State v Baleilevuka [2015] FJHC 245; HAC181.2013 (13 April 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 181 OF 2013

STATE

V

1. JOELI BALEILEVUKA
2. WATISONI SAQALAGILAGI
3. ISAIA BOBO
4. ISIMELI NARESIA
5. SAKIUSA TUKANA

Counsels : MsLatu for the State
Ms A. Lata for 1st Accused
Mr A. J. Singh for 2nd and 4th Accused
Ms Nasedra for 3rd and 5th Accused

Date of Trial: 04 April 2015 – 13 April 2015
Date of Summing Up: 13 April 2015

SUMMING UP

Madam Assessors and Gentleman Assessor:

1. We have now reached the final phase of this case. The law requires me – as the Judge who presided over this trial –to sum up the case to you on law and evidence. Each one of you will then be called upon to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing up of the case very carefully and attentively. This will enable you to form your individual opinion as to the facts in accordance with the law with regard to the innocence or guilt of the accused person.
   
2. I will direct you on matters of law which you must accept and act upon.
   
3. On matters of facts however, which witness you consider reliable, which version of the facts to accept or reject, these are matters entirely for you to decide for yourselves. So if I express any opinion on the facts of the case, or if I appear to do so, it is entirely a matter for you whether to accept what I say, or form your own opinions.
   
4. 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.
   
5. The counsel for Prosecution, and defence counsels made submissions to you about the facts of this case. That is their duty as the Prosecution Counsel and the defence counsel. But it is a matter for you to decide which version of the facts to accept, or reject.
   
6. You will not be asked to give reasons for your opinions, and your opinions need not be unanimous although it is desirable if you could agree on them. I am not bound by your opinions, but I will give them the greatest weight when I come to deliver my judgment.
   
7. On the matter of proof, I must direct you as a matter of law, that each accused person is innocent until he is proved guilty. The burden of proving his guilt rests on the prosecution and never shifts.
   
8. The standard of proof is that of proof beyond reasonable doubt. This means that before you can find each accused guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt as to his guilt, you must find him not guilty.
   
9. 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 or read about this case, outside of this courtroom. Your duty is to apply the law as I explain to you on the evidence you have heard in the course of this trial.
   
10. You must judge the case solely on the evidence that you heard in this Court room. There will be no more evidence and you are not to speculate on what evidence there might have been or should have been. You Judge the case solely on what you have heard and seen here.
    
11. Your duty is to find the facts based on the evidence and apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.
    
12. As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.
    
13. In accessing the evidence, you are at liberty to accept the whole of the witness's evidence or part of it and reject the other part or reject the whole. In deciding on the credibility of any witness, you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he/she evasive? How did he/she stand up to cross examination? You are to ask yourselves, was the witness honest and reliable.
    
14. In this case the prosecution and defence have agreed on certain facts. The agreed facts are part of evidence. You should accept those agreed facts as accurate and truth. They are of course important part of the case. The agreement of these facts has avoided the calling of number of witnesses and thereby saved a lot of court time.
    
15. The agreed facts are the medical reports of the complainant and his family members and the medical report and medical folder of the 4th accused. You could consider the facts therein without any further proof.
    
16. The information against the accused is as follows:
    

COUNT 1
Statement of Offence

AGGRAVATED ROBBERY: Contrary to Section 311 (1) (b) of the Crimes Decree 44 of 2009.

Particulars of Offence

JOELI BALEILEVUKA, WATISONI SAQALAGILAGI, ISIMELI NARESIA and ISAIA BOBO and SAKIUSA TUKANA, in company of each other on the 20th of August, 2013 at Rakiraki in the Western Division, while being armed with an offensive weapons stole cash amounting $127,180.00 and 70 whales tooth valued at $35,000.00 all to the total value of $162,180.00, the property of GEORGE SHIU RAJ.

COUNT 2
Statement of Offence

AGGRAVATED ROBBERY:Contrary to Section 311 (1) (b) of the Crimes Decree 44 of 2009.

Particulars of Offence

JOELI BALEILEVUKA, WATISONI SAQALAGILAGI, ISIMELI NARESIA and ISAIA BOBO and SAKIUSA TUKANA, in company of each other on the 20th of August, 2013 at Rakiraki in the Western Division, while being armed with an offensive weapon stole 20 big gold coins (mohar) valued at $12,000.00, 4 bangles (kangans) valued at $1,200.00, 1 gold chain and mohar valued at $1,400.00, 1 gold patta worth $4,000.00, other assorted jewelleries valued at $2,000.00 all to the total value of $20,600.00 the property of PRAVEEN RAJ.

COUNT 3
Statement of Offence

ASSAULT CAUSING ACTUAL BODILY HARM:Contrary to Section 275 of the Crimes Decree 44 of 2009.

Particulars of Offence

JOELI BALEILEVUKA, WATISONI SAQALAGILAGI, ISIMELI NARESIA and ISAIA BOBO and SAKIUSA TUKANA, on the 20th of August, 2013 at Rakiraki in the Western Division, assaulted GEORGE SHIU RAJ, thereby causing actual bodily harm.

COUNT 4
Statement of Offence

ASSAULT CAUSING ACTUAL BODILY HARM:Contrary to Section 275 of the Crimes Decree 44 of 2009.

Particulars of Offence

JOELI BALEILEVUKA, WATISONI SAQALAGILAGI, ISIMELI NARESIA and ISAIA BOBO and SAKIUSA TUKANA, on the 20th of August, 2013 at Rakiraki in the Western Division, assaulted PRAVEEN RAJ, thereby causing actual bodily harm.

COUNT 5
Statement of Offence

ASSAULT CAUSING ACTUAL BODILY HARM:Contrary to Section 275 of the Crimes Decree 44 of 2009.

Particulars of Offence

JOELI BALEILEVUKA, WATISONI SAQALAGILAGI, ISIMELI NARESIA and ISAIA BOBO and SAKIUSA TUKANA, on the 20th of August, 2013 at Rakiraki in the Western Division, assaulted PRABHA PRASAD, thereby causing actual bodily harm.

COUNT 6
Statement of Offence

THEFT OF MOTOR VEHICLE:Contrary to Section 291 (1) of the Crimes Decree 44 of 2009.

Particulars of Offence

JOELI BALEILEVUKA, WATISONI SAQALAGILAGI, ISIMELI NARESIA and ISAIA BOBO and SAKIUSA TUKANA, on the 20th of August, 2013 at Rakiraki in the Western Division, stole a twin cab registration number: GEORGE, valued at $94,000.00, the property of GEORGE SHIU RAJ.

17. Firstly, I must explain the legal basis of each charge. When a charge is laid jointly against more than one accused-person in this manner, it brings into focus an important legal principle, which is known as the 'doctrine of joint enterprise'
    
18. Usually, a person is liable in law for only acts committed by him and for his conduct and such acts or conduct attract criminal liability if they are unlawful acts or unlawful purposes. The doctrine of joint enterprise is an exception to that general rule, of course, for valid and sound reasons. The principle is explained under Section 46 of the Crimes Decree, which reads:
    

Offences committed by joint offenders in prosecution of common purpose

'When two or more persons form a common intention to prosecute an unlawful purpose in connection with one another, and in the prosecution of such purpose an offence iscommitted of such a nature that its commission was a probable consequence of theprosecution of such purpose, each of them is deemed to have committed the offence.'

19. Madam assessors and the gentleman assessor, if I am to site an example, this is how the principle works. Three people plan to rob a shop and one stands guard outside looking out for any police surveillance. One man goes inside and holds the security guard, while the other threatens the cashier with a gun and takes all the cash. All three men then make their get- away. Now you will see that only the third man did the actual act of offence, while the other two helped to execute the plan of robbery. Under the law, each one of them is held liable for the offence of robbery. Under the law, each one of them is held liable for the offence of aggravated robbery irrespective of the individual roles played by each one of them under the doctrine of 'joint enterprise.' For the principle to work under the section, there should be evidence beyond reasonable doubt that:
    
    • (i) There should be two or more persons forming a common intention to prosecute an unlawful purpose;
      
    • (ii) In prosecution of that unlawful purpose, an offence/s should be committed; and
      
    • (iii) The commission of such offence/s should be the probable consequence of the prosecution of that unlawful purpose.
      
20. In dealing with the principle, you must also consider the following factors as matters of law. They are:
    
    • (i) The case of each accused must be considered separately. That is, you must find evidence as to what each accused did to demonstrate that he too had shared the intention in common to prosecute unlawful purpose;
      
    • (ii) Each accused must have been actuated by that common intention with the doer of the unlawful purpose at the time the offence was committed and should have contributed in some meaningful way towards the prosecution of the unlawful purpose;
      
    • (iii) Each one of them should have known that the commission of the offence is a probable consequence of the prosecution of that unlawful purpose;
      
    • (iv) Common intention must not be confused with same or similar intention entertained independently of each other. Instead, it should clearly be distinguished from similar intention. That is, if you find no evidence to show a particular accused did not share the intention in common with others and that he was actuated by his own intention which was, however, similar to the intention of other, you can find the accused guilty only for what he has committed and not for anything else;
      
    • (v) There must be evidence, either direct or circumstantial, or pre-arrangement or some other evidence of common intention. Sometimes, such common intention could occur on the spur of the moment;
      
    • (vi) The mere fact of the presence of the accused at the time of the offence is not necessary evidence of common intention.
      
