State v Ketewai - Summing Up [2019] FJHC 329; HAC210.2018 (3 April 2019)

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 210 OF 2018

STATE

-v-

1. KEPERIELI KETEWAI

2. JOSAIA WARODO VATUNICAOKO

3. LUKE TAVAIALU

Counsel: Ms. L. Lodhia with Mr. Z. Zunaid for Prosecution

Ms. L Ratidara with Mr. N Chand for 1^st Accused

Mr. R. Goundar for 3^rd accused

Dates of Hearing: 25, 27, 28, 29 March, 2019

Date of Summing Up: 3 April, 2019

SUMMING UP

Lady and Gentlemen Assessors,

1. . We have now reached the final phase of this case. The law requires me, as the Judge who presided over this trial to sum up the case to you. Each one of you will then be called upon to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing up of the case very carefully and attentively. This will enable you to form your individual opinion as to the facts in accordance with the law with regard to the innocence or guilt of the accused persons.
   
2. I will direct you on matters of law which you must accept and act upon.
   
3. On matters of facts however, which witness you consider reliable, which version of the facts to accept or reject, these are matters entirely for you to decide for yourselves. So, if I express any opinion on the facts of the case, or if I appear to do so, it is entirely a matter for you whether to accept what I say, or form your own opinions.
   
4. In other words you are the judges of fact. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.
   
5. The counsel for Prosecution and the Defence made submissions to you about the facts of this case. That is their duty as the counsel. They were their arguments, which you may properly take into account when evaluating the evidence. It is a matter for you to decide which version of the facts to accept, or reject.
   
6. You will not be asked to give reasons for your opinions. Your opinions need not be unanimous although it is desirable if you could agree on them. I am not bound by your opinions. But I will give them the greatest weight when I deliver my judgment.
   
7. On the matter of proof, I must direct you as a matter of law that accused person is innocent until he is proven guilty. The burden of proving his guilt rests on the Prosecution and never shifts.
   
8. The standard of proof is that of proof beyond reasonable doubt. This means that before you can find an accused guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt as to his guilt, you must find him not guilty. However, the doubt must be reasonable and not be based on mere speculation.
   
9. Your opinions must be solely and exclusively upon the evidence which you have heard in this Court and upon nothing else. You must disregard anything you might have heard or read about this case, outside of this court room. Your duty is to apply the law as I explain it to you to the evidence you have heard in the course of this trial.
   
10. This summing-up is not evidence. Statements, arguments, questions and comments by the counsel are not evidence either. A thing suggested by a counsel during a witness’ cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as being true.
    
11. In evaluating evidence, you should see whether the story relayed in evidence is probable or improbable; whether the witness is consistent in his or her own evidence or with his or her previous statements or with other witnesses who gave evidence. It does not matter whether that evidence was called for the Prosecution or for the Defence. You must apply the same tests and standards in applying them.
    
12. In the course of cross-examination, the Defence counsel referred to previous statements of witnesses recorded by police. A previous statement made by a witness is not evidence in itself unless it is adopted and accepted by the witness under oath as being true. You can of course use those statements to test the consistency and credibility of the witness if you are satisfied that such a statement was made.
    
13. Documentary evidence is evidence presented in the form of a document. In this case, the medical report is an example if you believe that such a record was made. You can take into account the contents of the document if you believe that contemporaneous recordings were made at the relevant time upon examination of the Complainant.
    
14. Another relevant aspect in assessing truthfulness of a witness is his or her manner of giving evidence in Court. You have seen how the witness’ demeanour in the witness box when answering questions. But, please bear in mind that many witnesses are not used to giving evidence and may find court environment distracting.
    
15. Your duty is to find the facts based on the evidence and apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.
    
16. Proof can be established only through evidence. Evidence can be direct evidence that is the evidence of a person who saw it or by a victim who saw, heard and felt the offence being committed. You are also free to draw reasonable inferences in the circumstances of this case if such inferences are based on facts proved by evidence.
    
17. I must also now direct you on another legal point. That is the issue of circumstantial evidence. A lot of evidence relied upon by the State in this case is not capable of proof of guilt in itself, but when it is looked at altogether it creates a body of evidence that could lead to an irresistible inference of guilt. Circumstantial evidence is powerful evidence, but it is important that you examine it with care and consider whether it is reliable and does prove guilt or on the other hand it reveals any other circumstances which are or may be of sufficient reliability and strength to cast doubt upon or destroy the Prosecution case.
    
