State v Qaqanikorovou [2017] FJHC 203; HAC325.2015 (17 February 2017)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 325 of 2015

[CRIMINAL JURISDICTION]

STATE

V

1. MATIA TUIBUA TUBUMASI QAQANIKOROVOU
2. JIMILAI TAWAKEDRAU DROSE
   

Counsel : Mr. R. Kumar and Mr. E. Samisoni for State

Mr. A. Chand for 1^st Accused

Mr. R. Vananalagi for 2^nd Accused
Dates of Hearing : 07^th – 16^th February 2017
Date of Summing up: 17^th February 2017

SUMMING UP

Madam and gentleman assessors;
It is now my duty to sum up the case to you.

1. I will now direct you on the law that applies in this case. You must accept my directions on law and apply those directions when you evaluate the evidence in this case in order to determine whether the accused is guilty or not guilty. However, if I express my opinion on the evidence or if I appear to do so, you are not bound to accept such opinion. You should ignore any opinion of mine on the facts of this case unless it coincides with your own reasoning. You are the judges of facts.

2. Evidence that you should consider in this case is what the witnesses said from the witness box in this court room, the admitted documents and the exhibits tendered. Your opinion should be based only on the evidence presented inside this court room. If you have heard, read or otherwise come to know anything about this case outside this court room, you must completely disregard such information.
   
3. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. You must approach the evidence with detachment and objectivity and should not be guided by emotion. You should put aside all feelings of sympathy for or prejudice against, the accused or anyone else.
   
4. A few things you heard inside this court room are not evidence. This summing up is not evidence. The arguments, questions and comments by the counsel for the prosecution and the counsel for defence are not evidence. A suggestion made to a witness during cross examination is not evidence unless the witness accepted that suggestion. You heard the opening address and the closing addresses. The arguments and comments made during addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence only if they coincide with your own reasoning.
   
5. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court; how they conducted themselves in the witness box; how they answered the questions during examination-in-chief, cross-examination and re-examination. Applying your day to day life experience and your common sense as representatives of the society, you should decide whether you can believe what each witness said in court. You may decide that the entire evidence of a particular witness can be believed; or you may decide to believe only a part of the evidence and reject the other part; or you may reject the entire evidence of a witness if you decide that the entire evidence of that particular witness is not capable of being believed.
   
6. When you assess the testimony of each witness, you should bear in mind that witnesses may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts and also the difficulties in relating those facts they remember in this environment.
   
7. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence. Inconsistencies may be found within the evidence of a particular witness given in court; between the evidence given in court and previous statements made out of court by the same witness; or between the evidence given by the witnesses. You have to bear in mind that previous statements made out of court are not evidence except for those parts that are put to a witness as inconsistent versions. When a counsel attempts to highlight an inconsistency, only the alleged inconsistent part is put to the witness and that part is all you need to consider when it comes to a previous statement made out of court.
   
8. In dealing with inconsistencies, first you have to be satisfied that in fact there is an inconsistency. If you are satisfied that there is an inconsistency, then you should consider whether that inconsistency is material and relevant or insignificant and irrelevant. If you find the inconsistency to be material and relevant, then you must consider whether there is any explanation given by the witness in question with regard to the inconsistency. If there is no such explanation or if you are not satisfied with the explanation, again you have two options. You may either conclude that that particular witness is generally not to be relied upon or you may decide to disregard only part of his/her evidence which you consider unreliable.
   
9. On the other hand, if you consider the inconsistencies to be insignificant and irrelevant, or if you are satisfied with the explanation given, then you may consider such witness as a reliable witness notwithstanding the inconsistency.
   
10. You may also consider the ability and the opportunity each witness had, to see, hear or perceive in any other way what he/she said in evidence. You may ask yourself whether the evidence of a particular witness seem reliable when compared with other evidence you accept. These are only examples. It is up to you how you assess the evidence and what weight you give to a witness' testimony.
    
11. Based on the evidence you would consider as truthful and reliable, you should decide what facts are proved and what reasonable inferences you can properly draw from those facts. Then you should decide whether the elements of the offences the accused is charged with, have been proved considering those proven facts and the reasonable inferences. I will explain you the elements of the offences in a short while.
    
