IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 049 OF 2010S

THE STATE

vs

1.	ARE AMAE
2.	TAITUSI ROKOSUKA
3.	LAISENIA BESE

Counsels : Ms. T. Leweni and Mr. K. Waqavonovono for the State 
Accused No. 1 in Person
Accused No. 2 in Person
Mr. S. Waqainabete for Accused No. 3

Hearing : 9th to 12th May, 2011
Summing Up : 16th May, 2011

SUMMING UP

A.	ROLE OF JUDGE AND ASSESSORS

1.	Madam and Gentlemen Assessors, it is my duty to sum up to you. In doing so, I will direct you on matters of law, which you must accept and act upon. On matters of fact however, what evidence to accept and what evidence to reject, these are matters entirely for you to decide for yourselves. So if I express my opinion on the facts of the case, or if I appear to do so, then it is entirely a matter for you whether you accept what I say or form your own opinions. You are the judges of fact.

2.	State Counsel, Accused No. 1, Accused No.2 and Mr. S. Waqainabete for Accused No.3 have made submissions to you, about how you should find the facts of this case. That was in accordance with their duties as State counsel, Defence counsel and as accuseds, in this case. Their submissions were designed to assist you, as the judges of fact. However, you are not bound by what they said. It is you who are the representatives of the community at this trial, and it is you who must decide what happened in this case, and which version of the evidence is reliable.

3.	You will not be asked to give reasons for your opinions, but merely your opinions themselves and need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.

B.	THE BURDEN AND STANDARD OF PROOF

4.	As a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty.

5.	The standard of proof in a criminal trial, is one of proof beyond reasonable doubt. This means that you must be satisfied, so that you are sure of the accused's guilt, before you can express an opinion that he is guilty. If you have any reasonable doubt about his guilt, then you must express an opinion, that he is not guilty.

6.	Your decision must be based exclusively upon the evidence which you have heard in this Court, and upon nothing else. You must disregard anything you might have heard about this case outside of this courtroom. You must decide the facts without prejudice or sympathy, to either the accuseds or the victims. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.

C.	THE INFORMATION

7.	The three accuseds were charged with two counts of "robbery with violence", contrary to section 293(1)(b) of the Penal Code, Chapter 17. On count No. 1, it was alleged that, on 29th March 2009, at Nabua in the Central Division, the three accuseds and others, robbed Sereana Soko, who was working for Nabua B.P. Service Station, of $833.92 cash, and BH cigarettes valued at $43.90, and 	immediately before such robbery, used violence on her. On count No. 2, it was 	alleged that, at the same time abovementioned, the three accuseds and others, robbed Sereana Soko of her brown bag valued at $6 and her $40 cash, and 	immediately before such robbery, used violence on her.

D.	THE MAIN ISSUES

8.	In this case, as judges of fact, each of you will have to answer the following questions:

(i)	On count No. 1, did Are Amae, on 29th March 2009, rob Sereana Soko of 	$833.92 cash and BH cigarettes valued at $43.90, and immediately before that, used violence on her?

(ii)	On count No.1, did Taitusi Rokosuka, on 29th March 2009, rob Sereana Soko of $833.92 cash and BH cigarettes valued at $43.90, and immediately before that, used violence on her?

(iii)	On count No. 1, did Laisenia Bese, on 29th March 2009, rob Sereana Soko of $833.92 cash and BH cigarettes valued at $43.90, and immediately before that, used violence on her?

(iv)	On count No. 2, did Are Amae, on 29th March 2009, rob Sereana Soko of her brown bag valued at $6, and her $40 cash, and immediately before that, used violence on her?

(v)	On count No. 2, did Taitusi Rokosuka, on 29th March 2009, rob Sereana Soko of her brown bag valued at $6, and her $40 cash, and immediately before that, used violence on her?

(vi)	On count No. 2, did Laisenia Bese, on 29th March 2009, rob Sereana Soko of her brown bag valued at $6, and her $40 cash, and immediately before that, used violence on her?

In this case, because there are three accuseds, as judges of fact, you are actually conducting three separate trials on each accused, together.

