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State v Raitini [2003] FJHC 150; HAC0005S.2003S (22 October 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC005 OF 2003S

THE STATE

V

TIERI RAITINI and 2 Others

Gates J.

Mr S. Leweniqila and Mr W. Rano for the State
Mr R. Singh for Accused 1
Accused 2 in Person

14-20 October 2003, 22 October 2003

SUMMING UP

All 3 Assessors present

[1] Lady and Gentlemen Assessors, it is now my duty to sum up the case to you. We have differing roles in this trial. I have to give you directions on the law and you must accept those directions. You are to decide the facts applying those directions and to give me your opinions as to the Accused’s guilt or innocence.

[2] In going through the evidence I may express an opinion. If you do not agree with that opinion, you are free to ignore it and to form another view of that piece of evidence. I may omit some evidence which you think significant. Nonetheless you may give that evidence such weight as you consider appropriate. You are free to form your own opinions.

[3] At the end of this summing up, and after you have given your individual opinions, the final decision on the facts rests with me. I am not bound to conform to your opinions. However in arriving at my judgment I shall place much reliance upon those opinions.

[4] The burden of proof rests throughout the trial upon the State. In our system of justice there is a presumption of innocence in favour of an Accused which is enshrined in the Constitution. The State brings the charges against each of the Accused. Therefore it is for the State to prove each charge against each Accused. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused.

[5] The prosecution must prove its case beyond reasonable doubt. That means that before you express an opinion that one of the Accused is guilty of the charge you must be satisfied so that you are sure of his guilt beyond reasonable doubt. If you consider him innocent of the charge you must give your opinion that he is not guilty. If you entertain a reasonable doubt of guilt, you must also give your opinion that the Accused is not guilty of the charge.

[6] The Accused are charged together with one count of robbery. But you must consider each of the Accused separately, when you examine the case in your deliberations. You are not obliged to find both guilty or both not guilty. Look at the evidence as it affects each of the Accused separately.

[7] Both Accused declined to give sworn evidence. Tieri, Accused 1, you will remember, made a very brief statement from the dock and said simply "I deny the allegation". He said nothing more. The law requires you to take his statement into account together with the evidence. His statement from the dock is not in itself evidence in the same sense as the statement of a witness given upon oath, for it is not subject in any way to test by cross-examination. You should give such weight to it as you consider appropriate.

[8] Let me emphasize to you that neither Accused need give or call evidence in his defence. An Accused is not obliged to give evidence. He has a right to remain silent. He is not obliged to go on an identification parade either. It has been said that an Accused admits nothing by exercising at his trial the right which the law gives him of electing not to deny the charge on oath. Nothing adverse attaches to an Accused for not giving sworn evidence or for not going on an identification parade. In any case you have before you what each Accused had to say about this allegation in their police interviews. So you are not bereft of explanations. Keep in mind the burden remains on the prosecution throughout to prove its case against each of the Accused.

[9] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate amongst yourselves so as to arrive at your opinions. Upon your return to court, when you are ready, each one of you will be required to state his or her individual opinions orally on the charge against each of the Accused, which opinions will be recorded. Your opinions need not be unanimous. You will not be asked for reasons for your opinions.

[10] However it will be helpful to you beforehand in arriving at sound and rational opinions if you ask yourselves why you have come to those opinions.

[11] Those opinions must be based solely upon the evidence. Evidence consists of sworn testimony of the witnesses, what each witness has told the court in the witness box, as well as the exhibits tendered in court, such as the caution interview statements. In addition, in the case against Accused 1, you will consider the evidence that went in by consent of both parties, the list of agreed facts. Following correct procedure counsel have agreed certain issues or facts. They are therefore not in dispute in this trial. Such agreements properly help to shorten the proceedings. Concentrate on the issues that are disputed. Moriti, Accused 2, was not represented and did not formally admit a list of facts. However you may feel his case, as he conducted it, seemed not to dispute pieces of evidence which Accused 1 had agreed.

[12] Neither speculation nor theories of one’s own constitute evidence. Media coverage, idle talk, or gossip are similarly not evidence. Put out of your mind when considering your opinions, anything you may have read in the newspapers about this case. Focus solely on the evidence which you have seen, heard, or examined in this court.

[13] This summing up is not evidence either, nor are counsel’s opening or closing addresses. Naturally we hope all of these are of assistance to you, but they do not constitute evidence.

[14] If a witness is asked a question in cross-examination and agrees with what counsel is suggesting, the witness’ answer is evidence. If he or she rejects the suggestion, neither the question nor the answer can become evidence for the proposition put.

