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State v Nimacere - Summing Up [1994] FJHC 53; HAC0016s.93s (23 May 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 16 OF 1993

THE STATE

v

ALIFERETI NIMACERE
and
LOTE RAIKABULA

Counsel: Ms. S. Kaimacuata for State
Both accused in person

Trial: 16 to 23 May 1994
Summing Up: 23 May 1994

SUMMING UP OF PAIN J.

Lady and Gentlemen Assessors,

It is now my duty to sum up this case to you. You will then be required to consider your verdicts. Each of you must give a separate opinion whether each accused is Guilty or Not Guilty.

In coming to your decision you must apply the law as I explain it to you. It is my duty to regulate the procedure of the trial and direct you on the law. Those directions on the law must be followed by you.

However I do not decide the facts. That is for you. As I speak to you, you may feel that I have formed some view on a particular question of fact. If you disagree with the version of the facts that I appear to be expressing, then please feel completely free to disregard my opinion. All matters of fact are for you and you alone. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject. You decide what facts are proved and what inferences you can properly draw from those facts. You then apply the law as I explain it to you and decide whether the verdicts should be guilty or not guilty.

You must come to that decision solely upon the evidence you have heard from the witnesses. If you have previously heard anything about this case or the people involved, through the media or some other source - you must ignore that completely. The law requires that the accused are to be judged solely upon the evidence sworn to in this Court. In considering that evidence you are expected to apply your common sense and everyday knowledge of human nature and people. You must please put aside any feelings of prejudice or sympathy which may occur to you one way or the other and arrive at your verdicts calmly and dispassionately.

The charge against the accused is set out in the information that you each have a copy of. This charge is brought by the State and the onus of proving it rests on the State from beginning to end. There is no onus on the accused at any stage to prove his innocence or to prove anything else. He does not need to give evidence. In this case they have both chosen to do so but they still carry no onus. The law is that the State must prove the essential ingredients of the charge beyond reasonable doubt before there can be a verdict of guilty. That is the standard of proof I mean when I say throughout this summing up that the State must prove some matter. Proof beyond reasonable doubt. That is a classical phrase that you will have heard many times. Those words are clear and will be readily understood by you. They mean just what they say. A reasonable doubt is a doubt which you find is reasonable in the circumstances of this case. If after a full consideration of the evidence, and bearing in mind the directions I give to you, you find the charge is proved beyond reasonable doubt your opinion must be Guilty. On the other hand, if you are left with a reasonable doubt, your opinion must be Not Guilty.

You apply that test to the case against each accused. That is an important matter. As you are aware the two accused are jointly charged with the same crime.

The law recognises that more than one person may be parties together committing a crime. In this case it is alleged that the accused were acting on a joint enterprise together. The State says that they were both involved with one other person in the commission of the crime. In view of this allegation it is convenient to deal with their cases together in the one trial.

However, they are still entitled to have their charges considered separately. I direct you that you must consider the case against each accused separately. In doing this you must carefully distinguish between the evidence against one accused and the evidence against the other. You must not, for instance, supplement the evidence against one accused by taking into account evidence referable only to another.

This case comes within a small compass and I do not think you will have any difficulty in keeping distinct in your minds evidence which properly and fairly relates to both of them and that which relates to one of them alone. I will refer to this when I discuss the evidence with you.

There is one matter I should mention however and that is the caution statement made by the accused Nimacere to the Police. That statement can only be used in the case relating to him. As a matter of law, nothing in that statement can be regarded as evidence against the other accused, Raikabula.

However, both accused have given evidence. All that evidence becomes evidence in the case against both accused. The evidence you can consider in the case against both accused, the caution statement is only referable to the case against Nimacere.

Both accused are charged with the offence known as robbery with violence and I must now explain the ingredients of this offence to you. It is defined in the Penal Code as being committed by somebody who robs another person and at the time of or immediately before or immediately after such robbery, uses or threatens to use any personal violence to any person.

