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State v Wainiqolo [2006] FJHC 51; HAC015.2004S (20 July 2006)

IN THE HIGH COURT OF FIJI
AT SUVA

Crim. Case No: HAC015.04S

THE STATE

V

SEMISI WAINIQOLO

Fiji High Court, Suva
20th July 2006
Gates J

SUMMING UP

Counsel:
Mr A. Rayawa for the State
The Accused in Person

All 3 Assessors present

[1] Lady and Gentlemen assessors, it is now my duty to sum up the case to you. We have differing roles in this trial. I have to give you directions on the law and you must accept those directions. You are to give a decision on the facts applying those directions of law and to give me your opinions as to the accused’s guilt or innocence. As persons who have sat as assessors before you will be familiar with some of these directions. Nevertheless it is necessary that I remind you of them.

[2] In going through the evidence I may express an opinion. If you do not agree with that opinion, you are free to ignore it and to form another view of that piece of evidence. I shall not refer to all of the evidence, and as a result I may omit some evidence which you think significant. Nonetheless you may give that evidence such weight as you consider appropriate. You must feel free to form your own opinions.

[3] At the end of this summing up, and after you have given your individual opinions, the final decision on the facts rests with me. I am not bound to conform to your opinions. However in arriving at my judgment I shall weigh carefully and place much reliance upon your opinions.

[4] The burden of proof rests throughout the trial upon the State. In our system of justice there is a presumption of innocence in favour of an accused which is enshrined in the Constitution. The State brings the charge against the accused. Therefore it is for the State to prove the charge against the accused. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused. In summary, the Accused does not have to prove anything.

[5] The prosecution must prove its case on the charge beyond reasonable doubt. That means that before you express an opinion that the Accused is guilty you must be satisfied so that you are sure of his guilt beyond reasonable doubt. The test is not, doubt, or slightest doubt, or any doubt. The test is reasonable doubt. If you consider him innocent of the charge you must give your opinion that he is not guilty. If you entertain a reasonable doubt of guilt, you must also give your opinion that the Accused is not guilty. Only if you are satisfied beyond reasonable doubt that the State has proved the case against the Accused should you give your opinion that he is guilty.

[6] You must decide this case from the evidence that has been presented to you. It will be your task to discover which witnesses have given honest and accurate evidence and which have not.

[7] After I have completed this summing up, you will be asked to retire to your retiring room to deliberate amongst yourselves so as to arrive at your opinions. Upon your return to court, when you are ready, each one of you will be required to state his or her individual opinions orally on the charge against the accused, which opinions will be recorded. Your opinions need not be unanimous. You will not be asked for reasons for your opinions.

[8] However it will be helpful to you beforehand in arriving at sound and rational opinions if you ask yourselves why you have come to those opinions.

[9] Those opinions must be based solely upon the evidence. Evidence consists of sworn testimony of the witnesses, what each witness has told the court in the witness box, as well as the exhibits tendered in court, such as the caution interview statement, the charge statement and the certificate of company registration for R.B. Patel Group Ltd.

[10] Neither speculation nor theories of one’s own constitute evidence. Media coverage, idle talk, rumours or gossip about the case are similarly not evidence. Put out of your mind when considering your opinions, anything you may have heard, or read in the newspapers about this matter. You are to focus solely upon whether the prosecution have produced sufficient and cogent evidence to prove the charge beyond reasonable doubt. Have regard in your deliberation only to the evidence which you have seen, heard, or examined in this court.

[11] This summing up is not evidence either, nor are counsel’s opening or closing addresses or the Accused’s closing address. Naturally we hope all of these are of assistance to you, but they do not constitute evidence.

[12] If a witness is asked a question in cross-examination and agrees with what counsel is suggesting the witness’ answer is evidence. If he or she rejects the suggestion, neither the question nor the answer can become evidence or proof for what is suggested.

[13] In arriving at your opinions, use the common sense you bring to bear in your daily lives, at home and at work. Observe and assess the witnesses’ evidence and demeanour together with all of the evidence in the case. You can accept part of a witness’s testimony and reject other parts. A witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and be wide of the mark about another.

