State v Vadei - Summing Up [2020] FJHC 804; HAC447.2018S (25 September 2020)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 447 OF 2018S

STATE
Vs

SEKOVE VADEI

Counsels : Mr. N. Sharma for State
Mr. J. Korotini for Accused
Hearings : 22, 23 and 24 September 2020.
Summing Up : 25 September, 2020.

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SUMMING UP
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1. ROLE OF JUDGE AND ASSESSORS

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

2. THE BURDEN AND STANDARD OF PROOF

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

100. THE INFORMATION

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

“... [read from the information]....

4. THE MAIN ISSUE

8. In this case, as assessors and judges of fact, each of you will have to answer the following question:
   • (i) Did the accused, in the company of others, on 16 November 2018, at Lami in the Central Division, violently rob the complainant (PW1) of her properties, as itemized in the information?
     

5. THE OFFENCE AND IT’S ELEMENTS

9. The accused was charged with “aggravated robbery”, contrary to sections 46 and 311 (1) (a) of the Crimes Act 2009. It was alleged that, he with others, on 16 November 2018 at about 3 am, in Lami in the Central Division, violently robbed the complainant (PW1) of her properties, as itemized in the charge. For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:
   • (i) the accused,
   • (ii) in company with one or more persons,
   • (iii) steals
   • (iv) the complainant’s property or properties, and
   • (v) before the theft,
   • (vi) uses force or threatens to use force,
   • (vii) on another person,
   • (viii) with intent to commit theft.
     
10. Stealing” is the act of taking away someone’s property or properties without his permission, and with an intention to permanently deprive him of the ownership of that property or properties. “Force” means “any type of force, whether or not done physically or verbally, for example, beating someone with a stick or threatening to do the same”.
    
11. Before stealing the complainant’s properties, the accused, in company with one or more persons, must use force or threaten to use force to subdue the complainant or others’ resistance, and at the time, had the intention to steal. For example, I and my friend saw you withdrawing $1,000 cash from an ANZ Bank ATM machine. I and my friend immediately came to you, told you to hand over the $1,000 cash to me or I will punch you in the face. You refused, I punched you in the face and stole your $1,000 cash. That was “aggravated robbery”.
    
12. You will notice in the information that the prosecution, in their particulars of the offence, began with the phrase, “...SEKOVE VADEI, in the company of others, on 16 November 2018, at Lami in the Central Division, stole [the items mentioned in the charge]...and immediately before stealing from MARYANN ELENOA MAAFU MOSS, used force on her...” The prosecution is alleging that the accused and others committed the offence as a group. It is immaterial that the others were not named in the information. To make them jointly liable, the prosecution is relying on the concept of “joint enterprise”.
    
13. “Joint enterprise” is “when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed, of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence” (Section 46, Crimes Act 2009). In considering each accused, you will have to ask yourselves the following questions. Did each of them form a common intention with each other, to violently rob the complainant (PW1) of the properties mentioned in the charge? If so, did each of them acted together in violently robbing PW1? When PW1 was violently robbed, were these episodes a probable consequence of them assaulting the complainant? If your answer to a particular accused was yes, and you are sure that the elements of the offences described in paragraphs 9 to 11 hereof are satisfied, the particular accused was guilty as charged. If it was otherwise, he was not guilty as charged.
    
14. If you find the elements of aggravated robbery proven by the prosecution beyond reasonable doubt against the accused, you must find him guilty as charged. If otherwise, you must find him not guilty as charged. It is a matter entirely for you.
    

6. THE PROSECUTION’S CASE

15. The prosecution’s case were as follows. The complainant (PW1) was a 43 year old business woman. According to the prosecution, on 16 November 2018 at about 2.30 am, she was fast asleep in her apartment at 69 Marine Drive, Lami. Suddenly she was awoken from her sleep. She later stood up to go to the bathroom, but was suddenly pushed back onto her bed by someone. It was dark in the bedroom, but with the little light coming from outside the house, she saw two males in the room. One of them jumped on her while she was on the bed, and the two struggled.
    
16. According to the prosecution, the man then allegedly shoved her cardigan down her throat to prevent her from raising the alarm. The man demanded money. She nodded her head. She had difficulty breathing. The two men later ransacked the apartment and stole the complainant’s properties, as itemized in the information. Mr. David Phillip (PW2) came to the apartment after hearing the complainant’s scream. He confronted a man, allegedly acting as a lookout outside the apartment. PW2 later called for assistant. The thieves fled the crime scene. Two of them fled along the sea shore.
    
