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State v Mataunidilo - Summing Up [2018] FJHC 182; HAC228.2016 (15 March 2018)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 228 of 2016

[CRIMINAL JURISDICTION]


STATE

V

KALOKALO MATAUNIDILO


Counsel : Ms. W. Elo for State

Ms. A. Prakash and Ms. E. Radrole for Accused
Hearing on : 05th March – 15th March 2018
Summing up on : 15th March 2018


SUMMING UP


Madam and gentleman assessors;

  1. It is now my duty to sum up the case to you. 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. 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 in this case is what the witnesses said from the witness box inside this court room and the exhibits tendered. As I have told you in my opening address, 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 disregard that information.
  3. 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 lawyers for the prosecution and the defence are not evidence. A suggestion made by a lawyer during the cross examination of a witness is not evidence unless the witness accepted that suggestion. The arguments and comments made by lawyers in their addresses are not evidence. You may take into account those arguments and comments when you evaluate the evidence only to the extent you would consider appropriate.
  4. A statement made by a witness to the police can only be used during cross-examination to highlight inconsistencies. That is, to show that the relevant witness on a previous occasion had said something different to what he/she said in court. You have to bear in mind that a statement made by a witness out of court is not evidence. However, if a witness admits that a certain portion in the statement made to the police is true, then that portion of the statement becomes part of the evidence.
  5. 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. Your emotions should not influence your decision.
  6. 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, their behavior when they testified and how they responded during cross-examination. Applying your day to day life experience and your common sense as representatives of the society, consider the evidence of each witness and decide how much of it you believe. You may believe all, part or none of any witness’ evidence.
  7. When you assess the testimony of a witness, you should bear in mind that a witness 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. Sometimes we honestly forget things or make mistakes regarding what we remember.
  8. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence. That is, whether the witness has not maintained the same position and has given different versions with regard to the same issue. You may also find inconsistencies between the evidence given by different witnesses. This is how you should deal with inconsistencies. You should first decide whether that inconsistency is significant. That is, whether that inconsistency is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. If there is an acceptable explanation for the inconsistency, you may conclude that the underlying reliability of the account is unaffected. You may perhaps think it obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you might not expect every detail to be the same from one account to the next.
  9. However, if there is no acceptable explanation for the inconsistency which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question. To what extent such inconsistencies in the evidence given by a witness influence your judgment on the reliability of the account given by the witness is a matter for you to decide.
  10. Therefore, if there is an inconsistency that is significant, it might lead you to conclude that the witness is generally not to be relied upon; or, that only a part of the witness’ evidence is inaccurate; or you may accept the reason the witness provided for the inconsistency and consider him/her to be reliable as a witness.
  11. You may also consider the ability and the opportunity a witness had, to see, hear or perceive in any other way what the witness said in evidence. You may ask yourself whether the evidence of a 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.
  12. Based on the evidence you decide to accept, you may decide that certain facts are proved. You may also draw inferences based on those facts you consider as directly proved. You should decide what happened in this case, taking into account those proved facts and reasonable inferences. However, when you draw an inference you should bear in mind that that inference is the only reasonable inference to draw from the proved facts. If there is a reasonable inference to draw against the accused as well as one in his favour based on the same set of proved facts, then you should not draw the adverse inference.
  13. 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 an accused beyond reasonable doubt in order for you to find him guilty. You must be sure of the accused person’s guilt.
  14. In order to prove that an accused is guilty, the prosecution should prove all the elements of the offence against the accused beyond reasonable doubt. If you have a reasonable doubt on whether the prosecution has proved a particular element of the offence against the accused, then you must find the accused not guilty. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. I will explain you the elements of the offence in a short while.
  15. You are not required to decide every point the lawyers in this case have raised. You should only deal with the offences the accused is charged with and matters that will enable you to decide whether or not the charges are proved against the accused.
  16. 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. But it is not necessary.
  17. Let us now look at the Information. The Director of Public Prosecutions has charged the accused for the following offences;

FIRST COUNT

Statement of Offence

AGGRAVATED ROBBERY: contrary to section 311 (1) of the Crimes Act 2009.


Particulars of Offence

KALOKALO MATAUNIDILO together with 4 other persons unknown, on 25 June 2016, at Samabula, Suva in the Central Division, committed theft of assorted properties, namely FJ$500.00, 1 x Alcatel mobile phone worth FJ$250.00, 1 x gold chain worth FJ$700.00 and 1 x Probox Taxi registration number LT4934 worth FJ$18,000.00, to the total value of FJ$19,450.00, belonging to RADHIKASH KAPOOR, and immediately before committing theft, used force on RADHIKASH KAPOOR.


SECOND COUNT

Statement of Offence

AGGRAVATED ROBBERY: contrary to section 311 (1) (a) of the Crimes Act 2009.