12. As a matter of law you should remember that the burden of proof always lies on the prosecution. An accused is presumed to be innocent until proven guilty. This means that it is the prosecution who should prove that an accused is guilty and the accused is not required to prove that he is innocent. The prosecution should prove the guilt of the accused beyond reasonable doubt. In order for you to find an accused guilty of a particular offence you must be sure that he is guilty.
    
13. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. If you have a reasonable doubt in respect of any element of a particular offence, as to whether the prosecution has proved that element, then you must find the accused not guilty of that offence.
    
14. After the prosecution case was closed, it was decided not to proceed against the first accused as a result of a legal issue. Please do not assume that the reason to continue the proceedings against the second accused is because I have decided that he is guilty of the three counts. The final decision whether the second accused is guilty or not on each count will be made only after I receive your opinion.
15. This trial is held in the absence of the second accused. According to the Constitution, every accused has the right to be present during his/her trial. However, a trial can be held in the absence of an accused if it appears to the court that the accused had chosen not to attend the trial. Even when an accused chooses not to attend the trial, still the burden remains on the prosecution to prove the case against the accused beyond reasonable doubt and the accused is presumed innocent until proven guilty. Therefore, please remember that you should not draw any inference due to the fact that this trial is conducted in the absence of the second accused.
    
16. You would note in each count it is alleged that the offence was committed with other persons unknown. The prosecution alleges that the second accused had acted together with others to commit the three offences. An offence may be committed by one person acting alone or by more than one person acting together with the same criminal purpose. The accuseds’ agreement to act together need not have been expressed in words. It may be the result of planning or it may be a tacit understanding reached between them on the spur of the moment. Their agreement can be inferred from the circumstances. Those who commit crime together may play different parts to achieve their purpose. In this case, the prosecution must prove that each offence was committed and the second accused acted together with others and took some part in committing each offence.
    
17. There are three counts in the Information. You should bear in mind to consider each count separately. You must not assume that the accused is guilty of the other count just because you find him guilty of one count.
    
18. You will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion where all three of you agree on whether the accused is guilty or not guilty; but it is not necessary.
    
19. Let us now look at the Information.

FIRST COUNT

Statement of Offence

AGGRAVATED ROBBERY: contrary to section 311(1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MATIA TUIBUA TUBAMASI QAQANIKOROVOU and JIMILAI TAWAKEDRAU DROSE together with other persons unknown, on 07 October 2015, at Suva in the Central Division, committed theft of assorted properties belonging to Elizabeth Clayton, amounting to FJ$37,600.00, and immediately before committing theft, used force on Elizabeth Clayton.

SECOND COUNT

Statement of Offence

AGGRAVATED BURGLARY: contrary to section 313(1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MATIA TUIBUA TUBAMASI QAQANIKOROVOU and JIMILAI TAWAKEDRAU DROSE together with other persons unknown, on 07 October 2015, at Walu Bay, Suva in the Central Division entered into the building of Pacific Energy Service Station as trespassers with intent to commit theft therein.

THIRD COUNT

Statement of Offence

THEFT: contrary to section 291(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MATIA TUIBUA TUBAMASI QAQANIKOROVOU and JIMILAI TAWAKEDRAU DROSE together with other persons unknown, on 07 October 2015, at Walu Bay, Suva in the Central Division dishonestly appropriated cash amounting to FJ$110.00, the property of Pacific Energy Service Station with the intention of permanently depriving Pacific Energy Service Station of its property.

20. To prove the offence of aggravated robbery the prosecution must prove the following elements beyond reasonable doubt.
    1. the accused;
    2. committed robbery; and
    100. the robbery was committed in the company of one or more other persons; or had an offensive weapon with him, at the time of robbery.
         
21. The first element involves the identity of the offender. The prosecution should prove beyond reasonable doubt that the second committed the offence.
    
22. A person commits robbery if he immediately before committing theft; or at the time of committing theft; or immediately after committing theft, uses force or threatens to use force on another person with intent to commit theft or to escape from the scene.
    
