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State v Waqa [2009] FJHC 16; HAC087.2008 (27 January 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 087 of 2008

STATE

v.

ISOA WAQA

Hearing: 22nd – 27th January 2009
Summing Up: 27th January 2009

Counsel: Ms H. Tabete for State
Accused in person

SUMMING UP

Madam and Gentlemen Assessors. 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. 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.

Counsel for the prosecution has made submissions to you about how you should find the facts of the case. That is in accordance with her duty as State counsel. However you are not bound by what she said. It is you who are the representations 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.

You will not be asked to give reasons for your opinions, but merely your opinions themselves, and need not be unanimous, although I would prefer that you were unanimous. Your opinions are not binding on me but I will give them the greatest weight when I deliver my judgment.

As a matter of law, the onus or burden of proof rests on the prosecution and it never shifts. There is no obligation on the accused person to prove his innocence. Under our system of criminal justice an accused person is presumed to be innocent until he is proved guilty.

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.

Your decisions 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. Your duty is to find the facts based on the evidence, and to apply the law to those facts.

The Accused is charged with the offence of robbery with violence. It is alleged that on the 29th of April 2008, he with others, robbed Bimla Wati of jewellery to the total value of $450 and used personal violence on her.

The offence of robbery with violence is made up of several elements which the prosecution must prove beyond reasonable doubt. They are that:

1. The Accused
2. Robbed a person
3. With actual violence or the threat of violence.
   

A robbery occurs when a person steals from another using force or the threat of force. Stealing is the taking of property without the consent of the owner, and with the intention of permanently depriving the owner of that property.

In this case it is not in dispute that Bimla Wati was robbed at about 11pm on the 29th of April 2008. Nor is it in dispute that personal violence was used on her to steal the gold chain and earring. Nor is it in dispute that she received a laceration on her left earlobe as a result of the robbery. What is in dispute is that the Accused was involved in the robbery.

Now the evidence is that several men broke into Bimla Wati, and that one of them used force on her to steal the jewellery. She did not identify the Accused as that person. However, if you are satisfied beyond reasonable doubt that the Accused was one of five men who took part in this robbery, then it does not matter that you do not know his exact role. This is because when several people commit an offence together assisting each other and taking different roles in the offence, each of them is guilty of the offence even if you do not know what each did individually. The question for you is whether you are satisfied beyond reasonable doubt that a group of men committed robbery with violence at the house of Bimla Wati on the 29th of April 2008, and that the Accused was one of them either taking part in the robbery or assisting the others knowingly. That is the question for you.

In this case, the evidence against the Accused comes substantially from the evidence of Ruci Uluilakeba who identified him as one of the boys who walked past her house at 11pm carrying an onion bag, and then returning about 10 minutes later with 4 others, climbing out of Bimla Wati’s compound after the sound of broken bottles was heard. She spoke to him and he answered in threatening terms.

When considering her evidence, you must consider all the circumstances of her identification. The fact that she said she knew him since birth, the lighting in the area at the time she saw him, the length of time she saw him, the distance between her and the Accused and her description of his clothes. You may consider her to be honest, but ask yourselves whether her identification was accurate. Sometimes honest witnesses are mistaken even when they identify people they know well. In this case are you satisfied beyond reasonable doubt that this witness correctly saw the Accused at the victim’s house at the time of the robbery?

Finally if you do accept her identification, are you satisfied beyond reasonable doubt that the only reasonable inference you can draw from his presence at the scene, is that the Accused had taken part in the robbery at the house of Bimla Wati?

Because no one identified the Accused inside the house of Bimla Wati, the prosecution is asking you to draw an inference from the evidence of Ruci Uluilakeba that the only reason the Accused was at the compound of Bimla Wati at the time of the robbery, was that he was involved in the robbery.

If you accept the evidence of Ruci Uluilakeba, and accept that the Accused was indeed one of the men who went to Bimla Wati’s house, at 11pm, then climbed over her wall 10 minutes later with 4 other men, then the question for you is this –

Is the only reasonable inference from this evidence, the guilt of the Accused? Is there any other reasonable explanation for his presence and his conduct that is consistent with his innocence?