[14] If you have formed a moral opinion on the conduct alleged in this case put that to one side. Consistent with your oath, you should put away both prejudice and sympathy. Approach your assessment of the evidence dispassionately. Bring a cool detachment to your task of examining whether the case against the accused has been proved before you, proved with evidence sufficient for the charge to the extent that I have already indicated.

[15] The statements of two witnesses were read out to you as part of the defence case. Mr Rayawa for the State consented to this procedure. Apparently these witnesses could not be traced. I shall deal with the significance of their evidence later on. Bear in mind that you have not had the advantage of seeing these witnesses for yourselves, of assessing their demeanour in the witness box, or of obtaining further clarification through counsel’s and the Accused’s questioning.

[16] I turn now to deal with what the prosecution must prove. The Accused was originally charged with 2 counts on the information. However I must direct you to disregard count 2, the unlawful use of a motor vehicle. A verdict of not guilty will be entered for this count since there was no proof that the Accused entered the vehicle GN140 outside the supermarket or of his having used that vehicle at any time.

[17] The remaining count is count 1 alleging robbery with violence. The prosecution must prove several elements of the charge. First it must be proved that the Accused with others stole the money and cheques. It is alleged that these were contained in a metal box and the till bags amounting to a total sum of $150,359.24 as set out in the information. The money was taken from the staff at R.B. Patel’s at Centrepoint on the day in question. "Robs" here means stealing, by force, property belonging to someone else, appropriating property which belonged to the complainant R.B. Patel Group Ltd which the Accused well knew was not his property to take or to use. It must be shown that he knew that he had no right to that money and at the time he took it he intended to deprive the complainant of it permanently. "Robs" also conveys that the taking was carried out by force, against the will of the complainant’s staff.

[18] The other persons alleged to have been robbers on that day are not before you in this trial. You are not concerned with them. But the prosecution alleges that 4 or 5 persons including the Accused acted together with a common intention to commit this robbery. They acted in conjunction with one another and they were joint offenders. Each may have played a different part. But each part was carried out to achieve the common aim, namely to rob the supermarket of its cash and cheques, and if those acts were a probable consequence of the prosecution of that purpose, each of them is deemed to have committed those acts and that offence.

[19] From the circumstances of the incident as related by the witnesses you will have little difficulty in concluding a robbery was intended and was indeed carried out jointly by these intruders at R.B. Patel’s at about 7.30 pm on 1st May 2004. Either 4 or 5 men, armed and masked rushed into the supermarket terrifying the staff and the remaining customers, and ran off with money and cheques valued at $150,359.24. You heard from witnesses who were inside the supermarket at closing time who witnessed the incident. You heard from the company accountant as to the amount of money lost and how it was recorded in the tills. None of this part of the case is disputed by the Accused.

[20] What he does dispute is the allegation that he was one of those robbers. He told the police in his interview he knew nothing about this robbery and was at home that afternoon and evening. He asked the interviewing officer to check his alibi.

[21] There were two witnesses from the supermarket who said they identified the Accused as one of the robbers. They were Milika Doviyaroi (PW6) and Naina Masirewa (PW7). Before I go through their evidence, I must give you some general directions in regard to identification evidence.

[22] As prosecuting counsel rightly warned you, evidence of identification in criminal cases can give rise to problems, and has on occasion brought about miscarriages of justice. In this case the case against the Accused depends wholly or substantially on the correctness of the identification evidence. The defence alleges that that identification was mistaken. I must warn you of the special need for caution before convicting the Accused relying on the correctness of these two identifications.

[23] The reason for special caution is that there is always a possibility that a mistaken witness can be a convincing one, and that a number of witnesses can all be mistaken. The honesty of a witness is no guarantee against a false impression becoming indelibly printed on the mind so as to convince an honest witness that the identification was wholly reliable.

[24] In examining the evidence of these two witnesses you should ask yourselves several questions. For how long the witness had this person under observation, how close was she to him, what lighting was available, whether that view was obstructed, had the witness ever seen this person before, and was there anything special or memorable about the person that made identification easier?

[25] Milika, the sales assistant, said she heard a loud sound just as the store was closing for the day. She saw 4 masked men entering the shop. They went towards the Liquor Department, where the safe box was kept. Milika was in the back of the store at first. She said she saw two of the robbers lift the box onto the counter. She concentrated on the third person. She did so she said because he was not covering his face. When he was on his way out to the main entrance she had a good look at him.

