Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Gavidi - Summing Up [2004] FJHC 339; HAC0020S.2003S (9 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Cr. Action HAC0020.2003S

THE STATE

V

RATU LUKE GAVIDI

Fiji High Court, Suva
9 June 2004
Gates J

SUMMING UP

Mr David Toganivalu for the State
The Accused in Person

All 3 Assessors present

[1] Ladies and Gentleman 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 your 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 charge against the Accused. Therefore it is for the State to prove the charge against the 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 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.

[6] The Accused elected to remain silent. In doing so, he chose to exercise one of his rights, that is, not to testify. No adverse inference can be drawn from that choice. In particular, his decision not to give or to call evidence cannot go to prove a case that does not by itself establish the charge on its own evidence. Nor can his silence be taken as an admission of anything. The Accused does not have to prove anything, and he is not under any obligation to give evidence.

[7] His silence cannot for instance corroborate or confirm the evidence of the accomplice Tevita Vakalalabure. The Accused’s failure to call evidence may mean that there is no evidence other than that called by the prosecution for you to consider in deciding this matter. The record of interview, which the Accused does not challenge, puts forward the Accused’s version of what happened that night. You will consider it along with all the evidence in the case.

[8] You must decide this case from the evidence that has been presented to you. It will be your task to discover which witnesses have given honest and accurate evidence and which may not.

[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 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 statement, the charge statement and the report of the fire officer. In addition, you will consider the evidence that went in by consent of both parties, listed in the paper headed agreed facts. Following correct procedure the two sides have agreed certain issues or facts. These are therefore not in dispute in this trial. Such agreements properly help to shorten the proceedings. Concentrate on the issues that are disputed.

[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 matter. This case might be considered a coup related case. In the criminal courts that characteristic is irrelevant. We are concerned here with a criminal charge of arson, and you are to focus solely upon whether the prosecution have produced sufficient and cogent evidence to prove the charge beyond reasonable doubt, as would be required in any other case. Have regard only to 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’s testimony and reject other parts. A witness may tell the truth about one matter and lie about another; he or she 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 against the Accused has been proved before you, proved with evidence sufficient for the charge to the extent that I have already indicated.

[17] I turn now to deal with what the prosecution must prove. The Accused is charged with one count of arson which is an offence in our Penal Code. There are 5 relevant elements of that offence to be proved. They are (1) that there was a building, the Lighthouse Restaurant (2) which was set on fire (3) by an act, which was done wilfully (4) and unlawfully (5) by, or with the active assistance of, the Accused.

[18] On Saturday 10 June 2000 there was a building on Queen Elizabeth Drive, directly opposite Vieuto Primary School, known as the Lighthouse Restaurant. It was owned and operated by Marjorie Lavaki the first witness. She had had the restaurant since 1994 and valued it as being worth about $140,000 without its restaurant equipment.

[19] She testified that she ran the restaurant for part of June. She had to shut it down because she and her staff were getting abused by the people from Parliament. We all know that this was the time of the 2000 coup or attempted takeover of Parliament and of the government, by George Speight and his group. She said people from that group staying at Parliament used to walk into her restaurant and demand and take things without paying.

[20] For the safety of her staff and herself Mrs Lavaki closed down the restaurant. She switched off all the electrical appliances. In addition FEA had turned off the power. You may conclude therefore that the cause of the fire on that Saturday night, 10 June 2000, was not through an electrical fault. There was one broken window in the building she told us.
[21] On that Saturday evening Mrs Lavaki was walking up from the Bowling Club when she saw fire engines going past. We know from the fire officer that this was at around 7.30 pm. Later when she was told of the fire, Mrs Lavaki made frantic telephone calls to find out what had happened.

[22] In court, Mrs Lavaki was clearly very upset at what had happened to her business endeavour. She said she was struggling even now to re-establish the business. She had been insured but still needed a loan to cover all of the re-building works. Part of the works she had achieved but today she continued to face problems. From all of this, you may conclude that Mrs Lavaki had had nothing to do with the destruction by fire of the Lighthouse building that night.

[23] What had caused the fire? The restaurant was sited close to the Parliamentary complex building. On 10 June 2000 it was only 3 weeks since the takeover of Parliament and the commencement of the hostage crisis. This area had been declared a military danger zone from which the public were excluded. It would be unlikely therefore that any member of the ordinary public would be in that area on that night.

[24] We know from what the Accused told the interviewing officer Det. Sergeant Paulo Tabacece that he was present that Saturday night with a great body of persons coming from the Parliamentary complex who moved up Vuya Rd. to the junction with Queen Elizabeth Drive. This junction was a very short distance from the Lighthouse. The Accused admitted having possession of the two petrol bombs, but he said he took them as a preventive measure from 2 youths. He said he remained at the bus-stop. He said he was part of the group “when the lighthouse was burned”. He denied knowing what had happened, saying “we were surprised when the lighthouse restaurant caught fire”.

[25] Disregarding the Accused’s possible involvement for a moment, you may well conclude from the Accused’s comments alone that the Lighthouse Restaurant caught fire that night because some persons from the Parliamentary group set fire to it using petrol bombs and sticks. No-one has told you however that they saw anyone doing the act of lighting the building. But this is an inference you could draw from these facts and circumstances and from the evidence also of Tevita Vakalalabure.

[26] Remember this witness said he saw a group of boys heading towards the lighthouse from the junction. They carried containers of liquid, and sticks with cloth wrapped around. The Accused said the liquid was petrol. Shortly afterwards the Lighthouse was alight, said Tevita.

