State v Tukai - Summing Up [2015] FJHC 114; HAC253.2013 (20 February 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 253 of 2013

STATE

v.

PENI TUKAI
MICHAEL SCOTT
PENI MATAIRAVULA

Counsel: Ms. Kumar D. with Mr. Kumar R. for State
Mr. Tawake P for 1st Accused
Mr. Savou J for 2nd Accused
Mr. Yunus M for 3rd Accused

Hearing: 09th, 10th, 11th, 12th, 13th, 16th, 17th, 18th February 2015
Summing Up: 20th February 2015

SUMMING UP

Madam Assessor and Gentlemen Assessors.

1. It is now my duty to sum up this case to you. I will direct you on

matters of Law which you must accept and act upon. On matters of fact 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 the 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 fact. All matters of fact 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.

2. You decide what facts are proved and what inferences you properly draw from those facts. You then apply the Law as I explain it to you and form your opinion as to whether the accused persons are guilty or not guilty.
   
3. Counsel for the Prosecution and Defence made submissions to you about the facts of this case. That is their duty as State Counsel and Defence Counsel. But it is a matter for you to decide which version of the facts to accept, or reject.
   
4. You will not be asked to give reasons for your opinions but merely your opinions themselves, and your opinions need not be unanimous but it would be desirable if you could agree on them. Your opinions are not binding on me but I can tell you that they will carry great weight with me when I deliver my judgment.
   
5. As a matter of law, I must direct you that the onus of burden of proof lies on the prosecution throughout the trial and it never shifts. There is no obligation on the three accused persons to prove their innocence. Under our criminal justice system an accused person is presumed to be innocent until he is proved guilty.
   
6. 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 each of the accused person'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.
   
7. 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 might have heard about this case, outside of this courtroom. You may have seen news items in news papers about this case before and during the trial. You must disregard them and your opinions should only be based on the evidence given in this court room.
   
8. 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 emotion.
   
9. You have a copy of the information with you. All three accused persons are charged with one count of 'theft of motor vehicle' and two counts of 'aggravated robbery'.
   
10. You must consider the evidence on each count separately and must not assume that if any of the accused persons are guilty on one count, that he must be guilty on the other as well. It is your duty to consider whether the prosecution has proven each of the accused person's guilt beyond reasonable doubt on each count separately.
    
11. For the accused to be found guilty of theft, the prosecution must prove the following elements beyond reasonable doubt.
    
    1. the accused;
    2. Dishonestly;
    3. Appropriated;
    4. the property belonging to another;
    5. with the intention of permanently depriving the other of that

property.

I will now explain these elements to you.

12. Dishonestly means not being honest. Appropriation of property means to take possession or control of the property without the consent of the person to whom it belongs. In law property belonging to a person if that person has possession or control of the property. Once the possession of the property is taken by the accused from the person whom it belongs to, if he uses it or deals with it as the owner without the consent of the said person then he commits theft.
    
13. 'Intention of permanently depriving a person of property' is also defined in law. If an accused person appropriates property belonging to the complainant without meaning the complainant permanently to lose the thing and if the accused person's intention is to treat the property as his own to dispose of regardless of the complainants rights, then the accused has the intention of permanently depriving the complainant of it. In this case you remember the counsel for defence submitted to you that the witness Mohommed Sherab Khan said that he was not permanently deprived of the property as he was inside the car right throughout. However if you accept his version of events, the three men he referred to, have taken control of the car and treated it as their own, regardless of his rights. So if you accept his version of events you may consider as the three men whom he referred to, intended to permanently deprive him of his car.
    
14. For the accused to be found guilty of aggravated robbery in counts 2 and 3, the prosecution must prove following elements beyond reasonable doubt.
    
    1. The accused;
    2. Committed robbery in company with one or more other persons; or
    3. Committed robbery and, at the time of robbery, has an offensive

weapon with him.

15. Robbery means, the accused immediately before, at the time, or immediately after committing theft, uses force or threaten to use force on the complainant with intent to commit theft or to escape from the scene.
    
16. I have already explained to you the elements of theft.
    
17. So the offence of robbery becomes aggravated robbery, if it is committed in the company with one or more other persons, or if at the time of robbery the accused has an offensive weapon with him.
    

Offensive weapon includes any article, made or adopted for use for causing injury to or incapacitating a person or any article the accused intends to use or threatens to use to cause injury to a person.

18. As a matter of law I must also direct you on the law of joint enterprise. When an offence is committed, the person who actually does the act which constitutes the offence is not the only person who is deemed to have committed the offence. Anyone who does an act for the purpose of helping another person to commit the offence is also deemed to be guilty of the offence. Therefore to give you an example, a person who stands at the door of a house which is broken into, to warn those who have gone in of anyone who might disturb the burglars, is as guilty of burglary as those who broke in, even if the watchman remained outside, and never entered the house at all. He is guilty because he has aided and abetted the burglars.
    
19. Furthermore, the law also says that when two or more persons form a common intention to do something unlawful together, and in the prosecution of that unlawful purpose, an offence is committed which is a probable consequence of the doing of the unlawful act, then, each of them is deemed to have committed the offence.
    
