State v Qio - Summing up [2016] FJHC 487; HAC145.2014S (13 May 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 145 OF 2014S

STATE

vs

ERONI QIO

Counsels : Ms. S. Navia and Ms. S. Lodhia for State
Mr. I. Romanu for Accused
Hearings : 10 and 11 May, 2016
Summing Up : 13 May, 2016

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 so that you are not sure 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 victims. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   

100. THE INFORMATION

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

“... [read from the information]....”

4. THE MAIN ISSUE

8. In this case, as assessors and judges of fact, each of you will have to answer the following question:
   • (i) Did the accused, on 11 March 2014, at Mulomulo Place, Nakasi in the Central Division, in company with others, steal the complainant’s properties as itemized in the information, and before such stealing, use force on the complainant?
     

5. THE OFFENCE AND IT’S ELEMENTS

9. The accused was charged with “aggravated robbery”, contrary to section 311(1)(a) of the Crimes Decree 2009. It was alleged that on 11 March 2014, at Mulomulo Place, Nakasi in the Central Division, he in company with others, stole the complainant’s properties worth $14,315.00, and before such theft used force on the complainant. For the accused to be found guilty, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused,

(ii) in company with one or more persons,

(iii) steals,
(iv) the complainant’s property or properties, and
(v) before the theft,
(vi) uses force or threatens to use force,
(vii) on another person,
(viii) with intent to commit theft.

10. “Stealing” is the act of taking away someone’s property or properties without his permission, and with an intention to permanently deprive him of the ownership of that property or properties. “Force” means “any type of force, whether or not done physically or verbally, for example, beating someone with a stick or threatening to do the same”.
    
11. Before stealing the complainant’s properties, the accused, in company with one or more persons, must use force or threaten to use force to subdue the complainant or others’ resistance, and at the time, had the intention to steal. For example, I and my friend saw you withdrawing $1,000 cash from an ANZ Bank ATM machine. I and my friend immediately came to you, told you to hand over the $1,000 cash to me or I will punch you in the face. You refused, I punched you in the face and stole your $1,000 cash. That was “aggravated robbery”.
    
12. You will notice in the information that the prosecution, in their particulars of offence, began with the phrase, “...ERONI QIO with others,...” The prosecution was alleging that the accused committed the offence as part of a group. In other words, the offence was allegedly committed by the accused, while offending in company with others. To make them jointly liable, the prosecution appeared to be relying on the concept of “complicity and common purpose”.
    
13. “Complicity and common purpose” means as follows. When a person aids, abets, counsels or procures the commission of an offence by another person, he is deemed, as a matter of law, to have committed that offence also, and is punishable accordingly. To aid a person is simply helping a person do something easily. To abet is to help or encourage somebody do something wrong. To counsel is to advise someone to do something. To procure is to obtain something that’s difficult. The prosecution was alleging in this case that the accused aided and abetted the others to commit “aggravated robbery” on the complainant, at the material time. The fact that the State was not charging the “others”, does not affect the validity of the information.
    

F. THE PROSECUTION’S CASE

14. The prosecution’s case were as follows. On 11 March 2014, at about 4 am in the morning, the complainant’s (PW2) family were fast asleep in their house at Mulomulo Place, Nakasi, in the Central Division. The house was a two storey building and the complainant’s family lived in the top storey. The house was a four bedroom house, with a sitting room, dining room, kitchen, bathroom and toilet.
    
15. The complainant (PW2) was sleeping in the master bedroom at the back, her mother and daughter were sleeping in another bedroom, while her father (PW1) was sleeping in the sitting room. PW2 was awoken from her sleep at 4 am on 11 March 2014, when she heard her mother calling out for her. PW2 rushed to her mother’s bedroom and saw 3 masked men threatening her, ransacking the room, and stealing their properties. She managed to turn on the bedroom light, a 4 feet tubelight. She met one of the men at the bedroom door and the two struggled.
    
16. The man put a knife to her head, and they started to push each other. PW2 saw that the man’s left fingers were deformed, while they were struggling against each other. She also saw another masked man attacking her father (PW1) in the sitting room. The man was punching PW1 repeatedly. She went to assist her father. Then she went again to assist her mother. PW2 said, she saw the 3 men in her mother’s room packing jewelleries and other items in a bag. Thereafter, they fled through the main door. Two 2 feet tube lights were turned on in the sitting room.
    
