|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]
CRIMINAL CASE NO: HAC 282 of 2019
STATE
V
MELI CAMA WELEILAKEBA
Counsel : Ms. Jayneeta Prasad with Ms. Nimisha Shankar for the State
Ms. Shantel Hazelman for the Accused
Dates of Trial : 21-24 and 28-29 September 2020
Summing Up : 2 October 2020
SUMMING UP
Madam Assessors and Gentleman Assessor,
[1] It is now my duty to sum up the case to you. We have reached the final stage of the proceedings before us. The presentation of evidence is over and it is not possible to hear any more evidence. You should not speculate about evidence which has not been given and must decide the case on the evidence which you have seen and heard. The Counsel for the Accused and the State have addressed you on the evidence. After their addresses, it is my duty to sum-up the case to you. You will then retire to consider your opinions.
[2] As the Presiding Judge, it is my duty to ensure that the trial is conducted fairly and according to law. As part of that duty, I will direct you on the law that applies. You must accept the law from me and apply all directions I give to you on matters of law.
[3] It is your duty to decide questions of fact. But your determinations on questions of fact must be based on the evidence before us. In order to determine questions of facts, first you must decide what evidence you accept as truthful, credible and reliable. You will then apply relevant law, to the facts as revealed by such evidence. In that way you arrive at your opinions.
[4] Please remember that I will not be reproducing the entire evidence in this summing up. During my summing up to you, I may comment on the evidence; if I think it will assist you, in considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the evidence. You should ignore any comment I make on the facts unless it coincides with your own independent reasoning.
[5] In forming your opinions, you have to consider the entire body of evidence placed before you. In my attempt to remind you of evidence in this summing up, if I left out some items of evidence, you must not think that those items could be ignored in forming your opinions. You must take all evidence into consideration, before you proceed to form your opinions. There are no items of evidence which could safely be ignored by you.
[6] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate among yourselves so as to arrive at your opinions on the charges against the accused. Upon your return to Court, when you are ready, each one of you will be required to state his or her individual opinion orally on the charges against the accused, which opinion will be recorded. Your opinions could preferably be a unanimous one, but could also be a divided one. You will not be asked for reasons for your opinions. I am not bound to conform to your opinions. However, in arriving at my judgement, I assure you, that I shall place much reliance upon your opinions.
[7] I have already told you that you must reach your opinions on evidence, and only on evidence. I will tell you what evidence is and what is not.
[8] In this case, the evidence is what the witnesses said from the witness box and the document tendered as a defence exhibit.
[9] If you have heard, or read, or otherwise came to know anything about this case outside this Courtroom, you must exclude that information from your consideration. The reason for this exclusion is, what you have heard outside this Courtroom is not evidence. Have regard only to the testimony and the exhibit put before you since this trial began. Ensure that no external influence plays any part in your deliberations.
[10] A few things you have heard in this Courtroom are also not evidence. 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’s cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as true. The opening submission made by the State Counsel and closing submissions made by both Defence Counsel and State Counsel are not evidence. They were their arguments, which you may properly take into account when evaluating the evidence; but the extent to which you do so is entirely a matter for you.
[11] As I already indicated to you, a matter which will be of primary concern to you is the determination of the credibility of witnesses, basically the truthfulness and reliability of their evidence. It is for you to decide whether you accept the whole of what a witness says, or only part of it, or none of it. You may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and correctly recalls the facts about which he or she has testified.
[12] Many factors may be considered in deciding what evidence you accept. I will mention some of these general considerations that may assist you.
[13] You have seen how the witnesses’ demeanour in the witness box when answering questions. How were they when they were being examined in chief, then being cross-examined and then re-examined? Were they forthright in their answers, or were they evasive? How did they conduct themselves in Court? In general what was their demeanour in Court? But, please bear in mind that many witnesses are not used to giving evidence in a Court of law and may sometimes find Court environment stressful and distracting.
[14] You may also have to consider the likelihood or probability of the witness's account. That is whether the evidence of a particular witness seems reliable when compared with other evidence you accept and in the circumstances of the case? Did the witness seem to have a good memory? You may also consider the ability, and the opportunity, the witness had to see, hear, or to perceive (or know) in any other way the things that the witness testified about. These are only examples. You may well think that other general considerations assist. It is, as I have said, up to you how you assess the evidence and what weight, if any, you give to a witness's testimony.
[15] In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his or her evidence. This includes omissions as well. That is, whether the witness has not maintained the same position and has given different versions with regard to the same issue. This could be in relation to the testimony of the witness given in Court or in comparison to any previous statement made by that witness.
[16] A statement made to the Police by a witness can only be used during cross-examination to highlight inconsistencies or omissions. That is, to show that the relevant witness on a previous occasion had said something different to what he or she said in Court (which would be an inconsistency) or to show that what the witness said in Court was not stated previously in the statement made to the Police (which would be an omission). 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.
[17] This is how you should deal with inconsistencies and omissions. You should first decide whether that inconsistency or omission is significant. That is, whether that inconsistency or omission is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. 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. If there is an acceptable explanation for the inconsistency or omission, you may conclude that the underlying reliability of the account is unaffected.
[18] However, if there is no acceptable explanation for the inconsistency or omission 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 and omission in the evidence given by a witness influence your judgment on the reliability of the account given by that witness is for you to decide. Therefore, if there is an inconsistency or omission 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 his or her evidence is inaccurate. In the alternative, you may accept the reason he or she provided for the inconsistency or omission and consider him or her to be reliable as a witness.
[19] Madam Assessors and Gentleman Assessor, I must make it clear to you that I offer these matters to you not by way of direction in law but as things which in common sense and with knowledge of the world you might like to consider in assessing whether the evidence given by the witnesses are truthful and reliable.
[20] Having placed considerations that could be used in assessing credibility and reliability of the evidence given by witnesses before you, I must now explain to you, how to use that credible and reliable evidence. These are directions of the applicable law. You must follow these directions.
[21] When you have decided the truthfulness and reliability of evidence, then you can use that credible and reliable evidence to determine the questions of facts, which you have to decide in order to reach your final conclusion, whether the accused is guilty or not of the charges. I have used the term “question of fact”. A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the primary facts or circumstances as revealed from evidence before you and of any legitimate inference which could be drawn from those given sets of circumstances. You as Assessors, in determining a question of fact, should utilise your commonsense and wide experience which you have acquired living in this society.
[22] It is not necessary to decide every disputed issue of fact. It may not be possible to do so. There are often loose ends. Your task is to decide whether the prosecution has proved the elements of the offences charged.
[23] In determining questions of fact, the evidence could be used in the following way. There are two concepts involved here. Firstly, the concept of primary facts and secondly the concept of inferences drawn from those primary facts. Let me further explain this to you. Some evidence may directly prove a thing. A person who saw, or heard, or did something, may have told you about that from the witness box. Those facts are called primary facts or is direct evidence.
[24] But in addition to facts directly proved by the evidence or primary facts, you may also draw inferences – that is, deductions or conclusions – from the set of primary facts which you find to be established by the evidence. This is also referred to as circumstantial evidence. If you are satisfied that a certain thing happened, it may be right to infer that something else also occurred. That will be the process of drawing an inference from facts. However, you may only draw reasonable inferences; and your inferences must be based on facts you find proved by evidence. There must be a logical and rational connection between the facts you find and your deductions or conclusions. You are not to indulge in intuition or in guessing.
[25] In order to illustrate this direction, I will give you a very simple example. Imagine that when you walked into this Court room this afternoon, you saw a particular person seated on the back bench. Now he is not there. You did not see him going out. The fact you saw him seated there when you came in and the fact that he is not there now are two primary facts. On these two primary facts, you can reasonably infer that he must have gone out although you have not seen that. I think with that example you will understand the relationship between primary fact and the inferences that could be drawn from them.
