State v Naqarase - Summing Up [2015] FJHC 299; HAC350.2013S (30 March 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 350 OF 2013S

STATE

vs

EMORI NAQARASE

Counsels : Mr. Y. Prasad and Ms. V. Prasad for State
Mr. T. Tawake for Accused
Hearings : 26, 27 and 30 March, 2015
Summing Up : 30 March, 2015

SUMMING UP

1. ROLE OF JUDGE AND ASSESSORS
   

1. Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.
   
2. State and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.
   
3. You will not be asked to give reasons for your opinions, but merely your opinions themselves and they need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
   

2. THE BURDEN AND STANDARD OF PROOF
   

4. As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.
   
5. The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.
   
6. Your decision must be based exclusively upon the evidence which you have heard in this court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accused or the victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   

100. THE INFORMATION
     

7. You have a copy of the information with you, and I will now read the same to you:
   

"... [read from the information]...."

4. THE MAIN ISSUES
   

8. In this case, as assessors and judges of fact, each of you will have to answer the following questions:
   
   • (i) Did the accused, on 8 December 2012, at Nakorovatu Village, Naitasiri in the Central Division, wilfully and unlawfully set fire to the complainant's dwelling house?
     
   • (ii) Did the accused, on 12 December 2012, at Vunidawa Police Station in the Central Division, escape from lawful custody?
     

5. THE OFFENCES AND THEIR ELEMENTS
   

9. Count No. 1 involved the offence of "arson", contrary to section 362(a) of the Crimes Decree 2009. For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused

(ii) wilfully and unlawfully

(iii) set fire to
(iv) any building (whether completed or not)

10. It must be shown that the accused wilfully set fire to the building. In other words, it must be shown by the prosecution, beyond reasonable doubt that, the accused intended to set fire to the building ie. he deliberately set fire to the building. His intention could be inferred from his actions, words, conduct and the surrounding circumstances. In addition to the above, it must be proven by the prosecution, beyond reasonable doubt that, the accused had no legal justification or excuse, to setting fire to the building.

11. Count No. 2 involved the offence of "escaping from lawful custody", contrary to section 196 of the Crimes Decree 2009. For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused

(ii) being in lawful custody

(iii) escapes
(iv) from such lawful custody

12. The key phrase in the offence is that, "the accused must be in lawful custody", that is, he had been arrested and contained in custody, for the purpose of a criminal offence investigation. He must be in the custody of a police officer, who is part of the police investigation. If he leaves the police's custody without any permission, then he has escaped from such custody.

13. Remember, there are two counts in the information. You must consider each of them separately, in the light of the total evidence presented.

F. THE PROSECUTION'S CASE
14. The prosecution case were as follows. On 8 December 2012, the accused was 35 years old. The complainant was 51 years old, married with three children aged 12 years, 8 years and 9 months old. The family had a two bedroom house, which was furnished, and the property including its belongings, were worth approximately $21,000. On the night of the incident, the family were not in their house. They were elsewhere. However, the complainant (PW1) was sleeping in his brother's house, a few meters away from his house.

15. According to the prosecution, some of the complainant's relatives were not happy about his alleged dealing with some of their Mataqali land. They planned to burn his house. According to the prosecution, the accused heard the grumblings and took it upon himself to burn the complainant's house. On 8 December 2012, after 8 pm, he took a tin filled with diesel and pieces of cloth attached to it to the complainant's house. He placed the same underneath the complainant's house's main door. He went away and came back later. He smoked a cigarette and later threw the lighted butt to where the filled diesel tin was. A fire started, and it quickly spread to the other parts of the house. The accused immediately left the crime scene.

16. Some of the villagers saw the complainant's house on fire. A while later, the complainant's house and its belongings were burnt to the ground. The matter was reported to the police. An investigation was carried out. Accused surrendered himself to Vunidawa Police Station on 12 December 2012. He was arrested immediately. However, according to prosecution, he escaped from the station later. He was re-arrested at Nausori on 17 December 2012. He was later charged for arson and escaping from lawful custody. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.

G. THE ACCUSED'S CASE:
17. On 27 March 2015, the first day of the trial proper, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to the charge. In other words, he denied the allegations against him. When a prima facie case was found against him at the end of the prosecution's case, he choose to give sworn evidence and called a witness, in his defence. That was his right.

18. The accused's case was simple. On oath, he denied setting fire to the complainant's house, at the material time. He also denied escaping from lawful custody on 12 December 2012. On his alleged confessions in his police caution interview statements [Prosecution Exhibit No. 1(a) and 1(b)] and [Prosecution Exhibit No. 3(a) and 3(b)]; and Charge Statements [Prosecution Exhibit 2(a) and 2(b)], the accused said he was threatened by the police to admit the offences. He asks you to strike the above confessions out because he did not give the same voluntarily, and he did not do so out of his own free will.

19. Because of the above, the accused is asking you, as assessors and judges of fact, to find him not guilty as charged. That was the case for the defence.

