IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 115 OF 2009S

THE STATE

v.

1. OSEA VAKACEREIVALU
2. ALIPATE VAKADEWAVOSA
3. ILIASERI SAQASAQA
4. ISIMELI WAKANIYASI

Counsels: Mr. L. Fotofili for the State 
Ms. M. Nawasaitoga for Accused No. 1 and 2
Accused No. 3 – In Person 
Accused No. 4 – In Person 
Hearings: 5th to 21st September, 2011
Summing Up: 23rd September, 2011

SUMMING UP

A.	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, Ms. Nawasaitoga for Accuseds No. 1 and 2, Accused No. 3 and Accused No. 4 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, Defence Counsel and as accuseds, 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.

B.	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 accuseds or the victims. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favour or ill will.

C. THE INFORMATION

7. The four accuseds were charged with one count of "robbery", contrary to section 293(1)(a) of the Penal Code, Chapter 17; and one count of "unlawful use of a motor vehicle", contrary to section 292 of the Penal Code. On count No. 1, it was alleged that, on 1st September 2009, at Nasinu in the Central Division, the four accuseds together, robbed Sushila Devi of $7,000 cash and other properties, valued at more than $1,600. On count No. 2, it was alleged that, the four accuseds together, unlawfully used Vinay Prakash's motor vehicle, registration No. EG 313, as a getaway vehicle, after committing the robbery in count No. 1.

D. MAIN ISSUES 

8. In this case, as judges of facts, each of you will have to answer the following questions:

(i) On count No. 1, did Osea Vakacereivalu, Alipate Vakadewavosa, Iliaseri Saqasaqa and Isimeli Wakaniyasi, together rob Sushila Devi of $7,000 cash and properties worth more than $1,600, on 1st September 2009, at Nasinu in the Central Division?

(ii) On count No. 2, did Osea Vakacereivalu, Alipate Vakadewavosa, Iliaseri Saqasaqa and Isimeli Wakaniyasi, together unlawfully used Vinay Prakash's motor vehicle, registration No. EG 313, when they used the same, as a getaway vehicle, after committing the robbery in count No. 1?

In this case, because there are four accuseds, as judges of facts, you are actually conducting four separate trials on each accused, together.

E. THE OFFENCES AND THEIR ELEMENTS

9. For the accuseds to be found guilty of "robbery" in count No. 1, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accuseds,

(ii) together with one or more persons,

(iii) stole,

(iv) the complainant's properties.

10. Stealing is the act of taking someone's property without his permission, and with an intention to permanently deprive him of that property. The complainant's property includes money and any other valuables, for example, jewellery, mobile phones, cameras etc. In this offence, to prove actual violence being committed on the complainant during the robbery, is strictly speaking, not essential. The mere presence of one or more persons with the accused during the stealing, converts the act of stealing, to the offence of "robbery". In other words, the act of stealing becomes robbery, if it was done by more than one person, present together, at the crime scene. The participation and presence of others, in the act of stealing, aggravates the matter, to the more serious offence of robbery. Violence in the traditional sense, is not essential. If violence was present, it will still be "robbery", if more than one person, committed the same.

11. For the accuseds to be found guilty of "unlawful use of a motor vehicle" in count No. 2, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused 

(ii) unlawfully used 

(iii) the complainant's motor vehicle

(iv) without his permission.

12. You will have noticed in the information, on both counts, the prosecution, in their particulars of offence, used the phrase, "…OSEA VAKACEREIVALU, ALIPATE VAKADEWAVOSA, ILIASERI SAQASAQA and ISIMELI WAKANIYASI together with another…" The prosecution is alleging that the four accuseds committed the above offences, as a group. As a matter of law, I must direct you that when two or more persons 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 role or major role, they are each deemed to have committed the offence. This is because each of them helped and encouraged each other to commit the offence. It is not strictly essential for all accuseds to be present at the crime scene, at the material time, to be committing the robbery. If any one of them planned the robbery, or assisted in any manner whatsoever, in its implementation, while not at the crime scene at the material time, he is also deemed, in law, to have committed the offence. This is because he assisted in the commission of the offence. In other words, he aided and abetted the commission of a crime.

