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State v Rokonabete [2008] FJHC 212; HAC 118.2007 (10 September 2008)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 118 OF 2007

BETWEEN:

THE STATE

AND:

SAKIUSA ROKONABETE
AKUILA DROMUDOLE
ALIFERETI TOKONA
GUSTON FREDRICK KEAN

Counsel: Ms. H. Tabete for the State
All 4 Accused in Person

Date of Summing Up: Wednesday, 10th September, 2008

SUMMING UP

Madam Assessor and Gentlemen Assessors

[1] It is now 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. You must accept whatever I say on the law. On the facts of this case, however, which evidence to accept and which evidence you think is reliable, these are matters for you to decide for yourselves. In other words, you are the masters of fact. If I express any opinion on the facts, or if I appear to do so, you may disregard my opinion and form your own.

[2] In the course of this hearing, counsel for the State and all four accused persons have made submissions to you about the facts of this case. Of course that was their right. But it is a matter for you to decide which version of the facts to accept, or reject.

[3] You will not be asked to give reasons for your opinions, and your opinions need not be unanimous although it would be desirable if you could agree on them. Your opinions are not binding on me, but they will carry great weight with me when I deliver my judgment.

[4] On the question of proof, I must direct you as a matter of law that the onus or burden of proof lies on the prosecution to prove the case against each accused person. This burden remains throughout the trial upon the prosecution and never shifts. There is no obligation on the accused to prove their innocence. Under our system of criminal justice an accused person is presumed to be innocent until he or she is proved guilty.

[5] The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused persons committed the offence charged, then it is your duty to express opinions that they are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express opinions that they are guilty.

[6] Your decisions must be based only on the evidence which you have heard in this court and upon nothing else. Your duty is to apply the law to the facts adduced in evidence in the course of this trial.

The Law

[7] All four accused persons are charged with one count of robbery with violence. The State alleges that on the 7th day of July 2007 the 4 accused persons robbed the MH Superfresh Supermarket, Tamavua of $21583.73 cash and immediately before such robbery threatened to use personal violence on the cashiers and customers at the MH Superfresh Supermarket.

[8] You must consider the evidence against and for each accused person separately. You must not assume that guilt of one accused person means guilt of others.

[9] In order to prove the offence of robbery, the prosecution must lead evidence which satisfies you beyond reasonable doubt of several elements. Firstly, that the accused persons stole cash or property. Stealing is the taking of something without the consent of the owner with the intention of permanently depriving the owner of the goods.

[10] The offence of robbery also has an element of force or violence. It is the stealing of something by an act of force. The force can be either implied from the carrying of weapons, or from the number of people involved in the incident. So when a group of people enter a shop for instance, to take money without the owner’s consent with no intention of returning it, then the offence of robbery is committed.

[11] Because no eye-witness saw any of the accused at the scene of the robbery, the State relies substantially on their interviews to the police.

[12] The State relies on the contents of the interviews to prove to you what occurred on the 7th of July 2007. If you accept the statements as being reliable, then as a matter of law I must direct you that what one accused person says to the police about the offence is only evidence against him. If he implicates his co-accused, that is not evidence against the co-accused. This is because a suspect in a tight corner may try to shift the blame onto someone else, and exonerate himself. So the interviews are only evidence against the makers.

[13] You should take into account all the circumstances in which the statements were made in assessing its value. The State says each accused person has made some sort of confession to the police. You can convict a person on his/her confession alone. It has been said that people don’t admit committing an offence unless it is true. Of course people are known to make false confessions too. Before you can act on the confessions of each accused person you have to be satisfied beyond a reasonable doubt of two things:

(1) Firstly, that the accused did make the confession and

(2) Secondly, that the confession is true.

[14] In this case all four accused persons say that the confessions were not made by them but were fabricated by the police after assaulting them and subjecting them to inhumane treatment in the cell after their arrest. They say they were not given meals, not allowed to use toilet to relief themselves, and not provided with mattress and blankets in the cell.

[15] You have heard from the police officers that there were no threats or assaults or any intimidation of any kind by anyone on the accused persons and all their statements were freely and voluntarily given and that they correctly recorded what each accused said. You also heard from each accused as to the circumstances of obtaining of the respective confessions.