23. I will explain the elements of the offence of theft when I deal with the third count. Robbery becomes aggravated robbery, if it is committed in company with one or more other persons.
    
24. Accordingly, to prove the first count, the prosecution should prove beyond reasonable doubt that;
    1. offence of robbery was committed at the first prosecution witness’ house on 07^th October 2015 by more than one person who were acting together to achieve a common purpose; and
    2. the second accused acted together with the persons who committed the robbery and played some part to achieve the common purpose.
       
25. In order to decide whether robbery was committed, you have to be satisfied that force was used or there was a threat to use force on the first prosecution witness before, during or after committing theft; with intent to commit theft or to escape from the scene.
    
26. To prove the second count where the offence is aggravated burglary the prosecution should prove the following elements beyond reasonable doubt;
    1. the accused;
    2. committed burglary; and
    100. the burglary was committed in the company of one or more other persons; or had an offensive weapon with him, at the time of burglary.
         
27. Again, the first element involves the identity of the offender. The prosecution should prove beyond reasonable doubt that the second accused committed the offence.
    
28. A person commits burglary if he enters or remains in a building as a trespasser with intent to commit theft of a particular item of property in the building.
    
29. Burglary becomes aggravated burglary, if it is committed in company with one or more other persons.
    
30. Accordingly, to prove the second count, the prosecution should prove beyond reasonable doubt that;
    1. the offence of burglary was committed at the Pacific Energy Service station at Walu Bay on 07^th October 2015 by more than one person who were acting together to achieve a common purpose; and
    2. the second accused acted together with the persons who committed the burglary and played some part to achieve the common purpose.
       
31. To prove the third count, the prosecution should prove beyond reasonable doubt that;
    1. the accused;
    2. dishonestly;
    100. appropriated the property belonging to another;
    4. with the intention of permanently depriving the other of that property.
       
32. Again, the first element involves the identity of the offender. The prosecution should prove beyond reasonable doubt that the second accused committed the offence.
    
33. The element, ‘dishonestly’ is about the state of mind of the accused. So is the element, ‘intention to permanently deprive’. Inferences may be drawn from the conduct of the accused, with regard to an accused’s state of the mind.
    
34. ‘Appropriation of property’ means taking possession or control of the property without the consent of the person to whom it belongs. In law, property belongs to a person if that person has possession or control of the property.
    
35. To prove the third count, the prosecution should prove beyond reasonable doubt;
    1. the offence of theft was committed at the Pacific Energy Service station at Walu Bay on 07^th October 2015; and
    2. the second accused acted together with the persons who committed theft and played some part to achieve the common purpose.
       

Summary of the evidence

36. First witness for the prosecution was one Elizabeth Clayton. She said she went to sleep around 10pm on 6^th October 2015. She heard a thud from the next room and she got up from the bed and opened the door. She saw a dark, tall, thick figure with a dark bulky coat who was gloved and hooded. There was another person behind him. She said the first person who was tall pushed her onto the floor and held her down. She said a pinch bar and a knife were held over her. She did not scream as she was in shock. She said they put a hand over her mouth and told her not to scream. She said she cooperated with them. Then they asked her “where is the money” and started yelling at her. She showed her bag. She said they took her yellow purse out and it had $30, her credit cards and her licence. Then they saw the golden diamond ring she was wearing and they forced it off her finger. She said that ring was at least AUD$20,000 in 1977. She said the light was on all the time as they turned the light on when they came inside the room.
    
37. She said they asked for the car key and she told them that the key is inside the car. She said they opened the gate using the remote. She said they all rushed out of the house and got into the car. She assumed that there was someone in the car already. She said they took her HP Laptop, and took watches and cameras. She said the laptop was grey in colour. She identified the laptop which was shown to her as the laptop that was stolen on that night. This was tendered as PE 1. She said they left around 10 past 3 in the morning and they were in her house for about 10 to 20 minutes. The registration number of her car is EV 735. After they left in her car, she again saw the car around 10 am the same morning near a village at the bottom of Lady Narayan Drive when the police took her there. She said the back window was broken and she found some metal pieces that were welded together and some stones inside the car. When she was shown a vehicle key, she identified it as the key of her vehicle which was taken that night. It was tendered as PE 2.
    
