State v Usumaki - Summing Up [2015] FJHC 107; HAC338.2012S (20 February 2015)

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JOSAIA USUMAKI
KUNAL PRASAD
SOLOMONI QURAI
TEVITA SUGU
EPELI QARANIQIO
DESHWAR DUTT

Counsels : Mr. L. Fotofili and Ms. S. Lodhia for State
Mr. K. Singh for Accused No. 1
Mr. E. Koroi for Accused No. 2
Ms. R. Drau for Accused No. 3
Ms. T. Leweni for Accused No. 4
Accused No. 5 In Person
Mr. S. Kumar for Accused No. 6

Hearings : 2, 3, 5, 6, 10, 11, 13, 16, 17 and 18 February, 2015
Summing Up : 20 February, 2015

12. You will notice in the information, that is, in count no. 1, that the prosecution, in their particulars of offence, began with the phrase, "...JOSAIA USUMAKI and KUNAL PRASAD together with others..." The prosecution is alleging that the accuseds committed the above offence as a group. In other words, to make them jointly liable for the above offence, the prosecution is relying on and running its case, on the concept of "complicity and common purpose".

13. "Complicity and common purpose" means as follows. When a person aids, abets, counsels or procures the commission of an offence by another person, he is deemed, as a matter of law, to have committed that offence also, and is punishable accordingly. To aid a person is simply helping a person do something easily. To abet is to help or encourage somebody do something wrong. To counsel is to advise someone to do something. To procure is to obtain something that's difficult. The prosecution is alleging that Accused No. 1 and 2, including unnamed others, assisted each other to rob BSP Bank of $70,000 cash, at the material time. If Accused No. 2 assisted Accused No. 1 by picking him up from Naboro on 17 September 2012, and assisted him and others by driving the get-away vehicle after the alleged BSP robbery, he is as much guilty as the ones doing the actual robbery.

14. Count No. 2, 3, 4 and 5 involved the offence of "receiving stolen property", contrary to section 306(1) of the Crimes Decree 2009. For the accuseds to be found guilty of those offences, the prosecution must prove beyond reasonable doubt, the following elements:

15. The word "dishonest" means "not to be honest" or "intending to deceive others". The word "receive" means "to get or accept something that is sent or given to you". "Stolen property" is "property that had been unlawfully removed or taken from its lawful owner without his or her permission". It is tainted property. The prosecution must prove beyond reasonable doubt that Accused No. 3, 4, 5 and 6 dishonestly received the money found on them or in their possession, at the material times, knowing or believing them to be stolen property. These are essentially factual questions that you will have to decide.

16. Furthermore, in this case, there are six 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 accused 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 Accused No. 2's police charge statement [Prosecution Exhibit 1(a) and 1(b)], which may contained his alleged confession, the statements therein are only admissible against the maker of the statement, and on no other. In other words, in Accused No. 2's Police charge 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.

17. The prosecution's case were as follows. On 17 September 2012, at 8pm, Accused No. 1 (Usumaki), Accused No. 3 (Qurai), Accused No. 4 (Sugu), Accused No. 5 (Qaraniqio) and another, scaled the prison fences at Naboro Prison, and came to the main road. The accuseds were serving prison sentences at the time, and had unlawfully escaped from prison. Waiting on the road in a vehicle was Accused No. 2 (Prasad). According to the prosecution, Accused No. 2 drove them in his vehicle to Veisari. At a bridge in Veisari, a waiting fiberglass boat, filled with supplies of food, water and clothes, was waiting for the escaping prisoners.

18. Accused No. 1, 3, 4 and 5 got into the boat, and sailed to Cave Island. When they left prison, they had no money with them. It would appear that the prisoners had outside assistance in their transportation from prison to the Cave Island. At the island they changed from their prison uniforms to civilian clothes.

19. On 19 September 2012, between 1pm and 2pm, a white van smashed a hole through the wooden wall of the Bank of South Pacific (BSP) at Samabula. Masked man came out of the van armed with cane knives, went through the wall hole, ransacked the tellers' cubicles, and stole approximately $70,000 cash in Fijian and foreign currencies. One of the BSP support staff (PW4) identified Accused No. 1 at the crime scene, unmasked and carrying a cane knife into the BSP Bank. PW4 and the other BSP Bank Staff went into their safety room during the robbery. None of them except PW4, could identify any of the alleged robbers. After 7 to 8 minutes, the robbery was over. It was the prosecution's case that, Accused No. 2 drove the get-away vehicle after the BSP robbery.