Particulars of Offence

KALOKALO MATAUNIDILO together with 4 other persons unknown, on 25 June 2016, at Samabula, Suva in the Central Division, committed theft of assorted properties, namely, 2 x cartons of cigarettes worth FJ$5385.00, 21 x gross BH 20 worth FJ$2272.20, 5 x gross Rothmans 20’s worth FJ$541.00, 4 x gross Rothmans 10’s worth FJ$448.00, 2 x cartons of recharge cards worth FJ$30,000.00, 5 sets of INKK recharge cards worth FJ$7,500.00, 1 set of $11 Vodafone recharge cards worth FJ$5,500.00, 350 x $15 Vodafone recharge cards worth FJ$5250.00, 300 x $10 INKK recharge cards worth FJ$3000.00, 250 x $25 Vodafone recharge cards worth FJ$6250.00, 25 x $20 INKK recharge cards worth FJ$500.00, 23 x $30 INKK recharge cards worth FJ$ 690.00, 300 x $3 Telecards worth FJ$900.00, 150 x $5 Telecards worth FJ$750.00, 70 x $10 Telecards worth FJ$700.00, 70 x $20 Telecards worth FJ$1400.00, 350 x $5 Quick Dial recharge cards worth FJ$1750.00, 100 x $10 Quick Dial recharge cards worth FJ1000.00, 30 x $20 recharge cards worth FJ$600.00 and cash of FJ$5000.00, all to the total value of FJ$79,436.20, belonging to GERALD SEETO, and immediately before committing theft, used force on AKATA KAFOA.


  1. The accused is charged with two counts. However, please remember that you should consider each count separately. That is, you must not assume that the accused is guilty of the other count just because you find him guilty of one count.
  2. On both counts the accused is charged with the offence of aggravated robbery. To prove the offence of aggravated robbery the prosecution must prove the following elements beyond reasonable doubt.
    1. the accused;
    2. committed robbery; and
    1. the robbery was committed in the company of one or more other persons; or at the time of robbery, has an offensive weapon with him.
  3. The first element involves the identity of the offender. The prosecution should prove beyond reasonable doubt that the accused committed the offence and no one else.
  4. 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.
  5. A person commits theft if that person;
    1. dishonestly;
    2. appropriates the property belonging to another;
    1. with the intention of permanently depriving the other of that property.
  6. 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 mind.
  7. ‘Appropriation of property’ means taking possession or control of the property without the consent of the person to whom it belongs. At law, property belongs to a person if that person has possession or control of the property.
  8. Robbery when committed in the company with one or more other persons or if at the time of robbery the accused had an offensive weapon with him, that amounts to aggravated robbery. This is the third element of the offence of aggravated robbery which you are required to consider.
  9. Please remember that an offence may be committed by one person acting alone or by more than one person acting together with the same criminal purpose. The offenders’ 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.
  10. Those who commit crime together may play different parts to achieve their purpose. The prosecution must prove that the accused took some part. On the first count the prosecution case is that about four persons took part in stealing certain items and the taxi the first prosecution witness was driving after using force on the said witness including tying him up and the accused was one of them. On the second count the prosecution case is that about four persons took part in stealing certain items after using force on the second prosecution witness and the accused was one of them.
  11. On each count, if you are sure that the offence of aggravated robbery was committed by more than one person and that the accused acted together with the others to commit that offence and took some part in that offence you should find the accused guilty of the offence of aggravated robbery.

