State v Fraser - Summing Up [2014] FJHC 716; HAC022.2010 (1 October 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 022/2010

BETWEEN:

THE STATE

AND:

JACK ANTHONY FRASER

COUNSEL : Mr F. Lacanivalu for the State
Ms. S. Jiuta for the Accused

Dates of Trial : 26-30/09/2014
Date of Summing Up : 01/10/2014

SUMMING UP

Ladies and Gentleman Assessors,

[01] It is now my duty to sum up this case to you. I will direct on matters of Law which you must accept and act upon. On matters of facts however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about facts of the case or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of facts. All matters of facts are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

[02] You have to decide what facts are proved and what inferences drawn from those facts. You then apply law as I explain it to you and form your individual opinion as to whether the accused is guilty or not guilty.

[03] Prosecution and the defence made submissions to you about the facts of this case. That is their duty. But it is a matter for you to decide which version of the facts to accept or reject.

[04] You will not be asked to give reasons for your opinions but merely your opinions of yourself and your opinion need not be unanimous but it would be desirable if you agree on them. Your opinions are not binding on me but I can tell you that they carry great weight with me when I deliver my judgement.

[05] On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty. This is the golden rule.

[06] The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means 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.

[07] Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence that who saw the incident or felt the offence being committed. The other kind of evidence is circumstantial evidence that you put one or more circumstances together and draw certain irresistible inferences. Evidence presented in the form of a document is called documentary evidence.

[08] The facts which agreed between the prosecution and the defence are called agreed facts. You may accept those facts as if they had been led from witnesses from the witness box. The following facts are agreed between prosecution and the defence:

(1) The accused is Jack Fraser. He is also known by the name Jack Anthony Fraser.

(2) The complainant is Ronika Kiran.

(3) Imran Ali is also known as Vicky.

(4) The accused Jack Fraser was arrested by police.

(5) The accused was caution interviewed on the 18th of December 2009 at Lautoka Police Station.

(6) The accused Jack Fraser with two others were charged for one

count of Robbery with Violence contrary to section 293(1) (b) of the Penal Code,Cap 17.

[09] Your decisions must be solely and exclusively upon the evidence, which you have heard in this court and upon nothing else. You must disregard anything you have heard about this case outside of this court room.

[10] Your duty is to find the facts based on the evidence apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotions.

[11] Now let's look at the amended charge.

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1) (b) of the Penal Code Cap 17.

Particulars of Offence

JACK ANTHONY FRASER and another, on the 26th day of October, 2009 at Lautoka in the Western Division, robbed Ronika Kiran of $3200.00 cash and assorted jewelleries worth $5779.00, 10 mobile phones worth $7429.00, 2 Ipods, 1 MP3 player, 2 Tabua, 1 chopper and 1 black Canterbury carry bag worth $5305.00 all the total value of $21713.00 and immediately before such robbery did use personal violence on Ronika Kiran.

[12] In order to prove the offence of Robbery with Violence, the prosecution must lead evidence which satisfies you beyond reasonable doubt of several elements. Firstly, that the accused stole property of the complainant. Stealing is the taking of something without the consent of the owner with the intention of permanently depriving the owner of the property.

[13] The offence of Robbery with Violence also has an element of force or violence. It is the stealing of something by an act of force. The force can be either implied from the carrying of weapons, or from the number of people involved in the incident. So when a group of people enter a house for an instance, to take money without the owner's consent with no intention of returning it, then the offence of robbery is committed.

[14] 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 participated can also be liable. People who help or encourage another person to commit an offence are also guilty of that offence.

[15] I now remind you of the prosecution and defence cases. In doing this it would be tedious and impractical for me to go through the evidence of every witness in detail and repeat every submission made by the counsels. I will summarize the salient features. If I do not mention a particular witness, or a particular piece of evidence that does not mean it is unimportant. You should consider and evaluate all the evidence and all the submissions in coming to your decision in this case.

