IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 293 OF 2011S

STATE

vs

SANAILA NAIVANA

Counsels : Mr. T. Qalinauci and Ms. M. Khan for the State
Mr. A. Vakaloloma for Accused
Hearings : 19 to 23 May, 2014
Summing Up : 27 May, 2014

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 and Defence Counsels have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State and Defence Counsels, 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]…."

You must disregard the names of the first three accuseds in the particulars of count no. 1 and 2. This trial is not about them. This trial does not concern them. This trial is only about Sanaila Naivana, and only concerns him, and no-one else. Therefore, you must devote your minds to only Sanaila Naivana, and no-one else.

D.	THE MAIN ISSUES 

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

(i)	Did the accused, between 21 January and 27 June 2011, at Suva in the Central Division, enter the Water Authority of Fiji Reservoir Road depot storeroom, as a trespasser, with intent to commit theft?

(ii)	Did the accused, between 21 January and 27 June 2011, at Suva in the Central Division, steal 619 new water meters, valued at $106,369.64?
   
E.	THE OFFENCES AND THEIR ELEMENTS

9.	Count 1 involved the offence of "aggravated burglary", contrary to section 313 (1)(a) of the Crimes Decree 2009. For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:

(i)	the accused, 
(ii)	in company with one or more persons,
(iii)	enters or remains,
(iv)	in a building,
(v)	as a trespasser,
(vi)	with intent,
(vii)	to commit theft.

10.	The key word in the above offence is the word "trespasser". A trespasser is someone who does not have permission, express or implied, to be in a building. In other words, if you don't have permission to enter or remain in a building, but nevertherless entered or remained in the building, you are a trespasser. You don't have authority to enter or remain in the building. For example, a thief who enters or remains in a building, to steal, is a trespasser.

11.	Likewise, a person may be employed by a company. The company owns a storeroom, which contained the person's work tools, and other properties belonging to the company. The company authorizes the person to enter the storeroom, and get his tools, including matters that are essential for his work. However, if the person uses the occasion, to steal the company's properties, he becomes a trespasser at the time he intends to commit theft. In other words, by exceeding the authority the company gave him to get his tools and other essentials, when he intended to commit theft, he immediately became a trespasser. 

12.	It must be noted that for "aggravated burglary", when the accused enters or remains in a building as a trespasser, with intent to commit theft, he must do the same in cohort with one or more persons. In other words, when he enters or remains in the building as a trespassers, with intent to commit theft, he must do the same with the assistance of one or more persons.

13.	Count No. 2 involved the offence of "theft", contrary to section 291(1) of the Crimes Decree 2009. For the accused to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:

(i)	the accused
(ii)	dishonestly
(iii)	appropriates
(iv)	property belonging to another 
(v)	with the intention
(vi)	of permanently depriving 
(vii)	the other of the property.

14.	"Theft" is another word for "stealing". "Stealing" is basically to take something away, without the owner's permission, and with the intention of permanently depriving the owner of ownership of that property. For example, I saw $1,000 in your wallet. I took your wallet, got the $1,000 and spent it on myself, without your permission. What I did above is basically called "theft" or "stealing".

15.	You will notice in the information, that is, in count no. 1 and 2, that the prosecution, in their particulars of offence, began with the phrase, "…JOSESE CAGINALIWALALA, SUNIA MALEWA, MOSESE TAUNA and SANAILA NAIVANA…" The prosecution is alleging that the accused committed the above offences, as part of a group. Although I've directed you in paragraph 7 hereof that this trial is only about Sanaila Naivana, it doesn't change the prosecution's position that the accused committed the offences, as part of a group, with others. To make them jointly liable, the prosecution is relying on and running its case, on the concept of "joint enterprise".

16.	"Joint enterprise" is "when two or more persons form a common intention to prosecute an unlawful purpose in conjuction with one another, and in the prosecution of such purpose an offence is committed, of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence" (Section 46, Crimes Decree 2009). In considering the accused's case, you will have to ask yourself the following questions: Did he form a common intention with others, to trespass on the Water Authority of Fiji Reservoir Road Depot storeroom, with intent to commit theft, at the material time? If so, did he and the others acted together in trespassing in the storeroom, at the material time, with intent to commit theft? When the water meters were stolen, was this a probable consequence of the trespass on the storeroom? If your answer for the accused was yes, and you are sure that the elements in paragraphs 9 to 14 are satisfied, the accused is guilty as charged. If it's otherwise, he is not guilty as charged.