21. I will now deal with the elements of the offences. The offence of Aggravated Robbery is defined under Section 311 of the Crimes Decree.
    
22. Accordingly the elements of the offence are:
    
    • (i) A person,
    • (ii) Committed Theft,
    • (iii) Immediately before committing theft uses force on another person,
    • (iv) He was in company of one or more persons.
      
23. The offence of Assault causing actual bodily harm is defined in Section 275 of the Crimes Decree.
    
24. Accordingly the elements of the offence are:
    
    • (i) A person
    • (ii) Assaulted another person
    • (iii) As a result of that assault the other person received bodily harm
      
25. The offence of Theft of motor vehicle is defined in Section 291(1) of the Crimes Decree.
    
26. Accordingly the elements of the offence are:
    
    • (i) A person,
    • (ii) Dishonestly appropriates property belonging to another,
    • (iii) With intention of permanently depriving the other of the property.
      
27. Apart from the elements of the offence, the identity of the person who alleged to have committed the offence is very important. There must be positive evidence beyond reasonable doubt on identification of the accused-persons and connect them to the offence that they alleged to have been committed.
    
28. Evidence that the accused has been identified by a witness as doing something must, when disputed by the accused, be approached with special caution because experience has demonstrated, even honest witnesses have given identification which have been proved to be unreliable. 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 involved, that the warning be given.
    
29. In assessing the identification evidence, you must take following matters into account:
    
    • (i) Whether the witness has known the accused earlier?
    • (ii) For how long did the witness have the accused under observation and from what distance?
    • (iii) Did the witness have any special reason to remember?
    • (iv) In what light was the observation made?
    • (v) Whether there was any obstacle to obstruct the view?
      
30. Proof can be established only through evidence. Evidence can be from direct evidence that is the evidence of a person who saw it or by a victim who saw, heard and felt the offence being committed.
    
31. Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, caution interview is an example if you believe that such a record was made. Then you can act on such evidence.
    
32. As a matter of law, I must direct you on circumstantial evidence. In this case, the prosecution relies on certain circumstantial evidence. In circumstantial evidence, you are asked to piece the story together from witnesses who did not actually see the crime being committed, but give evidence of other circumstances and the events that may bring you to a sufficiently certain conclusion regarding the commission of the alleged crime.
    
33. 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 'A' 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 'B' lying fallen on pool of blood with injuries. Here you don't see 'A' committing any act on 'B'. The two independent things you saw were the circumstances of a given situation. You can connect the two things that you saw, and draw certain inferences. An inference you may draw would be that 'A' caused the injury on 'B'. In drawing that inference you must make sure that it is the only inference that could be drawn, and no other inferences could have been possibly drawn from said circumstances. That should be the inescapable inference that could be drawn against 'A' 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.
    
34. Circumstances are not made by mere speculation or guesswork. They must be established beyond reasonable doubt and the proved circumstances must only be consistent with the accused having committed the crime. To find them 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 circumstances proved. It must be inference that satisfies you beyond reasonable doubt that the accused committed the crime and that inference should be irresistible and inescapable on the evidence. Before you can draw any reasonable inference, you must first be satisfied beyond reasonable doubt, that the evidence given by each witness relating to the circumstances giving rise to the issues of fact to be proved is credible and truthful.
    
35. In assessing evidence of witnesses you need to consider a series of tests. They are for examples:
    

Test of means of opportunity: That is whether the witness had opportunity to see, hear or feel what he/she is talking of in his/her evidence. Or whether the witness is talking of something out of pace mechanically created just out of a case against the other party.

Probability and Improbability: That is whether what the witness was talking about in his or her evidence is probable in the circumstances of the case. Or, whether what the witness talked about in his/her evidence is improbable given the circumstances of the case.

Belatedness: That is whether there is delay in making a prompt complaint to someone or to an authority or to police on the first available opportunity about the incident that was alleged to have occurred. If there is a delay that may give room to make-up a story, which in turn could affect reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication. If there is a delay, you should look whether there is a reasonable explanation to such delay.

Spontaneity: This is another important factor that you should consider. That is whether a witness has behaved in a natural or rational way in the circumstances that he/she is talking of, whether he/she has shown spontaneous response as a sensible human being and acted accordingly as demanded by the occasion.

Consistency: That is whether a witness telling a story on the same lines without variations and contradictions. You must see whether a witness is shown to have given a different version elsewhere. If so, what the witness has told court contradicts with his/her earlier version.

You must consider whether such contradiction is material and significant so as to affect the credibility or whether it is only in relation to some insignificant or peripheral matter. If it is shown to you that a witness has made a different statement or given a different version on some point, you must then consider whether such variation was due to loss of memory, faulty observation or due to some incapacitation of noticing such points given the mental status of the witness at a particular point of time or whether such variation has been created by the involvement of some another for example by a police officer in recording the statement where the witness is alleged to have given that version.

You must remember that merely because there is a difference, a variation or a contradiction or an omission in the evidence on a particular point or points that would not make witness aliar. You must consider overall evidence of the witness, the demeanor, the way he/she faced the questions etc. in deciding on a witness's credibility.

You must also consider the issue of omission to mention something that was adverted to in evidence on a previous occasion on the same lines. You must consider whether such omission is material to affect credibility and weight of the evidence. If the omission is so grave, you may even consider that to be a contradiction so as to affect the credibility or weight of the evidence or both.

In dealing with consistency you must see whether there is consistency per se and inter se that is whether the story is consistent within a witness himself or herself and whether the story is consistent between or among witnesses. In deciding that, you must bear in mind that the evidence comes from human beings. They cannot have photographic or videographic memory. All inherent weaknesses that you and I suffer, insofar as our memory is concerned, the memory of a witness also can be subject to same inherent weaknesses.

Please remember that there is no rule in law that credibility is indivisible. Therefore, you are free to accept one part of a witness's evidence, if you are convinced beyond doubt and reject the rest as being unacceptable.

36. You need to consider all those matters in evaluating the evidence of witnesses. You shall, of course, not limit to those alone and you are free to consider any other factors that you may think fit and proper to assess the evidence of a witness. I have given only a few illustrations to help what to look for to evaluate evidence.
    
37. Five accused are on trial in this case. Each of the accused is entitled to be tried solely on the evidence that is admissible against him. This means you must consider the position of each accused separately, and come to separate considered decision on each of them. It is like having five separate trials for aggravated robbery but heard together. Just because they are jointly charged does not mean they must be guilty or not guilty. Complainant's evidence and the evidence of other members that family in this case is admissible against all five accused. However, regarding their police caution interview statements of the 1st and 2nd accused, which contained confessions, the statements therein are only admissible against the maker of the statement, and on no other. In other words, in each accused's caution interview statements, you must totally disregard what each accused said about his co-accused on the commission of the offence. You can only take into account what he said about himself, regarding the role in the commission of the crime. You must keep in mind about the above rule, when you deliberate on the case. It also applies to the recoveries from each accused. That is evidence only against the accused who a recovery is made.
    
38. I will now deal with the summary of evidence in this case.
    
39. Prosecution called George Shiu Raj as the first witness. On 20.8.2013 around 1.00 a.m. he was sleeping in his bed room with his wife and the youngest child. All of a sudden he was awakened by his wife's yell and he saw three masked men entering his bed room. They grabbed him and tried to put a tape to his mouth. He was told not to shout or otherwise they will kill him. His wife tried to grab the tape. He pushed the three men and ran out of the room to call his brother-in-law. He was grabbed and made to sit on a settee in the bed room. Then he ran to the sitting room and the kitchen yelling and shouting. In the kitchen he was punched on his cheek and mouth. He felt blood was coming. He fell down and he was grabbed and taken to sitting room.
    
40. His sister came there. One of the masked men grabbed her and slapped her. She was told to sit on the settee. Then brother-in-law came. The masked men took a pinch bar or steel rod and hit the brother-in-law on the head and the legs two or three times. He fell down. He saw five masked men that night. His wife was also brought in and asked to sit on the settee. He heard them breaking drawers in the bed room. After 15 minutes he saw them bring carton and pillow case full of stuff. One of themsaid 'You got lot of big Tabua'. After that they demanded the key of the vehicle. Then one said fuel is very low. Then they demanded the key of the new vehicle. They brought the vehicle to the porch and started to load the cartons and pillow case on the vehicle.
    
41. They were told that one is inside and not to move. They are going to the shop. Then they drove the vehicle away. Then his niece came, and untie them. He went to the bed room and saw the room being ransacked and drawers open. All the money and 70 Tabua, Gold sovereigns were missing. He recovered $ 93,113.00 and 28 Tabua back from the Police. He identified the money in same bundles which were kept by him. He had cut on the cheek and blood was coming out. One of the masked men had a cane knife. He was held by a tall and built person. Others were not that tall.
    