20. Now I wish to direct you on evidence of an accomplice. An accomplice is a person who participates in the actual crime charged, whether as principal or accessory before or after the fact. An accomplice may have an agenda or a reason to give evidence for the prosecution implicating the accused. The law says it is dangerous to convict an accused on the evidence of an accomplice alone, and without corroboration from other sources. Corroboration is some independent evidence, which implicate the accused in the commission of the offence.
    
21. In this case you heard the evidence of prosecution witness Inoke Turaganivalu, the taxi driver. Defence says that he is an accomplice. In that, according to his evidence, he did not charge or ask for the taxi hire from the men he was hired. He did not switch on the taxi meter. He did not suspect the men when they discussed about the Safeway bank run and Westpac bank. He said that he did not suspect when the green bag was cut open and when the money and the cheques were spilt. Again he said that he suspected only when the bag was cut open and money was spilt. He did not report to the police until he was arrested.
    
22. On this evidence you decide whether witness Inoke Turaganivalu participated in the actual crime charged, whether as principal or accessory before or after fact, and if so whether he is an accomplice. If you find that witness Inoke Turaganivalu is an accomplice, then it is dangerous to convict the accused persons on his evidence alone unless it is corroborated by independent evidence in some material particular not only that the crime has been committed, but also the accused committed it, as I explained before.
    
23. May I now direct you on circumstantial evidence.
    
24. In circumstantial evidence you are asked to piece the story together from witnesses who did not actually see the crime committed, but give evidence of other circumstances and events that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime.
    
25. I cite the following situation as an example for circumstantial evidence. In a silent night you hear cries of a man from a neighboring house. You come out to see that a man named 'X' is running away from that house with an object in his hand. Out of curiosity you go inside the house to see what really had happened. You see your neighbor 'Y' lying fallen with injuries. Here you didn't see 'X' committing any act on 'Y'. The two independent things you saw were the circumstances of the given situation. You can connect the two things that you saw and draw certain inferences. An inference you may draw would be, that 'X' caused the injury on 'Y'. In drawing that inference you must make sure that it is the only inference that could be drawn and no other inferences that could have been possibly drawn from the said circumstances. That should also be the inescapable inference that could be drawn against 'X' in the circumstances. Further in evidence, one witness may prove one thing and another witness may prove another thing. None of those things separately alone may be sufficient to establish guilt, but taken together may lead to the conclusion that the accused committed the crime. Therefore you must consider all direct evidence as well as circumstantial evidence.
    
26. It must not be mere speculation guesswork. It is not sufficient that the proved circumstances are merely consistent with the Accused persons having committed the crime. To find him guilty you must be satisfied so as to feel sure that an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that satisfies you beyond reasonable doubt that the Accused persons committed the crime.
    
27. Before you can draw any reasonable inferences you must first be satisfied beyond reasonable doubt that the evidence given by witnesses relating to the circumstances giving rise to the issues of fact to be proven is credible and truthful.
    

EVIDENCE

Prosecution's Case.

28. State called the witness Mohammed Sherab Haris Khan to give evidence first. He said that he was a taxi driver and also an electrician. On 17/06/2013 he had collected $600 payment for an electrical job he had done. Then he had gone to collect his laptop from a friend who was using it. Value of the laptop was $1200. He had given $350 to his friend. After going to Carz and Carz, at about 1.30pm he had been at Tebara Complex where he was operating his taxi. His car was a black Toyota Fielder and registration no. was LT 6805.
    
29. Two Fijian men had come and asked him to go to Wainibuku on a hire. It was about 1.30pm. One sat in the front passenger seat and other one at the back seat. Front passenger who was fair was wearing a check T-Shirt and the passenger in the back seat wore a jacket and he was little bit dark, he said. In Wainibuku he had refused to go on the inside road. The passenger in the back seat wanted him to switch off the air conditioner. He has stopped the car at a bus stop thinking that they would get off. There had been another Fijian man seated at the bus stop and he stood up, he said. Another Fijian man had come from reservoir junction with a bundle of rourou.
    
30. Suddenly the passenger in the back seat had put his hands in his pockets. The witness demonstrated how he did it. When he looked back, he had punched him. When he tried to move the vehicle, the passenger in front had pulled the hand break and put the gear into neutral. Thinking that the Fijian man who came with a bundle of rourou was coming to help him, he had tried to open the door. Then that man had punched him and pushed him inside. Then he was pulled inside by the other two passengers who were inside and pulled him to the back seat, he said. The man who pushed him was a bit old, fair, fit and looked aged 40+, he said. He then had had got into the driving seat and moved the vehicle towards the main road. He was afraid and the two Fijian men beside him had threatened him with knives. They had told him to cooperate; otherwise they would kill him and throw him somewhere.
    
31. The person who was sitting at the bus stop had sat next to him with a bag. The noise inside the bag showed that there were bottles, he said. He had a big knife like a chopper. The man who sat on his right had another knife. The man who was sitting at the bus stop had kept the knife on his neck. Vehicle went towards Suva and came to Kalakalo, he said. On seeing a government vehicle the witness had tried to open the door to get the attention of the government vehicle but failed. Then they had punched him a lot and put him down the seat, he said. They have kicked him.
    
