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State v Nand - Summing Up [2012] FJHC 1083; HAC039.10 (14 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 039 OF 2010S

STATE

vs

SATYA NAND
f/n Ram Sukh

Counsels : Ms. J. Cokanasiga for State
Mr. R. Chaudhry for Accused
Hearings : 8th to 11th May, 2012
Summing Up : 14th May, 2012

SUMMING UP

1. 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 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 and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels 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.
   

2. 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 accused or the victim. 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.
   

100. THE INFORMATION
     

7. You have a copy of the information with you, and I will now read the same to you:
   

"... [read from the information]...."

4. THE MAIN ISSUE
   

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

(i) Did Satya Nand, on 25th November 2009, at Nasinu in the Central Division, willfully and unlawfully set fire to his dwelling house, valued at $143,000?

5. THE OFFENCE AND ITS ELEMENTS
   

9. For the accused to be found guilty of "arson", the prosecution must prove beyond reasonable doubt, the following elements:
   
   • (i) the accused
   • (ii) willfully and unlawfully
   • (iii) sets fire to
   • (iv) any building (whether completed or not).
     
10. It must be shown that the accused willfully set fire to the building. In other words, it must be shown by the prosecution, beyond reasonable doubt that, the accused intended to set fire to the building ie. he deliberately set fire to the building. His intention could be inferred from his actions, words, conduct and the surrounding circumstances. In addition to the above, it must be proven by the prosecution, beyond reasonable doubt that, the accused had no legal justification or excuse, to setting fire to the building.
    

6. THE PROSECUTION'S CASE
   

11. The prosecution's case were as follows. The accused owned a dwelling house at Lot 4, Mataika Road, Davuilevu Housing, 9 Miles. He had the house insured with Tower Insurance from 2006. On the 25th November, 2009, the accused had his house insured against fire to a maximum of $143,000. The accused was a businessman, and owned and operated a supermarket at Vatuwaqa. He resided at Lot 2 Daya Street, Vatuwaqa, and rented out his property at Lot 4, Mataika Road, Davuilevu Housing.
    
12. According to the prosecution, the accused and another were seen at his Lot 4 Mataika Road property on 25th November, 2009, between 11am and 1pm. They were seen arriving in a white taxi, stayed around the property for a while, and then departed. According to the prosecution, 5 or 10 minutes after the accused and his friend left his property, the house was on fire. According to the prosecution, the accused set fire to his own house, to obtain Tower Insurance money. Five day after the fire, that is, on 30th November 2009, at 10am, the accused went to Tower Insurance, and lodged his insurance claim for the fire to his house.
    
13. According to the prosecution, the accused set fire to his own house, to claim insurance payments, and asks you, as assessors and judges of fact, to find him guilty, as charged. That was the case for the prosecution.
    

7. THE ACCUSED'S CASE
   

14. When the information was read to the accused on 8th May, 2012, the first day of the trial, the accused pleaded not guilty to the charge. In other words, he denied the allegation against him. At the close of the prosecution's case on 10th May 2012, and after he was called upon to make his defence, the accused choose to remain silent, and called no witness. He only choose to address the court, through his closing submission.
    
15. As a matter of law, I must direct you that, nothing negative whatsoever should be imputed to the accused for choosing to remain silent, and call no witness. That was his right. The burden to prove the accused's guilt beyond reasonable doubt remained with the prosecution, throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence. He is totally within his right, to remain silent and call no witness, as he did here, and to challenge the prosecution to prove his guilt beyond reasonable doubt. The burden of proof remained with the State.
    
16. Although the accused choose to remain silent and called no witness, you can actually discover his position on the charge, if you carefully read his police caution interview statement, dated 25th November 2009, tendered as Prosecution Exhibit No. 3. When caution interviewed by the police, he denied the allegation against him, and said, at the time of the fire, he was at his shop (1 pm) and was having his car repaired (1.30 pm). He asks you, as assessors and judges of fact, to find him not guilty as charged, and acquit him accordingly. That was the case for the defence.
    

