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State v Vananalagi [2011] FJHC 513; HAC091.2010S (19 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 091 OF 2010S

STATE

vs

1. SEREVI VANANALAGI
2. ROPATE NAISUA
3. SAMUELA RAKOPETA

Counsels : Ms. T. Leweni for the State
Accused No. 1 - In Person
Accused No. 2 - In Person
Accused No. 3 - In Person
Hearings : 2nd to 15th August, 2011
Summing Up : 17th August, 2011
Judgment : 19th August, 2011

JUDGMENT

1. Following a trial lasting approximately 9 days, the three assessors have returned with unanimous verdicts of not guilty as charged, for all three accuseds, on all the charges each of them faced in the information. Serevi was charged with counts No. 1 to 5, while Ropate was charged with counts No. 1 to 4, and Samuela was charged with counts No. 3 and 4.

2. Count No. 1 involved the violent robbery on Stephen John Paul, at his Waimanu Road house, on 6th January 2010, where $5,960 worth of his properties were stolen, contrary to section 293(1)(b) of the Penal Code, Chapter 17. Count No. 2 involved the unlawful use of Stephen John Paul's blue Subaru car registration No. DP 748, as a get away vehicle, after he was robbed on 6th January 2010, contrary to section 292 of the Penal Code. Counts No. 3 and 4 involved the violent robberies on Niranjan Service Station Walu Bay and Vivrass Plaza Total Service Station, on 7th January 2010, where properties valued at $1,033.40 were stolen, contrary to section 293(1)(b) of the Penal Code. Count No. 5 involved resisting arrest, contrary to section 247(b) of the Penal Code.

3. Obviously, the three assessors did not accept the prosecution's version of events, on all counts, and thus found all accuseds not guilty as charged on all counts.

4. The authority at this stage of the proceeding is sections 237(1), (2) and (4) of the Criminal Procedure Decree 2009, which reads as follows:

"...237.—(1) When the case for the prosecution and the defence is closed, the judge shall sum up and shall then require each of the assessors to state their opinion orally, and shall record each opinion.

(2) The judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors.

(4) When the judge does not agree with the majority opinion of the assessors, the judge shall give reasons for differing with the majority opinion, which shall be—

(a) written down; and

(b) pronounced in open court".

5. Similar provisions in previous "Criminal Procedure Codes" for Fiji, have being canvassed before, by the superior courts. For example, in Ram Dulare, Chandar Bhan and Permal Naidu v Reginam [1956 – 57] Fiji Law Report, Vol. 5, page 1, the Court of Appeal said the following:

"...It is clear that the legislature has given a trial Judge the widest powers to accept or reject the opinions of assessors sitting with him. These powers are discretionary. From the terms of the judgment, the learned trial Judge made it quite clear why he came to his decision in this case and why it was that he was unable to accept the opinion of the assessors.

In our opinion learned counsel for the appellants is confusing the functions of the assessors with those of a Jury in a trial. In the case of the King v. Joseph 1948, Appeal Cases 215 the Privy Council pointed out that the assessors have no power to try or to convict and their duty is to offer opinions which might help the trial Judge. The responsibility of arriving at a decision and of giving judgment in a trial by the Supreme Court sitting with assessors is that of the trial Judge and the trial Judge alone and in the terms of the Criminal Procedure Code, section 308, he is not bound to follow the opinion of the assessors..."

6. The above view was again re-asserted by the Fiji Court of Appeal in Sakiusa Rokonabete v The State, Criminal Appeal No. AAU 0048 of 2005, when it said:

"...In Fiji, the assessors are not the sole judges of fact. The judge is the sole judge of fact in respect of guilt and the assessors are there only to offer their opinions based on their views of the facts..."

7. Given the above authorities, the three assessors' findings in this case are merely "their opinions based on their views of the facts" of the case. They have no power to try and convict the accuseds. Their duty was to offer their opinions which might assist the trial judge. The trial judge has the power to accept or reject their opinions. The trial judge is the sole judge of the facts, and it is his responsibility to decide the guilt or otherwise of the accused, based on the evidence.