20. On 19 September 2012, in the evening after the BSP robbery, Accused No. 2 (Prasad) and Accused No. 6 (Deshwar Dutt) were consuming liquor in the Purple Haze Night Club in Suva. They booked into the "Tropic Towers" Motel for the night. On the morning of 20 September 2012, both were arrested by police. PW9, a police officer, searched and seized FJ $171 and AUS $260 from Accused No. 6. On the same day, Accused No. 6's house was searched and $6,300 FJ and other foreign currencies were found in his sky/decorder container

21. On the 21 September 2012, after 6pm, the police, correction officers and the military raided cave Island. Accused No. 1, 3, 4 and 5 were arrested and searched on the Island. PW15 (police) found $1,000 and $2,000 in Accused No. 1's pocket. PW14 (police) found FJ $3,000 plus, US $100 and AUS $100, and coins in Accused No. 3's pockets. PW13 (police) found $1,041 Fijian cash in Accused No. 4's pockets in $100, $50, $20 and $10 bills. PW16 (police) found FJ $2,020, AUS $120 and US $45 on Accused No. 5. The Fijian money was in $100, $50, $20 and $10 bills. All the above money were seized by the police as exhibits.

22. According to the prosecution, Accused No. 1 and 2 participated in the BSP robbery on 19 September 2012, and Accused No. 1 returned to Cave Island before 21 September 2012, and allegedly gave Accused No. 3, 4 and 5 their money, since they had nothing when they escaped from Naboro Prison on 17 September 2012. Accused No. 3, 4 and 5 well knew the money was stolen properties, when they received the same. They needed the money to get further away from the police. As for Accused No. 6, he was seen with Accused No. 2 after the BSP robbery on 19 September 2012. It was possible according to the prosecution that, he received the money found on him through Accused No. 2, and well knew it was stolen property. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find all the accused guilty as charged. That was the case for the prosecution.

G. THE ACCUSEDS' CASES:
23. On 10 February 2015, the amended information was put to the accuseds, in the presence of their counsels, although Accused No. 5 had previously waived his right to counsel. All the accuseds pleaded not guilty to the charges. In other words, all of them denied the allegations against them.

24. When a prima facie case was found against each of them, at the end of the prosecution's case, wherein they were called upon to make their defence, they choose the following options. Accused No. 1, 2, 3, 4 and 5 choose to give sworn evidence, and called no witness. Accused No. 6 choose to give sworn evidence, and called 3 witnesses. The option they choosed was perfectly within their rights. We will now summarize their cases for you.

25. As for Accused No. 1 (Usumaki), his case was simple. On oath, he admitted he escaped from Naboro Prison on 17 September 2012, after 8pm, with Accused No. 3 (Qurai); Accused No. 4 (Sugu) and Accused No. 5 (Qaraniqio). He admitted they came in a vehicle to Veisari, where they got into a fiberglass boat enroute to Cave Island. They had food, water and clothes supplies. They were planning to depart Fiji for overseas. On oath, he denied all the allegations against him.

26. As for Accused No. 2 (Prasad), on oath, he also denied the allegations against him. He said, his alleged confession in his charge statement were given without his free will. He said, the police forced the same out of him, and he was assaulted at the Military barracks. He asked you to reject the same, as it was involuntarily given. He said, on count no. 1, he knew nothing about the BSP robbery.

27. As for Accused No. 3 (Qurai), he admitted he escaped from Naboro Prison with Accused No. 1 on 17 September 2012 after 8pm. He said, he went to Cave Island later and stayed there until 21 September 2012, when he was arrested by police. On oath, he denied the allegations against him.

28. As for Accused No. 4 (Sugu), he admitted he escaped from Naboro Prison with Accused No. 1, 3, and 5 on 17 September 2012 after 8pm. He said, he remained on Cave Island from 17 to 21 September 2012, when he was arrested. He denied on oath the allegations against him.