38. She was shown a jacket and she said, she cannot exactly say that it was the one she saw that morning but it was like that. Then she was shown a pinch bar where she said the size of it is the same as the pinch bar they had. The jacket and the pinch bar were marked for identification as MFI 1 and MFI 2 respectively. She said she could not see the faces of the three individuals who fled from her house because the faces were covered. She said one person was covering the face with the hood of his jacket and the other two had balaclavas.
    
39. During cross examination she said when she saw the jacket, it appeared dark because the light was behind the man but she remembered that it was a bulky jacket. She agreed that she cannot exactly say that the jacket and the pinch bar shown to her during evidence in chief were the same jacket and the same pinch bar she saw that morning.
    
40. Second prosecution witness was Meli Mafi. He said Jimilai Drose was his neighbour. He said he met Jimilai Drose when he returned from work on 7^th October 2015 around 7pm and 8pm. He said Jimilai Drose asked him whether he can unlock a laptop and he told Jimilai that he cannot but his IT guy in office can. He said Jimilai Drose gave him 2 or 3 laptops and he took them home. He said the next morning, he took one laptop to his office. Around 10 or 11 in the morning, police officers from Raiwaqa Police Station came to his office and confiscated the laptop. When PE 1 was shown to him he said that is probably one of the laptops that were taken by the police.
    
41. During the cross examination on behalf of the first accused, he admitted that the police came around 9am and 10am to his office, and he had told the police that the grey one was at home. During cross examination on behalf of the second accused he said ‘no’ when he was asked whether he can say for certain that the laptop shown to him was the laptop given to him by Jimilai Drose. During re-examination, he said the police seized the grey laptop which he left at home.
    
42. Third prosecution witness was Tomasi Rasuni. He said he was working at the Pacific Energy Service station at Walu Bay at around 3am on 7^th October 2015. He was the bowser attendant. At that time only he and the cashier were there. He said there was a loud bang on the door around 3am. When he heard the bang he ran to the tearoom with the cashier. In the tea room the cashier hid under the table and he stood at the corner and was watching the CCTV screen through the office window. He said he saw two men enter the shop. One went to the cash register booth and the other one came to the tea room where he was standing. He said the person who came to the tea room was quite tall, his face was covered and he was holding on to a pinch bar. He said this person was wearing a jacket and pointed at MFI 1 which was on the clerks table. Then MFI 1 was shown to the witness and he identified that it is the same jacket he saw that morning. He said he is quite sure that it is the same jacket because he saw the person while trying to open the office door. He identified the pinch bar marked for identification as MFI 2 as a pinch bar similar to the one he saw that morning. He said the person who was trying to open the office door saw him and that person swung the pinch bar over his head. He said the other person who went to the cash register took money from the cash register. He said then they got into a car and drove off.
    
43. He admitted that the fact that one of the robbers was wearing a jacket and the fact that the robber swung the pinch bar at him are not mentioned in the statement he gave the police. He agreed that there may be many other jackets of the same colour, same make and similar style as the jacket he pointed out during his evidence. He agreed that there is a possibility for him to be mistaken about the identity of the jacket. He also said that the pinch bar he saw that morning may not be the same pinch bar he identified in court.
    
44. During the cross examination on behalf of the second accused he said, you have to enter the tea room first in order to enter the office. He said the CCTV monitor was inside the office and he could see the monitor because the door to the office room had a glass portion. He said he did not tell the police that the pinch bar was swung at him because he was in shock at that time. He said ‘no’ when he was asked whether someone told him to come and tell the court that one person had swung the pinch bar.
    