42. Under cross examination by the counsel for the 1st accused, he stated that the incident happened suddenly and there was poor light in the room. He did not identify anyone as they were all masked. All the items robbed were not recovered. He identified the money bundles returned to him. Those were in the same condition. The 70 Tabua could be put to two pillow cases and be put into a long neck beer carton.
    
43. Under cross examination by the counsel for the 2nd and 4th accused, he stated that Police arrived after 15 minutes. Within 5 minutes he was taken to the hospital. He returned back on the third day. The money was in $50,000 bundles in $100 notes. There were no markings in the money. Tabua too there was no marking.
    
44. You watched him giving evidence in court. What was his demeanor like? How he react to being cross examined and re-examined? Was he evasive? How he conduct himself generally in Court? Given the above, my directions on law, your life experiences and common sense, you should be able to decide whether witness's evidence, or part of a witness's evidence is reliable, and therefore to accept and whether witness's evidence, or part of evidence, is unreliable, and therefore to reject, in your deliberation. If you accept the evidence of George Shiu Raj beyond reasonable doubt then you have to decide whether elements of each charge apart from the identification of the persons involved is established beyond reasonable doubt through this evidence.
    
45. The 2nd witness for the prosecution was Praveen Raj. She is the wife of the 1st witness. On 20.8.2013 around 1.00 a.m. she was in bed sleeping. She heard someone inside the house. She sawfour of them at the door of her bed room. She yelled to make her husband wake up. One man jumped on the bed slapped her face and told her not to shout. She was shown a pinch bar and told that they will kill if she shouts. She told them to take whatever they want but not to kill them. Then they tried to put a tape on her husband's face. She tried to take that out. Then her husband tried to make his way out of the bed room to call the brother-in-law for help. The husband was taken out. She was kept in the room. The person with her was tall and slim. She was kept there for 10 minutes. She heard her husband shouting.
    
46. Then she was taken out and made to sit on a settee. Her bangles were dragged out from her hands. She was asked where all the money is kept. She told that money was kept at the shop. Then she was taken to where her husband, brother-in-law and sister-in-law were. She saw her husband on the floor with both hands tied at the back. He was bleeding from face and ear. Brother-in-law was lying on floor with blood coming from head. Sister-in-law was sitting on other settee. There was a tall and fit person with them.
    
47. Then they ransacked the whole house. They brought the things out and put on a side. They demanded the key of new van. She gave the key. They packed all the things in the van. Then two of them tied all of their hands and legs. Before going they told that one is inside and they will come back for him after getting money from the shop. After men left the daughter was called to untie them. She discovered that the bed room was ransacked and they have taken the money, jewelries and Tabua. Jewelries included 20 big Mohars and another 12 set, her 4 Bengals, wristwatches and rings. Only two watches were recovered. She identified those in Court and tendered those marked P1 A&B. She was examined by a Doctor.
    
48. Under cross examination by the counsel for the 1st accused, she stated that the incident happened suddenly and there was poor light in the room except bit light coming from the passage light. They were wearing masks and same colour clothes. She was able to identify the money from the way it was kept. The husband identified the Tabua. Under cross examination by the counsel for the 2nd and 4th accused, she stated that some men were wearing hand gloves. There were no marking on the jewelries or the watches. Under cross examination by the counsel for the 3rd and 5th accused, she stated that there were no marking on her watch but she could recognize the same. She admitted that similar watches are sold in Fiji.
    
49. You watched her giving evidence in court. What was her demeanor like? How she react to being cross examined and re-examined? Was she evasive? How she conduct herself generally in Court? Given the above, my directions on law, your life experiences and common sense, you should be able to decide whether witness's evidence, or part of a witness's evidence is reliable, and therefore to accept and whether witness's evidence, or part of evidence, is unreliable, and therefore to reject, in your deliberation. If you accept the evidence of this witness beyond reasonable doubt then you have to decide whether that evidence confirms the evidence of the above witness and establish elements of the charges apart from the identification of the persons involved or creates a reasonable doubt in the prosecution case.
    
50. The third witness for the prosecution was Praba Chand. On 20.8.2013 around 1.00 a.m. she heard the noise coming from sitting room. When she came to the sitting room she saw somebody hitting her brother. She yelled and her husband came there from other side. Someone grabbed her, punched her on the face and held her.Another man was hitting, her bother who was on the floor. Someone hit her husband on the head and he fell down. Blood was coming from him. She was told to sit down and her arms were tied. She had an injury on her face. She was examined by a Doctor. There were 3 men in the sitting room.
    
51. Under cross examination by the counsel for the 1st accused, she stated that there was no light in the sitting room. The men were masked. She saw someone taking the items but could not identify him as all of them were masked. Even at the time they left they were masked.
    
52. You watched her giving evidence in court. What was her demeanor like? How she react to being cross examined and re-examined? Was she evasive? How she conduct herself generally in Court? Given the above, my directions on law, your life experiences and common sense, you should be able to decide whether witness's evidence, or part of a witness's evidence is reliable, and therefore to accept and whether witness's evidence, or part of evidence, is unreliable, and therefore to reject, in your deliberation. If you accept the evidence of this witness beyond reasonable doubt then you have to decide whether that evidence confirms the evidence of the above witnesses and establish elements of the charges apart from the identification of the persons involved or creates a reasonable doubt in the prosecution case.
    
53. The fourth witness for the prosecution was Sashi Chand. On 20.8.2013 around 1.00a.m he was awakened by George's yelling. He went outside and saw no one there. Then he asked his wife to go to the sitting room to see about the noise. When the wife went she screamed. He went to see what happened to her. He saw 3-4 men. One of them was holding his wife's mouth. When he tried to save her, he was punched on the head with an Iron rod. His head was injured. He was hit on his right leg. His leg bone was broken in three places. He fell down. Later he was taken to Rakiraki hospital.
    
54. You watched him giving evidence in court. What was his demeanor like? How he react to being cross examined and re-examined? Was he evasive? How he conduct himself generally in Court? Given the above, my directions on law, your life experiences and common sense, you should be able to decide whether witness's evidence, or part of a witness's evidence is reliable, and therefore to accept and whether witness's evidence, or part of evidence, is unreliable, and therefore to reject, in your deliberation. If you accept the evidence of this witness beyond reasonable doubt then you have to decide whether that evidence confirms the evidence of the above witnesses and establish elements of the charges apart from the identification of the persons involved or creates a reasonable doubt in the prosecution case.
    
55. The fifth witness for the prosecution was ASP SamisoniNaqica. He is an officer with 24 years' experience. In 2013 he was in charge of the crime and intelligence unit in Lautoka Head Quarters. He is an arresting officer in this case. After receiving the information about robbery, his team started from the place where the stolen vehicle was abandoned at Naseyani village. They went up to Vuniyaumunu village informing the villages the situation and they have information the suspects are in highlands. At the station they received a call that two new faces are sighted passing the Naraviravi village. They went straight to Burelevu. At there he briefed his men. He took the lead and other men in the team were behind him. He was with Turaga-Ni-Koro of Vuniyaumunu who is an ex-police officer.
    
56. About 1-2 miles inside that track they sighted two persons approaching them. He saw one of them putting a cane knife around. It was few minutes after 11.00 p.m. He went past them and then called up to them. The 4th accused told him that he is going down to Burelevu. He shoot the torch at them. Then they were going faster. He identified the 1st accused. He told the 1st accused not to do anything. He never stopped. He saw the rest of the team coming few meters back. As they approached he told the 1st accused to surrender. Then he saw the 4th accused going towards the cliff. He saw the 4th accused holding a cane knife. He had a pillow case with Tabua on his shoulder and Green bag on his back. The 1st accused was holding bolt cutter wrapped in a cloth and Orange bag in his back.
    
57. Both of them fell down the cliff. He tried to follow them. But could not go down that steeper cliff. He ran up the track and jumped to the river. He swam across the river and shoot the torch towards the place they jumped. He saw the 1st accused coming towards him on opposite side of the river. He shouted at him to go back and don't do silly things. He saw the rest of the team had reached the place they jumped. He saw the 1st accused throwing the Orange bag just beside the place he was standing. Then he put his hand up and went to the rest of the team. He told them that 1st accused threw the bag. He saw the 4th accused lying on top of rock motionless. The cliff was 15-20m in height.
    
58. He swam across the river. He saw the cane knife 2-3m away from where he was lying. He also saw the pillow case with Tabua just beside where he was lying. 4th accused was not breathing at that time. He was also biting his tongue. He directed his men to throw him to the river. Then he started to slap his face and ear. Then he could see that he was breathing but still motionless. He checked his way back to the main road. The team had escorted the 1st accused to where he jumped from. 4th accused could not be taken up the cliff due to his condition. He told the team to escort the 1st accused. He swam across the river with the 4th accused with the assistance of Turaga-Ni-Koro. Then the police vehicle was brought down and 4th accused was loaded to the vehicle. He did not assault or verbally abuse the 4th accused at any point of arrest. Then they proceed to Rakiraki station. The 4th accused was cautioned on the way to the station. At the station 1st accused was handed over. Transport was arranged to take the 4th accused to the hospital.
    