13. Furthermore, in this case, there are four accuseds on trial. Each of the accused is entitled to be tried solely on the evidence that is admissible against him. This means that you must consider the position of each accuseds separately, and come to a separate considered decision on each of them. Just because they are jointly charged does not mean that they must all be guilty or not guilty. Most evidence in this case are admissible against all accuseds. However, regarding their police caution interview statements, which contained their alleged confessions, the statements therein are only admissible against the maker of the statement, and on no other. In other words, in each accused person's police caution interview statement, you must totally disregard what the accused said about his co- accuseds on the commission of the offences. You can only take into account what he said about himself, regarding his role in the commission of the crime.

F. THE PROSECUTION'S CASE 

14. The prosecution's case were as follows. On 31st August, 2009, Isimeli Wakaniyasi was at Newtown Housing, with his de facto wife, and young child. It was late in the evening, between 11pm and 12am. Sometime after 12am, on 1st September, 2009, Osea Vakacereivalu, Alipate Vakadewavosa, Iliaseri Saqasaqa, Sailasa Qalivere and another arrived in his house. Sailasa Qalivere was a taxi driver, and drove Osea and Iliaseri from Qauia Settlement, in Lami. The four accuseds then planned and discussed the robbery at Sushila Devi's house. Somehow, the four accuseds had information that Sushila Devi had money in her house.

15. A while later, Sailasa drove the four accuseds and another to town, and remained there for approximately 2 hours. At about 2.45am on 1st September, 2009, Iliaseri directed Sailasa to drive them to Navosai. Saqasaqa was sitting in the front passenger seat, while Osea, Alipate, Isimeli and another were in the back seat. At Navosai, Sailasa dropped the four passengers in the backseat. They immediately went to Sushila Devi's house at Lot 19, Vama Place.

16. When Osea, Alipate, Isimeli and another arrived at Sushila Devi's house, Isimeli went directly to Vinay Prakash's car, registration No. EG 313, which was parked in their compound. Somehow, he had a key to this car. Osea, Alipate and the other broke into Prakash and Sushila's house. They proceeded to their bedroom. They forcefully woke up the married couple. They threatened them with violence, if they resisted. They ransacked the house. They stole the couple's properties, as itemized in count No. 1, and fled the scene in Mr. Prakash's car, EG 313.

17. Isimeli was driving EG 313. They drove to Wainibuku where Iliaseri and Sailasa were waiting for them, in Sailasa's taxi. Osea, Alipate and another went in Sailasa's taxi, and the group returned to Isimeli's residence in Newtown. Isimeli drove EG 313 to CWM Hospital, and abandoned the same there. At Newtown, Osea, Alipate, Saqasaqa, Sailasa and another shared the loot. They each received a share out of the stolen $7,000 cash. Isimeli got his share through a third party. According to the State, the four accuseds participated together in the robbery on Sushila Devi, and the unlawful use of Vinay Prakash's car EG 313, on 1st September 2009, at Nasinu in the Central Division, and as judges of facts, the State is asking you to convict all of them as charged.

G. THE ACCUSEDS' CASES

18. On 12th September 2011, the first day of the trial proper, each of the four accuseds pleaded not guilty to the "robbery" and "unlawful use of a motor vehicle" charges. In other words, each of them denied the allegations against them. When a prima facie case was found against each of them, each accused choose to give sworn evidence, and call witnesses, in their defences.

19. As for Accused No. 1, he said he was at home with his wife and children, including her sister and children, on 31st August 2009, in the evening to the morning of 1st September 2009. He said, they were watching movies. He said, he watched movies from the evening of 31st August 2009 to 1am on 1st September 2009. He said he slept on a couch from 1am to 4am on 1st September 2009, and later taken to his bedroom. He said, he slept in his bedroom till the morning of 1st September, 2009. He was therefore not at the crime scene, at the material time.

20. Osea called his sister, Seruwaia Vikila, to confirm the above. On his alleged confession in his caution interview statement, Osea said, the police assaulted and threatened him repeatedly, to admit the offences. He said, he was repeatedly punched and kicked from the time of his arrest, before and during his interview. He said, the police put chillies up his anus. They also beat the sole of his feet. He said, the police brought a prepared caution interview statement, and forced him to sign it. He said, he then signed. He said, his alleged confession was not given voluntarily, and as assessors and judges of fact, he asks you to strike out his caution interview statements, and find him not guilty as charged, on both counts. That was the case for Accused No. 1.

