into account what he said about himself, regarding his role in the commission of the crime.

18. Accused No. 1 and 2 are tried on count no. 3 only. Accused No. 3 is tried on count nos. 1 to 4. When considering the four counts, you must treat and consider each count separately, and apply the whole evidence to each count separately.

F. THE PROSECUTION'S CASE

19. The prosecution's case were as follows. The three accuseds are brothers. When the offences were allegedly committed, Accused No. 3 was the eldest of the three aged 37 years old, followed by Accused No. 1, who was 32 years old, and the youngest was Accused No. 2, who was the 30 years old. The eldest, Accused No. 3 resided in Nadi with his wife, and three young children. He was a self-employed driver, and a businessman. His two younger brothers, that is, Accused No. 1 and 2, were unemployed.

20. According to the prosecution, Accused No. 1 had a friend in Waidroka. When he visits him, he often noticed that a lot of houses in the area were often vacant. He then hatched a plan with his brothers, Accused No. 2 and 3, to break into the same, and steal properties therefrom. According to the prosecution, Accused No. 3 hired a private vehicle from Nadi, and the group used the same to transport them from Nadi to the crime scene, and back. The vehicle was also used to transport the stolen items. Accused No. 3 was doing the driving.

21. According to the prosecution, the group drove to George Henius's house, between 29 and 31 January 2013, trespassed into the same with intent to commit theft, and stole an outboard engine and a bolt cutter [count no. 1 and 2]. Then the group drove to Toby Buchin's house. They trespassed into his property, went to his storage container, cut open the lock, entered the same, and stole the properties itemized in count no. 4 [count no. 3 and 4]. The group loaded all the stolen items into their hired car, drove back to Nadi, and sold the same to various people.

22. The above episode came to the police's attention. An investigation was carried out. All the accuseds were arrested by police. They were caution interviewed by them on 10 and 13 February 2013, at Navua Police Station. All the accuseds admitted breaking into Tony Buchin's storage container, at the material time, with intent to commit theft [count no. 3]. Accused No. 3 admitted he was part of the group that committed the offences in count no. 1 and 2. Accused No. 3 also admitted he was part of the group that stole Tony Buchin's properties as itemized in count no. 4 [count no. 4]. On the basis of the above, the prosecution is asking you, as assessors and judges of fact, to find all the accuseds guilty as charged on count no. 3, and find Accused No. 3 guilty as charged on counts no. 1, 2 and 4. That was the case for the prosecution.

G. THE ACCUSEDS' CASES
23. On 23 June 2014, the first day of the trial proper, the information was put to all the accuseds. Accused No. 1 and 2 pleaded not guilty to count no. 3. Accused No. 3 pleaded not guilty to count no. 1 to 4. In other words, they denied the allegations against them. At the end of the prosecution's case, a prima facie case was found against all accuseds. Accused No. 1 and 2 choose to remain silent, and called no witness. They said, they will address the court in their closing submission.

24. Nothing negative whatsoever should be imputed to Accused No. 1 and 2, for choosing the above option. That was their right, as the burden of proof is not on them. They are not required to prove their innocence. The burden to prove their guilt beyond reasonable doubt, stays with the prosecution from the start to the end of the trial. However, in their closing submissions, they admitted being part of the group that broke into Toby Buchin's storage container, at the material time, but they argued, a container is not a building, and therefore they have committed no crime. As such, they should be found not guilty as charged on count no. 3. That was their case.

25. As for Accused No. 3, he denied the allegations against him on oath. He admitted, he was caution interviewed by police, at Navua Police Station on 13 February 2013. He said, he was repeatedly assaulted on the ribs and feet by police at Namaka Police Station. Because of these assaults, and the fear of further assaults, Accused No. 3 said, he was forced to admit the offences, in his police interview. He asks you, to disregard his admission in his police caution interview statements, because they were not given voluntarily, and he gave the same without his own free will. He asks you, as assessors and judges of fact, to find him not guilty as charged, on counts no. 1, 2, 3 and 4. That was Accused No. 3's case.

H. ANALYSIS OF THE EVIDENCE
26. In this case, Accused No. 1 and 2, have submitted that they cannot be guilty of count no. 3, because, according to them, a "storage container" is not a "building". In our discussion in paragraph 9 hereof, on the elements of "aggravated burglary" [count no. 3], "entering or remaining in a building as a trespasser", is an essential element of the offence. Without proving the above, the prosecution cannot succeed on the charge. We have also discussed the meaning of the word "building" in paragraph 11 hereof. You must consider paragraph 11 carefully. Accused No. 1 and 2 are saying that because a "storage container" is not designed for a residential purpose, it cannot therefore be a building. This is a possible argument on the meaning of a "building" in section 312(7) of the Crimes Decree 2009. But, it would appear that, it cannot be the sole meaning of the word "building" in the section, because "building", as described in section 312(7) of the Crimes Decree 2009, also includes "a part of a building".

