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State v Nimacere [1994] FJHC 64; Hac0010s.93s (21 June 1994)

IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL CASE HAC0010 OF 1993

STATE

v

ALIFERETI NIMACERE

Counsel: Mr. Hook for State
Accused in person

Trial: 14 to 21 June 1994
Summing Up: 21 June 1994

SUMMING UP OF PAIN J.

Gentlemen Assessors,

It is now my duty to sum up this case to you. You will then be required to consider your verdicts. Each of you must give a separate opinion whether the accused is Guilty or Not Guilty.

In coming to your decision you must apply the law as I explain it to you. It is my duty to regulate the procedure of the trial and direct you on the law. Those directions on the law must be followed by you.

However I do not decide the facts. That is for you. As I speak to you, you may feel that i have formed some view on a particular question of fact. If you disagree with the version of the facts that I appear to be expressing, then please feel completely free to disregard my opinion. All matters of fact are for you and you alone. 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. You decide what facts are proved and what inferences you can properly draw from those facts. You then apply the law as I explain it to you and decide whether the verdict should be guilty or not guilty.

You must come to that decision solely upon the evidence you have heard from the witnesses. If you have previously heard anything about this case or the people involved, through the media or some other source - you must ignore that completely. The law requires that the accused is to be judged solely upon the evidence sworn to in this Court. In considering that evidence you are expected to apply your common sense and everyday knowledge of human nature and people. You must please put aside any feelings of prejudice or sympathy which may occur to you one way or the other and arrive at your verdicts calmly and dispassionately.

The charge against the accused is set out in the information that you each have a copy of. This charge is brought by the State and the onus of proving it rests on the State from beginning to end. There is no onus on the accused at any stage to prove his innocence or to prove anything else. He does not need to give evidence. (In this case he has chosen to do so but he still carries no onus). The law is that the State must prove the essential ingredients of the charge beyond reasonable doubt before there can be a verdict of guilty. That is the standard of proof I mean when I say throughout this summing up that the State must prove some matter. Proof beyond reasonable doubt. That is a classical phrase that you will have heard many times. Those words are clear and will be readily understood by you. They mean just what they say. A reasonable doubt is a doubt which you find is reasonable in the circumstances of this case. If after a full consideration of the evidence, and bearing in mind the directions I give to you, you find the charge is proved beyond reasonable doubt your opinion must be Guilty. On the other hand, if you are left with a reasonable doubt, your opinion must be Not Guilty.

The accused is charged with the offence known as robbery with violence. This is defined in the Penal Code as being committed by somebody who robs another 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.

In this case it is alleged against the accused that he together with two other people robbed Gregory Harm and immediately before such robbery threatened to use personal violence on Mr. Harm.

There are two legal ingredients that must be proved for this offence -

1. That a robbery was committed and
2. That immediately before that robbery, the robber used personal violence on another person.
   

I must explain these two matters to you.

ROBBERY is really an aggravated form of theft. The theft is aggravated because it is carried out by using violence against the victim or by putting the victim in fear of violence. The definition that has been accepted for several hundred years is that robbery is "the felonious taking of money or goods of any value from the person of another, against his will, by violence or putting him in fear."

There are three ingredients that must be proved to constitute robbery.

First is proof of conduct by the robber which constitutes violence to the victim or is sufficient to put the victim in fear of such violence. It is not necessary to prove actual fear on the part of the victim. It is sufficient to prove circumstances of violence which in common experience are likely to induce the victim to part with his property. The law will then presume fear on the victim's part.

The second ingredient that must then be proved is that the robber took money or some other goods or property from the victim. The property must be taken away by the robber and this must be against the will of the victim.

The third and final element that must be proved is a felonious or criminal intent on the part of the robber. He must be using the violence or threats for the purpose of taking property with the intention of stealing it. That is taking somebody else's property, that he has no right to, with the intent of permanently depriving the owner of it.

So those are the three elements of robbery - violence or threats to intimidate the victim and put him in fear - the taking of property and - an intention to steal.