17. PW2 said, she followed the last man out the front door. The man went into the porch and bend down to pick up a bag. There was a 2 feet tube light turned on in the porch. The man’s mask appeared to have fallen off. PW2 said, she saw the man’s face clearly. He was one foot away. PW2 said, this was the same man she struggled with in her mum’s bedroom. According to the prosecution, PW2 identified this man to be the accused. The matter was reported to police.
    
18. An investigation was carried out. The accused was arrested by police on 2 May 2014. He was interviewed by police on 4 and 5 May 2014. He was taken to Nasinu Magistrate Court on 7 May 2014 charged with “Aggravated Robbery” against the complainant. 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.
    

7. THE ACCUSED’S CASE

19. On 10 May 2016, the first day of the trial, 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 “aggravated robbery” allegation against him. When a prima facie case was found against him, at the end of the prosecution’s case, wherein he was put to his defence, he choose to give sworn evidence and called one witness. That was his right.
    
20. The defence case was very simple. On oath, the accused (DW1) denied being part of the four masked men that violently robbed the complainant (PW2) and her family on 11 March 2014. He said, he was at his home at Lot 3 Lagakali Road, Kalabu Housing on 10 March 2014. He was with Opetaia Komai, Joji Rakicake and his family. He said, at 10.30 pm on 10 March 2014, Aminiasi Lealeacagi (DW2), came to his house and invited him to drink grog.
    
21. They went to DW2’s house at Lot 10 Jale Street, Kalabu Housing. According to the accused, he and DW2 drank grog until the early morning. They never went anywhere else that night. The accused said, after drinking grog, he returned to his house. DW2 gave evidence. He confirmed what the accused said.
    
22. Because of the above, the defence is asking you, as assessors and judges of fact, to find the accused not guilty as charged and to acquit him accordingly. That was the case for the defence.
    

8. ANALYSIS OF THE EVIDENCE

(a) Introduction:

23. In analysing the evidence, please bear in mind the directions I gave you in paragraphs 4, 5 and 6 hereof on the burden and standard of proof. In the acceptance and/or rejection of the evidence presented at the trial and your role as assessors, please bear in mind the directions I gave you in paragraphs 1, 2 and 3 hereof. In analysing the evidence, we will first discuss the issue of whether or not the evidence presented at the trial, had established an “aggravated robbery” against the complainant (PW2) and her family.
    
24. If the answer is yes, then we will consider how the State intend to link the crime to the accused, given his sworn denials. Under this heading, we will discuss Nisha Shah’s (PW2) identification of the accused at their home, at the material time. Then we will consider Timoci Kunacei’s (PW3) identification evidence against the accused, when he allegedly fled from the crime scene. Then we will consider the accused’s (DW1) evidence, including his witness’s (DW2) evidence. Then we will look at the need to look at all the evidence.

(b) Has the Prosecution Made you Sure that an “Aggravated Robbery” was Done Against the Shah Family on 11 March 2014?

25. The prosecution called two witnesses to prove the alleged “aggravated robbery” on the complainant (PW2) and her family on 11 March 2014. When analyzing this issue, please bear in mind the elements of the offence as described in paragraph 9, 10, 11, 12 and 13 hereof. Ramzan Shah (PW1), on oath said, he was fast asleep at his house on 11 March 2014 at 4 am. He said, he lived with his daughter Nisha Shah (PW2), his wife and his grand-daughter, and they were all asleep at the time. PW1 said, he was sleeping in the sitting room, and was awoken by noises outside the sitting room. He said, he then turned on the sitting room lights, which were two 2 feet tube lights. The lights lighted the area. PW1 said, he saw 4 masked men, armed with pinch bars and cane knifes forced open the front door and entered the house. He said, the men repeatedly punched him, and three of them proceeded to his wife’s bedroom.
    
26. According to PW1, the men broke the drawers in his wife’s bedroom and stole jewelleries, cash and other things. After again assaulting him, they fled the crime scene. Nisha Shah (PW2), PW1’s daughter, was awoken at the same time, when her mother called out to her. She ran to her mother’s bedroom, turned on the light in the bedroom, and confirmed 3 masked man ransacking the room and packing stolen jewelleries and other items into a bag. PW2 said, she saw four masked men attacking her father and mother, and stealing jewelleries, money and other items from her mother’s room.
    