8. ANALYSIS OF THE EVIDENCE
   

(i) The Undisputed Fact: The Accused's House caught fire:

17. After listening to the prosecution's witnesses' evidence, their cross – examination by the defence, and the parties' closing submissions, it would appear that the parties do not dispute the fact that, the accused's dwelling house, at Lot 4 Mataika Road, Davuilevu Housing, was burnt down on 25th November, 2009, after 1 pm. It was also not disputed that the house, was substantially damaged, as a result of the fire. It was also not disputed that the accused's house was insured with Tower Insurance, for damages caused by fire, since 2006. It was also not disputed that, at the time of the fire, the house was insured for $143,000. It was also not disputed that, in the event of an insurance payout, the Colonial National Bank, as first mortgagee, and Fiji Development Bank, as second mortgagee, would be entitled to the insurance payment first before the accused.
    

(ii) The Case Against the Accused:

18. The first point to make in this case was that, no-one saw the accused setting fire to his house, ie. there was no direct evidence linking the accused to the fire at his house. In other words, no prosecution witness ever said, he or she saw the accused setting fire to his house. The closest that came near this type of direct evidence was that of Jeremaia Kacivi [PW1]. He merely said, in his evidence that, "...Later, he (accused) opened the door, ie. front door, and threw something inside the house. He closed the door, and they left. I only saw that..." The witness did not say, he saw the accused threw something on fire into the house. The lack of direct evidence linking the accused to the fire at his house, was obviously a difficulty for the prosecution.
    
19. How did the prosecution overcome the above difficulty? First, the prosecution relied on some identification witnesses to place the accused at the crime scene, before the house was seen to be on fire. On this issue, the prosecution relied on the evidence of Jeremaia Kacivi (PW1); Sunita Prasad (PW2); Fariyaz Khan (PW3); Bimla Wati (PW4) and Nacanieli Nabuto (PW6). It must be noted that, if all these identification witnesses' evidence are not accepted by you, as assessors and judges of fact, the case for the prosecution will be very much weakened. This is because, the prosecution relies on your acceptance of the above identification evidence, before it can build the second support for its case, based on circumstantial evidence. The identification evidence of the above witnesses, will place the accused at the crime scene, at the material time, before his house caught fire, thus suggesting strong circumstantial evidence, together with his application for an insurance payout 5 days after, that he started the fire. However, this is a matter for you, after considering all the evidence.
    
20. In dealing with PW1, PW2, PW3, PW4 and PW6's identification evidence, as a matter of law, I direct you as follows. First, whenever the case against the accused depends wholly or substantially on the correctness of one or more identification of the accused, which the defence alleged to be mistaken, I must warn you of the special need for caution before convicting the accused in reliance on the correctness of the identifications, because an honest and convincing witness or witnesses could be mistaken. Second, you must closely examine the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was there any impediment in the way? Has the witness seen the accused before? How often? If only occasionally, are there any special reason for remembering his accused's face? Was a police identification parade held? Third, are there any specific weaknesses in the identification evidence? The answers to the above questions will determine the quality of the identification evidence. If the quality is good, the identification evidence can be accepted. If it is not, it should be rejected.
    
21. Jeremaia Kacivi (PW1), was 11 years old, at the time. He was staying at Mataika Street. He said, he saw the accused come to his property in a white taxi. He said, he observed him for about 5 seconds. He said, the distance was like from the witness box to the main door of High Court No. 1. He said, it was about 1 pm, in day light. He said, a small lemon tree impeded his vision. He said, he knew the accused as the owner of the property, and he's seen him before on 5 occasions. A special reason for remembering the accused's face, was he used to stay at the house before, and that he lived in the same street. No police identification parade was held in this case. He said, he saw the accused throw something into the house, and left.
    
22. Sunita Prasad (PW2) resided at Lot 6 Mataika Road, Davuilevu, at the time. She was 34 years old at the time. She said, she saw the accused's house burn on 25th November 2009. She said, the accused's house was approximately 20 meters away. She said, she saw the accused and another standing near a taxi parked in his garage. She said, she observed them for 5 minutes. Their distance away was like from the witness box to the Criminal Registry in High Court No. 1. She said, there was no impediment in the way. She said, it was after lunch and a sunny day. She said, the accused was her neighbor for last 5 years, prior to the fire. She said, she often sees him once a week. This may be a special reason for remembering his face. She said, 10 minutes after seeing the accused, she saw his house on fire. She did not attend a police identification parade.
    
