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State v Gonevou - Summing Up [2015] FJHC 313; HAC147.2013S (24 April 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 147 OF 2013S

STATE

vs

1. TEVITA GONEVOU
2. JOELI SOAQALI
3. PETERO TUIVAKALEA
   

. Counsels : Ms. S. Navia for State
Ms. S. Vaniqi for Accused No. 1
Accused No. 2 In Person
Mr. R. Vananalagi for Accused No.3
Hearings : 13 to 17, 21 and 22 April, 2015
Summing Up : 24 April, 2015

SUMMING UP

1. 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, Defence Counsels and Accused No. 2 have made submissions to you, about how you should find the facts of this case. That is in accordance with their duties as State, Defence Counsels and Accused No. 2, 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 they need not be unanimous. Your opinions are not binding on me, but I will give them the greatest weight, when I deliver my judgment.
   

2. 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 accuseds. There is no obligation on the accuseds to prove their 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 accuseds' guilt, before you can express an opinion that they are guilty. If you have any reasonable doubt about their guilt, then you must express an opinion, that they are 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 victim. Your duty is to find the facts based on the evidence, and to apply the law to those facts, without fear, favor 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 assessors and judges of fact, each of you will have to answer the following question:
   
   • (i) Did the accuseds, on 2 April 2013, at Pacific Harbour in the Central Division, armed with an offensive weapon, stole $45,281.57 from the complainant?
     

E. THE OFFENCE AND IT'S ELEMENTS
9. The accusseds were charged with "Aggravated Robbery", contrary to Section 311(1)(b) of the Crimes Decree 2009. For the accuseds to be found guilty of the offence, the prosecution must prove beyond reasonable doubt, the following elements:

(i) the accused;
(ii) steals;
(iii) the complainant's property, and
(iv) before, during or after the theft;
(v) uses an offensive weapon to force, or
(vi) threatens to use an offensive weapon to force;
(vii) another person;
(viii) with intent to commit theft, or
(ix) to escape from the scene.

10. "Stealing" is the act of taking away someone's property or properties without his permission, and with an intention to permanently deprive him of the ownership of that property or properties. "Force" means "any type of force, whether or not done physically or verbally, for example, beating someone with a stone or threatening to do the same".
    
11. An "offensive weapon" is any "article made, or adapted for use for causing injury to, or incapacitating a person", for example, a cane knife, pinch bar, gun, iron rod, piece of stone, or even a person's fist used in punching and injuring a person. The offensive weapon must be capable of causing injury to, or incapacitating a person, when used by an offender, to commit the offence. The "offensive weapon" is used by the offender to force or frighten the complainant to part with his or her property.
    
12. You will note in the information that, the prosecution, in their particulars of offence, began with the phrase, "...TEVITA GONEVOU, JOELI SOAQALI and PETERO TUIVAKALEA..." 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 it's case, in effect, 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 the accused no.1, 2 and 3 assisted each other to rob the complainant of $45,281.57, at the material time. If the accuseds assisted each other in the planning and execution of the robbery on 2 April 2013, they are all liable for the offence. It's immaterial whether or not one performed a small or major task in committing the crime, they are all liable together.

14. Furthermore, in this case, there are three 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 their police caution interview statements, that is, Prosecution Exhibit No. 4(A) and 4(b) for Accused No.1, Prosecution Exhibit No.5 (A) and 5(B) for Accused No. 2, and Prosecution Exhibit No.6(A) and 6(B) for accused no.3, you can only use the statements made therein against the maker of the statement regarding his role in the commission of the offence. You cannot use the maker's statement against his co-accuseds as evidence against his co-accuseds, because these statements are not sworn evidence, and are therefore inadmissible evidence. You must totally disregard what the accused said about his co-accuseds, in his police caution interview statements, regarding their role in the commission of the offence, because as a matter of law, they are inadmissible evidence. However, you can use what he said about himself in his role, in the crime.
    

6. THE PROSECUTION'S CASE

15. The prosecution's cases were as follows. According to the prosecution, Accused No. 1 (Tevita Gonevou) masterminded the robbery on the complainant, on 2 April 2013. Since Christmas 2012, Accused No. 1 got inside information on how the complainant's supermarkets do their banking at BSP Bank Pacific Harbour. The complainant's family ran three supermarkets in the Navua area. Accused No. 1 knew a person who worked for the complainant's supermarkets. Through this contact, Accused No. 1 became aware of how the complainant's supermarkets does it's banking and the amount of money they often brought to the bank. Accused No. 1 planned to rob the complainant's supermarkets 2013 Easter weekend taking.
    