In this case it is alleged against the accused that they robbed Mr. Xie and immediately before such robbery used personal violence on Mr. Xie.

There are two legal ingredients that must be proved for this offence -

1. That a robbery was committed and
2. That immediately before that robbery, the robber used personal violence on another person.
   

I must explain these two matters to you.

ROBBERY is really an aggravated form of theft. The theft is aggravated because it is carried out by using violence against the victim or by putting the victim in fear of violence. The definition that has been accepted for several hundred years is that robbery is "the felonious taking of money or goods of any value from the person of another, or in his presence, against his will, by violence or putting him in fear."

There are three ingredients that must be proved to constitute robbery.

First is proof of conduct by the robber which constitutes violence to the victim or is sufficient to put the victim in fear of such violence. This could, for instance, be knocking the victim to the ground or raising a weapon and threatening to strike the victim. Also it is not necessary to prove actual fear on the part of the victim. It is sufficient to prove circumstances of violence which in common experience are likely to induce the victim to part with his property. The law will then presume fear on the victim's part.

The Second ingredient that must then be proved is that the robber took money or some other goods or property from the victim. It can either be taken from him personally, such as a watch he is wearing or be property in his presence and under his immediate and personal care - such as household goods in his home. The property must be taken away by the robber and this must be against the will of the victim.

The Third and final element that must be proved is a felonious or criminal intent on the part of the robber. He must be using the violence or threats for the purpose of taking property with the intention of stealing it. That is taking somebody else's property, that he has no right to, with the intent of permanently depriving the owner of it.

To summarise this part, those are the three elements of robbery - violence or threats to intimidate the victim and put him in fear - the taking of property and - an intention to steal.

For the present offence of aggravated robbery, the further ingredient that must be proved is that immediately before the robbery, the robber used personal violence on another person. The robbery is actually committed when the robber takes the property. It must be proved that immediately before that occurred, he used personal violence on another person. That is some actual violence to the other person's body. A common illustration of this would be a punch or hit with a weapon. However it need not be that severe. Any degree of personal violence is sufficient.

That completes my explanation of the charge of robbery with violence. For the prosecution to establish this offence, what must be proved is a robbery as I have described it, and personal violence to some person immediately before that robbery. If that offence is established then the prosecution must prove that it was committed by the accused.

In this case the prosecution alleges that these two accused with one other entered Mr. Xie's home. The accused, Nimacere, punched Mr. Xie's daughter, the third person hit Mr. Xie with a stick and the accused, Raikabula, took the Hi Fi set. The two accused deny that they were the persons involved. Now on the State's version, none of these persons committed all the elements of the offence. It is alleged that on entering the house Nimacere and the third person used violence towards the occupants although the presence of Raikabula may have been threatening. It is alleged that Raikabula took the Hi Fi although Delia Xie said that Nimacere took her mother's purse. It was the 3rd person who is alleged to have hit Mr. Xie with the stick before the property was taken. That is the actual violence alleged in the charge. It is not suggested that either of these two accused hit Mr. Xie.

In these circumstances I must explain to you the liability of a number of people who commit a crime together.

If several people decide to commit an offence together, and all of them participate and assist each other in doing it - each of them is guilty of the crime that is committed. This is so, even though individually, some of them may not actually do the acts that constitute the offence.

Let me give you a simple illustration of this. Suppose three men decide to steal a businessman's wallet that they know is in his jacket pocket. The first man stands nearby as a look-out to shout a warning if anyone is observing them or a policeman approaches. The second man stops the businessman on the footpath and pretends to know him. He distracts the businessman by giving him a hearty welcome, shaking his hand and slapping him on the shoulder. While this is being done the third man approaches from behind and takes the wallet from the businessman's pocket. Each of those three men is guilty of the theft of the wallet, although only the third man actually committed the offence by taking the wallet from the businessman's pocket. The other two knew what he was up to and assisted him to do it. One by keeping a lookout and the other by distracting the victims. They embarked on a criminal enterprise together, each playing a different part but knowingly assisting each other to commit the theft.