[15] In arriving at your opinions, use the common sense you bring to bear in your daily lives, at home and at work. Observe and assess the witnesses’ evidence and demeanour together with all of the evidence in the case. You can accept part of a witness’ testimony and reject other parts. A witness may tell the truth about one matter and lie about another; may be accurate in saying one thing and be wide of the mark about another.

[16] If you have formed a moral opinion on the conduct alleged in this case, put that to one side. Consistent with your oath, you should put away both prejudice and sympathy. Approach your assessment of the evidence dispassionately. Bring a cool detachment to your task of examining whether the case has been proved before you, proved with evidence.

[17] I turn now to deal with what the prosecution must prove. The Accused are charged on count 2 in the information with robbery, which is an offence in our Penal Code. I remind you we are no longer concerned with count 1 or with Accused 3 Sandeep Singh.

[18] Under section 293(1)(a) of that Code the prosecution must prove several elements. First it must be proved to you to the standard beyond reasonable doubt, as must all the elements of the offence of robbery be proved, that the Accused stole the $100 cash from the complainant Ms Huai. That means that you are to be satisfied that the Accused took the $100 from the complainant knowing that they were appropriating property which belonged to the complainant, property which they had no right to, and at the time that they took it, that they intended to deprive the complainant of it permanently. This is the stealing or dishonest taking element which must be proved. Such stealing is denied by both Accused.

[19] Second, you must be satisfied that this stealing was carried out whilst the complainant Ms Huai was put in fear of the use of force or that force was used against her. If you accept the evidence that the complainant was pulled out of the restaurant against her will, put rudely into the police vehicle, and detained against her will, and then instead of being taken to the police station, was taken to a dark, off main road, feeder road, and inappropriately searched by a male police officer, you could conclude that that conduct amounted to the accompanying threat and use of force sufficient for robbery.

[20] If you found that the two Accused though carrying out different aspects of this matter, did so as part of a joint enterprise to search and rob these non-English speaking Chinese nationals, you could conclude that they acted in support of each other and together, and it would not matter whether it was Accused 1 or Accused 2 who physically took the cash from Ms Huai. Each would be guilty in those circumstances as a principal in the commission of the crime. One of the issues you will have to decide is whether they were acting as a team assisting each other that night?

[21] If you so found, you would also find that the aggravating element of "being together with one other person or more" was also proved, the aggravation here alleged is that more than one person carried out the robbery.

[22] Lastly and in this case, most importantly of all, are you satisfied beyond reasonable doubt that these two Accused have been sufficiently identified as the two police officers involved? Do you accept Ms Huai’s account of what happened in Drew Street, or do you accept that of Accused 1 and 2 as recorded in their police interviews, bearing in mind that it is for the prosecution to prove to you that Ms Huai’s account is correct? Both Accused 1 and 2 deny this robbery. They maintained in their interviews an account that they had acted properly. Accused 1 said he was searching for passports because he thought they were illegal immigrants. Accused 2 gave a similar account. Both Accused admit they were there with the two Chinese. They simply deny any improper conduct concerning the taking of the money.

[23] Before summarizing the evidence, I should mention one other consideration. When examining each Accused’s case, ignore any comments made by one Accused in his interview statement to the police about the conduct of the other Accused. When you look at such a statement, sometimes called a caution interview statement, you approach it on the basis that it is evidence for or against the Accused who is making the statement. You consider his admissions and his denials. You must not treat it as evidence against the Co-Accused. The position would have been slightly different if the Accused had gone into the witness box and given sworn testimony along the same lines as in his statement against his Co-Accused. Then you could have considered it as evidence against the Co-Accused. This has not happened here, so you must ignore any comments about the conduct of a Co-Accused in such a statement.

[24] The robbery is alleged to have occurred at Drew Street, in the unlit feeder road at the back of Vatuwaqa Primary School. But it may assist you in your deliberations if you examine the circumstances of the handling of the complainant and of her friend before and after that event.

[25] First you may wish to consider how the complainant Ms Huai and her friend Mr Ming were taken from the restaurant in Carnavon Street and placed in the police vehicle. Ms Yan, PW3, was also there. But there was no room in the police vehicle for her, so she was taken off in a taxi to a nightclub by PC Jolame, the first officer who was already in the restaurant when the Accused’s police vehicle first arrived.

[26] The evidence you need to weigh up on this incident, as also on the incidents at Drew Street and at the Cumming Street Police Post, comprise the caution interviews of both Accused, the evidence of the prosecution witnesses, and the list of Agreed Facts (agreed by Accused 1 Tieri]. The interviews contained admissions that both Accused were present at least outside the restaurant at Carnavon Street although Tieri admits entering the restaurant, and admissions about what happened at Drew Street, and at the Cumming Street Police Post.