45. Corporal Vaione Koroi gave evidence next. He said, around 3am on 7^th October 2015 he was on his way to drop some police officers and he signaled the vehicle registration number EV 735 to stop. He then followed the said vehicle since it did not stop. He said the people sitting at the back of the vehicle broke the rear glass and threw something out at his vehicle near the Australian Embassy but he kept on chasing the vehicle. Then the said vehicle stopped and about four people came out of the vehicle. They then threw stones at his vehicle. He said it was too dark and he cannot describe them. After a while the four individuals got into the vehicle again and drove off. He said he followed that vehicle up to Wairua where the said vehicle was abandoned. Thereafter he came to the Pacific Energy, Walu Bay Mobil bowser because he came to know that there was a robbery there.
    
46. Next witness was Sivoki Matainanui. He said he is living at Delainavesi since 1993. On 7^th October 2015 between 4am and 5am he went to his uncle’s house at Nadonumai. When he reached his father’s residence, he heard a commotion inside his uncle’s house. He flashed his torch inside the uncle’s house and then the people inside started running away. Then he went inside the house. He saw two bags lying inside the house. When he opened one of the bags he saw that there was $30 cash. Then he heard someone calling him from behind. He recognized from the voice that it was ‘Junior’. He said Junior’s actual name is Junior Tubamasi. When Junior spoke to him, Jimilai then spoke to Junior and told Junior for them to leave. He said this is the same Jimilai Drose of Delainavesi. He said he knows Jimilai because Jimilai is his cousin. He said he had known Junior Tubamasi because they are the owners of the land he’s residing in. He said Junior Tubamasi had been residing at Delainavesi since childhood. He said he did not see the faces and he only heard the voices. He said Junior Tubamasi is not present in court. He said that Junior Tubamasi is also known by the name Matia. He said Junior Tubamasi told him to close the bag because it belongs to another boy, so he closed the bag and then he told them to leave. He said, Matia he described, is not in court today.
    
47. During cross examination, he said there are three people living in Nadonumai who have the name ‘Matia’ as their first name. He agreed that two of them are known as ‘Matia Tubamasi’. He also agreed that there are two people known as ‘Junior Tubamasi’.
    
48. Next witness was IP Daiana Taqiri. She said, on 9^th October 2015 around 3.30pm she conducted a search with three other officers at Matia’s house in Nadonumai. She said they seized certain items from that house and those items were entered in a search list. She tendered the search list as PE 3. She also identified the jacket which was marked for identification as MFI 1 as the jacket she seized during the search. The jacket was tendered as PE 4. She identified the pinch bar marked for identification as the pinch bar which was seized that day. It was tendered as PE 5. In the same way she tendered a silver mask as PE 6, a tablet as PE 7, a pair of black gloves as PE 8, a Sony Ericson phone as PE 9, a Motorola mobile phone as PE 10 as items she seized that day. She identified the first accused as the person they arrested at the Logani, Sebi Road settlement.
    
49. Inspector Epeli Vamosi gave evidence next. He said on 9^th October 2015 he took part in an operation where a raid was conducted at Delainavesi. He said this raid was conducted at Jimilai Drose’s house. He said he stayed back inside the vehicle near Ballantine Memorial School while the other officers went to check Jimilai Drose’s residence. He said the team came back to the vehicles within 15 to 20 minutes with Jimilai Drose. Then they took Jimilai Drose to the Raiwaqa Police station where Jimilai Drose was locked in the cell. He said Jimilai Drose and himself travelled in the same vehicle to the Raiwaqa Police station. He said Jimilai Drose was not threatened and no verbal or physical abuse was done to him while he was in the car. He also said that he did not see any signs of physical abuse on Jimilai Drose when he saw Jimilai Drose inside the cell.
    
50. During cross examination on behalf of the second accused, he denied the suggestion that he assaulted Jimilai Drose with other police officers on 9^th October, 2015. He also denied swearing at Jimilai Drose.
    
51. DC 2227 Remesio Raikoso gave evidence next. He said he arrested Jimilai Drose on 9^th October 2015 at Nadonumai, Lami. He said about 11 officers accompanied him for the arrest. He went with two other police officers to Jimilai Drose’s house. He went inside Jimilai Drose’s bedroom and he saw Jimilai Drose’s leg underneath the bed. He tried to pull the leg using both hands but he was not successful. Then he called the other two officers for assistance. The two officers managed to pull Jimilai Drose out from the leg when he pushed the bed. He said he informed Jimilai Drose the reason for the arrest and also explained the right to remain silent. He said Jimilai Drose resisted when they tried to take him outside. Then another officer handcuffed Jimilai Drose on his instructions. Then they escorted Jimilai Drose to the police vehicle who was then transported to Suva. He said none of the police officers including him abused Jimilai Drose physically or verbally and they did not threaten him.
    