59. All the property seized was taken by him. It was handed over to the crime officer and the station officer on the next day. A black wallet, cane knife, bolt cutter, the Green bag containing cash, Orange bag containing cash, pillow case containing Tabua were handed over. He identified the cane knife and bolt cutter and tendered to Court marked P3 and P2. There were 19 Tabua in the pillow case. There was more than $80,000.00 in cash. He identified the 1st and 4th accused in Court. These two accused were not assaulted at any point in his presence.
    
60. Under cross examination by the 1st accused, he stated that when the accused first encountered him that night, no polite words such as 'Bula' was not exchanged. He admitted that when he divided the team he had the intention of surprise encounter with the accused. He denied throwing the 1st accused to river at the time of arrest. He denied kicking, punching and beating the 1st accused. When asked 'Did you find anything unusual about them? He replied that he saw the bolt cutter, cane knife, Tabua parts sticking out from the pillow case. He could see all this with aid of torch. He informed the 1st accused about right to remain silent in the vehicle. He admitted passing Naseyani on the way to Rakiraki police station. He denied taking the 1st accused to a road block at Naseyani and interrogating him. He denied other officers assaulting and threatening the 1st accused to confess at Naseyani. He denied searching the 1st accused at the time of arrest and taking $1,000.00 from his pocket. He admitted that the time they arrived at Rakiraki station is 1.15 a.m. The time was due to distance. He denied making a statement that the 1st accused had injuries. His reference was in respect of the 4th accused. He admitted that 1st accused was not carrying a Green bag.
    
61. Under cross examination by the counsel for the 2nd and 4th accused, he said the colour of the pillow case was something like pink. He denied punching the 4thaccused between his eyes and punching in the mouth resulting two broken teeth. He denied that by assaulting 4th accused he forced the 4th accused to fall and become unconscious. He denied that 4th accused was not carrying anything. He assumed the 4th accused was involved in the robbery. He denied that 4th accused assaulted with a bolt cutter after he became unconscious. When it was put to him that 4th accused carries these injuries till today he denied that and told that he saved the life of the 4th accused. He admitted putting the 4th accused to river. He denied planting a wallet on 4th accused to cover the assault. The medical report of the 4th accused was tendered by the defence. He admitted that there are injuries according to the Medical report.He denied that those are consistent with him assaulting the 4th accused. No finger print was obtained from the cane knife.The pillow case was handed over to the Crime officer.
    
62. He admitted he escorted the 2nd accused from Lautoka station to Rakiraki station. He denied assaulting the 2nd accused at Teidamu. He denied telling the 2nd accused that he has to make admissions to the offence. He had read his statements before giving evidence. He admitted that he had not stated that 4th accused regained the consciousness. He had heard that the 4th accused was in Trauma ward Lautoka hospital. He doesn't know how long the 4th accused was hospitalized. On 20.8.2013 he was walking properly before the arrest. He did not take serial numbers of the notes. He took part in counting notes. He could not recall the amount of the money. There is no name written on the knife. He denied Officer Senitiki assaulting the 4th accused.
    
63. You watched him giving evidence in court. What was his demeanor like? How he react to being cross examined and re-examined? Was he evasive? How he conduct himself generally in Court? Given the above, my directions on law, your life experiences and common sense, you should be able to decide whether witness's evidence, or part of a witness's evidence is reliable, and therefore to accept and whether witness's evidence, or part of evidence, is unreliable, and therefore to reject, in your deliberation. If you accept the evidence of this witness beyond reasonable doubt then prosecution wants to establish the 1st and 4th accused had recent possession of the stolen items.
    
64. The doctrine of recent possession furnishes a legal aid and factual basis to found a criminal prosecution. The underlying principle in the doctrine is that a person who is in possession of stolen goods soon after a theft or an associated offence implicates himself in the act of receiving stolen goods or in the associated offences.
    
65. The Prosecution for it to be benefited from the application must prove that
    

(i) The accused possessed the good

(ii) The goods possessed by the accused were the subject matter of the offence as complained by the complainant

(iii)There is no explanation from the accused in regard to his possession of the suspected goods

66. You have to apply above test to each accused separately.
    
67. The sixth witness for the prosecution was Inspector Anoop. He is an officer with 25 years' experience. He is the investigating officer of this case. After the report was received a team of police officers were formed to search for the suspects. He went to visit the scene. Victims were taken to the hospital and statements were being recorded. After arrests were made the exhibits seized were brought and search lists were made. An extension of remand period was sought and was granted. He compiled file. Some exhibits were released to the complainant after Court order. The 1st and 4th accused were first arrested and then the 2nd and 5th accused. When the 1st accused was arrested $93,433.00 in cash, 19 Tabua, bolt cutter and cane knife were recovered. He prepared the search list for the 1st accused. He made copies of the same. The original was attached to the case file and now gone misplaced. The exhibit room and the DPP's office were checked. A photo copy of the original search list of the 1st accused was tendered marked P4. The exhibits from the other accused are 9 Tabua, two ladies hand watch and one gold ear ring.
    
68. Under cross examination by the counsel for 1st accused, he stated that he saw the 1st accused when he was brought to Rakiraki station on 21.8.2013 at 1.15 hours. He did not see that 1st accused's clothes were wet or water dripping from the clothes. He denied being present at the interview of the 1st accused. It was in the afternoon. He did not remember the exact time. He denied punching, kicking and threatening the 1st accused to sign the caution interview. He was the driver of the vehicle for reconstruction for most accused. He denied assaulting, threatening and punching the 1st accused at the reconstruction. He is not sure whether road block was erected at Naseyani. He did not personally see or hear the interviewing officer giving his rights to the 1st accused. All rights were given in his interview and charge.
    
69. When the 1st accused was brought to the station there was no weapons, bags or cash in his possession. The search list was made later as time was needed for counting the cash. They requested the bank officers to assist them. The 1st accused's signature is there in the search list. He placed the date himself. He denied forcing the 1st accused to sign the search list. The 1st accused was informed the extension of the investigation when they received the order of the Magistrate. There were no injuries on the 1st accused. He did not see bleeding from the left side of 1st accused's face.
    
70. Under cross examination by the counsel for the 2nd and 4th accused, he stated that no finger prints of 2nd and 4th accused were uplifted from the scene. He admitted that 4th accused was in hospital till 18.10.2013. He admitted that in his statement there is no mention that he prepared the search list and made copies.
71. Under cross examination by the counsel for the 3rd and 5th accused, he stated that he is aware a person by the name Sailasa Momo was brought in as a suspect in this case. He was questioned. He is not sure whether that suspect was caution interviewed. In the interview the 3rd accused had stated that he was in Suva with his wife and mother-in-law on the date of the incident. His wife was present when the 3rd accused was caution interviewed. He had not taken steps to record the statements of the family members. The 5th accused was brought in for questioning after Sailasa Momo was brought.
    
72. It is up to you to decide whether this witness's evidence conform the evidence of other police witnesses and establish the prosecution case beyond reasonable doubt or creates a reasonable doubt in the prosecution case.
    
73. The seventh witness for the prosecution was Sailosi Bawaqa. He had caution interviewed the 1st accused on 21.8.2013. It was in question and answer format. Inspector Isireli was present as the witnessing officer. The 1st accused was not assaulted, threatened or verbally abused before, during or after the interview. He did not make any complaint. He tendered and read over the caution interview of the 1st accused marked P5. The 1st accused was not forced to give answers by him or the witnessing officer. The 1st accused was not verbally abused or assaulted during the reconstruction. The 1st accused was not injured. The 1st accused was offered his rights during the interview. He identified the 1st accused in Court. The name of Sgt. Anoop is there by mistake. The 1st accused did not say that he was somewhere else on the date of the incident. The answers were given voluntarily by the 1st accused. The 5th accused was interviewed by him on 23.8.2013. He did not admit the allegation and remained silent. He identified the 5th accused in Court.
    
74. Under cross examination by the counsel for the 1st accused, he stated that he was not present during the arrest of the 1st accused. He denied assaulting, kicking and threatening the 1st accused before the interview with Sgt. Anoop and Ins. Vananalagi to sign the interview. He denied that rights were not given to the 1st accused. He was not given telephone to contact a lawyer, relative or pastor. He was given chance to see a doctor. He opted to go after the interview. He did not take him to a doctor after the interview. That's the duty of the officers on duty to whom he handed over the 1st accused. He admitted that it is his duty to take the 1st accused to a doctor. That right was given to the 1st accused.
    
75. He denied that Sgt. Anoop was present throughout the interview. He could not recall whether Sgt. Anoop drove the vehicle for the reconstruction. He denied that the questions and answers in the caution interview were fabricated and manufactured by him. He accompanied the 1st accused for reconstruction. He denied that he, Sgt. Anoop and Ins. Vananalagi assaulted, punched and kicked the 1st accused to admit when the interview was suspended for reconstruction. The 1st accused was not taken to a doctor before he was produced in Court.
    
