IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. 012B OF 2010S

STATE

vs

JOSESE TUWAQA

Counsels : Mr. Y. Prasad for State
Accused in Person

Hearings: 18th and 19th June, 2012.
Summing Up: 20th June, 2012

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 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 a litigant, 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 accused or the victim. 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. You have a copy of the information with you, and I will now read the same to you:

"… [read from the information]…."

D. THE MAIN ISSUE
8. In this case, as judges of fact, each of you will have to answer the following question:

(i) Did Josese Tuwaqa, on 7th September 2009, at Nausori in the Central Division, violently robbed Nizal Buksh, of $74,034 cash and $6,701 cheque?

E. THE OFFENCE AND ITS ELEMENTS

9. For the accused to be found guilty of "robbery with violence", the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused
(ii) stole the complainant's properties, and
(iii) used violence on him, to effect the above theft.

Stealing is the act of taking someone's property without his permission, and with an intention to permanently deprive him of that property. Violence means any type of violence, and include threats of violence. Violence could mean forcefully threatening someone with a pinch bar, on the one hand, to striking someone with a cane knife, pinch bar or other weapon, on the other hand. The motive behind the violence, or threat of violence, is to effect the theft of the complainant's property.

10.	The prosecution is alleging that the accused committed the above offence, as a member of a group. 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 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.

F. THE PROSECUTION'S CASE

11.	The prosecution's case were as follows. The complainant, Mr Nizal Buksh, is a businessman. He is a director of Lokia Shopping Centre, Nausori. The company has four shops in Suva and Nausori. They have a warehouse and headquarters in Mistry Lane, Nausori. On 7th September 2009, after 8 am, the complainant drove to Mistry Lane with $80,000 plus of company money. It was the weekend's taking. The money consists of $74,000 plus cash, and $6,700 plus in cheques.

12.	As soon as he arrived at the Company office at Mistry Lane, four robbers came out of a car and attacked him with beer bottles and other weapons. He fled with the company money. However, because he was trying to avoid the flying bottles, he dropped the money. The robbers came, took the money and fled in their get-away vehicle. The complainant then jumped into his 4 wheel drive vehicle, and pursued the robbers.

13.	At the round-about near Nausori Health Centre, the complainant caught up with and rammed the robbers' get-away vehicle. They got off the vehicle, and fled on foot towards Vunivivi hill. They were each carrying the boxes of stolen money. The complainant, some of his staff and members of the public pursued the robbers. The robbers fled in different ways. However, they caught up with the accused, who couldn't run faster. Prior to his capture, the accused threw away the box of money, he was carrying. The complainant and the others later recovered the same, and it totalled $24,000 cash.

14.	The accused was handed over to police. He was taken to hospital. He was caution-interviewed by police on 14th September, 2009, and he admitted the offence. Because of the above, the prosecution asks you, as assessors and judges of fact, to find the accused guilty as charged. That was the case for the prosecution.

G. THE ACCUSED'S CASE 

15. When the information was put to the accused on 18th June 2012, the first day of the trial, he pleaded not guilty to the offence. In other words, he denied the allegation against him. 

16. When the prosecution closed their case on 19th June 2012, and the court ruled the accused had a case to answer, he choose to remain silent and called no witness. As a matter of law, I must direct you that, nothing negative whatsoever should be imputed to the accused, when he choose to remain silent and called no witness. The burden of proof is on the prosecution to prove the  accused's guilt beyond reasonable doubt, from the start to the end of the trial. The accused is not required to prove his innocence. He is not required to prove, anything at all. He may remain silent, as he did here, and challenge the prosecution to prove his guilt beyond reasonable doubt. That was his right to remain silent and called no witness.

17. However, eventhough the accused choose to remain silent and called no witness, you can discover his position in the case, if you examine his caution interview statements [Prosecution Exhibit No. 1(a) and 1(b)], which he gave the police on 14th September 2009. In his caution interview statement, he admitted that he was part of the group, that violently robbed the complainant, at the material time. However, when cross-examining the state witnesses, the accused appeared to be saying that the above statements were forced out of him by the police, and therefore you should reject his alleged confession to the police. We will discuss this matter later when we analyse the evidence. In any event, the accused asks you, as assessors and judges of fact, to reject the prosecution's case against him, and find him not guilty as charged. That was the case for the defence.