Summary of the evidence

  1. First witness for the prosecution Mr. Radhikash Kapoor said in his evidence that;
    1. On 25/06/16 he was driving his taxi registration number LT4934 through Grantham Road. He was stopped near Damodar City by an i-taukei man and was asked to take that man to Bayview Heights. This i-taukei man was holding two small boxes. After they reached Bayview Heights he was directed towards ‘new settlement’. When he stopped at the round-about and was waiting for the fare looking at the passenger who was counting money to pay for the taxi fare he felt that his engine was switched off. He said another person took the key out and placed a knife on his neck. He was then pulled out of the vehicle. He said he saw around 4 to 5 people. They tied him up including his eyes. Then he was placed on the laps of those who sat on the back seat. They searched him and took all his belongings including his wallet, phone, a gold chain and his wedding ring.
    2. They drove the taxi for a while and then he was put inside the boot. After a while he felt that the taxi stopped and he heard the smashing of a glass and the sound of coins in the boot. Someone was pushing him so that he could not get up. Then the taxi took off again and was moving for about 20 to 30 minutes until it stopped. He heard a door opening and sound of coins. He also heard another car taking off. When he could not hear from anyone around he managed to get out of the boot and to drive the taxi to the Namadi Police Post. Thereafter he was directed to the Nabua Police Station where his statement was recorded.
  2. The second prosecution witness was Akata Kava Kafoa. She said that;
    1. She lives at 19 Helson Street, Samabula with her uncle Gerald Seeto. She used to close her uncle’s business which was located at the Suva Bus Stand, every afternoon. The name of the business was Seeto Kee Limited. On 25/06/16 she closed the shop around 8pm and left for home. When she reached the gate and pressed the remote to open the gate and just as the gate started to move, a gray Probox Taxi approached from behind and parked right behind her car. Three men jumped out of the taxi and came towards her car. One person came near the window next to her and other two were at the two windows behind her, one on each side. Then they started smashing the windows.
    2. An axe hit her window and she raised her right arm to protect her face. She realised that it was a robbery and she shouted “it’s in the back”. Then they all ran to the back and smashed the window at the back. They took one carton of BH10 which contained 50 gross, another carton with loose cigarettes, a black plastic bag containing $1 and $2 coins, a brown paper bag containing notes from $5 up to $100, a plastic bag containing recharge cards, and a white sack containing coins from 5 cents to 50 cents. She said they loaded the items into the Probox. She then ran up her driveway. When she looked back she saw those who took her things get into the taxi and leave.
    1. She then ran back to her car. Her neighbor who was a police officer and a Police Twin Cab then arrived. Thereafter she was asked to go to the Samabula Police Station and her uncle Gerald Seeto accompanied her. They returned home after her statement was recorded. She said she had few scratches on her right arm and also one on her neck due to the broken glass.
    1. Around 11 o’clock they were informed to come to the police station again. When she went to the police station with Gerald Seeto she was shown a black plastic bag. She identified it. When they opened it she identified the brown envelope and the $1 and $2 coins. They counted the coins and the notes and the police noted them down along with the serial numbers of the notes.
    2. Again on the 29th she was called to the police station where she was required to identify recharge cards and cigarettes. She identified the recharge cards and the cigarettes shown to her as items that belongs to them. She identified an empty BH box in court as one of the cartons that was stolen and it was tendered as PE1. The empty white sack which she identified as the sack that contained coins was tendered as PE1A. The black plastic bag with one gross of BH20 and one gross of Rothman 10 she identified was tendered as PE1B. 8 gross of BH10 and 20 packets of BH10 that were in another plastic bag were tendered as PE1C. She said the plastic bag was not hers. She said when she went to the police station on the 29th all these cigarettes were packed in the box. Three gross BH10 and 12 packets of BH10 that were in another plastic bag was tendered as PE1D. She again said that the plastic bag is not hers. She said it was a very frightening experience and she was at a state of shock.
    3. During cross examination she agreed that most of the items stolen were recovered. She agreed that she was able to identify the recharge cards based on the invoices they provided to the police that contained the serial numbers of the recharge cards. She agreed that no records were provided to the police regarding cigarettes. She agreed that she identified the cigarettes because she was shown the cigarettes together with recharge cards by the police.
    4. During re-examination she said when she identified her carton on the 29th it was not in the same state as it is now before the court. She said they have a way of opening their cigarettes where they are able to identify their carton.
  3. The third prosecution witness was Gerald Seeto. He said that;
    1. He runs a canteen at the Suva Bus Stand called Seeto Kee Limited. On 25/06/16 he was informed by his wife regarding a robbery. When he arrived, he saw their blue Station Wagon with missing windows in front of his gate. He said he hugged Akata who was at the top of the driveway who was in a great state of traumatisation. He said she was weeping and trembling. The police arrived in a short while and then Akata was asked to go to the police station to give her statement. They returned home after giving all necessary statements. Thereafter they were again requested to come to the police station. At the police station he identified the black plastic bag which they normally put their takings. Inside the plastic bag there was an envelope containing Fiji currency notes from $5 up to $100 which amounted close to $3,000. Every note was documented by the police with its serial number and counted. The coins were also counted.