E.	THE OFFENCE AND IT'S ELEMENTS 

10.		For the accuseds to be found guilty of "robbery with violence", the prosecution must prove beyond reasonable doubt, the following elements:

(i)	the accuseds;
(ii)	stole the complainant's properties, and
(iii)	used violence on her, to effect the above theft.

Stealing is the act of taking someone's property without his permission, and with an intention to permanently deprive him of that property. Violence means any type of violence, and include threats of violence. Violence could mean forcefully 	threatening someone with an iron spade, on the one hand, to striking someone with a cane knife, pinch bar or other weapon, on the other hand. The motive behind the violence, or threat of violence, is to effect the theft of the complainant's property.

11.	You will have noticed in the information, that the prosecution, in their particulars of offence, on the two counts, used the phrase, "…ARE AMAE, TAITUSI ROKOSUKA, LAISENIA BESE AND OTHERS…". The prosecution is alleging that the accuseds committed the above offences, as a group. As a matter of law, I must direct you that when two or more people form a common intention to commit a crime, and in committing the crime, each of them performed different roles, they are all deemed, in law, to have committed the crime, that is, the offence. It matters not, whether or not one committed a minor role or major role, they are each deemed to have committed the offence. This is because each of them helped and encouraged each other to commit the offences.

12.	Furthermore, in this case, there are three accuseds on trial. Each of the accused is entitled to be tried solely on the evidence that is admissible against him. This means that you must consider the position of each accuseds separately, and come to a separate considered decision on each of them. Just because they are jointly charged does not mean that they must all be guilty or not guilty. Most evidence in this case are admissible against all accuseds. However, regarding their police caution interview statements, which contained their alleged confessions, the statements therein are only admissible against the maker of the statement, and on 	no other. In other words, in each accused person's police caution interview statement, you must totally disregard what the accused said about his co- accuseds on the commission of the offences. You can only take into account what he said about himself, regarding his role in the commission of the crime.

F.	THE PROSECUTION'S CASE

13.	The prosecution's case was simple. On or about the 28th March 2009, Are Amae, a 26 year old unemployed of Tamavua-i-wai, wanted some money. He began to put in place a plan to rob the Nabua B.P. Service Station. He went around looking for others to assist him rob the service station. Taitusi Rokosuka, a 19 year old subsistence farmer of Tamavua-i-wai, agreed to join Are in his plan to rob the Nabua Service Station. The two, with others went to Nausori, to look for a get-away vehicle and driver.

14.	Are and Taitusi managed to find a get-away vehicle and driver from the Nausori-	Nasinu area. They managed to get a 7 seater van, a driver and others, to join them, in their robbery plan. They returned to Tamavua-i-wai. At Are's house, Are got hold of a cane knife, steel shovel, empty beer bottles and large stones, to use as weapons, during the robbery. At Tamavua-i-wai, Laisenia Bese was invited to the group, and he agreed.

15.	After 10pm, on 28th March 2009, Are, Taitusi, Laisenia and others, according to the prosecution, drove to Wailoku to prepare for the robbery. They waited there until 	the time was right to do the robbery. At 3am on 29th March 2009, the three accuseds and others drove directly to Nabua B.P. Service Station. They parked at the front door. The door was open. The three accuseds and others attacked Sereana Soko, the cashier at the time.

16.	The three accuseds and others waved the cane knife and the iron spade at Sereana 	Soko. They threw and smashed empty beer bottles on her counter. She was warned not to resist, otherwise she will suffer serious injuries. She was frightened and attempted to flee to safety. Two large stones were thrown at her, and it knocked her down to the floor. She was injured as a result. The three accuseds and others 	broke into her counter, and stole the items mentioned in count No. 1 and 2. Later, they fled the scene, in their stolen get-away van. The matter was reported to the police. An investigation was carried out.

17.	The three accuseds were treated as suspects. Accused No. 1 and 2 were caution interviewed by police on 21st April 2009, at Nabua Police Station. Accused No. 3 was caution interviewed by police on 27th November 2009, at Nabua Police Station. All accuseds admitted to the police that, they were part of the group that robbed the Nabua B. P. Service Station, on 29th March 2009. As a result, the prosecution is asking you, as assessors and judges of fact, to find all the accuseds guilty as charged, on both counts. That was the case for the prosecution.