F.	THE PROSECUTION'S CASE

17.	The prosecution's case were as follows. The complainant in this case is the Water Authority of Fiji (WAF). Between 21 January and 27 June 2011, the WAF had a storeroom at their Reservoir Road depot. In the storeroom were kept working tools, pipes and water meters. According to the prosecution, 619 new water meters valued at $106,369.64, were kept in the storeroom at the time.

18.	According to the prosecution, some workers employed by WAF systematically stole 619 new water meters from the Reservoir Road depot storeroom between January and June 2011. On the pretext of collecting their work tools from the depot storeroom, they stole a total of 619 new water meters within that time. They put the meters in bags, loaded them into a company vehicle driven by the accused, and took them to a scrap metal dealer for sale. The accused was employed by WAF as a driver, and often assisted the group by driving the stolen water meters to the scrap metal dealer. All the water meters were sold by the group to a scrap metal dealer.

19.	In June 2011, the above theft was discovered by WAF and reported to police. An investigation was carried out. The accused was caution interviewed by police on 10 September 2011. He admitted the offences to police. He admitted that he drove the vehicle that carried the stolen water meters to the scrap metal dealer. On 12 September 2011, the accused appeared in the Suva Magistrate Court charged with aggravated burglary and theft. Because of the above, the prosecution is asking 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

20.	On 21 May 2014, the first day of the trial proper, the information was put to the accused, in the presence of his counsel. He pleaded not guilty to both counts. In other words, he denied the allegations against him. When a prima facie case was found against him, at the close of the prosecution's case, he choose to give sworn evidence, in his defence, and called no witness. That was his right.
	
21.	In his evidence, the accused admitted he worked for WAF as a driver and digger operator, at the material time. He admitted, he drove 9 WAF employees to the WAF Reservoir Road Depot storeroom, at the material time, to pick their work tools and other equipment. He saw bags been loaded into the vehicle he was driving. He said, he later took them to their work sites.

22.	He admitted been caution interviewed by police on 10 September 2011. He said, he was questioned on the alleged stolen WAF water meters. In the caution interview, he allegedly admitted the allegations against him. He admitted signing his caution interview statements. He said, his alleged confessions were given involuntarily to the police, and the same was given without his own free will. He denied the allegations against him. He asked you to disregard his police caution interview statements, because they were fabricated by police, and were given without his free will. Because of the above, he asks you, as assessors and judges of fact, to find him not guilty as charged. That was the case for the accused.

H.	ANALYSIS OF THE EVIDENCE

(i)	The Accused's Alleged Confession: Prosecution Exhibit No. 1(hand-written version) 
And 2 (typed written version):

23.	The State's case against the accused is fundamentally based on his alleged confession to the police. If you accept the same, he is guilty as charged. If you reject the same, then you must find him not guilty as charged. It is therefore essential for you, as assessors and judges of fact, to carefully read and understand his caution interview statements, as contained in Prosecution Exhibit No. 1 and 2.

24.	On 10 September 2011, Corporal 2021 Daniele Yaya (PW4) caution interviewed the accused, in the Crime Office, at Samabula Police Station. He was asked a total of 79 questions and he gave 79 answers (Prosecution Exhibit No. 1). He was given the standard caution and his right to counsel. He waived his right to counsel. The allegations were put to him. He admitted he was employed by the Water Authority of Fiji, as a driver and a digger operator. He admitted he often drive WAF workers to their work sites daily, and had been working as such for the previous 2 years. He said he starts work at 8am and finishes at 5pm. He also admitted, he carried new water meters to work sites for repairs. He said, when he drops WAF worker at their work sites, they often repair leakage pipes, repair water meters and other jobs connected with the supply of water. (See Questions and Answers 7 to 14 of Prosecution Exhibit No. 2).