    2. They again went to the Samabula Police Station about 4 days later. There he identified recharge cards and cigarettes as some of the property of his that was stolen. He identified PE1, PE1B, PE1C and PE1D. He said they have a different way of opening their cartons and that’s how he could identify when he first saw it in that form.
    1. During cross examination he said he is not the only Managing Director of Seeto Kee Limited. He agreed that he had provided invoices which shows the serial numbers of the recharge cards. He said he was not asked to provide any records to the police regarding the cigarettes.
    1. During re-examination he said when they first went to view the cigarettes at the police station the carton was in a different form from what he saw in court. He said in its original form he was able to determine that it was definitely his carton.
  4. The fourth prosecution witness was special constable 2689 Sakaraia Lomaloma. He said that;
    1. On 25/06/16 while he was on his way to attend to a report in Lakeba Street, he saw a blue car parked near a main gate at Helson Road. As he passed the said car he heard an old Indian man yelling “there is a robbery at the back”. He then stopped the vehicle, turned it around and went towards the car that is being robbed. He said PC Kohli was also with him in his vehicle. He said the robbers were wearing masks and he saw them loading some cartons to another car. When he approached the lady that was bleeding, he saw a Fijian man in the front seat. When he went closer that man ran away and he saw a red phone fall from that person. He picked up that phone from the front seat. Thereafter the robbers left in a car in a very high speed. He also found one small axe on top of the vehicle. He identified the axe tendered as PE2 as the same axe he picked from the crime scene that day. He also identified the red phone which was tendered as PE3 as the phone he picked from the car that day.
  5. The fifth prosecution witness was Detective Constable 3662 Peter Voi. He said that;
    1. On 28/06/16 while he was on duty at Raiwaqa Police Station he was approached by CID officers from Samabula Police Station to assist them in conducting a search at the accused’s house at Jittu Estate. He accompanied the officers from Samabula to the accused’s residence. Upon arriving at the house DC Maciu showed the accused a search warrant and informed him the reason for the search. He said the accused allowed them to enter the house. DC Maciu, DC Josaia and he entered the accused’s house. The accused took them into a room. After a discussion with DC Maciu the accused informed them that he was involved in the robbery that took place in Helson Street and the accused levered one of the timbers from the wooden floor of the house and pulled out a plastic bag that contained one gross of BH20 and some Rothman cigarettes. The items were seized by DC Maciu. He recognized the accused in court.
    2. During cross examination he said he did not see the contents of the search warrant as it was executed by DC Maciu. He admitted that the proper procedure is to first to show the search warrant and then to explain the reason for the search. He then agreed that it is stated in his police statement that DC Maciu Wakaruru arrested the accused and cautioned the accused before showing the accused the search warrant and informing the accused the reason for conducting the search. He said he can’t recall when it was suggested to him that the accused’s mother was sitting in front; that it was the accused’s mother who called the accused; the accused’s mother received the search warrant and then all officers went inside the house to carry out the search and then the accused told them that there are three bedrooms in the house. He denied the suggestion that the accused told them that he don’t know anything about the robbery. He said the accused informed the police officers about his involvement when they were inside one of the bedrooms. When he was asked about the serial numbers of the cigarettes he said he has no idea. Then he agreed when the police statement was shown to him that he had mentioned two serial numbers in his statement.
  6. The sixth prosecution witness was Detective Constable 4096 Maciu Wakaruru. He said that;
    1. A team of police officers including him from the Samabula Police Station were involved with the investigation regarding the robbery that took place at Helson Street, Samabula. He said they followed up on an item namely a phone that was dropped by one of the suspects during the confrontation at the scene. They checked the call logs, the incoming and the outgoing calls. They checked the identity of the owner of the scene using their landline at the crime office. It was revealed that the last person who was using the phone was one Lavenia Maravou who was residing at Jittu Estate. It was also revealed that the said Lavenia Maravou is married to one Kalokalo.
    2. With that information they went to the accused’s house at Jittu Estate. He said his team from Samabula CID and DC Peter and DC Josaia from Raiwaqa Police Station went to that address. When they arrived at the house the accused was inside the house and as soon as he saw them he came out onto the steps and informed him (the witness) in the presence of DC Peter and DC Josaia that he is the one that dropped the phone and he was really uneasy during the last few days after the robbery at Helson Street.
    1. He said the accused then took the police officers to a room and told them that he (the accused) is willing to cooperate with the police and willing to return his share from the loot. Then the accused levered one of the wooden planks on the floor and took out a black plastic bag containing assorted cigarettes. There were the brands BH and Rothmans. Then the accused was informed of the reason the police officers were there and he was taken into custody together with the items. The search list he prepared was tendered as PE4. He identified his initials and the accused’s signature on that list. Thereafter the cigarettes tendered as PE1B were shown to him. He confirmed that the serial numbers noted in the search list matched with the serial numbers found on the gross of BH20 and the 16 packets of Rothmans 10. He identified the accused in court. He said during the time of the search no force, inducement or threat was made to the accused.
