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State v Harry [2010] FJHC 74; HAC039.2008S (11 February 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 039 OF 2008S

STATE

V

JOHN HARRY

Counsels: Mr. S. Vodokisolomone for the State
Accused in Person
Hearing: 8th February and 9th February, 2010
Summing Up: 11th February, 2010

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 the 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 as 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 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.
   

100. THE INFORMATION
     

7. The accused, John Harry, was charged with "robbery with violence", contrary to section 293(1)(a) of the Penal Code, chapter 17. It was alleged that, on the 18th January 2008, at Kinoya in the Central Division, he being together with others, robbed Anup Prasad of a kenwood radio, valued at $500; a nokia mobile phone valued at $400, and $300 cash.

D. THE MAIN ISSUE

8. The following issue arises for determination:

(i) Did the accused, on 18th January 2008, at Kinoya in the Central division, being with others, rob Anup Prasad of a kenwood radio (valued at $500), a nokia mobile phone (valued at $400), and $300 cash?

E. THE OFFENCE AND ITS ELEMENT

9. Section 293(1)(a) of the Penal code, chapter 17 reads as follows, "...Any person who ... being together with one other person or more, robs ... any person ... is guilty of a felony ..."

10. For the accused to be found guilty of the above offence, the prosecution must prove beyond reasonable doubt, the following elements of the offence:

(i) The accused

(ii) being together with one or more persons

(iii) robs

(iv) the complainant

(v) of his properties

"Robs" means "to steal". Stealing is the act of taking away someone’s property or properties without his permission, and with an intention to permanently deprive him of the ownership of that property or properties.

11. You will notice in the information, that the prosecution, in their particulars of offence, uses the phrase, "... JOHN HARRY ... being together with others robbed Anup Prasad ..." The prosecution is alleging that the accused committed the above offence with the aid of others. The others were not charged by the prosecution, for whatever reason or reasons. Nevertheless, as a matter of law, I must direct you that when two or more people form a common intention to commit a crime, and in committing the crime, each of them performed different roles, they are all deemed, in law, to have committed the crime, that is, the offence. It matters not, whether or not one committed a minor or major role, they are each deemed to have committed the offence.

F. THE PROSECUTION’S CASE

12. The prosecution’s case was simple. On 18th January 2008, at about 8pm, the complainant Anup Prasad, was driving a Tebara bus. He stopped at the Kinoya bus stop to drop two passengers. As the two passengers left the bus, three youths came into the bus armed with cane knives. They assaulted the complainant’s head with the blunt side of a cane knife, and stole his kenwood radio, nokia mobile phone, and money box containing $300 cash. The youths later fled the bus, and ran towards Newtown Road, towards Khalsa Road.

13. The matter was later reported to the Valelevu Police Station. An investigation was carried out. The accused was later arrested as a suspect on 30th January 2008. He was caution interviewed by Detective Constable Pita Qiolevu, on 31st January 2008. During the interview, the accused admitted from Question 6 to Question 42 that, he was part of the group of youths that robbed Anup Prasad, on 18th January 2008. Mr. Qiolevu said, the accused answered the above questions voluntarily, that is, out of his own free will. Mr. Qiolevu said, the accused was not assaulted, threatened or made any promise, while being interviewed, and while in police custody.

14. As a result of the above, the accused was charged with "robbery with violence". That was the case for the prosecution.

G. THE ACCUSED’S CASE

15. The accused gave an unsworn statement in Court, as part of his defence. He denied the allegation against him. He admitted he was arrested by police, in this matter. He admitted he was caution interviewed by police, on this case. However, he appeared to say that, the police assaulted him during his arrest, and during his caution interview. He appeared to say that, whatever he told the police, were forced out of him, and as a result, he gave the same involuntarily and not out of his own free will. He said, he suffered injuries to his nose and face. He said, when he sought medical attention, the police refused him the same. He said, he was produced in court after spending two days with the police. That was the case for the defence.

H. ANALYSIS OF THE EVIDENCE

16. After listening to the prosecution and defence witnesses during the trial, it appeared that the parties do not dispute the following material facts:

(i) that the complainant, Anup Prasad, was driving a Tebara bus on 18th January 2008, at about 8pm, and he stopped at Kinoya bus stop, to drop two passengers;

(ii) after dropping the two passengers at the Kinoya bus stop, three youths entered the bus carrying cane knives, and threatened the complainant with the same;

(iii) one of the youths assaulted the complainant’s head with the blunt side of the cane knife, and they stole his kenwood radio, nokia mobile phone, and the money box containing $300 cash;

(iv) the youths then fled the bus towards Newtown Road and Khalsa Road;

(v) the complainant later reported the matter to the Valelevu Police Station, and a police investigation was carried out;

(vi) on receiving information, the police went to Balabala Crescent Newtown on 30th January 2008 to arrest the accused, who was treated as a suspect;

(vii) on 31st January 2008, the accused was caution interviewed by Detective Constable Pita Qiolevu, at Valelevu Police Station, wherein 47 questions were put to him.