[26] I must emphasize, it does not matter whether that evidence was called for by the prosecution or by the defense. You must apply the same standards, in evaluating them.
[27] Then we come to another important legal principle. You are now familiar with the phrase burden of proof. It simply means who must prove the case. That burden rests entirely on the prosecution to prove the guilt of the accused.
[28] This is because the accused is presumed to be innocent. He may be convicted only if the prosecution establishes that he is guilty of the offences charged. It is not required for the accused to prove his innocence.
[29] I have said that it is the prosecution who must prove the allegations. Then what is the standard of proof or degree of proof, as expected by law?
[30] For the prosecution to discharge its burden of proving the guilt of the accused, it is required to prove it beyond any reasonable doubt. This means that in order to convict the accused, you must be sure that the prosecution has satisfied beyond any reasonable doubt every element that goes to make up the offences charged. A reasonable doubt is not any doubt or a mere imaginary doubt but a doubt based on reason. The doubt must only be based on the evidence presented before this Court.
[31] It is for you to decide whether you are satisfied beyond reasonable doubt that the prosecution has proved the elements of the offences, in order to find the accused guilty. If you are left with a reasonable doubt about guilt, your duty is to find the accused not guilty. If you are not left with any such reasonable doubt, then your duty is to find the accused guilty.
[32] You must not let any external factor influence your judgment. You should disregard all feelings of sympathy or prejudice, whether it is sympathy for the complainant in this case or anger or prejudice against the accused or anyone else. No such emotion should have any part to play in your decision. You must approach your duty dispassionately, deciding the facts upon the whole of the evidence. You must also not speculate about what evidence there might have been. You must adopt a fair, careful and reasoned approach in forming your opinions.
[33] Let us now look at the charges contained in the Amended Information.
[34] There are two charges preferred by the Director of Public Prosecutions (DPP), against the accused:
COUNT 1
Statement of Offence
AGGRAVATED ROBBERY: Contrary to Section 311 (1) (a) of the Crimes Act 2009.
Particulars of Offence
MELI CAMA WELEILAKEBA with Others, on the 29th day of July 2019, at Nasinu, in the Central Division, robbed PREM PRASAD of FJD 10,000.00 cash, AUD 2,000.00 cash, 1 x Mangal Sutra Chain, 1 x Gold Chain, 1 x Gold Ring, 1 x Silver Ring, 1 x DELL Brand Laptop Bag, 1 x Grey HP Laptop, 1 x Hard Drive, 2 x USB Sticks, 1 x Passport of Prem Prasad, 1 x DKNY Wrist Watch, 1 x Blue Nike Canvas, 1 x Silver Samsung (S7) Phone, 1 x Wallet, 1 x BSP ATM Card, 1 x BSP Visa Card, 1 x ANZ Card, 1 x BNZ Visa Debit Card, 1 x Jeep 2012 Compass Car Key (Vehicle Registration CHYVAN), 1 x Volkswagen Caddy Car Key (Vehicle Registration JU251) and 1 x House Key, the property of PREM PRASAD.
COUNT 2
Statement of Offence
THEFT: Contrary to Section 291 (1) of the Crimes Act 2009.
Particulars of Offence
MELI CAMA WELEILAKEBA with Others, between the 22nd day of July 2019 and the 1st day of August 2019, at Nasinu, in the Central Division, dishonestly appropriated 1 x Maroon Ford Fiesta (Vehicle Registration JA 710), the property of JOSEPH WORK with the intention of permanently depriving JOSEPH WORK of the said vehicle.
[35] As you would observe the first count is one of Aggravated Robbery, while the second count is one of Theft. For convenience, I would first explain to you the elements of Theft, with which the accused is charged in Count 2.
[36] In terms of Section 291 (1) of the Crimes Act No 44 of 2009 (“Crimes Act”) “A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property”.
[37] Section 291 (2) of the Crimes Act provides that an offence against sub-section (1) is to be known as the offence of Theft.
[38] Therefore, in order for the prosecution to prove the second count of Theft, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) During the specified period (in this case between the 22 July 2019 and 1 August 2019);
(iii) At Nasinu, in the Central Division;
(iv) With others;
(v) Dishonestly;
(vi) Appropriated 1 x Maroon Ford Fiesta (Vehicle Registration JA 710), the property of Joseph Work;
(vii) With the intention of permanently depriving the said Joseph Work of the said vehicle.
[39] Let me now elaborate on these elements in respect of the second count.
[40] The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offence.
[41] The second element relates to the specific time period during which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond any reasonable doubt.
[42] The fourth element is that the accused committed this offence in the company of other persons. Please bear in mind 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. Those who commit crime together may play different parts to achieve their purpose. The prosecution must prove that the accused took some part in committing this offence.
[43] The fifth element is the element of dishonesty. You have to consider whether the accused acted dishonestly [and thereby appropriated the Maroon Ford Fiesta vehicle, which is the property of Joseph Work]. “Dishonesty” is a state of mind of the accused. In order to determine whether the accused had a dishonest mind, you have to adopt a two-tiered approach as defined in Section 290 of the Crimes Act.
(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant (accused) to be dishonest according to the standards of ordinary people.
First, according to the ordinary standards of reasonable and honest people, you have to decide whether what was done by the accused was dishonest. If it was not dishonest by those standards, that is the end of the matter and the prosecution fails. [Dishonest according to the standards of ordinary people-which is an objective test].
If it was dishonest by those standards, then you must consider whether the accused himself has realized that what he was doing was dishonest by those standards. In most cases, where the actions are obviously dishonest by ordinary standards, there will be no doubt about it. It will be obvious that the accused himself knew that he was acting dishonestly. It is dishonest for the accused to act in a way which he knows ordinary people consider to be dishonest, even if he asserts or genuinely believes that he is morally justified in acting in the manner he did. [Known by the accused to be dishonest according to the standards of ordinary people-which is a subjective test].
Therefore, the prosecution should prove beyond reasonable doubt that the accused acted dishonestly [and thereby appropriated the Maroon Ford Fiesta vehicle, which is the property of Joseph Work].
[44] The sixth element is that the accused, together with the other persons, appropriated the property of Joseph Work. ‘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.
[45] At this stage I wish to make reference to Section 293 (1) and (2) of the Crimes Act.
“(1) for the purposes of this Division, any assumption of the rights of an owner to ownership, possession or control of property, without the consent of the person to whom it belongs, amounts to an appropriation of the property.
(2) Sub-section (1) applies to a case where a person obtains possession of property (innocently or not) without committing theft, and there is a later assumption of rights without consent by keeping or dealing with it as owner.”
[46] The final element the prosecution must prove is that the accused, together with the other persons, intended to permanently deprive Joseph Work of his property (the Maroon Ford Fiesta vehicle). The law provides that a person is said to have intention with respect to conduct if he or she means to engage in that conduct. Therefore, to prove this element, the prosecution should prove beyond reasonable doubt that the accused intended to permanently deprive Joseph Work of his property.
[47] You should also remember, that no witness can look into an accused’s mind and describe what his state of mind was at the time of the alleged incident. Therefore, it is not possible to have direct evidence regarding an accused’s state
Section 300 of the Crimes Act provides:
“(1) For the purposes oses of this Division, if —
(a) a person appropriates property belonging to another without meaning the other permanently to lose the thing itself; and
(b) the person’s intention is to treat the thing as the person’s own to dispose of regardless of the other’s rights;
the person has the intention of permanently depriving the other of it.”
[49] Let me now explain to you the elements of Count 1, the offence of Aggravated Robbery.
[50] Section 311 (1) of the Crimes Act reads as follows:
“A person commits an indictable offence if he or she-
(a) Commits a robbery in company with one or more other persons; or
(b) Commits a robbery, and at the time of the robbery, has an offensive weapon with him or her.”