32. The person who hired the vehicle who was on his right hand side, he had identified him at the police station Nabua at the Identification Parade held. He told you how the parade was held. He identified that person as the 1st accused in court. He said that at the parade he identified him as the man who hired the vehicle as he was in his mind.
    
33. He said he could identify the man who was in the front passenger seat. He pointed to the 2nd accused in court and identified the 2nd accused from the dock as the person who was in the front passenger seat. He said that the man who came from the reservoir road is not in court. He identified the 3rd accused from the dock in court as the person who was sitting at the bus stop.
    

He said that his hands and legs were tied and he was pushed to the boot. His eyes were also tied with the black cloth. The vehicle was driven at a high speed on a gravel road. The vehicle was stopped somewhere. They were talking in Fijian language which he could not understand, he said. He had heard them telling names Jim and Peni. The car had started moving again. They have received a call and they were talking about Laucala Beach, he said. When the phone was ringing someone had said 'Toso' meaning to move.

34. He said, then the car stopped suddenly and he felt the two doors were opened and closed. The vehicle started moving again, he said. Few minutes later the vehicle was again driven on a gravel road and turned and stopped. One of them had cut his cable tie from his leg. He said it was quiet after that. After about 10 minutes he had got out of the car and gone to a nearby house. An Indian man had opened the door and he had told him the incident.
    
35. Indian man had taken him to a policeman's house and told him the incident. They have found the key of the car lying at the driver's seat. He had seen his car damaged.
    
36. The policeman had taken him to Nabua Police Station in his car. Then he was taken to the hospital because he was in a bad situation with blood in his face, he said. He had been in pain as the Fijian man punched him and kicked him inside the car. Medical report of the witness was submitted to court without objection by the Defence as Prosecution Exhibit 1.
    
37. He said that his three mobile phones and $400 cash were missing. His laptop was also missing, he said. He said that the value of the phones which were missing was $1,200 for Anroid phone, $300 for Nokia phone and about $700 for the Blackberry phone.
    
38. In cross examination he said that the man who was in the front passenger seat was talking to him. He had asked to off the air conditioner in the car. He also had observed them while talking and when they pulled him he had marked their faces. He said out of the four men only three are in court. He said he cannot make a mistake on the identity of the 1st Accused because he was the person who punched him twice.
    
39. Identification parade was held in Nabua Police Station inside a room. He denied police officers showing to him the 1st Accused in the Police Station before the identification parade was held. He said that he does not know actually who took his mobile phones and the laptop and never saw who took them. He denied that the only reason for identifying the 2nd Accused was because he was in court.
    
40. He said he can prove that the LT 6805 car is owned by him as it's his taxi. He agreed that he did not give proof in court that he owned the laptop and the 3 mobile phones.
    
41. He said that when the vehicle was hired, one man sat in the front passenger seat and the other sat in the back rear seat. He said the person who wanted him to put the air conditioner off was the person who was in the back seat. He said the person putting his hands inside his pockets and another man coming with a bundle of 'rourou' from Reservoir Road, happened simultaneously.
    
42. He explained how he saw everything, including the man sitting in the bus stop. He said it happened suddenly and the man from the back, he may have observed for few seconds. He said that the man who was coming with 'rourou' is not in court. 3rd Accused was the man who was sitting at the bus stop.
    
43. He further answering the questions said that at the time the taxi was driven, he was in the vehicle and taxi was never permanently taken away from him. He said he has not given proof of the ownership of the missing properties mentioned in the charges in court.
    
44. In re-examination he said, that he identified the 2nd accused as he was the person who hired him from Tebara complex. He said, that the taxi belonged to him and he got the permit from LTA. He also said that on that day when he was driving and when the robbery happened, the three phones and the laptop was with him. He said that he did not tell the age of the person who was at the bus stop. He said the age of the person who was coming from Reservoir road was looking 40+.
    
45. The next witness was Mohammed Azim Shah.
    

In 2013 he had worked for Safeway Electronics. He was doing sales, he said. He also did banking for the company although it was not part of his job.

46. On 17/06/2013 at about 2.30pm he has collected the banking bag from the company. He described the bag. He said, inside the grey colour plastic bag there is another bag which contained money. It was locked with a padlock and the key was with the bank, he said.
    
47. He had gone in the company vehicle and parked at the Nand's Mall parking. He has parked the vehicle at the parking slot opposite the bank. He has got down from the car, picked the bag from the other door and walked towards the bank. Before he reached the bank even before he reached the road, he said that he was stopped by two guys running towards him. One of them had said "don't, don't". They had spoken in Fijian.
    
48. He said he was shocked. One man had been masked covering his face and the other man had an object like a knife, he said. One of the men had grabbed the bag from his hand and had run towards the car which they got away. The car was a black Toyota fielder, he said. He had seen the registration No. as LT 6805.
    