21. As for Accused No. 2, his defence was somewhat similar to accused No. 1. Alipate said that, between 6pm to 11pm on 31st August 2009, he, his neighbour Samu and his niece Sereana Wati, were drinking grog. He said, his wife, Sereima Virisova, joined them at 8pm. At 11pm, after the grog session, he, his wife and niece had dinner, and went to sleep. They woke up the next morning on 1st September 2009, at about 6am. They had their breakfast, and later went to work and school for their children. From Alipate's point of view, he was not guilty of the charges, as he was at home, with his family, at the time the offences were committed. He called his wife and niece, as his witness, to confirm the above.

22. As for his alleged confession in his caution interview statement, Alipate said, the police never assaulted or threatened him. However, he said, he was tricked into signing it. He said, Inspector Emosi Racule came into the interview room and asked him about his elder brother James Qumivutia, whom he went to school with in the 1970's. He said, he was in New York. Alipate said, Racule told him, his brother was a nice bloke. Alipate said, he felt at home and secure. The caution interview officer asked him to sign his interview notes. He then did so. He said, the interview notes were fabricated by police. It was not his true statements. He said, the police tricked him to sign his interview notes. It was not obtained voluntarily, and he asks you, as assessors and judges of fact, to strike the same out, and find him not guilty as charged, on both counts. As for Sailasa Qalivere's evidence, Alipate said, he was not telling the truth. That was the case for Accused No. 2.

23. As for Accused No. 3, he denied the allegations against him. He said, the police did not assault or threaten him to sign his caution interview statement. He co- operated with the police. He said, the police told him to sign his interview statement statements, and he did so. He agreed that on 31st August 2009, he went with Sailasa Qalivere to Newtown and Wainibuku, to assist him collect rents owed to Sailasa. According to Saqasaqa, Sailasa feared being attacked, and thus asked him to accompany him. He said, he knew his family well, as they were neighbours in Qauia. According to Saqasaqa, after collecting the rents, they returned to Qauia early morning of 1st September 2009. He called his wife, as a witness, to confirm the above. He denied being part of the robbery or unlawful use of a motor vehicle. He asks you, as assessors and judges of fact, to find him not guilty as charged. That was the case for Accused No. 3.

24. As for Isimeli Wakaniyasi, his case was similar to Osea and Alipate. He said, at the time the crimes were committed, he was away in Lautoka attending his sister's funeral. He said, on 31st August and 1st September 2009, he was at his sister's funeral gathering in Lautoka. He called his elder sister Neomai Rogosekula as his witness, to confirm the above. According to him, he was not the person that committed the offences in this case.

25. As for his police caution interview statements, Isimeli said, the police assaulted and threatened him repeatedly. As a result, he signed his caution interview statements. He said, the police fabricated his interview statements, and as a result, he asks you, as assessors and judges of fact, to strike out his alleged confession, and find him not guilty as charged, on both counts. As for Sailasa Qalivere's evidence, he said, he doesn't know him. He said, he didn't commit the offences alleged against him. That was the case for Accused No. 4.

H. ANALYSIS OF THE EVIDENCE

The Robbery and the Unlawful Use of a Motor Vehicle charges

26. In this case, the evidence of the complainants, were not disputed at all, by the parties. Mr. Vinay Pakash (PW2) and his wife, Sushila Devi (PW3), were asleep in their bedroom, at Lot 19 Vama Place, Narere, on 1st September 2009, past 2am. They said, three masked man broke into their house, came into their bedroom, and forcefully demanded money. They said, the men were armed with a pinch bar, hammer and knife. They warned the couple not to resist, or they will be seriously injured. They ransacked the house, and stole $7,000 cash and other items mention in count No. 1. Mr. Prakash said, the men later fled in his car, registration No. EG 313, without his permission. Because the above material facts are not disputed by the parties, as a matter of law, you may take it as a fact, that the prosecution has proven beyond reasonable doubt that, the complainants were robbed of the items mentioned in count No. 1, and that Mr. Prakash's car EG 313 was unlawfully use by three men, when they fled in the same, on 1st September, 2009.