In this case the prosecution alleges that these two accused and one other were on a criminal enterprise together. They set out to rob Mr. Xie. That is to steal property from him by violence as I have explained it to you. If this is proved then each person who participated is a party to that robbery. That is so even though only one of them actually completed the robbery by taking the property.

However, as I explained earlier, the charge in this case is the aggravated form of robbery, namely robbery with actual personal violence. The prosecution alleges that, immediately before the robbery, personal violence was used on Mr. Xie. The allegation is that the third person hit Mr. Xie with a stick just before the property was taken. That person actually committed that personal violence which is an ingredient of the offence charged. Nevertheless, others committing the robbery can also be responsible for that aggravating element of personal violence and be guilty of robbery with violence. This can arise in two ways.

First, if it is proved that all the people concerned embarked upon a criminal enterprise together intending that one or more of them should actually cause personal violence to the victim before they robbed him of his property. In that case they were intending to commit the offence of robbery with violence. Each may have played a different part but they were all knowingly assisting each other to commit that offence.

The second way that a person can be guilty of an offence committed by another is defined by our law in this way:

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.

Applied to this case it means that if several people formed a common intention to commit a robbery and it was a probable consequence of committing the robbery that the victim would be actually assaulted, then each of the people participating would be equally responsible for that assault and guilty of robbery with violence.

So, in this case, it would be necessary for you to consider the actions that have been proved to have occurred at 17 Ritova Street on that night. This would include the conduct of those who participated and the manner in which the alleged robbery was carried out, including the facts (if you find them proved) that one of the people was carrying a weapon and another person was also assaulted. You would then have to determine whether, in the proved circumstances, the striking of the victim was a probable consequence of the robbery they intended to commit. If so, then each person proved to be participating would be responsible for the assault on Mr. Zie and be a party to the offence of robbery with violence.

In summary therefore, there are two ways that these two accused, if they are proved to have been present, could be responsible for the third persons personal attack on Mr. Xie and be guilty of robbery with actual violence.

First, if in setting out on this joint enterprise to rob, the three of them intended to use actual personal violence on the occupants.

Or

If the use of actual personal violence was not pre-determined but was a probable consequence of the robbery they intended to commit.

There is a final legal matter I must direct you on which is very important.

In this case the prosecution case depends wholly on the correctness of identifications of the two accused as the offenders. The defence challenges this identification and says that the witnesses are mistaken.

In these circumstances I must warn you of the special need for caution before convicting either or both the accused on the correctness of this identification.

The reason for this is the danger that a wrong identification will cause a miscarriage of justice and there have been cases where this has happened. It is not a question of a witness being untruthful but mistakenly believing the person seen at the crucial time was the accused. With this genuine belief a mistaken witness can nevertheless be a convincing one. I am not saying that is necessarily the case here. I am explaining the reason for the sepcial care with which you must approach this issue.

You must consider the case against each accused separately and decide whether the evidence of identification is reliable and should be accepted or whether it is unsatisfactory and should be rejected or leaves you in doubt. To do this you must examine all the circumstances and determine the strength or quality of the identification. It is for you to assess the value of the evidence that has been given.

To do this you must closely examine the circumstances in which the identifications came to be made. Generally this will include such matters as:

- How long did the witness have the person under observation? Was it a significant period or just a fleeting glimpse?

- At what distance?

- In what light?

- Was the view impeded or obstructed in any way?

- Was the accused a person known to the witness?

- Had the witness ever seen the accused before and, if so, how often?

- How long elapsed between the original observation and any subsequent identification of the accused as that person?

- How was the subsequent identification made?

Such matters as these go to the quality of the identification evidence. If after a consideration of all that evidence the quality of the identification remains good the danger of mistaken identification is lessened. But the poorer the quality the greater the danger.

In this case the evidence of identification is given by Delia Xie who says that she observed these two accused in her home. She picked them out at the identification parade and identifies them as two of the offenders.

Likewise her sister Susanne Xie says that she observed them, recognised them at the identification parade and identifies them as the two offenders.