49. When he saw the car it was about 10 meters away. He had called the office and informed them that he was robbed. He did not know the amount of money the bag contained, he said.
    
50. In cross examination he said that he could not recognize the two men who robbed him. In the statement to police he has said that "At the same time I just dropped the money bag because I saw the 1st Fijian man holding a kitchen knife". However he said that he was holding the bags when it was robbed. Further he said that the police officer said 'enough' and went on to the next question and never allowed him to make the full statement. When it was suggested to him, he denied that he was lying about recognizing the registration number. He said that he is sure about the registration number of the car.
    
51. When he was cross examined on what he told about the registration number to the police, he said that he was sure, however he got it confirmed from another driver. He further said that when he was in the police station giving his statement and giving the registration number, the owner came to the station injured and had told that his car was stolen. He also got it confirmed with the driver, he said.
    
52. Further he said that the money which was stolen does not belong to him. He said that he was not assaulted and no violence used on him. He said he recognized the number plate, and his view was not obstructed.
    
53. The next witness was Vineeta Devi. She was the accounts officer at Safeway electronics. She testified how she prepared the bank deposit in the bag and how the witness Azim took it to the bank for banking. She also explained how the banking bag was prepared and locked. She said in that bag there was $32,289.80 in cash, $38650.30 in cheques, Autogas money $9718.70 and base fees $249.20.
    
54. She also said that after Azim went for banking, in few minutes he called back the office saying that he was robbed, and it was around 2.30 – 3.00pm when he called.
    
55. The next witness was Seru Qaranivalu. He had been a Special Constable in the Fiji Police Force on the day of the incident and had been stationed at Nabua Police Station.
    
56. At the time of the alleged robbery he had been inside the super foods supermarket opposite the pharmacy, Nabua road. He explained where the pharmacy, supermarket and the Westpac bank were situated. He has seen two men running inside a taxi, through the glass. The distance from him to the taxi had been about 30 – 50 meters, he said. He said that the two men suddenly grabbed the bag from a man and ran inside the taxi. He could not recall the registration number. He said it happened after lunch, which means after 12.00 noon. He could not identify the two men. Taxi had been a black colour one. The two men who ran to the taxi, had been' itaukei' men. The car had left to Nabua Road after the said two men got in.
    
57. He had informed the other police officers who were with him. He said that he knew the person who was sitting in the front seat next to the driver. He had not looked at the driver. He said the taxi was about 3-5 meters away from him. He said the person whom he identified was Michael Scott. He said that Michael Scott's photo was stored in the Nabua Police Station.
    
58. He identified the 2nd accused in court from the dock, as Michael Scott whom he saw that day seated in the front passenger seat of the taxi in which the two men got away. He said he could not calculate the time period he was able to look at him but it was about 7 seconds, he said. Taxi had been about 3 – 5 meters away from him and there was nothing in between the taxi and him, he said.
    
59. In cross examination on the following day, he said that there are 3 entries to the Supermarket. He denied when defence suggested that there is no side entry. He said there is a side entry facing Mobil Service Station. He denied that the road in front of the super market was on a slightly higher level than the entry to the super market. He also denied that there were iron railings to protect the civilians. He has given the statement to police at 6pm. He said as he saw 2nd accused, he went to the police station.
    
60. On further questioning, he said that Michael Scott was driving and it was wrong when he said the previous day that he was in the front passenger seat. He admitted that he read his statement made to police, before he came for cross examination. He said that he kept a photocopy of the statement the day he made it and that it was with him.
    
61. He denied when it was suggested to him that he looked at the statement before cross examination because he was not sure whether it was Michael Scott who was in the taxi. He again said that he confirms that it was Michael Scott, and that he was in the driving seat.
    
62. Further he said that the robbery did not happen in the car park but along the Nabua Road. He had come on patrol with two other officers senior to him. They had not given statements to police. When it was suggested, he denied that they wanted him to mention Michal Scott's name. In re-examination he said that he was absolutely sure that Michael Scott was in the taxi.
    
63. The prosecution called Inoke Turaganivalu to give evidence next. He is a taxi driver. On 17/06/2013 when he was driving at Nausori, he was hired to go to Makoi, he said. On Kalokalo Crescent someone stopped him and had wanted him to go up and pick someone. When he went there, there had been two men whom he did not know. Another two men had joined them at a discussion. He had heard them discussing about a Safeway bank run, and Westpac bank, Nabua. He was able to know their names when they were calling. One person was Michael Scott. Others there were Paula, Peni and another Peni, he said. They have discussed for about 10 -15 minutes. He had recognized one person, which was Peni Matairavula.
    
64. He showed in court that the distance was very close between him and them when the discussion took place. He identified the 2nd accused as Michael Scott, in court from the dock.
    
65. Thereafter he had dropped them at Kalokalo Crescent junction and he had gone to Suva. He said that he did not charge any fare as he knew that they would pay him. He had given his telephone number to Scott. The reason for exchanging numbers was for them to know where he was in Suva, he said.
    
66. When he passed Raiwaqa, he had received a call which he believed it was Scott. He said that he was supposed to meet them at Milo shop. He explained where the Milo shop is. He has reached the Milo shop and picked Paula, Scott and two Peni's.
    