The identity of the robbers?

27. In this case, because the robbers were masked, at the time of the robbery, the complainants Mr. Vinay Prakash and Sushila Devi, could not identify the robbers. As a result, this created a major difficulty for the prosecution. The complainants could not positively identify the robbers, at the time of the robbery. 

How can the State connect the four accuseds to the crimes?
(i) Alleged Confessions:

28. As for Osea Vakacereivalu, Alipate Vakadewavosa and Isimeli Wakaniyasi, the State relies on their alleged confessions, in their police caution interview statements, to connect them to counts No. 1 and 2. You all have copies of the above three accuseds' police caution interview statements with you, and you will be given the originals during your deliberation. Please, consider them very carefully. Osea's caution interview statements were tendered as Prosecution Exhibits No. 5(a) – handwritten version; and 5(b) – the typed version. Alipate's caution interview statements were tendered as Prosecution Exhibit No. 1(a) – handwritten version, and 1(b) – typed version. Isimeli's caution interview statements were tendered as Prosecution Exhibit No. 6(a) – handwritten version, and 6(b) – typed version.

29. When you carefully read Osea, Alipate and Isimeli's police caution interview statements, bearing in mind what I said in paragraph 13 hereof, you will find that each of them admitted being part of the group that robbed the complainants on 1st September 2009, and fled in Mr. Prakash's car thereafter. As a matter of law, I must direct you that, a confession, when accepted by a trier of fact, is strong evidence against its maker. However, before you can accept a confession, you must be satisfied beyond reasonable that it was given voluntarily by its maker. The prosecution must satisfy you beyond reasonable doubt that the accused gave his statements voluntarily, that is, he gave his statements out of his own free will. Evidence that the accused had been assaulted, threatened or unfairly induced into giving those statements, will negate free will, and as judges of fact, you are entitled to disregard them. However, if you are satisfied beyond reasonable doubt, so that you are sure, that the accused gave those statements voluntarily, as judges of fact, you are entitled to rely on them against the accused.

30. On the issue of whether or not Osea, Alipate and Isimeli gave their police caution interview statements voluntarily, the parties version of events were completely at odds with each other. Osea said, the police repeatedly assaulted and threatened him to sign his caution interview statements. They put chilly up his anus, and repeatedly hit the soles of his feet with a stick. He said, he was so frightened of the assaults, he signed his interview statements. Alipate said, Inspector Racule befriended him by asking for his older brother, whom he said they went to school together. He said, Seva the caution interview officer, promised him an early release home, if he signs his interview statements. Because he was at home with Inspector Racule's words, he signed the interview notes. As for Isimeli, his versions were somewhat similar to Osea. He said, the police assaulted him repeatedly, and as a result, he signed his caution interview notes. 

31. I will not bore you with the details. All the police officers named by Osea, Aliapte and Isimeli were produced in court, to answer to the allegations of alleged police brutality. Each of them said, they did not assault, threaten or made promises to Osea, Alipate and Isimeli from the time of arrest, the caution interview and when they were produced in court. Each of them denied the assault and threats allegations levelled at them by Osea, Alipate and Isimeli. The credibility of Osea, Alipate and Isimeli and all the police officers produced in court is a matter for you to decide, as assessors and judges of fact. What weight you put on each witnesses' evidence, and whether or not to accept or reject part or the whole of it, is a matter for you, as assessors and judges of fact. If you accept the prosecution's version of events, then Osea, Alipate and Isimeli would be guilty as charged on both counts. If you accept Osea, Alipate and Isimeli's version of events, then you will have to reject their alleged confessions, and consider the other evidence, to find out whether or not they are guilty as charged.

32. Remember, there was no medical reports submitted to court, to verify Osea's and Isimeli's claim of being assaulted by the police. Whether to blame the police or the accuseds for not submitting the medical reports to court, is a matter for you.

(ii) Sailasa Qalivere's (PW13) evidence: 

33. To further connect Osea, Alipate and Isimeli, including Saqasaqa to the two counts, the State called Sailasa Qalivere, as its witness. Sailasa was involved in the crimes alleged against the four accuseds, because at the material time, he was transporting them around in his uncle's taxi, Registration No. LT 6551. He was given immunity by the Director of Public Prosecutions to testify for the State, against the four accuseds. This is not unusual, since throughout the centuries, the State had oftenused this technique to catch criminals. Crimes are often committed in secret, and in fighting it, the State, at times, chooses to use accomplice's evidence, to catch the more hardened criminals. In this case, the State has decided to use Qalivere's evidence, to connect the four accuseds, to the crimes alleged.