G.	THE ACCUSEDS' CASE 

18.	When the information was put to all three accuseds on the first day of trial, the 9th May 2011, all of them pleaded not guilty to the two counts. In other words, all the accuseds denied the allegations against them.

19.	As for Are Amae (Accused No. 1), he repeated the above denial, when he gave 	evidence on oath. He said, he did not rob, nor was part of the group that robbed, the Nabua BP Service Station, on 29th March 2009. He said, when he gave his police caution interview statements on 21st April 2009, he did not do so voluntarily, because the police assaulted him and forced him to confess. He said, he was injured as a result. He said, his medical report was not produced in court, because of police inaction. He produced his aunt, Josefini Biu, who said, the accused 	was asleep at her house, at the time of the robbery. He said, there was no direct evidence to link him to the crime. He said, no-one saw him committing the crime. Even Sereana Soko could not identify him. As a result, Accused No. 1 invites you, as assessors and judges of fact, to find him not guilty as charged and to acquit him. 	That was the case for accused No. 1.

20.	As for Taitusi Rokosuka (Accused No. 2), he also denied the allegations against him on oath. He said, he did not take part in the robbery against Nabua BP Service Station. He said, although he confessed to the police when he was caution interviewed on 21st April 2009, the statements were not given voluntarily by him, because the police continued to assault and threaten him during the investigation and caution interview. He said, he was frightened of being killed by the police, and that's why he confessed. He said, he didn't commit the offences. He called Jeke Koroi, as a witness for him. Jeke Koroi was imprisoned for 2½ years by the Magistrate Court, for being one of those that robbed the Nabua BP Service Station, on 29th March 2009. Jeke Koroi said, accused No. 2 was not part of the group that robbed the service station. In any event, Taitusi said, he had an alibi evidence. He said, he was at his village in Mataso, Ra, when the offence was committed. He invites you, as assessors and judges of fact, to find him not guilty as charged and to acquit him. That was the case for Accused No. 2.

21.	As for Laisenia Bese (Accused No. 3), he denied the allegations against him on oath. First, he said, he was not at the crime scene, at the material time. He provided alibi evidence to say that he was asleep at his mother's house, at the time the 	robbery was committed at Nabua BP Service Station. He relied on his mother, Lavenia Mateiwai, and his wife, Lusia Tagi, as his alibi witnesses. Second, he said, although he allegedly confessed to the police when he was caution interviewed on 27th November 2009, at Nabua Police Station, he did not give his statements voluntarily to the police, because they continued to assault and threaten him, while he was in their custody. He said, the police forced him to sign his caution interview notes. He said, the police fabricated his answers to make it look like a confession. He called on his grandmother, Perina Rabuka, and his wife, as his witnesses, who said, they saw the accused with black eyes and other injuries on his body, on 27th November 2009, the date of his caution interview. Third, Bese called on Jeke Koroi, who also gave evidence for Accused No. 2. Jeke said, Accused No. 3 did not participate in the robbery. On the whole, Accused No. 3 said, the prosecution's case against him was not strong, and they have not proven his guilt beyond reasonable doubt. As assessors and judges of fact, he invites you to find him not 	guilty as charged and to acquit him. That was the case for accused No. 3.

H.	ANALYSIS OF THE EVIDENCE

22.	In this case, when considering the evidence of all the witnesses, it was not disputed that, Sereana Soko was attacked at the Nabua BP Service Station, on 29 March, 2009, between 3.30am and 4.30am. It was not disputed that, Sereana Soko was working as a cashier at the Service Station, at the time. She was receiving cash from customers, on behalf of Nabua BP Service Station. It was not disputed that, 4 or 5 masked men attacked her with a cane knife and an iron spade. They threw stones and smashed empty beer bottles on her counter. Two stones hit her, and she fell injured to the floor. It would appear that the men stole the items mentioned in the charge, and fled the scene, in a get-away van. Because the above material facts are not disputed by the parties, as a matter of law, I must direct you that, as assessors and judges of fact, you can take it that the above facts have been proven by the prosecution beyond reasonable doubt.