17. Because the above material facts are not disputed by the parties, as assessors and judges of fact, you can take it, as a matter of law that, the prosecution has proven the above material facts beyond reasonable doubt. They were not disputed facts. The only issue for you to resolve in this case is, whether or not, the accused is one of the youths that attacked the complainant on 18th January 2008, at Kinoya bus stop, and fled with his radio, mobile phone and $300 cash.

18. The difficulty for the prosecution in this case was that, no prosecution witness said he saw the accused with the youths attacking the complainant, at the material time, and stealing his radio, mobile phone and $300 cash. There was no eye witness to link the accused to the crime.

19. To resolve this difficulty, the prosecution relies on the contents of the accused’s police caution interview statements, obtained by Detective Pita Qiolevu, on 31st January 2008, at Valelevu Police Station. The statements were tendered as Prosecution Exhibit No.1. In the caution interview statements, the accused made a confession to the police. He admitted that, he was in the complainant’s bus, at the material time. He said, when the three with the cane knives entered the bus, they told him to remain inside the bus. The three were his friends. He joined the three, stole the money box containing $300, and fled with the group towards Newtown Road. These admissions are contained in his answers to Questions No. 6 to 17 of Prosecution Exhibit No.1. As judges of fact, you are at liberty to look at the above questions in the accused’s caution interview statements, during your deliberation.

20. The accused, in his unsworn statement in court, denied the allegation against him. He said, his confession in his police caution interview statements, were forced out of him by the police. He said, they assaulted him. He said, he was bleeding in the nose and in the mouth. He said, his statements to the police were involuntarily given, that is, it was given without his own free will. He is asking you, as assessors and judges of fact, to reject his confession because they were not given voluntarily, and as a result, to find him not guilty as charged.

21. The police officers involved in this case have given evidence. You have heard them and observed their demeanours in the courtroom. Each of them said, they did not assault, threaten or made any promise to the accused, during his arrest. Detective Constable Pita Qiolevu said he did not assault, threaten or made promises to the accused when he caution interviewed him on 31st January 2008, at Valelevu Police Station. He said, the accused gave his statements voluntarily, and out of his own free will. All the police witnesses were cross-examined by the accused. He called two female witnesses in his defence, that is, Akanisi Bone and Ana Maria. Both said they saw police beating up the accused on 18th January 2008 – the day the offence was committed. The police said, they arrested the accused on 30th January 2008 – 12 days after the date of the offence.

22. There are two sides to the coin in this case. From the prosecution’s point of view, the accused confessed to them, on 31st January 2008, at Valelevu Police Station that, he was part of the group that attacked Anup Prasad on 18th January 2008, at Kinoya bus stop, and stole his radio, mobile phone and $300 cash. From the accused’s point of view, he was not part of the group that, attacked and robbed the complainant, at the material time. You have heard the prosecution and defence witnesses give their evidence in court. You have observed their demeanours in the courtroom – that is, the way they gave evidence and answered questions – were they forthright or evasive? how did they dress? what was their general behavior in the courtroom like? Given your life experiences, my directions on the law and facts, and using your common sense, you should be able to decide which evidence are reliable and therefore to accept, and which evidence are unreliable and therefore to reject.

I. SUMMARY

23. In summary, the resolution of this case, in reality, depends on whether or not you, as assessors and judges of fact, accept the accused’s confession to the police, on 31st January 2008, at Valelevu Police Station. A confession is strong evidence against an accused person, provided the trier of fact, accepts that the same was given voluntarily, that is, out of the accused’s own free will. If the confession was not given voluntarily, that is, not out of the accused’s own free will, then the confession should be rejected.

24. If you are satisfied beyond reasonable doubt that the accused gave his confession to the police voluntarily on 31st January 2008, that is, out of his own free will, and you are sure of his guilt, you should find the accused guilty as charged. If you are not satisfied beyond reasonable doubt that the accused gave his confession to the police voluntarily on 31st January 2008, that is, not out of his own free will, and you are not sure of his guilt, you should find the accused not guilty as charged.

25. Your possible opinions are:

(i) Guilty or Not Guilty

You may retire to deliberate. The clerks will advise me when you have reached your verdict, and we will reconvene, to receive them.

Salesi Temo
Acting Judge

AT Suva
11th February 2010