23. Fariyaz Khan (PW3) resided in Mataika Road, at the time. He was at home from 12 pm onward. He said, he saw the accused and another come into his property, in a taxi. He said, his distance from the accused was like from the witness box to the front door of the courtroom. He said, he saw him for 10 seconds. It was daylight. He said, there was no impediment in the way. He said, he knows the accused as the owner of the property, and he often comes there. This may be a special reason for remembering his face. He said, a while later, he saw the accused's house on fire. It would appear he did not attend a police identification parade.
    
24. Bimla Wati (PW4) said, she recalled a fire at Mataika Street. She said, she resided at Lot 23 Mataika Street. She said, at about 11 am, she saw the accused and another come in a white taxi into his compound. She said, the distance was like from the witness box to the main entrance to the Court House. She said, they were working in the taxi. She said, she observed them for 5 minutes. She said, she knew the accused for 20 years. She said, when they left, his house was on fire. It would appear that no police identification parade was done.
    
25. Nacanieli Nabuto (PW6) was the last state identification witness. He said, he recalled a time at Mataika Street, Davuilevu in November 2009. He worked at 15 Mataika Street, Davuilevu. He said, after 1 pm, he was going to the shop. He went pass the accused's house. He saw the accused with another person, near a car, in his compound. He said, he observed the accused for one minute. He was 15 footsteps away. It was daylight. He said, he knew the accused, as he has resided in Mataika Street for 12 years. This may be a special reason for remembering his face. There was no impediment in the way. He said, when he returned from the shop, the accused's home was on fire.
    
26. In assessing the quality of the above identification witness, you must take on board the directions I gave you in paragraph 20 hereof. A major weakness in the above identification evidence was that no police identification parade was made, in a line up of 10 men of similar characteristic. Although the witnesses identified the accused through a dock identification, this type of identification was often discouraged by the courts, because it was so easy to identify a suspect in court, because they are already sitting in the dock. A police identification parade was often necessary to test the veracity of the identification evidence. This was a major weakness. However, if you consider the circumstances surrounding the identification made, were of a high quality, this may be sufficient to offset the weakness identified above. If you consider the quality of the identification evidence made, taken individually or collectively, were of high quality, you may accept them. If it's otherwise, you may reject them. This is a matter for you.
    
27. If you accept the identification evidence, then you consider it's value as part of the state's circumstantial evidence. As I have said before, the prosecution has provided no eye witness to say the accused burnt his house. This was a difficulty. To connect the accused to the crime of "arson", the prosecution is relying on what is often called circumstantial evidence. "...That simple means that the prosecution is relying upon evidence of various circumstances relating to the crime and the defendant which they say when taken together will lead to the sure conclusion that it was the defendant who committed the crime. It is not necessary for the evidence to provide an answer to all the questions raised in a case. You may think it would be an unusual case indeed in which a jury can say 'We now know everything there is to know about this case.' But the evidence must lead you to the sure conclusion that the charge which the defendant faces is proved against him. Circumstantial evidence can be powerful evidence, but it is important that you examine it with care, and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore, before convicting on circumstantial evidence you should consider whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution case. Finally, you should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing, or making up theories without good evidence to support them, and neither the prosecution, the defence nor you should do that..."
    
28. The identification evidences placed the accused at his house, the crime scene, five to 10 minutes after which the witnesses, PW1, PW2, PW3, PW4 and PW6, said the accused's house was on fire. The tenant living in the burnt house prior to the incident said, the accused visited him on 24th November 2009, and told him to live a live electric extension cord out of his window, as fencing contractors would arrive on 25th November 2009, to do the fencing. But no fencing material were ever present at the crime scene. Five days after the fire, the accused lodged an application for insurance money to cover the fire damage to his house. Does this prove to be his motive? Remember what defence counsel said. It was not shown by the prosecution that the accused was in financial trouble regarding his burnt house. It was not shown how much was owing on the house? It was not shown how much was owing to the first and second mortgagee, who would take first, in an insurance payout. Remember the accused's defence that he was somewhere else, at the time of the fire. What does the total circumstantial evidence tell you? Does it tell you the accused is guilty or otherwise? This is a matter for you.
    

I SUMMARY
29. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused's guilt, you must find him not guilty as charged.

30. Your possible opinions are as follows:

(i) Arson: Accused: Guilty or Not Guilty

31. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerk, so that we could reconvene, to receive your decisions.
    

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecutions, Suva
Solicitor for Accused : Gordon & Chaudhry, Barristers & Solicitors, Suva