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State v Usumaki - Judgment [2015] FJHC 109; HAC338.2012S (23 February 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 338 OF 2012S

STATE

vs

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
Judgment : 23 February, 2015

JUDGMENT

1. On the 7th day of trial, the third assessor was sick, and the proceeding continued with two assessors, pursuant to section 225 (1) and (2) of the Criminal Procedure Decree 2009. After 10 days trial, the remaining two assessors found Accuseds No. 1 and 2 not guilty of "Aggravated Robbery" (count no. 1), and Accuseds No. 3, 4, 5 and 6 not guilty of "Receiving Stolen Properties" (counts no. 2 to 5).
   
2. It would appear the two assessors have not accepted the prosecution's version of events, and have found that the prosecution had not proven the accuseds' guilt beyond a reasonable doubt.
   
3. The law at this stage of the trial is section 237 (1), (2), (4) and (5) of the Criminal Procedure Decree 2009, which reads as follows:
   

"...237 (1) When the case for the prosecution and the defence is closed, the judge shall sum up and shall then require each of the assessors to state their opinion orally, and shall record each opinion.

(2) The judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors...

(4) When the judge does not agree with the majority opinion of the assessors, the judge shall give reasons for differing with the majority opinion, which shall be –

(a) written down; and

(b) pronounced in open court.

(5) In every such case the judge's summing up and the decision of the court together with (where appropriate) the judge's reasons for differing with the majority opinion of the assessors, shall collectively be deemed to be the judgment of the court for... all purposes..."

4. In Ram Dulare, Chandar Bhan and Permal Naidu vs Reginam [1956 – 57], Fiji Law Report, Volume 5, pages 1 to 6, page 3, the Fiji Court of Appeal, said the following, on an equivalent section of the then Criminal Procedure Code:
   

"...In our opinion learned counsel for the appellants is confusing the functions of the assessors with those of a Jury in a trial. In the case of the King v. Joseph 1948, Appeal Case 215 the Privy Council pointed out that the assessors have no power to try or to convict and their duty is to offer opinions which might help the trial Judge. The responsibility for arriving at a decision and of giving judgment in a trial by the High Court sitting with the assessors is that of the trial Judge and the trial judge alone and in the terms of the Criminal Procedure Code, section 308, he is not bound to follow the opinion of the assessors..."

5. In Sakiusa Rokonabete v The State, Criminal Appeal No. AAU 0048 of 2005, the Fiji Court of Appeal said as follows:
   

"...In Fiji, the assessors are not the sole judge of facts. The judge is the sole judge of fact in respect of guilt, and the assessors are there only, to offer their opinions, based on their views of the facts..."

6. I have reviewed the evidence called in the trial, and I have directed myself in accordance with the Summing Up I gave the assessors on 20 February, 2015. The two assessor's verdict was not perverse. It was open to them to reach such conclusion on the evidence. However, I am not bound by their opinion. On my analysis of the case based on the evidence, and on my assessment of the credibility of the witnesses, I am bound to disagree with the two assessors' opinions. I will consider each accused's case below.
   
7. First, Accused No. 1 (Mr Usumaki). He was charged with "Aggravated Robbery" [count no.1]. The particulars of offence were outlined in count no. 1. The elements of the offence were outlined in paragraph 9 of the Summing Up, and a discussion on the same was considered in paragraphs 10 and 11. The aggravated robbery at Bank of South Pacific [BSP] Bank on 19 September 2012, between 1pm and 2pm, was not disputed by the parties. PW1, PW2, PW3 and PW4 (all employees of BSP at the time) said in their evidence that armed men raided the Bank at the time, and stole money in excess of $43,000 [see pages 23 to 37 of the record]. None of the accuseds disputed the fact of aggravated robbery at the time.
   
8. The prosecution's evidence against Accused No. 1 were three-folds. First, was Mr. Alim Khan's [PW4] identification evidence of him, at the crime scene, at the material time. Second, was the combined effect of the evidence of DC 5035 [PW15] and PC 421 [PW16] who seized $1,000 to $2,000 from the accused at Cave Island on 21 September 2012. Third, was the effect of PC 4309's [PW18] photo 30, 31 and 32 of Prosecution Exhibit No. 2 of the money allegedly found on the accused on 21 September 2012.
   
9. Accused No. 1's own sworn evidence appear to strengthen the prosecution's case against him. We will now discuss the above evidence, but we will begin with the accused's own evidence, because his evidence sets the foundation for all the other evidence. Mr. Usumaki admitted on oath that, he was a serving prisoner on 17 September 2012 at Naboro Prison, and escaped therefrom with Accused No. 3 [Qurai], 4 [Sugu], 5 [Qaraniqio] and another, after 8pm. He said, he and his friends came to the road, caught a vehicle and came to Veisari. At Veisari, they caught a fiberglass boat, well supplied with food, water and clothes and sail to Cave Island. According to him, they stayed there from 17 to 21 September 2012, when they were recaptured by police and other officials. So, in his evidence, they were at the Island for 4 days. They planned to go overseas by any means to get a new life. Obviously, to do the above they would certainly need money. He denied the aggravated robbery charge against him.
   