18. You should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence and mere speculation. Speculating in a case amounts to no more than guessing or making up theories without good evidence to support them and neither the Prosecution, the Defence, no you should do that. Similarly the State is asking you to draw an inference of guilt from some of the circumstances. Bu may do that if that ihat inferenference is the only reasonable inference to draw from the proved facts. So, if from a set of facts you find proved there is a reasonable inference to draw against the accused as well as one in his favour, then you must not draw the adverse inference.
    
19. In testing the consistency of a witness you should see whether he or she is telling a story on the same lines without variations and contradictions. You should also see whether a witness is shown to have given a different version elsewhere and whether what the witness has told court contradicts with his/her earlier version. You must however, be satisfied that such contradiction is material to the core issues of this trial and significant so as to affect the credibility or whether it is only in relation to some insignificant or peripheral matter. You must remember that merely because there is a difference, a variation or a contradiction or an omission in the evidence on a particular point or points that would not make witness a liar. You must consider overall evidence of the witness, the demeanour, the way he/she faced the questions etc. in deciding on a witness's credibility.
    
20. Let us now look at the information, a copy of which has been given to you.
    

Statement of Offence

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

Particulars of Offence

KEPERIELI KETEWAI, JOSAIA WARODO VATUNICOKO & LUKE TAVAIALU on the 4th day of April 2018 at Vunisea, Kadavu, in the Southern Division in the company of each other robbed UTTAM KUMAR of 1X green bag containing $50 worth of coins, 1 green bag containing $100 worth of coins, $500 cash, 1x Samsung band J5 mobile phone valued at $ 500, 1x return boat ticket valued at $ 350, Hawkers License valued at $ 30; all to the total value of $ 1530, the properties of UTTAM KUMAR.

21. To prove the offence of Aggravated Robbery theecution must prove the fthe following elements beyond reasonable doubt;
    

a the accused, Keperieli Ketewai and Lavaialu

b committed rob#160;; and

c. thc. the robbery was ;was committed in thpanompany of one or more other persons; or at the time of robbeas an offensive weaponeapon with him.

22. The first erst elemenlement involves the identity of the offender. The prosecution must prove beyond reasonable doubt that the accused Keperieli Ketewai and Luke Tavaialu and no one else committed the offence in the company of each other.
    
23. Aggravated Robbery is the aggravated form of robbery. offence of Robbery is defined in the Crimes Act. A person commits robbery if he immediatefore committmmitting theft; or at the time of committing theft; or immediately after committing theft, uses force or threatens t force on another person with intent to commit theft or to escape from the scene.
    
24. A person commits theft if that person;

a dishonestly;

b appropriates the property belonging to another;

c with the intention of permanently depriving the other of that property.

25. 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.
    
26. ‘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.
    
27. An offence may be committed by one person acting alone or by more than one person acting together with the same criminal purpose. In this case, the Prosecution says that the accused committed the offence in the company of each other. I must explain to you the liability of a number of people who commit a crime together. If several people decide to commit an offence together, and all of them participate and assist each other in doing it, each of them is guilty of the crime that is committed. This is so, even though individually, some of them may not actually do the acts that constitute the offence. 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.
    
28. Those who commit a crime together may play different parts to achieve their purpose. The prosecution must prove that the accused took some part in committing the crime. 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.

29. The Prosecution says that the accused were involved with each other in the commission of the crime. In view of this allegation it is convenient to deal with their cases together in the one trial. However, they are still entitled to have their charges considered separately. I direct you that you must consider the case against each accused separately. In doing this you must carefully distinguish between the evidence against one accused and the evidence against the other. You must not, for instance, supplement the evidence against one accused by taking into account evidence referable only to another.
    
30. Lady and Gentlemen; you will be aware that the 2nd accused Waro was charged along with the 1st and 3rd accused for this offence and was convicted and sentenced. He is currently serving a prison term of 5 years. You are aware that he was called as a witness for Prosecution, but he had not been given immunity by the authorities in return for him giving true and honest evidence against the other accused. He said that he pleaded guilty to the charge and chose to give evidence on his own free will.
    
31. In law 2nd accused is an accompliceomplices often give evi agae against accused persons and of course their evidence must always be approached with caution. This is because accomplice0;may want tont toicaters to save themsehemselves or may exaggerate other people'sple's roles in the offence and diminish their own. For this reason the law that it is dangerous to convict on the evidence of&#160 accoes alone and tand that even if you accept the evidence as credible and reliable you should look for other independent evidence to corroborate the evidence of an accompliceever, if ynd find no s no such corrobor, it is t is stis still open to you to find the accused guilty on the evidence of&#1complice witnesses alone, as long as you have warned yourselves about the danger oger of it.
    