23.	The difficulty for the prosecution in this case, was the fact that Sereana Soko did not identify any of the robbers on 29th March 2009, because all of them were masked 	during the robbery. There was therefore no eye witness to connect any of the accuseds, to the crime. The only credible evidence the prosecution has against each accused was the alleged confessions they gave the police in their caution interview statements. All the other evidences were merely circumstantial, and in 	themselves, do not link the accuseds to the crime. So in a sense, the State's case against each of the accused, stands or fall, on whether or not, you, as assessors and judges of fact, accept the alleged confessions the accuseds gave the police, in their caution interview statements.

(I) 	The three accuseds' alleged confessions:

24.	As a matter of law, I must direct you that, a confession, when accepted by a trier of fact, is strong evidence against its maker. However, before you can accept a confession, you must be satisfied beyond reasonable that it was given voluntarily by its maker. The prosecution must satisfy you beyond reasonable doubt that the accused gave his statements voluntarily, that is, he gave his statements out of his own free will. Evidence that the accused had been assaulted, threatened or unfairly 	induced into giving those statements, will negate free will, and as judges of fact, you are entitled to disregard them. However, if you are satisfied beyond reasonable doubt, so that you are sure, that the accused gave those statements voluntarily, as judges of fact, you are entitled to rely on them against the accused.

25.	Before we examine the circumstances in which the caution interviews were taken, to decide whether or not the accuseds gave them voluntarily, we will examine the alleged statements they gave the police, to find out, whether or not, they were admitting to the elements of "robbery with violence", discussed in paragraph 10 hereof.

Are Amae's Police Caution Interview Statements, dated 21.04.09, Prosecution Exhibit No. 4:

26.	Questions and Answers 18 to 28: Accused No. 1 described when he decided to do 	a robbery, and how he went to get others to assist him, and how they went to look for a get-away vehicle and driver. Questions and Answers 29 to 45: Accused No. 1 described how they choose a 7-seater van as their get-away vehicle, how they took the driver to Tovata and tied him up, how they dropped the driver at the Suva Cemetery and how they proceeded to Wairua. Questions and Answers 46 to 53: Accused No. 1 described how they drove to his home, where they got their cane knife, iron shovel and stones, weapons to be used in the robbery. He described how they had already planned the robbery, and how they went to Wailoku to 	wait until 3am on 29th March 2009. Questions and Answers 54 to 67: Accused No. 1 described how they drove to Nabua BP Service Station, how they robbed the Service Station and how they fled to Tamavua-i-wai, while being pursued by the police. Questions and Answers 68 	and69: Accused No. 1 described the mask he used in the robbery, and this was tendered in Court, as Prosecution Exhibit No. 5. Accused No. 1 also identified the cane knife and shovel he brought from his home and this knife was tendered as Prosecution Exhibit No. 1, and the shovel as Prosecution Exhibit No. 3. If you, as assessors and judges of fact, accept the above statements, they are in themselves sufficient to satisfy the requirements of "robbery with violence", described in paragraph 10 hereof.

Taitusi Rokosuka's Police Caution Interview Statements, dated 21.4.09, 
Prosecution Exhibit No. 6:
27.	Questions and Answers 5, 6, 7 and 12: The allegations in counts No. 1 and 2 were put to accused No. 2, and he said, he understood them, and then he admitted the offences. Questions and Answers 13 to 29: Accused No. 2 described how he and others planned to rob Nabua BP Service Station, and they went to the Nausori-Nasinu area to look for a get-away van and driver. They found a van and driver. They dumped the van driver at Suva Cemetery, and then went to Tamavua-i-wai. Questions and Answers 30 to 35: Accused No. 2 described how they went to collect the weapons, that is, cane knife, stones, empty beer bottles. They put the same in the get-away van and drove to Wailoku. They waited there until 3am on 29th March 2009, and they proceeded to Nabua BP Service Station. Questions and Answers 36 to 54: Accused No. 2 described how he and others violently robbed Sereana Soko at the Nabua BP Service Station on 29th March 2009. He admitted he was armed with the cane knife, and stole the money described in the charge. He admitted, they fled in the van to Tamavua-i-wai. He said, he used $580 of the stolen money. If you, as assessors and judges of fact, accept the above statements, they are in themselves sufficient to satisfy the elements of "robbery with violence", described in paragraph 10 hereof.