[16] It is for you to assess its weight and value. Remember that police officers are trained witnesses who are used to giving evidence. I do not say this because I express any opinion about their credibility, but where a confession is the sole evidence against an accused such direction is usually given.

[17] Finally I must direct you on joint offenders. 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.

[18] 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.

[19] 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. Let’s go and burgle it". They all agree. One drives the group to the house 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 going to the compound and one lifts the burglar 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.

[20] In this case the prosecution alleges that this was a joint criminal enterprise involving a group of men, which included the four accused persons. You are not to be concerned about the others involved. Do not speculate what has happened to others or draw any adverse inference against the accused because others are not in the dock.

[21] These are my directions on the law.

The Prosecution Case

[22] The issue in respect of the charge is not whether there was a robbery of the MH Superfresh at Tamavua on the 7th of July 2007. In fact the accused persons do not dispute the robbery. What they dispute is that each of them was involved in it.

[23] You heard evidence from the employees and customers of MH Superfresh about the incident at the supermarket at around 5.00pm on 7 July 2007. Asish Prasad, Store Manager at MH Superfresh described how a group of masked men arrived with beer bottles and pinch bar, and started throwing bottles around the cashier area. The men were shouting and threatening the customers. The men approached the cashiers and took off with cash register tills containing cash in the amount of about $21,000.00. Niraj Prasad acting Manager of MH later identified the tills (P1) at Samabula Police Station, which were taken from the supermarket on the day of the robbery.

[24] You heard the evidence of the cashiers Shivani Naidu and Reshma Devi and the cleaner Salaseini Radisavu about how the group of men entered the MH Superfresh and took off with the cash tills. You heard from the customers Vanessa Chang and Sanjay Achari about how the group of men took properties from them when they entered the MH Superfresh armed with bottles and knife.

[25] PC Leone took the photos of the crime scene and the vehicle allegedly used in the robbery. The photos are (P2). Det. Julian examined a brown mini van allegedly used in the robbery. The van was abandoned at Salim St, Nakasi. He found a knife (P3) underneath the driver’s seat. He also found a sack (P4) and bottles inside the van.

[26] If you accept the evidence of these witnesses then you should have little difficulty in finding that the offence of robbery as I have explained it to you has been proved.

[27] The issue is whether or not it is proved that each accused person was one of those in the group of men who participated in the robbery.

[28] The 1st Accused was arrested by PC Amani on 24 July 2007 at 10.00am and taken to the Samabula Police Station. On the same day DC Joape interviewed the 1st Accused in Fijian language (P8(A)) and translated in English (P8(B)). In his interview the 1st Accused said he participated in the planning of the robbery in a drinking party. He then in the company of others went to the MH Superfresh in a brown mini van. He ran out and stood at the main door of the supermarket. He was holding a knife. After the robbery the 1st Accused in the company of others went to Kalabu. The loot was shared and the 1st Accused received $1,000.00 as his share.

[29] On 26 July 2007 the 1st Accused was charged by D/Sgt. Epeli. In his charge statement (P10A&B) the 1st Accused admitted committing the offence. He said he was just following his friends.

[30] The 2nd Accused was arrested by D/Sgt Rarasea on 26 July 2007. He was interviewed on the same day by DC Matai and witnessed by D/Cpl. Viliame. The record of interview is (P6). The 2nd Accused in his interview admitted being involved in the MH Superfresh robbery. He described in detail how the robbery was carried out and how he brought one till out from the supermarket. He received $1,050.00 as his share from the loot. When the 2nd Accused was charged (P7) he admitted robbing the MH Superfresh Tamavua and he also said he assisted the police in the recovery of the cash register tills.

[31] The 3rd Accused was also arrested by D/Sgt Rarasea but on 5 August 2007. The following day (6 August 2007) he was interviewed by DC Samuela Vakaloloma. At first the 3rd Accused in his interview (P11) said he will give his answer in court. Later in his interview the 3rd Accused admitted taking part in the MH Superfresh Tamavua robbery. When taken for reconstruction the 3rd Accused pointed to the MH Superfresh and said the getaway van was parked at the exit door of the supermarket. After the robbery the van drove down the Mead road. He got out at Pritam Singh Road, Makoi. His share was later brought to him.

[32] The 3rd Accused was medically examined on 14 August 2007 by Dr. Aiyaz Salim in the remand center. Dr. Salim found abrasions on 3rd Accused’s back, which were similar to scratch marks.