H. ANALYSIS OF THE EVIDENCE

(i) The Undisputed Fact: The Violent Robbery:

18. When listening to the prosecution's witnesses' evidence and the way the accused was cross-examining them; it appeared that the parties do not dispute the following material facts:

(i) That on 7th September, 2009, between 8 am and 8.30 am, four masked men attacked the complainant, Mr. Nizal Buksh, with crowbars, spanners, knives and bottles, and stole $74,034 cash and $6,701 cheques from him, at Mistry Lane, Nausori, in the Central Division;

(ii) After attacking the complainant, the four masked men fled in a stolen motor vehicle, registration no. DD 110, through Nausori town;

(iii) The complainant pursued the robbers in motor vehicle DD 110, and later met and rammed the car with his vehicle, registration no. FM 622, at the round-about near Nausori Health Centre;

(iv) The robbers' get-away vehicle was disabled at the round-about, and the 4 masked robbers fled on foot towards Vunivivi hill;

(v) The complainant, some of his staff, and members of the public pursued the robbers towards Vunivivi hills, with the robbers each carrying boxes containing the stolen money;

(vi) The robbers fled in different directions, but the pursuing party caught up with the accused, and recovered $24,000 cash, which he threw into the bush;

(vii) The accused was arrested by police and later taken to Nausori Police Station.

19. Because the above material facts were not disputed by the parties, I must direct you as a matter of law that, you may take it that the above facts are proven beyond reasonable doubt by the prosecution, and you may treat the same as established facts, in your deliberation. The only question now is: Was the accused part of the 4 masked men, who attacked and robbed the complainant at Mistry Lane, Manoca, Nausori, on 7th September 2009?

20. In connecting the accused to the crime, the State primarily relied on two types of evidence. First, they rely on the identification evidence of Nizal Buksh (PW1); Faiyaz Ud Din (PW2) and Sgt 988 Josese Nakaloulevu (PW3). Second, the State relied on the accused's alleged confession.

(ii) Case Against the Accused: Identification Evidence

21. The first point on this identification evidence, was that no-one actually saw the face of the four masked robbers, when they were robbing the complainant, at Mistry Lane, Manoca, Nausori. This was because all the robbers wore mask at the time. However, they later fled in their get-away vehicle DD 110. The evidence showed that the complainant followed DD 110 in his 4 x wheel drive, FM 622, rammed and disabled DD 110 at the round-about next to Nausori Health Centre. The four robbers fled on foot towards Vunivivi hill. They were seen by the complainant and others fleeing with the money boxes. They fled in different directions to confuse the complainant and his friends. They picked on the robber, who was slow in getting away. So, it would appear that the chain of events from the robbery at Mistry Lane, to the round-about and the fleeing to Vunivivi hill, appeared unbroken. The complainant and his friends were on hot pursuit of the four robbers. The identification evidence of PW1, PW2 and PW3, must be understood within the above context.

22. However, when assessing PW1, PW2 and PW3's identification evidence, as a matter of law, I must direct you as follows. First, whenever the case against the accused depends wholly or substantially on the correctness of one or more identification of the accused, which the defence alleged to be mistaken, I must warn you of the special need for caution before convicting the accused in reliance on the correctness of the identifications, because an honest and convincing witness or witnesses could be mistaken. Second, you must closely examine the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was there any impediment in the way? Has the witness seen the accused before? How often? If only occasionally, are there any special reason for remembering the accused's face? Was a police identification parade held? Third, are there any specific weaknesses in the identification evidence? The answers to the above questions will determine the quality of the identification evidence. If the quality is good, the identification evidence can be accepted. If it is not, it should be rejected.

23. The complainant (PW1) pursued the robbers from Mistry Lane to the round-about, and then towards Vunivivi hill. Obviously, as a businessman, he was trying to recover his money. He saw the robbers fleeing with the box of money. He choose to follow the slow one, who was the accused. According to PW1, he saw the accused's face for 5 to 6 seconds. He was 2 footsteps away from him. It was between 9 am and 9.30 am in the morning, in daylight. He saw the accused throw something into the bush. They found what it was. It was a box containing $24,000 cash, which was part of the $74,000 stolen from him, earlier in the morning. This must be a special reason for PW1 not to forget the accused's face. He said, there was no obstruction in his seeing the accused's face. No police identification parade was done, and this appears to be a weakness, but this seemed to be overcome by the fact that he allegedly confessed to the police, when he was cautioned interviewed on 14th September, 2009.

24. As for Faiyaz Ud Din (PW2), he saw the robbers robbing the complainant, at the material time. He got into a car, with others, and pursued the robbers. They came to the round-about next to the Nausori Health Centre, and saw the abandoned vehicles DD 110 and FM 622. He and others saw the robbers fleeing towards Vunivivi hill. They followed the complainant in pursuing the robbers. 