32. Waro did not say that he was promised a pardon in return for him giving evidence for the prosecution. Therefore, you may attach a greater weight to his evidence than what is given to an accomplice who has been promised an incentive.
    
33. You might wonder what sort of evidence can corroborate the evidence of an accomplFirstly, I must must tell you that accomplices cannor corate each othe other. You must look for evidence which is independent of the acices. The indent evid evidence you are looking for must must obviously implicate the accused. In this case the Prosecution adduced a body ocumstantial evidence and direct evidence capable of corroborating the evidence of the&#1b> acice but it is a mattematter for you whether you accept these pieces of evidence as corrobon in fact. act.
    
34. Police Officers tendered in evidence the record of caution inews aarge statements onts of the accused. I now direct you as toas to how you should approach caution statements tendered in evidence. In his caution interview, and the charge statement, the 1st accused admits assaulting the complainant but he denies that he participated in the alleged robbery. The 3rd accused has also made admissions in his caution interview and charge statement implicating himself in the robbery. However, in his evidence the 3rd accused says that certain questions and answers of his caution interview and charge statement have been fabricated by police officers. At the same time he says that he lied to police officers because he was promised that he would be made a State witness.
    
35. Please go through the caution statements carefully. They are important pieces of evidence in this case. It is entirely a matter for you to assess what weight you should give to the admissions made by the accused in their respective caution statements. It is your duty to consider the caution statements as a whole and other evidence led in trial in deciding where the truth lies.
    
36. There is one matter I should mention in regards to the caution statements given to police by each accused. An admission made in a caution interview by one accused can only be used in the case relating to him. As a matter of law, nothing in that caution interview can be regarded as evidence against the other accused.
    
37. However, both accused have given evidence under oath. All that evidence becomes evidence in the case for you to consider against each accused.
    
38. That completes my directions to you on the legal issues.
    
39. I must also remind you of the evidence given and the cases of both the Prosecution and Defence. In doing this I do not propose going through all the evidence of every witness. It should still be fresh in your minds. If I refer to only some aspects of a witness's evidence it does not mean that the rest is unimportant. You must weigh up and assess all the evidence in coming to your decision on this case.
    

Case for Prosecution

PW 1 Uttam Kumar

40. Uttam Kumar is a businessman doing business in the islands. On 3^rd April 2018 he was in Kadavu. After doing his business at Vunisea Market, he returned to his van to have a sleep. He removed his shirt and fell asleep. He put his entire cash collection in his shirt pocket before going to sleep. At around 1.30 am on the 4th April, 2018, he was woken up by a knock on the window from the driver’s side. He saw a man standing outside, as if he was asking for time. This man knocked again as if he was in a hurry and wanted him to open the door. He opened the door. As soon as he opened the door, this man held him from his collar and started pulling him out. He was tightly holding on to the steering wheel so he would not be pulled out. Then another person who was standing beside also came to 1^st person’s support and they eventually managed to pull him out of the van.
    
41. The first person punched him in the face and continued to assault all over his body. They then dragged him towards the Vunisea roundabout while the 1^st person continued to assault him to a point for him to lose his power. The 2^nd person went to the van to steel while the 1^st person continued to assault, asking, where did you keep your money? He could smell liquor. This person said that he had smoked marijuana and threatened to cut the neck. He got sacred. He was bleeding and had short breath. He thought that this person will kill him. He realised that he was in danger so he told that the money was inside his shirt pocket. The first person dragged him back to the van but the shirt was not there.
    
42. When they were engaged in a conversation, he was able to lock the van and he managed to escape. He ran to the Vunisea Police Station and reported the matter. The police came to the crime scene. When he searched the van, he found that his bula shirt, two bags of coins and cash, mobile phone, hawkers licence and shipping return ticket had gone missing.
    
43. He said that this ordeal lasted for 20 minutes. He said that the two people were talking in Itaukei, but not in Kadavu dialect. One person is short and the other one was slim. He could not properly see their faces because the moon light was not enough. On the next day, he went for a medical examination at Vunisea Health Centre where he was medically examined. He recognised the medical report prepared by the doctor.
    
44. Under cross examination, Uttam Kumar denied that the 1st person was asking for matches or a lighter. He denied that he jumped out of the vehicle and ran towards the roundabout where he was eventually caught and tackled. He denied the propositions that the 1st accused was alone at that time and had only assaulted and not stolen anything.
    