[16] According to Ronika Kiran in the year 2009 she was residing with her son and her defecto husband Imran Ali alias Vicky at Lovu, Lautoka. On 26/10/2009 at about 9.30pm while she was watching T.V. Jack Fraser and two others came to her house. At that time her son was doing his home work and her husband was not at home. First she had seen Jack Fraser was talking to some body over the phone. After talking the trio entered the house through the main door. The main door was opened at that time. Jack Fraser then went inside the house to use the wash room. When he came back from wash room he went to the kitchen and picked a chopper and came close to her. She knows Jack Fraser for about 2-3 years before the incident as he had been a good friend of her husband. She knew one of the two but not the third one. The second one she knew was Samuel Singh. When Jack Fraser came close to her, the other two closed the door and draw all the curtains preventing anybody could see the inside of the house. Jack Fraser then kept the chopper on her neck and threatened her to give what they wanted. They then took her to the room and lowered all the curtains. Jack Fraser then punched her head and demanded all their valuables. As a result of punching blood started coming from her forehead and from the nose. Thereafter she was dragged to other room under her armpit by Jack Fraser and demanded valuables. Jack Fraser was seated in front of her with the chopper while other two searched the house for valuables. Jack Fraser then started to punch her after seen Samuel Singh found some jewelleries. At this time hearing a vehicle sound Samuel Singh closed her mouth and tied her hands with cello tape. Her son was pushed in to the washroom.

[17] Then she was ordered to call her husband inside but she could not do so as cello tape was around her mouth. She had seen her husband looking through the window from outside. Thereafter she heard her husband calling for help from neighbours. Hearing this they switched off the lights and ran away from the scene. Though Imran Ali had chased them but could not apprehend anybody. She was untied by her husband. Number of properties including jewelleries, gold and imitation, cash, mobile phones and Tabuas had been robbed from the house. She had identified the accused from the lights of the house. She identified Jack Fraser in open court.

[18] In the cross examination witness said that she reported the matter to police immediately. She could remember going to hospital but unable to tell as to who took her to hospital. She could see her husband through the window as the person stood behind her open the curtain little to see outside. But she could not go up to the window. She admitted what she told the police are correct as it was very fresh in her mind at that time. Witness reiterated that she know Jack Fraser as he is her husband's friend. She had seen Jack Fraser going to the kitchen through a small window. According to her the T.V was on and her son was doing his home work. She reiterated that Jack Fraser and two others had come to her house on 26/10/2009 and Jack Fraser assaulted her. She denied that Jack Fraser had come to her house on 26/10/2009 at 3.00pm and she gave $280.00 to him.

[19] According to Imran Ali he is a businessman. He lived with Ronika Kiran and her son and resided at Lovu. On 26/10/2009 at 9.00pm he had gone out to buy some auto parts. When he came home at 9.30pm had seen all curtains down in his room. When he called his wife she did not answer but he could hear somebody murmuring from his room. When he peeped through the window had seen his wife was taped around her mouth and three persons standing close to her. She was sitting on the bed. He identified Jack Fraser and another person at that time. He knew Jack Fraser as he was his friend for a long time. He then tried to enter the house from rear door but it was closed. When he came to front door two of them ran away through the main door and Jack Fraser ran away from rear door.

[20] He then entered the house and untied his wife. She was bleeding from her forehead and she was in a terrified mood. He then left the house to go to the police. On their way he had seen a van coming from the direction of his house. As he felt suspicion, he slowed his vehicle and observed the van. He had seen two of the suspects got in to the van. He then followed them. On his way he called the police and informed the incident. As per the direction of the police he followed the vehicle and saw the van stopped in front of a house at Waiyavi. At that time police also arrived and they called the owner to open the door. But he took about 15 minutes to open the door. By that time the two persons had fled the area from the rear door of the house. The witness identified Jack Fraser in the open court. When all three were inside the house he identified them with the help of kitchen and other room lights. He was looking at the persons for about 30-60 seconds. The distance between the window and the bed was about one meter. When he checked the house had found number of items were missing. This includes mobile phones, cash and jewelleries.

[21] In the cross examination witness said that he went to the police on the day of the offence. But his statement was recorded on 28/10/2009. He admitted that he did not go straight to police as he was following the getaway vehicle as per the instruction of the police. He had seen her wife was sitting on the bed and the accused was standing beside her when he peeped through the window. When he untied her wife his son was there but he gave much attention to apprehend the escaping accused. Witness admitted that he took his wife to hospital. When he returned home he had come with a friend and he too went after Jack Fraser. Witness reiterated that Jack Fraser was inside his house on 26/10/2009. But he had not seen Jack Fraser getting in to the getaway vehicle. He said that he did not had any dispute with Jack Fraser before this incident.