For the present offence of aggravated robbery, the further ingredient that must be proved is that immediately before the robbery, the robber threatened to use personal violence on another person. The robbery is actually committed when the robber takes the property. It must be proved that immediately before that occurred, he threatened to use personal violence on another person. That is a threat to do some actual violence to the other persons body. A common illustration of this would be threatening to punch the person or hit him with a weapon.

In summary then, what the prosecution must prove to establish this charge of robbery with violence is

- a robbery, that is the taking of property with intent to steal it by using violence - as I have explained it to you.

and

- immediately before that robbery a threat to use personal violence to the victim.

In this case the basic prosecution case is that, as Mr. Harm was leaving his shop three men arrived in a van. One approached him, raised a cane knife as if to strike him and grabbed his brief case. Mr. Harm was frightened and let go the brief case. The man took it, went back to the van and drove off with the other two.

It is for you to say whether you believe the prosecution witnesses and find this sequence of events has been established. If it has and their evidence has not been challenged, then you should have little difficulty in finding that the offence of robbery with violence as I have explained it to you, has been proved. The masked assailant, threatened to strike Mr. Harm with the knife, snatched the brief case from him and took it away intending to steal the money inside.

The issue would then be whether or not it is proved that this accused was one of those three men and that he participated in the robbery.

It has not been proved that the person who actually threatened Mr. Harm and snatched the brief case from him was the accused Mr. Nimacere. Indeed one of the witnesses described that man as being only a bit taller than 5ft 7" which would not be a description of Mr. Nimacere.

However, 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.

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.

Let me give you a simple illustration of this. Suppose four men are drinking together in a hotel and one of them says, "The shopkeeper is away and I know where he keeps his money in his house at Tamavua. Let's go and burgle it". They all agree. One drives the group to Tamavua in his car and parks round the corner from the house. One sits in a bus shelter outside the house keeping a lookout. The other two go into the compound and one lifts the burglar up to a window of the house. The burglar then breaks into the house and steals the money. They all then return to the car and drive off. Each of those four men is guilty of the burglary, although only the last man actually committed the offence by breaking into the house and stealing the money. The other three knew what he was up to and assisted him to do it. One by providing the transport, one by keeping a lookout and the other by lifting him up to the window. They embarked on a criminal enterprise together, each playing a different part but knowingly assisting each other to commit the burglary.

In this case the prosecution alleges that this was a carefully planned criminal enterprise by three people. They must have known that Mr. Harm took the takings when he left the shop on Saturday afternoon and decided to rob him. The van belonging to Bula Cleaners was unalwfully taken for this purpose. They parked near the butcher shop in Cummings Street. Each wore a mask and one of them had a cane knife. When Mr. Harm came out of the shop they drove up, the man with the knife got out and robbed Mr. Harm and then all three of them left together in the van.

The prosecution says that this was a joint criminal enterprise involving all three of them. They were together committing the robbery. Although only one of them actually took the briefcase from Mr. Harm, the other two are equally responsible for and parties to the commission of robbery.

It is for you to consider the evidence and decide whether or not this has been proved. The accused denies the charge and says that he was not there. He has cross examined the eye witnesses. You must consider their evidence to see whether or not it proves a robbery in which the three persons were all participating.

You may be thinking, "well there may be no doubt that this was a joint robbery by the three of them, but the charge is robbery with violence because the person who took the briefcase also threatened Mr. Harm with the cane knife. Can the other two be responsible for that as well? Suppose they intended to rob Mr. Harm by intimidation only and without any actual violence or threats of violence. Could it be that the man who then brandished the knife would be guilty of robbery with violence and the other two would only be guilty of robbery."

Well I must tell you that, depending what facts you find proved, that is possible and a verdict could be given on that basis.

However the prosecution brings its case on the basis that all three people were responsible for the aggravating element of a threat made immediately before the robbery to use personal violence against Mr. Harm. The prosecution says that although only the man with the knife made the threat the other two committing the robbery with him are also liable for that threat.

In law, this can arise in two possible ways. Before you could attribute the threat with the knife to the other two men one of these situations must be proved by the prosecution.