29. As for Accused No. 5 (Qaraniqio), he admitted he escaped from Naboro Prison on 17 September 2012 after 8pm. He said, from 17 to 21 September 2012, he was on Cave Island. He denied on oath the allegations against him.

30. As for Accused No. 6 (Dutt), he denied the allegation against him. He said, he is a taxi driver and businessman. He said, his mother, who resided in the USA, often sent him money. He said, the money discovered in his house and on him, were his own. He denied ever receiving stolen money. Because of the above, all the accuseds are asking you, as assessors and judges of facts to find them not guilty as charged, and acquit them accordingly. That was the case for the defence.

H. ANALYSIS OF THE EVIDENCE
(a) The Nature of the Evidence in the Case:
31. As had been said before, the burden is on the prosecution to prove each of the accused's guilt beyond a reasonable doubt, and they are to make you sure that each of them is guilty before you return with an opinion of guilty as charged. If you are not sure of their guilt, then you must return with a not guilty opinion. In this case, you will be looking at two types of evidence, that is, direct evidence and circumstancial evidence. Direct evidence involved the statement of a witness given on oath. Most witnesses called by the prosecution are police officers, who are paid by the state to investigate crime and arrest alleged criminals. What they say on oath as to the nature of their official duties, are direct evidence. If they refer to exhibits obtained when conducting official duties, those exhibits also become pieces of direct evidence. They speak as to their existence. Likewise, when a member of our society gives evidence on oath, whether or not they are serving prisoners or free individual, their statements on oath are also direct evidence . The acceptance and/or rejection of the above direct evidence, will come after your assessment of the witness as a credible witness. If you think he's a credible witness, you may accept some or the whole of his evidence. If you think he's not a credible witness, you may reject some or the whole of his evidence. This is your prerogative as the judges of fact.

32. Accused No. 2's alleged confession in his police charge statement, if accepted by you, amounts to and qualities as a piece of direct evidence.

33. As to "circumstantial evidence", it is about looking at the total amount of direct evidence presented in a case. The direct evidence may be disjointed in the sense it does not clearly connect the accused to the alleged crime. However, the disjointed direct evidence may be, when looked at together, may provide strong inferences of fact that the accused is involved in crime. You must not make a guess. You must make your decision grounded on facts, and make inferences from them. If it does not point to guilt, then disregard them. If it does point to guilt, then consider them. We will deal with the matter later.

34. In this case, the fact that armed men with cane knives stealing money from BSP Bank at Samabula on 19 September 2012, between 1pm and 2pm, appeared not disputed. Refer to the evidence of PW1, PW2, PW3 and PW4, all employees of BSP at the material time. Accused No. 1's connection to this robbery is through the identification evidence of Mr. Alim Khan (PW4). He was standing beside BSP's ATM machine at the time of the robbery. He said, he saw the van break a hole in the wooden bank wall, and one of the robbers going through the same. He identified Accused No. 1, standing there with a cane knife, unmasked and he came into the bank through the hole in the wall. After the robbery, he fled the scene with others. The defence said he's mistaken.

35. Because of the above, as a matter of law, I must caution you on PW4's identification evidence. The State's case against accused no. 1 depends wholly or substantially on the correctness of PW4's identification of him at the crime scene, which the defence says is mistaken. I am warning you of the special need for caution before convicting in reliance on PW4's identification evidence, because an honest and convincing witness could be mistaken. I am also directing you to carefully examine the circumstances in which PW4 made his identification. How long did he observed the accused? At what distance? In what light? Was the observation impeded in any way? Has PW4 ever seen the accused before? How often? Had he any special reasons for remembering the accused? Was there any material discrepancy between the description of the accused given to the police by PW4 when first seen by him and his actual appearance? Was a police identification parade done? Are there any specific weaknesses in PW4's identification evidence.