Laisenia Bese's Police Caution Interview Statements, dated 27.11.09, Prosecution Exhibit No. 8:
28.	Questions and Answers 2, 3, 4 and 10: The allegations in counts No. 1 and 2 were put to accused No. 3, and he admitted the offences. Questions 11 to 22: Accused 	No. 3 described how he was invited by others at Tamavua-i-wai to rob Nabua BP Service Station, at 1am on 29th March 2009. He said, he agreed and joined them. Questions and Answers 23 to 30: Accused No. 3 described how they drove to Nabua BP Service Station, and how he and others robbed the same. He said, he jumped over the counter. He said, he went into the cashier's room, and they stole the cash therefrom. He said, they later fled in their get-away van to Tamavua-i-wai, as they were pursued by police. They later abandoned the van. He said, he made his way from Tamavua-i-wai to Newtown to see his wife. He said, he and his wife later went to Naitasiri. He said, his share in the robbery was $140.00 cash. As assessors and judges of fact, if you accept the above statements, they are in themselves sufficient to satisfy the elements of "robbery with violence", described in paragraph 10 hereof.

29.	We will now examine the surrounding circumstances, in which the above caution interview statements were taken, to decide whether or not the accuseds gave their 	statements voluntarily. You have heard the details of the evidence tendered by the prosecution and the defence witnesses, on this issue. It was apparent when listening to the parties that, their version of events on this issue, were completely at odds with each other. I will not bore you with the details. Suffice to say that, from the prosecution's view point, all the police officers involved in this matter said, all the accuseds were not assaulted, threatened or unfairly induced before, during and after the caution interview. Each of the police officers said the three accuseds gave their statements voluntarily and out of their own free will. The prosecution also said, through their witnesses that, the three accuseds were properly cautioned and were given their right to counsel. According to the prosecution, the three accuseds were given the standard meal and rest breaks. Some of them were allowed to see their relatives, as in the case of accused No. 3, he was allowed to see his grandmother and wife. The prosecution also said, through their witnesses that, none of the accuseds were assaulted or threatened when arrested and escorted to Nabua Police Station. The prosecution said, through their witnesses that, all three accuseds gave their police caution interview statements voluntarily and out of their own free will. They admitted in their caution interview statements that they were not forced, and their statements were true, and they freely signed each page of the caution interview.

30.	The defence's version of events were completely the opposite of the prosecution. The first accused said, the police assaulted and threatened him from the time he was arrested, before, during and after the caution interview. He said, he was so frightened, and as a result, he admitted the offences. He said, he was so injured, and he reported it to Magistrate Ajmal Khan. He said, he was medically examined at the CWM Hospital. He said, the police did not produce his medical report in court. As of today, no medical report was produced in court to verify his claim that he suffered injuries, while in police custody. The responsibility in bringing the medical report to court lies on no-one, but the accused. In any event, accused No. 1 said, he did not give his caution interview statements to the police voluntarily. He said, his statements were not given out of his own free will.

31.	As for accused No. 2, his versions of events were also different from the prosecution. He said, the police assaulted him from the time of his arrest, before, during and after the interview. He said, he was also repeatedly threatened with death by the police, if he didn't confess to the crime. He said, because of the assaults and threats, he admitted the offence. As such, he said, his caution interview statements were not given voluntarily and were given without his own free will. As of today, no medical report was produced in court to show that accused No. 2 suffered injuries, while in police custody. The responsibility for bringing the medical report to court, like accused No.1, lies on no-one, but Accused No. 2.

32.	As for accused No. 3, his version of events was also different from the prosecution. He said, he was assaulted and threatened by police from the time of his arrest, before, during and after his caution interview. He said, he suffered injuries to his head, face and body. He said, he was assaulted and threatened by many police officers. He said, he did not give his police caution interview statements voluntarily. He said, his statements were taken without his own free will. He produced his grandmother, Perina Rabuka and his wife, Lusia Tagi, as witnesses to verify that they spotted injuries to his face, on the date of his caution interview. However, in the normal run of cases, the objectivity of these types of witnesses are often suspect, because they are closely related to the accused; in this case, his grandmother and wife. How can you tell that these two are telling the truth, when they have so much to lose, if the accused is sent to prison? How untainted, or independent, are their evidences? If they so loved the accused, they would have reported it to the proper authorities. Even accused No. 3 saw no reason to report it to the High Court. In any event, no independent medical report was produced in court to verify his claim. Like accused No. 1 and 2, the responsibility for brining the medical report to court, lies on no-one, but the accused. 