67. Peni Tukai had asked him to go to the back road. Peni Tukai had been sitting in the front passenger seat, behind him was Peni Matairavula, Paula was in the middle and Scott on the side, he said. Peni Tukai tried to hide something, in the jacket, he said.
    
68. They had got off and told him to accompany them. They went inside a house, he said. Peni Tukai had a green bag which had a padlock at the end. Peni Tukai had cut the bag with a knife. He said silver coins and papers like cheques had been inside the bag. He had not asked for his fare. He had waited inside the house for about 20 to 30 minutes for the fare. After that he said he was waiting at the Service Station near Nausori bridge, where he was arrested by the police.
    
69. He said that he was suspected by the police because of the GPS on his phone. They have traced his number. He was locked up at the police station. His statement was recorded after one or two days, he said. He was not charged for anything, he said.
    
70. In cross examination he said that the person who called him was waiting at the junction and that he showed him where to go up. It was an empty house, he said. He has never switched on the taxi meter. He said that he did not feel something wrong at the discussion, as he did not know they were criminals. However he said that when he saw the money spilt from the green bag he felt something wrong. He had not reported the matter to police at that time. Although they did not discuss about the taxi fare they have said that they would pay $200 to him.
    
71. He did not agree when it was suggested that he did not inform about the taxi fare because he was also a part of the group. Also he denied when it was suggested to him that he did not report to police because he was a part of the group. He said the person who called and stayed at the junction to guide him was his friend, a taxi driver.
    
72. He said he knew the name of Peni Tukai as they roam around Nausori. He had seen him once when he was passing by in the taxi. He said he had a look at his police statement at home previous night. A police officer had brought it to him together with the summons. He denied that the names he gave in evidence were told by the police officers. He said the person named Paula is not in court.
    
73. He said altogether he met 5 people, that is, four people behind the house and one person at the junction. He said his friend whom he met at the junction was not present behind the house. He had given a statement to police on 19/06/2013, that was 2 days after his arrest, he said. He further said that he gave the name of Mr. Scott intentionally. He denied when suggested to him that Mr. Scott was never with him that day.
    
74. In cross examination by the Counsel for 3rd Accused, he said, he knew where Peni Matairavula stayed and also his village. He had heard about him long time ago. He further said that he did not know the two men he saw when he went up from the junction. He also said that he was not part of the discussion. When they called names Paula and two Peni's it may have been possible to call in false names to mislead him, he answered.
    
75. He further said that Scott told him to pick them at Milo shop. When it was shown to him that he had told in the police statement, that Paula informed him to wait for them at Milo shop, he said it was Scott, not Paula. He admitted that the incident was fresh in his mind when he gave the statement to police.
    
76. He said, the friend who initially called him and picked up from the junction was "Ovini". He has intentionally not mentioned Ovini's name to police. He admitted that he intentionally did not give his friend's name and intentionally gave the names of Peni Tukai and Peni Matairavula.
    
77. Further answering the questions in cross examination, he said that he did not feel suspicious when he waited for 20-30 minutes for them to pay him. He also said that he did not feel suspicious when he saw spilling the money.
    
78. In re-examination he said that he was not part of the group. He did not give his friend's name whom he met at the junction to police because he was not present at the discussion, he said.
    
79. The next witness was Inspector Nair Krishna. He conducted the Identification Parade for suspect Peni Tukai on 20/06/2013. He explained the process he followed, to you. Mr. Sherab Khan, the witness, has identified the suspect in the parade line up.
    
80. In cross examination he said that the suspect 1st accused freely gave his consent to the Identification parade. He said in terms of the procedure he has to get 9 members of the public from same age. Members of the public had been in the age of 20-28 years. The accused was 41 years old he said. He said that it was not only the age, but also the physical built, facial looks has to be considered. He said it was very hard to get people of the same age as they are reluctant to come.
81. Investigating officer and the directing officer had informed him that they were unable to get people from the same age. He said that the parade was conducted fairly. After looking at all the persons in the parade the suspect did not stand up because of the age, he said.
    
82. He had not seen where the witness was kept at the police station. To his knowledge witness has not come into contact with the accused. He said to his knowledge all procedures were followed. He denied that accused was shown to the witness by the police officers. He denied that the police fabricated the case against 1st Accused. He also said that no voice identification parade was held. He said no parade was conducted for accused Michael Scott or Peni Matairavula.
    
83. The next witness for prosecution was Asaeli Rauli Tuivuaki. He had been the arresting officer for Peni Matairavula and the witnessing officer for the caution interview of Peni Tukai.
    
84. On 17th June 2013, around 10.30 in the night, he with other officers had gone to Peni Matairavula's house in Cautata village. He was suspected for a Robbery in Nabua. After explaining the reasons for arrest he has arrested Peni Matairavula and had escorted him to Valelevu Police Station.
    