If you are satisfied beyond reasonable doubt that the accused was at the scene during the robbery and that he was involved in it, then you may find him guilty of the offence. In considering what inferences you can draw from the evidence, you may also consider what he is alleged to have said to Mrs. Uluilakeba as he left the scene – "No one should come near or move, otherwise someone will die" and his evidence in court as well as his statement to the police. You should also consider the evidence of Bimla Wati about the timing of the robbery, the numbers of men she saw, and also the evidence of the police about the way they found the scene, including the broken bottles.

The evidence

The evidence was led last week and this was a short trial. There is no need for me to repeat the evidence.

However the prosecution says that Ruci Uluilakeba saw the Accused, a person she knows very well indeed, walk up the footpath towards Bimla Wati’s house just after 11pm. Shortly after that she heard the sound of broken bottles and she rushed to her bedroom window. 10 minutes later she saw the Accused climb over the wall of the victim’s house and then walk past her house again with 4 other boys. She saw him each time in the flood lights behind her house and a street light in front. She spoke to him and he replied saying "No one should come near or move otherwise someone might die." She said she saw him at a distance of 10 metres and she is absolutely sure that it was him.

You will recall that she was cross-examined on her statement to the police in which she had said that she had seen "a guy" walk past her house on the first citing. In court she said she saw the Accused both times, walking towards Bimla Wati’s house, then away from it.

I must direct you as a matter of law that what a witness says in an out of court statement is not evidence, it is only a tool to test the credibility of a witness. It is used to suggest that a witness has been telling inconsistent stories prior to giving evidence. However it is the sworn evidence on which you can rely because an out of court statement is not on oath. In this case in assessing the credibility and reliability of Mrs. Uluilakeba, you may consider whether she gave an inconsistent statement previously in considering what weight to give to her evidence.

Remember also to consider her evidence of identification carefully. Was it in good light? Did she know the Accused well? Was her view unobstructed? Was she grog-doped as the Accused suggests? Is it reliable?

The police officer attending the scene found broken bottles in the garage and one victim Janet Singh, lying down unconscious with Bimla Wati injured and scared. He took both to the hospital. Under caution the Accused told the police that he had been in Suva city that night but later said he was mistaken about the day and that in fact he had been at home asleep. The doctor examining Bimla Wati found a lacerated wound on her ear lobe consistent with the history she told the doctor about the robbery.

At the end of the prosecution case I explained several options to him. He could have remained silent, given an unsworn statement, or sworn evidence. He had these options because he did not have to prove anything. The burden of proof remains on the prosecution at all times.

He chose to give sworn evidence and to subject himself to cross-examination and you must give his evidence careful consideration. He said he knew nothing about this robbery, that on that day the 29th of April he was at home, only leaving in the afternoon to play touch rugby and that he went to sleep at 9pm. He said his mother and sister were at home at the time. In effect he disputes Ruci Uluilakeba’s evidence and raises an alibi.

He called his mother to give evidence. She said that on the day Jainend’s house was broken into, the Accused was at home all night until about 8am the next day. Under cross-examination she said firstly that she did not see the Accused from 11pm to 8am but believed that he was asleep. Later she said she had been sitting with him throughout the night.

Analysis

The Accused says that on the night in question he was not near Bimla Wati’s house but was at home asleep. He says that Ruci Uluilakeba was mistaken when she identified him and he relies on his sworn evidence, his caution statement to the police and his mother’s evidence.

The prosecution invites you to accept the evidence of Ruci Uluilakeba and draw the only reasonable inference from that evidence that the Accused was one of the robbers at the house of Bimla Wati that night.

There is no dispute that about 11pm on the 29th of April 2008, there was a robbery with violence at the house of Bimla Wati and that jewellery was taken from her with violence, during the robbery. The issues in dispute are:

1. Was the Accused near the scene walking towards Bimla Wati’s house just before 11pm, and was he one of the men jumping over her fence after 11pm? In considering this issue remember what I directed you on, in relation to considering the circumstances of the identification carefully.
   
2. If you accept Ruci Uluilakeba’s identification of him, are the circumstances of his presence at the scene such that the only reasonable inference you can draw from those circumstances, is that the Accused was part and parcel of the robbery?
   

If you are satisfied beyond reasonable doubt that Ruci Uluilakeba’s identification was reliable and accurate, and that the Accused was one of the robbers who robbed Bimla Wati’s house, then you may find him guilty as charged. If you have any reasonable doubt about either issue you should find him not guilty.

Your possible opinions are: Guilty or Not Guilty. You may retire.

Nazhat Shameem
JUDGE

At Suva
27th January 2009