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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. 2 OF 2000
STATE
V
APOROSA MARA
MAHEN LAL s/o Hari Lal
Mr. R. Schuster for the State
First Accused in person
SUMMING UP
ROBBERY WITH VIOLENCE:
Contrary to Section 293(1)(b) of the Penal Code, Cap. 17.
(First accused only)
We have come now to the stage in the trial where you are required to render your opinions as to the innocence or the guilt of the accused person APOROSA MARA on the offence of robbery with violence as charged. You have seen the witnesses give their evidence in this case. I wish to remind you once again that in reaching your opinions you are concerned only with the evidence you have heard and seen in this Court. You are not concerned with any other matter of which you may have heard or read elsewhere.
The learned State Counsel Mr. Schuster addressed you at the beginning of this trial as to the facts of the case. It remains for me to sum up all of the evidence for you and to direct you as to the law involved and also to advise you of the significance of the evidence. As to the law you are obliged to take what I tell you as being correct and to act upon it. As for the facts of the case, it is for you to decide what evidence you accept and what evidence you reject. What Counsel has said at the beginning of the trial and what I shall say as to the facts of the case was and is intended to assist you. If Counsel or I seem to express a view of the facts with which you do not agree, then it is your duty to reject such view. If I omit to mention evidence which you think is important, then you must take it into account; just as if I stress evidence which you consider is unimportant, then you must disregard the fact that I have stressed it. Ultimately the final decision rests with the Court, which is not obliged to conform with the opinions of the Assessors. I need hardly say however that I will attach the greatest weight to your opinions, which no doubt will be of inestimable assistance to me in coming to my decision.
Mr. Schuster has addressed you at the opening of the trial on the onus or burden and the standard of proof in this case. As I have already said to you, there is a presumption of innocence in the accused, that is, an accused person is presumed to be innocent until he is proved to be guilty. Because of this presumption, it is the duty of the prosecution to prove the guilt of the accused: that they must do beyond reasonable doubt. The prosecution must prove each and every ingredient of the offence charged. There is no onus upon the accused person to prove his innocence. If after consideration of all the evidence therefore, you are left in reasonable doubt as to the guilt of the accused on the charge, then your individual opinions must then be that he is not guilty of the charge.
The accused stands charged with the offence of robbery with violence contrary to section 293(1) (b) of the Penal Code Cap.17.
The Particulars of Offence reads:
APOROSA MARA, MAHEN LAL s/o Hari Lal and another on the 14th day of July 1994 at Samabula in the Central Division, robbed Shiu Ram s/o Shiu Nath and Parmod Kapadia s/o Babu Bhai of $15, 251.54 in monies and at the time of such robbery did use personal violence on the said Shiu Ram s/o Shiu Nath and Parmod Kapadia s/o Babu Bhai.
The said section 293(1)(b) provides:
293(1) Any person who -
is guilty of a felony, and is liable to imprisonment for life, with or without corporal punishment.
(2). .....
(3). .....
Robbery consists in the unlawful and forcible taking from the person of another, or in his presence against his will, of property to any value, by violence or putting him in fear. To prove a robbery therefore the prosecution must prove the following ingredients:
If, and I repeat if you were to accept the prosecution evidence on the charge, you might be satisfied as to those ingredients. The complainant Shiu Ram (PW2) testified that he was assaulted and that the property, namely a bag containing money was taken from the person of the other complainant Parmod Kapadia (PWI) by violence, against their will, and that such property was carried away. You may infer from such evidence that the taking was fraudulent, in the sense that I have indicated. You might also infer that the assailant had no intention of returning such property. Finally there is the prosecution evidence that two other persons were involved in the robbery, actively assisting. They were both sentenced earlier on their own plea of guilty. If you accept all of the evidence, then you may be well satisfied as to the necessary ingredients.
The evidence in this case is that on Thursday 14 July 1994 at about 10 o’ clock two employees namely Shiu Ram (PW2) and Parmod Kapadia (PW1) of Ranjit Garment Factory at Vatuwaqa went to cash a cheque at ANZ Bank on Flectcher Road at 3 miles Samabula. Kapadia cashed the cheque and obtained $15,125.54 in cash. He put that money in a bag (exhibit 3) which he carried with him. He then went out with Shiu Ram and when he was about to sit in the front seat of the car, his bag was grabbed by someone and he let it go as he was scared. This witness did not see who assaulted his driver Shiu Ram nor did he see anyone running away.