85. He also has witnessed the recording of caution interview statement of Peni Tukai which was recorded by Det. Sgt Apimeleki. No other officers had been present at the recording of the caution interview. Sgt. Apimeleki is now deceased. He said that Peni Tukai was treated fairly and his rights were given. He witnessed the interview and signed as the witnessing officer. Caution interview statement of Peni Tukai was produced marked as Prosecution Exhibit 2. He said Mr. Tukai was treated well, no promises were given and also that he was given breaks during the interview.
    
86. In cross examination he said that Sgt. Apimeleki recorded the interview in the computer and printouts were taken. It was suggested that the signature in the caution interview statement were not of Peni Tukai. He denied the suggestion. He also denied that the original statement was handwritten by Sgt. Apimeleki. He also denied that Exhibit 2 was a fabrication. He also denied that a wrong registration number of the vehicle was put in Question 9 and 10.
    
87. He said that, to arrest Peni Matairavula, he went in a police vehicle to Cautata village. He said that he explained Peni Matairavula, the reasons for his arrest in Fijian language. He also said that Peni Matairavula surrendered voluntarily.
    
88. He said that he did not caution Peni Matairavula when he was arrested. He denied that the arrest was unlawful. He denied any military officers accompanying them when they arrested Peni Matairavula. He also denied Peni Matairavula telling him that he came back home at about 11.30 – 12.00 noon, after signing his bail at the police station. He denied threatening Peni Matairavula to confess. He also denied that police framed Peni Matairavula for this offence.
    
89. In re- examination he said that Peni Matairavula signed the caution interview statement on his own free will. He has not made any complaint before signing.
    
90. On the request of the defence, prosecution witness Ilisoni Tadau was called and made available to the defence for cross examination. He was attached to the Nabua Police Station and was part of the investigation into this case. He said that Peni Matairavula was arrested at Cautata village. He was instructed by his supervisor to arrest Peni Matairavula and to record statements of witness, he said. He had recorded Evivi Ului's statement.
    
91. Madam and Gentlemen assessors,
    

At the end of the prosecution case you heard me explain several options to the accused persons. They have these options because they do not have to prove anything. The burden of proving their guilt beyond reasonable doubt remains on the prosecution at all times. The 1st and the 3rd accused persons chose to give sworn evidence and to subject themselves to cross examination. 3rd accused also called another witness. You must give their evidence careful consideration. The 2nd accused opted to remain silent and it is his right to do so. You must not draw any adverse inference from his choice to remain silent.

92. 1st Accused Peni Tukai gave sworn evidence in Court. He said he works as a bouncer at Friends night club. Apart from that, he does screen printing and tailoring, he said. His date of birth is 12.08.1972, he said. He denied all the allegations against him in all counts in the indictment. He said his caution interview was recorded by Sgt. Apimeleki on 18/06/2013 at Nabua Police Station. It was handwritten, he said. He said Prosection Exhibit 2 is not his caution interview statement. He also said the signatures in Prosecution Exhibit 2 were not his signatures. He also said when Sgt. Apimeleki recorded his caution interview statement no one else was present. In the caution interview, he said he denied all the allegations put to him.
    
93. On 18/06/2013 he voluntarily participated in the Identification Parade. He said that the witness Mohammed Sherab Haris Khan was in the next room. Through the clear glass he could see him with police officer Jone Daugunu. Witness was brought beside the clear glass for the witness to see him, he said. Witness was brought before the parade was held. He also said that in the Identification Parade, other 9 participants were wearing short pants and only he was wearing long pants. He had been the oldest in the parade. Others were young, he said.
    
94. In cross examination he said that in his evidence he did not tell about his whereabouts on 17/06/2013. He denied going to Kalokalo Crescent. He denied seeing prosecution witness Inoke Turaganivalu at Kalokalo Crescent. He said he does not know Inoke Turaganivalu. He denied that he had any discussion with 3 others about Safeway bank run and Westpac Bank. He said that what Inoke Turaganivalu said in court was not the truth. He denied using a taxi as a getaway vehicle after the robbery of Safeway Electronics employee. He also denied all what witness Mohammed Sherab Haris Khan said in court. He denied even going in witness Khan's taxi Toyota Fielder. He denied putting his hands inside the trouser pockets of witness Khan and also denied punching him. He denied any knowledge of the robbery and stealing personal belongings of witness Khan.
    
95. He also denied witness Mohammed Azim Shah's evidence that he robbed him at Nand's Mall car park. He denied being part of the Robbery. He denied Inoke Turaganivalu's evidence and even denied any knowledge of a banking bag. He said that Sgt. Apimeleki recorded his caution interview without any witnessing officer. He also denied evidence of witness police officer Asaeli Rauli and said that he did not witness the interview.
    
96. He said Exhibit No. 2 is not his caution interview statement. In Prosecution Exhibit 2, except for his personal details he denied other answers recorded in that statement. He again denied his signature in Prosecution Exhibit 2 and said it was not his signature.
    
97. He also denied that he was given breaks during the caution interview to consult ASP Luke and Sgt. Joape. He said that at the caution interview he denied all allegations. He denied asking questions 109, 117, 119, 138, 142, 143, 147, 152, 156, 157, 158 and giving the answers written in the Prosecution Exhibit 2 and said that it was not his interview statement. He denied fabricating answers and said that police fabricated the case against him.
    
