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State v Sinudamanu - Summing Up [2011] FJHC 600; HAC251.2010 (4 August 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 251 OF 2010

BETWEEN:

THE STATE

AND:

TOMASI SINUDAMU

Counsel: Ms. L. Tabuakoro for the State
Accused in Person

Date of Hearing: 1st to 3rd August 2011
Date of Summing Up: 4th August 2011

SUMMING UP

1. Ladies and Gentleman Assessors. We have come to the final stage of this trial. You were listening to all witnesses, State Counsel and Accused person. Now it is my duty to give the summing up to you. In the summing up I will be directing you on matters of law, which you must accept and act upon. Regarding the facts of the case, I do not wish to give an opinion, but if I give so you may accept or reject. You are not bound as in matters of law. In brief you have to accept my direction on law and you can judge independently when it comes to facts of the case. Because you are the judge of facts.
   
2. Both the State Counsel and the Accused person made their submissions. That is their duty. The prosecutor to submit how she proved the case and Accused to say that the case is not proved. You are not bound by their submission. You are the representative of this society in this trial. After assessing all evidence you must decide whether this accused person is guilty or not guilty to offences he is charged.
   
3. After, all these submissions you will be asked to retire for your verdict. Your verdict should be either guilty or not guilty. You will not be asked to give reasons for your decision. Your opinion can be unanimous or divided. It will be preferable if it is unanimous but the decision has to be your own decision. Your opinions are not binding on me but it will be persuasive. I will give them the greatest weight when I deliver my judgment.
   
4. In criminal cases the standard of proof, I must direct you as a matter of law, that the prosecution bears the burden of proof in the case. The burden remains throughout the trial and it never shifts. There is no obligation upon the accused person to prove he is innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proven guilty. This is a golden rule.
   
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 guilt of the accused person before you express an opinion that he is guilty. If you have any reasonable doubt about the guilt of the accused you must express an opinion that he is not guilty. You may only express an opinion that he is guilty; if you are satisfied of that you are sure that he committed the offence alleged.
   
6. 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.
   
7. As I informed you in my opening address, your decision must base exclusively upon the evidence which you have heard in the Court, and upon nothing else. You must absolutely disregard anything you might have heard about this case outside of this court room. It is important that you must decide the fact without prejudice or sympathy to either accused or the State. One of your duties is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.
   
8. As I addressed to you all on the commencement and during the trial that you would have heard from media and others about this case. Whatever you heard are not evidence. What you heard and saw in the Court is the evidence. You are not supposed to consider anything outside of the Court. I request you to consider the admissible evidence before you and to avoid all other matters out of the trial.
   

9. In assessing the evidence, you are at liberty to accept the whole of witnesses
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 evasive? How did he stand up to cross-examination? You are to ask yourselves, was the witness honest and reliable.

10. Now we consider the charge against the Accused Tomasi Sinudamu. The Learned Director of Public Prosecution had preferred two Counts of Aggravated Robbery punishable under section 311 of the Crimes Decree.

11. The Accused person was charged under section 311 (1) (a) of the Crimes Decree No. 44 of 2009 for Aggravated Robbery. Particulars of offence were given as follows:

"Count One

Statement of Offence

AGGRAVATED ROBBERY: Contrary to sections 311(1) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

TOMASI SINUDAMU with others on the 4th day of November, 2010 at Suva in the Central Division robbed Anil Prakash f/n Atma Ram of 2 gold chain valued at $500; 1 Motorola mobile valued at $250; 1 gold ring valued at $300; 2 jacket valued at $80; 1 wallet valued at $20; supermarket takings of $35,000 and cash of $500, all to the total value of $36,650 and immediately before committing the theft, threatened to use force then and there on Anil Prakash.

Count Two

Statement of Offence

AGGRAVATED ROBBERY: Contrary to sections 311 (1) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

TOMASI SINUDAMU with others on the 4th day of November, 2010 at Suva in the Central Division robbed Chandra Kanta of 2 gold rings valued at $500; 1 gold watch valued at $195; 1 gold chain valued at $545 and gold earring valued at $466, all to the total value of $2,285 and immediately before committing the theft, threatened to use then and there on Chandra Kanta."

12. As per the above section the major elements of offence of aggravated robbery can be summarized as follows:

a) Accused

b) stole material things (in this case money, gold jewelleries, phones and jackets)

c) use of violence during or immediately after the Commission of the said robbery.

13. Stealing is taking of something without the consent of the owner, with the intention of permanently depriving the owner of the property.

14. The prosecution relies on the principle of joint enterprise to prove the charges
against the accused. In law, 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.

15. 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.

16. I may give you an example. Five persons plan to rob a bank. One gives the idea and the plan of operation and stays at home. Other four proceeds to the bank. One drive the vehicle and wait near the gate of the bank, 3rd one wait near the gate on the look out, two enters the bank with a weapon and keeps the Manager at gun point and the other person takes the money from the vault. When they run out the one wait near the gate signals the vehicle, when the vehicle comes all escape from the scene of crime. In this example you would have noticed it is only one person who took the money from the vault but under the joint enterprise principle all 5 people can be held responsible.

17. Prosecution called 7 witnesses and marked 7 documents. Once the case for the prosecution is closed the Accused opted to give evidence and gave evidence under oaths.

18. Prosecution called Mr. Anil Prakash. He is one of the victim and eye witness to the incident. He said that on the 3rd November 2010 he closed his shop 'Chaudry Super Value' and came home with Arvind Kumar. Anil and his wife Kanta made sweets for Diwali festival and retired to bed after 12.30 midnight. Arvind also assisted them in making sweets. Anil and his wife slept in their bedroom. Arvind slept at his room.