    1. During cross examination he said the ascertaining of the ownership of the sim card in the phone was done directly through the call logs and not from the customer registration because the police had experiences in the past that lots of sim cards are not used by the person under whom they are registered. He said he has no knowledge of the customer registration document form from Digicel. The search warrant based on which the search was conducted was tendered as DE1. He agreed that the name Litia Dau Lakeba is written on the search list and he believes that it is the name of the accused’s mother. He said the purpose of visiting the accused’s house was to clear doubts. He said there were questions which the police needed to clarify as per the call records and the information they had received. Then when he was asked whether he sought any clarification regarding the call logs from the accused he said ‘no’.
    2. He said he can’t recall when it was suggested that when the police officers went to the accused’s house accused’s mother was sitting in front. He said CID officers do not wear uniforms. He said DC Peter and DC Josaia were with him when the search warrant was executed and the other police officers were outside. He said he can’t recall when it was suggested that they went inside the house after showing the search warrant to the accused’s mother and the accused told them that there are three bedrooms in the house. When it was suggested that the accused was talking to a police officer in the passage leading to the bedroom while the rooms were being searched he said the accused was inside the room when the accused took out the items. He denied the suggestion that the accused told them that he does not know anything about the robbery. When it was suggested that a police officer came out of the accused’s bedroom with one gross BH20 while the accused was waiting in the passage, he said as he can recall that is not true. He denied the suggestion that the only item listed in the search list when the accused signed it, was one gross BH20.
  7. The seventh prosecution witness was DC 3400 Abdul Ahmeed Khan. He said that;
    1. He was the interviewing officer of the accused in this case. He said the accused did not complain to him about anything and he did not notice any injuries on the accused before he commenced the caution interview. He tendered the record of the caution interview as PE5 and read it in court.
    2. He said the accused was very cooperative during the caution interview. There was no force or threat used on the accused. He said the accused’s caution interview is not fabricated. He said the interview records were typed and shown to the accused on the desktop before being printed. He recognized PE2 as the phone shown to the accused in question 32 of the cautioned interview. He recognized PE3 as the axe shown to the accused in question 123. He identified PE1A as the sack shown to the accused in question 209.
    1. He said on 25/06/16 he was doing operational duties with DC Sunia and WDC Bhawna. On their way WDC Bhawna received a call regarding a robbery and they went to Helson Street. He saw the uniform branch vehicle parked on the road and also a blue Station Wagon parked on a driveway. PC Kohli and SC Sakaraia were in the uniform branch vehicle. He said the victim who was a lady was in shock and he told WDC Bhawna to talk to that lady while he check the vehicle with DC Sunia. He said SC Sakaraia gave an axe and a phone to DC Sunia. After he gathered all the information from the scene he took steps to notify the Command Centre regarding the number of the taxi.
    1. Thereafter the complainant was escorted to the police station to record her statement. After some time he was informed that the taxi they are looking for is at the Nabua Police Station and the driver of the taxi had reported that he was robbed by Fijian youth at Rups New Subdivision. Upon receiving further information from the said driver at the Nabua Police Station he went with DC Sunia to Rups New Subdivision. When they reached the place they found certain items lying on the road. He said he found a camouflaged jacket, some torn pieces of t-shirts, some pom-poms and a black plastic bag containing cash. He found $1 and $2 coins and a brown paper bag containing notes. He picked up the items and informed WDC Bhawna to get the victim back to the police station to show those items.
    2. He identified a green t-shirt as the one referred to in question 80 of the cautioned interview which was tendered as PE6; a black pom-pom which was tendered as PE7A; a homemade mask which was tendered as PE7B and a camouflaged rain court which was tendered as PE8 as the items he recovered.
    3. As soon as they arrived at the police station with the items the victim and her uncle came. When the victim saw the plastic bag, she said “that’s our plastic bag”. Then they opened the bag and the money was counted in the presence of the victim, Mr. Seeto, WDC Bhawna and DC Sunia. The serial numbers of the notes were recorded. The total came to about $4825. He said he assisted the photographer to photograph the money by setting the money and he was present when it was photographed.
    4. He said he was present with the exhibit writer when the cigarettes and the recharge cards were photographed. The photographic booklet containing the photographs taken by WDC Maraya was tendered as PE9 and the photographic booklet containing the photographs taken by SC 2959 Anasa was tendered as PE10.
    5. During cross examination he denied the suggestions that certain answers in the cautioned interview are fabricated. He denied suggestions that the items including the mobile phone were not shown to the accused during the caution interview.
    6. He denied the suggestion that he was writing something on a paper during the cautioned interview. When it was suggested that recharge cards were not shown to the accused he said he cannot recall whether the recharge cards were shown. He said when the caution interview was been typed the three of them had a clear view of the desktop and when the accused was given the opportunity to read the interview the accused stated that he was reading it while it was been typed.
    7. He said he gave the printed record of the interview to the accused and the accused signed all the pages. Thereafter he signed and then the witnessing officer signed. He said the interview was not fabricated.
