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State v Batimudramudra [2015] FJHC 491; HAC115.2013 (2 July 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 115 OF 2013S

STATE

vs

JALESI BATIMUDRAMUDRA

Counsels: Mr. T. Qalinauci for State
Accused in Person
Hearings: 29 and 30 June, and 1 July, 2015
Summing Up : 2 July, 2015

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 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 and Accused have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State Counsel and Accused, 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 they 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 ISSUES
   

8. In this case, as assessors and judges of fact, each of you will have to answer the following questions:
   
   • (i) On Count No. 1, did the accused, on 3 March 2013, at Lot 61 Mead Road Tamavua in the Central Division, entered the complainant's dwelling house as a trespasser, with intent to steal therefrom?
     
   • (ii) On Count No. 2, did the accused, on 3 March 2013, at Lot 61 Mead Road Tamavua in the Central Division, steal the complainant's properties, as itemized in Count No. 2?
     

5. THE OFFENCES AND THEIR ELEMENTS

9. Count No. 1 involved the offence of "aggravated burglary", contrary to section 313(1)(a) of the Crimes Decree 2009. For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused;

(ii) in company with one or more persons;

(iii) enters or remains;

(iv) in a building;

(v) as a trespasser;

(vi) with intent;

(vii) to commit theft.

10. The key word in the above offence is the word "trespasser". A trespasser is someone who does not have permission, express or implied, to be in a building. In other words, if you don't have permission to enter or remain in a building, but nevertherless entered or remained in the building, you are a trespasser. You don't have authority to enter or remain in the building. For example, a thief who enters or remains in a building, to steal, is a trespasser.

11. Likewise, another key word in the offence is the word "building". A "building" includes "a part of a building", "a structure (whether or not movable), a vehicle, or a vessel, that is used, designed or adapted for residential purpose". A dwelling house is, of course, a building.

12. It must also be noted that for "aggravated burglary", when the accused enters or remains in a building as a trespasser, with intent to commit theft, he must do the same in cohort with one or more persons. In other words, when he enters or remains in the building as a trespassers, with intent to commit theft, he must do the same with the assistance of one or more persons.

13. Count No. 2 involved the offence of "theft", contrary to section 291(1) of the Crimes Decree 2009. For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused

(ii) dishonestly

(iii) appropriates

(iv) property belonging to another

(v) with the intention

(vi) of permanently depriving

(vii) the other of the property.

14. "Theft" is another word for "stealing". "Stealing" is basically to take something away, without the owner's permission, and with the intention of permanently depriving the owner of ownership of that property. For example, I saw $1,000 in your wallet. I took your wallet, got the $1,000 and spent it on myself, without your permission. What I did above is basically called "theft" or "stealing".

15. There are two counts in the information. You must treat and consider the two counts separately, in the light of the total evidence presented.

F. THE PROSECUTION'S CASE

16. The prosecution's case were as follows. According to the prosecution, on or about 3 March 2013, the accused and another met at Salato Road, Namadi Heights. They decided to walk to Mead Road to break into a house. They walked to Mead Road and picked the complainant's house to break into. The complainant's house was located at Lot 61, Mead Road, Tamavua. This was early in the morning after midnight. They walked up the complainant's driveway, scaled a cement wall and jumped into the complainant's compound. They checked around the complainant's house to see if anyone was at home. They found the complainant's house empty.

17. According to the prosecution, the accused walked to the complainant's front door. He removed three louver blades from the window, and broke into the house. His friend also broke into the house. He and his friend then ransacked the house, and stole the items mentioned in Count No. 2.

18. The above offences came to the police's attention. An investigation was carried out. Some of the complainant's stolen properties were recovered from the accused's house. He was caution interviewed by police on 6 March 2013. He admitted breaking into the complainant's house at the material time, and stealing some of the complainant's properties. On 8 March 2013, he appeared in the Suva Magistrate Court charged with aggravated burglary and theft on the complainant's house and properties. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.

G. THE ACCUSED'S CASE

19. On 30 June 2015, the first day of the trial proper, the information was put to the accused. He had previously waived his right to counsel. He pleaded not guilty to the charges. In other words, he denied the allegations against him. When a prima facie case was found against him, at the end of the prosecution's case, wherein he was put to his defence, he choose to remain silent, and called no witness, in his defence. That was his right.

20. 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 calling no witness, in his defence. This is because the burden to prove his guilt beyond reasonable doubt stays with the prosecution from the start to the end of the trial. The accused is not obliged to prove his innocence. In fact, he is not obliged to prove anything at all. He is entitled to fold his arns and sit there, and call upon the prosecution to prove his guilt beyond a reasonable doubt, which he did here.

21. However, he gave his caution interview statements to the police on 6 March 2013. The caution interview statements were tendered as Prosecution Exhibit No. 11. In his caution interview statements, he allegedly confessed to the crimes. However, he said the alleged caution interview statements were forced out of him by police, and he gave the same without his own free will. He said, you should reject his caution interview statements because it was given involuntarily. Because of the above, he is asking you, as assessors and judges of fact, to find him not guilty as charged. That was the case for the defence.