36. PW4 said he observed the accused for 5 to 8 seconds. He was standing 1 or 2 footsteps away from him. The event occurred on 19 September 2012 between 1pm and 2pm, in broad daylight. PW4 said his observation was not impeded in any way. He said, he's seen the face before in a front page photo of the "Fiji Sun Newspaper" [Defence Exhibit No. 1] on that day. He observed the photo an hour before. He said, there was short beard on him and he was brown skinned. This appeared to be the first time PW4 identified the accused. Because, it was an unusual occasion at the bank at the time, and this may be a special reason for remembering the accused's face. Any special weakness in PW4 identification evidence? No police identification parade was held to test the veracity of PW4's identification evidence. In court, while he pointed out Accused No. 1 in the dock, he referred to him as Tevita Sugu in the Fiji Sun photo. Usumaki had a shorter small beard than Sugu. If you think the circumstances surrounding PW4's identification of Accused No. 1's is of a high quality, you may accept it against Accused No. 1. If you think it otherwise, you may reject it accordingly.

37. PW15 (DC 5035 police) arrested and searched Usumaki on 21 September 2012. He found $1,000 to $2,000 Fijian cash on him. Usumaki, in his sworn evidence said, when they escaped from Naboro Prison on 17 September 2012, he had no money on him. PW18 (DC 4309) photographed the money recovered from Accused No. 1, and provided the photos thereof in photo 30, 31 and 32 of Prosecution Exhibit No. 2. Although the police could not directly connect the money in the photos to the money recovered from Accused No. 1 on 21 September 2012 by PW15, what inferences of facts do these evidence present to you. Your conclusion on them a matters entirely for you.

38. The State's case against Accused No. 2 stands or falls on whether or not you accept his alleged confession in his police charge statement [Prosecution Exhibit No. 1(a) – handwritten version; 1(b) – typed version]. You must read and understand Prosecution Exhibit No. 1(a). Please, disregard the first count, and concentrate on the second count. Line 65 to 75 on the second page and line 1 to 15 on the third page are important. On its face, it is a confession by Accused No. 2 that he drove the vehicle that picked up prison escapees Usumaki, Qurai, Sugu and Qaraniqio on 17 September 2012, and that he also drove the get-away vehicle after the BSP robbery on 19 September 2009.

39. Before you consider the above 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 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.

40. The voluntariness of the above charge statements was disputed by the parties. The defence said, accused no. 2 was assaulted by the police and military officers at the military camp. He said, he was made to crawl like a cow and eat grass. He said, they assaulted him on the ribs and on his body. The police, on the other hand said, he was not assaulted while in their custody. PW7 (SC4363) said, they arrested Accused No. 2 on 20 September 2012. He said, he looked well on the day. This was also confirmed by PW8 (D/SC 2866). PW11 (Sgt 1829) caution interviewed Mr. Prasad on 21 and 27 September 2012. He said, he was in good health and made no complain to him. PW12 (D/Cpl 2561) formally charged Mr. Prasad. He said Mr. Praad was very co-operative and in good health. When cross-examined by the prosecutor, he admitted on oath that he did not complain to the Magistrate when he appeared in court on 24 September 2012. Whether or not you conclude that Mr. Prasad gave his charge statement voluntarily is a matter entirely for you. If you accept his alleged confession, then you must find him guilty as charged. If not, you'll find him not guilty as charged. It is entirely a matter for you.

(d) Cases Against Accused No. 3 [Qurai], Accused No. 4 [Sugu], Accused No. 5 [Qaraniqio] and Accused No. 6 [Dutt]:

41. I am dealing with the four accuseds together, because they are facing the same charge of "receiving stolen property", contrary to section 306(1) of the Crimes Decree 2009. Although I will deal with and consider each accused's case separately, the State's case against them is really based on what is often termed "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 be 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.

42. It is generally accepted among the escaped prisoners (ie. Usumaki (A1), Qurai (A3), Sugu (A4) and Qaraniqio (A5) that, they escaped from Naboro Prison on 17 September 2012, after 8pm. They all said in their sworn evidence that, they had no money when they left Naboro Prison. According to most of them, they want to depart overseas, so that the police will not re-arrest them, and send them back to prison. Most of them appeared worried about the long prison sentences they were facing, and wanted to turn a new leaf in life, although unlawfully. To fulfil their plans and/or objectives, money is essential to achieving the same. We live in a world where money does make things happen.

