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State v Nate - Summing Up [2011] FJHC 579; HAC094.2011 (19 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 094 OF 2009

BETWEEN:

THE STATE

AND:

1. SEMI NATE
2. MELI VALETIRI
3. SENITIKI ROQARA
   

Counsel: Mr. J. Daurewa for the State
Ms. N. Nawasaitoga for 1st Accused
2nd and 3rd Accused in Person

Date of Summing Up: 19th August 2011

SUMMING UP

1. Madam and Gentlemen Assessors. We have come to the final stage of this trial. You were listening to all witnesses, State Counsel, Counsel for the 1st Accused and the 2 Accused. Now it is my duty to give the summing up to you. In the summing up I will be directing you on matters of law, which you must accept and act upon. Regarding the facts of the case, I do not wish to give an opinion, but if I give so you may accept or reject. You are not bound as in matters of law. In brief you have to accept my direction on law and you can judge independently when it comes to facts of the case. Because you are the judge of facts.
   
2. Both the State Counsel, Counsel for the 1st Accused person and 2nd Accused made their submissions. That is their duty. The prosecutor to submit how he proved the case and Defence Counsel and Accused to say that the case is not proved. You are not bound by their submission. You are the representative of this society in this trial. After assessing all evidence you must decide whether these accused persons are guilty or not guilty to offences they are charged.
   
3. After, all these submissions you will be asked to retire for your verdict. Your verdict should be either guilty or not guilty. You will not be asked to give reasons for your decision. Your opinion can be unanimous or divided. It will be preferable if it is unanimous but the decision has to be your own decision. Your opinions are not binding on me but it will be persuasive. I will give them the greatest weight when I deliver my judgment.
   
4. In criminal cases the standard of proof, I must direct you as a matter of law, that the prosecution bears the burden of proof in the case. The burden remains throughout the trial and it never shifts. There is no obligation upon the accused persons to prove their innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proven guilty. This is a golden rule.
   
5. The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of guilt of the accused person before you express an opinion that he is guilty. If you have any reasonable doubt about the guilt of the accused you must express an opinion that he is not guilty. You may only express an opinion that he is guilty; if you are satisfied of that you are sure that he committed the offence alleged.
   
6. As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding.
   
7. As I informed you in my opening address, your decision must base exclusively upon the evidence which you have heard in the Court, and upon nothing else. You must absolutely disregard anything you might have heard about this case outside of this court room. It is important that you must decide the fact without prejudice or sympathy to either accused or the State. One of your duties is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   
8. As I addressed to you all on the commencement and during the trial that you would have heard from media and others about this case. Whatever you heard are not evidence. What you heard and saw in the Court are the evidence. You are not supposed to consider anything outside of the Court. I request you to consider the admissible evidence before you and to avoid all other matters out of the trial.
   

9. In assessing the evidence, you are at liberty to accept the whole of witnesses
Evidence or accept part of it and reject the other part or reject the whole. In deciding on the credibility of any witness, you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he/she evasive? How did he/she stand up to cross-examination? You are to ask yourselves, was the witness honest and reliable.

10. When this case commenced there were three Accused persons stood for trial. On the half way the Director of Public Prosecution had entered nolle prosequi against the 3rd Accused Senitiki Roqara and he was discharged. This does not mean that these two Accused persons have evidence against them. The learned DPP had decided to drop the charge against the 3rd Accused for the reasons that she is satisfied. But that decision has nothing to do with other two Accused persons who are before you.
11. Presently the trial is against 1st and 2nd Accused persons only.

12. The DPP had preferred following charges against the 1st and 2nd Accused
persons.

"SEMI NATE and MELI VALETIRI are charged with the following offence:

FIRST COUNT

Statement of Offence

ROBBERY: Contrary to section 293(1) (a) of the Penal Code, Cap 17.

Particulars of Offence

SEMI NATE and MELI VALETIRI together with others when armed with an offensive weapon, on the 26th day of August, 2009 at Nabua in the Central Division, robbed FENG LI of FJD $210.00 cash, a Nokia mobile phone worth $199.00 all to a total value of FJD $409.00.