76. Under cross examination by the counsel for the 3rd and 5th accused, he stated that he interviewed the 3rd accused. The 3rd and 5th accused did not admit the allegation. They have stated that they were elsewhere. The 3rd accused had stated that he was in Suva with his wife. The wife of the 3rd accused was present in the station. He never recorded statements to confirm the alibi of the 3rd accused. The 5th accused had stated that he did not go anywhere. He did not check with the family members regarding the alibi. The 5thaccused was interviewed on 23.8.2013. He cannot recall he was brought again in November 2013.
    
77. In re-examination he stated that by the time he finished the interview of the 3rd accused family had left and it was his mistake not to check the alibi of the 5th accused.
    
78. It is up to you to decide whether the 1st accused made a statement under caution voluntarily to this witness. If you are sure that the caution interview statement was made freely and not as a result of threats, assault or inducements made to the 1st accused by persons in authority then you could consider the facts in the statement as evidence. Then you will have to further decide whether facts in this caution interview statement are truthful. If you are sure that the facts in the caution interview are truthful then you can use those to consider whether the elements of the charge are proved by this statement against the 1st accused.
    
79. The eighth witness for the prosecution was Inspector Isireli Vananalagi. He had witnessed the caution interview of the 1st and 5th accused. Sailosi Bawaqa was the interviewing officer for the 1st accused. The 1st accused was not assaulted or verbally abused by any officer during the interview. The 1st accused did not have visible injuries. He had old injury and was feeling the pain. He did not make any complaint. The 1st accused was answering the questions voluntarily. He did not make up or fabricate any part of the interview. He was not assaulted or verbally abused during the reconstruction. He was not forced to sign the interview notes. He was normal during the interview. He identified the 1st accused in Court. The 5th accused did not make any admissions and remained silent during the interview. He identified the 5th accused in Court.
    
80. Under cross examination by the counsel for the 1st accused he stated that he was present during the entire interview. He admitted that the 1st accused was taken out of the cell at 2.08 p.m. and the interview commenced at 3.30 p.m. Sgt. Anoop was present at the commencement of the interview and left. He was coming in and out of interview room. First accused voluntarily signed the interview. He denied kicking, punching and slapping the 1st accused before the interview. The 1st accused was asked whether he wants a medical examination. He told he will go after the interview. He informed the interviewing officer to do so. The right to consult a lawyer was given to the 1st accused. He used his personal mobile to contact the wife of the 1st accused. But call was diverted. He was present when 1st accused was first brought to the station. He was with wet clothes. He brought a pant to change following morning. He was wearing under pants till that time. He denied kicking, punching and slapping the 1st accused before the reconstruction. He denied forcing him to sign the interview notes. He was present when 1st accused was informed about reason to prolong the investigation.
    
81. Under cross examination by the counsel for the 2nd and 4th accused, he stated that he is aware that the 4th accused was in hospital till 16.10.2013. Under cross examination by the counsel for the 3rd and 5th accused, he stated that in caution interview 3rdaccused had stated that he was at home on the date of the incident. He could not get further information as 5th accused remained silent to other questions. He had recorded the statement of suspect Momo on 11.11.2013. He denied bargaining for immunity with that suspect.
    
82. It is up to you to decide whether this witness's evidence confirms the evidence of the interviewing officer of the 1st accused or creates a reasonable doubt in his evidence.
    
83. The ninth witness for the prosecution was Cpl. Seruvi. He is the arresting officer of the 2nd and 5th accused on 21.8.2013. They were sitting under a Mango tree. He told them that they are wanted for a robbery case in Rakiraki. When he searched the 5th accused he found a wrist watch in his pocket. Then he searched the house of the 2nd accused with other officers. He found a green bag containing Whale's tooth. Then both accused were escorted to the Nadi police station. He prepared the search list for the 5th accused. A copy was given to the 5th accused. The search list and exhibits were handed over to Samisoni when he came to escort the accused. He tendered a photocopy of the search list of the 5th accused marked P6 and a green bag marked P7. Nine whale's teeth were recovered. He identified the 2nd and 5th accused in Court.
    
84. Under cross examination by the counsel for the 2nd and 4th accused, he admitted that there is no green bag in the search list. He is currently suspended from the service. He denied that whale teeth and car keys were not handed over to Ins. Samisoni. Under cross examination by the counsel for the 3rd and 5th accused, he stated that he did not have warrant to arrest the 5th accused. He denied the signature in the search list is not of the 5th accused. He had not asked the 5th accused whose watch was that? In re-examination he stated that 5th accused was searched outside the house and there is no need for a search warrant.
    
85. You watched him giving evidence in court. What was his demeanor like? How he react to being cross examined and re-examined? Was he evasive? How he conduct himself generally in Court? Given the above, my directions on law, your life experiences and common sense, you should be able to decide whether witness's evidence, or part of a witness's evidence is reliable, and therefore to accept and whether witness's evidence, or part of evidence, is unreliable, and therefore to reject, in your deliberation. If you accept the evidence of this witness beyond reasonable doubt prosecution wants to establish the 2nd and 5th accused had some stolen items in their possession at the time of arrest on 21.8.2013.You have to apply the tests of recent possession given above to decide on that in respect of each accused separately.
    
86. The tenth witness for the prosecution was Penaia. He was member of the team that went in search of suspects on 20.8.2013. They searched the jungle in Naseyani village. When they were at the station they have received information that two new faces walking towards Burelevu village. The team had proceeded there. Samisoni took the lead and he followed 6m behind. Two people walked past Ins. Samisoni. When he shoot the torch at them, they ran down the cliff. He recognized one of them as the 1st accused. They followed them down the cliff. When they reached the river the 1st person was lying motionless by the river side. They grabbed the 1st accused from the river side. Orange bag was recovered from him. At vehicle he opened the Orange bag and noticed some currency inside. The 1st accused was caution at the time of arrest. The 1st accused was not assaulted, threatened or verbally abused at the arrest or on the way to the station.
    
87. Another bag containing Tabua was recovered from the 4th accused. A cane knife and pinch bar were also recovered. The 4th accused was not assaulted by any officer. He identified the 1st and 4th accused in Court. On 21.8.2013 he had assisted the arrest of 2nd and 5th accused. A wrist watch was recovered from the 5th accused. A Green bag containing Tabua was recovered from a room in 2nd accused's house. He identified the 2nd and 5th accused in Court. There was a little bit argument before they search the house. Items recovered from the 1st and 4th were handed over to Rakiraki station. The 1st and 4th accused resisted the arrest and ran down a cliff.
    
88. Under cross examination by the counsel for the 1st accused, he admitted that it was dark when they arrested 1st accused. They had torches. When he called the name of the 1st accused he ran down the cliff. The 1st accused was informed of his rights. He was told why he is arrested. He was given right of silence. He denied assaulting, punching and kicking the 1st accused. He saw the orange bag when the 1st accused was running away. He denied putting the 1st accused to river or trying to drown him.
    
89. Under cross examination by the counsel for the 2nd and 4th accused, he stated that 4th accused firstly met Ins. Samisoni. He denied Samisoni punching the 4th accused right above nose. He further denied that he was hit with an iron rod in the back and 4th accused passed out and laid unconscious. He admitted that he is suspended from service now. He denied that he made up a story. He admitted that it was dark but they had torch lights. When 4th accused ran down he followed. He could not recall injuries on 4th accused. The 4th accused was send to hospital as he complained of back pain. He denied that there was no argument at the arrest of the 2nd accused.He denied that no Green bag was recovered from 2nd accused's house. Search lists were prepared by other officers.
    
90. Under cross examination by the counsel for the 3rd and 5th accused, he said that there was argument when 5th accused was searched.
    
91. You have to decide whether this witness's evidence confirms the evidence of the 5th prosecution witness and ninth witness or creating a reasonable doubt in their evidence.
    
92. The eleventh witness for the prosecution was DC Petero. He had caution interviewed the 2nd accused on 23.8.2013. It was in i-Taukei language. There was no witnessing officer. The interview was translated to English. He tendered the original interview and translation marked P8 A&B. The 2nd accused did not make any complaint. He was confident. The 2ndaccused was not forced to give the answers. No promise made to him. He did not make any part of the interview. He read out the interview to Court. The 2nd accused did not make any complaint at the end of the interview. He identified the 2nd accused in Court. The 2nd accused gave answers voluntarily.
    
93. Under cross examination by the counsel for the 2nd and 4th accused he admitted that the interview was translated by his wife WDC Savaira. He admitted that there are few mistakes in the translation. He admitted that he never gave the right of silence or consequences properly to the 2nd accused. He denied that the interview violated the constitutional rights. After 2nd accused said that he will answer in Court he advised the 2nd accused. (Question 39) He admitted that it was not a shop but a dwelling house that was robbed. He said that the house was adjacent to a shop. He was briefed about the facts before the interview. He had not read the statement of the complainant. He denied that he made up the figure $13,500.00 and Yellow plastic bag. He admitted that Yellow plastic is not in the search list. He had not recorded what happened at the reconstruction in the interview. He denied that 9 Tabua was not taken from 2ndaccused's house. He admitted that 9 Tabua is not in search list. He denied that the 2nd accused was assaulted prior to the interview by other officers. He denied that 2nd accused was frightened during the interview. When charged, the 3rdaccused said he was elsewhere. He did not look for alibi.
    