First, if it is proved that all the people concerned embarked upon a criminal enterprise together intending that one or more of them should actually threaten personal violence to the victim before they robbed him of his property. In other words they set out, not only to rob Mr. Harm, but also to threaten him with actual personal violence to accomplish that robbery. That is why the cane knife was taken. On those facts they would all be intending to commit the offence of robbery with violence. As I explained earlier, each may have played a different part but they were all knowingly assisting each other to commit that particular offence.

The second way that a person can be guilty of an offence committed by another is defined by our law in this way:

When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.

Applied to the present charge it means that if several people formed a common intention to commit a robbery together and it was a probable consequence of committing the robbery that the victim would be threatened with personal violence, then each of the people participating would be equally responsible for that threat and guilty of robbery with violence.

So, in this case, it would be necessary for you to consider the actions that have been proved to have occurred in Cumming Street on that day. This would include the conduct of those who participated and the manner in which the alleged robbery was carried out, including the facts (if you find them proved) that the person who actually accosted the victim was carrying a cane knife. You would then have to determine whether, in the proved circumstances, the threatening of the victim with the cane knife was a probable consequence of the robbery they intended to commit. If so, then each person proved to be participating would be responsible for that threat and be a party to the offence of robbery with violence.

In summary therefore, if this accused is proved to have been one of the masked persons present and participating in the robbery of Mr. Harm - and only if this is proved, then there are two ways that he could be responsible for the threat made by one of the others to Mr. Harm and be guilty of the offence of robbery with violence.

First, if in setting out on this joint enterprise to rob, the three of them intended to threaten the victim with personal violence.

or if the use of a threat of personal violence was not pre-determined but was a probable consequence of the robbery that they intended to commit.

There is a final legal matter that I must direct you on which is of crucial importance in this case.

The prosecution case depends wholly on the correctness of an identification of the accused as one of the offenders. The defence challenges this identification and says that the witness is mistaken, the accused says he was never in the Bula Cleaning Services van, and was not one of the three men who took part in the robbery and was not the person seen in Maqbool Road.

In these circumstances I must warn you of the special need for caution before convicting the accused on the correctness of this identification.

The reason for this is the danger that a wrong identification will cause a miscarriage of justice and there have been cases where this has happened. It is not a question of a witness being untruthful but mistakenly believing the person seen at the crucial time was the accused. With this genuine belief a mistaken witness can nevertheless be a convincing one. I am not saying that is necessarily the case here. I am explaining the reason for the special care with which you must approach this issue.

You must decide whether the evidence of identification is reliable and should be accepted or whether it is unsatisfactory and should be rejected or leaves you in doubt. To do this you must examine all the circumstances and determine the strength or quality of the identification. It is for you to assess the value of the evidence that has been given.

To do this you must closely examine the circumstances in which the identification came to be made. Generally this will include such matters as:

- How long did the witness have the person under observation? Was it a significant period or just a fleeting glimpse?

- At what distance?

- In what light?

- Was the view impeded or obstructed in any way?

- Was the accused a person known to the witness?

- Had the witness ever seen the accused before and, if so, how often?

- How long elapsed between the original observation and any subsequent identification of the accused as that person?

- How was the subsequent identification made?

Such matters as these go to the quality of the identification evidence. If after a consideration of all that evidence the quality of the identification remains good the danger of mistaken identification is lessened. But the poorer the quality the greater the danger.

In this case the evidence of identification is given by Kinisimere Sereikadavu who says that the white Bula Cleaning van drove past her in Maqbool Road and stopped. There were no other people in the vicinity. A man walked from the van down the road and went past her. He was carrying something wrapped in a jacket. Two other men were beside the van and they pulled their jackets over their heads to hide their faces. They also walked past her and joined up with the first man.

Kinisimere says that this accused is the man who first walked past her. He denies this, and you must therefore decide this issue with special care, as I have explained.