    8. During re-examination he said by way of the paragraph before question 1 of the cautioned interview the accused was informed of the way the interview will be recorded. He confirmed that all questions that is noted in the cautioned interview was put to the accused and the accused gave the answers that are noted in the caution interview voluntarily. He said in answer to question 217 the accused had informed that he was reading the interview while it was been typed.
  8. The eighth prosecution witness was WDC 3382 Lice Normai. She said that;
    1. She was the witnessing officer of the cautioned interview of the accused. She said the accused did not complain about anything and she did not see any injuries on the accused before the commencement of the caution interview. She said PE5 is the record of the accused’s caution interview.
    2. During cross examination she said during the interview she was sitting in front of the computer, the interviewing officer was on her right and the accused sat next to the interviewing officer. She said she is the one who typed the cautioned interview. When she was asked whether DC Abdul was making notes while she was tying she said ‘yes’.
    1. She said the interviewing officer handed over the cautioned interview in her presence to the accused to sign first. She said it took the accused 6 minutes to read the interview after it was printed and given to the accused. She agreed that she had mentioned in her police statement that the accused gave answers in i-taukei language though she said in her evidence that the accused gave the answers in English.
    1. During re-examination she said while she was typing DC Abdul was writing down some of the points from the accused and she could not recall what those points were. She said despite the answer to question 217 the accused started reading the interview again after it was printed before signing. She also said that she ‘mistyped’ her statement with regard to the language the accused gave his answers as she was typing two statements.
  9. The ninth prosecution witness was DC 4630 Manasa Bainimarama. He said that;
    1. He charged the accused on 30/06/16 at the Samabula Police Station. He said the accused did not complain to him about anything before he recorded the charge statement. He tendered the charge statement as PE11 and read it in open court. He said the accused gave the answers on his freewill. He said what he typed are the answers given by the accused.
    2. During cross examination he denied the suggestion that the accused told him that he wants to talk to the boss. He denied the suggestion that question 12 to question 16 were not put to the accused. He said while he was typing on the computer he read it back to the accused and also the accused read the charge statement before signing. He denied that the charge statement was fabricated.
  10. The tenth prosecution witness was WDC 3557 Bhawna Lata Singh. She was offered by the prosecution for the defence to cross examine. She said that;
    1. She was the investigating officer in this case.
    2. During cross examination she agreed that there is a unique IMEI Number for every phone. The customer registration form of the Digicel mobile number 7334295 was tendered as DE2. She agreed that the IMEI number noted in DE2 is different from the IMEI number of the phone that was recovered from the crime scene. And she agreed that they are two different phones.
    1. During re-examination she said call records were obtained on the sim card that was inside the red phone and the accused was arrested through those phone records.
  11. At the end of the prosecution case you heard me explain several options to the accused. He had those options because he does not have to prove anything. The burden of proving his guilt beyond reasonable doubt remains on the prosecution at all times. The accused chose to give sworn evidence and call one witness.
  12. The accused said in his evidence that;
    1. On 25/06/16 he was selling coconuts till about 6pm at Vatuwaqa. Thereafter he came home in a taxi. His family had their usual devotion at 8pm and thereafter they had dinner around 9pm. Thereafter he was watching TV in the sitting room and he fell off to sleep until his wife woke him up around mid-night. Thereafter they slept in their bedroom till the next morning.
    2. He said on 23/06/16 after he came home in the evening he realised that his phone is missing. It was a black Nokia flash light phone. He bought this phone sometime in 2015 for $78. Before that he bought the sim card from Digicel for $6.
    1. He said when he called his number from his neighbour’s phone, someone answered the first time but when he called thereafter, there was no answer. He did not report the matter to the police because it was a cheap phone.
    1. On 28/06/16, four to five police officers came to his house in the morning. His mother who was sitting right in front of the front door informed him that they have come to see him. He said the police officers asked him to whom they should show the search warrant and he told them to show it to his mother. After showing the search warrant to the mother four to five police officers came inside the house.
    2. He said his room was searched by the police while another police officer was talking to him on the passage and he was not allowed to enter the room. Thereafter they came out with one gross BH20 and asked him where did he bring it from. He told them that he is selling cigarettes along with kava as he is running a small kava business from home. He tendered the registration form of a business by the name of “Ezra’s Kava” as DE3. He said he used to keep his kava and the cigarettes in a wooden chest that was inside his room. The police told him that they will take the cigarettes to check the serial numbers. He signed on the search list tendered as PE4 but when he signed there was only one item and that is ‘one gross BH 20’. He said Rothmans cigarettes were not found in his house and not written on the search list at that time.
    3. He said he was taken to Samabula Police Station and he was told that he will be released after being questioned. He was questioned by a police officer named Abdul inside a room. Another police officer by the name of Lice was also there. He was asked to give his personal details. He said Abdul was holding a pen and a paper and was writing on the paper. Lice was facing a computer and from where he was seated he could not see the computer screen.