16. On the 1st April 2013, Accused No. 1 contacted a person who will execute the robbery. He brought another person with him. According to the prosecution, accuseds no. 2 (Joeli Soaqali) and 3 (Petero Tuivakalea) were the persons brought in to execute the robbery. On 2 April 2013 (Tuesday), accused no. 2 and 3 waited near the Pacific Harbour Post Office, as the vehicle carrying the complainant (PW1) and their money came towards the BSP Bank Pacific Harbour. According to the prosecution, accused no. 3 ran towards the vehicle, ran towards the complainant and grabbed the bag he was carrying. Inside the bag was $45,281.57 in cash, cheques and coins. The two struggled and fell into a nearby drain, and accused no. 3 punched PW1 in the face. Accused no. 2 followed them, picked up a stone, and hit the complainant's head three times. He was injured as a result. The complainant let go of the bag. A while later Accused No. 2 and 3 fled the scene with the bag.
    
17. According to the prosecution, the alarm was raised. The police chased Accused No. 2 and 3 into the bush. They later arrested them with their bags. $16,801.00 was found in Accused No. 2's bag. $11,578.30 was found in Accused No. 3's bag. All the accuseds were later caution interviewed by police at Navua Police Station. They all admitted the offence. They were charged with aggravated robbery, and appeared in the Navua Magistrate Court on 5 April 2013. Because of the above, the prosecution is asking you, as assessors and judges of fact, to find all the accuseds guilty as charged. That was the case for the prosecution.
    

7. THE ACCUSEDS' CASES

18. On 15 April 2015, the first day of the trial proper, the information was put to all three accuseds in the presence of their lawyers. Accused No. 2 had previously waived his right to counsel and was representing himself. All three accuseds pleaded not guilty to the charge. In other words, they denied the allegation against them. When a prima facie case was found against each of them at the end of the prosecution's case, Accused No. 1 choose to give sworn evidence, and called his wife (DW2) and daughter (DW3) as his witnesses. Accused No. 2 choose to give sworn evidence, and call no witness. Likewise, Accused No. 3 choose to give sworn evidence, and called no witness. What each of the accuseds did was their right, although the burden of proof is not on them. The burden of proof is always on the prosecution from the start to the end of the trial.
    
19. The accuseds cases were very simple. They all denied the allegation against them. They said, they did not rob the complainant at the material time. This was so, despite their alleged confessions to the police. As to their alleged confessions to the police, they each said, the police assaulted them and forced them to make their statements. They said the police also fabricated their answers in their police caution interview statements. They said, they were forced to sign their police caution interview statements. They said, they gave their statements involuntarily and the same was given without their free will. As such, they ask you not to rely on their caution interview statements, as evidence against them.
    
20. As to the complainant (PW1) identifying Accused No. 2 and 3 at the crime scene, when they were allegedly robbing him, the accuseds said PW1's identification was mistaken. As to the money discovered on them when arrested by police, Accused No. 2 and 3 said it was their own money from their farming business. Given the above, the accuseds asks you, as assessors and judges of fact, to find them not guilty as charged. That was the case for the defence.
    

8. ANALYSIS OF THE EVIDENCE

(a) The Agreed Facts:

21. As far as Accused No. 1 was concerned, his counsel and the prosecution had submitted an "Agreed Facts". The "Agreed Facts" contained 18 paragraphs of undisputed facts. A copy is with you. It is dated 9 May 2014. Please, read it carefully. As far as Accused No.1 is concerned, he does not dispute that the complainant (PW1), was violently robbed of $45,281.57, at the material time. As far as Accused No. 1 is concerned, you may take it that the prosecution had proven those facts beyond a reasonable doubt. You may treat the "Agreed Facts" as established facts, as far as Accused No. 1 is concerned.
    
22. On 1 April 2015, Accused No. 2 was represented by counsel. Through his counsel, he submitted an "Agreed Facts" with the prosecution. The "Agreed Facts" contained 11 paragraphs of undisputed facts. It was dated 1 April 2015. A copy is with you. Please read it carefully. As far as Accused No. 2 was concerned, he does not dispute that the complainant (PW1) was attacked and robbed of some money, at the material time. You may treat the "Agreed Facts" as established facts, because the parties do not dispute the same.
    
23. As for Accused No. 3, in his "Agreed Facts" with the prosecution, dated 1 April 2015, he only agreed that the incident occurred on 2 April 2013. You may treat the same as an established fact, because the parties do not dispute the same.
    