[33] The 4th Accused was arrested by DC Tukana on 5 August 2007. He was brought to the Samabula Police Station and locked up in the cell. The following morning (6 August 2007), the 4th Accused was interviewed by DC Joape and witnessed by DC Matai. In his interview (P9) the 4th Accused gave a detail account of his involvement in the robbery. He said he joined the plan when it was being made. When he reached the supermarket he got off the van and took part in taking two tills from the cashiers.

[34] In his charge statement (P5) recorded by DC Clint, the 4th Accused said he only took part in bringing two money tills.

[35] Dr. Salim also examined the 4th Accused on 14 August 2007 but due to the unavailability of the 4th Accused’s medical folder, he was not able to state his findings.

[36] Major Koombo, a Medical Orderly said the 4th Accused’s folder has been misplaced but according to the register kept in the remand centre, the 4th Accused was seen by a medical officer and the diagnosis was no swelling and no specific area of pain. In cross examination Major Koombo admitted he is not a medical doctor and that he did not record the entry in the register. What weight you give to the medical evidence is entirely a matter for you.

[37] The caution interviews and the charge statements before you are not original but photocopies. Cpl. Ana Vuniwaqa said she made the photocopies from the originals. The originals were given to the Investigation Officer Samu who is on overseas mission. Cpl. Ana searched for the originals but could not locate them. It is for you to decide having heard the evidence of Cpl. Ana and of each accused how much reliance you can place and what weight you can give to the photocopy documents.

[38] That is the evidence against each accused as led by the prosecution. At the end of the prosecution case you heard me give each accused several options. They could have remained silent, they could have made unsworn statements, or they could have given sworn evidence from the witness box. They had these options because an accused person does not have to prove anything. The burden of proving their guilt rests on the prosecution and never shifts.

The Defence Case

[39] Each accused person chose to give sworn evidence and to subject himself to cross-examination. You must give each accused person’s evidence careful consideration. The accused persons are not represented and they should not be disadvantage by this. I have an obligation to identify the essential features of their defence and explain this to you.

[40] All four accused persons defence is one of alibi. Each accused says that he was not at the scene of the crime when it was committed. As the prosecution has to prove guilt so that you are sure of it, the accused does not have to prove he was elsewhere at the time. On the contrary, the prosecution must disprove the alibi. Even if you conclude the alibi was false, that does not by itself entitle you to convict the accused. It is a matter which you may take into account, but you should bear in mind that an alibi is sometimes invented to bolster a genuine defence.

The 1st Accused (Sakiusa Rokonabete)

[41] The 1st Accused said that at the time of the robbery he was at his friend Gabriel’s house in Nadera and was not involved in it at all. Gabriel Waqa gave evidence that the 1st Accused was at his house watching DVD with him at the time of robbery. Gabriel under cross examination agreed that presently he is in the same remand centre as the 1st Accused but denied concocting the alibi for the 1st Accused.

[42] The 1st Accused disputes his caution statements (contained in P8 and P10). He said the police officers assaulted him and fabricated the statements. He said the signatures are not his.

[43] The 1st Accused called his mother Mereani Kanadroka to give evidence. Mereani said she visited the 1st Accused at the Samabula Police Station. She said the 1st Accused was very weak but he did not complain of any injuries to her. Mereani said she signed P10A (Charge) and the 1st Accused signed as well in her presence. Mereani did not notice any injuries on the 1st Accused’s face. Mereani said she did not know the cause of the 1st Accused’s weakness.

The 2nd Accused (Akuila Dromudole)

[44] The 2nd Accused said he was arrested when he was on his way to school. When he refused to co-operate with the police officers they assaulted and threatened him. He was locked up in Samabula Police cell with inhumane conditions. He was further assaulted at the Samabula Police Station. He said at the time of the robbery he was drunk and asleep at home and was not involved in it at all.

[45] The 2nd Accused said the police officers fabricated the statements contained in (P6) and (P7) after assaulting him.

[46] The 2nd Accused called Apisai Sova to give evidence. Apisai said the 2nd Accused came to his house around 2.00pm for a while and then returned. Later in the evening at 7.00pm Apisai went to the 2nd Accused’s house and was told he was asleep. The 2nd Accused’s sister Makitalena Vuli gave evidence confirming the alibi of the 2nd Accused. She said the 2nd Accused was home from 2.30pm till 8.00pm when she went to bed.