These two separate identifications are relied upon and the identification by one witness can constitute support for the identification by the other. That is a matter for you to determine but you must first bear in mind the warning I have given you and remember the possibility of honest witnesses being mistaken. It is possible that several people could all make the same mistake.

The circumstances of the identification evidence in this case are that the observation of the offenders was in the living room of the witnesses own house. According to them the lights were on. They observed the offenders in close proximity for a reasonable length of time. It was not a fleeting glimpse although the whole episode was over fairly quickly. The person identified as Nimacere had a hood or some cloth over his head but it did not cover his face. The robbery occurred at 10pm on Tuesday 26 January and about 10 am on Thursday 28 January - just 36 hours later - both witnesses identified both accused at a formal identification parade at the Police Station. Both positively identify the two accused as two of the robbers.

The defence is that this identification is incorrect and cannot be relied upon and I will shortly draw your attention to the criticisms that are made.

Before leaving this topic of identification I should say something about Mrs. Xies evidence in this regard.

She observed the 3 men at her home. She did not attend any identification parade. She gave her evidence last week about 1 year and 4 mths after the incident. In her evidence in chief she did not identify the accused in Court.

In cross examination by Mr. Nimacere she was questioned about the tallest man whom she said punched her daughter. She said "I am not definite but it could be you". Despite advice from me the accused later asked another question but it cannot be said that Mrs. Xie made a positive identification of him.

Even if she had, little weight could be placed on it. Identification of the accused in the dock is notoriously suspect, particularly when there has been no other identification since the time of the incident. You see, a witness coming into court is expecting to confront the offender. He or she knows that a person has been charged with the offence and there would be a natural tendency in those circumstances to assume that the accused in court must be the offender. He has a special place in the courtroom and is easily identifiable. He is not selected out from a group of people and there is a danger that he may be identified because he is the person in court that the witness assumes must be the offender that the witness saw on the earlier occasion.

In addition, there has been such a considerable lapse of time that in this case it would be safer and fairer to the accused to ignore that aspect of her evidence. I stress that I am only referring to her evidence of identification and not her other evidence.

That completes my directions to you on the legal issues in this case.

I must also remind you of the evidence given and the cases of both the prosecution and defence. In doing this I do not propose going through all the evidence of every witness. It should still be fresh in your minds. If I refer to only some aspects of a witness's evidence it does not mean that the rest is unimportant. You must weigh up and assess all the evidence in coming to your decision on this case.

I will deal with prosecution and defence cases in respect of each accused separately.

Accused number 1 on the information is ALIFERETI NIMACERE.

In essence the prosecution allegation against him is that he was one of the three men who rushed into the house. He went straight to Delia Xie and punched her on the face. Sussana Zie came to her sister's aid. She struggled with the accused who pushed her to the floor. The accused then left with the other two and as he did, he took Mrs. Xie's handbag.

The evidence relied upon by the prosecution is given by several witnesses. First there is Mr. Xie himself. He explained what occurred and said that he was hit by a man with a stick. He does not identify any of the assailants. You will remember his evidence that he was struck above the left eyebrow by the stick, blood rushed from the wound, he was taken to the doctor, he told us that he was given an injection and the wound was stitched. You may recall his comment in answer to one question that "the mark is still there". That evidence is important to the crown case because that is the assault alleged which was the personal violence making this robbery, robbery with actual violence. So you will consider Mr. Xie's evidence about that, which the crown says is supported by the other members of his family and also the policeman who observed the bleeding and took Mr. Xie to the hospital.

The next witness was Delia Xie, the elder daughter. She says that Mr. Nimacere punched her and the third man hit her father and that it was the accused, Raikabula, who took the Hi Fi. In relation to Mr. Nimacere her evidence was that it was "the tall man who punched me and took the purse". She said that he had a big moustache and she identified him later at the identification parade at the police station. She did say that he was the tallest person at that identification parade. She also identified him again in court when she gave evidence. Her evdience is that the person who came into her house and punched her is the same person that she saw at the identification parade and is the same person in the dock, namely Nimacere. She said he had on a white cardigan with a hood and dark coloured shorts.