8. I have reviewed the evidence called in this trial, and I have directed myself in accordance with the summing up I gave the assessors on 17th August, 20011. The assessors have given their opinions on the same date. Their opinions were that the three accuseds were not guilty as charged on all counts. Given the authorities mentioned in paragraphs 4 to 6 hereof, as the trial judge, I reject the unanimous opinions of the three assessors. My reasons are as follows.
9. The only credible evidence linking the three accuseds to the charges, were their caution interview statements, and in the case of Samuela, his charge statements also. I have described in paragraph 25 to 36 in my summing up what the three accuseds allegedly confessed to, in relation to the charges against them. I repeat what I said in paragraph 37 of my summing up.

10. I acknowledge the differing positions of the prosecution and the three accuseds on the issue of the voluntariness of their caution interview statements, and in Samuela's case, his charge statements also. I acknowledge that as far as the prosecution were concerned, their arresting officers, caution interview officers, charging officers, and escorting officers said, they did not assault, threaten or made promises to any of the accuseds, while they were in their custody.

11. I also acknowledge the three accuseds' positions that they were assaulted and threatened while in police custody, and as a result, they involuntarily gave their caution interview and charge statements. The differences between the prosecution's position and that of the three accuseds', will have to be assessed by examining the credibility of each parties' witnesses. At this stage, I repeat what I said in paragraph 52 of my summing up.

12. As for Serevi, it is a contest between him and his arresting, caution interview and charging police officers, including the doctor. SC 906 Joeli Rokorasei (PW4) and Corporal 2243 Samisoni Madigi (PW5), both of Korovou Police Station, arrested Serevi after a police car chase from Korovou Town to Waitoa Settlement. Both police officers said, they saw Serevi in Stephen John Paul's car DP 748, and arrested him at Waitoa, Tailevu. They said, they brought him to Korovou Police Station on 7th January 2010, where he was locked in the cell.

13. Later on the same day (ie. 7th January, 2010), Serevi was caution interviewed by DC 3476 Sukulu Colati (PW12), at the crime office, Samabula Police Station, from 7.45pm to 9.05pm. The alleged offendings were still fresh in Serevi's mind, and he had no time to re-think his defences, as he was allegedly involved in two service station robberies and resisting arrest matters early in the day. On 8th January, 2010, Serevi's caution interview continued from 11.50am to 6.55pm. Thereafter, he was finally charged by DC 3198 Atish Lal (PW14). On 11th January, 2010, Serevi was medically examined by Doctor James Danford (PW16). He submitted Serevi's medical report as Prosecution Exhibit No. 7.

14. All the police officers who dealt with Serevi from arrest to being medically examined said, they did not assault, threaten or made promises to Serevi while he was in their custody. On the other hand, Serevi said exactly the opposite. He said, he was repeatedly assaulted and threatened while in police custody. I have looked at Serevi's medical report to confirm or otherwise, the parties' version of events. Doctor Danford only found "tenderness around Serevi's scalp and on both soles". According to Doctor Danford, these are only symptoms, not injuries. They are only determined on the subjective view of the patient, when pressure is applied on the alleged affected areas. Doctor Danford said, it was possible for the patient to fake the same.

15. Given Doctor Danford's finding, I accept the police officers' evidence as credible, and I accept the same. I find them forthright and not evasive. I find Serevi's evidence not credible, and I therefore reject the same. In my view, Serevi was not telling the truth. He was not forthright and was certainly very evasive. Serevi would have being dead if his version of events of police assaults were accepted. I therefore find as matter of fact that Serevi Vananalagi confessed voluntarily to the crimes contained in counts No. 1, 2, 3, 4 and 5, and I find him guilty as charged on those counts. I convict him accordingly on those counts.

16. As for Ropate, it is also a contest between him and his arresting, caution interview and charging police officers, including the doctor. Ropate was arrested by Waitoa villagers, hiding in the bush at 1am, early morning on 8th January 2010. He was escorted to Korovou Police Station by DC 3657 Leone Vurukawa (PW9). From 5.30pm to 7.32pm, the same day, he was caution interviewed by DC 2991 Kelemeti Clint (PW11), at the crime office, at Samabula Police Station. Matters were still fresh in Ropate's head, and he had no time to re-think his defences. On 9th January, 2010, Ropate's caution interview continued from 9.35am to 1.20pm. He was formally charged by DC 3649 Nitesh Chand (PW15), between 1.40pm and 2.15pm, on the same day. All the police officers who dealt with Ropate from arrest to when formally charged said, they never assaulted, threatened or made promises to him, while he was in their custody.