33.	The decision to accept or reject either parties' version of events, on the issue of the voluntariness of the three accuseds' caution interview statements, is a matter for you, as assessors and judges of fact. You have heard the evidence of both parties and you have seen them giving evidence from the witness stand. You have seen how forthright or evasive the witnesses were. Were they argumentative when giving evidence? Given your life experiences and common sense, you should be able to decide which witnesses' evidence, or part of his evidence is credible and therefore to accept, and which witnesses' evidence or part of his evidence is not credible and therefore to reject, in your deliberations.

(II) 	The Other Exhibits (ie. cane knife; 2 x stones; iron spade; the mask and jacket):

34.	The cane knife (Prosecution Exhibit no. 1), the 2 x stones (Prosecution Exhibit No. 2), the iron spade (Prosecution Exhibit No. 3), the mask (Prosecution Exhibit No. 5) and the jacket (Prosecution Exhibit No. 7), by themselves prove nothing. However, when these exhibits are mentioned by the accuseds, in their police caution interview statements, they tend to increase the credibility and acceptability of their caution interview statements. In other words, the existence of these physical objects, the fact that they were allegedly referred to by the accuseds in their police caution interview statements and the fact that the interview notes contained their signatures, does tend to increase the credibility and reliability of their caution interview statements, as a piece of evidence.

35.	See for example, the following. In Are's caution interview statement, in Question and Answer No. 46, he admitted going home in the stolen get-away vehicle to get "a shovel, knife and stones", which he loaded in the vehicle. In Questions and Answers No. 68 and 69, Are admitted the mask was what he wore during the robbery, and the knife and shovel, he brought from home. In Taitusi's caution interview statement, in Questions and Answers No. 30, 40 and 41, Taitusi admitted going to Tamavua-i-wai in the stolen get-away vehicle to pick up a cane knife, stones and empty beer bottles. He also admitted wearing the jacket (Prosecution Exhibit No. 7), and holding the cane knife, at the time of the robbery.

(III)	The Accuseds' Alibi Evidence

36.	Are Amae called his aunty, Josefini Biu, as his alibi witness. According to Josefini, the accused came and weed her place on 28th March 2009. She said, the accused had breakfast at her home and then went to the farm. She said, when he returned from the farm, he had his shower and then his dinner. He slept at her home that night, and went home on Sunday, at midday. So, according to the accused's aunty, Are was asleep at her home, at the time of the robbery. When cross-examined by the prosecution, Ms. Biu admitted Are's father was her brother. She admitted she could recall what occurred on 29th March 2009, but could not recall what she had for breakfast or dinner. Amazingly, the accused himself, when giving evidence in his defence, mentioned nothing about sleeping at his aunty's house, at the time of the robbery. Was it possible his aunty was lying in Court? Was it possible he was not at his aunty's place at all, and that's why he didn't mention it in his evidence? As assessors and judges of fact, these are matters for you to decide.

37.	As for Taitusi Rokosuka, he said in his evidence that, he was at his village in Mataso, Ra, at the time of the robbery. However, he produced no witnesses to verify that he was at Mataso, Ra, at the time of the robbery. Was he telling the truth or otherwise? However, this is a matter for you to decide, as assessors and judges of fact.

38.	Laisenia Bese said, he was asleep at his mother's home, on 29th March 2009, between 3am and 4.30am, the time the robbery was happening. In other words, he said, he cannot be part of the robbery, because he was asleep, at his mother's house, at the time of the robbery. He called his wife, Lusia Tagi, and his mother Lavenia Matewai, to confirm the above. However, when his wife was cross-examined, she admitted that, she loved the accused so much, she doesn't want to see him go to jail, and she would do anything to keep him out of jail. When Bese's mother was cross-examined, she repeated what Bese's wife said. She said, she loved her son so much, she would do anything to keep him out of jail. Were these witnesses' objective? Were their objectivity clouded by the fact they were closely related to the accused, as mother and wife? Was it possible for them to lie to court to save a son and husband from going to jail? In other words, were they credible witnesses? Was Laisenia Bese credible on this issue? Here was a person who was already breaking the rules by drinking in public. Do you accept his evidence? These are matters for you to consider, as assessors and judges of fact.