The circumstances of the identification evidence in this case are that the accused is not a person known to the witness. It was daylight. Her attention was directed to the van because of its speed. She observed the person walking from the van towards her. She said the van was parked about l0 paces in front of her. The man went past her and did not stop. She was on the left hand side and he was on the right hand side of the road. She said the distance between them would have been from where she stood in the witness box to me on the bench - about 10 to 12 feet. She looked at his face and observed that he had a beard although not a full grown beard. She described the man as being very tall and having a strong build. On this evidence she had a good view of the person and watched him while he walked about l0 paces up to and passed her.

Her evidence is strengthened by her subsequent identification of the accused as that man at an identification parade held at the Police Station on 3 September which is 26 days after the sighting in Maqbool Road.

Those are the basic facts from which you must determine the quality of Kinisimere's identification evidence. In doing this you must also take into account other matters that I must draw your attention to on behalf of the accused. In cross examination by him she confirmed that she said that the man seen by her was about 40 years old. When first questioned she could not recall that the Police asked her to look at some photographs. It was only when reminded about her statement to the Police, that she recalled this and that she had pointed out a Fijian youth who was similar to the man she saw at the van.

Let me say two things about that evidence. You must take nothing from the fact that the lady was shown photographs in an album at the Police Station - and certainly you must not make any adverse inference against the accused because of it. The evidence goes towards the credibility of the witness's identification evidence and the accused points out that she was unable to recall the matter at first and was only able to point out a person who looked similar.

The accused is also critical of the identification parade. He says that she first identified somebody else in the line up.

There is also a discrepancy in the evidence about the accused's position in the line. Assistant Inspector Anare Bose said the people were numbered by him 1 to 9 from the right and the accused finally selected a position between numbers 6 and 7. He said that the witness walked straight to the accused in that position. Kinisimere said that she started from the left hand side and went along the line until she reached the accused who was the second to last person. The accused said in evidence that he was at the end of the line and that she first selected another person.

Those are the circumstances of the evidence of identification which must be carefully considered by you. You must assess the strengths and weaknesses of the evidence to determine the quality of the identification and whether it can be accepted by you.

There is a further matter relied upon by the prosecution to support the case against the accused.

It is part of the prosecution case that the accused told lies about this matter. The prosecution alleges that the accused told lies to the police about his movements on that Saturday and tried to concoct a false alibi for himself. He said he went to the National Stadium with Mereia Bogi. Her evidence is that she helped at the market on Saturdays and the accused approached her at 12 noon on a Saturday in l992 and told her that if the Police asked her if she had been with him she was to say yes.

However you must be very careful in considering whether this evidence, in any way, strengthens the prosecution case.

The accused denies that any such conversation ever took place.

Before this matter can have any influence you must be sure that the accused did tell a deliberate lie. To find this proved it would be necessary for you to accept the evidence of Mereia Bogi as true and reject the evidence of the accused on this particular issue.

If you accept her evidence then you could conclude that he was seeking her support for a false alibi for some occasion. He claimed in his statement to the Police and in his evidence that he was with her on the afternoon when this particular robbery was committed. However she is unable to relate her evidence to that particular day. Moreover she did not say that she has never been to the stadium with the accused. This question was not put to her.

So you must carefully consider all the evidence and decide whether the accused did tell a deliberate lie about his whereabouts on the afternoon of the robbery.

If it has not been proved that the accused lied then that is the end of the matter.

But if you are sure that he did lie, you must not automatically conclude that he is guilty of the offence. The mere fact that a defendant tells a lie is not itself evidence of guilt.

You must consider why he lied. A defendant may lie for many reasons. It may be to conceal guilt but it might also be for such reasons as to bolster a true defence, to protect someone else, to conceal some other disgraceful conduct or out of panic, fear or confusion.

If you think that there is, or may be, some innocent explanation for the defendants lies, then you should take no notice of them.

On the other hand, if you are sure that the defendant did not lie for some innocent reason, then his lies can be evidence going towards proof of guilt. If you are sure that the lies were told because he could not give an innocent explanation as to where he was at the time of the robbery - he was lying to conceal his own guilt - then those lies may strengthen the prosecution case against him.