[22] Finally the prosecution called DC/Marika Qalocava to give evidence in this case. He is the investigating officer in this case. On 26/10/2009 he was attached to Lautoka Police CID branch. On that day while he was on night patrol duty had received a call from Lautoka Police with regard to a house robbery. As per the direction from charge room he went to the scene and met Ronika Kiran with bleeding on her forehead. He had noted that the victim was in a terrified mood and cello tape around her neck. When asked her as to what happened victim had told him that the Jack Fraser had assaulted her and put cello tape around her mouth.

[23] At that time he received information about the getaway vehicle and he went in search of the vehicle. At Waiyavi they spotted the vehicle and brought same to the police. As per information of the driver of the vehicle he went to a house at Waiyavi and called the owner to open the door. The owner opened the door after 10-15 minutes. By that time the suspects had fled the scene. He had recorded all in his official diary and the relevant page was marked as P1. The statement of the victim and her husband's statements were recorded on 28/10/2009 as the victim was not in a stable mood to give her statement on the day of the incident. Further they had been instructed by the police to assess the missing items from the house. Further he was on off duty on 27/10/2009. As the victim had gone for medical examination, she was not called for a medical examination by the police. According to him three persons had been arrested in connection with this case. They are Samuel Singh, Manueli Rainima and Jack Fraser. Jack Fraser was arrested in Suva and brought to Lautoka. Witness identified Jack Fraser in open court.

[24] In the cross examination witness admitted that no proper medical examination done in this case. He has recorded the statements of the victim and Imran Ali. Witness had received the first information over a radio massage. Witness reiterated that he gave time to the victim and her husband to assess the missing property before recording their statements. Witness could not confirm whether he received a medical report from the victim or not.

[25] After calling three witnesses prosecution closed their case. Defence did not make any application after closing prosecution case. Then defence was called and explained the rights of the accused. After understanding his rights the accused elected to remain silent.

Analysis of the Evidence

[26] Ladies and Gentleman Assessors, in this case the accused was very well known to the victim and her husband before this incident. They did not have any misunderstanding or any dispute with him. The victim had clearly identified the accused on 26/10/2009. She vividly explained to this court how she encountered the incident. In her house she was in better position to witness the incident from beginning to the end. As Assessors and Judges of facts you have to consider her evidence very carefully.

[27] Ladies and Gentleman Assessors, Imram Ali had seen the accused inside the house with help of lights in the kitchen and in other room. He is very well known to the accused as he was his onetime very good friend. He has no reason to implicate the accused in this case.

[28] During the investigation three persons name transpired. One is Jack Fraser, the accused in this case. Samuel Singh was already dealt separately. Manueli Rainima is still on bench warrant and yet to be executed. Identity of the accused is not an issue in this case as his name was surfaced on the day of the incident. Further the accused is very well known to Ronika Kiran and her husband Imran Ali. The investigating officer had entered all his investigation details in his official diary.

[29] Ladies and Gentleman Assessors, when the defence was called the accused opted to remain silent. That is his right. But he has nothing to prove to you.

[30] In this case the accused is charged for Robbery with Violence contrary to Section 293(1) (b) of the Penal Code Cap 17. I have already explained to you about the charge and its ingredients.

[31] You have heard all the prosecution witnesses. You have observed them giving evidence in the court. You have observed their demeanour in the court. Considering my direction on the law, your life experiences and common sense, you should be able to decide which witness's evidence, or part of their evidence you consider reliable, and therefore to accept, and which witness's evidence, you consider unreliable and therefore to reject.

[32] You must also carefully consider the accused's position as stated above. Please remember, even if you reject the version of the accused that does not mean that the prosecution had established the case against the accused. You must be satisfied that the prosecution has established the case beyond reasonable doubt against the accused.

[33] Ladies and Gentleman Assessors, remember, it is for the prosecution to prove the accused's guilt beyond reasonable doubt. It is not for the accused to prove his innocence. The burden of proof lies on the prosecution to prove the accused's guilt beyond reasonable doubt, and that burden stays with them throughout the trial.

[34] Once again, I remind you, that your duty is to find the facts based on the evidence, apply the law to those facts and come to a correct finding. Do not get carried away by emotions.

[35] This is all I have to say to you. You may now retire to deliberate. The clerks will advise me when you have reached your individual decisions, and we will reconvene the court.

[36] Any re-directions.

I thank you for your patient hearing to my summing- up.

P Kumararatnam
JUDGE

At Lautoka
01/10/ 2014

Counsels: Office of the Director of Public Prosecutions
Legal Aid Commission