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State v Mani [2012] FJHC 1053; HAC098.2010 (30 April 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 098/2010

BETWEEN:

THE STATE

AND:

EPARAMA MANI

COUNSEL: Messrs. L. Fotofili and M.Vosawale
Accused in Person

Date of Hearing: 18-26/04/2012
Date of Summing Up: 30/04/2012

SUMMING UP

Madam and Gentlemen of Assessors,

01. It is now my duty to sum up this case to you. I will direct on matters of Law which you must accept and act upon. On matters of facts however, which witnesses to accept as reliable, which version of the evidence to accept, these are matters for you to decide for yourselves. So if I express my opinion to you about facts of the case or if I appear to do so it is a matter for you whether you accept what I say, or form your own opinions. In other words you are the judges of facts. All matters of facts are for you to decide. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.

02. You have to decide what facts are proved and what inferences drawn from those facts. You then apply law as I explain it to you and form your opinion as to whether the accused is guilty or not guilty.

03. Prosecution and accused, appearing in person, made submissions to you about the facts of this case. That is their duty. But it is a matter for you to decide which version of the facts to accept or reject.

04. You will not be asked to give reasons for your opinions but merely your opinions of yourself and your opinion need not be unanimous but it would be desirable if you agree on them. Your opinions are not binding on me but I can tell you that they carry great weight with me when I deliver my judgement.

05. On the question of proof, I must direct you as a matter of law that the onus of burden of proof lies on the prosecution throughout the trial and never shifts. There is no obligation on the accused person to prove his innocence. Under our criminal justice system accused person is presumed to be innocent until he is proved guilty. This is the golden rule.

06. The standard of proof in a criminal trial is one of proof beyond reasonable doubt. This means 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.

07. Proof can be established only through evidence. Evidence can be from Direct Evidence that is the evidence that who saw the incident or felt the offence being committed. The other kind of evidence is Circumstantial Evidence that you put one or more circumstances together and draw certain irresistible inferences. Probative matter furnished by items that are actually on view, as opposed to a verbal description of them by a witness is called Real Evidence.

08. Your decisions must be solely and exclusively upon the evidence, which you have heard in this court and upon nothing else. You must disregard anything you have heard about this case outside of this court room. In assessing the evidence of witnesses you need to consider certain tests. Examples:

• Consistency: That is whether a witness saying the story on the same lines without variations and contradictions.
  
• Belatedness: That is whether there is delay in making a prompt complain to someone or to an authority or police on the available opportunity about the incident.
  
• Spontaneity: That is whether a witness has behaved in a natural or rational way in the circumstances that he/she is talking about.
  

09. Your duty is to find the facts based on the evidence apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotions.

10. Now let's look at the charge.(Amended)
    
    • EPARAMA MANI with others, on the 27th of April 2010 at Samabula in the Central Division, armed with an offensive weapon namely an axe, stole a Sekonda wrist watch valued at $300.00, one Pentex digital camera valued at $299.00, one orange Billa Bong bag valued at $440.00, a Puma sports bag valued at $25.00, one Speedo Swimwear valued at $220.00, one Nokia Mobile phone valued at $159.00, a ladies hand bag valued at $35.00, men's wallet valued at $15.00 all the total estimated valued of $1295.00 from Raymond John Nicolls.
      
11. In order to prove the offence of aggravated robbery, the prosecution must lead evidence which satisfies you beyond reasonable doubt of several elements. Firstly, that the accused stole property of the complainant. Stealing is the taking of something without the consent of the owner with the intention of permanently depriving the owner of the property.
    
12. The offence of aggravated robbery also has an element of force or violence. It is the stealing of something by an act of force. The force can be either implied from the carrying of weapons, or from the number of people involved in the incident. So when a group of people enter a house for an instance, to take money without the owner's consent with no intention of returning it, then the offence of robbery is committed.
    
13. 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 participated can also be liable. People who help or encourage another person to commit an offence are also guilty of that offence.
    
14. The caution interview statement of the accused person is in evidence. What an accused says in his caution interview is evidence against him. These are my direction of law.
    
15. Now let's look at the evidence led by the prosecution in this case.
    

1. DC/3657 Leone Vurekeni was the officer who arrested the accused on 03/05/2010. According to him he has completed 06 years in the police service. During his service he had done more than 50 arrests. On information accused was arrested at Wainadoi Police Post between 8pm-12am. After his arrest he was informed of the charge in Fijian language and escorted to Samabula Police Station. He was seated in front seat of a white coloured vehicle. No civilian travelled in the vehicle. He was hand cuffed and taken to Samabula Police Station. Accused was calm at the time of the arrest. The witness identified the accused in open court.