[27] The first witness was Jennifer Chen, the 12 year old girl whose mother ran the Modern Times Restaurant in Carnavon Street. She was at the restaurant straight after she finished school she said on 16 January 2003. She was there with her mother and the waitress Raijieli who was waiting for her husband to finish duty.

[28] A Chinese man and two Chinese women were sitting together. Though Jennifer did not say she knew them, these were Mr Ming, Ms Huai and Ms Yan. A police officer entered. We know from Accused 1’s interview that this was PC Jolame. He called one of the women. We know from Ms Huai’s evidence that she was the person called. Jennifer said Ms Huai "was a bit scared". The policeman told Ms Huai to take off the bag she was carrying. The policeman, said Jennifer, was looking inside the bag as if he was searching.

[29] After a while the police car GM924 driven by SC Tieri Raitini arrived. Jennifer said the police officer inside the restaurant told the lady and the man to go down to the car. These persons were Mr Ming and Ms Huai. There is no evidence as to what communication there might have been between PC Jolame and the 3 officers who arrived in the police vehicle. Jennifer said she saw the officer in the driver’s seat. She saw 2 or 3 policemen get off the car. She thought the police officers came into the restaurant to assist getting the man and the two ladies out into the car.

[30] Ms Yan’s evidence supported Jennifer’s. She said after PC Jolame had pulled Ms Huai to the back of the restaurant, 3 police officers arrived and entered the restaurant. They wanted to check the papers of her friend, she said. They opened Ms Huai’s bag and found nothing. Ms Yan said Mr Ming and Ms Huai were pulled out to the police car.

[31] Ms Huai said she showed to the 3 officers who had come into the restaurant a photocopy of her passport. Her passport was then with the Immigration Department. She gave them two F$50 notes. "They put the notes back into her bag", she said. They then dragged her out by holding onto her wrists. Two officers pulled her and she resisted and tried to hold onto the glass door frame. She later had her arm held behind her back before being put into the police car. Neither of the Accused, nor Accused 1’s counsel, has claimed that the Accused were making a valid arrest in pulling Ms Huai against her will out of the restaurant.

[32] Ms Huai told you that she resisted this arrest or detention, for that is what it was. She was obviously not free to remain in the restaurant. At least one officer would have had to assist Jolame in bringing her out in those circumstances. Tieri in the agreed facts admits that at around 9 pm they had gone to investigate an incident at the Modern Times Restaurant. What was the incident?

[33] In his interview Tieri said they went to the restaurant because a bouncer had stopped them and told them that two Chinese ladies failed to pay their taxi fares and were sitting in the restaurant. He admitted that he went inside the restaurant. Then he came out. He did not at first see PC Jolame who was already there.

[34] There is no evidence to support Accused 1’s suggestion of non-payment of taxi fare, nor was there any questioning of the two Chinese ladies along that line. Indeed that is the first and last suggestion of such an occurrence. Who was the taxi driver complainant? Did they broach the matter with the ladies? Did they obtain further details from the bouncer? No evidence is before you that lends credence to this story.

[35] Do you believe Accused 1’s reason for stopping at the restaurant? Is it a lie? If you conclude he is lying on this issue, that does not mean automatically that Accused 1 has lied because he is guilty. It goes to the issue as to why Accused 1 had anything to do with the 2 Chinese persons at the restaurant that day. You may think there is not much materiality to the charge of robbery in this. It is too far removed from events at Drew Street. What is material to events at Drew Street is what happened between the Accused and the Chinese persons at the restaurant, how it was that they came to be taken away in the vehicle, and not the reason the police vehicle stopped initially. If you did conclude it was material to the reason for dealing with the 2 Chinese, then you must be satisfied Accused 1 told a deliberate lie, and that it was told because Accused 1 realised he was guilty and feared the truth. Remember people sometimes lie for a variety of reasons, many of which are told for reasons not associated with guilty conduct. You must be satisfied from the evidence of the surrounding circumstances independently of the lie that the account given by Accused 1 was never followed through and was false.

[36] In his interview Moriti said that the security man at the Bojungle Nightclub had told them that something was going on inside the Chinese Restaurant. According to Moriti they stopped the vehicle and saw PC Jolame talking to some Chinese people inside. Moriti did not go inside. Jolame brought the Chinese outside, and he said they just came out normally.

[37] Moriti said he was not told anything by PC Jolame. In answer to the question as to why the Chinese people were loaded into his patrol car and whether they were arrested he said "Not arrested but only to check their passport because we suspected them to be illegal immigrants". Nothing was discussed with PC Jolame before driving off. If PC Jolame was the first on the scene to investigate the possibility of there being illegal immigrants in the restaurant, it was strange that the Accused did not ask Jolame what was needed to be done next in the investigation, so they could take over.