27. PW1 and PW2’s evidence on the aggravated robbery at their house on 11 March 2014 at 4 am was not disputed by the accused, when he gave evidence. So, as assessors and judges of fact, you may safely conclude that the Shah’s family were violently robbed at their house on 11 March 2014 at 4 am of the properties mentioned in the information. It follows that the next question to ask was: Was the accused part of the 4 masked men that violently robbed the Shah’s family on 11 March 2014?
    

(c) Nisha Shah’s (PW2) Identification Evidence Against the Accused:

28. To connect the above aggravated robbery to the accused, the prosecution relied on Nisha Shah (PW2) identifying him in the house at the material time. PW2 said, when her mother called her at 4 am on 11 March 2014, she awoke from her sleep and rushed to her bedroom. She said she turned on her mother’s bedroom light, which is a 4 feet tube light. The light logically would light the bedroom up. PW2 said, she saw 3 masked men shouting at her mother. They were ransacking the bedroom. PW2 said she met one of the men blocking the bedroom door. He put a knife to her head, and they started to push each other.
    
29. PW2 said the man held her left hand. PW2 said, she noticed the man had deformed fingers in his left hand. Note that when the accused gave evidence, he showed us and admitted that his left fingers were deformed. PW2 said, the man was wearing dark clothings. PW2 said the men were packing jewelleries and other items into a bag. The men then further assaulted PW2’s father before they fled through the front door. PW2 said, she followed the last man out. PW2 said, the sitting room light was turned on. These consisted of two 2 feet tube lights. PW2 said, the last man bend down in the porch to pick up a bag. She said, by this time his mask had fallen off. PW2 said, she saw his face. The 2 feet tube light in the porch was turned on. PW2 said, there was no impediment in the way. PW2 said, when she saw his face, he was one foot away. She said, she observed his face for 25 seconds. She talked to him and he swore at her.
    
30. PW2 said, the man was i-taukei, well-built and taller than her. She said, he was the same man she struggled with at her mum’s bedroom door, and the one with the deformed left fingers. PW2 said, she followed the men to the boundary of their compound. She observed the men fled through a short-cut towards Vavalagi street and onto Bhawani Dayal Primary School. She later called the police. While back at work, PW2 said the police came and saw her. PW2 said, they showed her some photographs and asked her to identify the men who came to her house on 11 March 2014 at 4 am. PW2 said, she saw the photos and picked the man who came to her house on 11 March 2014. PW2 said, the man was in the courtroom. She pointed out the accused as one of the men who came to her house on 11 March 2014.
    
31. In assessing the quality of PW2’s identification evidence against the accused, I must direct you as follows. First, whenever the case against the accused depends wholly or substantially on the correctness of one identification of the accused which the defence may alleged to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification, because an honest and convincing witness may be mistaken. Second, you must carefully examine the circumstances in which the identification was made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way? Had the witness ever seen the accused before? How often? Was there any special reason for remembering the accuseds’ faces? Was a police identification parade done? Third, are there any specific weakness in the identification made. The answers to the above questions will determine the quality of the identification evidence. If the quality is good, you may rely on the identification evidence. If its otherwise, you may reject it.
    
32. In this case, PW2 said she saw the accused’s face for 20 to 25 seconds. PW2 said, she was standing one foot away from him. PW2 said, the 2 feet tube light in the porch was turned on, so was the two 2 feet tube lights in the adjoining sitting room. So, it would appear there was enough light in the area to show both accused and PW2’s face. PW2 said, her observation of the accused’s face was not impeded. PW2 said, this was the first time she saw the accused. PW2 said, a special reason for remembering his face was what he did to her that night and when they struggled against each other near her mum’s room and she noticing his deformed left fingers. PW2 said, no police identification parade was done in this case.
    