SECOND COUNT

ROBBERY: Contrary to section 293 (1)(a) of the Penal Code, Cap 17.

Particulars of Offence

SEMI NATE and MELI VALETIRI together with others when armed with an offensive weapon, on the 26th day of August, 2009 at Nabua in the Central Division, robbed JACK FONG of FJD $150.00 cash, a Nokia Mobile phone valued at FJD $700.00 with a call credit of FJD $7, and a Nokia mobile phone valued at FJD $100.00.

THIRD COUNT

Statement of Offence

ROBBERY: Contrary to section 293 (1)(a) of the Penal Code, Cap 17.

Particulars of Offence

SEMI NATE and MELI VALETIRI together with others when armed with an offensive weapon, on the 26th day of August, 2009 at Nabua in the Central Division, robbed GUANG DONG CHEN of a Blackberry Mobile phone valued at FJD $1,299, Brown wallet valued at FJD $20.00, FJD $2,700 cash, USD $149 cash, AUD$50 cash, LTA Driving License, ANZ Bank Card, Colonial national Bank Card, FEA Prepay Card and Tappoos Gift Card."

13. Section 293(1) of the Penal Code states as follows:

"Any person who:

(a) being armed with any offensive weapon or instrument, or

being together with one other person or more, robs, or assault with intent to rob, any person; or

(b) robs any person and, at the time of or immediately before or

immediately after such robbery, uses or threatens to use any personal violence to any person, is guilty of a felony ...."

14. As per the above section the major elements of the offence of Robbery with
Violence stands as follows:

(a) Firstly, that the Accused persons stole money. Stealing is taking of something without the consent of the owner with the intention of permanently depriving the owner of the property.

(b) The offence of Robbery also has an element of force or violence. It is the stealing of something by an act of force.

15. In this case the Prosecution and both Accused persons agreed that there were three Robberies as mentioned in the information. But the identity of the assailants were not agreed. In other words the Prosecution should prove that these two Accused persons together with others involved in the said robbery.

16. The prosecution relies on the principle of joint enterprise to prove the charges
against the accused. In law, it is not only the person who actually does the acts constituting the offence, who can be guilty of that offence. Other people present and participating can also be liable. People who help or encourage another person to commit an offence are also guilty of that offence.
17. If several people decide to commit an offence together, and all of them participate and assist each other in doing it each of them is guilty of the crime that is committed. This is so, even though individually, some of them may not actually do the acts that constitute the offence.

18. I may give you an example. Five persons plan to rob a bank. One gives the idea and the plan of operation and stays at home. Other four proceeds to the bank. One drive the vehicle and wait near the gate of the bank, 3rd one wait near the gate on the look out, two enters the bank with a weapon and keeps the Manager at gun point and the other person takes the money from the vault. When they run out the one wait near the gate signals the vehicle, when the vehicle comes all escape from the scene of crime. In this example you would have noticed it is only one person who took the money from the vault but under the joint enterprise principle all 5 people can be held responsible.

19. Prosecution called two lay witnesses and 5 police witnesses.

20. The lay witness was Tokasa Mateiwai. You heard and saw the way she gave evidence. She said she was at the place of incident namely Auto City Place, Raiwaqa. It was at about 1.30 to 2pm. She was seated outside of the office and had seen a maroon coloured taxi was going passing them two times. On the 3rd occasion the taxi was stopped near to the place where she was seated. She said the distance is from the assessors table to the place where the witness gives evidence. It is 4 meters and 88 cm.

She had clearly seen the assailants, she said 3 boys had came out of the car. One had a cane knife other two had rum and beer bottles with them. When they came out of the car the doors of the car were wide open and the witness had seen the driver of the vehicle very clearly. When she was cross examined by the 2nd Accused he asked "how do you recognize me" for that this witness answered "you were looking at me long, I also looked at you, I can identify you as the driver of the maroon taxi",

One of the assailants had told her that if she shouts, he will break the beer bottle on her. Others went and threatened the Chinese men and robbed them.