In the cross examination witness said that he was the arresting officer and arrested the accused between 8.00pm – 12 am. Accused was taken to Samabula Police Station within 30 minutes of his arrest. He denied that he assaulted the accused and taken to Nabua Police station. Witness further denied that he sprayed capsicum spray on accused's face.

In the re-examination witness emphasized that the suspect was taken to Samabula Police Station immediately after the arrest.

2. DC/Sgt 2195 Samuela gave evidence next. He is attached to Samabula Police Station and has 21 years experience in Fiji police. He was the supervising officer who went to Nabukavesi Village to recover certain items. He accompanied DC/Sukulu and some other police officers. They had gone to Nabukavesi village on 04/05/2010 in the noon. They had gone to one Ms. Mere Taleilakeba's house to recover stolen items from the complainant's house. According to him the information had been given by Ms. Mere Taleilakeba. He has prepared the search warrant and executed. The search list has been prepared by Constable Atish which he had signed. All item mentioned in the search list were recovered. The search list had been marked by as exhibit-No:01. According to him all recovered items were handed over to DC/Sukulu. Apart from the search he has taken the accused to a doctor in Samabula Heath Centre on 06/05/2010. He had prepared the medical request form and given it to a doctor in Samabula Heath Centre. He identified his signature and the document. He identified the accused in open court. The medical request form has been marked as exhibit-No:02.

In the cross examination witness said that he was not present during his interview and only assisted investigations. He said he can't recall who took the accused to Samabula Health Centre. He admitted that he had given his statement on 02/04/2012. He denied that he assaulted the accused at Samabula Police Station and fabricated a case against him.

3. Next complainant Raymond John Nicolls gave evidence. According to him he has been in Lot 16 Deoji Street for about 20 years. He is an Engineer by profession related the ordeal he and his family under went on 27/04/2010. According to him on 27/04/2010 at 10.30pm the motion sensor light had gone off and his wife had noticed an intruder in their house verandah. Then he heard his wife shouting in the bedroom which is situated on the top floor. As nobody in the bedroom he had gone to living room and seen a person standing there. At that time his son had activated the ADT alarm system and light system was activated. Then he had seen a tall person covered with his face standing there. He was wearing ¾ pants. He was brandished an axe and held them for about 3-4 minutes. Thereafter he had run downstairs of the house. At that time he had seen two others as well. Thereafter he had heard glass breaking. When ADT patrol arrived the robbers had left the place. The complainant could not identify anybody. After the incident when he checked the hose found a wrist watch, a wallet, hand bag, camera, some sportswear, a sport bag and swimwear had gone missing. On 05/05/2010 he was summoned to Samabula police station to identify some items which had gone missing from his house. A Speedo swim wear was shown to him in the court he identified the same. It was marked as exhibit 03. The witness told court several items which had gone missing from his house were not shown to him. Those are cash, credit cards, passport, driving licence, hand bag, purse, and a camera. The witness told court that a wrist watch and a wallet had been released to him by the police on 05/05/2010.Prosecution marked the wrist watch and the wallet as exhibits-04 & 05.

In the cross examination witness identified his signature in the statement to police. Further he admitted that he did not mention the name "axe" but said a chopper was in one of the intruders possession. Witness finally said that he can't identify the robbers who came to his house on 27/04/2010.

4. Constable 3761 Jone Veitaqumatai was called next by the prosecution. At present he is serving at Nabua Police Station. In the year 2010 he was serving at Samabula Police Station. According to him he was in the search team which went to accused's house situated in Tamavua i Wai on 04/05/2010 and recovered an axe from there. With him police officers Rakai, Savou, Sukulu and Lione also went.

In the cross examination he said that he gave his statement on 03/04/2012 on the request of Director of Public Prosecution.

5. DC/3476 Sukulu Colati the officer who recorded the caution interview of the accused gave evidence next. According to him he completed 10 years in police service. On 04/05/2010 he has recorded the caution interview of the accused at CID branch interviewing room in Samabula Police Station. It was commenced on 04/05/2010 and concluded on 05/05/2010. Only he and accused were present at that time. Interview was recorded in English language as per the request of the accused. He had explained all rights of the accused. Caution interview was recorded in question and answer form. During the interview accused was calm and voluntarily answered the questions put to him. Accused was taken to the place of incident for reconstruction. In the middle of the interview a watch, a Speedo swim wear and a brown coloured wallet were shown to the accused. Further a measuring tape, a leveller, a car key and a gate control were shown to the accused. After reading the hand written original caution interview statement it was marked as 1A and the typed one marked as 1B. He identified the accused in open court.