They followed the slow robber, who they saw throw something into the bush. They grabbed the robber, who was the accused. PW2 said, he saw his face clearly for 3 minutes. He was 2 footsteps away. It was daylight, that is, between 8.30 am and 9 am. There was no obstruction in his viewing the accused's face. This was probably the first time he saw him. However, like PW1, a special reason for remembering his face may be the fact that they discovered the $24,000 cash he threw into the bush. A weakness in PW2's identification evidence was that no police identification parade was held, but this may be offset by his alleged confession to the police, which we will discuss later.

25. As for Sgt 988 Josese Nakaloulevu, he said, he was going to Nausori Police Station to work at 8.30 am, on 7th September 2009. He said, he saw the abandoned vehicles at the round-about next to Nausori Health Centre. He said, he saw 5 or 6 civilians chasing some "i-taukei" youths. The youths were carrying pinch bars, boxes and a yellow bag, and were running towards Vunivivi hill. He said, the youths were fast. He followed them in a vehicle to Sila Secondary School. When he arrived at the school, he said, he saw the accused been chased by civilians. He followed them across the creek, and saw the accused lying on the ground injured. He said, he arrested him, and called for police assistance. Two police officers arrived, and they carried him to the main road. Then later took him to hospital. According to Sgt 988, he saw the accused's face for 30 minutes, and he was 1 footstep away. It was in broad daylight and he saw his face clearly, without any obstruction. Sgt 988 said, the accused was well-know to police. On how you assess PW1, PW2 and PW3's identification evidence, in the light of the direction I gave you in paragraph 22 hereof, is a matter for you. If you accept the identification evidence, that in itself, is sufficient, to find the accused guilty as charged. If you don't accept the identification evidence, then you must move on to consider his alleged confession to the police.

(iii) Case Against the Accused: Alleged Confession

26. You have copies of the accused's caution interview statements, which he gave police on 14th September, 2009 – 7 days after the alleged offence. The caution interview statements were submitted as evidence, that is, Prosecution Exhibit No. 1(a) – hand written version; and 1(b) – the typed version. The accused was asked a total of 53 questions and he gave 53 answers. His right to counsel and other rights were given to him. According to the caution interview officer, Inspector Savou (PW5), and the caution interview witnessing officer, DC 3762, Avenai (PW4), the accused voluntarily answered the questions put to him, and he fully co-operated with them. They said, they and other police officers did not assault, threaten or made promises to the accused before, during and after the caution interview. They said, the accused gave his answers voluntarily and out of his own free will. In question and answer 52 of his caution interview statements, the accused agreed that no force or threats were made on him to give his answers. Although he was injured at the time, according to the police, these injuries were caused by civilians when the accused was fleeing from the crime scene, at the material time. The injuries were not caused by police. In his caution interview statement, the accused admitted being part of the group that violently robbed the complainant, at the material time. [See questions and answers 17 to 43 of Prosecution Exhibit No. 1(a) and 1(b)].

27. In considering the accused's alleged confession, I must, as a matter of law, direct you as follows. A confession, if accepted by the trier of fact – in this case, you as assessors and judges 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.

28. If you, as assessors and judges of fact, accept the accused's alleged confession, that in itself is sufficient, to find the accused guilty as charged. If you also accept PW1, PW2 and PW3's identification evidence, they are also sufficient, to ground a possible conviction against the accused, on the charge alleged. If you accept both the accused's alleged confession and PW1, PW2 and PW3's identification evidence, then you may be persuaded to accept the prosecution's version of events. This is a matter for you.

I. SUMMARY

29.	Remember, the burden to prove the accused's guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accused, at any stage of the trial. The accused is not required to prove his innocence, or prove anything at all. In fact, he is presumed innocent until proven guilty beyond reasonable doubt. If you accept the prosecution's version of events, and you are satisfied beyond reasonable doubt so that you are sure of the accused's guilt, you must find him guilty as charged. If you do not accept the prosecution's version of events, and you are not satisfied beyond reasonable doubt so that you are not sure of the accused's guilt, you must find him not guilty as charged.

30.	Your possible opinions are as follows:

(i) Robbery with Violence: Accused: Guilty or Not Guilty

31. You may now retire to deliberate on the case, and once you've reached your decisions, you may inform our clerks, so that we could reconvene, to receive your decisions.

Salesi Temo
JUDGE

Solicitor for the State Office of the Director of Public Prosecutions, Suva 
Solicitor for Accused: Accused in Person