17. PC 5130 Apenisa (PW3) and PC 5405 Eremodo (PW4) were doing foot patrol in Lami Town at the time. They heard PW2’s call for assistance and allegedly chase the thieves. They allegedly caught one of them at Tikaram’s Park. PW3 allegedly arrested the accused, at the Park, and later escorted him to Lami Police Station. PW3 allegedly searched the accused at the Station and found the complainant’s Westpac Debit Card, Jack’s Card and pouch and sunglass, on him. Later the same day, the complainant identified the cards and the pouch and sunglass as the ones stolen from her on 16 November 2018 after 2.30am. The accused was later caution interviewed by police on 16 November 2018 starting at 1pm and later suspended at 2.45pm. It re-started on 17 November 2018 at 11.30am and it concluded at 3.25pm. In the interview, the accused allegedly admitted the offence.
    
18. On 19 November 2018, the accused appeared in the Suva Magistrate Court charged with violently robbing the complainant on 16 November 2018. Because of the above, the prosecution is asking you, as assessors and judges of facts, to find the accused guilty as charged. That was the case for the prosecution.
    

7. THE ACCUSED’S CASE

19. On 23 September 2020, the information was put to the accused in the presence of his counsel. He pleaded not guilty to the charge. In other words, he denied the allegation against him. When a prima facie case was found against him, at the end of the prosecution’s case, wherein he was called upon to make his defence, he chose to give sworn evidence and called no witness. That was his constitutional right.
    
20. The accused’s case was very simple. On oath he denied the “aggravated robbery” allegation against him. He said, he found the complainant’s bunch of keys, Westpac Debit Card, Jack’s Card and the pouch with the sunglass, near a bus stop at Lami Town, near the complainant’s apartment, after the alleged robbery. He appeared to say that he did not steal the same from the complainant’s apartment, at the material time. As to his alleged confession to the police, when caution interviewed at Lami Police Station, on 16 and 17 November 2018, he asked you, to disregard the same.
    
21. He said, at the time of his arrest at Tikaram Park at Lami, while being escorted to Lami Police Station in a police vehicle and while in the Lami Police Station, the police repeatedly assaulted him. He said, as a result of the assault and threats by the police, he was forced to admit the offence in his caution interview on 16 and 17 November 2018. Because of the above, he asks you to disregard his alleged confession because he gave the same involuntarily and without his own free will.
22. Because of the above, he is asking you as assessors and judges of fact, to find him not guilty as charged. That was the case for the defence.
    

8. ANALYSIS OF THE EVIDENCE

(a) Introduction:

23. In analyzing the evidence, please bear in mind the directions I gave you in paragraphs 4, 5 and 6 hereof on the burden and standard of proof. In the acceptance and/or rejection of the evidence presented at the trial and your role as assessors and judges of fact, please bear in mind the directions I gave you in paragraphs 1, 2 and 3 hereof. In analyzing the evidence, we will first discuss the State’s case against the accused; then the accused’s case and lastly the need to look at all the evidence.
    

(b) The State’s Case Against the Accused:

24. In this case, the complainant’s (PW1) evidence that the two persons unlawfully entered her bedroom on 16 November 2018 after 2.30am was not disputed by the defence. In fact, the complainant’s evidence that she was attacked and robbed of her properties, as itemized in the information, was not disputed by the defence. You had heard the complainant’s evidence in the courtroom on 23 September 2020. She basically said, she was violently robbed of her properties as itemized in the charge on 16 November 2018 after 2.30am. However, she said she could not identify the faces of the two persons who allegedly robbed her, because her room was dark, at the material time. In my view, the above evidence does prove reasonable doubt that, at the material time, the complainant was violently robbed of her properties, as itemized in the charge.
    
25. The difficulty for the prosecution was: how can they connect the above crime to the accused, at the material time? No one saw the accused stealing the complainant’s properties at the material time. This was obviously a difficulty for the prosecution. To overcome this difficulty, the prosecution relied on two types of evidence to connect the accused to the crime. First, the prosecution relied on the accused’s alleged confession to the police when he was caution interviewed at Lami Police Station on 16 and 17 November 2018. Second, the prosecution relied on the findings of the complainant’s bunch of keys, Westpac Debit Card, Jack’s Card and a pouch containing a sunglass, which was found on the accused, so soon after the alleged aggravated robbery. We will discuss these evidence in turn.
    
26. PC 4281 Joji Dakuwaqa (PW5) said, he caution interviewed the accused on 16 and 17 November 2018 at Lami Police Station. He recorded the interview in his own hand-writing and he tendered the same in evidence as Prosecution Exhibit No.4 (A). PW5 said, his hand-written notes were typed by someone, and he confirmed in court that the same was a true reflection of his hand-written notes. The typed version was tendered into evidence as Prosecution Exhibit No. 4(B). Please, read the interview notes carefully. PW5 said, he gave the accused his rights to counsel, his other rights and he formally cautioned him and gave him his rest and meal breaks. PW5 said, from questions and answers 10 to 52 of Prosecution Exhibit 4(A) and 4(B), the accused admitted the offence to police.
    