33. Are there any special weakness in PW2’s identification evidence? It was unfortunate that a police identification parade was not held. This would certainly test the veracity of PW2’s identification evidence. However, you must take note that the accused refused a police identification parade and also consider his reasons for not doing so. PW2 identified the accused first when the police showed her a number of photographs, and later she identified him in the dock during trial, as one of the persons who came to her house on 11 March 2014. On PW2 identifying the accused through photographs given by police, I must direct you not to look at it in a negative light. The police keep photographs for various reason, and most of it for positive and good reasons. As the accused is presumed innocent until proven guilty beyond reasonable doubt, do not make any negative inferences against the accused as a result of the photos the police showed PW2. If, after considering the above, you think PW2’s identification of the accused was good and of a high quality, you may use it to connect the accused to the crime. If otherwise, you will have to work on the other evidence to connect the accused to the crime. It is a matter entirely for you.
    

(d) Timoci Kunacei’s (PW3) Identification Evidence and Other Evidence Against the Accused:

34. Timoci Kunacei (PW3) said on 11 March 2014, he lived at Lot 1 Vishnu Deo Road, Nakasi, and had worked for Suva Correction Centre for 16 years. PW3 said, on 11 March 2014 at 4.30 am, he was waiting at Bhawani Dayal Secondary School bus stop, with other fellow workers, to go to work. PW3 said Bhawani Dayal Secondary School shared the same compound with Bhawani Dayal Primary School. PW3 said, he heard footsteps behind the bus stop. He looked and saw 4 men in black clothings. PW3 said, he recognized one of them as the accused. He was 5 footsteps away. There was a street light eight footsteps away and it lighted the area. There were other nearby streets lights on the road. PW3 said, he observed the accused’s face for 3 minutes. There was a slight obstruction from a small tree, but the wind bend the same and he saw the accused. PW3 said he called out his name, and he and his mates walked away. PW3 said he recognized the accused with his shaved head and his deformed left fingers. PW3 said, he had seen the accused numerous times before on work related matters. PW3 said, the last time he saw him was in February 2014. PW3 said, he had known the accused for 12 years.
    
35. PW3 said, he and his fellow workers followed the accused and his friends. They went towards Gulam Mohammed Hardware Shop at Nakasi. PW3 said, he saw the accused and his friends cross the road and fled into the Nasinu Cemetery. Near the Hardware shop, PW3 said he found 2 pinch bars and a cane knife wrapped in a plastic jacket left behind by the accused and his friends. He later took the same to Nakasi Police Station.
    
36. When assessing the quality of PW3’s identification of the accused on 11 March 2014 after 4.30 am, please take on board the directions I gave you in paragraph 31 hereof. PW3 said, he observed the accused’s face for 3 minutes. PW3 said, the accused was 5 footsteps away from him. PW3 said, a street light was 8 footsteps away from the accused and it lighted the area. There were other street lights along the road. PW3 said, a small tree partly impeded his view, but when it moved because of the wind, he saw the accused’s face clearly. PW3 said, he knew the accused well and had known him for the previous 12 years. PW3 said, a special reason for remembering his face was because of his shaved head and his deformed left fingers, which he saw that night. No police identification was done. However, in cases of recognition, it was often said that a police identification parade was often prejudicial to the accused because the witness already knew and would pick him out in a parade.
    
37. Are there any specific weaknesses in PW3’s identification of the accused? There appeared to be none, but it must be noted that this was an alleged identification of the accused near a bus stop near the crime scene. It was not an identification at the crime scene, that is, at the Shah’s family house. In any event, if you think the quality of PW3’s identification of the accused was good, you may accept it. If you think otherwise, you may reject it. It is a matter entirely for you.
    
38. If you accept PW3’s identifying the accused at the bus stop on 11 March 2014 after 4.30 am, it could possibly be used as circumstantial evidence against the accused. Circumstantial evidence means that the prosecution is relying upon evidence of various circumstances relating to the crime and the defendant which they say when taken together will lead to the sure conclusion that it was the defendant who committed the crime. The Shah’s family had been violently robbed by 4 masked men at Lot 25 Mulomulo Road, Nakasi, on 11 March 2014 at about 4am. According to PW1 and PW2, pinch bars and cane knifes were used in the robbery. PW2 said, she identified the accused as one of the men who violently robbed them that morning. PW2 said, she saw the man with deformed left fingers. PW3 knew the accused had deformed left fingers and saw the same on the accused on 11 March 2014 after 4.30 am. The accused in court showed everyone that his left fingers were deformed. The bus stop, where PW3 identified the accused, was near to Mulomulo Road where the Shah family lived. PW3, at the time, lived at Vishnu Deo Road, which was near Shah family’s residence. Mulomulo Road is also near the Gulam Mohammed Hardware Shop at Nakasi. PW3 found 2 pinch bars and a cane knife wrapped with a jacket, which allegedly was abandoned by the accused and his friends when they fled to the Nasinu Cemetery.
    