[51] Section 311 (2) of the Crimes Act provides that an offence against sub-section (1) is to be known as the offence of Aggravated Robbery.
[52] As you would observe, in this case the prosecution has charged that the accused committed Robbery in the company of other persons.
[53] The offence of Robbery is defined in Section 310 (1) of the Crimes Act as follows:
“310. — (1) A person commits an indictable offence (which is triable summarily) if he or she commits theft and —
(a) immediately before committing theft, he or she—
(i) uses force on another person; or
(ii) threatens to use force then and there on another person —
with intent to commit theft or to escape from the scene; or
(b) at the time of committing theft, or immediately after committing theft, he or she—
(i) uses force on another person; or
(ii) threatens to use force then and there on another person—
with intent to commit theft or to escape from the scene.”
[54] Therefore, in order for the prosecution to prove the first count of Aggravated Robbery, they must establish beyond any reasonable doubt that;
(i) The accused;
(ii) On the specified day (in this case the 29 July 2019);
(iii) At Nasinu, in the Central Division;
(iv) With others;
(v) Robbed Prem Prasad of his property (the items listed in the charge).
[55] Let me now elaborate on these elements in respect of the first count.
[56] The first element is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that the accused and no one else committed the offence.
[57] The second element relates to the specific day on which the offence was committed. The third element relates to the place at which the offence was committed. The prosecution should prove these elements beyond any reasonable doubt.
[58] The fourth element is that the accused committed this offence in the company of other persons. I wish to reiterate what I stated earlier in this regard. You must bear in mind 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. Those who commit crime together may play different parts to achieve their purpose. The prosecution must prove that the accused took some part in committing this offence.
[59] The fifth and final element the prosecution must prove is that the accused, robbed Prem Prasad of his property (the items listed in the charge). 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. Robbery when committed in the company of one or more other persons, amounts to Aggravated Robbery.
[60] I have already explained to you the elements of the offence of Theft. Remember a person commits Theft if he or she dishonestly, appropriates property belonging to another, with the intention of permanently depriving the other of that property. I have already explained to you as to what is meant by dishonesty; as to what is meant by appropriating property belonging to another; and also as to what is meant by intending to permanently deprive another of his property. In this instance the property concerned is the property of Prem Prasad.
[61] I also wish to reiterate once again that no witness can look into an accused’s mind and describe what his state of mind was at the time of the alleged incident. Therefore, it is not possible to have direct evidence regarding an accused’s state of mind. Knowled intentntention of an accused can only be inferred based on relevant proven facts and circumstances.
[62] If you atisfied beyond any reasonable doubt that the accused, on 29 July 2019, at Nasinu, together ther with other persons, robbed Prem Prasad of his property (the items listed in the charge), then you must find him guilty of the first count of Aggravated Robbery.
[63] If you find that the prosecution has failed to establish any of these elements in relation to the charge, then you must find the accused not guilty of the first count of Aggravated Robbery.
[64] If you are satisfied beyond any reasonable doubt that the accused, between the 22 July 2019 and 1 August 2019, at Nasinu, together with other persons, dishonestly appropriated 1 x Maroon Ford Fiesta (Vehicle Registration JA 710), the property of Joseph Work, with the intention of permanently depriving Joseph Work of the said vehicle, then you must find him guilty of the second count of Theft.
[65] If you find that the prosecution has failed to establish any of these elements in relation to the charge, then you must find the accused not guilty of the second count of Theft.
[66] These are some of my directions on law and I will now briefly deal with the evidence presented before this Court.
Case for the Prosecution
[67] The prosecution, in support of their case, called the complainant in Count 2, Joseph Work, the complainant in Count 1, Prem Prasad, witness Nacanieli Katonitunuma, Police Constable 5620 Vosaki, Detective Corporal 3372 Ame Raogo and former Inspector of Police Laisiasa Tamani.
[68] Evidence of Joseph Work
(i) He is the complainant in Count 2 in this matter. He is currently employed at the Fiji Independent Commission Against Corruption (FICAC) as a State Counsel. He has been serving in that capacity since 1 September 2014 (for 6 years now).
(ii) He is currently residing at Rewa Street in Suva. Prior to that he had been residing at Lot 12, Udit Narayan Road, Raiwaqa, Suva. He had moved to that flat on 20 December 2018 and had been residing there until April this year. His three nieces, who were University students, were staying with him.
(iii) The witness testified that he recalls the 22 July 2019, which was a Monday. On that day only the witness and one of his nieces were in the flat. His other two nieces were in Sigatoka. He said he had gone to bed at 3.00 in the morning, since he was working on a research for a matter that was for the next day.
(iv) At around 6.00 in the morning, he had been woken up by his niece Mona. When he woke up he had noticed that the living room door and grill were open, the burglar bars on the window were damaged and was slightly ajar, the louvre blades were also removed and placed on the ground outside.
(v) He went outside the living room door and found that his Ford Fiesta vehicle, which was phantom purple in colour (looks more maroonish he said), with registration number JA 710 was not in the driveway and had been stolen.
(vi) He later found that the car keys to the vehicle were also missing. The car keys are usually placed on the bookshelf or the dining room table in the living room. The witness testified that on the said day he had placed the car keys on the dining room table.
(vii) The witness testified that thereafter, he had looked around for other items stolen and had then called the Raiwaqa Police Station.
(viii) The witness said that he had next seen his vehicle around 2 weeks later – it was on 2 August 2019, if he recalls correctly. He had been called by the Raiwaqa Police to accompany them to the place where the vehicle had been found so as to identify it.
(ix) When asked as to where exactly he had been taken to identify the vehicle the witness said: “I apologise it was the first time I had gone to that area. It was past Makoi.”
(x) Joseph Work said that on seeing the vehicle he was able to identify it. When asked to describe the condition of the vehicle he said: “The car was absolutely filthy. The exterior of the car was dirty, the windscreen and windows were spray painted with black spray.”
(xi) At the time the vehicle was found it had a false registration number, which was placed on top of the original registration number. The witness said the Police had removed the false registration number. Thereafter, he was able to identify the original registration number JA 710.
(xii) Joseph Work testified that he still is using the said vehicle bearing registration number JA 710.
[69] Evidence of Prem Prasad
(i) He is the complainant in Count 1 in this matter. The witness testified that he resides at Lot 14, Painapiu Street, Nakasi. He has been residing there for the past 14 years. He is married and has one child, a son who is now 8 years old.
(ii) The witness said that he is a businessman. He is an air-conditioning, refrigerator and electrical contractor. He has been operating his business for 5 years.
(iii) He recalled the incident which took place on 29 July 2019. Around 1.30 p.m. he was on his bed in his bedroom. He had been resting after lunch. His house girl was in the lounge/sitting room. At the time his son was at school and wife was at work.
(iv) The witness testified that he had heard someone (talk) in iTaukei/Fijian language. He had tried to come out of his bed. The witness said: “As soon as I tried to turn around the knife was already on my neck. I was still in my bedroom.”
(vi) The witness continued that 2 persons were already in his bedroom – one with a knife, the other with a screwdriver. The person holding the knife was on his right. The person with the screwdriver was trying to poke him with the screwdriver and was on his left. The witness was lying flat on the bed facing the ceiling. The witness said: “They said don’t shout or we will cut you.” Later the witness said that it was the man holding the knife who said so.
(vii) The witness said that he was afraid. They held his collar and started asking for money and other jewelleries. The witness had told them that he had no money. “Then they said ‘you businessman’”.
(viii) The witness testified that the faces of the 2 persons were not covered.
(ix) The witness was then asked the following questions in evidence in chief:
Q. What happened next?
A. Then they start dragging me on the floor to my kid’s room. One was dragging me and the other one was following him.
Q. Whilst they were dragging you, were they still armed with the cane knife and screwdriver?
A. Yes.
Q. What sort of a knife was it?
A. It was a big cane knife.
Q. Who was dragging you?
A. The one with the cane knife. The person with the screwdriver he was searching behind him in the same room – in the kid’s room.