52. During the cross examination on behalf of the second accused, he said only three officers went inside the house and other officers remained outside. He denied that the second accused was assaulted during the time of arrest. He also denied threatening the second accused during arrest.
    
53. Next witness was DC Joape Qio. He was the charging officer who formally charged Jimilai Drose. He said during the time the charge statement was recorded he did not notice any signs of physical abuse on Jimilai Drose. He said Jimilai Drose cooperated during the charging process.
    
54. Next witness was SC Tukana. He said on 9^th October 2015 he escorted Jimilai Drose from Delainavesi to Raiwaqa Police station. He travelled in the same vehicle with the accused. He said the journey from Delainavesi to Raiwaqa Police station took about 10 minutes and he handed Jimilai Drose over to the charge room at the Raiwaqa Police station. He said during the time he handled Jimilai Drose he did not verbally or physically abuse Jimilai Drose and he did not witness any other police officers verbally or physically abuse Jimilai Drose.
    
55. Next witness was DC Semi Daunitutu. He said he was the witnessing officer during the cautioned interview of Jimilai Drose. He said the interviewing officer was DC Luke of Valelevu Police station and at the moment DC Luke is serving in a mission overseas. He tendered the cautioned interview of Jimilai Drose as PE 11. He identified PE 2 as the key shown to the accused on question and answer 134. He also identified PE 1 as one of the laptops shown to the accused on question and answer 140. He identified PE 4 as the jacket shown to the accused on question and answer 142. He also recognized PE 6 as the mask shown to the accused on question and answer 145.
    
56. During cross examination on behalf of the second accused he denied the suggestion that he was not present during the cautioned interview of the second accused. He admitted that his name is not mentioned from entry number 45 up to 83 in the station diary relevant to 9^th October 2015 of Raiwaqa Police station. His name was mentioned in station diary entry number 84 where it said that he brought the second accused after the re-construction. He pointed out that entry number 68 has a cross reference with entry 84 and said, when an investigation is conducted by a team of officers, the name of the officer which is entered in the diary depends on the diary keeper. He also agreed that his name does not appear in the entries relevant to 10^th October 2015. But he maintained that he was present during the cautioned interview of the second accused. He agreed with the suggestion that the diary keeper may have missed to enter his name. The relevant station diary was tendered as 2 DE 1.
    
57. He was shown a medical report of the second accused issued on 27^th October 2015. It was pointed out that according to the said report the second accused had informed the doctor that he was assaulted by police officers, was hit on the back by a police baton and that the incident had occurred two weeks ago. According to the said medical report bruises were noted on the upper back region. The medical report was tendered as 2DE 2. He maintained that there was no injury at the time the investigation was conducted.
    
58. During re-examination he said he did not see the second accused being assaulted during the cautioned interview and he did not physically abuse or assault the second accused. He said the second accused did not complain to him of any bodily pain before or during the interview.
    
59. Final witness for the prosecution was DC Vilikesa Baledruma. He said on 9^th October 2015 he took part in a raid which was conducted at Jimilai Drose’s house at Delainavesi. He said after the police team secured both doors of the house, he stood at the back. After Jimilai Drose was arrested, DC Remesio and two other police officers escorted Jimilai Drose to the police vehicle. Then the accused was escorted to Raiwaqa Police station. He said he did not see any physical abuse or verbal abuse being done to Jimilai Drose. He said, he did not physically or verbally abuse Jimilai Drose and he did not threaten Jimilai Drose.
    
60. During cross examination on behalf of the second accused he denied that the second accused was assaulted by the police officers at the time the second accused was arrested.
    