[47] Makitalena was also 1st Accused’s witness. She is his cousin. She saw the 1st Accused at Samabula Police Station with a bruise on his eyelid. She said she did not complain to anyone about this.

The 3rd Accused (Alifereti Tokona)

[48] The 3rd Accused said at the time of the robbery he was at home and was not involved in it. The 3rd Accused said he was handcuffed and assaulted by police officers at the Samabula Police Station with wooden baton. He saw the 4th Accused being beaten by the police officers and forced to implicate him. Under cross examination the 3rd Accused said he signed the (P11) but the parts implicating him were fabricated by the police.

[49] The 3rd Accused called Josefa Soko to confirm his alibi. Josefa Soko is the 3rd Accused’s cousin and they lived together in the same house. Josefa said the 3rd Accused was home asleep on 7 July 2007 from 3.00pm to 8.00pm.

The 4th Accused (Guston Kean)

[50] The 4th Accused said he was assaulted by police officers upon arrest and at the station during his caution interview. He was not taken for reconstruction but to Suva cemetery where he was further assaulted. He said he was subjected to inhumane conditions when he was placed in the cell before the interview. He said the confession is not true. It was not made by him. The police fabricated the statements in (P9) and (P5) after assaulting him. It is not his signature on (P9) and (P5). He saw the police assaulting the 3rd Accused at the Samabula Station and they forced him to implicate him.

[51] The 4th Accused said at the time of the robbery he was at his brother’s house in Lautoka attending his nephew’s birthday party in which Esala Tabaloa and Nacanieli Bakata were present as well. He met these two men in the party and had not known them from before. Esala and Nacanieli gave evidence saying they were in the party and saw the 4th Accused there. Under cross examination, Esala said presently he is in prison for robbery with violence and Nacanieli said he is in prison for escaping. You may use the previous conviction of a witness to assess the witness’s credibility. In this case you may think robbery is a dishonest offence and therefore Esala’s conviction is relevant his credibility. On the other hand, you may think escaping is an offence not relevant to Nacanieli’s credibility. These are matters for you. However, you must not draw any adverse inference against the 4th Accused whatsoever from the fact that his witnesses have criminal record.

[52] You also heard the 1st, 3rd, 4th accused persons being in remand center at Suva Prison after they were charged in this case. I direct you that you are not to draw any adverse inferences whatsoever against the accused persons from the fact that they were in remand center after being charged in this case. You are to judge from what you saw and heard in court and nothing else.

Summary

[53] The issue in respect of the charge is not whether there was a robbery of the MH Superfresh at Tamavua on the 7th of July 2007. In fact the accused persons do not dispute the robbery. What they dispute is that each of them was involved in it.

[54] The prosecution case is that each accused actually participated in the robbery at MH Superfresh, Tamavua. The prosecution says that you should accept the contents of the interviews of all 4 accused persons as representing an accurate account of what happened. The prosecution says that each accused has confessed to the robbery and that the confessions are true. The prosecution says that you may convict each of the accused on the basis of the confessions they made to the police.

[55] All 4 accused persons dispute the contents of their statements to the police. Each accused says the confession was not made by them but fabricated by the police after assaulting them. The 1st Accused says he was at Gabriel Waqa’s home at the time of the robbery and has nothing to do with it. The 2nd Accused says he was at his home at the time of the robbery and has nothing to do with it. The 3rd Accused says he was at his cousin’s home at the time of the robbery. The 4th Accused says he was in Lautoka attending his nephew’s birthday party at the time of the robbery.

[56] That is the summary of what the accused person says.

[57] Madam and Gentlemen Assessors you are to review the totality of the evidence. As previously stated this case depends on the confession of each accused person. You may find the accused persons guilty if you are satisfied of their guilt beyond reasonable doubt. If you have any reasonable doubt you must find them not guilty. Remember to consider the evidence against each accused separately. Your opinion is either guilty or not guilty. You may take any exhibits with you. You may retire now and advise my clerk when you are ready.

Daniel Goundar
JUDGE

At Suva
Wednesday 10th September, 2008

Solicitors:
Office of the Director of Public Prosecutions, Suva for the State
All 4 Accused in Person