Q. What was the distance between your room and the kid’s room?
A. It was all in the same room – kid’s room. There was just one meter distance between me and the guy with the screwdriver.
Q. What was the distance between you and the one with the cane knife?
A. Maybe 30 cm – because he was holding my collar with the cane knife. He was on my side – right side.
Q. What is the distance between your bedroom and the kid’s bedroom to which you were dragged?
A. 3 meters.
Q. What happened in the kid’s room?
A. They tried to search but they didn’t find anything there – in that room.
Q. How long were you in the kid’s room?
A. 3 minutes or 4 minutes.
Q. What happened after that?
A. They asked me again “where is the money?” I told them that the money is in the car. They dragged me again to the sitting room – the same guy with the knife. The other person with the screwdriver was following him behind.
While dragging me to the sitting room through the passage I saw another guy (third guy in the house) and my house girl in the washroom and the toilet area. I saw him with a small knife – guarding the house girl.
Q. What do you mean by guarding the house girl?
A. The guy was standing beside her. The witness said the distance was about 50 cm or half a meter.
Q. Was the third guy’s face covered?
A. No.
Q. After the 2 men dragged you to the sitting room, what happened?
A. The guy with the screwdriver was torturing me and trying to put the screwdriver in my eye. They asked the same question “Where is the money?” Then they dragged me back to the bedroom.
Q. What is the distance from the sitting room to the bedroom?
A. 7 meters. The witness said like the distance between the main door of the Courtroom to the door of the Assessors’ room. [Parties agreed that the distance was between 7-8 meters].
The same guy with the knife was dragging me.
Q. What happened next?
A. The other guy found the locker/safe – the same guy with the screwdriver.
Q. Where is the locker?
A. It was in my bedroom – beside my bedroom on the floor.
Q. How big is your bedroom?
A. 3.5 meters x 3.5 meters.
Q. About half the size of this Court?
A. Yes.
Q. What happened after that?
A. He lifted the locker and put it on top of the bed.
Q. How big is the locker?
A. The witness demonstrated the size of the locker.
Q. What is inside the locker?
A. There was money and jewellery.
Q. Can you recall how much money was in the locker?
A. It was $10,000.00 FJD and $2,000.00 AUD.
Q. The jewelleries?
A. My wife’s mangal sutra (chain) and my bank cards.
The guy with the cane knife forced me to open the locker. I said I don’t have the password. Then he started to jump on the bed with the knife.
Q. Where were you?
A. I was just standing beside the bed. The guy with the screwdriver was beside me.
Then he hit me with the knife on the back – with the flat part of the knife. “He said open otherwise he will cut me.” So I opened the locker and gave the money and jewelleries.
Q. What is the locker made of?
A. It is somewhat similar to the ones you find in hotels.
Q. What other jewelleries were there?
A. There was a mangal sutra, a gold chain and two rings (one silver, one gold).
Q. These were the only items that were in the locker?
A. Yes.
Q. How much money did you give?
A. I gave all the money in the locker. $10,000.00 FJD and $2,000.00 AUD plus $1500.00 NZD (after conversion).
Q. What do you mean after conversion?
A. Canadian dollars was converted to New Zealand Dollars. The total was $1,500.00 NZD.
Q. After giving them the money what happened next?
A. I had a laptop bag in the room where they put all the money and other items. Then they pushed me to the bed and ran out of the house.
Q. What are the other items?
A. All those items which were in the locker.
The witness then described as to all the items that were taken from him as listed in Count 1 of the Amended Information.
Q. After the men had put the money and the other items in the laptop bag, where did they head to?
A. They pushed me on the bed and they ran out of the house.
Q. What about the third guy?
A. When the two ran out, the third one was together with them.
Q. What did you do?
A. I ran behind them. Then I saw a maroon Ford Fiesta car parked on my driveway.
Q. Do you recall seeing anything specific about that Ford Fiesta car?
A. Yes. I saw the number plate on it – IL 152.
Q. Did all three of them run together?
A. Yes.
Q. You had earlier mentioned one of the men was holding a small knife and guarding the house girl. Was he also present in the bedroom when the guy with the cane knife was jumping on the bed?
A. No.
Q. Could you see from the bedroom where the house girl and the third guy was?
A. No.
Q. Did that third guy ever come into the bedroom?
A. No.
Q. Whilst you were in the bedroom, you said one was holding the cane knife and one was holding the screwdriver?
A. Yes.
Q. Was there any obstruction between you and the two persons?
A. Witness asks what type of obstructions.
Q. Was there anything blocking your view from seeing them both?
A. No.
Q. You can clearly recall their faces?
A. Yes.
Q. Would you be able to describe the two persons starting with the person who held the cane knife?
A. The guy with the cane knife had a tattoo on the right side of his face. He was dark in complexion. Say about 165 cm (5 feet 6 inches or 5 feet 7 inches).
Q. His build?
A. He was a built guy.
Q. Would you be able to say how old he was?
A. Yes. Somewhere between 35-40 years.
Q. In respect of the guy holding the screwdriver can you describe his complexion?
A. He was fair.
Q. His height?
A. Somewhat similar to the other guy.
Q. Any distinct features you noticed?
A. Yes. While he walked around, it seems like he had an injured leg.
Q. Can you roughly tell his age?
A. About 35-36 years.
Q. What was his build?
A. He was not that built. He was a skinny guy. Body build like me.
Q. Would you be able to say what ethnicity they were? Man with cane knife?
A. Fijian/iTaukei.
Q. Man with screwdriver?
A. Fijian/iTaukei.
Q. Could you tell the Court how long the dragging lasted? From the bedroom to the kid’s room, kid’s room to the sitting room, and sitting room back to the bedroom?
A. Total time was like 10 minutes they were in the house.
Q. What was the lighting in the house? Could you clearly see?
A. Yes.
Q. What time did the men enter your house?
A. 1.30 p.m.
...........
Q. Have you ever seen these men before?
A. No.
Q. When was the next time you saw anyone of them?
A. When I was being called at Nakasi Police Post.
Q. Why were you called to Nakasi Police Post?
A. They called me to identify from the parade from other people.
Q. Do you know what day was this?
A. It was 3rd of August.
Q. What happened at Nakasi Police Post?
A. Police asked me just to tell the face of the guy to them confidentially from the parade. I told them that I could clearly recognise the face of the guy with the screwdriver and I told the police his face/identification.
..............
Q. Did you see all 3 of the persons get into the vehicle?
A. Yes.
Q. Then?
A. When the car started to move, I threw stones at the car and then called the neighbours.
Q. Was there anyone else in the car apart from the 3 persons who came into your house?
A. Yes.
Q. Did the stones you threw strike the car?
A. No.
(x) The witness then testified that the neighbours came and about 30 minutes later the Police came to his house. The Police had taken fingerprints in the house and recorded his statement.
(xi) The witness also testified in detail as to all the other items that were robbed from his house.
(xii) The witness was then asked the following further questions in evidence in chief:
Q. If you were to see anyone of the 3 men again, would you be able to identify them?
A. Yes.
Q. Have you seen any of those 3 men today?
A. No.
Q. You said you had gone to Nakasi Police Post on 3 August 2019 to identify one of the persons who had robbed you?
A. Yes.
Q. That person you identified have you seen that person today?
A. I have not seen anybody outside.
Q. How about inside this Courtroom?
A. Yes.
Q. Where in the Courtroom is this person seated?
A. Second row from the back. Later the witness says third row from the back.
Q. The person you had seen today, was he the person holding the cane knife, or the screwdriver or the person holding the small knife guarding your house girl?