27. As discussed in paragraph 11 hereof, a car-port, is often classified as part of a building, although it is not designed for residential purpose. Again, as is common in Fiji, a shower and toilet, are sometimes not attached to the sleeping part of a building, and are often situated a few meters away, but are often classified as part of the building, although not designed for sleeping in. Given what we have discussed above, as assessors and judges of fact, do you think Tony Buchin's storage container is part of his house, which was situated in his compound? If you say no, then both Accused No. 1 and 2 are not guilty as charged on count no. 3. If you say yes, then you must determine whether or not, they entered the "storage container", at the material time, as trespassers with intent to commit theft?

28. In his police caution interview statement, Prosecution Exhibit No. 1(b), Questions and Answers 3, 15 to 18, 32 to 43, Accused No. 1 admitted been part of the group that trespassed into Tony Buchin's storage container, with intent to commit theft. Likewise, Accused No. 2, in his police caution interview statements, Prosecution Exhibit No. 3, Questions and Answers 4, 47 to 53, admitted been part of the group that trespassed into Tony Buchin's storage container, with intent to commit theft. Note that both Accused No. 1 and 2 did not challenge the admissibility of their caution interview statements. If you accept the above, then you must find both Accused No. 1 and 2, guilty as charged on count no. 3. It is entirely are matter for you.

29. As for Accused No. 3, the only evidence the State had, to connect him to the crimes in count no. 1 to 4, was his police caution interview statements. So, the State's case against Accused No. 3, stands or falls, on your acceptance or otherwise of his alleged police caution interview statements. In his sworn evidence in court, Accused No. 3 admitted he was caution interviewed at Navua Police Station, on 13 February 2013, by police officer Corporal 2930 Iliesa Ratulevu (PW3). The interview started at 9.15am and it concluded at 10.45am on the same day. The accused was asked a total of 39 questions and he gave 39 answers. The caution interview statements were submitted as Prosecution Exhibit No. 2(a) – the hand written version, and 2(b) – the typed version. In Questions and Answers 4, 15 to 34, Accused No. 3 admitted the offence in count no. 1 to 4. He admitted, he was part of the group that committed the crimes in count no. 1 to 4.

30. If you accept Accused No. 3's above alleged confession, then you must find him guilty as charged on counts no. 1 to 4. If you don't accept Accused No. 3's above alleged confession, then you must find him not guilty as charged on count no. 1 to 4. But before you consider the above alleged confessions, I must, as a matter of law, 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.

31. In this case, Accused No. 3 said, he was assaulted in the Namaka Police Station's crime office, by the Navua Police Officers, who were sent there to get him. He said, they hit him on the ribs three times. It was so hard that, according to him, he suffered a broken rib. He said, they also hit the sole of his feet three times. The beatings were done with the aid of an iron rod. The relevant Navua police officers were called into court. They were DC 3120 Ronald (PW4), SC 1746 Leone Sauduadua (PW6) and PC 3406 A. Tinolevu (PW7). All the above officers denied Accused No. 3's above allegation. They said, they didn't assault, threaten or made promises to Accused No. 3, while he was in their custody.

32. Accused No. 3 said that, because of the above alleged assaults, he was frightened, and he admitted all the allegations against him to the police, when caution interviewed. He said, he gave his statements involuntarily and not out of his own free will. PW4, PW6 and PW7 said, Accused No.3 did not make any complaints to them about any police assault, at all. Even the accused, admitted in cross-examination that, he did not complain to the learned Magistrate about the above alleged assaults, when he first appeared in the Navua Magistrate Court on 15 February 2013. Again, when he first appeared in the High Court on 1 March 2013, the accused never complained to the court on the above alleged police assaults.

33. Furthermore, the accused never produced any relevant medical report, in the trial proper, to verify his alleged injuries on 12 February 2013. His caution interview officer, PW3 said, he and other police officers did not assault, threaten or made promises to Accused No. 3 before, during and after the caution interview. So, you will see that, on the issue of whether or not Accused No. 3 gave his caution interview statements voluntarily, the parties' version of events were at odds with one another. The State said, he gave the same voluntarily, while the accused said, he did not and was forced to give the same. Which version of events to accept is entirely a matter for you. If you find that the accused gave his caution interview statements voluntarily, and you accept the same as the truth, you may find him guilty as charged on counts no. 1 to 4. If it's otherwise, you may find him not guilty as charged on count no. 1 to 4. It is entirely a matter for you.

I. SUMMARY
34. Remember, the burden to prove the accuseds' guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accuseds, at any stage of the trial. The accuseds are not required to prove their innocence, or prove anything at all. In fact, they are 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 accuseds' guilt, you must find them 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 accuseds' guilt, you must find them not guilty as charged.

35. Your possible opinions are as follows:
    

(i)	Accused No. 1:Count No. 3:	Guilty or Not Guilty
(ii)	Accused No. 2:Count No. 3:	Guilty or Not Guilty
(iii)	Accused No. 3:Count No. 1:	Guilty or Not Guilty
	Count No. 2:	Guilty or Not Guilty
	Count No. 3:	Guilty or Not Guilty
	Count No. 4	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 No. 1 : Legal Aid Commission, Suva.

Solicitor for Accused No. 2 : E. Koroi, Barrister & Solicitor, Suva.

Solicitor for Accused No. 3 : In Person.