That completes my directions to you on the legal issues in this case.

I must also remind you of the evidence given and the cases of both the prosecution and defence. I can do this quite briefly as the case comes within a very narrow ambit and in discussing the legal issues I have substantially covered the important evidence and the respective cases of the prosecution and the accused.

I do not propose going through all the evidence of all the witnesses. If in the course of this summing up I only refer to some of the witnesses or parts of their evidence it does not mean that the rest is unimportant. You must weigh up and assess all the evidence in coming to your decision on this case.

The prosecution case is quite straight forward. It is alleged that this was a carefully planned robbery by 3 men. The accused was one of them and they intended violence. Mr. Aceni Senibaravi of Bula Cleaning Services gave evidence that his firm's white Nissan van CJ 435 with the firm's name written along each side was unlawfully taken from outside the Raiwai Hall some time after 1 pm on 8 August 1992. The prosecution says this was the first step in the robbery. Gregory Harm and Joji Bukalidi gave evdience of what happened outside Wahleys Butcher shop in Cumming Street just after 3 pm. The white van which Mr. Bukalidi said had the name Bula Cleaners written on the side was accelerated through the gears and pulled up quickly in front of the shop. The occupants wore masks. One man carrying a cane knife got out of the van, went up to Mr. Harm. He raised the knife above his head threatening to strike Mr. Harm. At the same time he grabbed hold of the briefcase held by Mr. Harm which contained the day's takings. Mr. Harm was frightened by the threat and let go the case. This man took it and went back to the car. Mr. Harm said another person had also got out of the van and that person also got back inside the van. Mr. Bukalidi said there was also a separate driver who remained in the van. The van drove off when the people were back inside.

The prosecution says that these facts clearly establish the offence of robbery with violence. Mr. Harm was robbed of the brief-case and contents and immediately before that occurred he was threatened with personal violence by the robber. The prosecution submission to you is that this was clearly a joint criminal enterprise by the 3 people involved. The facts, particularly the carrying of the cane knife by the man who actually committed the robbery, show that such threatened violence was part of their criminal enterprise or was at least a probable consequence of it. The cane knife was taken for a purpose. Threats with the knife must have been intended or at the very least were probable if not inevitable. Therefore the prosecution says each of the people taking part are guilty of the crime of robbery with violence.

The prosecution then relies upon the evidence of FINAU and KINISIMERE who observed the white van CJ 435 with Bula Cleaners written on the side in Maqbool Road. Mr. Harm's brief case was alongside the van and papers from Wahley Butchery also identify this as the van used in the robbery. Kinisimere gives crucial evidence that is relied upon by the prosecution. She shows that there were 3 people in the van. The prosecution says that this van which drove up at speed and stopped in a relatively isolated spot obviously was the robbery vehicle with the three robbers in it. Kinisimere positively identifies the accused as one of those 21.

people. She had good reason to pay attention to him and an excellent opportunity to observe him as he walked down the road and past her. That identification is confirmed by her later selection of the accused at the identification parade.

The prosecution says that the evidence of what happened at the identification parade is clear and should be accepted by you. After this lapse of time it is understandable that there may be discrepancies in the witnesses recollections of where the accused stood in the line. But both Kinisimere and Asst. Insp. Anare Bose gave consistant evidence that Kinisimere pointed out the accused in the line up. It was not suggested to her that she first identified one of the others. When that was suggested by the accused to Asst. Insp. Bose he said, "That is not true". Even the accused himself is forced to concede that he was pointed out by her. The prosecution says that the quality of this identification is excellent and should be accepted by you. The accused is identified as one of the robbers immediately after they had fled the scene.

Finally the prosecution says that supportive evidence of the accused's guilt comes from his lies to the Police about going to the football on that afternoon and attempting to create a false alibi through Mereia Bogi. The prosecution says that her evidence is credible and should be accepted by you. She must have been referring to this occasion when the accused claims to have been at the National Stadium with her. Her evidence proves he told a lie. There can be no innocent reason for this. He lied to conceal his own guilt and this evidence strengthens the prosecution case.