98. 3rd Accused Peni Matairavula gave sworn evidence before you. He said that on 17/06/2013 he went to Nausori Police Station to sign his bail. He had left home by 9.00 am and reached Nausori Police Station by 10 am. After signing he had gone to Syria Park and had been there for about 2 hours. Then he had returned to village at about 2pm, he said. When he was questioned as to what he did after 2 hours at Syria Park till 2 pm, he said he was at the Syria Park.
    
99. When he reached home, his brother Saula Ului and brother's wife Evivi Ului had been at home. Brother's wife had come back from picking children from school. Same day at about 10pm police officers along with military officers had come and arrested him. They had explained him why they came and he had denied the allegations. He said he cooperated with them. There had been 5 twin cabs and he was taken to the Valelevu Police Station. On the way they had been swearing and threatening him to admit the case, he said. He had said that he did not know anything. He was threatened to admit the robbery. He had denied the allegations.
    
100. On 18/06/2013 at Nabua Police Station he was handcuffed and was told to sit on the floor, he said. They were kicking him and threatening him to admit. He was caution interviewed and was allowed to do it in English as his preferred language. He had made the statement. The interview statement he signed was a handwritten one he said. His caution interview statement was produced as Defence Exhibit 1. He said he denied the allegations. He denied all 3 counts against him. He said that he was formally charged and charge statement was also handwritten. Charge statement was identified and produced as Defence Exhibit 2.
     
101. Answering questions by the State Counsel, he denied planning to rob Safeway Electronics bank run. He said that he does not know anything about the robbery or the case. He denied robbing Mohammed Sherab Haris Khan. He denied stealing his taxi. He also denied stealing Sherab Khan's cash, mobile phones and the laptop. He also denied robbing Azim Shah. He denied all the allegations. He said although he was threatened, kicked and handcuffed by the police he did not admit to the allegations. Although they said that he would be killed, he did not admit, he said. He said that the prosecution witnesses were lying and not telling the truth.
     
102. The last witness for the defence was Evivi Ului who is the sister-in-law of the 3rd Accused, who was called to give evidence for the 3rd accused. Evivi Ului is married to the 3rd accused Peni Matairavula's brother. She lives in Cautata village. Peni also lives with them. It takes about 30 minutes to go to Cautata village from Nausori in a minivan. By bus it takes about 45 minutes, she said.
     
103. On 17/06/2013 Peni had gone to sign at the Nausori Police Station. She couldn't recall the time Peni left. She said that when she came back from her place at about 3.30 – 4.00pm, Peni was at home. Her evidence was not challenged by cross examination.
     

That was the evidence for Defence.

103. Madam and Gentlemen assessors, you heard the evidence of many witnesses for several days on behalf of the prosecution and the defence. If I did not mention a particular witness or a particular piece of evidence that does not mean it's unimportant. You should consider and evaluate all the evidence in coming to your decision.

104. The caution interview statements of the 1st and 3rd accused persons were produced in evidence. Remember, whatever each accused had told in his cautioned interview statement, is evidence only against the accused that made it, and cannot be taken against other accused persons.
     
105. Prosecution submitted the cautioned interview 'Exhibit 2' as the caution interview of the 1st accused Peni Tukai. However the 1st accused denied that it was his caution interview statement. You heard the evidence of the witness police officer Asaeli Rauli Tuivuaki who said that he witnessed the cautioned interview of Peni Tukai and that P. Exhibit 2 is the cautioned interview statement of Peni Tukai. You also heard the evidence of Peni Tukai. You decide which witness was truthful and which evidence you are going to accept. You may decide whether "P exhibit 2"is the caution interview statement of Peni Tukai or not.
     
106. You heard the evidence for the prosecution on the identification parade held at the Nabua Police Station for the accused no. 1 Peni Tukai. The officer Nair Krishna who held the Identification Parade testified in court. He was questioned about the laid down rules and procedures on holding Identification Parades and that the procedure was not followed. He was also questioned about witness seeing the accused at the police station before the parade was held. He denied the allegations and said that the parade was held fairly.
     
107. You also heard the evidence of the witness Sherab Khan who identified the 1st accused at the parade and also the evidence of the 1st accused as to how the parade was conducted. It is a matter for you to decide whether the Identification parade was held fairly or not.
     
108. I must also give you a direction on identification.
     
109. When an accused has been identified by a witness and when that evidence of identification is challenged by the accused, that evidence of identification has to be approached with special caution because there has been instances where even honest witnesses have made wrong identification. I give you this warning not because I have formed any view of the evidence, but the law requires that in every case where identification evidence is disputed, this warning be given.
     

In assessing the evidence on identification, you must take the following matters into account.

1. Whether the witness has known the accused before? In this case witness Seru Qaranivalu said that he has seen the photograph of Michal Scott stored in the police station. Witness Inoke Turaganivalu said that he knew the 3rd accused Peni Matairavula.
   