94. In re-examination he stated that it was his mistake not to look for the alibi of the 3rd accused. He did not record about reconstruction as he had not taken interview notes with him.
    
95. It is up to you to decide whether the 2nd accused made a statement under caution voluntarily to this witness. If you are sure that the caution interview statement was made freely and not as a result of threats, assault or inducements made to the 2nd accused by persons in authority then you could consider the facts in the statement as evidence. Then you will have to further decide whether facts in this caution interview statement are truthful. If you are sure that the facts in the caution interview are truthful then you can use those to consider whether the elements of the charge are proved by this statement against the 2nd accused.
    
96. The last witness for the prosecution was Sailasa Momo. On 18.8.2013 the 2nd accused called him and asked whether he could come to transport them to Rakiraki. He agreed. On 19.8.2013 he was called again. He was asked to come and pick 2nd accused at 9.00 p.m. He went to 2nd accused's house in Nakavu in a van driven by Tukera. He saw 1st, 2nd, 3rd and 5th accused there. He knows them earlier as a driver. They were getting ready to go to Rakiraki.Then they have gone to Rakiraki in middle of night. They have gone past a shop. The 5th accused had told that is the shop we going to rob. They have gone further down to pick an i-Taukei man. After picking him they have come back to the shop and parked further in front and got down.
    
97. The i-taukei man had told that there are two families and two security guard in the house. They came from back. The 1st accused cut the fence and they entered the house. He was the last one to enter. He saw them waking up a couple and asking them to come to the sitting room. There was another couple. The lady came first and followed by the husband. The 1st and 2ndaccused wasguarding them. The first couple was looked after by the 1st accused. The 3rd accused was moving inside the house. He went outside to look for car keys. There were two vehicles parked in the garage. The key was in the 1st vehicle. When started he saw there was low fuel. He told the 1st accused to unload the stuff inside the vehicle. He returned the vehicle and parked in the garage. Others were inside the house.
    
98. Then 1st accused threw the keys of the other vehicle. He brought the vehicle in front. It was a Red colour twin cab. They put the sacks in the boot. The 2nd accused opened the gate and they went out. They were coming back to Nadi. On the way there was red light on fuel. I-Taukei man told them to go towards Fiji Water. They went till road end. They abandoned the vehicle there and climbed up a hill. They rested in the hill top. Early morning they head towards road. They saw people coming towards them chasing them and went in different directions. He was with the 2nd, 3rd and 5th accused. They hide in a cave till night. Then they came down to road past one village. They came to a sugar cane field beside Fiji Water. They slept there. The next morning 3rd accused woke him up and told him that vehicle is coming to pick them. They came back to Nadi. The 2nd accused told him that he will call later. He identified 1st, 2nd, 3rd and 5th accused in Court.
    
99. Under cross examination by the counsel for the 1st accused, he stated that he know the 1st accused for not very long time. He denied that 1st accused left Sigatoka on 20.8.2013 at 2.00 p.m. and was at Lautoka at 5.00 p.m. He denied that he met the 1st accused for the 1st time in Rakiraki police station. He denied lying to Court.
    
100. Under cross examination by the counsel for the 2nd and 4th accused, he admitted that he was caution interviewed and also gave a statement. He was in the station for 3 days. He gave the statement on the 2nd day. He was told that he will be charged next day. But he was not charged and released. He denied that he is the mastermind of the operation. He admitted that he drove the 1st vehicle at the shop and he looked for the keys. The 1st accused loaded stuff in the 1st vehicle. He told him to unload as there was less fuel in the vehicle. Then he drove that vehicle and got away from the scene. Tukera is the person who drove the van to Rakiraki. At the point he got down near the shop he knew that he is going to drive the vehicle robbed. He denied that was a part of the plan. He was only told to drive the vehicle.
     
101. He told police that he received calls in his mobile. The mobile was not taken by the police. He denied that 2nd accused never called him. He did not know all the time that there is going to be a robbery. On 18th he was told to be the driver and he agreed. On 19th he was told that there will be a robbery. He admitted that he was a willing participant. He admitted that police came and got him in November 2013. During that time he met police officers every day. Police did not search his house. He denied that he don't know the 2nd accused. But he doesn't know him closely. He denied fabricating this story to save him.
     
102. Under cross examination by the counsel for the 3rd and 5th accused he admitted that he gave the statement on 11.11.2013 and he was caution interviewed on 12.11.2013. He gave the statement on the 2nd day at the police station. He admitted that he was arrested 2 months after the alleged offence.He admitted that in answering question 26 in caution interview, he had stated that he could not recall what happened on 19.8.2013. In question 27 he had said no to question 'On this day, did you take a job from Nadi coming down to Rakiraki?'
     
103. Officer Seruvi did not bargain with him to give the statement. When he was asked whether Officer Vananalagi bargain with him to give a statement he said 'yes, I can't remember the name.' Answering Court he said that what he told the police and the Court is the truth. Under further cross examination he stated that he could have given a statement soon after the incident, but he did not go. He only gave a statement after he was arrested. He said that he doesn't know the 3rd and 5th accused closely. He could have said that he don't want to drive. At no time he withdrew from the alleged robbery. He only did what he was told. There was no force or threat to him. It was suggested to him on 22.8.2013 the 3rd and 5th accused were not proceeding to Nadi with him. He said no. He denied that he is giving evidence to save himself. He admitted that he has previous convictions. But he doesn't properly understand criminal proceedings. He denied that 3rd accused was in Suva with his family on the date of the incident. He further denied that 5th accused was at his home on the date of the incident.
     
104. In re-examination he stated that he did not go to police earlier as he was working.
     
105. You watched him giving evidence in court. What was his demeanor like? How he react to being cross examined and re-examined? Was he evasive? How he conduct himself generally in Court? Was there any reason for him to falsely implicate any accused? Is there any explanation from him regarding the delay in making the statement to police? He was not questioned by either party whether the accused were masked at the time of the incident. Is it possible for him to identify the accused when they are masked.There is a contradiction on his statement and the police evidence. That is he said that the 2nd and 5th accused were with him for two days. But the 2nd and 5thaccused were arrested by police on the 21.8.2013.Futher,defence brought to your notice two questions and answers in the caution interview of this witness. He had given a different version in those answers.Given the above, my directions on law, your life experiences and common sense, you should be able to decide whether witness's evidence, or part of a witness's evidence is reliable, and therefore to accept and whether witness's evidence, or part of evidence, is unreliable, and therefore to reject, in your deliberation. If you accept the evidence of Sailasa Momo beyond reasonable doubt then you have to decide whether elements of each charge are established beyond reasonable doubt through this evidence.
     
106. Further, considering my directions on joint enterprise first you have to decide whether this witness is an accomplice. If you decide this witness is an accomplice then you have to decide there is independent evidence in respect of each accused to corroborate the evidence of this witness. The caution interview statements of the 1st and 2nd accused could be considered as such corroborating evidence against each of them provided that each statement is voluntary made and truth. The recoveries from 1st, 2nd, 4th and 5th accused could be considered as such corroborating evidence if that evidence passes the test laid down by me earlier in this summing up. There is no independent corroboration against the 3rd accused apart from the evidence of the above witness.
     
107. After close of the prosecution case you heard me explaining each accused his rights in defence.
     
108. The 1st accused elected to give evidence. He stated that he was working in Sigatoka on 19.8.2013 as a tourist guide. On 20.8.2013 was his day off. He went to Nadi. After changing clothes he boarded a bus to Lautoka. Then he boarded 5.10 p.m. bus to Rakiraki. He met Peni Samuta in Rakiraki. He met him in the junction around 7.30 p.m. and then boarded a vehicle going to interior to buy something. They got down at Raviravi and headed down to place that thing was sold. While going down, Peni Samuta went beside the river to relive himself. While he was waiting one man came. That person asked him what he was doing there. He replied that he came looking for a place to buy something.
     
109. It was about 11.00 p.m. While he was talking to that man, 9 police officers came. He knew four of them. They questioned both of them. He was searched. There was $1,875.00 in his pocket. When they saw that he was told that he took part in a robbery. Then officer punched the man with him. Five officers took that man down to the river. Other 4 took him. At the river bank he saw the man lying down and police hitting him with an iron rod. He was assaulted beside the river bank. Then they threw him into the river. While he was in the river, one officer was pulling him up and down till he admitted that he took part in the robbery. Then they will stop making him drown. He said yes to what they told. He was told that there was a robbery at Namuimada. He and others took part in that robbery.
     