The prosecution says that the accused's evidence denying the offence is discredited by the prosecution witnesses and should be rejected as untrue. The charge against him has been established and your verdict must be guilty.

The accused is not represented by counsel and he should not be disadvantaged by this. I have an obligation to identify the essential features of his defence and explain these to you.

Basically the accused's defence is a denial that he participated in this incident when the brief case was taken from Mr. Harm. He does not challenge the evidence of what occurred but this does not mean that the prosecution does not have to prove the commission of the offence. If the accused was represented by counsel, I am sure that counsel would be submitting to you that, although a robbery may be proved, only one person made a threat of violence. In the absence of any admission from those robbers there is insufficient evidence to conclude that the threat of violence was intended by them or was a probable consequence of the robbery. That is not proved beyond reasonable doubt.

Counsel would also point out that none of the robbers were identified at the scene. Moreover the accused has not been identified as the principal offender who threatened Mr. Harm with the knife and stole the brief case. Indeed the description given of the height of that person would indicate that it could not have been the accused.

The identification evidence relates to a man alleged to have been in the van when it stopped in Maqbool Road. Counsel would, I am sure, challenge the quality of the identification evidence and submit that the witness, Kinisimere, only observed the person while he walked no more than l0 paces and went past her. Two days later when shown photographs she could only identify a person who looked similar to the man she saw. The identification parade was not conducted until almost 4 weeks after the incident and there is some inconsistent evidence about what actually occurred. In these circumstances the defence counsel would say that the identification evidence is not strong enough for you to find identification proved beyond reasonable doubt.

Counsel would no doubt submit further that the evidence of Mereia Bogi should not be accepted because she cannot relate the alleged conversation to the day this offence was committed and she has not given specific evidence denying that she went to the National Stadium with the accused on the day in question.

The accused himself has given evidence and I must remind you that by doing this he assumes no onus of proof. That remains on the prosecution throughout. His evidence must be considered along with all the other evidence and you can attach as much or as little weight to it as you consider appropriate.

He says that he did not commit this offence. He was not in Cumming Street and knows nothing about it. At the time the robbery was committed he was at the National Stadium with Mereia Bogi. He was not the person seen by Kinisimere in Maqbool Road. She did not properly identify him at the identification parade. She pointed out somebody else and it was only with further encouragement from the Police that she pointed to him. He says he never asked Mereia Bogi to tell the Police she was with him. Her evidence and that of other witnesses has been fabricated at the initiation of the Police who wanted to charge him whether he was guilty or not.

That is his defence and you must assess and evaluate that defence as you consider all the evidence and come to your decisions.

That completes my summary of the prosecution and defence cases. You must now weigh up the evidence and decide what has been proved. In doing this you must follow the legal directions. I have given to you and evaluate the prosecution and defence cases as they have been submitted.

I suggest that the first thing you will have to consider is whether a robbery with violence has been proved and, if so, whether all three who participated are parties to and equally responsible for the commission of that offence.

If that is proved then the crucial issue will be whether or not it is proved that the accused was one of the persons who participated. He denies that he was. This means that you must carefully consider the identification evidence which must be evaluated as I have directed to you. At the same time you will consider the evidence of Mereia Bogi to determine whether she is to be believed and if so whether this strengthens the case against the accused in any way. All this evidence must be weighed up against the evidence of the accused denying his guilt.

Those are the essential issues that you must consider but you will have regard to and evaluate all the evidence and prosecution and defence arguments in coming to your decisions.

Gentlemen assessors, that concludes my summing up of the law and the evidence in this particular trial.

We have now reached the stage where you must retire to your room to deliberate together and form your individual opinions on whether the charge has been proved against the accused.

On your return you will each be asked separately to state in Court your opinion as to whether the accused is guilty or not guilty of the charge.

Would you please now retire to consider your opinions. When you have made your decisions would you please advise the Court Officer and the Court will reconvene to receive your opinions.

MR. JUSTICE D.B. PAIN

HAC0010S.93S