The driver Shiu Ram testified that after cashing the cheque, when Kapadia was getting in the car and Shiu Ram was trying to close the door of the car someone came from the back and was trying to pull the door. Shiu Ram was then punched from the back and he fell down. This man ran with the money and Shiu Ram got up and gave a chase. The bag fell and Shiu Ram who was a few meters away to grab the bag when this person managed to get the bag again and got into a parked car registered No. BP.244 driven by an Indian man who was later found to be Mahen Lal a co-accused. They got away with the money. This witness said there were three people involved in this robbery (two Fijians and an Indian driver). The next day he gave a statement to Police and about a few days later i.e. on 17 July 1994 he attended an Identification Parade at Samabula Police Station and identified his assailant referring to the accused in the dock. He said that he is not quite sure of his position in the Parade but thinks he was 6th or 7th in a line up of 6 to 10 people.
In cross-examination he said that he did not see any ‘masks’ on anyone or on the accused. The witness said that he saw his face properly when the bag fell. The accused put to the witness that he was not the person who ran away with the money and a person who committed that offence is not here today, the witness replied "he is the one I saw".
Mahen Lal (PW3) the second accused testified that he with the accused and another accused Vuki were involved in this robbery with violence. He said he was the driver of the taxi and that they had all planned this robbery and that the complainants were robbed by Aporosa Mara and Vuki.
In cross-examination the witness said that it was the accused who was with him and involved in the robbery and that the accused was there.
The witness Acting Corporal No. 581 Nemani Maucavu (PW4) testified, inter alia, that he recovered the bag in question from Mahen Lal. This witness tendered to Court a Sketch Plan (Exhibit I) of the scene and key (exhibit 1A) thereto. Medical Report (Ex.2) of injury on Shiu Ram was also tendered to Court. The bag (Ex.3) which was snatched from Kapadia was also tendered and this was identified by the two complainants as the one which was taken from them. When charged the accused refused to make a statement. The charge is Exhibit 4.
In cross-examination the accused suggested to the witness that it is the evidence of the two accused which is used against him. To this the witness replied that it is for "court to decide". The witness denied that the accused was assaulted and said if that was so to get a statement the accused would have given a statement but he did not.
In re-examination the witness said that he checked the diary and did not find any entry of any complaint by the accused.
The witness Maria Diani (PW5) gave evidence that she was present at the scene where the robbery took place as Buddy’ Market the factory in which she worked as salesgirl was next door to the ANZ Bank. She said that before the robbery three men were standing in front of the shop where she worked. One of them was the accused. Shortly after she heard someone saying that there was a robbery and when she ran out she saw these men running to back of her shop with the money. They were Fijian youths; two of them she knew and they were Vuki Mara and Aporosa Mara. She knew Vuki Mara as he lived in Mead Road where she lived and she identified Aporosa Mara when he ran and she saw his face. She also identified the accused ‘straightaway’ in the Identification Parade as one of the persons who she saw running away on 14th July 1994.
In cross-examination she said that she saw his features when he was standing outside and that ‘he had long hair that time’. The accused put to the witness that he was 6th or 7th and not second in the identification parade, she replied he was the 2nd. When asked what clothes he wore, she replied ‘you wearing sulu outside and a 3/4 - pants inside and when you ran the sulu fell’. He put to witness ‘I was at home that day’ to which she replied ‘No’.
The interview statement (ex.5) of the accused was tendered to Court by Detective Constable 424 Inia Vukialau (PW6). When interviewed, the accused, inter alia, denied that he was involved in the robbery and that at the relevant time he was in his plantation and returned home from there at 2.00 p.m.
That is the sum total of the salient features of the evidence adduced by the prosecution.
Lady and gentlemen assessors, in a nutshell the prosecution case is that after the robbery three men were running away, one dropped the money bag and he was identified by complainant Shiu Ram as the accused. Shiu Ram saw his face when he turned to pick the bag, it was a fleeting glimpse of a man whom he had not seen or known before that day but he said he later identified him in the Identification Parade. I have already outlined to you the circumstances and the manner in which Diani, a Fijian woman, identified the accused. Mahen Lal, the co-accused, testified that the accused was with him in the robbery.
After the prosecution closed its case the court found that there was a case to answer and put the accused on his defence. The accused was explained his rights and he elected to make an unsworn statement. He said "I have nothing to say. I am thanking the Court Sir for giving the opportunity to call my witnesses. Thank you".
Although the accused said he wished to make an unsworn statement, he in fact said nothing of any moment in the few words he uttered which amounted to ‘remaining silent’ in my view which he was entitled to do. However he wished to call witnesses to testify on his behalf but they were not asked to come to Court by him.