A. The screwdriver.
Q. Could you point out to him?
A. Witness points towards the accused in the dock.
(xiii) The witness Prem Prasad was cross-examined at length by the defence.
(xiv) The defence highlighted several inconsistencies in the testimony given in Court by the witness vis a vis his statement made to the Police on 29 July 2019:
However, in his statement made to the Police, it is recorded as follows: “.... whilst I was in my bedroom when 3 unknown iTaukei men entered with a cane knife, screwdriver and a pinch bar.”
The witness explained that the pinch bar was beside the guy who was guarding the house girl – on the floor. The pinch bar was on the floor.
However, in his statement made to the Police, it is recorded as follows: “They told me to give them money and they put the knife on my shoulder.”
The witness explained that what he told the Police is what he has told Court. Whatever is written in the statement he said is their own (the Police) interpretation.
However, in his statement made to the Police, it is recorded as follows: “.... whilst I was in my bedroom ..... and one who was holding onto the screwdriver wanted to poke my right eye.”
The witness explained that it was multiple times (that the person with the screwdriver was trying to poke the screwdriver in his eye multiple times).
However, in his statement made to the Police, it is recorded as follows: “I told them I had no money and they dragged me to our dressing room.”
The witness explained that his dressing room is also in his kid’s room. It’s part of the same room.
v. In his testimony in Court, the witness had stated that the iTaukei men had searched his kid’s room. There was nothing there. Then they had dragged him to the sitting room.
However, in his statement made to the Police, it is recorded as follows: “They dragged me to our dressing room where they took my company laptop branded HP colour in grey of $1,200.00 and one pair blue and white Nike canvas of $150.00.”
vi. In his testimony in Court, the witness stated that the iTaukei men had dragged him from his room to the kid’s room, then to the sitting room, and back to his bedroom.
However, in his statement made to the Police, it is recorded as follows: “They dragged me to the kitchen where they took my wallet.”
The witness explained that his lounge and his sitting room is an open design meaning that the lounge and the kitchen are in the same space.
(xv) The Defence also highlighted the following omissions in the testimony given in Court by the witness vis a vis his statement made to the Police.
(xvi) It was suggested to the witness in cross-examination that even in his second statement made to the Police on 2 August 2019 (4 days after the incident) that he has given no description of the 3 men who had entered his house on 29 July 2019, although in the said statement he has given a description of the fourth person who was in the maroon Ford Fiesta car parked on his driveway (the driver of the vehicle).
(xvii) It was also suggested to the witness that on the day he made his second statement, on 2 August 2019 that the accused was brought by a Police Officer past the table where his statement was being recorded. It was also suggested that the Police Officer who escorted the accused had stopped at the table and told the accused to turn to the witness and to say hello.
(xviii) It was also suggested to the witness that the Lady Police Officer who was recording his statement on 2 August 2019 had then asked him if he recognised the accused’s voice and asked the witness if he knew him and that the witness had answered no. To this suggestion the witness answered as follows: “No. That happened inside where the cell was – the statement which she is referring to, that happened inside where the cell was.” However, when this suggestion was put to him again the witness answered yes.
(xix) It was also suggested that after his statement was recorded and concluded on 2 August 2019, some other Police Officers who were involved in the arrest of the accused had spoken to the witness close to the cell where the accused had been detained. The witness initially answered “I am not sure on that”. Later the witness answered: “That was not inside (meaning not in the room where the statement was recorded) that was in the corridor”.
(xx) The witness agreed that the said officers had informed him that the accused was arrested in relation to the robbery that occurred at his house.
(xxi) It was also suggested to the witness that after the said officers had spoken to him, that he had given them some money. The witness denied this suggestion.
(xxii) It was further suggested to the witness that the accused was shown to him by Police Officers on 2 August 2019, while he was in his cell. The witness said yes to this suggestion. Later the witness said that he had not recognized the accused because there was no light inside the cell.
(xxiii) Several questions and suggestions were put to the witness with regard to the manner in which the Identification Parade was conducted on 3 August 2019.
(xxiv) The witness agreed that not all the male participants at the Identification Parade were of the same build, same height, same age group and same complexion. The witness also agreed that only one person had a beard and the rest were clean shaven. The witness also agreed that the male with the beard was the fairest in complexion out of all the rest of the males.
(xxv) The following suggestions were, inter alia, put to the witness in cross-examination:
(xxvi) In re-examination, the following questions were put to the witness:
Q. Did you see him on 2 August 2019?
A. Not clearly.
.............
Q. You had mentioned about the corridor. At that given instance,
were you informed about the accused person by other Police
Officers?
A No. Only thing the Police officers asked me in the corridor, “Is he
the guy?”, and I advised them that I need to see him clearly.
Q. Apart from that anything else?
A. No.
Q. What do you mean by “Is he the guy”?
A. When I came from the cell outside in the corridor, then the
policeman asked me is he the man and I advised him that I need
to see him clearly.
Q. This is in reference to a man in the cell, not in the corridor?
A. Yes, in the cell.
[70] Evidence of Nacanieli Katonitunuma
(i) The witness is a soldier by occupation. He is part of the Royal Fiji Military Forces (RFMF). He works at the Queen Elizabeth Barracks in Nabua. He has been employed as a soldier for the past 20 years.
(ii) He resides at Qaranivalu Road in Kalabu. He said he resides at the Kalabu Settlement which is an informal settlement. He has been residing at this residence for the past 19 years. There is a driveway from Qaranivalu Road that reaches his house. The distance between his house and Qaranivalu Road is about 100 meters.
(iii) The witness testified to an incident which took place on the 27 July 2019. When he left home for work around 6.00 in the morning, he saw a car parked outside his house. He described the vehicle as a maroon vehicle with registration number JA 710. He later said the vehicle was a maroon Ford. He said the vehicle was parked on the driveway leading to his house. The witness said he proceeded to work.
(iv) The witness said that when he returned home after work, he saw the car still parked at the same position. There was no one in the car. The witness testified that he had taken a picture of the vehicle using his mobile phone.
(v) The witness testified further that the said car had been parked in front of his house for 2 days. During those 2 days there was no movement of the car. He said on the next day, the 28 July 2019 (which was a Sunday) he had heard and later seen the vehicle reversing. He didn’t see who was in the car at the time as the vehicle was heavily tinted.
(vi) The witness said he saw the vehicle next on 31 July 2019. He had seen the vehicle when he was returning home from work. The vehicle had been parked outside his house, at the same place it was parked on the 27 July 2019. At the time the vehicle had a different registration number IL 152. The witness had taken a picture of the vehicle again and informed his Team Leader. He had also viber messaged the photos to this Team Leader. He said he did so because there was a change in the vehicle registration number.
(vii) The witness testified that on the next day, 1 August 2019 the Police had come. However, he had not been at home when the Police came.
[71] Evidence of Police Constable 5620 Vosaki
(i) The witness is a Police Officer by occupation. He said he is based at the K9 Unit currently based at Nasese. He has been with the K9 Unit for the past 7 years, based at Nasese.
(ii) The witness testified that the K9 Unit is comprised of the Dog Section under the Fiji Police Force. Their job is comprised of attending to reports and assisting Police Stations that require their assistance. The assistance is mainly in relation to cases of robbery and drugs.
(iii) Of the past 7 years he has been a Dog Handler for the past 5 years. He testified that he has attended numerous reports regarding robbery cases.
(iv) The witness said that he has undergone training in this area. Every handler undergoes 6 months training with the K9 which is a dog (Canine). During the 6 months training it is required that a Handler acquires a bond with the dog/K9 in order to know what the dog is trying to say to them – to signify what the dog is trying to say to them. The Handler is to work with the dog they have been assigned to. This means that each Handler will have one specific dog. After the 6 months training is completed the Handler and the dog is then deployed for operational duties.