(IV)	The evidence of Jeke Koroi:

39.	Jeke Koroi was called by Taitusi Rokosuka and Laisenia Bese, as their witnesses. He was convicted for being one of those who violently robbed Sereana Soko, at the Nabua BP Service Station, on 29th March 2009. He was sentenced by the Magistrate Court to 2½ years imprisonment. In his evidence, he said, he knew all the accuseds and their families very well. The accuseds' family and Jeke's family reside in Tamavua-i-wai. The families know each other very well. Jeke's 19th April 2009 police caution interview statements were tendered by the prosecution, as Prosecution Exhibit No. 9. I must warn you, as a matter of law, to disregard anything Jekes says in his caution interview statements, against other co-accuseds, because they are inadmissible evidence against the co-accuseds. In other words, anything Jeke says in his caution interview statements against any of the three accuseds, as regards the commission of the robbery at Nabua BP Service Station on 29th March 2009, you must totally disregard.

40.	Jeke said that, Taitusi and Laisenia were not part of the robbery team, on Nabua BP Service Station, on 29th March 2009. As a matter of law, I must warn you to treat Jeke's evidence with caution. As assessors and judges of fact, the issue for you is whether or not, Jeke is a credible witness? For a start, he is a convicted robber in this case. He was convicted as being one of those that robbed Sereana Soko, at the material time. He is therefore a convicted criminal. He knows the three accuseds and their families very well, and the three accuseds and their families know Jeke and his family very well. They all live together in Tamavua-i-wai. In fact, Jeke admitted in cross-examination that, he had lived in Tamavua-i-wai all his life. He also admitted that, when caution interviewed by police on 19th April 2009, he told them the names of accused No. 1, 2 and 3. He admitted, he felt bad about that. He admitted saying one thing to the police, and saying another in court. The question for you, as assessors and judges of fact, is whether or not you will accept the evidence of a convicted criminal? This is a matter for you.

(V)	Considering All the Evidence Together:

41.	You will now have to look at all the evidence together, that is, the three accuseds' alleged confessions, the other exhibits (cane knife, iron shovel, stones, mask and jacket), the alibi evidence and Jeke Koroi's evidence. You have heard the evidence of all the prosecution and defence witnesses. You have watched them give evidence in court. What were their demeanours like? What were they like when examined-in-chief, cross-examined and re-examined? Were they forthright or evasive? Were they argumentative? How were they dressed and how did they conduct themselves in court? Given the above, my direction on the law, your life experiences and common sense, you should be able to decide which witness's evidence or part of a witness's evidence is reliable, and therefore to accept, and which witness's evidence or part of his evidence, is unreliable, and therefore to reject, in your deliberation.

I.	SUMMARY

42.	Remember, it is for the prosecution to prove each of the three accuseds' guilt beyond reasonable doubt. It is not for the accuseds to prove their innocence. The burden of proof lies on the prosecution to prove the accuseds' guilt beyond reasonable doubt, and that burden stays with them throughout the trial. If you accept the prosecution's version of events and you are satisfied beyond reasonable doubt and are sure of their guilt, you must find them guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt and are not sure of their guilt, you must find them not guilty as charged.

43.	Your possible opinions for each accuseds are as follows:

(i)	Count No. 1:	 Robbery with Violence
Accused No. 1	-	Guilty or Not Guilty 
Accused No. 2	-	Guilty or Not Guilty
Accused No. 3	-	Guilty or Not Guilty 

(ii)	Count No. 2: Robbery with Violence
Accused No. 1-	Guilty or Not Guilty 
Accused No. 2-	Guilty or Not Guilty
Accused No. 3-	Guilty or Not Guilty 

44.	You may retire to deliberate. Once you have reached your decisions, you may 	inform the clerk, so that we could reconvene to receive them.

Salesi Temo
Acting Judge

Solicitors for the State : Office of Director of Public Prosecution, Suva.
Solicitors for Accused No. 1: In Person
Solicitors for Accused No. 2: In Person
Solicitors for Accused No. 3: Office of Legal Aid Commission, Suva