Lady and gentlemen assessors as explained to you at the commencement of the trial the defendant is not obliged to give evidence. He is entitled to sit in the dock and see if the prosecution have proved their case. You must not assume that he is guilty because he has not given evidence himself except through his witnesses. The fact that he has not given evidence proves nothing, one way or the other. It does nothing to establish his guilt but you must consider the evidence given by his three witnesses along with the evidence adduced by the prosecution.
With regard to the accused’s statement to the police when interviewed, the form of statement contains a good deal of hearsay as to what other persons said. What other persons said, and in particular unsworn statements by others, and completely inadmissible against the accused. You must ignore them and I direct you accordingly. The statements made by the accused therein, are, however, part of and the evidence in the case, which you must consider.
Lady and gentlemen assessors the evidence adduced by the accused through his three witnesses are fresh in your minds and I do not think it necessary to re-iterate them at any length. Witnesses were the accused’s sister Salote Mara (DWI) and his parents Luke Ravule (father - DW2) and Makareta Taukei (mother - DW3). They were short witnesses and their evidence dwelt mainly in pointing out that the accused was at home on the day in question with them and did not leave their home at Laucala Beach Estate until 2.00 p.m. of the day in question, namely, 14 July 1994.
The evidence of these witnesses is before you and it is for you to make your own findings of fact. No doubt you would have observed that there are discrepancies between the evidence of DW1, DW2 and DW3 (mother) in relation to the accused’s movements of the day in question. These discrepancies appear in this form: The sister (DW1) like DW2 and DW3 says that the four of them i.e. DW1, DW2 and DW3 and accused were at home till 2.00 p.m. on the day in question. It must be remembered that they are all talking about the events which happened six years ago i.e. July 1994. She said that their plantation is 10 metres away from the house. In cross-examination she said that the accused "went for only about 15 minutes to go and pull the cassava and then he came back". The father DW2 testified that the accused worked in the cassava plantation that day. In cross-examination he said the accused had breakfast at 7 o’clock and went to plantation about half past seven and he "believes he was out there until half past one or 2 o’clock" i.e. for 6 hours and not 15 minutes. But he said he did not go every 5 minutes and see if he was still working in the plantation. He said that he does not know if the accused could have gone away for an hour. In re-examination he said he came back after 15 minutes after pulling cassava but about 8 o’clock he returned to plantation and remained there till 2.00 p.m. Then we have the evidence of the mother (DW3) who testified that he was "weeding around the house". In cross-examination she said that Aporosa went out to plantation about 9.30 to 10.00 and he ‘just went to pull out cassava for our lunch and he came back’ in 15 minutes and not 6 hours. He did not go back to the plantation, "we remained at home".
It, is for you to weigh all the evidence both of the prosecution and of the defence and make your findings of fact.
Direction on identification
Certain evidence is capable of supporting the evidence of identification but it is for you Lady and I Gentlemen assessors to decide, if you accept that evidence, whether in fact it supports the evidence of identification (R. v. Akaidere [1990] Crim. L.R 808-809 C.A.).
In this case the crux of the matter is of course whether the accused was involved in the commission of the offence. Now this is a trial where the case against the accused depends wholly or substantially on the correctness of one or more identifications of the accused, which the defence alleges that the witnesses were mistaken. I must therefore warn you of the special need for caution before convicting in reliance on the correctness of the identification. The reason for this is that it is quite possible for an honest witness to make a mistaken identification, and notorious miscarriages of justice have occurred as a result in Courts throughout the world. For this reason, a mistaken witness could be a convincing one, and even a number of apparently convincing witnesses could all be mistaken. So you also have to consider whether the witnesses are reliable.
You should examine closely the circumstances in which the identification by each witness came to be made. You have heard evidence as to this and I have also summarized it for you. You should consider how long did the witnesses have the accused under observation? At what distance? In what light? Was the observation impeded in any way? Had the witnesses even seen the accused before? How often? If only occasionally, had they any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the Police? Was there any material discrepancy between the description of the accused given to the police by the witnesses when first seen by them and his actual appearance? (The Turnbull Guidelines, R v Turnbull and others [1977] Q.B. 224).
I have already stated to you the manner and the circumstances under which Shiu Ram and Diani say they recognized the accused and then identified him. In this case Shiu Ram had a fleeting glimpse only of the person alleged to be the accused whom he had not seen before this day. Diani on the other hand had more than a fleeting glimpse. She had seen the accused in front of the shop where she worked (Buddy’s Market) and then shortly after seeing him she saw him running away after she heard the shout of the bank robbery next door to her. She saw him running away and even saw his sulu falling.