(v) The witness said that during the 6 months training a particular name is given to the K9. When he underwent the first 6 months training he passed out with his dog in 2014. The name of his first dog was K9 Rex. The name of his second dog is K9 Zamp. He passed out with his second dog in 2018.
(vi) The witness testified to the events which took place on 1 August 2019. On that day he had been registered for the day shift at Nasese. He had reported to work at 6.30 in the morning. He had then conducted grooming exercises and retrieving exercises with his dog. They remained on stand-by to assist if needed in any investigation.
(vii) On the 1 August 2019 his assistance was requested by the Nakasi Police Station regarding a case of Robbery. The Nakasi Police had stated that they had located a vehicle that was involved or used in a robbery.
(viii) He had then proceeded to the place where the vehicle was located. He had arrived at the scene around 8.51 in the morning. The vehicle was found abandoned around the round-about at Kapenaumi Feeder Road off Qaranivalu Road. It was a maroon Ford Fiesta. At the time it had the registration number IL 152.
(ix) He was then requested by the Crime Sergeant Nakasi Police Station to conduct a search with his K9 Zamp. The witness said that he then casted K9 Zamp within the vehicle (the interior of the vehicle) whereby a scent was picked up by the K9. The K9 then followed the scent which he picked up from the vehicle along the common track for approximately 20 meters. The scent had led them to a green wooden house.
(x) The witness testified that he had then conducted a general search around the premises of the wooden house. The witness said that the house was surrounded by flowers planted around the house. There was no other house of green colour apart from the one that K9 Zamp had indicated. There was no one in the house and the house was left empty.
(xi) The witness said that he then concluded the track as negative result since no one was in the premises. He had then proceeded in conducting normal clearance around the house – meaning they conducted a general house to house enquiry as to whether anyone had seen or heard anyone moving about the house.
(xii) The witness further explained that by negative result he meant that no one was located within the premises. So they concluded that the track as a negative result.
(xiii) When asked as to what it means that the K9 had picked up a common scent and led to the green house, the witness said: “The scent that was left within the vehicle – that particular scent is what led us to the house mentioned.”
(xiv) In cross-examination the witness agreed that his dog Zamp did not confirm to whom the particular scent belonged to. He also agreed that the result he got was inconclusive.
(xv) The following suggestions were, inter alia, put to the witness:
Q. This common track, the track ended at the Veitata Drive – it was a roundabout – and the track ended there?
A. The scent ended up at the green house.
Q. The 20 meters track ended at the Veitata Drive, which was a
roundabout. At the end was the green house?
A. The dog (K9) had followed the common track towards the green wooden house.
Q. Just in front of the green house was the roundabout, right?
A. Yes.
Q. That was the road that links to another road at the top?
A. Yes.
Q. You would agree with me that the scent the dog picked up
ended at that roundabout?
A. No.
[72] Evidence of Detective Corporal 3372 Ame Raogo
(i) The witness is a Detective Corporal. He has been serving at the Nakasi Police Station for the past 5 years. Prior to that he was based at the Police Response Unit in Makoi. He has been part of the Fiji Police Force for the past 19 years.
(ii) The witness testified to the events which took place on 2 August 2019. He said that he together with officers of the Nakasi Police Station were conducting investigations into a case of Aggravated Robbery. He said that through Intelligence information and investigation, they had got some information that a suspect is around the Kalabu area – Tovata.
(iii) Based on the said information the witness testified as to how the accused had been arrested from his residence in the morning of 2 August 2019.
(iv) When asked as to the specific area from which the accused was arrested, the witness said: “It’s a settlement – we parked at the driveway at the roundabout. There are 2 roundabouts near the suspect’s house. The suspect’s house is a green wooden house. One of the roads come from Qaranivalu Road. It’s an access road that goes to the suspect’s house and the other one comes from Tovata which is also an access road to the suspect’s house.” The witness later referred to the settlement as the Tovata Settlement.
(v) The witness further explained that the green wooden house had a porch on the side attached to the main house. The boundary of the house is covered by flowers and some trees. It’s got a small cassava patch on the side of the house.
(vi) When asked as to what exactly led to that particular house the witness said: "After conducting investigations around the settlement. In this case a stolen car was used – it is a red Ford. We spent days and nights conducting enquiry and investigation in the settlement and we got information that the red Ford car was found in the area.”
(vii) After the arrest the accused had been escorted to the Nakasi Police Station for questioning.
(viii) The witness identified the accused in the dock.
[73] Evidence of Laisiasa Tamani
(i) The witness is a retired Inspector of Police. He had been serving at the Nakasi Police Station from March 2019 to September 2019 when he resigned from the Police Force. He had been part of the Fiji Police Force for 30 years. At the time he was serving at Nakasi he was the Crime Officer at the Nakasi Police Station.
(ii) The witness testified that early in the morning on 1 August 2019 he had received a phone call from Southern Division Operations Personnel. They informed that the vehicle they had been looking for which was stolen and used in the robbery at Nakasi had been found in the Kalabu Settlement.
(iii) The witness said that he had personally proceeded to the Kalabu Settlement where the vehicle was parked. At the time he arrived there it was after 6.00 but before 7.00 in the morning. He had seen a metallic red private car parked there. He couldn’t recall the registration number of the vehicle or even the make of the vehicle. He said the vehicle was parked near the house of an Army Officer.
(iv) The witness testified that he then called the K9 Unit and the Police Forensic Unit to come and examine the scene where the car was parked. He said first the Forensic Unit arrived and did their examination of the parked vehicle. The Dog Unit had come later to track where the suspect might have gone to after parking the vehicle there.
(v) When asked as to whether he recalls the findings of the K9 Unit, the witness said: “The K9 Handlers came to where the vehicle was parked. The scent went up to only a few meters from where the vehicle was parked. That’s where the K9 stopped and never continued.” Later the witness said that it was a wooden house – it was roughly about 50 meters from where the vehicle was parked.
(vi) Thereafter, the witness had called the Divisional Crime Officer Eastern to inform him to organize a search party to search in the vicinity of the house. Accordingly a search was conducted. Since the house was vacant at the time, the search was conducted only outside the house and not inside.
(vii) Thereafter, the witness testified to the events that transpired on 3 August 2019. He said the accused Meli Cama was being interviewed at the Nakasi Crime Office. Around midday he had been approached by Corporal Ame who had informed him that the accused had been asked to be included in the Identification Parade and Corporal Ame had requested him to conduct the Identification Parade.
(viii) He had then directed Corporal Ame to round up 9 members of the public who are male considering the age and features of the suspect in custody. Around 6.00 in the evening, Corporal Ame had said that he had collected 9 members of the public to be included in the ID Parade. The witness had then directed Corporal Ame to call Prem Prasad to be present at the Police Station and informed him to keep Prem Prasad in the General Room at the Nakasi Police Station.
(ix) The Identification Parade had been held inside the Crime Office General Room. The witness then explained as to how the Identification Parade was conducted.
(x) Thereafter, one PC Jerome had escorted the accused to the parade. The witness had then explained to the accused as to the purpose he was called for the parade. The accused had stood between the 6th and 7th persons/ positions in the parade. Thereafter, the complainant Prem Prasad was escorted into the room. It was nearly 7.00 in the afternoon at the time – after 6.45 in the afternoon.
(xi) Complainant Prem Prasad had then looked at the persons lined up at the parade for about 1 minute. Prem Prasad had then told the witness silently that the person who was standing between the 6th and 7th positions was the one who was holding the screwdriver on the day of the robbery. Accordingly, the witness confirmed that the accused had been identified at the parade by Prem Prasad.
(xii) Inspector Tamani was cross-examined at length by the defence and several suggestions were put to him.
(xiii) The witness agreed that the Fiji Police Force Standing Orders (FSO) mandates the procedures under which Identification Parades are to be conducted. He agreed that as per the FSO 9 members of the public should be picked for an Identification Parade. It was suggested to him that those 9 members should be of the same race, same build, same complexion, same height, same age and similar appearance.