110. Then they were taken to Naseyani. There was a road block there. They parked the twin cab there. Four officers got down. The officers at the road block came beside the vehicle and were punching him. Then he was taken to Rakiraki station and was put to the cell. His clothes were wet. He was told to remove clothes and be in his underwear. He asked for dry clothes as it was cold and his body was paining. He was not given clothes till next morning. Officer Bawaqa told him in the morning that if he does not admit he will not be given the breakfast. He said that he will admit. Around 2.00p.m. he was taken to crime office by four officers. He was told to admit the allegation. When he denied he was hit. He was lying down on the floor and one of them kicked him. He was told to admit to stop hitting him. He was further hit till he admitted to the allegation. Then he was taken to the cell. He was hit on the top of the head with a bolt cutter at the place of arrest. He was kicked and punched on the chest. His eyes were swollen. Blood was coming out from his nose.
     
111. At 3.30 p.m. he was taken to the interview. He asked for a medical check from Officer Vananalagi, Anoop and Sailosi. He was told that he will be taken after the interview. At the time of the interview these visible injuries were there on his eyes and nose. At the interview he was asked questions about his family and he answered. When asked about the allegation they wrote differently to what he said. He did not read what they wrote. They did not read it back to him. He was forced to sign. All the questions about robbery in the interview, the answers are not given by him. The answers he gave were not written down. He read it when he was in remand. He does not agree with what has been written. He was not taken to a doctor after the interview although he asked.
     
112. He was taken to Court on 27th. He was not taken within 48 hours. After charge he asked about it. But there was no reply. He was not aware that there was extension of the investigation. He was not given his rights during the interview to consult a lawyer or contact a relative. He asked them regarding all this, but they did not do anything. He asked to contact his lawyer. It was not given. His wife was there. They were not allowed to talk. He asked to call somebody it was also not allowed. Sailosi, Vananalagi and Anoop were present during the interview. The 2nd and 5th accused saw his injuries when he was taken back to the cell. He was shown bolt cutter, cane knife and one small ring during the interview. He said that he don't know about those.
     
113. The search list was given to him on 27th when they were about to go to Court. He was forced to sign it. Officer Bawaqa came and held his neck. Officer Vananalagi pulled his both hands back. Sgt. Anoop told him to sign. He was told if he doesn't sign he will be hit in the cell. At Court he was told that case will be transferred to High Court. He informed the Magistrate he wants to see a doctor.
     
114. Answering Court he said that he was photographed in the station. He admitted that the two photos in the disclosures given to him were taken on 23.8.2013.
     
115. Under cross examination by the counsel for the 2nd and 4th accused, he stated that he had not met 4th accused before 20.8.2013. The 4th accused was not carrying anything. When they were having a conversation, within short time police came.
     
116. Under cross examination by the state counsel, he admitted that he did not make any complaint to the Magistrate. He was not given a chance to talk. He was aware that his interview notes are fabricated when he was produced in High Court. He did not complaint as he doesn't know law. He was waiting for trial. At one time he asked to be taken to hospital from Judge. He denied that he was not injured and that is why he was not taken to the hospital. He did not complaint to the Magistrate as the injury was healed. There is no medical report to support.
117. The two photographs in the disclosures were marked as X1 and X2 as an agreed fact during the trial.
     
118. In re-examination he stated that interview was not given to read after the interview. He was only given to sign.
     
119. You watched 1st accused giving evidence in court. What was his demeanor like? How he react to being cross examined and re-examined? Was he evasive? How he conduct himself generally in Court? Is his version given in Court probable in all the circumstances? His version given in Court is inconsistent with his caution interview statement. It is up to you to decide whether you could accept his version and his version is sufficient to establish a reasonable doubt in the prosecution case. If you accept his version 1st accused should be discharged. Even if you reject his version, still the prosecution should prove its case beyond reasonable doubt.
     
120. The first accused called two witnesses. The first witness was Horace Penjueli. He stated that he went to Lautoka bus stand on 20.8.2013 at 5.00 p.m. to catch a bus to Tavua. He met the 1st accused who is known to him since 2002. He had a small talk with him. The 1st accused told him that he is going to Rakiraki. When he got down at Tavua around 6.30- 7.00 p.mthe 1st accused was still in the bus.
     
121. Under cross examination by state, he admitted that he is in Natabua Correction Center with the 1st accused now. The 1st accused is a friend. He came to know about 1st accused's case. He does not have a conversation with 1st accused when they meet.
     
122. The next witness for the 1st accused was Peni Samuta.On 20.8.2013 around 8.00 p.m. he met 1st accused in a garage in Rakiraki. Then they went to interior. While they were on a road near Burelevu he went to relieve himself. Then he heard 1st accused shouting. He was asking for help. Then he heard him being thrown to water. While 1st accused was shouting some more were hitting 1st accused. He was hiding. Then 1st accused was thrown into a twin cab and went.
     
123. Answering Court he said he did not do anything about this thereafter.
     
124. Under cross examination by the state, he stated that he is now at Natabua Correction Center since last December. The 1st accused is like a friend to him. He denied lying and coming to give evidence to save the 1st accused. Answering court he said there was no 3rd person present.
     
125. The above two witnesses were called by the 1st accused to establish that he was elsewhere at the time of the incident. The 1st accused in his defence takes an alibi. He says that he was not at the scene of crime but was at Sigatoka. As the prosecution has to prove his guilt so that you are sure of it, he does not have to prove he was elsewhere at the time. On the contrary, the prosecution must disprove the alibi. Even if you conclude that alibi was false, that does not by itself entitle you to convict the 1st accused. It is a matter which you may take into account, but you should bear in mind that an alibi is sometimes invented to bolster a defence.
     
126. Present Criminal Procedure Decree in Section 125 provides that:
     

'On a trial before any Court, the accused person shall not, without the leave of the court, adduce evidence in support of an alibi unless the accused person has given notice in accordance with this section.

A notice under this section shall be given-

(a) Within 21 days of an order being made for transfer of the matter to the High Court (if such order is made); or
(b) In writing to the prosecution, complainant and the court at least 21 days before the date set for trial of the matter, in any other case.

127. The alibi notice in respect on the 1st accused was filed on 26.9.2014.
     
128. The 2nd accused also gave evidence. He stated that he was working in Golf club, Denarau on 19.8.2013. He knocked off at 7.00 p.m. Then he went straight to home. He was drinking grog with four friends that night. They started at 8.00 p.m. and finished at 2.00 a.m. Then he went to sleep. Next day he was at home. On 21st too he was at home. Around 4.00 p.m. police came. They told him to go to the station. They searched his house. They took 9 whales tooth belonging to his family. They also take 4 Gold wrist watches, 4 Silver wrist watches and 4 Black wrist watches belonging to his family. Gold plated wrist watches are ladies watches. They also took two keys, 8 ear rings, 2 decorated pins and 2 marble stones belonging to his family. None of these items were produced in Court for this case.
     
129. He was taken to Nadi police station. He was asked about this case. He told that he don't know anything about this case. He was kept there for 22 hours. He was threatened and assaulted. He was handcuffed and made to sit down. Then they slapped his head and back. He was feeling scared. Next day around 5.00 p.m. he was transported to Lautoka police station. He did not know Sailasa Momo before yesterday and not called him on 19th and 20th. He doesn't know any person by the name Tukera.
     
130. At Lautoka he was locked in the cell at 6.00 p.m. At 11.14 a.m. next day he was transported to Rakiraki station. At 10.15 p.m. at Lautoka he was brought to the crime office. He was asked questions. He was hand cuffed in back and made to lie down on the floor. They stand on his back and pulled his both hands upwards. They also punched his chest and stomach. He had pain in his chest and stomach. On the way to Rakiraki the vehicle was stopped at Teidamu hill top.He was asked about this case and was punched on the stomach. He felt pain. He was frightened.
     
131. On the same day at Rakiraki station he was taken to crime office. He was threatened by the police officers by using an iron rod. They used abusive language. He was told that if he doesn't admit they will do what they did to another suspect who is paralyzed and in hospital. Then he agreed to cooperate with them. He was interviewed about $135,000.00 stolen from a shop. He was taken to the shop. He had not been to that shop before. Adjacent to shop there was a house. He was only taken to the shop. Police was asking him questions. Politician Raj was there. Police have fabricated the admissions in his interview. He was not explained right of silence or consequences properly. He had told that he will give answers in Court number of times. When he told this first he was advised and the interview was continued. He was frightened when the iron rod was shown to him. He knows that some officers are suspended now.
     
132. Under cross examination by the counsel for the 1st accused, he stated that he know the 1st accused as they have worked together. He did not meet the 1st accused on 19.8.2013 or 20.8.2013. He saw the 1st accused in cell in the Rakiraki police station. He was weak. Top of his face was swollen. His eyes were red. These injuries were fresh. He did not ask 1st accused what happened.
     
133. Under cross examination by the state, he stated that he did not complain to the Magistrate when he was first produced in Court about the injuries or that the interview was fabricated. He also did not complain to High Court as he did not properly know law. When asked if someone hits you badly will you complain he answered yes. He denied the allegations in this case.
     
134. You watched 2nd accused giving evidence in court. What was his demeanor like? How he react to being cross examined and re-examined? Was he evasive? How he conduct himself generally in Court? Is his version given in Court probable in all the circumstances? His version given in Court is inconsistent with his caution interview statement. It is up to you to decide whether you could accept his version and his version is sufficient to establish a reasonable doubt in the prosecution case. If you accept his version 2nd accused should be discharged. Even if you reject his version, still the prosecution should prove its case beyond reasonable doubt.
     