Susanna Xie was the next witness. She told us that the lights were on in the living room. She also said, if you recall, that later on three of them went to the police station that is on the same night but her mother went later. She said that the tall intruder punched her sister. She grabbed him but was pushed away. She said that she mainly focussed on him, particularly when she fell on the floor she was staring straight up at him. She said he had a big, dark moustache. She attended the identification parade. She told us that she was told to walk round three times carefully to see that the men were there and the police told her to be careful and make sure. She says that she identified Nimacere at the identification parade because she recognised him as the man who had been in her home. She also gave evidence, you recall, about having drawing skills and recognising the bones not the flesh and said that she would recognise him whether he had a moustache or not. Her evidence is that the intruder who came to the home and punched her sister is the man she identified at the identification parade who is the accused in the dock. She said he was wearing a white cardigan with a cloth covering his head.

Mrs. Xie also gave evidence and explained that the tall man punched her daughter, another man hit her husband with a stick and the smallest man took the Hi Fi. She also confirmed that her handbag was taken. She said the tallest man was wearing a white cardigan with a white hood over the head.

Constable Noa then gave evidence. He told us that he was patrolling the Toorak area and was walking along Charles Street after his tea break. According to him this was 10.30 or 10.35pm. The evidence from the complainants is that the robbery occurred about 10.00pm. Constable Noa said that he walked past two men in Charles Street and recognised Nimacere. The important part of this evidence relied upon by the prosecution is not only that it puts Nimacere in this particular location but Constable Noa said that Nimacere was wearing a white cardigan. He said that he knows Nimacere and recognised him. You will recall the evidence of the other police shining a torch. The evidence from Constable Noa is that he turned and noticed Nimacere running off. He gave chase but did not catch him.

Constable Kameli also gave evidence. He had been to the house at l7 Ritova St. and explained about the track or path that runs from Ritova St. to Charles St. He said that it was a five to eight minute walk and the distance would be more than one kilometre. He followed that path. He observed Const. Noa and he also saw the figure run off which is the person that Const. Noa says was the accused Nimacere.

Dectective Const. Kameli produced the statement made by Mr. Nimacere and read it to you.

So that is a brief summary of the prosecution evidence in respect of Mr.Nimacere. The Crown case against him says that the Commission of the offence has not been challenged. The only issue has been identity and the crown says that the evidence of Mr. Nimacere is untrue and should be rejected by you. The crown case is that the witnesses had a good opportunity to see the intruder. Mr. Nimacere has been identified by two of them. There were a variety of men at the identification parade. The witnesses say that they did not see the accused before the parade. The constable who was asked about this said that it would not be the procedure to allow that to be done. The witnesses themselves said they were in an upstairs room and they gave evidence of the careful study of the people they made at the parade. So what the prosecution says is that this identification evidence is excellent quality and should be accepted by you. There is some support from the sighting of Nimacere in Charles St. The prosecution says that the evidence of Mr. Nimacere is untruthful and should be rejected and the charge against him has been established.

Now in his defence, Mr. Nimacere relies upon the evidence that he himself has given. He denies participating in this robbery. I must remind you that when an accused gives evidence he assumes no onus of proof. This applies to both accused who have both given evidence. The onus of proof still remains on the State throughout. Their evidence that is the accused's evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.

You will generally find that an accused gives an innocent explanation and one of three situations then arises.

(1) You may believe him and if you believe him then you must acquit him. He did not commit the offence;

(2) Alternatively without necessarily believing him you may say "well that might be true". If that is so it means there is a reasonable doubt in your minds and so again you must acquit him;

(3) The third possibility is that you reject his evidence as being untrue. If that is so then he has not discredited the evidence of the prosecution witnesses in any way. If their evidence prove the charge against him then you must convict him.

It is for you to evaluate the separate evidence of each accused and decide what reliance you place on it.