    4. He said he was frightened because it was the first time. He said they took a lot of time asking questions. Abdul asked him where he was on 25/06/16 and he informed Abdul what he did on that day. He was kept in the cell that night. Next morning he was taken to the same room. He said Abdul asked him to help the police to complete the investigation against two suspects by fabricating his statement. That day he was taken to a place at Bayview Heights and then at Samabula. In both places he was told to stand and point at places and Abdul took photographs. Thereafter he was taken back to the Crime office at the Samabula Police Station.
    5. On the next day he was again taken to the crime office and Abdul and Lice gave him a printed document with few pages and told him to sign at the places they showed him. After he finished signing, another police officer came and told him that he is going to charge him. He said that police officer typed something using the same computer Lice was using. He was sitting on the side and from where he was seated he could not see the computer screen. Thereafter the police officer printed a document and got him to sign that.
    6. He recognised his signatures on PE5. He said when he was given PE5 to sign, the interviewing officer and the witnessing officer had already signed that. He said questions 4 to 11, 25 to 29, 32 to 37, 39 to 41, 43, 45 to 80, 82 to 86, 88 to 91, 92 to 121, 122 to 140, 141 to 170, 171 to 191, and 197 to 221 were not put to him. He said the answers noted in respect of questions 30, 31, 44 and 81 are not the answers he gave. He said he did not read PE5 before he signed and he signed it because the police officer told him that he will be released.
    7. He identified his signature on the charge statement PE11. He said he signed it after the charging officer signed it. He also said that questions 12 to 16 were not asked. He said he did not know anything about the robbery and therefore the admissions in the cautioned interview and the charge statement are not true.
    8. During cross examination he agreed that according to DE2 the sim card was bought on 19/04/16. He said he was confused with regard to the year he bought the sim card and the phone. When he was asked whether he complained to another senior officer about him being frightened when he was interviewed under caution, he said when he wanted to see their boss they did not allow and they gave excuses.
    1. During re-examination he said though he said in his evidence that he bought the sim card in 2015 he can now see from the registration form that it was in 2016.
  13. The next defence witness was the accused’s mother. She said;
    1. She is living with her husband, the accused, his wife and their child, one of her grandchildren and her youngest child at Gaji Road, Samabula. She said on 25/06/16 the accused came home around 6pm. Thereafter the accused had tea and was resting in the sitting room while she was cooking dinner. They had their devotion at 8 o’clock. Their devotion usually takes 30 minutes. Thereafter they had dinner and then they watched TV. She said the accused was lying down in the sitting room and was watching TV. She said they used to watch TV from 9 to 12. She said after watching the movies she used to wake the accused, the wife and the daughter for them to go to their room. Thereafter she used to off the TV. She said this is what she did on 25/06/16. She said after 12 o’clock she usually sit there and finish watching the disk. She said she also saw them going inside the bedroom.
    2. She said on 28/06/16 while she was sitting in the kitchen, four men knocked on the door. They asked her whether it is Kalo’s house. She said ‘yes’. She then called the accused. After the accused went outside and greeted them they told her that they want to conduct a search inside the house. They gave her a search warrant to sign.
    1. During cross-examination she agreed that she would do anything for the accused. When she was asked whether she can recall giving a statement to the police she said she can’t recall. However when she was shown her statement she identified her signature. It was pointed out that it is written in her statement that she was at home when the offence occurred but cannot say the exact date. When it was pointed out that it is written in the statement that they had dinner at 8pm she agreed that it is different from what she said in evidence. But she said that she told the police what she said in court today. When it was pointed out that it is stated in her statement that they finished watching TV around 9pm to 10pm she said they watched TV from 8.30 till 12. When it was pointed out that it is written in her statement that the accused went to sleep after they finished around 9pm to 10pm she said what she said in court is what she told them.
    1. During re-examination she said her statement was recorded by one of the police officers who came to her house previously. She said they asked the questions and she replied in the i-taukei language. The statement shown to her is written in English.
  14. 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.
  15. Remember that you should first consider the credibility and the reliability of the witnesses who gave evidence in this case in order to decide on what evidence you accept. Based on the evidence you accept you should then decide what facts are proved and what reasonable inferences you can draw from those proven facts. Then you should consider whether the elements of the offence in each charge have been proven beyond reasonable doubt based on those proven facts and reasonable inferences. You should remember to follow my directions on law during this process.
  16. One of the items stolen as listed in the first count includes the Probox Taxi registration number LT4934. When you consider whether the said taxi was stolen, you should note that any assumption of the rights of an owner to the possession or control of property, without the consent of the person to whom it belongs, amounts to an appropriation of the property. As I have already explained, property belongs to a person if that person has possession or control of the property.