2. For how long did the witness have the accused under observation and from what distance? Was it more than a fleeting glance? In this case according to the witness Mohammed Sherab Harish Khan, the accused persons were with him in his car for a considerable time. They kicked him and punched him. However he was blind folded halfway and was put in the boot of the car. Witness Seru Qaranivalu said that he saw the 2nd accused in the car for about 7 seconds. Witness Inoke Turaganivalu had been with the accused persons for some time at the Kalokalo Cresent house when they had the discussion, and also when he picked them back and went to Nausori house where they cut open the green bag which contained money and cheques.
   
3. Did the witness have any special reason to remember? Witness Mohammed Sherab Khan said that he remember the 1st accused as the person who punched him twice and the 2nd accused as the person who hired the vehicle at Tebara complex.
   
4. In what light was the observation made? According to the prosecution witnesses this has happened during daylight.
   
5. Whether there was any obstacle to obstruct the view?
   
110. However, when you consider these questions when assessing the identification, you must also consider the reliability and the credibility of the above witnesses and also the warnings given by me including the accomplice warning.
     
111. I must also warn you about dock identification. You noticed that the 2nd and the 3rd accused persons were identified by the witness Mohammed Sherab Harish Khan for the 1st time in court from the dock as persons took part in the robbery. No identification parade was conducted on them during the investigation stage before the trial. They were not known to the witness before the incident. Also the witness Inoke Turaganivalu identified the accused persons from the dock for the first time after the incident. According to his evidence, he knew only the 3rd accused before. The law says that dock identification is completely unreliable in the absence of a prior foundation of identification parade or photograph identification. It is because the witness may identify the accused merely because he is in the dock. Witness may assume that the accused is the person who committed the crime because he is in the dock. Therefore I warn you that dock identification evidence should be approached with great care. However the questions No. 73 and 74 and the answers of the cautioned interview statement of the 3rd accused marked 'D Exhibit 1' shows that the 3rd accused refused to take part in an identification parade. Therefore the prosecution or the investigators cannot be found fault with for not conducting a parade for the 3rd accused. Evidence of dock identification of the 3rd accused has to be approached with great care for the reasons given before. However, little or no weight should be given to the dock identification evidence on 2nd accused.
     
112. May I also direct you on the defence of alibi. Defence of alibi means, the accused takes up the position that he was not at the crime scene but elsewhere at the time the crime was committed. The 3rd accused says that he was in his house in Cautata village at the time of the alleged offence was committed. He said about the time he went to the police station and the times he spent at Syria park and the time he went back home. He called his sister in law to give evidence on his behalf on the defence of alibi. You heard the evidence of the witnesses for the prosecution as well as the defence. Therefore you decide which witnesses are truthful and which are not. If you accept the version of the 3rd accused that he was at his house and never got involved with the crime, then you must find the accused not guilty. However if you do not accept his version, that alone does not mean that he is guilty of the charges because the burden to prove the accused persons guilt beyond reasonable doubt remains with the prosecution at all times. It is for the prosecution to prove that the accused committed the crime and not for the accused to prove that he was elsewhere.
     
113. I must also direct you on the evidence of bad character of the accused persons. If you accept the "D Exhibit 1' as the caution interview of the 3rd accused, you may see that he has said in his answer to question No.16, that he has served a prison term of 10 years. 3rd accused also said in his evidence that on the day in question he went to Nausori police station to sign his bail condition. Witness Seru Qaranivalu in his evidence said that the photograph of the 2nd accused Michael Scott is stored in the police station. You must ignore and not take into consideration that evidence and whatever the evidence elicited on the bad character of the accused persons. What you must consider is whether the prosecution has proved the elements of each offence beyond reasonable doubt.
     
114. You may have observed that when some witnesses gave evidence, there were some inconsistencies between the evidence before this court and the statement given to the police. What you have to take into consideration is only the evidence given by the witness in court and not any other previous statement given by the witness. However you should also take into consideration the fact that such inconsistencies between the evidence before court and the statement to police can affect the credibility of the witness. May I also tell you that any inconsistencies within the evidence of the same witness in court also can affect the credibility of the witness.
     

116. You must decide which witnesses are reliable and which are not. You have to consider as to how the witnesses faced the examination-in-chief and how they answered the questions in cross examination. You must consider whether the witnesses were forthright in their answers, or whether they were evasive, when deciding on the reliability of witnesses and acceptability of their evidence.

117. You may use your common sense when deciding on the facts. Observe and assess the evidence of all witnesses and their demeanour in arriving at your opinions.
     

118. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.

119. I have explained the legal principles to you. You will have to evaluate all the evidence and apply the law as I explained to you when you consider the charges against the accused persons has been proved beyond reasonable doubt

120. Your possible opinions on each accused on each count are either Guilty or
Not Guilty.

121. Madam and Gentlemen assessors, this concludes my summing up on the
law. Now you may retire and deliberate together and may form your individual opinions on the charges against the accused persons. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to court and you will be asked to state your separate opinion.

122. You may retire to consider your opinions.

Priyantha Fernando
JUDGE

At Suva
Office of the Director of Public Prosecution for the State
Office of the Legal Aid Commission for the 3 Accuseds