H. ANALYSIS OF THE EVIDENCE

(a) Case Against the Accused:

20. On count no. 1 [arson], the State's case against the accused is fundamentally based on his alleged confessions in his police caution interview statements [Prosecution Exhibit 1(a) – hand written version; and 1(b) – typed version], and charge statements [Prosecution Exhibit No. 2(a) – hand written version; and 2(b) – typed version]. You will have to read and understand these statements properly, because they are the heart of the prosecution's case. The State's case on count no. 1 stands or falls on whether or not, you accept these confessions. We will discuss them later.

21. On count no. 2 [escaping from lawful custody], the State's case against the accused is fundamentally based on his alleged confession in his police caution interview statements [Prosecution Exhibit 3(a) – hand written version; and 3(b) – typed version]. You will have to read and understand these statements, because they are the heart of the prosecution's case on count no. 2. If you accept the same, the State's case stands on count no. 2. If you don't, the State's case falls. We will discuss them later.

(b) Count No. 1 [arson]: Prosecution Exhibit No. 1(a) and 1(b) – Caution Interview Statements

22. I will refer to Prosecution Exhibit No. 1(b), because it's the typed version. From questions and answers 24 to 46, the accused admitted to police how he burned the complainant's house and its belonging down, at the material time. He admitted getting a tin filled with diesel and pieces of cloth, put the same under the complainant's main door, and lit the same with a lighted cigarette butt. He admitted the house caught fire as a result, and he was incapable of putting the same out. You must read the above questions and answers carefully because it explains the accused's role in count no. 1.

(c) Count No. 1 [arson]: Prosecution Exhibit No. 2(a) and 2(b): Charge Statements

23. I will refer to Prosecution Exhibit No. 2(b), because it is the typed version. In question and answer 8, the accused admitted count no. 1 as follows, "...I wish to say that I did admitted to the charge put on me as I am the one lit on the house of Kinijoji Ranatora of Nakorovatu Village, Naitasiri on 8/12/12..."

(d) Count No. 2 [escaping from lawful custody]: Prosecution Exhibit No. 3(a) and 3(b): Caution Interview Statements:

24. I will refer to Prosecution Exhibit No. 3(b) because it is the typed version. From questions and answers 11 to 20, the accused admitted he escaped from Vunidawa Police Station on 12 December 2012.

(e) Directions on the law when considering the above alleged confessions:

25. In considering the above alleged confessions, I must, as a matter of law, direct you as follows. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact - is strong evidence against its maker. However, before you can accept a confession, you must be satisfied beyond reasonable that it was given voluntarily by its maker. The prosecution must satisfy you beyond reasonable doubt that the accused gave his statements voluntarily, that is, he gave his statements out of his own free will. Evidence that the accused had been assaulted, threatened or unfairly induced into giving those statements, will negate free will, and as judges of fact, you are entitled to disregard them. However, if you are satisfied beyond reasonable doubt, so that you are sure, that the accused gave those statements voluntarily and they were the truth, as judges of fact, you are entitled to rely on them for or against the accused.

26. In this case, the voluntariness of the above alleged confessions were disputed by the parties. The defence argued that the police threatened to kill him if he didn't confess to the allegations. The accused said they even threatened to take him to the military camp in Nabua to be tortured if he did not confess. He said, the police also assaulted his right eye again. He said, he was so frightened that he admitted the offences. He said, he did so involuntarily and not out of his own free will. He asks you to disregard the above alleged confessions because he did not give them voluntarily.

27. The State, on the other hand, argued through its witnesses that, the police did not assault, threaten or made promises to the accused, while he was in their custody. They said, the accused was given his legal rights, formally cautioned and given the standard breaks when interviewed and formally charged by police. They said, the accused formally signed his interview and charge statements, and the police counter-signed them. They said, the accused never complained to the Magistrate Court or the High Court, on his first appearance, of any police threats or misbehavior. They said, the accused gave his statements voluntarily and out of his own free will.

28. On which version of events to accept on the voluntariness of the accused's alleged confessions is a matter entirely for you. If you accept the prosecution's version of events, then you must find the accused guilty as charged on all counts. If you do not accept the prosecution's version of events, then you must find the accused not guilty as charged on all counts.

(f) The Accused's Evidence:

29. On count no. 1, the accused, denied ever setting fire to the complainant's dwelling house. On count no. 2, he admitted he asked police officers Sauturaga to have a smoke. He admitted, after having a smoke, he left Vunidawa Police Station without any police permission.

(g) Considering All the Evidence Together:

30. You will have to consider all the evidence together before you reach a decision on the guilt or otherwise of the accused.

I. SUMMARY
31. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused's guilt, you must find him not guilty as charged.

32. Your possible opinion are as follows:
    

(i) Count No. 1	Arson:	Guilty or Not Guilty
(ii) Count No. 2	Escape from Lawful Custody:	Guilty or Not Guilty

33. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.

Solicitor for the Accused : Legal Aid Commission, Suva.