  17. The fifth and the sixth prosecution witnesses said in their evidence that the accused made certain admissions when they went to the accused’s house to conduct the search. The accused denies making those admissions. In the event you believe the evidence of the fifth and the sixth prosecution witnesses, please note that every accused has the right to remain silent. An admission made by an accused to a police officer without that accused being informed of his/her right to remain silent is not admissible against the accused. According to the evidence of the fifth and the sixth prosecution witnesses, the accused was not informed of his rights before the alleged admissions were made and therefore those admissions cannot be used as evidence against the accused to prove the charges in this case.
  18. Therefore, if you believe the evidence of the fifth and sixth prosecution witnesses, the only fact that may be considered against the accused is that the items listed in the search list PE4 were recovered from the accused’s bedroom. The accused does not dispute that a gross of BH20 was found in his room but he says that was kept in a wooden chest. The accused also says that the said BH20 cigarettes were bought by him as he used to sell cigarettes with his kava and also it is raised by the defence that there is no documentary evidence to prove that the cigarettes found in his house are part of the items that were stolen during the robbery in question.
  19. Now I will turn to PE5 and PE11, the cautioned interview statement and the charge statement respectively. It is a matter for you to decide whether the accused made the admissions recorded in PE5 and in PE11 and whether those admissions are true. After carefully considering each document, you may accept the entire statement in a document 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.
  20. The accused says that the questions 4 to 11, 25 to 29, 32 to 37, 39 to 41, 43, 45 to 80, 82 to 86, 88 to 91, 92 to 121, 122 to 140, 141 to 170, 171 to 191, and 197 to 221 in PE5 were not put to him and the questions 12 to 16 in PE11 were not put to him. He in fact takes up the position that he did not give the answers noted in respect of those questions. He also said the answers noted in respect of questions 30, 31, 44 and 81 in PE5 are not the answers he gave.
  21. If you believe the accused or if you have any doubt as to whether those answers in PE5 and PE11 are fabricated then you should disregard those answers.
  22. The seventh witness for the prosecution who was the interviewing officer and the eighth witness who was the witnessing officer said that there was no fabrication and all the answers in PE5 were given by the accused voluntarily. The ninth witness who was the charging officer said that what he had recorded in PE11 are the answers given by the accused and there was no fabrication.
  23. You should consider all the evidence led in this case including the contents of PE5 and PE11 in deciding whether the contents of PE5 and PE11 are fabricated as claimed by the accused or whether those statements were made by the accused voluntarily.
  24. After examining all relevant evidence if you are sure that the disputed answers in PE5 and in PE11 are not fabricated and they were in fact given voluntarily by the accused, then you should consider whether those answers and the other answers in the cautioned interview statement (PE5) and in the charge statement (PE11) are true and what weight you would give to those statements made by the accused.
  25. The defence points out that there are inconsistencies in the evidence led by the prosecution and says that the evidence led by the prosecution is not reliable. You should deal with those inconsistencies and any other inconsistency you may have noted according to the directions I gave you earlier in this summing up.
  26. May I now direct you on the defence of alibi. According to the accused’s evidence and the evidence given by his mother the second defence witness, the accused was in his house at Gaji road during the time the two offences had taken place.
  27. Please bear in mind that though an accused raises the defence of alibi, there is no burden for the accused to prove that he was elsewhere during the time the offence is alleged to have been committed. The prosecution should still prove that it was the accused that committed the offence and therefore the alibi is not true.
  28. When you consider the evidence of the accused regarding his alibi, if you think that the version of the accused is true or it may be true, then you must find the accused not guilty of the offence.
  29. However, you should also bear in mind that you should not assume that the accused is guilty of the offence merely because you decide not to accept his alibi. You should remember that sometimes an accused may invent an alibi just because it is easier to do so rather than telling the truth. The main question remains the same. That is, whether you are sure that it was the accused who committed the offence.
  30. I must again remind you that even though an accused person gives evidence, he does not assume any burden of proving his case. The burden of proving the case beyond reasonable doubt remains on the prosecution throughout. An accused’s evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
  31. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise in respect of each charge;
(ii) Without necessarily believing him you may think, 'well what he says might be true'. If that is so, it means that there is reasonable doubt in your mind and therefore, again your opinion must be ‘not guilty’.

(iii) The third possibility is that you reject his evidence. But if you disbelieve the accused and/or his witness, that itself does not make the accused guilty. The situation would then be the same as if he had not given any evidence at all. You should still consider whether the prosecution has proved all the elements of the offence beyond reasonable doubt.
  1. Any re-directions?
  2. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charge against the accused. You have copies of the documents tendered as exhibits. If you wish to peruse the other exhibits tendered in court, you may seek the assistance of the court clerk accordingly. When you have reached your separate opinion you will come back to court and you will be asked to state your opinion.
  3. Your opinion should be whether the accused is guilty or not guilty on each charge.

Vinsent S. Perera
JUDGE


Solicitors for the State : Office of the Director of Public Prosecutions, Suva.
Solicitors for the Accused : Legal Aid Commission, Suva.


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