[26] At this time the robber was only 2 metres from Milika. She went further to have a good glance at him. When he went past her he passed within a metre. She was hiding behind a display. She said there were 42 tube lights on in the store that evening. In cross-examination she said she saw the Accused standing outside the counter of the Liquor Department. He received the box from the two robbers who were inside the Liquor Department. She was 2 metres from the Liquor Department. Once he received the box, he turned and that is when she saw his face. She saw his face, the left side, when he moved to run out of the shop.

[27] The lighting in the store was obviously good. This applies to the evidence of both of these witnesses who made their identification in the store. Neither witness had ever seen this person before that day. Milika only saw his face from the left side. Her observation of his face was very brief, even if you consider it more than a fleeting glance. She had said in court and at the time that he was 5ft plus, fair, medium build, with big eyeballs. She made her observation from a close up position at 2 metres and when he passed by at 1 metre’s distance. Her view was not obscured.

[28] Naina you remember had closed her till and had gone to the Liquor Department to deposit her takings. She was with three other girls and they were about to take their own bags out of the cupboard when someone shouted "robbery, robbery". She confirmed what Milika had said in that it was 3 men who came towards the Liquor Department. She also confirmed that the box was handed to one of the three standing outside by the counter. They were all wearing masks.

[29] When the one standing outside wanted to lift the box, he lifted his mask to his forehead. It was then she saw his face. Naina was standing next to the cupboard where they put their personal bags. She was 1 metre away from him. It appears each saw the other standing there. She said "We both freaked out. Him and me. 3-4 minutes it took. He wanted me to jump over the partition. The lights were bright. They were all still on. His mask was on the top of his head. I would never forget his face."

[30] Naina’s observation lasted also for a short time. Her timings varied from minutes to seconds. It was more likely to have been seconds than minutes. Not everyone is very good at estimating time after encountering a frightening situation. Everything happened very quickly of that we can be certain. Naina admitted she was shocked and frightened by what happened.

[31] Naina admitted also that her statement to the police had not been accurate when she had stated that "all of us ran out to the groceries section." She said in fact she had to wait for each of the girls to get over the partition before she herself could have got over. There was apparently a small gap, and she was the last one to jump over, which she did after she saw his face. Nor had she said it was the man who was outside the liquor shop who carried the box away, the one who pulled out his mask.

[32] You should consider carefully those variations in what the witness said to the police in her statement and in court. Was this a serious and material variance or inconsistency meaning that you could not accept as accurate what the witness has said in her evidence on identification? Or was it an honest attempt at clarification of a detail in the account of what had happened? You should scrutinize the evidence carefully before you accept it.

[33] The Accused in his defence case had the statements of two witnesses read to you, and one witness was called who had been in the Liquor Department at the time. All of those witnesses referred to the robbers being masked. None of them referred to seeing one of them having his mask lifted. Those witnesses were Alanieta Adi who had been at till Register No.2, Sireli Tamani a packer, and Sachin Deo, the liquor boy who was called to give evidence. Sachin Deo had gone into a corner and sat down when the robbers came to get the contents of the safe. He could not see much. But he thought they were all masked and he did not see one of them standing by the counter. He said he was frightened at the time, and was trying to hide himself. He could not see over the counter. You will have to consider this evidence. Does it undermine any confidence you have in the identification and the accounts given by Milika and Naina? Was it that Sachin could not see from where he was or was too frightened, or did he see and there was no-one on the outside as was stated by the two identifying witnesses?

[34] Three days after the robbery both identifying witnesses were shown a collection of photographs. At that stage in the investigation 4th May 2004 the police had no idea who had been involved in this robbery. It is a fair procedure to show a selection of photographs to see if a witness can assist the police. However, there must be no suggesting or prodding. Cpl Seniloli said he saw the witnesses separately, and each picked out the Accused from the selection of photographs. There had been 7 photographs in all.