In the cross examination he denied that he assaulted the accused in the police. He said that he was not in the police station when accused brought to Samabula Police Station. Witness denied that he assaulted the accused at Nabua Police Station. According to him when he went to Samabula Police Station to record caution interview statement, he was told that accused was in Nabua Police Station. Witness denied that he assaulted and threatened the accused to admit the caution interview statement. He further said that never threatened the accused not to call anybody to witness the recording of his caution interview. He further said that he can't recall whether the wallet recovered is black or brown.

He was not re-examined by the state counsel.

6. D/CPL Clint Kelemedi was the charging officer gave evidence next. According to him he charged the accused on 05/05/2010 at Crime Office, Samabula Police Station. Before the charge he had explained all the rights of the accused. The charge was taken in English language. He identified the accused in open court.

In the cross examination witness denied the accused was assaulted at the time of the charge. Further he said probably accused would have taken to hospital on 06/05/2010.

7. Finally prosecution called Dr. Elvira Ongbit to give evidence. She had given evidence on behalf of Dr. Usha Pawar who had seen the accused at Samabula Health Centre on 06/05/2010. At present she had gone abroad. Accused objected to this witness but his objection overruled. According to witness she is presently attached to Makoi Health Centre. In the year 2010 she was attached to Samabula Health Centre. Dr.Usha Pawar also worked in Samabula Health Centre in 2010. Hence she recognized hand writings and signature of Dr.Usha Pawar. Witness has been in active medical service since 1983 and had seen over 50 assault cases. According to medical report at number 13(b) ii Dr. Usha Pawar had written that no bruises seen on the body. Slight swelling below left eye noted. According to witness slight swelling could be possible due to blunt force. According to the diagnosis, no specific bruising seen on the body of the accused. She further said that this type of injury will take 7-10 days to disappear. The medical report of the accused is marked as Exhibit 02.

She was not cross examined by the accused.

Prosecution then closed their case.

8. Defence was called and explained the rights of the accused. Accused elected to give evidence from witness box and called witnesses.

1. According to accused on the day of the robbery he was at home. On the following day when he was at home at Tamavua i Wai a young person had come there to sell a bag containing some items. As he knew the person very well, he had bought the bag and gave cigarettes. He has no idea what contained in the bag. He further said that he did not know what was inside the bag.
   

In the cross examination accused said that Deoji Street cannot be seen from his sister's place. According to him he was punched, kicked, put in the dark room and sprayed Capsicum spray in to his eyes. He was taken to place of incident and forced him to admit the crime. Though he requested he was not taken to a doctor for x-ray. When he was taken to Korovou prison his x-ray was taken but not produced in court. He denied that he sustained injury on face before his arrest. He admitted that he had not complained to the magistrate about his injury when he was produced before him. He further said that he did not know what were inside the bag when he bought from the person who sold it to him. He said that he only saw the items in the police. According to him the axe, which was marked also inside the bag. That has been taken by his sister's husband to cut firewood.

In the re-examination accused said that he did not complained to magistrate as he did not want to spend in Central Police Station.

2) Next Jone was called to give evidence but his evidence was not allowed as no alibi notice given to the prosecution as per section 125(1) (2) (a)(b) of Criminal Procedure Decree 2009.

3) Next Nemani Radabi gave evidence on behalf of the accused. On 29/04/2010 he had met the accused at a shop and went to his house. While talking there a young man had come there and wanted to see the accused. While they were talking witness heard that the person wanted to sell some items to the accused. He was drunk at that time. He had seen a black coloured bag with some items inside. The person also removed his wrist watch and handed over to the accused.

In the cross examination witness said that accused is his friend and came to court on summons. He denied the he met accused outside the court. He said that he only help a friend for a good cause.

4) Next Emeli Adi elder sister of the accused gave evidence. She corroborated what Nemani Radaki stated above. She had seen Nemani and the accused were talking in her house on 29/04/2010.

In the cross examination she said that she saw a boy selling a bag to the accused on 29/04/2010.

5. Finally Joseva Lase gave evidence. He is the brother of the accused. He too corroborated what Nemani and Emeli state above.
   

In the cross examination he said that he was present at the time when the transaction had taken place.

Analysing of the Evidence

9. As assessors and judges of facts, in this case, prosecution had filed their first statement of information on 11/06/2010 and the amended statement of information on 08/04/2012. Both statements of information were read out in this court before commencement of the trial. In the amended information prosecution had omitted certain items.
   
10. As assessors and judges of facts, you can remember that police officer who arrested the accused gave evidence. He had arrested the accused on information. At the time of arrest nothing recovered from him.
    