135. The 2nd accused in his defence takes an alibi. He says that he was not at the scene of crime but was at his home. As the prosecution has to prove his guilt so that you are sure of it, he does not have to prove he was elsewhere at the time. On the contrary, the prosecution must disprove the alibi. Even if you conclude that alibi was false, that does not by itself entitle you to convict the 2ndaccused. It is a matter which you may take into account, but you should bear in mind that an alibi is sometimes invented to bolster a defence.
     
136. The alibi notice was given by the 2nd accused on 29.9.2014.
     
137. The third accused did not give evidence but called witnesses. JosuaNatekuru stated that he is in Court to give evidence on what transpired on 19.8.2013. He was having liquor with some of his friends that night. Then he decided to go night clubbing. He went to borrow Black Nike shoes from the 3rd accused around 1.00-2.00 a.m. He did not have any shoes and clubs did not allow without shoes. The 3rd accused was at his house in Grantham Road, Raiwaqa, Suva. He was living in Kinoya. It was 25 minutes taxi drive from his place to 3rd accused's place.
     
138. Under cross examination by the state, he stated that he is remand now in Suva. He knows the 3rdaccused since he is 23 years. He is like personal friend. He is aware 3rd accused is charged. He did not make any police statement. He denied he is lying. He admitted that he will do anything for his friend. He was staying with his cousin in Kinoya.
     
139. The second witness called by the 3rd accused is his wife. She stated that she was with the 3rd accused at home on 19.8.2013 in the night. She had started making Puri at 5.00 p.m. It went on till 11.00 to 12.00 midnight. Thenshe made the curry. She went to sleep at 4.00 a.m. The 3rd accused was still at home. She went to Rakiraki police station in November 2013 and was there whole day.
     
140. Under cross examination by the state, she stated that she could not recall anyone coming to home that night. The 3rd accused was selling grog. She was not allowed to see her husband at the Rakiraki police station. Police did not ask any question from her.
     
141. The 3rd accused in his defence takes an alibi. His wife says that he was not at the scene of crime but was at home in Suva. Another witness says that he went to collect a pair of Nike shoes from the 3rd accused around 1.00-2.00 a.m. As the prosecution has to prove his guilt so that you are sure of it, he does not have to prove he was elsewhere at the time. On the contrary, the prosecution must disprove the alibi. Even if you conclude that alibi witnesses gave false evidence, that does not by itself entitle you to convict the 3rdaccused. It is a matter which you may take into account, but you should bear in mind that an alibi is sometimes invented to bolster a defence.
     
142. The notice of alibi was given by the 3rd accused dated 26.1.2014 was filed in this Court on 27.1.2015.
     
143. The 4thaccused gave evidence. He was living in Lawaki, Nalawa in interior of Ra in August 2013. He is there since birth. On 19.8.2013 he was at his house. On 20.8.2013 he left home around 6.30 p.m. to go to Burelevu to one of his grandfather's house. He could not go there, at 11.00 p.m. police came. It was 2 ½ mile from his house to grandfather's house. From 6.30 p.m. to 11.00 p.m he was walking and was close to the village. On the way he saw a new face, stranger standing there. He spoke to that man. He said that he was looking for some stuffs to buy. While they were talking police approached. It was very dark. He was not carrying a torch. And was walking on the road.
     
144. The police arrested the stranger and he was punched on top of his nose after asking where you are going. He said that he is going to his grandfather's house. His nose was broken. He was hit on the head. He fell on ground unconscious. He was not carrying anything. TheP3 (Cane knife) is not his knife. He regained consciousness in trauma ward Lautoka hospital. He was in that ward for two months. There was a cut on his head and his body parts were paining. There was an injury on back bone and knees. He could not hold anything with his fingers. He has double vision in his left eye and memory loss.
     
145. Answering Court he said he was on the road when he lost consciousness.
     
146. He knows that area well. There is no cliff. Only the river. It is big river. He told doctors what happened. Police assaulted him. Police were present in hospital. He was discharged on 16.10.2013. He was taken to Rakiraki hospital and then to Rakiraki police station. He denied the allegations. He doesn't know anyone by the name Sailasa Momo.
     
147. Under cross examination by the counsel for the 1st accused, he stated that he was in Lawaki on 20.8.2013.He met the 1st accused at 11.00 p.m. He is a stranger to him. First accused was not carrying anything.
     
148. Under cross examination by the state he stated that he was first produced in Court on 28.10.2013. He complained to the Magistrate that he was assaulted. He was caution interviewed on 18.10.2013. He remained silent. When asked only today you told the story his reply was that he is telling the truth of what happened. He denied the allegations put to him.
     
149. You watched 4th accused giving evidence in court. What was his demeanor like? How he react to being cross examined and re-examined? Was he evasive? How he conduct himself generally in Court? Is his version given in Court probable in all the circumstances? His version given in Court is not consistent with the history given by him in the medical reports which is in agreed facts. It is up to you to decide whether you could accept his version and his version is sufficient to establish a reasonable doubt in the prosecution case. If you accept his version 4th accused should be discharged. Even if you reject his version, still the prosecution should prove its case beyond reasonable doubt.
     
150. The 4th accused in his defence takes an alibi. He says that he was not at the scene of crime but was at his home. As the prosecution has to prove his guilt so that you are sure of it, he does not have to prove he was elsewhere at the time.On the contrary, the prosecution must disprove the alibi. Even if you conclude that alibi was false, that does not by itself entitle you to convict the 4th accused. It is a matter which you may take into account, but you should bear in mind that an alibi is sometimes invented to bolster a defence.
     
151. No alibi notice was given by the 4th accused.
     
152. The fifth accused did not give evidence or call any witnesses on his behalf. That is his right. No adverse inference should be drawn against the 5th accused for not giving evidence.
     
153. I must remind you that when an accused person has given evidence he assumes no onus of proof. That remains on the prosecution throughout. His evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
     
154. You will generally find that an accused gives an innocent explanation and one of the three situations then arises:
     
     • (i) You may believe him and, if you believe him, then your opinion must be Not Guilty. He did not commit the offences.
       
     • (ii) Alternatively without necessarily believing him you may say 'well that might be true'. If that is so, it means there is reasonable doubt in your minds and so again your opinion must be Not Guilty.
       
     • (iii) The third possibility is that you reject his evidence as being untrue. That does not mean that he is automatically guilty of the offences. The situation then would be the same as if he had not given any evidence at all. He would not have discredited the evidence of the prosecution witnesses in any way. If prosecution evidence proves that he committed the offences then the proper opinion would be Guilty.
       
155. I have summarized all the evidence before you. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should be reminded yourselves of all that evidence and form your opinions on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourselves of the evidence.
     
156. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies with the prosecution throughout the trial, and never shifts to the accused, at any stage of the trial. The accused are not required to prove their innocence, or prove anything at all. In fact, they are presumed innocent until proven guilty beyond reasonable doubt.
     
157. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of each accused's guilt of each charge you must find him guilty for that charge. You have to consider evidence against each accusedand each charge separately. 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 each accused's guilt, you must find him not guilty as charged.
     
158. Your possible opinions are as follows:
     

1stCharge of Aggravated Robbery 1stAccused Guilty or Not Guilty

2nd Accused Guilty or Not Guilty

3rd Accused Guilty or Not Guilty

4th Accused Guilty or Not Guilty

5th Accused Guilty or Not Guilty

2nd Charge of Aggravated Robbery 1st Accused Guilty or Not Guilty

2nd Accused Guilty or Not Guilty

3rd Accused Guilty or Not Guilty

4th Accused Guilty or Not Guilty

5th Accused Guilty or Not Guilty

3rd Charge of Assault Causing Actual Bodily Harm 1st Accused Guilty or Not Guilty

2nd Accused Guilty or Not Guilty

3rd Accused Guilty or Not Guilty

4th Accused Guilty or Not Guilty

5th Accused Guilty or Not Guilty

4th Charge of Assault Causing Actual Bodily Harm 1st Accused Guilty or Not Guilty

2nd Accused Guilty or Not Guilty

3rd Accused Guilty or Not Guilty

4th Accused Guilty or Not Guilty

5th Accused Guilty or Not Guilty

5th Charge of Assault Causing Actual Bodily Harm 1st Accused Guilty or Not Guilty

2nd Accused Guilty or Not Guilty

3rd Accused Guilty or Not Guilty

4th Accused Guilty or Not Guilty

5th Accused Guilty or Not Guilty

6th Charge of Theft of Motor Vehicle 1st Accused Guilty or Not Guilty

2nd Accused Guilty or Not Guilty

3rd Accused Guilty or Not Guilty

4th Accused Guilty or Not Guilty

5th Accused Guilty or Not Guilty

159. You may now retire to deliberate on the case, and once you have reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.
     
160. Any re-directions?
     

Sudharshana De Silva
JUDGE

At Lautoka
13th April 2015

Solicitors: Office of the Director of Public Prosecution for the State
Office of the Legal Aid Commission for the Accused Persons