PW.2 Dr. Marshanel Leong

45. Dr. Leong who had examined the complainant on the 5^th April, 2018 tendered in evidence the medical report prepared upon examination of the complainant. She said that the patient was in a distressed condition and pain. She had observed a very tender nasal ridge with some swelling with no bleeding. She was not in a position to say that there was a nasal fracture because no x-ray was done. The patient had bruises and scratches inside the mouth, tender scalp and sole of left foot and abrasions on the right elbow. Her professional opinion is that those injuries could have been caused from trauma due to being punched and kicked.
    

PW 3 DC Epeli Matai

46. DC Matai interviewed the 1^st accused Keperieli on the 4^th April, 2018 under caution. He tendered the record of caution interview in evidence (PE2). He said that the 1^st accused was not threatened, forced or assaulted and the answers were given voluntarily. He said that all the answers recorded in the interview were given by the 1^st accused.
    
47. Under cross examination, DC Epeli admitted that the 1^st accused was forthright in his answers and he admitted assaulting the complainant even at the risk of losing his job as a police officer. He also admitted that there was no admission to stealing and the accused was remorseful of the assault.
    

PW 4 PC Timoci Malanicagi

48. PC Tomoci conducted the interview of the 3^rd accused Luke in the presence of witnessing officer, Salai Masa at the Kadavu Police Station. He said that he started the interview on the 12^th April and concluded it on the 13 April 2018. The 3^rd accused was cautioned and all his rights were given. Accused cooperated and he did not make any complaint. He said that the 3^rd accused was not threatened, forced or assaulted and the he gave all answers voluntarily. He said that all the answers recorded in the interview were given by the 3^rd accused himself and no one made up those answers. The caution interview of the 3^rd accused was tendered and read in evidence (PE3).
    
49. He further said that the 3^rd accused was first interviewed on the 7^th April, 2018 and because its record got destroyed during Cyclone Keni, he had to conduct a second interview. He confirmed that PE 3 is the record of original caution interview of the 3^rd accused conducted on the 12^th and 13^th.
    
50. Under cross examination, the witness admitted that the witnessing officer assigned to him is none other than his wife. He denied that he had chosen his wife to be the witnessing officer in order to fabricate some of the answers in the interview. He denied that the witnessing officer was not present throughout the interview and that her signature was obtained later. He denied that he had some issues with the 3^rd accused and that he was not happy with the recruitment of Luke to the Police Force. He admitted conducting the 1^st interview in the presence of his wife as the witnessing officer but he denied that the 3^rd accused had not admitted the allegation in his first interview. He denied fabricating questions and answers from 44 to 57 and also from 66 to 70. He denied having given a promise to the 3^rd accused that he would be made a State witness if he made admissions. He denied the proposition that no scene reconstruction took place with the 3^rd accused.
    

PW 5 – WSC Salai Masa

51. WSC Masa was the witnessing officer for 3^rd accused -Luke’s interview. She said she acted on the instructions of Stg Moape, the OIC of the Kadavu Police Station to be the witnessing office. She was present at the interviews all throughout. His husband PC Tmoci conducted the interview. The 3^rd accused was properly cautioned and all his rights were given. The 3^rd accused cooperated and he gave all the answers voluntarily. The accused did not make any complaints. No promise was given to induce the accused to make admissions. She said that the 3^rd accused was not threatened, forced or assaulted and that the accused gave all answers voluntarily.
    
52. Under cross examination, she denied that she was appointed by her husband to be the witnessing officer. She denied that she was not good with Luke and that she had fabricated the interview with her husband PC Timoci.
    

PW. 6- WPC Moli

53. WPC Moli conducted the charge of the 1^st Accused Keperieli. She is married to Epeli Matai, who conducted the caution interview of the 1^st accused. She said that Stg Moape gave instructions to charge the 1^st accused. 1^st accused was given his rights and he gave the charge statement voluntarily. She tendered the charge statement in evidence (PE 4).
    
54. She also charged the 3^rd accused- Luke on the instructions of Stg. Moape. She said that Luke was given all his rights and that he was not threatened or forced to make a statement. The charge statement of the 3^rd accused was tendered in evidence (PE5).
    
55. Under cross examination, she denied that the 3^rd accused had been given a promise that he would be made a State witness. She also denied that the charge statement of the 3^rd accused was fabricated. She said that she typed the charge statement of the 3^rd accused because the 3rd accused had requested her to do so.
    