(xiv) It was suggested to the witness that in the conducting of this ID Parade the 9 members of the public were not of similar ages. The witness agreed to this suggestion. It was suggested to the witness that the men that were lined up all had different complexions and the accused Meli was the fairest. The witness answered: “No. There were some in the ID Parade as similar age as Meli Cama.”
(xv) It was also suggested to the witness that the accused was the only one with the beard whilst the other 9 members were clean shaven. The witness answered: “That’s not true. Few other members of the public had a beard.”
(xvi) The witness agreed that the men in the line-up were not of the same height as the accused.
(xvii) It was further suggested to the witness that they were all not of the same appearance. The witness answered: “They were young. Not same appearance as Meli. For the ID Parade it is very hard to get similar persons as the person in custody.” The witness continued: “.... But at the time of the ID Parade it is very difficult process for the Police to get persons of similar age group and similar appearance”.
(xviii) It was further suggested to the witness that he had not followed the proper procedure in conducting the ID Parade (as set out in the FSO). The witness answered: “Yes that is true. That’s procedure/guideline – but to exactly follow for us is very hard practically.”
(xix) It was suggested to the witness that the Identification Parade was not fairly conducted. The witness denied the suggestion.
(xx) The witness admitted that he does not have his Police notebook with him where he said he had recorded all the happenings regarding the ID Parade held on 3 August 2019.
(xxi) It was also suggested to the witness that on 2 August 2019 the accused had been shown to the complainant Prem Prasad, whilst he was on his way back to the cell during the suspension of his caution interview statement. The witness denied the suggestion.
(xxii) The defence highlighted the following inconsistency in the testimony given in Court by the witness vis a vis his statement made to the Police on 3 August 2019:
In his testimony in Court, the witness had stated that he had instructed Corporal Ame to line up members of the public in the Crime Office General Room.
However, in his statement made to the Police, it is recorded as follows: “I lined up 9 members of the public.”
[74] That was the case for the prosecution. At the end of the prosecution case Court decided to call for the defence. You then heard me explain several options to the accused. I explained to him that he could address Court by himself or through his counsel. He could also give sworn evidence from the witness box and/or call witnesses on his behalf. He could even remain silent. He was given these options as those were his legal rights. He need not prove anything. The burden of proving his guilt rests entirely on the prosecution at all times.
[75] In this case, the accused opted to offer evidence under oath. He also called one witness in support of his case-Merewalesi Liku. During the course of his evidence the accused tendered to Court a Rough Sketch of his residence and the surrounding area, as Defence Exhibit DE1.
Case for the Defence
[76] Evidence of Meli Cama Weleilakeba
(i) The accused testified that he is now 33 years of age. He is a Carpenter by occupation.
(ii) The accused said that he is married. He got married in 2015. He has 2 children – the elder one is 3 years old and the younger one is 1 year old.
(iii) The witness said that in July 2019 he was residing in Bukunamate Settlement in Kalabu. It is 3 years now since he moved there.
(iv) He testified as to how he was arrested by Corporal 3372 Ame Raogo around 6.45 in the morning on 2 August 2019, and brought to the Nakasi Police Station.
(v) When asked to describe his appearance at the time of the arrest he said: “I had a beard, plus bushy hair. It was a bit big. I was wearing a t-shirt plus basketball shorts.” He said he hadn’t shaven his beard for about 3 weeks.
(vi) He testified that at the time of his arrest he had no injuries.
(vii) The witness also described the location and the surroundings of his house.
(viii) On reaching the Nakasi Police Station he had been taken into the Crime Investigation Room for interrogation. The Police Officers had interrogated him by asking questions as to his involvement in a robbery which took place in Nakasi on 29 July 2019. Thereafter, he had been caution interviewed in Inspector Tamani’s room by Officer Peni Moli.
(ix) During the caution interview he had been asked if he would be willing to take part in an Identification Parade and he agreed.
(x) When the caution interview had been suspended for dinner around 5.00 in the evening, and he was being escorted to the cell, he had been told by the Caution Interviewing Officer to look at a particular Indian man that was seated on the bench with another Police Officer. He was told to look at the man and to say hello and he had done so. Soon afterwards the Police Officer who was seated with the Indian man asked the Indian man whether he could recognise his voice and appearance. The Indian man had replied by saying no and shook his head.
(xi) The witness stated that he was then locked up in the cell. He alleges that while he was in the cell, he had been shown to the said Indian man by 3 Police Officers.
(xii) The witness then testified to the manner in which the Identification Parade was held.
(xiii) The witness was asked where he was around 1.30 p.m. on 29 July 2019. He answered as follows: “I could recall I took a break from weeding our plantation. I went inside the house to the kitchen sink and drank some water. On my way out back to the plantation I decided to look at the time at our wall clock that was hanging in our sitting room. I could clearly recall My Lord it was nearly 25 past 1.00. So I came outside and I started to sharpen my cane knife using and iron file and it took 5 to 10 minutes. Then I went back and finished my weeding. I think during that particular time I was sharpening my knife.” The witness said that his plantation is located outside the house – about 20 to 25 meters from the house.
(xiv) At the time he was filing his knife, he could clearly recall that he saw his neighbour Mere. He said what took his attention was, that she was calling her children in a loud voice. She was at the door inside the house and the children were outside of the house.
(xv) The witness testified that he had finished his weeding around 2.00 o’clock that day.
(xvi) The accused denied the allegations made against him.
(xvii) During the course of his evidence the accused tendered to Court a Rough Sketch of his residence and the surrounding area, as Defence Exhibit DE1.
(xviii) The accused was cross-examined at length by the Prosecution and the Prosecution’s version of events were suggested to him.
[77] Evidence of Merewalesi Liku
(i) The witness testified that she has been residing at the Bukunamate Settlement. She has been living there for about 1 year, with her husband, her 5 children and her brother-in-law.
(ii) In July 2019 she was residing at the said settlement.
(iii) She confirmed that Meli Cama was her neighbour.
(iv) The witness said that on 29 July she was at home with her children. She was doing housework and her children were playing. When asked as to what kind of housework she was doing, she said she was hanging out the laundry outside – at the back of the house. From the back of the house she could see Meli’s house. She said she was hanging the clothes outside at around 11.00 o’clock in the morning.
(v) At the time she said she could see Meli weeding in his plantation.
(vi) The witness testified that around 1.30 p.m. she went to call the children from outside and saw Meli still in his plantation.
(vii) In cross-examination the witness admitted that the fact that at around 1.30 p.m Meli was still outside in his plantation is not found in the statement made by her to the Police on 4 February 2020.
Analysis
[78] The above is a summary of the evidence led at this trial. The prosecution relied on the evidence of the complainant in Count 2, Joseph Work, the complainant in Count 1, Prem Prasad, witness Nacanieli Katonitunuma, Police Constable 5620 Vosaki, Detective Corporal 3372 Ame Raogo and former Inspector of Police Laisiasa Tamani, to prove its case. The defence relied on the evidence of the accused himself and witness Merewalesi Liku. The defence also tendered to Court a Rough Sketch of the accused’s residence and the surrounding area, as Defence Exhibit DE1.
[79] As I have informed you earlier, the burden of proving each ingredient of the two charges rests entirely and exclusively on the prosecution and the burden of proof is beyond any reasonable doubt.
[80] In assessing the evidence, the totality of the evidence should be taken into account as a whole to determine where the truth lies.
[81] The prosecution version of the events is that on 22 July 2019 the maroon Ford Fiesta vehicle bearing registration number JA 710 and belonging to Joseph Work had been stolen between 3.00 a.m. and 6.00 a.m. from his residence.