10. Against the above background, two days after the prison escape, the BSP Bank was robbed at daylight on 19 November 2012, between 1pm and 2pm. PW4 [Mr Khan] was standing near the bank ATM machine, from the inside of the bank, about to service the same. The bank wall separating him from inside the bank and the outside of the bank was a wooden wall. Suddenly he heard a loud "bang!" sound on the wall. He heard another loud "bang!" sound. A long white van had smashed a hole into the wall and into the Bank. PW4 said, he saw masked men armed with cane knives coming out of the van and coming through the hole into the bank.

11. PW4 said, he saw a man come out of the van and was coming through the hole in the wall. He was 1 or 2 footsteps away from him. He observed his face for 5 to 8 seconds. Nothing was obstructing his view. It was broad daylight. He said, he saw the man's face in the front page of the "Fiji Sun newspaper" an hour before the incident. The front page of the "Fiji Sun" newspaper was tendered as Defence Exhibit No. 1, and the photo was in colour. He said, the man's eyes were red, he was brown skinned and had a short beard on him. PW4 said, the man was carrying a cane knife. PW4 was given two opportunities to observe anyone in the courtroom who resembled the man he saw on that day. He walked around the courtroom, in front, side and back of the dock. He pointed Mr. Usumaki as the man he saw on that day.

12. I have warned myself in accordance with what I said in paragraph 35 of my Summing Up. I am also examining the circumstances in which PW4 identified Mr. Usumaki. PW4 observed the accused for 5 to 8 seconds. I've looked at my watch, and 5 to 8 seconds is a long time to observe a person's face in any situation. PW4 said the accused was 1 to 2 footsteps away from him at the time. That was very close indeed. It was between 1pm and 2pm on 19 September 2012, in broad daylight. The lighting was excellent in this identification. PW4 said there was no impediment in the way while observing the accused's face. PW4 said, he had not seen his face before, but observed his face in that day's front page of the Fiji Sun Newspaper. In court, PW4 identified the face in the Fiji Sun newspaper as Tevita Sugu, rather than Usumaki. PW4 said the accused had a small beard. On trial date, both Mr Usumaki and Mr Sugu had shaved themselves. In the Fiji Sun photograph, both Mr. Sugu and Mr. Usumaki had small beards, although Mr. Usumaki's beard was smaller than Mr. Sugu.

13. Was there any specific weaknesses in PW4's identification evidence against Mr. Usumaki. The first one, was when PW4 said the man he saw was the one he pointed out in the courtroom [ie. Mr. Usumaki], and then went out to point to Mr. Sugu in the "Fiji Sun" front page photo as Mr. Sugu. Second, there was no police identification parade done in this case to test the veracity of PW4's identification evidence. Third, on the beard issue, it appeared the photos in the Fiji Sun showed Mr. Usumaki with the smaller beard and Mr. Sugu with the bigger beard – in any event, there were two men with two beards in the photos.

14. There are eight factors to be examined and considered in testing the quality of PW4's identification evidence, given the circumstances surrounding the identification. In those factors, in only two, the identification evidence was weak ie. no police identification parade and the mistaken identification through the Fiji Sun newspaper. On the other factors, PW4's identification of Usumaki was strong. Because of the above, I have come to the conclusion that PW4's identification of Mr. Usumaki at the material time at the Bank of South Pacific [BSP] robbery was of a high quality, and I accept the same as true and correct.

15. Furthermore, the evidence of PW15 and PW18, the accused's own sworn evidence, including PW4's identification evidence of Mr. Usumaki, at the crime scene, provide strong circumstantial evidence to link Mr. Usumaki to the alleged BSP bank robbery. PW15 [DC 5035] said, when the police arrested Mr. Usumaki on Cave Island on 21 September 2012 [4 days after the Naboro Prison Escape], they found $1,000 to $2,000 Fijian currencies in his pockets, in $100 and $50 bills. PW18 [PC 4309] took photo 30, 31 and 32 of Prosecution Exhibit NO. 2, as evidence of the money allegedly recovered from Mr. Usumaki. I direct myself on "circumstantial evidence" as described in paragraph 41 of my Summing Up. What do all the above evidence suggest? In my view, when looking at all the available evidence in its totality, it does connect Mr. Josaia Usumaki to the alleged BSP robbery at Samabula on 19 September 2012, between 1pm and 2pm. As the final judge of fact, I find as a matter of fact that, Mr. Josaia Usumaki, was one of those men that violently robbed BSP Bank of $70,000 on 19 September 2012, between 1pm and 2pm. I find the prosecution witnesses against him all credible witness. I reject his denials. I find Mr. Usumaki not a credible witness. For a start, he was an escape prisoner, a serving prisoner, and from the start, had choosen to live outside the law. How can I expect him to be a credible witness, and place any reliance on his denials. On the evidence, I don't accept the assessor's opinion, and I find Mr. Usumaki [Accused No. 1] guilty as charged on count no. 1.