PW.7- Josia Warodo (Waro)

56. Waro is the 3^rd accused in this case. He said that he pleaded guilty to the charge on his own free will and currently serving a prison sentence of 5 years. On the 3^rd April, 2018, he was drinking Woodstock beer at Uro shop with Luke and three others. When they finished drinking they parted ways and only Luke was with him. Luke bought 4 cans of Woodstock and they continued drinking. Shortly Keperieli also joined them. He came up with a plan to capture and rob the Indian businessman. Keperieli explained the plan and informed the role each of them was supposed to play and how they should execute the plan. Waro said that his role was to guard the place. Luke was to assist Keperiei to take the Indian man out of his van and rob him. After making this plan, they went to the van and they carried out the plan.
    

You heard Waro describe how they carried out the plan. He said that the Indian man was taken out of his van with the assistance of Luke. Indian man was punched and dragged to the roundabout and searched. While the Indian man was being punched and held down by Keperieli, he and Luke went to the van looking for money. He said money was inside the shirt pocket. He took the money and the mobile phone and threw the shirt to the sea and ran way. They shared the money amongst themselves at the edge of the forest. He said that he knew both Keperieli and Luke are his good friends and knew them for quite some time.

57. Under cross examination by Mr. Chand, Waro denied that Keperieli fell off asleep after drinking beer. He admitted that he and Luke had taken the opportunity to steal from the van when the Indian man was being held by Keperieli. He denied that it was his and Luke’s plan to rob the Indian man and not that of Keperieli. He denied that he was punched by Keperieli outside the court room and he was not in good terms with Keperieli.
    
58. Under cross examination by Mr. Goundar, Waro denied that he had left Luke and gone home when the drinking party finished around midnight complaining of a toothache. He denied that he had seen Luke engaged in a conversation with aunty Finau when he came back. He denied the proposition that Luke had never taken part in the robbery and that he had met Luke and Keperieli only after the robbery when Luke was having a conversation with aunty Finau.
    
59. Under re-examination, Waro said that they were not too drunk and they knew what they were doing. He said he saw what was going on as they were close to each other in the dark.
    

60. That was the case for the Prosecution.

61. At the close of the Prosecution’s case you heard me explain to the accused what their rights were in defence and how they could remain silent and say that the Prosecution had not proved the case against them to the requisite standard or they could give evidence in which case they would be cross-examined.
    
62. Both the accused elected to give evidence under oath although they are under no obligation to prove their innocence. Now I must tell you that the fact that an accused gives evidence in his own defence does not relieve the Prosecution of the burden to prove his case to you beyond reasonable doubt. Burden of proof remains on the prosecution throughout. Accused’s evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
    

Case for Defence

Keperieli Ketewai (1^st Accused)

65. Keperieli said that in April 2018 he was based at Kadavu Police Station. On the 3rd April, 2018, he was supposed to start work at 11 pm but he did not feel like going to work as he had a family problem. He informed Stg. Moape and took leave. He started drinking beer and finished 8 cans of Woodstock. He went to Uro shop to buy some more drinks where Luke and Kini were already drinking. He also joined them. Waro also came and joined them. He finally became intoxicated and left the drinking party and started to walk home. On his way, he saw the van of the Indian businessman parked and he went to the businessman. He knocked the door and asked for matches. The Indian man got up and got irritated and said that he did not have matches. When the Indian man opened the door, he became angry and he punched the Indian man. Indian man started running. Keperieli said that when he saw the Indian man running, he got frightened and he also ran after the Indian man and managed to catch and tackle him. The Indian man was not wearing a shirt and he felt sorry for him. He realised that he had done something wrong to him and ran leaving the Indian man behind. He denied planning with Luke and Waro to rob the Indian man and robbing him. He denied assaulting the Indian man in the company of others.
    
63. Under cross examination, by Mr. Gounder, Keperieli admitted that he bought Woodstock from aunty Finau after meeting Luke at the Uro shop. He denied that he had gone to have grog at the army camp after finishing beer with Luke. He denied that he and Waro had robbed the Indian man and that he had met Luke only after the robbery when Luke was engaged in a conversation with aunty Finau.
    
64. Under cross examination, Keperieli admitted that both he and Luke are related to each other and the Ba dialect they speak is different from Kadavu dialect. He denied that he had decided not to go to work and went to drink because of the family problem.
    