Mr. Nimacere denies that he is the person seen by the prosecution witnesses on that night and is critical of their evidence and the identifications made. He cross examined them at some length and I will remind you of the main points he made in his evidence. He said that when he was taken to the police station he was questioned about other cases first and not this particular robbery. He attended the identification parade. In his evidence he was most critical of this and said that it was unfair. In this regard there is no evidence from any policemen who were present at the identification parade. So far as the prosecution is concerned they rely entirely upon the evidence from the two girls as to what transpired at that identification parade. Mr. Nimacere says that he did not agree to the parade. He said that the complainant and his family were on a balcony and saw him before he went into that identification parade. He says that all the men were old and shorter than him - although three were younger and very much shorter. He says that he was picked out because he was the tallest. But of course he also says that he was also seen by the complainants before he went in. The suggestion that he puts to you from that is that they were ready to identify him having already seen him. Also in his evidence he went on at some length about the identification that has been made and the discrepancies given by the witnesses, for instance in relation to whether the person had a beard or a moustache. His evidence was that at the time that this incident occurred he would have been clean shaven. He also referred to the fact that evidence was given that the man, who was supposed to have been him, had some sort of hood and the suggestion is that that would have affected identification of him. He also spent sometime cross examining and commenting upon the fact that the three persons were described at some stage as three "youths". In his evdience he said that the police rushed this investigation. It was the police who mentioned the heights to the identifying witnesses. He says that the police were trying to frame him. He was also critical of Mr. Noa's evidence, as you will recall, and he made particular reference to whether Mr. Noa was passed him or before him, or the person whoever it was, that was standing in Charles St. when the torch was shone and he suggests that there were inconsistencies there. His statement was read to you and in that statement he denied participating in this robbery when interviewed. He told you in his evidence that he did not take part and that he was not in Charles St. on the night when Const. Noa says that he identified him. So that is the case put to you by Mr. Nimacere.

I turn now to the second accused, Lote Raikabula. In essence the prosecution case against him is that he entered the house with the other two men. He did not attack any of the occupants. His part was to steal the property. While the other two were dealing with the occupants, he took the Hi Fi and ran from the house.

Now the evidence relied upon by the prosecution comes from several witnesses and I will just briefly remind you of them. In this regard, I need not be quite as extensive as I was in relation to Mr. Nimacere. The general evidence such as from Mr. Xie and Mrs. Xie applies to both of them. But the prosecution particularly relies on the evidence of Delia Xie. She says that it was the short man who took the Hi Fi. She said that she had the opportunity of seeing him in the house. She remembered his face. She identified him at the identification parade not long afterwards. She was adamant that she did not see him before the parade. She identifies him in Court and she says that the accused in the dock is the man she identified at the identification parade and the same man who came into her home on the night in question.

Sussana Xie gave similar evidence of identification that the prosecution relies on. She says that she saw him side on in the house when he was only one metre away from her. She was knocked to the floor and says that she saw his full face when she was on the floor. She says that he took the Hi Fi and rushed out of the door and she also identified him at the identification parade. She said that she was told to walk round three times and be careful to see if the men were there. She said the police told her to be careful and make sure. She also said that before the identification parade she and her sister were in the upstairs room. They did not see Mr. Raikabula escorted to the identification parade. She also said that she was not shown anyone at the station on the night of the robbery. Also so far as the prosecution is concerned neither Sussana Xie or her sister were asked, nor was it suggested to them, that they had seen the accused, Raikabula, at Ritova St. when he was taken there by the police. The prosecution case is that that is a complete fabrication by Raikabula.

Then Const. Kameli gave evidence relating to Raikabula. He says that this person was seen in Charles St. and he ran off. That the police chased him and Const. Noa went round the building the opposite way and Raikabula was caught. Const. Kameli says that the Patrol car, by this time, was down in Charles St. He merely went to Ritova St. before going to the Police Station to see if another police car was there. As it was, he went with Raikabula in their police car to the police station.