Subsequently 3 days later on Sunday 17 July 1994 both these witnesses identified the accused at an Identification Parade held at Samabula Police Station.
Alibi direction
At the Preliminary Inquiry the accused was told to give the names of alibi witnesses but he failed to do so. After the close of the prosecution case, since he wanted to call witnesses, I had in the interests of justice allowed him to do so at that stage of the trial.
Here the defence is one of alibi, which simply means that the accused says that he was somewhere else at the material time. But as the burden of proof is on the prosecution, the defendant does not have to prove that he was elsewhere: on the contrary it is for the prosecution to disprove the alibi. If you conclude that the alibi was false that does not of itself entitle you to convict the defendant: the prosecution must still establish his guilt. Alibis are sometimes invented to bolster a genuine defence.
You have the alibi evidence before you. It is for you to decide what part of this evidence you accept. However, I must remind you that ‘proving the accused had told lies about where he was at the material time does not by itself prove that he was where the identifying witnesses say he was ...’ (Turnbull supra).
When interviewed by Police (exhibit 5) the accused did say he was in his plantation at the relevant time and did not return home until 2.00 p.m.
I wish to remind you "that people sometimes lie, for example, in an attempt to bolster up a just cause, or out of shame or out of wish to conceal disgraceful behaviour from their family". (IYABODE RUTH LUCAS [1981] Q.B. 320, 73 Cr. App. R. 159, C.A.). "The statement must be clearly shown to be a lie by evidence other than that of the accomplice who is to be corroborated, i.e. by admission or by evidence, from an independent witness". (Lucas (supra) p.159)
Direction on co-defendant’s evidence
In this case Mahen Lal was an accused with Aporosa Mara named as co-accused with him. Mahen Lal as an accomplice and a co-defendant testified against the accused.
It is necessary that I give a direction in law to you as to corroboration when an accomplice testified against a co-accused for the prosecution. It is that "there may be all sorts of reasons for an accomplice to tell lies and to implicate other people, and for that reason it is dangerous for you to act on the evidence of an accomplice unless that evidence is corroborated in some material way." However, there is nothing to prevent you from considering his evidence and decide whether he has told the truth bearing in mind all the other evidence in the case.
Statement to police
The Police Officers interviewed other accused persons in this case and questioned them and in that process the accused may have been implicated.
In this regard the direction that I must give to you is that a statement implicating defendant A made by co-defendant B (or by any other person) out of Court and not in the presence of defendant A is not evidence against defendant A and must be disregarded when considering the evidence against him.
Therefore, where there is more than one accused as in this case, and each accused has made a written statement, if you had to consider the evidence against each accused, to consider only the statement made by the accused.
Conclusion
It is alleged that this was a joint enterprise. It is not necessary for the prosecution to prove that the accused physically assaulted, or robbed any of the two complainants. Where two or more persons embark on a joint enterprise each is liable for the act of the other or others, done in pursuance of the joint enterprise. If you are satisfied therefore that the persons involved had a common purpose to rob, then the accused as one of three persons involved would be responsible for the acts of the others done in execution of the common purpose.
You have heard all the evidence. It is for you to decide which evidence you accept and which you reject. I do not think I can assist you any further. If you have any queries I will endeavour to answer them straight away. Remember once again that the onus is upon the prosecution. In the matter of identification you must be satisfied beyond reasonable doubt that the danger of mistaken identification has been removed. You may not enter an opinion that the accused is guilty of the charge unless you are satisfied beyond reasonable doubt of such guilt. If you consider that, or you are in reasonable doubt that, he is not guilty, then your individual opinions must be that he is not guilty of the charge.
I would like to point out to you for your attention while deliberating what Goddard L.C.J. said in R v Lobell [1957] 2 WLR 524 at 527:
"A convenient way of directing the jury is to tell them that the burden of establishing guilt is on the prosecution but that they must also consider the evidence for the defence which may have one of three results: it may convince them of the innocence of the accused, or it may cause them to doubt, in which case the defendant is entitled to an acquittal, or it may and sometimes does strengthen the case for the prosecution".
You should now retire to consider your opinions. You may take any of the exhibits with you. You are, as indicated previously, free to discuss the evidence between you, but not with anyone else. Ultimately you must consider your own individual independent opinions which need not be unanimous. When you have done so, on return to this Court you will each be requested to state your individual opinions in Open Court.
You should inform the Court Officer when you are ready with your opinions.
D. Pathik
Judge
At Suva
31 August 2000
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