[82] On 27 July 2019, witness Nacanieli Katonitunuma had seen this vehicle parked on the driveway outside his house. At the time the vehicle had registration number JA 710. The next day, 28 July 2019, he had heard and later seen the vehicle reversing.
[83] On 31 July 2019, the said Nacanieli had seen the vehicle parked at the same spot. However, at this time the vehicle had registration number IL 152. He had informed his Team Leader, since the registration number had been changed.
[84] Police Constable 5620 Vosaki testified that on 1 August 2019, he had casted K9 Zamp within the said vehicle (the interior of the vehicle) whereby a scent was picked up by the K9. The K9 then followed the scent which he picked up from the vehicle along the common track for approximately 20 meters. The scent had led them to a green wooden house.
[85] Early in the morning on 2 August 2019, the accused had been arrested from the said wooden house. He had been brought to the Nakasi Police Station and caution interviewed. On 3 August 2019, he had been identified by Prem Prasad at the Identification Parade held that evening, as one of the 3 persons (the person holding the screwdriver) who came to his residence on 29 July 2019 and robbed him. According to Prem Prasad the robbers had got away in vehicle bearing registration number IL 152.
[86] During the cross examination the defence highlighted several inconsistencies and omissions in the testimony given in Court by the complainant Prem Prasad vis a vis his statement made to the Police. I have already explained to you how you should deal with inconsistences and omissions. You should first decide whether that inconsistency or omission is significant. That is, whether that inconsistency or omission is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation given by the witness for it. If there is an acceptable explanation for the inconsistency or omission, you may conclude that the underlying reliability of the account is unaffected.
[87] However, if there is no acceptable explanation given by the witness for the inconsistency or omission 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 and omission in the evidence given by a witness influence your judgment on the reliability of the account given by that witness is for you to decide. Therefore, if there is an inconsistency or omission 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 his evidence is inaccurate. In the alternative, you may accept the reason he provided for the inconsistency or omission and consider him or her to be reliable as a witness.
[88] In this case, it is clear from the evidence that the accused was not known to the complainant Prem Prasad, prior to the date of the alleged incident of robbery, which was 29 July 2019. It is also clear from the evidence that according to the complainant Prem Prasad he saw the accused for the first time on the date of the alleged incident. Thereafter, the complainant is said to have identified the accused at an Identification Parade held on 3 August 2019. Subsequently witness Prem Prasad identified the accused in Court during the course of his testimony.
[89] Identifying an accused in court after the alleged incident, when the accused is inside the accused box is known as ‘dock identification’. It is said that dock identification is unreliable in the absence of a prior identification in the investigation stage during an Identification Parade or from photographic identification. In this case although an Identification Parade was held the defence is challenging the manner in which the said parade was conducted. The defence has highlighted several infirmities or weaknesses in the manner in which the said Identification Parade was conducted.
[90] Therefore, you should consider the evidence pertaining to identification of the accused with caution. It is because the witness may identify the accused merely because he is sitting in the ‘dock’. The witness may assume that the accused is the person who committed the crime merely because he is sitting in the dock. Therefore, it is for you to decide what weight you should give to the evidence of dock identification.
[91] When you consider the evidence on the identification of the accused in respect of the first count, please bear in mind that an honest and a convincing witness can still be mistaken with regard to identity. Mistaken recognition can occur even of close relatives and friends. Recognition may be more reliable than identification of a stranger; but, even when the witness is claiming to recognise someone whom he or she knows, I wish to remind you that mistakes in recognition of close relatives and friends are sometimes made.
[92] Therefore, you should closely examine the following circumstances, among others, when you evaluate the evidence given by the complainant Prem Prasad on identification of the accused in relation to first count;
[93] All these matters go to the quality of the identification evidence. If the quality is good and remains good during the case, the danger of a mistaken identification is lessened. However, the poorer the quality of the identification evidence, greater is the danger of a mistaken identification.
[94] When you are considering the evidence led by the prosecution regarding the scent picked up by the K9 from the interior of the vehicle, which scent he then followed from the vehicle along the common track for approximately 20 meters leading to the green wooden house of the accused, bear in mind that no evidence has been led by the prosecution to establish as to how accurate or authentic this type of evidence is. No evidence has been led by the prosecution to establish as to how long such dog scent evidence would last or to establish as to the distance the scent evidence could lead to.
[95] The accused has testified in Court and totally denies all the allegations against him. The accused is also taking up the defence of alibi in respect of the Aggravated Robbery charge, which allegedly took place on 29 July 2019 (the first count). For this purpose he is relying on the evidence of Merewalesi Liku, a neighbour of his.
[96] May I now direct you on the defence of alibi. Defence of alibi means, the accused takes up the position that he was not at the crime scene but elsewhere at the time the crime was committed. The accused says that he was weeding in his plantation, adjoining his house, at the material time the alleged offence was committed on 29 July 2019. He called his neighbour Merewalesi Liku to give evidence on his behalf to support his defence of alibi.
[97] 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 offences are alleged to have been committed. The prosecution should still prove that it was the accused that committed the offences and therefore the alibi is not true. In other words, the prosecution must disprove the alibi.
[98] 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 first count. 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.
[99] You have heard the evidence of the witnesses for the prosecution as well as the defence. Therefore, it is for you decide which witnesses are truthful and which are not. If you accept the version of the accused that he was weeding in his plantation, adjoining his house, at the material time the alleged offence was committed on 29 July 2019, and never got involved with the crime that day, then you must find the accused not guilty of the said charge. However if you do not accept his version, that alone does not mean that he is guilty of the charge because the burden to prove his guilt beyond reasonable doubt remains with the prosecution at all times. It is for the prosecution to prove that the accused committed the crime and not for the accused to prove that he was elsewhere.
[100] You must consider the evidence of the prosecution to satisfy yourselves whether the narration of events given by its witnesses, is truthful and, in addition, reliable. If you find the prosecution evidence is not truthful and or unreliable, then you must find the accused not guilty of the charges, since the prosecution has failed to prove its case. If you find the evidence placed before you by the prosecution both truthful and reliable, then you must proceed to consider whether by that truthful and reliable evidence, the prosecution has proved the elements of the offences, beyond any reasonable doubt.
[101] It is important that you must employ the same considerations which you employed in assessing truthfulness and reliability on the prosecution evidence, also when you are assessing the evidence led on behalf of the accused. You must consider the defence evidence also for its consistency and also the probability of its version. If you find the evidence of the defence is truthful and reliable, then you must find the accused not guilty of the charges, since the prosecution has failed to prove its case.
[102] If you neither believe the evidence adduced by the defence nor disbelieve such evidence, in that instance as well, there is a reasonable doubt with regard to the prosecution case. The benefit of such doubt should then accrue in favour of the accused and he should be found not guilty of the charges.
[103] However, I must caution you that even if you reject the evidence of the defence as not truthful and also unreliable that does not mean the prosecution case is automatically proved. The prosecution have to prove their case independently of the accused and that too on the evidence they presented before you.
[104] You must consider each count separately and you must not assume that because the accused is guilty of one count, that he must also be guilty of the other count as well.
[105] In summary and before I conclude my summing up let me repeat some important points in following form:
[106] Any re-directions the parties may request?
[107] Madam Assessors and Gentleman Assessor, this concludes my summing up of the law and evidence. Now you may retire and deliberate together and may form your individual opinions on the charges separately against the accused. When you have reached your individual opinions you will come back to Court, and you will be asked to state your opinions.
[108] Your possible opinions should be as follows:
Count 1
Aggravated Robbery- Guilty or Not Guilty.
Count 2
Theft - Guilty or Not Guilty.
[109] I thank you for your patient hearing.
Riyaz Hamza
JUDGE
HIGH COURT OF FIJI
AT SUVA
Dated this 02nd Day of October 2020
Solicitors for the State : Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused : Office of the Legal Aid Commission, Suva.
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/fj/cases/FJHC/2020/814.html