[38] Although there was a search of Ms Huai at the restaurant by PC Jolame, she and Mr Ming were to be investigated and searched by the 3 officers from the patrol car. You might expect that the suspects would be taken straight to CPS for this to be done. But instead they were taken against their will to Drew Street, an unlit lane in an isolated area. It has not been suggested that the Chinese couple at that time were free to go. They were detained in the police vehicle, and for the purposes of the searches. Neither the detention nor the searches were lawful.

[39] Of what happened at Drew Street Ms Huai said this:

" The policeman came to me. He emptied all the contents onto the bonnet. Then he asked me for money. He was searching me, the other was searching the other friend. I took out two F$50 notes and he took it. I was frightened as I did not expect a policeman would do this kind of robbery. He searched my whole body including my breasts. He did not say anything. He was searching for money I thought. He kept saying "money, money". My boyfriend was stripped of his shoes. They took off his trousers to his legs from my boyfriend. They finished searching and then they asked him to put them back on."

[40] Has it been proved to you that Accused 1 and Accused 2 were the persons involved in these actions? Accused 1 said he searched the Chinese man, whilst two metres away the woman was also being searched. Accused 1 denied opening the man’s trousers and pants and said he had only touched his pockets.

[41] In his interview Accused 2 was not at first very forthcoming about the search at Drew Street. He said the two Chinese got out of the vehicle and he got out as well. He was asked if the police had spotted their passports in the search. He said "No they don’t have any". Later though, he admitted searching "the female’s bag but not the person".

[42] It was suggested to Accused 1 that these searches should have been correctly carried out by police at the police station. Accused 1 said "I was just listening to the crew". Accused 2 was asked why no complaint was lodged at CPS. He merely replied "No".

[43] The two Chinese were put back in the police vehicle and taken to Cumming Street Police Post. One officer remained at the Post with them. Accused 1 and the crew went back. Accused 1 was never asked in his interview about going on to Cumming Street or about any other events that night. The prosecution witnesses have not identified him as the officer remaining at the police post. Accused 2 however admitted in his interview that he was the officer who remained behind. He said his purpose was "for me to drop off and to check them well while they drove away". In effect he had the 2 Chinese in his custody at the Police Post. This was clearly an unlawful procedure.

[44] Accused 2 admitted that Ms Huai was scared at this time. Eventually he released her he said to go and get a copy of her passport "while the male Chinese was with me". It was by then 10 pm at night. She went by taxi. Then Accused 1 came back and he together with Accused 2 and Mr Ming went to look for Ms Huai.

[45] They went in the patrol car first to Bojungles then to the Planet Nightclub, looking for Ms Huai. Eventually they gave up and left Mr Ming at the Planet. That would appear to have been the end of their investigation. No charges were ever brought against Mr Ming or Ms Huai; there is no evidence of any police/immigration inquiry being persisted in, no notebooks exhibited with details of an investigation noted. But as I have said before the Accused do not have to prove anything.

[46] The prosecution case is that this was not an investigation, but a means by which these two Accused could choke some money out of vulnerable overseas visitors. The Accused tell you theirs was a genuine investigation into illegal immigrants. You will have to decide if the prosecution have convinced you by proof that their account is the right one and that the Accused’s explanations are false.

[47] Some of the matters you will have to decide are disputed: whether the complainants were pulled out of the restaurant, whether they were searched in the way the prosecution witness said, whether money was indeed taken from Ms Huai.

[48] Some parts of the story are not disputed. The two Chinese were put in the police car. They were not free to refuse to go with the police. Why were they detained? Why, if this was an official investigation, were they not taken straight to Central Police Station? Why were they not searched at CPS? Why were they taken to a dark isolated place for the "official" search? Why were they taken back to Cumming Street? And detained again? Why was the investigation abandoned at the Planet? Why were no charges brought or an investigation undertaken, after all the Accused as investigators had yet to be shown the passports?

[49] You may rightly consider these questions, and the answers you reach may help you in deciding whether you believe the evidence of Ms Yan and Ms Huai. Do you accept the evidence of the young girl Jennifer? She was obviously a bright Class 6 student. But you may think she did not go further with her evidence than she was confident of going. Several times she frankly admitted if she did not remember something.

[50] It is your role to decide where the truth lies, and whether the prosecution have proved their case against each Accused. Please now retire to consider your opinions.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions
Solicitors for Accused 1: Messrs Kohli & Singh
Accused 2: In Person