43. If Mr. Alim Khan's (PW4) identification evidence of Usumaki (Accused No. 1) is to be accepted, then it put Accused No. 1, a Naboro prison escapee in the crime scene of the BSP robbery. And if Mr. Prasad's (Accused No. 2) alleged confession in his charge statement is to be accepted, it links Usumaki (Accused No. 1) and the other prison escapees Qurai (Accused No. 3), Sugu (Accused No. 4) and Qaraniqio (Accused No. 5) together, because they said they stayed together at Cave Island to avoid re-capture. It is possible given these linkages that money was exchanged and the people who received the same knew in no uncertain terms, they were stolen properties. For a start, all the prison escapees were living outside the law, and it would be illogical for them to live within the law, otherwise their future plans would come to a zero. The evidence from the State, and the evidence put forth by the accuseds, gave rise to the above possible scenario. When you piece together the various evidence given in this trial, it is inevitable to come to the above inference of fact, on the available circumstantial evidence. However, it is matter entirely for you.

44. As for Deshwar Dutt's (Accused No. 6) position, on 19 September 2012 after the BSP Bank robbery between 1pm and 2pm, he drank grog and liquor with Mr. Prasad (Accused No. 2) and spent time in a Suva nightclub. On his own alleged confession in his charge statement, Mr. Prasad admitted he drove the escapees from Naboro Prison on 17 September 2012, and was the driver of the getaway vehicle during the BSP robbery. Mr Prasad had a central role in the BSP robbery as he appeared to be the "transport man", being a taxi driver by profession. So by linking up with Mr. Dutt after the robbery on 19 September 2012, he was probably given the money that was recovered from his home and on him on 20 September 2012. When you analysed the totality of the evidence given by the defence and the state, it is not illogical to make the above inferences of fact, given the available circumstantial evidence. The details of all the witnesses' evidence are contained in the record. However, the matter is entirely a matter for you.

45. On 21 September 2012, PW15 (DC 5035) seized $1,000 to $2,000 cash from Usumaki. Photos 30, 31 and 32 of Prosecution Exhibit No. 2, showed photos of the money allegedly recovered from him. PW14 (DC 3836) recovered $3,000 plus Fijian currency, US $100 and AUS $100 and some coins from Solomone Qurai. The Fijian currency were in $100, $50 and $20 bills. Photo 22, 23 and 24 of Prosecution Exhibit No. 2 showed photos of the money allegedly recovered from him. PW13 (DC 3668) recovered $1,041 from Tevita Sugu. Photo 16, 17 and 18 of Prosecution Exhibit No. 2 showed photos of the money allegedly recovered from him. PW16 (PC 4321) seized FJ $2,000 in $100, $50, $20 and $10 bills, AUS $120 and US $45 from Epeli Qaraniqio. Photos 19, 20 and 21 showed photos of the money allegedly recovered from him. PW9 (PC 3453) seized AU $260 and FJ $171 from Mr. Dutt on 20 September 2012 at "Tropic Towers". Later PW15 (DC 5035) and PW17 (DC 4431) seized FJ $6,300 from Mr. Dutt's home. Photo 33, 34 and 35 of Prosecution Exhibit NO. 2 showed some of the money allegedly seized from him. One would ask how come these people got so much money immediately after the BSP robbery? How you treat these evidence is entirely a matter for you.

46. Remember, the burden to prove the accuseds' guilt beyond reasonable doubt lies on the prosecution throughout the trial, and it never shifts to the accuseds, at any stage of the trial. The accuseds is not required to prove their innocence, or prove anything at all. In fact, they are 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 accuseds' 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 so that you are not sure of the accuseds' guilt, you must find them not guilty as charged.

(i) Count No. 1	Aggravated Robbery	Accused No. 1: Guilty or Not Guilty Accused No. 2: Guilty or Not Guilty
(ii) Count No. 2	Receiving Stolen Property	Accused No. 3: Guilty or Not Guilty
Count No. 3	"	Accused No. 4: Guilty or Not Guilty
Count No. 4	"	Accused No. 5: Guilty or Not Guilty
Count No. 5	"	Accused No. 6: Guilty or Not Guilty

48. 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.

Solicitor for the State : Office of the Director of Public Prosecution, Suva

High Court of Fiji

State v Usumaki - Summing Up [2015] FJHC 107; HAC338.2012S (20 February 2015)