She had identified the 2nd Accused through a photograph. You may recall there is a difference in the statement to the police and evidence in the Court. In the police statement it is stated that she was given 3 black and white photos and 2 coloured photos but in Court she said she was given a sheet of paper which consists of 9 photographs and she identified the 7th person which is the 2nd Accused. She identified the photo sheet which was shown to her by the Police in Court.

When she was giving evidence she identified the 2nd Accused in the open Court. You should consider whether she is telling the truth or she giving evidence on an agenda.

I invite you to recall the demeanour of the witness, was she telling the truth or not. The important question here is whether this witness Tokasa positively identified the 2nd Accused or not.

21. State submits that the 1st Accused Semi Nate had admitted involving in the robbery in his statement which was recorded at the cautioned interview. Now the 1st Accused says he was not involved in the offence and he was with his wife and cousin at hospital and Suva town at the relevant time.

22. Similarly the State submits that the 2nd Accused Meli Valetiri was also admitted committing the offence in his statement recorded at the caution interview. The 2nd Accused says he was not involved in the offence and he was at his house looking after his sick daughter.

23. Prosecution submits that both statement made at the cautioned interview was made voluntarily. But the 1st and 2nd Accused says that the police obtained the statement after assault, threat and intimidation.

24. Prosecution called one lay witness and marked the statements of all three victims. You can accept the statements of these 3 complainants because it was agreed between parties.

25. Mr. Fong Li made a statement to the police, on 26/08/2009 on the day of the incident. He said he is operating a business at Unit 6, Auto City Place, Raiwaqa. On the 26th of August 2009 he was with four of his Chinese friends playing billiards, at about 2pm four Fijian boys came with cane knife and robbed them. He lost $110 cash, Nokia flip phone. He had seen 4 phones from his friends were also robbed. Further the assailants had taken wallets from his friends. Invaders had taken a bag containing coins for the value of $100. He said that no one was hurt. They fled in a taxi bearing registration no. LT2453 after the robbery.

26. Jack Fong was the other victim, he also made a statement to the police. He almost relates the same description and said that he was also subject to a robbery. The assailants had taken two Nokia Mobile phones, one is worth $700 and another worth $100 and $150 cash. He said the assailants were armed with knife and beer bottles. After the incident all of them fled in a maroon coloured taxi bearing registration no. LT 2453.

27. Guang Chen was the 3rd victim who made the statement to the police on 26/08/2009. He also corroborates the above two persons. He says there were 4 assailants came and they were armed with knife and beer bottles. The assailants had taken his blackberry mobile worth of $1299, cash FJ$2700, US$149, AUS$50, LTA driving licence, ATM cards and other electronic cards and a wallet. He also submits that the assailants after robbery fled in a maroon coloured taxi bearing registration no. LT 2453.
28. These are the virtual complainants but none of them had identified any of the assailants.

29. The only person who claims that she had identified one of the members of the gang was Tokasa Mateiwai. She said she had seen 2nd Accused was the driver of the vehicle which brought and took the assailants. Her evidence was analysed earlier. You may consider whether it is acceptable or not.

30. All other witnesses called by the Prosecution were police witnesses. You are aware that the police witnesses are trained officers and they have experience in giving evidence in Court. I am not saying this that they may give evidence favourable to Prosecution. You also should be mindful that all of them are in the Government service and they gave evidence under oaths.

31. IP Niraj Roy was the 1st witness who gave evidence. You remember he gave evidence from Fiji Tourism Office at Auckland, New Zealand via video connection. He said he was the Investigating Officer in the case and who conducted the investigation. He had recorded statement of witness and Accused persons. He submitted that he didn't assault, threat or intimidate the 1st Accused Semi Nate and 2nd Accused Meli Valetiri. He told Court that both Accused persons made their statement voluntarily at the cautioned interview and admitted committing the alleged offence. 1st Accused and 2nd Accused suggested that they didn't make the statement voluntarily. You have to decide whether the statements were truthful or not.

32. The next witness called was Navin Chaundhy. He said he doesn't know anything about this case. The Prosecution made him as an adverse witness. He had made a statement to the police but in Court he said something different to his statement to the police. It is up to you to decide whether to accept or reject.