61. During re-examination, he said he did not observe any marks of physical violence on the second accused when he handed the accused over to the charge room at Raiwaqa Police station.
    
62. That is a summary of the evidence given by the witnesses. Please remember that I have only referred to the evidence which I consider important to explain the case and the applicable legal principles to you. If I did not refer to certain evidence which you consider important, you should still consider that evidence and give it such weight you may think fit. As I have already explained, which evidence you would accept and do not accept is a matter for you to decide.
    
63. In this case, the parties agreed to tender two documents with consent and the two documents are before you as agreed documents. One document is the statement given by Iosefina Qovu to the police and the other document is a medical report of the second accused issued on 27^th October 2015. As these two documents are agreed documents, you should consider that the fact that those documents were made in the manner that is stated in each document is proven beyond reasonable doubt. However, what weight you give to the contents in those documents is a matter for you to decide.
    
64. The prosecution relies on circumstantial evidence and the confessions alleged to have been made by the second accused to prove the charges against the second accused.
    
65. The prosecution tendered the document PE 11 as the cautioned interview statement of the second accused. The prosecution says that the answers recorded in PE 11 were given by the second accused voluntarily. The second accused challenges the voluntariness of the said cautioned interview statement saying that it was obtained by oppression. The second accused says that he was assaulted by the police on 09^th October 2015 and he was assaulted with a police baton. The second accused also says that he was threatened and verbally abused by the police.
    
66. This is how you should deal with the cautioned interview stat tendered as PE 11.E 11.
    1. You should first decide whether the second accused made the statements recordePE 11? If you are not sure sure that he made it, the matter ends there. You should disregard the cautioned interview stat tendered as PE 11.E 11.
    2. If you are sure that thond accused made it, then you should consider whether the statement was made voluntarily. Yly. You have to be sure that the statement was not obtained by oppression and it was not obtained in an unfair manner. If you are not sure that the statement was made voluntarily, then you should disregard it.
    100. If you are satisfied that the statement was made voluntarily, then you should decide whether you are sure that the statement is true. This means that you should consider PE 11 as you would consider the evidence given by a witness. You may accept the entire statement to be true or a part of it is true or you may consider the entire statement is not true. You may rely only on what you would consider to be true.
         
67. Circumstantial evidence is evidence of various circumstances that may lead to the conclusion that an accused committed a particular offence, when taken together. It must not be mere speculation or guesswork. It is not sufficient that the proved circumstances are merely consistent with the accused person’s guilt. To find an accused guilty on circumstantial evidence, you must be satisfied beyond reasonable doubt that the inference of guilt is the only rational conclusion to be drawn from the circumstances you consider as proven when taken together. Before you draw any inference you must first be satisfied beyond reasonable doubt that the evidence given by witnesses relating to the circumstances is credible and truthful.
    
68. It is important that you examine circumstantial evidence with care as with all evidence and consider whether the evidence upon which the prosecution relies on to prove its case is reliable and whether it does prove the guilt of the accused, or whether on the other hand it reveals any other circumstances which cast doubt upon or destroy the prosecution case.
    
69. Remember that you should first decide on the credibility and reliability of the witnesses who gave evidence in this case and accordingly decide what facts are proven and what reasonable inferences you can draw from those proven facts. Then you should consider whether the elements of each offence have been proven beyond reasonable doubt. You should take into account the directions I have given where relevant, in deciding whether the prosecution has proved all the elements in each offence.
    
70. May I again remind you that even though an accused person is absent during this trial, the burden of proving the case beyond reasonable doubt remains on the prosecution. You should not draw any inference based on the absence of the accused.
    
71. Any re-directions?
    
72. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charges against the accused. You may peruse the exhibits if you wish to do so. When you have reached your separate opinion you will come back to court and you will be asked to state your opinion.
    
73. Your possible opinion should be as follows;

1^st count (aggravated robbery) – guilty or not guilty
2^nd count (aggravated burglary) – guilty or not guilty
3^rd count (theft) – guilty or not guilty

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the 1^st Accused : Legal Aid Commission, Suva.
Solicitor for the 2^nd Accused : R. Vananalagi & Associates