65. Keperieli denied all the propositions put to him by the State Counsel that he had planned to rob the Indian man and that he had robbed the Indian man in the company of Luke and Waro. He denied that he was admitting the lesser offence to avoid the full brunt of the law.
    

Luke Tavaialu (3^rd Accused)

66. Luke said that on the 3^rd April, 2018, he was drinking grog at Golan with army officers and after that he started drinking Woodstock bought from Supermarket at Uro shop with Waitia Mani and Waro. Keperieli came with another 5 cans of Woodstock and joined them in drinking. While they were still drinking Waro and Keperieli left for Vunisea and others also left the Uro shop where he was asked to massage aunty Finau. Around 12 midnight, Kepereieli and Waro came with some more beer and after they have finished drinking they went to have grog at Bula Cawi’s residence and then to Master tiger’s residence and finally went to sleep at home. He denies that he had followed Keperieli and Waro to take part in the robbery.
    
67. He said that questions and answers from 44 to 57 and 66 to 70 of the caution interview had been fabricated by police. He said that he was charged twice and in his first charge he did not make any admissions. During the second charge, the officer said that he would be a state witness. He further said that he was charged only once and the charge statement in PE 5 has been made up by the charging officer. He signed the charge statement because he was asked to sign so he can be made a state witness. He denied having any knowledge of the robbery. He said that he was not taken for a scene reconstruction.
    

Analysis

68. The prosecution called 7 witnesses and they rely on their evidence to establish the charge against each accused. They also rely on the caution statements, charge statements of each accused and the medical report of the doctor.
    
69. The prosecution says that, the 1^st accused is the mastermind of this robbery and on the 4^th April, 2018, he planned this robbery and he robbed the complainant of his cash and property in the company of the 2^nd and 3^rd accused.
    
70. 1^st accused having admitted the assault completely denies that he had planned or taken part in the alleged robbery with others. 1^st accused says that he was acting alone when he assaulted the complainant. His counsel took up the position that when the 1^st accused was engaged with the complainant near the roundabout, 2^nd and 3^rd accused took the opportunity to rob the complainant without 1^st accused’s knowledge. You decide what version is to believe.
    
71. The State Counsel submitted to you that the 1^st accused being a police officer, having known the consequence of the aggravated robbery has admitted to a lesser offence.
    
72. You heard what the 1^st accused had told police in his caution interview and the charge statement. You heard what the complainant and the 2^nd accused- Waro said about the incident in court. You decide if Waro told the truth in court and if the 1^st accused robbed the complainant in the company of Luke and Waro.
    
73. The 3rd accused completely denies that he had ever taken part in this robbery. His position is that he was having grog, drinking Woodstock during the material time and he was wrongly implicated by the 2^nd accused. He denies making any admissions on his own free will in his charge statement. His position is that some parts of the caution interview and his charge statement have been fabricated by police officers who were involved in the process because they were not happy with Luke’s recruitment to police force. You decide if the 3^rd accused made those admissions and if they are true.
    
74. According to complainant’s evidence only two people had taken part in this robbery. The State Counsel submitted that the 2^nd accused Waro was the lookout and he, in his evidence, confirmed that all three accused participated in the crime in a joint enterprise to execute the pre designed plan.
    
75. The prosecution says that the evidence of the Defence is totally untrue and therefore be rejected. Taking into consideration the directions I have given to you, you decide what weight should be given to the evidence of the accused.
    
76. It is up to you to decide whether you could accept the version of the Defence and that version is sufficient to establish a reasonable doubt in the prosecution case. If you accept the version of the Defence, you must not find the accused guilty. Even if you reject the version of the Defence still the Prosecution should prove its case beyond reasonable doubt.
    
77. Remember, the burden to prove each accused's guilt beyond reasonable doubt lies with the Prosecution throughout the trial, and never shifts to the accused, at any stage of the trial. The accused are not required to prove their innocence, or prove anything at all.
    
78. That concludes my summing up of the law and the evidence in this particular trial. We have now reached the stage where you must deliberate together and form your individual opinions on whether the charge has been proved against the accused. On your return you will be asked to separately state in Court whether the accused is guilty or not guilty of Aggravated Robbery.
    
79. Would you please now retire to consider your opinions? When you have made your decisions would you please advise the Court clerk and the Court will reconvene to receive your opinions?
    
80. Any redirections?
    

Aruna Aluthge

Judge

AT Suva

On 3rd April, 2019

Counsel: Office of the Director of Public Prosecution for Prosecution

Office of the Legal Aid Commission for Accused