33. The 3rd witness called by the Prosecution was Detective Constable Ilisoni Tadau. He was attached to the Strike Back team of Nabua Police Station. He was a member of the investigation team. He had shown 9 photos to the witness to identify the assailants. He said that the witness had identified the photo of 2nd accused Meli Valetiri among those 9 photos.

34. DC Ilisoni had arrested the 2nd Accused Meli Valetiri from Nasinu Police Station and brought to Nabua Police Station. He delivered the 2nd Accused to the processing team.

35. Ilisoni also took part in the arrest of 1st Accused Semi Nate, who was arrested at Navuca Settlement in Tailevu. The team was headed by IP Amani. This witness was seated next to the 1st Accused on the way return. He says that the 1st Accused was never subject to any assault, threat or intimidation. The 1st Accused was handed over to the Nabua Police Station. Thereafter he was not involved in this case. The Accused person suggested that the witness is lying because he and his team assaulted him. It is up to you to believe or reject his evidence.

36. The 4th witness was IP Amani Boseniwai from the Crime Proactive Unit based at Nabua Police Station. He said he led the team which arrested 1st Accused Semi Nate at Navuca Settlement on 01/09/2009 at about 7am. He had travelled in a double cab which was driven by D/C Joape, other members of the team were D/C Viliame and D/C Ilisoni. He had arrested the 1st Accused and handed over to IP Epeli of Nabua Station. He said he or members of the team did not assault, threaten or intimidate the 1st Accused at any time. Counsel for the 1st Accused suggested that he assaulted, threatened and intimidated 1st Accused on the way to Nabua and at the Nabua Station which he completely denied.

37. DC Semi was the next witness called by the Prosecution. He said he was attached to the Crime branch of Nabua Police Station. He has taken the 1st Accused Semi Nate out of the station on 02/09/2009 for reconstruction of the scene. He was a member of the team which was led by DC Niraj Roy and assisted by DC Nima. He says 1st Accused fully co-operated with them in the reconstruction of the scene. He further said the 1st Accused was not subjected to any ill treatment during the visit.

38. The defence submits that according to Prosecution witnesses the Accused person was taken out at 1000 hours but the station diary say that they were taken out at 1105 hours. The explanation given by the witnesses were that the station diary is maintained by the station orderly. He makes entry of all movements of in and out of the police station. When the 1st Accused was taken out, the station orderly was informed but he had entered it at 1105. Witness says that this is normal and just a procedural error but the defence says it is a severe discrepancy. Does this goes to the route of the prosecution case is a factual matter for the assessors to decide.

39. Detective Constable Nima Rasewai was the 7th witness called by the Prosecution. He was attached to the Crime Branch of the Nabua Police Station. He corroborates the above witness. When the Defence suggested the 1st Accused and 2nd Accused were assaulted, intimidated and threatened this witness denied and submitted that the Accused persons were fully co-operated with the police.

40. Further DC Nima had formerly charged the 2nd Accused. It should be noted after the Investigating Officer DS Niraj Roy resigned the Police Service this witness was appointed as the Investigating Officer. He had collected the station diary and the cell book.

41. Police Officers who gave evidence submitted that the 1st and 2nd Accused persons had cooperated with them and admitted committing the offence. 1st Accused and 2nd Accused submitted to Court that they were not involved and the Police obtained a confession after using assault, threat and intimidation. Further both Accused persons said they were not present at the place of the incident and they were elsewhere at the relevant time.

42. You heard the evidence of the witness and saw them in open Court. Further regarding the identity I have addressed you all enough I think that is sufficient.

43. When the State Counsel closed the case for the Prosecution both Accused persons were called to submit their defence. Both Accused persons opted to give evidence. The 1st Accused called his wife and his cousin to give evidence on his behalf.

44. As I addressed to you earlier the burden of proving the case is rests with the Prosecution. Further they have to prove beyond reasonable doubt. The Accused persons need not prove their innocence. In other words they can remain silent. That is their right but in this case both opted to give evidence.