27. PW5 said, the accused said in question and answer 56 that his confession were true, and in question and answer 57, he said no force or threat was done on him and in question and answer 58, he said he does not wish to say anything else. When considering the accused alleged confession, I must direct you as follows. A confession, if accepted by the tier of fact- in this case, you as assessors and judges of fact- is strong evidence against its maker. However, in deciding whether or not you can rely on a confession, you will have to decide two questions. First, whether or not the accused did in fact make the statements contained in his caution interview statements? If your answer is no, then you have to disregard the statements. If your answer is yes, then you have to answer the second question. Are the confessions true? In answering the above questions, the prosecution must make you sure that the confessions were made and they were true. You will have to examine the circumstances surrounding the taking of the statements from the time of his arrest to when he was first produced in court. If you find he gave his statements voluntarily and the police did not assault, threaten or made false promises to him, while in their custody, then you might give more weight and value to those statements. If it’s otherwise, you may give it less weight and value. It is a matter entirely for you.
    
28. All the police officers who came into contact with the accused when arrested at Tikaram Park, when escorted to Lami Police Station in a police vehicle and when taken and locked at the Lami Police Station from 16 to 19 November 2018, when he was taken to Suva Magistrate Court, said they did not assault, threaten or made promises to the accused, when he was in their custody. You have heard the evidence of PC 5130 Apenisa (PW3), PC 5405 Eremodo (PW4) and PC 4281 Joji (PW5). I am sure their evidence is still fresh in your minds and I do not wish to bore you with the detail.
    
29. The next type of evidence the prosecution relied upon to connect the accused to the crime was the discovery of the complainant’s properties on the accused so soon after the alleged crime on 16 November 2018 after 3am. The complainant said her bunch of keys, her Westpac Debit Card, her Jack’s Card and her pouch with a sunglass in the same were stolen from her at the material time. PC Apenisa (PW3) and PC Eremodo (PW4) arrested the accused soon after the alleged robbery on the complainant. The above described properties were found on the accused at Tikaram Park and at the Lami Police Station when searched. The above properties do not have legs to move from one person to another. Properties are carried by people and the possession of the same so soon after the alleged robbery does tell a story. What reasonable inferences you may draw from the possession of the properties so soon after the alleged robbery, is entirely a matter for you.
    
30. If you accept the above two types of evidence as credible and you accept the prosecution’s version of events, you must find the accused guilty as charged. Otherwise, you must find him not guilty as charged. It is a matter entirely for you.
    

(c) The Accused’s Case:

31. I had summarized the accused’s case to you from paragraphs 19 to 21 hereof. I repeat the same here. If you accept the accused’s sworn denials, you must find him not guilty as charged. If you reject the same, you must still assess the strength of the prosecution’s case and decide accordingly. It is a matter entirely for you.
    

(d) The Need To Consider All the Evidence:
32. The prosecution called five witnesses:

(i) Complainant (PW1);
(ii) Mr. David Phillip (PW2);
(iii) PC 5130 Apenisa Katubadrau (PW3);
(iv) PC 5405 Eremodo White (PW4);
(v) PC 4281 Joji Dakuwaq a (PW5);

The prosecution submitted the following exhibits:

(i) Prescribed Sunglass- Prosecution Exhibit No. 1.
(ii) Westpac Debit Card- Prosecution Exhibit No. 2.
(iii) Jack’s Card- Prosecution Exhibit No. 3.
(iv) Accused Interview Notes [handwritten version]- Prosecution Exhibit No. 4(A).
(v) Accused Interview Notes [typed version] – Prosecution Exhibit No. 4(B).

The defence called one witness:

(i) Accused (DW1).

33. You must compare and analyse all the evidence. You must compare and analyse all the witnesses’ evidence together. If I didn’t mention a piece of evidence you consider important, please take it on board in your deliberation. If you find a witness credible, you are entitled to accept the whole or some of his/her evidence in your deliberation. If you find a witness not credible, you are entitled to reject the whole or some of his/her evidence, in your deliberation. You are the judges of facts.
    

I. SUMMARY

34. Remember, the burden to prove the accused’s guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution’s version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused’s guilt, you must find him guilty as charged. If you do not accept the prosecution’s version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused’s guilt, you must find him not guilty as charged.
    
35. Your possible opinions are as follows:
    • (i) Aggravated Robbery: Accused: Guilty or Not Guilty
      
36. You may now retire to deliberate on the case, and once you’ve reached your decisions, you may inform our clerks, so that we could reconvene, to receive the same.
    

Salesi Temo

JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : Legal Aid Commission, Suva.