39. You must examine the above evidence with care. Does the evidence lead you to the sure conclusion that the accused committed the offence? Or does it lead you to the sure conclusion that the accused did not commit the crime. If you think the above evidence lead you to the sure conclusion that the accused committed the crime, you may use the same against him. If its otherwise, you may reject the evidence. It is a matter entirely for you.
    

(e) The Accused’s (DW1) Evidence:

40. On oath, the accused denied the allegation against him. He said, he didn’t rob the Shah’s family on 11 March 2014 at 4 am. He admitted he was caution interviewed by police on 4 and 5 May 2014 at Nakasi Police Station. He tendered his police caution interview statements as Defence Exhibit No. 1(A) – the hand written version; and 1(B) – the typed version. You may read these interview notes carefully. However, I repeat the directions I gave you during the trial to disregard and completely take out of your mind questions and answers 25 to 29 and 35 and 36, as they are prejudicial to the accused. These questions and answers are inadmissible evidence and they cannot be used by you during this trial.
    
41. On oath, the accused gave an alibi defence. He said, on 10 March 2014, he was at his home at Lot 3 Lagakali Road, Kalabu Housing. At 10.30 pm, he said, a friend of his, Aminiasi Lealeacagi (DW2) came to his home, and invited him to a grog party. They then left his home to go to DW2’s house at Lot 10 Jale Street, Kalabu Housing. The accused said, they drank grog until the morning. He said, they never left the house. After the grog session, he returned home when it was daylight. In questions and answers 11 to 24 of Defence Exhibit No. 1(B), the accused repeated the above version to the police. The only variation is question and answer 22 where he said he slept over at DW2’s home. DW2 also gave evidence for the accused, and confirmed the above version of events.
    
42. If you find the accused and DW2 as credible witnesses, and you accept their evidence, you will have to find the accused not guilty as charged. If you reject the accused’s alibi defence, you will still have to look at the prosecution’s whole evidence to find out whether or not they had made you sure of the accused’s guilt. The burden to prove the accused’s guilt beyond a reasonable doubt is still on the prosecution, even if you reject the accused’s alibi defence. The defence is entitled to put in their alibi defence, but that does not mean the burden of proof had shifted to them. It never shifts to them. It is always on the prosecution from the start to the end of the trial.
    

(f) Aminiasi Lealeacagi (DW2):

43. Aminiasi Lealeacagi (DW2) gave evidence for the defence. He said, between 10.30 pm on 10 March 2014 to early sunlight on 11 March 2014, he was with the accused and they were drinking grog in his home. If you accept DW2’s evidence, you will have to find the accused not guilty as charged. However, note that he was present in court when the prosecution’s witnesses were giving evidence. He admitted this when cross-examined. He admitted the police told him to go out of the courtroom until he is called as a witness. He also admitted that despite the above, he again came into the courtroom to listen to the evidence. Obviously, this showed he had an interest in the case. He had heard all the witnesses give evidence, and thus was capable of tailoring his evidence to suit the defence. However, the acceptance or otherwise of his evidence is entirely a matter for you.
    

(g) Considering All the Evidence:

44. You will have to consider all the evidence together. You will have to compare and analyse all the evidence together. You will have to decide which piece of evidence you will have to accept and which piece of evidence you will have to reject, given your assessment of the credibility of each of the witnesses. You have watched and heard all the witnesses give evidence in the courtroom. You have watched their demeanour. Who do you think was forthright as a witness? Who do you think was evasive as a witness? Who do you think was the credible witness? Who do you think, from your point of view, was telling the truth? If you think the three prosecution’s witnesses were credible witnesses, and you accept their version of events, then you will have to find the accused guilty as charged. If it’s otherwise, you must find the accused not guilty as charged. It is a matter entirely for you.
    

1. SUMMARY

45. 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.
    
46. Your possible opinions are as follows:

(i) Aggravated Robbery : Guilty or Not Guilty

47. 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 : Tuifagalele Law, Barristers and Solicitors, Suva.