[35] I must warn you that once an identification has been made in this way, an identification parade will be of less value for the witness has already settled upon a person from the photographs. There will always be a danger that the identifying witness is identifying on the parade the man already picked out from the photographs, and not the man at the crime scene. That is not to say that both identifications are incorrect. But it is something to bear in mind concerning the value and independence of the evidence concerning the parade.

[36] Inspector Elipi Vocea conducted the identification parade. There were 10 persons on the parade including the Accused. It was held on 11th May 2004, 10 days after the robbery. At this early stage, you might expect events and circumstances to remain clear in a witness’s mind. Milika went straight up to the Accused and identified him. Naina took more time. According to the Inspector she was shy to point out the Accused but did so a little later. The Inspector received no complaints from the Accused about the conduct of the parade.

[37] The store manager brought the two witnesses in his vehicle to the police station. The witnesses worked in the same store then. They were not kept in a different room from each other as they should have been. Both witnesses denied colluding insofar as their identification was concerned. They went on the parade separately; neither could see whom the other had identified.

[38] Milika told you how she had not hesitated in making her identification. She saw him when she reached the bottom step. She said from the day of the robbery to the day of the identification it had remained on her mind.

[39] Naina had only said in her statement to the police that the man with the mask pulled up was about 30-40 years old. In her evidence she expanded that to include medium build, medium height, fair complexion. The police officer who took that statement may not have done a very thorough job. But there was a lack of significant descriptive characteristics given in the statement. You can take that into account in evaluating Naina’s evidence.

[40] You will have with you when you retire the exhibits. You will see the Accused has categorically denied his involvement in his caution interview and in his charge statement. He said he was at home at the material time, and that he did not go out later in the evening.

[41] He elected to remain silent. This is one of the rights of Accused persons. No adverse inference can be drawn from the exercise of that right. What he may want to say is to some extent covered in his caution interview. He had given the police 3 names of persons who could support his alibi.

[42] The police took a statement from his sister, who gave evidence before you. She could not be certain whether he was at home or not. He may have been in his room. She was in her room packing to go to Ratu Mara’s funeral, or perhaps the burial, at Lakemba the next day, Sunday. She could not recall seeing him.

[43] The police do not appear to have taken statements from the Accused’s nephew and son, the other two. Statements should have been taken out of fairness and in order to complete their investigations. It is after all the burden of the prosecution not only to prove its case but also to disprove any defences and that includes any alibis.

[44] The Accused called his son Maxie Fine to give evidence. The Accused had said in his interview that his son had accompanied his sister Ana to the funeral proceedings in the morning. Maxie made no mention of this. He said police took a statement later from Sikeli and his aunt Ana. He said they were cleaning the compound that day at home.

[45] In the evening, Maxie said his father was reading the bible in his room and later between 7-8 pm they were watching movies together in the main room. He was not sure if it were a Friday rather than a Saturday.

[46] The other witness you will have to consider on the question of alibi is Manasa Waqa. He was the first witness in the case for the State. He was working at the King’s Hotel as a receptionist and also dealt with accommodation. He said he saw the Accused there on 1st May 2004. He had been to Scandals Nightclub and wanted a room. This was at about 11 pm. He did not know the Accused’s name. He learnt his name later from the police.

[47] Manasa said he had seen the Accused’s face before. Later in his evidence he said when he saw the Accused that night that was the first time he had seen him. There was no documentary support for the occupancy by the Accused of a room that night. Further on he said he had seen the Accused more than 3 times before in town. He answered the Accused in cross-examination that he had seen him at the wharf. There were several uncertainties in Manasa’s evidence and it would be unsafe to rely on it.

[48] When assessing the identification evidence, you should bear in mind that the Accused’s absence from the witness box cannot provide evidence positively of anything. If you reject the alibi evidence provided by the son Maxie remember that alibi witnesses can make genuine mistakes about dates and occasions. It is only if you are satisfied that the sole reason for fabrication was to deceive you, and for no other reason, can you regard his evidence as supporting the two identifying witnesses. The falseness of an alibi does not necessarily prove the correctness of an identification. If you accept the alibi evidence or have a reasonable doubt as to whether it might be true, you should acquit the Accused.

Please now retire and consider your opinions.

A.H.C.T. GATES
JUDGE

Solicitors for the State: Office of the Director of Public Prosecutions, Suva
The Accused in Person