34. Sailasa Qalivere is certainly an accomplice in this case. As a matter of law, I must warn you, as assessors and judges of fact, that it is dangerous to convict an accused on the basis of an accomplice's evidence, unless it is corroborated by independent evidence, although you are entitled to rely on it, if you are convinced it is the truth. In this case, if you accept the four accuseds' police caution interview statements, they are capable of providing independent evidence to corroborate Sailasa Qalivere's evidence.

35. In his evidence, Sailasa said, he was driving his uncle's taxi on 31st August 2009 between 4pm to 6.30am on 1st September 2009. He said, at 9pm on 31st August 2009, he picked up Osea and Saqasaqa from Qauia and took them to Newtown. At Newtown, he picked up Isimeli Wakaniyasi, Alipate Vakadewavosa and another, he didn't know. He said, Saqasaqa sat in the front seat, while Osea, Alipate, Isimeli and another sat in the back seat. He said, he knew them because they were calling each other names in the taxi. He said, he drove them to town and they remained there until 2.45am on 1st September 2009, when Saqasaqa directed him to Navosai. He drove to Navosai, where he dropped the four in the back seat. Saqasaqa then told him to drive to Wainibuku. He drove to Navosai again with Saqasaqa, picked up the four, went to Wainibuku, and then dropped them at Navosai again, then returned to Wainibuku. They waited there for 35 minutes.

36. He said, the others had iron bars when he dropped them at Navosai. Later, a station wagon arrived, driven by Isimeli. Osea, Alipate and another got off, came into his taxi, and he drove Saqasaqa, Osea, Alipate and another to Newtown, ie. at Isimeli's residence at Lot 3 Balabala Crescent. Sailasa said, they went into the sitting room and shared the stolen money ie. himself, Osea, Saqasaqa, Alipate and another. He said, he received $650 as his share. He said, he heard them say the money was from the complainant's residence, at Lot 19 Vama Place, Navosai. He said, he later took Saqasaqa, Osea and Alipate to Qauia and dropped them at Saqasaqa's house. If you, as assessors and judges of fact, accept Sailasa's evidence, they are strong evidence to link the four accuseds to the crimes, alleged against them. If you accept Osea, Alipate and Isimeli's alleged confessions to the police, these are strong independent evidence to corroborate Sailasa Qalivere's evidence, and you may rely on them to convict Osea, Alipate and Isimeli. These are matters for you.

37. Furthermore, with regard to Sailasa Qalivere's identification of Osea, Alipate and Isimeli on 31st August and 1st September 2009, I must warn you of the special need for caution before convicting them, in reliance on the correctness of Sailasa's identification evidence. This is because an honest and convincing witness, may be mistaken. You must examine closely the circumstances in which Sailasa identified Osea, Alipate and Isimeli. How long did he have the accused under observation? At what distance? In what light? Was the observation impeded in any way? Had he seen the witness before? How often? Is there any special reasons for remembering their faces? Was any police identification parade carried out? Are there any specific weaknesses in Sailasa's identification. As assessors and judges of fact, you must consider Sailasa's evidence in the light of the above warning, concerning him identifying Osea, Alipate and Isimeli, in his taxi, at Newtown, in town and in Wainibuku. These are matters for you.

(iii) Circumstantial Evidence Against Saqasaqa:

38. The State's case against Saqasaqa is based on circumstantial evidence. That simply means that the prosecution is relying upon evidence of various circumstances relating to the crime and the defendant which they say when taken together will lead to the sure conclusion that it was the defendant who committed the crime. It is not necessary for the evidence to provide an answer to all the questions raised in a case. You may think it would an unusual case indeed in which a jury can say 'We now know everything there is to know about this case'. But the evidence must lead you to the sure conclusion that the charge which the defendant faces is proved against him. Circumstantial evidence can be powerful evidence, but it is important that you examine it with care, and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore, before convicting on circumstantial evidence you should consider whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution case. Finally, you should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence, and mere speculation. Speculating in a case amounts to no more than guessing, or making up theories without good evidence to support them, and neither the prosecution, the defence nor you should do that.