Const. Noa also gave evidence of Raikabula running off in Charles St. and being caught.

Detective Const. Kameli also gave evidence. He confirmed that the police car did go to Ritova St. However he said that the Chinese family did not see the accused Raikabula on that night of the offence. His evidence was that the police procedure says that the suspect cannot be shown to the complainants, but the police must go through an identification parade. He says that is the procedure adopted in this case.

Now what the prosecution says is that the evidence given by Mr. Raikabula which is contradictory to just about everything that every other witness says, is totally unreliable and incredible. A good deal of what he says was never put to other witnesses. The prosecution case is that the complainants had not seen him on other occasions. Const. Kameli did not shine a torch on his face and show him to the complainants at Ritova St. The prosecution cases that the evidence of identification is unshaken and excellent. Raikabula was located not long after the robbery at a place that is accessible by a path from Ritova Street.

The prosecution says that Raikabula has clearly been identified, his evidence must be rejected, the charge against him has been proved.

Turning now to the defence of Mr. Raikabula. He has given evidence and the same situation applies. This places no onus on him. His defence is on the same lines as Nimacere. He denies involvement and is critical of the prosecution evidence. I will remind you of what he said in evidence. Like the other accused he denies that he was in the house in Ritova Street and he denies that he took part in this robbery. He says that he was in Charles Street waiting for a friend. The Police came on the scene from the path leading from Ritova Street to Charles Street. One of them said "That's our man" and they then grabbed hold of him and assaulted him. From his evidence he did not run away at all. He says that they then walked back to Ritova Street along the path and got into the Police car. The car was then driven to the complainant's house. While at the complainant's house, he was still in the car and Const. Kameli shone a torch on his face. He says that the two daughters of Mr. Xie were there but they did not identify him as one of the robbers. He says that he was taken to the police station and was seen by the family that night. He says that again they did not identify him. Two said that it was not him and two were not sure. He then gave evidence about the identification parade. He says that both the daughters saw him being escorted into the room where the identification parade was held. From all this, of course, he suggests to you that there has been no proper identification of him. The witnesses were unable to do so earlier, at the identification parade he had already been seen and the suggestion is that they picked him out as the person they by then knew to be suspected of the offence. So that's his defence to this charge. He says that they weren't able to identify him. Their evidence is unsatisfactory. The identification parade was meaningless because they had seen him several times before.

That in brief, is a summary of the prosecution and defence cases in respect of both accused.

The charge is robbery with violence. The evidence from Mr. Xie and his family is that 3 intruders entered their home, violence occurred, one of them struck Mr. Xie with a stick and property was taken by them. On this evidence it is open to you to decide, following my directions to you, that a robbery with violence occurred and all three intruders participated. That is entirely a matter for you. If that is your decision then the crucial issue in this case is the identification of the two accused as two of the intruders who went into the Xie home at 17 Ritova Street.

You must consider the identification evidence in terms of the direction that I gave to you.

Both accused deny that they were present. The defence is that it has not been proved and the verdicts should be Not Guilty.

The prosecution says that the defence evidence is totally untrue and discredited by the prosecution witnesses. The conflict is dramatic. The defence evidence must be rejected. The identification evidence is overwhelming and there is other supportive evidence that strengthens the case against both accused. The prosecution says the charge against each accused has been proved and your verdicts should be guilty.

That, Madame and Gentlemen assessors is for you to determine against each accused separately on a consideration of all the evidence and applying the directions that I have given to you.

That concludes my summing up of the law and the evidence in this particular trial. We have now reached the stage where you must deliberate together and form your individual opinions on whether the charge has been proved against either or both of the accused. I remind you that you must consider the case against each accused separately. On your return you will be asked to separately state in Court your opinion in respect of each accused in turn as to whether he is guilty or not guilty of the charge.

Would you please now retire to consider your opinions. When you have made your decisions would you please advise the Court Officer and the Court will reconvene to receive your opinions.

JUSTICE D.B. PAIN

HAC0016S.93S