45. The 1st Accused Semi Nate gave evidence under oath. He said on the 26/08/2009 he went to hospital with his wife and cousin to visit the wife of the cousin. He gave a detailed account of events as to what happened on that day. He said that he was not at Auto City, Raiwaqa. He doesn't know about the incident. Further the police obtained a confession after assaulting, threatening and intimidating him. He said he had visible injuries and he told that to the Magistrate. But the Prosecutor submits that the 1st Accused did not complain to the Magistrate if so the Magistrate is duty bound to record it. It is noted from the Magistrate's Court record, it is the Prosecutor who requested for a medical examination and treatment. But there is no proper medical report in the record or before this Court. 1st Accused claims that he was seriously injured including swollen injury on the bridge of the nose. Did the Magistrate miss the injury. If he had noticed he would have made an entry on the record. It is a factual matter for you to decide.

46. Niumaia Sorocala cousin of the 1st Accused gave evidence on behalf of the 1st Accused. He corroborated with the 1st Accused to the fact that on the 26/08/2009 the 1st Accused was with him throughout the day. The Prosecution suggested that he is not telling the truth and he is a witness giving evidence on agenda.

47. Sarafina Kaiyaca the wife of the 1st Accused gave evidence. She also corroborated with the 1st Accused and his cousin. She said that the 1st Accused was with her at the relevant time. Prosecution suggested that she is lying. Further she admitted that she will do anything to protect her husband. It is up to you to decide whether she is telling the truth or she is giving evidence to protect her husband.

48. The 2nd Accused Meli Valetiri gave evidence on his behalf. He said on the 26/08/2009 he was at home baby sitting his daughter who was sick. He said he didn't move out of the house on that day. Prosecution suggested that he was involved in the said robbery. Further State Counsel suggested that he was positively identified by independent witness as the driver of the vehicle in question.

49. Both Accused persons say that they were elsewhere at the time of the incident. They were not involved in the crime. It is the police who had implicated them in the crime. Presuming the police implicated the Accused persons what is the motive or reason, which is not elicited or suggested in the trial. Please consider the evidence before you, thereafter you have to decide whether the police falsely implicated these Accused persons or there are evidence that these Accused persons committed the offence.

50. As you are aware there are two accused persons in this trial, you have to consider evidence against each of the accused persons separately, and decide whether they had committed the offences as charged. Because, one accused is found guilty the other accused need not be found guilty. If there is evidence for the charge against these accused persons you may find them guilty, if not they should be found not guilty

51. I humbly request you to consider not only my summary but all evidence before the Court and come to your own conclusion. If you are satisfied beyond reasonable doubt of these accused persons guilt and you are sure of it. You must find these accused persons guilty as charged. If you are not satisfied beyond reasonable doubt of these accused persons guilt and you are not sure of it. You must find these accused not guilty as charged.

52. As I explained to you in my opening address and at the beginning of the summing up you have to take your own decision after considering the evidence before the court. You will not be asked for the reasons for your decision. Your possible verdict will be guilty or not guilty.

53. Let me ask both State Counsel and the 1st Accused Counsel and 2nd Accused whether they have anything to be addressed to you?

State Counsel: No issues.

Ms. Nawasaitoga: The wife of the 1st Accused did not answer to the suggestion

that she will do anything to protect her husband. That may be addressed to the Assessors.

Court to Assessors:

I correct myself. When the Prosecutor suggested that she

will do anything to protect her husband she remained silent and she didn't answer. I request you to not to draw adverse inference against her or the 1st Accused.

2nd Accused:No.

54. Now let me ask the Assessors need any clarification.

Assessors inform the Court they are happy with the summing up.

55. You may retire to deliberate. I may request you to take all the documents marked before the Court and your notes. You should consider all documents and evidence and come to your own conclusion. Once you have reached your decision, please advice the Court Clerk so that we can reconvene the Court to receive them.

S Thurairaja
Judge

At Suva
Solicitors

Office of the Director of Public Prosecution for State
Office of the Legal Aid Commission for the 1st Accused
2nd Accused In Person