Case Against Accused No. 2 [Kunal Prasad]:

16. The State's case against Mr. Prasad is founded on his alleged confession to the police in his charge statement [see Prosecution Exhibit No. 1(a) – hand written version; 1(b) – typed version]. In the alleged confession, Mr. Prasad admitted he picked up the 5 escapees from Naboro Prison on 17 September 2012 after 8pm, and later picked up the robbers after the alleged BSP robbery on 19 September 2012. PW12 [D/Cpl 2561] formally charged Mr. Prasad at Valelevu Police Station on 23 September 2012. The charge was formally put to Mr. Prasad. He signed the same, and it was counter – signed by PW12. PW12 said Mr. Prasad was very co-operative and in good health during the formal charging. I have directed myself of what I said in paragraph 39 of my Summing Up. If I accept that the alleged confession was made by Mr. Prasad, and it is true, I am entitled to rely on it, against him.

17. As to the voluntariness of the alleged confession, the parties' positions were at odds with one another. The police said, Mr. Prasad was not assaulted, threatened or made promises to confess while in police custody. PW12 said he was co-operative and in good health when formally charged. PW7 [SC 4363] and PW8 [SC 2866] arrested Mr. Prasad from "Tropic Towers Motel" on 20 September 2012. They said, Mr Prasad was in good health. PW11 [Sgt 1829] caution interviewed Mr. Prasad on 21 and 27 September 2012. He said, on both occasion Mr. Prasad was in good health and made no complain to him on any matter whatsoever. When he first appeared before the Chief Magistrate on 24 September 2012, he never complain about police behaviour.

18. Yet, when he gave evidence, Mr. Prasad said exactly the opposite. He said, the police took him to the Nabua Military camp and he was forced to walk like a cow. He said, he was forced to eat grass. He said, he was assaulted by police. However, he produced no medical reports to substantiate his allegation.

19. So, it becomes a matter of the credibility of witnesses. I have carefully listened to and observed the demeanour of the witnesses for the State and the defence. I find the State witnesses to be credible witnesses. They were forthright. They were not evasive. I find Mr. Prasad not to be a credible witness. He made no complaints whatsoever to the Chief Magistrate about police behaviour, when he first appeared before him, a day after making the alleged confession. Given the above, I find that Mr. Prasad gave his alleged confession in his charged statement [Prosecution Exhibit 1(a)] voluntarily, and the same was true, and I accept the evidence as evidence against him. I reject his denials. In my view, he was not a credible witness.

20. On the evidence, I find as a matter of fact that, Mr. Prasad aided and abetted the robbers of the BSP Bank on 19 September 2012, by being their get-away driver, and as such, I find him guilty as charged on count no. 1.

Case Against Qurai [Accused No. 3]; Sugu [Accused No. 4]. Qaraniqio [Accused No. 5] and Dutt [Accused No. 6]:

21. I will deal with the four accuseds together because they are charged with the same offence of "receiving stolen property". The State's case against the four accuseds were based on what is often termed "circumstantial evidence". I direct myself on what I said in paragraph 41 of my Summing Up on circumstantial evidence. For the escaped prisoners, that is, Qurai [Accused No. 3], Sugu [Accused No. 4] and Qaraniqio [Accused No. 5], they all said on oath that, they escaped from Naboro Prison on 17 September 2012, after 8pm. They said, they caught a vehicle from Naboro and came to Veisari. At Veisari, they said a fiberglass boat, with food, water and clothes supplies, were waiting for them. They went in the same to Cave Island, and according to them, they stayed there from 17 to 21 September 2012, when they were later re-captured by police. What we saw when they moved from prison to Cave Island, they were getting outside assistance in terms of a vehicle from Naboro to Veisari, and a boat from Veisari to Cave Island. Although they said, they remained on Cave Island from 17 to 21 September 2012 (4 days), are we to accept this, given the level of outside support they had from Naboro to Cave Island?