H. ANALYSIS OF THE EVIDENCE

(a) Agreed Facts:

22. The parties had submitted an Agreed Facts. A copy of the same is with you. You should read it and understand the same. There are three paragraphs of facts. In the first paragraph, the complainant's names are mentioned. They are husband and wife. The second paragraph list the accused as the accused, and he was 22 years old, at the time. The third paragraph said, "...The alleged offence of aggravated burglary and theft occurred on or about 2nd March 2013..." The information alleged the offences occurred "on or about 3rd March 2013". The phrase "on or about 2nd or 3rd March 2013", meant the alleged offence occurred on or about the 2nd or 3rd March 2013. So, the fact that the date in the agreed facts and the information are different, is not fatal, given that the phrase "on or about" was used in both situation. You may take the Agreed Facts as established facts.

(b) Case Against The Accused - Evidence:

23. The State's case against the accused were founded on two types of evidence. First, was his alleged confession to the police, when he was caution interviewed by police on 6 March 2013. We will discuss the details of this evidence later. Second, was based on what is often known as "circumstantial evidence". These arose as a result of the complainant's stolen properties been recovered from the accused's residence by police, and the same being identified by the complainants as theirs, at Samabula Police Station, soon after the alleged crimes. We will discuss the details of this evidence later. If you accept the above two types of evidence, then you will have to find the accused guilty as charged on both counts. It's a matter entirely for you.

(c) The Accused's Alleged Confession:

24. On 6 March 2013, police officer DC 3476 Sukulu Colati (PW2) caution interviewed the accused at the CID office at Samabula Police Station. The interview started at 6pm and concluded at 9.15pm. 102 questions were asked by PW2, and the accused gave 102 answers. The accused was given the standard caution, meal and rest breaks. He was given his right to counsel, and various other rights. The interview notes were tendered as Prosecution Exhibit No. 11.

25. The allegations of "aggravated burglary" (count no. 1) and "theft" (count no. 2) were put to the accused in questions 7 and 8 of Prosecution Exhibit No. 11. He said, he understood the allegations and admitted the same to police in question and answer 32. He then described how he met another person prior to the offences, planned to break into a house at Mead Road, picked the complainant's house at Lot 61 Mead Road, Tamavua, broke into the house, ransacked the same, and stole the items mentioned in count no. 2. Please, refer to questions and answers 34, 43, 44 to 67, 71, 74 to 80, 82 to 84 and 88 to 96. In the above questions and answers, the accused allegedly confessed to the offence in count no. 1 and 2.

26. However, before you consider the above alleged confession by the accused, I must as a matter of law, direct you as follows. A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, before you can accept a confession, you must be satisfied beyond reasonable doubt that it was given voluntarily by its maker. The prosecution must satisfy you beyond reasonable doubt that the accused gave his statement 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 and the same are the truth, as judges of facts, you are entitled to rely on them for or against the accused. The acceptance or otherwise of his alleged confessions is entirely a matter for you.

27. In this case, the voluntariness of the accused's alleged confession was disputed by the parties. You have heard the prosecution's witnesses' version. According to the police, the accused was not assaulted, threatened or made false promises when arrested, when caution interviewed and when in police custody. Through his cross-examination, the accused put it to the police that they assaulted, threatened or made false promises to him when he was in their custody. They all denied the same. The accused choose to remain silent in giving his defence. If you accept that the accused gave his caution interview statements to the police voluntarily, then you must find him guilty as charged. If you think otherwise, than you will have to rely on the other evidence to find out whether or not the accused is guilty as charged. It is a matter entirely for you.

(d) The Circumstantial Evidence Against the Accused:

28. Mr. Jona Davonu (PW1) was a police officer on 6 March 2013. He said, on 6 March 2013, at about 1pm, he went with other police officers to search the accused's residence. He said, the police officers went straight to his room, and he surrended all the items in his possession. The items were recorded in a "search list", which was tendered as Prosecution Exhibit No. 1. The items were Labeled Serial No. 01 to 09. Please, carefully read and understand the items in the search list. These items were also produced in court as Prosecution Exhibits. The exhibits were as follows:

29. PW1 said, they later brought the accused to Nabua Police Station, and later to Samabula Police Station. DC 3722, Mr. Munilesh Gounder (PW3) also gave evidence. He was the police investigation officer in this case. He said, the complainants were brought to Samabula Police Station, and they identified all the above items as theirs.

30. The prosecution is relying on the above evidence as circumstantial evidence to prove the accused's guilty. That simply 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 is 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.

I. SUMMARY

31. 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.

32. Your possible opinion are as follows:

(i) Count No. 1 : Aggravated Burglary : Guilty or Not Guilty

(ii) Count No. 2 : Theft : Guilty or Not Guilty

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

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva.
Solicitor for the Accused : In Person