[27] So strict was the army exclusion zone that the fire brigade had to obtain permission before entering that zone even in a fire emergency. The fire officer Timoci Ranavue, said they were escorted to the scene by two twin cabs full of soldiers. It was very windy that night. Whilst the fire was being extinguished the soldiers took up defensive positions with their guns.

[28] Mr Ranavue said only 10% of the building remained standing. No investigation of the cause of the fire could be undertaken because of the danger existing at that place. Without modern detection equipment only now available, it was not possible then to find a cause of the fire, and anyway no investigation was possible because of the danger zone. But in his report the second fire officer witness Mr Ratumaikoro said he considered the fire suspicious because of the number of fires that were occurring during the country’s crisis and because this fire was a very fast spreading fire. The witness did not actually say it, but by this he may have meant that this was a fire where an accelerant had been used, hence that it had spread so fast. All in all you may, if you so decide, conclude that this fire was not accidental, rather that it was set deliberately.

[29] The third element on which as with all the elements in this offence you must be satisfied beyond reasonable doubt is that the person who set the fire did so wilfully. Wilfully simply means deliberately and intentionally. If you accept that the fire was lit by persons with containers of kerosene using cloth wrapped sticks such a fire must have been lit deliberately and intentionally, and not accidentally.

[30] The fourth element is that the act must have been done unlawfully. Unlawfully means “without lawful justification”. If the fire had been set in order to preserve life that would provide a defence to the setting of the fire. But no such factual situation exists here, and you may quickly conclude that whoever lit the fire did so unlawfully.

[31] The fifth and last element, indeed the crux of the case, is whether the Accused was involved at all, that is whether he lit the fire or assisted others to light the fire. A careful examination is necessary therefore of the evidence of Tevita Vakalalabure and of what the Accused told the investigating officer in his interview.

[32] The Accused as you know has completely denied involvement in the arson. He admits going with the crowd up to the junction near the restaurant, but denies going forward to the restaurant with a small group of perhaps 3 or 4 others who were in possession of fire lighting equipment.

[33] The Accused is charged with others. They have not been named, presumably since their names and identities are not known to the prosecution. The charge is brought in two ways. Since on the evidence he was conducting himself as a leader, the Accused was one of those who actually lit the fire. Alternatively, without actually lighting the fire the Accused accompanied those that did, and actively encouraged or assisted them. The Accused was said by Tevita to be holding the plastic container and the cloth wrapped sticks as they headed off in the direction of the restaurant.

[34] A person may be charged with arson if he himself does the setting on fire, or if he assists in some way such as by carrying the fire lighting equipment to the scene for the purpose of enabling or aiding another person to do the setting on fire, or if he aids and abets or counsels or procures another to commit the offence. All of such acts would constitute the offence of arson, as well as the act of the person who actually lights the fire.

[35] I have already told you you may accept part of what a witness has said, and reject other parts. Sometimes a witness is so unreliable and so incapable of belief you would disregard his entire evidence. With other witnesses you may find they are inaccurate in some parts or even lying to you in some parts, but truthful and reliable in other parts. In which case, you may accept those parts you find to be truthful and reliable.

[36] You should approach the evidence of Tevita Vakalalabure with caution since he was an accomplice of the Accused. He has told you that he did not know why everyone assembled at the Vuya Rd. main gate of Parliament to go out somewhere. He went with his sub-group, the Cakaudrove boys as he said. He could not get any satisfactory answer as to where they were going and what for.

[37] When he realised some of the main group including the Accused were intent on burning, he said he pulled his people back. At the Grammar School junction on their way back they saw the flames coming from the Lighthouse.

[38] He was saying he was not part of the arson team, and did not approve of it. He believed in the Taukei Movement and was against the Chaudhry Government, but he did not approve of burning buildings. Still, you should approach his evidence as if he were an accomplice. Because of this you should look for corroboration of his evidence. Corroboration is evidence which implicates the Accused in some material way relevant to the charge. Without corroboration it is dangerous to convict on the evidence of this witness alone. Having warned yourselves of the dangers of convicting on the evidence of this accomplice without corroboration, you may still convict the Accused on the strength of Tevita Vakalalabure’s evidence if you consider his evidence alone to be accurate reliable and credible.

[39] Though the Accused’s remarks in interview tend to confirm that he played a leadership role, and that he was holding the container and sticks, albeit for a preventative non-criminal reason, there is no corroboration of the accomplice’s account of the Accused and the 3 or 4 others heading off towards the Lighthouse just moments before the fire started. You should approach the issue on the basis that there is no corroboration of Tevita’s evidence implicating the Accused.

[40] You will have to decide therefore whether you accept Tevita’s evidence on this issue. Do you believe him when he said he did not know the purpose for going towards the seaside from the Parliamentary complex? Do you consider him, as he suggested to you, that he was a man of principle, and though a strong supporter of the coup cause, nonetheless that he did not believe it was right to carry out burnings? If you assess him to be so principled then you may find it easier to accept his evidence and place reliance on him as a truthful witness concerning the involvement of the Accused in the fire.

[41] If you find that he knew what the purpose for leaving Parliament was that night, and then got cold feet, you may be less inclined to accept his evidence concerning the Accused. This is what you have to decide.

[42] In his closing address the Accused pointed out to you that Tevita Vakalalabure said in evidence that he did not see the Accused lighting the fire. He only saw the Accused holding the sticks not burning the Lighthouse. The prosecution say that if you accept Tevita’s evidence, then the only possible inference is that the Accused and his small group setting out from the bus stop towards the Lighthouse with the fire lighting equipment were the only persons responsible for the burning. It is a matter for you.

Ladies and Gentleman Assessors please now retire to consider your opinions.

A.H.C.T. GATES
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva
Solicitors for the Accused: In Person