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State v Vasuca - Summing Up [2011] FJHC 13; HAC041.2009 (25 January 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 041 OF 2009

STATE

vs

VILITATI VASUCA

Mr. L. Sovau for the State
Mr. T. Terere (L.A.C) for the Accused

SUMMING UP

[1] Madam and Gentlemen assessors; we have now come to the stage in the trial where it is my duty to sum up the evidence to you; and to direct you on the law. You will then be required to deliberate together and each of you must give a separate opinion whether the accused is guilty or not guilty of the charge.

[2] Our functions have been and remain quite different throughout this trial. The law has been my area of responsibility and I must now give you directions as to the law which applies in this case. When I do so, you must accept those directions and follow them.

[3] The facts of this case are your responsibility. You will wish to take into account the arguments in the speeches you have heard this morning but you are not bound to accept them. Equally, if in the course of my review of the evidence I appear to express any views concerning facts, or emphasise a particular aspect of the evidence, do not adopt those views unless you agree with them and if I do not mention something which you think is important you should have regard to it and give it such weight as you think fit. When it comes to the facts of this case it is your judgment alone that counts.

[4] In arriving at your conclusions you must consider only the evidence you heard in this case. You must disregard anything you heard from friends, relatives or through any media outlet about this case. You must ignore any suggestions or advice made to you by anyone, no matter how well meaning it may be.

[5] You must decide this case only on the evidence which has been placed before you that includes witnesses and exhibits which have been produced. There will be no more evidence. You are entitled to draw inferences; that is to come to common sense conclusions based on the evidence which you accept, but you must not speculate about what evidence there may have been or allow yourselves to be drawn into speculation.

[6] In assessing the evidence, you are at liberty to accept the whole of a witness' evidence or accept part of it and reject the other part or reject the whole. In deciding on the credibility of any witness you should take into account not only what you heard but what you saw. You must take into account the manner in which the witness gave evidence. Was he or she evasive? How did he or she stand up to cross examination? You are to ask yourselves was the witness honest and reliable?

[7] As assessors you were chosen from the community. You, individually and collectively, represent a pool of common sense and experience of human affairs in our community which qualifies you to be judges of the facts in the trial. You are expected and indeed required to use that common sense and experience in your deliberations and in deciding upon any proposition put to you and in evaluating the evidence in this trial. You are to ask yourselves whether it accords with common sense or is it contrary to common sense and experience.

[8] I ask you to please put aside any feelings of prejudice you may have against certain people and to put aside any sympathy you might feel for anyone connected with the trial. This court room has no place for sympathy or prejudices – you must arrive at your opinions calmly and dispassionately.

Onus and burden of proof

[9] In this case, as in every case in Fiji, the prosecution must prove that the defendant is guilty. He does not have to prove his innocence. In a criminal trial the burden of proving the defendant's guilt is on the prosecution.

[10] How does the prosecution succeed in proving the defendant's guilt? The answer is – by making you sure of it. Nothing less will do. If after considering all the evidence you are sure that the defendant is guilty you must return a verdict of "Guilty". If you are not sure, your verdict must be "Not Guilty".

[11] You have a copy of the charges that the accused faces. The formal name for this document is an information. As you know, the accused has pleaded not guilty to both of these charges and it is for you to tell me whether you think he is guilty or not guilty.

[12] You must consider the case against and for the accused separately on each of the two counts. Just because you think he might have robbed Mrs. Kumar, does not mean automatically that has robbed Mr Helmut Kumar.

[13] Robbery with violence is theft accompanied by violence or threats of violence to any person or property, where the violence or the threat is used to extort the property stolen. The prosecution therefore must prove beyond reasonable doubt that the accused;

1. committed a theft
   

2. at the time he used violence or threats of violence to effect the theft.

[14] You have heard all the evidence only yesterday and I am sure that it is still fresh in your minds, so I am not going to bore you by repeating it. You know that on the 7th February 2009, the Kumar family in Saweni were robbed. The robbers were armed with knives and they stole jewelleries, cash, a mobile phone and a laptop. I am sure that you will have no difficulty then in finding that there was theft at the house. It is for you to find then that at the time of this theft that there was violence used or the threat of violence at the time. We have heard that there were two knives, a cane knife and a small knife and we have heard that at least one of the robbers, if not two, were stomping on the legs of Mr Kumar while holding knives to his stomach. It is a matter for you, but you may find that this is enough to prove to you so that you are sure that violence was used.

[15] I must add a little here about joint enterprise. In our law, to be guilty of robbery with violence you don't have to be the person actually threatening the violence or doing the stealing. As long as you are one of a group that is working to a plan to rob, then you are guilty of the robbery no matter what role you play in the incident. Just acting as a lookout while the others rob is enough to make you equally guilty. I say this because if you are to accept the confession of this accused (and I will talk more about that soon), he says that he just stood at the door demanding the jewellery and the money. The others used violence but I tell you, just standing at the door and demanding goods is enough to make him equally guilty, if you accept that evidence.

[16] In this case, there has been produced an interview under caution and an answer to charge which the Police say were conducted with the accused. The prosecution assert that the statements contain confessions by the accused that he was there present and involved in the two robberies and the prosecution further contend that those admissions are true.

[17] The accused's case is that the admissions are untrue (and he shifts from saying that they were fabricated to saying that he made them under duress,) but in any event that they are not true.

[18] In deciding whether you can safely rely on those admissions, you must decide two issues:

(i) Did the accused in fact make the admissions? If you are not sure that he did then you must ignore them. However if you are sure he did, then;

(ii) Are you sure that the admissions are true? In addressing that issue, you are to decide whether they were or may have been made or given as a result of assaults or abuse; and if you think that they were or may have been then you must disregard the confessions entirely. In this case the accused says that he was forced to sign a fabricated confession because he had been so badly treated he had had enough and wanted an end to it all. If you think that is or may be true then you must disregard the admissions.

(iii) If however you are sure that the answers are true then you may rely on them.

[19] You may wish to take into account that the accused's evidence on this matter was rather unsatisfactory in that a lot of it was raised for the first time in his evidence-in-chief; that a lot of it was not put to the prosecution witnesses to comment on and that his evidence in this regard has been shown to be inconsistent with evidence that he gave on a previous occasion.

[20] There you have it Members of the panel. If you think that the answers were voluntary and not given under any form of oppression, you will rely on them and use the answers to determine his guilt or otherwise.

[21] Before I leave you to deliberate, there is one matter that I must address you on. You are not to take into account any references to this accused being a wanted man in the Lautoka Police station. This case is to be judged on the evidence brought before you in this Court and not on some prejudicially bad reputation that somebody says he has. Similarly, you are to disregard one Police Officer's evidence that this accused's name was mentioned in connection with the Saweni crime. Again we are judging this case on the evidence we have heard here and on nothing else.

[22] You will now leave us to deliberate and when you are ready you are to let my clerks know and I will reconvene the Court.

P.K. Madigan
JUDGE
At Lautoka
25 January 2011