After sometime Anil had seen his wife went to check someone's movement in the house. Initially they thought it was Anil's aged father. But when she opened the door of the bedroom two strangers tried to enter. Both tried to prevent them by closing the door. But the assailants put a pinch bar in between the gap of the door and got the door opened. When they entered the room they had assaulted the victims and threatened them with death.

19. Initially two assailants entered into the room. Subsequently another one brought Arvind and joined with the other. The assailants had forcibly taken the ring, chain, watch, purse with $500, 2 mobile phones from Anil Prakash. Further they have taken chain, earrings and took jewelleries from his wife Kanta. They searched the house and found $35,000 sales money from the shop which was kept for banking was also taken by the invaders.

20. Arvind Kumar gave evidence. He almost corroborated the above witness on all points. He said that his bracelet and mobile phone were also been forcibly taken by the assailants. It should be noted that there is no charge in this regard.

21. When the assailants entered the house they have forcibly entered the house and used violence against the above witnesses and the wife of the 1st witness. Further all these witnesses were tied up in a cloth during the robbery.

22. Considering the elements of the offence you must satisfied whether the above facts prove the elements.

(a) removing of goods.

In this case the three assailants who had entered the house in the

midnight/very early morning had removed the items such as money $35,000, gold chain, phone, gold ring, wallet as stated in the 1st Count.

Items stated in the 2nd Count should be considered separately. The 1st witness says that these persons who entered had taken jewelleries, phone, earrings from is wife. Ms. Kanta did not give evidence. She is in New Zealand looking after her daughter. But eyewitness her husband Anil Prakash had seen removal of some items from her.

23. As per the evidence of these two eye witnesses the assailants had used violence on all 3 members of the house namely Anil Prakash, his wife Kanta and Arvind Kumar. You have to consider whether that element was proved or not by the prosecution.

24. Considering the entire case you will find the Accused is not challenging the proof any of the elements of the offence. His only challenge is the identity of the assailants. Especially his participation in the offence.

25. To prove the identity and the participation of the Accused the prosecution relies on the confession statement made by the Accused to Police during his cautioned interview.

26. The major task before the assessors is whether the Accused had told the truth in the cautioned interview.

27. State called 4 police witnesses. Jone Makutu, he was the Investigating officer and who recorded the statement under caution. He submits to Court that the Accused voluntarily made the statement, no threat, promise or inducement made to him. He had taken the Accused to scene of crime and produced him to the doctor and obtained a medical report. The Accused suggested that this witness used force on him that is why he made the statement. Witness denies the allegations.

28. Detective Corporal Namata who is attached to Crime Pro-active unit gave evidence and after receiving instructions from his superior ASP Tuvili, he went to Capitol Motel and arrested the Accused. At that time the Accused was with a female friend. He was arrested at 8.30 am and locked up at Central Police Station. The Accused said that he was taken to Toorak then to CPS. But witness said since the CID headquarters at Toorak opens at 9am therefore he didn't take him there but to CPS. He said he used no force or threat on him. Two officers accompanied him also didn't use of any threat or assault on the Accused person.

29. Police Constable Basilio who was attached to the traffic branch of Navua Police gave evidence and said that he was asked to escort the Accused. Crime office from the cell block which took only 2 minutes. He said he didn't swear or threat at the Accused.

30. Police Constable Albert from Traffic Division of Navua Police Station gave evidence and told that he took the Accused to the hospital for medical check up. He said it was for a short time. He didn't talk to the Accused. But the Accused suggested that he swore at him. This witness denied the allegation.

31. Prosecution called Dr. Alipate Nasaumatua Vakamocea to give evidence and marked 3 medical reports. Report of Anil Prakash says she had 20m bruises on his wrist and leg and tenderness on the shoulder. You have to decide with that corroborates the evidences of Anil Prakash.

You may decide whether Arvind Kumar's medical report corroborate his evidence in Court.

The Accused Tomasi Sinudamu was subjected to a medical examination. The Doctor did not find any injury on him. You have to seriously consider the Accused's evidence and the medical report. Does it support the stance of the Accused or not.

32. The Accused gave evidence and denied the involvement. It is up to you to decide whether he is telling the truth or not. Should remind you that the Accused is not bound to give evidence. He has the right to remain silent. But he opted to give evidence and subjected himself to cross examination.

33. You have to consider the evidence of the Accused in the light of all other evidence before the Court.

34. You heard submissions of the State Counsel and Accused. You are not bound to accept all. Those are not evidence before the Court. It is only a narration of facts you are advice to consider all evidence placed before you and take free and fair decision.

35. I humbly request you to consider not only my summary but all evidence before the Court and come to your own conclusion. If you are satisfied beyond reasonable doubt of this accused person's guilt and you are sure of it. You can find this accused person guilty as charged. If you are not satisfied beyond reasonable doubt of this accused person's guilt and you are not sure of it. You must find this accused not guilty as charged.

36. As I explained to you in my opening address and at the beginning of the summing up you have to take your own decision after considering the evidence before the court. You will not be asked for the reasons for your decision. Your possible verdict will be guilty or not guilty.

37. Let me ask both State Counsel and the Accused persons whether they have anything to be addressed to you?

State Counsel: None. Need no further direction.

Accused: I am satisfied. Nothing to add.

38. Now let me ask the Assessors need any clarification.

Assessors inform the Court they are happy with the summing up.

39. You may retire to deliberate. I may request you to take all the documents marked before the Court and your notes. You should consider all documents and evidence and come to your own conclusion. Once you have reached your decision, please advice the Court Clerk so that we can reconvene the Court to receive them.

S Thurairaja
Judge

At Suva
Solicitors
Office of the Director of Public Prosecution for State
Accused in Person