39. You have a copy of Mr. Saqasaqa's police caution interview statements with you, and the original will be given to you, when you deliberate. Mr. Saqasaqa's interview statements were tendered as Prosecution Exhibit No. 7(a) – handwritten version; and 7(b) – typed version. Please, consider it very carefully. He said, on 31st August 2009, he was at home with his family. He said, between 7pm and 8.30pm, Sailasa Qalivere (PW13) came to his home, and asked him to accompany him to collect his rent from his house in Balabala Crescent, and at Wainibuku. He wanted Saqasaqa to be his bodyguard. Because Saqasaqa knew his family well, and since they were neighbours, Saqasaqa went with Qalivere to Newtown and Wainibuku. He said, after collecting the rent, they returned to Qauia after 12am on 1st September 2009. He called his wife, as his witness, to confirm the above.

40. When caution interviewed by police on 10th and 11th September 2009, he said, the police never assaulted or threatened him. When cross-examined by police, he said, he went with Qalivere to collect his rents from Newtown and Wainibuku. He denied being involved in the crimes alleged against him. He admitted, he was the front seat passenger in Qalivere's taxi on 31st August and 1st September 2009. So, in a sense, by his own admission, Saqasaqa admitted he was in Newtown and Wainibuku, between the night of 31st August and early morning 1st September 2009, although his wife said, he returned after 12am on 1.9.09. The robbery occurred between 2am and 3am, on 1st September 2009. Was his wife's timing or watch accurate? Was it possible that Saqasaqa was in the vicinity of the crime scene, controlling the criminal activities from Qalivere's taxi, while they were in Wainibuku? Consider Sailasa's evidence against him. Was Saqasaqa the mastermind in these crimes? Was he controlling Osea (his brother-in-law), Alipate and Isimeli from afar? He admitted, he was known as the "General" in the criminal world. A general controls the troops, engaged in war, from afar, in the safety of his headquarters. Was Saqasaqa acting as a general in directing Osea, Alipate and Isimeli in robbing the complainants at the material times. These are matters for you.

41. You have heard all the prosecution and defence witnesses, in this matter. You have observed them give evidence in the courtroom. You have observed their behavior in the courtroom – were they well mannered or otherwise? Were they evasive while giving evidence? Were they argumentative, while giving evidence? How did they dress to court? Given the above, my direction on the law, your life experiences and common sense, you should be able to decide which witness's evidence, or part of his evidence you consider reliable, and therefore to accept, and which witness's evidence or part of his evidence, you consider unreliable, and therefore to reject.

42. You must also carefully consider the accuseds' positions, as outlined in paragraphs 18 to 25 hereof.

I. SUMMARY

43. Remember, it is for the prosecution to prove each of the four accuseds' guilt beyond reasonable doubt. It is not for the accuseds to prove their innocence. The burden of proof lies on the prosecution to prove the accuseds' guilt beyond reasonable doubt, and that burden stays with them throughout the trial. If you accept the prosecution's version of events and you are satisfied beyond reasonable doubt and are sure of their guilt, you must find them guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt and are not sure of their guilt, you must find them not guilty as charged.

44. Your possible opinions are as follows:

(i) Count No. 1: Robbery 
Accused No. 1 - Guilty or Not Guilty 
Accused No. 2 - Guilty or Not Guilty 
Accused No. 3 - Guilty or Not Guilty
Accused No. 4 - Guilty or Not Guilty 

(ii) Count No. 2: Unlawful Use of a Motor Vehicle
Accused No. 1 - Guilty or Not Guilty 
Accused No. 2 - Guilty or Not Guilty 
Accused No. 3 - Guilty or Not Guilty
Accused No. 4 - Guilty or Not Guilty 

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

Salesi Temo
JUDGE

Solicitors for the State: Office of Director of Public Prosecution, Suva.
Solicitors for Accused No. 1: Legal Aid Commission, Suva
Solicitors for Accused No. 2: Legal Aid Commission, Suva
Solicitors for Accused No. 3: In Person
Solicitors for Accused No. 4: In Person