25.	He admitted that he drove the company vehicle to Reservoir Road depot storeroom, at the material time, and picked up some water meters. He said, other WAF workers were with him in the vehicle. He said, all the workers went into the storeroom to get their tools. He said, three of the workers then stole the water meters from the storeroom. He said, the water meters were put in bags, and loaded into his company vehicle. He said, the bag of water meters were taken to their Namara shed to be sold to scrap metal dealers. He said, he was paid $100 on the day for transporting the stolen water meters, in the company vehicle. (See Questions and Answers 15 to 28 of Prosecution Exhibit No. 2).

26.	In his caution interview statement, the accused admitted the others who participated in the crimes were also paid. He said, he also delivered another batch of stolen water meters to Narere to be sold to scrap metal dealers. He said, he went with other WAF workers to the Reservoir Road depot and removed the water meters therefrom. He said, they went into the storeroom to get their tools, and while doing the same, they stole the new water meters, packed them in bags, and put the same into his company vehicle. He said, he then drove the vehicle to the scrap metal dealers, for the meters to be sold. He said, they were all paid for their part, as mentioned above (see Questions and Answers 29 to 53 of Prosecution Exhibit No. 2).

27.	The accused, in his caution interview statements, further admitted that the water meters they were selling were all new ones. He said, he knew the water meters were stolen, and did not report the theft to his employer or the police, because he took part in the loading of the stolen meters into his company vehicle, and was transporting the same to scrap metal dealers, for the same to be sold. (see Questions and Answers 54 to 68 of Prosecution Exhibit No. 2).

28.	If you accept the accused's above police caution interview statements, then you must find him guilty as charged, on both counts. However, before you can do the above, I will have to direct you, as a matter of law. 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 statement 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 facts, you are entitled to rely on them for or against the accused.

(b) Voluntariness of Accused's Alleged Confession in Prosecution Exhibit No. 1 and 2:

29.	The voluntariness of the above alleged confessions was disputed in this trial. Corporal 2021 Daniele Yaya (PW4) said, he did not assault, threaten or made unfair promises to the accused before, during and after his caution interview. He said, on 10 September 2011, when he caution interviewed the accused, he gave him all his legal rights and cautioned him. He was given the standard meal and rest breaks. He said, the accused gave his statements voluntarily, and out of his own free will. He said, he made no complaint to him on any matter whatsoever. He said, the accused choose to be interviewed in the English language. DC 3453 Sanita Lagenisici (PW5) witnessed the accused's caution interview. He confirmed what PW4 said above.

30.	The accused, on the other hand, said he did not give his police caution interview statements voluntarily. He admitted, he answered some of the questions put to him. On the answers to the questions that implicated him in the commission of the crimes, he said he did not answer those questions. He said, the police answered them and they fabricated his answers. However, he admitted in cross-examination, that the police never assaulted or threatened him during his interview. He admitted when he first appeared in the Suva Magistrate Court on 12 September 2011 (2 days after the caution interview), he made no complaint to the presiding Resident Magistrate on any untoward police behaviour during his caution interview.

31.	You have heard both parties on the issue of the voluntariness of the accused's caution interview statements. You have observed their demeanour in the courtroom. You have watched them answer the questions put to them. Were they forthright as witnesses? Were they evasive? Were they hiding anything from you? Who, from your point of view, was telling the truth? If you accept the prosecution's witnesses' version of events, then you must find the accused guilty as charged on both counts. If you reject the prosecution's witnesses' version of events, then you must find the accused not guilty as charged, on both counts. It is a matter entirely for you. 

I.	SUMMARY
32.	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.

33.	Your possible opinions are as follows:

(i)	Count No. 1 : 	Aggravated Burglary : 	Guilty or Not Guilty	
(ii)	Count No. 2 : 	Theft : 	Guilty or Not Guilty	

34.	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 the same.

Salesi Temo
JUDGE

Solicitor for the State : Office of the Director of Public Prosecution, Suva
Solicitor for the Accused : Vakaloloma & Associates, Barristers & Solicitors, Suva.