22. With the above background providing the surrounding circumstances, the BSP Bank robbery occurred on 19 September 2012, between 1pm and 2pm. This was 2 days after the alleged prison escape from Naboro by the above four accuseds, including Accused No. 1 [Usumaki]. PW4 [Khan] identified Accused No. 1 at the crime scene, at the material time, in the middle of the BSP Bank robbery. I have accepted PW4's identification of Mr. Usumaki at the crime scene, at the material time, as credible evidence. Accused No. 2 [Mr. Prasad] has confessed to been the get-away driver at the end of the BSP robbery, and I have accepted the confession as credible evidence. Mr. Usumaki and Mr. Prasad are the links to the above four accuseds, that is, Qurai, Sugu, Qaraniqio and Dutt. It is a logical assumption that, after the BSP robbery, Mr. Usumaki returned to Cave Island, and there gave some money to Qurai, Sugu and Qaraniqio and they well knew the same were stolen properties.

23. Mr. Usumaki giving the money to the other escape prisoners was part and parcel of their plan to go overseas from Fiji. This was their stated desire when they gave sworn evidence. As for Mr. Dutt, he drank grog and visited a nightclub on the 19 September 2012, where he and Mr. Prasad consumed liquor. It was a logical assumption that Mr. Prasad would have given Mr. Dutt, some money, and Mr. Dutt would know it was stolen property.

24. Various police officers had given evidence of finding money on the prison escapees. PW14 [DC 3836] said, he seized $3,000 plus in Fijian currencies in $100, $50 and $20 bills; US $100 and AUS $100, and some coins from Qurai, on cave Island on 21 September 2012. PW18 [PC4309] photographed part of the alleged money in photo No. 22, 23 and 24 of Prosecution No. 2, as part of the alleged money taken from Mr. Qurai, PW13 [DC 3668] said, he seized $1,041 cash from Mr. Sugu on 21 September 2012 at Cave Island. It was in $100, $50, $20 and $10 bills, including some coins. PW18 [PC 4309] photographed the alleged money in photo 16, 17 and 18 of Prosecution Exhibit No. 2, as alleged money seized from Mr. Sugu. PW16 [PC 4321] said, he seized $2,020 in $100, $50, $20 and $10 bills; AUS $120 and $USA 45, and some coins from Mr. Qaraniqio on Cave Island on 21 September 2012. PW18 photographed the alleged money as photo 19, 20 and 21 of Prosecution Exhibit No. 2, as the alleged money found on Mr. Qaraniqio. These escaping prisoners had no money when they escaped from Naboro Prison on 17 September 2012, and yet 4 days later [ie. 21 September 2012], they were found with money that the average citizen of this country does not get in a week. What do these circumstantial evidences lead you to conclude? In my view, Mr. Qurai, Mr. Sugu and Mr. Qaraniqio received money from Mr. Usumaki, well knowing they were stolen properties, and I make the above my finding of facts. I therefore find Mr. Qurai, Mr. Sugu and Mr. Qaraniqo guilty as charged.

25. As for Mr. Dutt, soon after the BSP Bank robbery on 19 September 2012, he was seen drinking grog and liquor with Mr. Prasad, who confessed to being the get-away driver. It is not illogical for Mr. Dutt to receive the stolen property from Mr. Prasad or others, as stolen properties and he well knew they were stolen properties. In my view, the money found at his house ie. $6,000 plus and the one found with him at "Tropic Towers" were stolen properties, and he well knew they were stolen properties.

26. I have listened very carefully to Mr. Qurai's, Mr. Sugu's, Mr. Qaraniqio's and Mr. Dutt's evidence, including Mr. Dutt's witnesses. I don't accept the accuseds' denials of the charge. I find the escape prisoner's denials as not credible, and consequentially I reject them. As for Mr. Dutt's denial, I reject them. He was a very evasive and argumentative witness, and I therefore place no reliance whatsoever on his version of events. Despite calling three witnesses, they were all related to him, and I question their objectivity. Therefore, I place no reliance on their evidence.

27. Looking at the totality of the evidence, I find the prosecution's witnesses' evidence to be credible, and I accept them. As for the accused's denials of the allegations against them, I reject the same. I find their evidence not credible. Given the above and on the totality of the evidence, I find Mr. Usumaki and Mr. Prasad guilty as charged on count no. 1, and I convict them accordingly. On the other counts of receiving stolen property [ie. Count No. 2, 3, 4 and 5] I find Mr. Qurai, Mr. Sugu, Mr. Qaraniqio and Mr. Dutt guilty as charged, and I convict them accordingly.

Salesi Temo

JUDGE

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

Solicitor for Accused No. 1 : K. Singh, Barrister and Solicitor, Suva.

Solicitor for Accused No. 2 : E. Koroi, Barrister and Solicitor, Suva.

Solicitor for Accused No. 3 : R. Drau, Barrister and Solicitor, Suva.

Solicitor for Accused No. 4 : T. Leweni, Barrister and Solicitor, Suva.

Solicitor for Accused No. 5 : Accused in Person

Solicitor for Accused No. 6 : S. Kumar, Barrister and Solicitor, Nausori.