11. In this case according to police recovery had done in two places. One in Ms. Mere's house and the other in accused's house. The list of item recovered from Ms. Mere's house is marked as exhibit -01. Ninteen items mentioned in the list. Among that items the marked wrist watch, man's wallet and Speedo swimwear were not included. As assessors and judges of fact, you must carefully consider from where those items came. The prosecution not took any endeavour to show those items marked to Sgt/Samuela who went for the recovery. According to the amended particulars of offence one Pentex camera had been stole during the robbery. In the recovery list a Cannon Digital camera had been recovered. Further prosecution had not called Ms. Mere to give evidence in this court.
    
12. As assessors and judges of facts, you must consider the evidence of Raymond John Nicolls very carefully. He had not identified anybody at the time if the robbery. But he identified the wrist watch, man's wallet and Speedo swimwear in this court. The wrist watch and the wallet were in his possession at time of giving evidence. No evidence placed by the prosecution through police as to when they handed over those items to the witness. In his statement he has not mentioned about an axe. Instead of an axe he had said a "chopper" was in one of the accused's possession. A chopper has wider meaning. Anything used for cutting could be called as chopper.
    
13. Seizing officer (axe) DC/Jone and seizing officer (search list) DC/Samuela both had not given statement after the recovery. They had given statements in April 2012 as per the instruction of Director of Public Prosecution. The delay was not explained in their evidence. Even they had not entered notes in their note books. As assessors and judges of facts apply the tests carefully and consider this evidence.
    
14. As per the search list 19 items had been recovered from one Ms. Mere's house. As per the amended information not a single item included from the list. It is merely recovery of items but not connected to this case. The items included in the amended information are not included in the search list. As assessors and judges of facts you have to consider very carefully as to the relevancy of them to this case.
    
15. The police witnesses called by prosecution stated that accused was not assaulted while he was in their custody. He had not made any complaint regarding police assault while he was in police custody. But accused said that he admitted his caution interview due to fear. The items shown to accused at time of recording his interview were not in the list. Further the axe was not shown to accused while recording his interview. No explanation given as to how the police recovered the items mentioned in the information. No evidence led as to when the police handed over the wrist watch and wallet to the complainant. As per the medical report a blunt injury (old) seen below left eye of the accused. Accused was arrested on 03/05/2010 and was produced before a doctor on 06/05/2010 after recording his interview. The question you will have to ask yourselves now, as assessors and judges of fact, whether accused made the admission voluntarily as claimed by the prosecution.
    
16. Accused takes up the position that he bought a bag containing some items from a known person. To support his position he called witnesses. All of his witnesses had witnessed the transaction. But not a single item recovered from the bag which had been included in the amended information. Accused admits that an axe was in the bag and he gave it to his brother in law to chop firewood. The complainant in his statement to police mentioned a chopper was in the possession of one of the accused at the time of robbery. No description given when he lodged his complaint immediately after the incident. As assessors and judges of facts you must consider these item of evidence very carefully when you assessing this case.
    
17. As assessors and judges of facts as per the information filed by the prosecution the accused is only charged for committing Aggravated Robbery contrary to section 311(1)(b) of the Crimes Decree No:44 of 2009. Nothing else.
    
18. You have heard all the prosecution witnesses. You have observed them giving evidence in the court. You have observed their demeanour in the court. Considering my direction on the law, your life experiences and common sense, you should be able to decide which witness's evidence, or part of his evidence you consider reliable, and therefore to accept, and which witness's evidence, you consider unreliable and therefore to reject. Use the tests mentioned above to assess the evidence of witnesses.
    
19. You must also carefully consider the accused's position as stated above. Please remember, even if you reject the version of the accused that does not mean that the prosecution had established the case against the accused. You must be satisfied that the prosecution has established the case beyond reasonable doubt against the accused.
    
20. You can also consider whether the evidence is consistence and corroborative of each other or whether they fall apart. That is, whether the evidence of witnesses supports each other fully or in material parts or whether they go in opposite directions.
    
21. Remember, it is for the prosecution to prove the accused's guilt beyond reasonable doubt. It is not for the accused to prove his innocence. The burden of proof lies on the prosecution to prove the accused's guilt beyond reasonable doubt, and that burden stays with them throughout the trial.
    
22. Once again, I remind, that your duty is to find the facts based on the evidence, apply the law to those facts and come to a correct finding. Do not get carried away by emotions.
    
23. This is all I have to say to you. You may now retire to deliberate. The clerks will advise me when you have reached your decisions, and we will reconvene the court.
    

P.Kumararatnam
JUDGE

At Suva
30/04/2012