17. Ropate, in his evidence, told the court that police punched him in the mouth and beat him on the soles of his feet. They also sprayed his eyes. He was medically examined by Doctor Danford on 11th January, 2010. Doctor submitted his medical report as Prosecution Exhibit No. 8. In D(10) of the report, he told the doctor about his above complains, but didn't mention his eyes being sprayed. The doctor listed his injuries in D(12) of the report, that is, "infected laceration with bruise (1cm long) on right inner lower lip. Tender both soles". When cross-examined by the prosecution, Ropate admitted he told the court in his challenge to his confession that he was sprayed in the eyes, anus and scrotums. He also told the court he was punched in the chest, ribs and head. He also told the court that he fell down and the police stomped on him. He admitted he didn't tell the doctor the above. He admitted he didn't complain to the Magistrate Court or High Court of any police assault on his first appearance. He said, he never complained to his mother of any police assault, when she visited him at Samabula Police Station.

18. Ropate said, he was at home, with his de facto-wife on 6th January 2010, and therefore could not be liable for counts No. 1 and 2. He called his de facto-wife, as a witness, to confirm the above. I found his wife not to be a convincing witness. When cross-examined by the prosecution, she often paused, and then had difficulty in giving her answers. In my view, she was not a credible witness. Also, after being cross-examined by prosecution, I find Ropate not be a credible witness. In my view, he was an evasive and not a forthright witness. It is possible his injuries arose from his escaping into the bush at Waitoa, Tailevu. Consequently, I hold the police witnesses as credible witnesses, because they were forthright and not evasive. As for Ropate, he was the exact opposite. I find him not to be a credible witness and I reject his evidence. I find as a matter of fact that Ropate voluntarily confessed to counts No. 1 to 4, when he was caution interviewed by police. I therefore find him guilty as charged on counts No. 1, 2, 3 and 4. I convict him accordingly on those counts.

19. Like Serevi and Ropate, for Samuela, it is also a contest between him and his arresting, caution interview and charging police officers, including the doctor. On 7th January, 2010, Samuela was captured by Waitoa villagers in Tailevu, when he fled from Stephen John Paul's car DP 748. The villagers handed him to SC 906 Joeli Rokorasei (PW4) and Corporal 2243 Samisoni Madigi (PW5). They later handed Samuela to PC 2749 Taniela (PW7), who handed him to Corporal Alipate Rayasi (PW8), who escorted him to Korovou Police Station. On 8th January, 2010, between 10.10am and 4.40pm, Samuela was caution interviewed by DC 3761 Jone Veitaqomaki (PW13), at the crime office, at Samabula Police Station. Like Serevi and Ropate, matters were still fresh in his mind, and he had no time to re-think his defences. On 9th January, 2010, Samuela was formally charged by DC 3649 Nitesh Chand (PW15), at Samabula Police Station. On 11th January, 2010, at 8.30am, he was medically examined by Doctor James Danford at Samabula Health Centre. He produced his medical report as Prosecution Exhibit No. 9.

20. All the police officers who dealt with Samuela said, they did not assault, threaten or made promises to him while he was in their custody. In his evidence, Samuela said he was punched in the head and near his ears at Samabula Police Station, to confess to the offences. He said, the police sprayed his eyes. He said, they beat the soles of his feet. However, he didn't mention the police officer's name or number. He said, he was kicked in the chest and fell on the floor. In reporting to the doctor, Samuela did not tell the doctor his eyes were sprayed or he was kicked in the chest and he fell on the floor. When he was cross-examined by the prosecutor, he gave mixed messages. At one point, he said he was not assaulted at Korovou Police Station. When shown a letter he wrote to the court, he changed his statement that he was assaulted at Korovou Police Station. He admitted he didn't complain to the Magistrate Court or the High Court of any police assault. He called a witness, who didn't advance his case at all.

21. I found the prosecution witnesses were credible because they were not evasive and were forthright. It was the opposite for Samuela. He was not forthright and evasive most of the time. I accept the evidence of the prosecution's witness as credible. It was otherwise for Samuela and I reject his evidence. As a matter of fact, I find that Samuela voluntarily confessed to counts No. 3 and 4 when he was caution interviewed and formally charged by police. I find him guilty as charged for counts No. 3 and 4, and I convict him accordingly.

Salesi Temo
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: In Person