(b) States Case Against all three Accuseds:

24. The State's case against Accused No. 1 was based fundamentally on one type of evidence, that is, his alleged confession. No state witness saw him robbing the complainant (PW1) at the material time. No stolen money was recovered from him. His only connection to the crime was his alleged confession to the police. Your decision on whether or not you find him guilty as charged, will depend on whether or not you accept his alleged confession to the police. You will only accept his alleged confession to the police if you find that he in fact gave his statements; the statements were true, and he gave the same voluntarily. We will discuss this later in detail.
    
25. As for Accused No. 2, the State's case against him was founded basically on three types of evidence, first, the complainant's identification of him at the crime scene at the material time, second, his alleged confession to the police, and third, his recent possession of stolen property. We will discuss these in detail later.
    
26. As for Accused No. 3, the State's case against him was somewhat similar to that of Accused No. 2.
    

(c) State's Case Against Accused No. 1:
27. The State's case against Accused No. 1 stands or falls on whether or not you accept his alleged confession to the police. DC 2168 Nacani Bolabiu [PW7] caution interview Accused No. 1 on 4 April 2013, two days after the alleged robbery. He started at 9.50am and stopped 4 hours 10 minutes later at 2.00pm. He offered the accused a break after Question 32, but the accused declined to take the break. At 2pm, DC 2168 had asked the accused a total of 70 questions and the accused had given 70 answers. You must read and understand these 70 questions and answers carefully.

28. In questions and answers 5 and 7, the accused was given his right to counsel. He was given his right to contact his family and wife (question and answer 6). The allegation was put to him in question 9. He was given the right to see a doctor (question 10). According to the interview notes, which were tendered as Prosecution Exhibit No. 4 (A) and 4(B), the accused declined to see a lawyer, declined to see a family member or his wife and declined to see a doctor. From questions and answers 26 to 69, the accused admitted his part in the alleged robbery of the complainant (PW1), at the material time. Note that what he said about his co-accuseds in his caution interview statements cannot be used as evidence against his co-accuseds, but his statements regarding his role in his commission of the crime, can be used as evidence against him. In questions and answers 26 to 69, Accused No. 1 admitted he masterminded the alleged robbery on the complainant (PW1), at the material time. He admitted, he got inside information on the complainant's business and his banking methods, and the money he brings to bank. He admitted he organized the "boys" to carry out the robbery.
    
29. Note in his "Agreed Facts", he does not deny the robbery on the complainant (PW1) at the material time and the amount of money allegedly stolen. Please, refer to paragraph 21 hereof.
    
30. However, before you consider his alleged confession as mentioned in paragraph 28 hereof, 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, and they were the truth, as judges of fact, you are entitled to rely on them for or against the accused.
    
31. In this case, the voluntariness of Accused No. 1's alleged confession was hotly disputed by the parties. The Police witnesses [DC 2168 Nacani Bolabiu (PW7), caution interview officer and SC 1746 Leone Sauduadua (PW4), witnessing officer], said, they did not assault, threaten or made unfair promises to accused No. 1 while he was in their custody. They said the accused was very co-operative throughout the interview, and he gave his statement voluntarily and out of his own free will. The accused, on the other hand, said exactly the opposite. He said, the police assaulted him repeatedly. He lost two front teeth. He was bleeding heavily. He produced the photos of his blood stained shirt in court to verify the same ie. Defence Exhibit No. 2 and 3. However, the accused admitted he did not complain to the Navua Magistrate Court when he first appeared there on 5 April 2013 – one day after the alleged interview. He didn't complain to the Magistrate about the alleged police assault. He didn't ask for a medical examination to confirm the injuries allegedly received from the police. Neither did he complain to the High Court when he first appeared there on 19 April 2013, 15 days after his alleged interview.
    
32. You have heard the parties' witnesses. You have watched their demeanors in the Courtroom. Whose version of events to accept on the voluntariness of Accused No. 1's alleged confession is entirely a matter for you. If you accept that the accused gave his alleged confession voluntarily and they were the truth, you may find him guilty as charged. If you do not accept that the accused gave his alleged confession voluntarily, and they were not the truth, you may find him not guilty as charged. It is a matter entirely for you.
    

(d) State's Case Against Accused No. 2:

33. The first type of evidence the State relied upon against accused no. 2 was the complainant (PW1) identifying him, at the crime scene, at the material time, assisting accused no. 3 snatch the bag containing the money from him. PW1 said, accused no. 2 also got a stone and struck him three times on the head, and one on the shoulder. As a result, he let go of the bag containing $45,000 plus. He pointed accused no. 2 out in the Courtroom as the person who did the above to him, at the material time. He said, he observed accused no.2's face for about 5 to 10 seconds. He said, accused no. 2 was one footstep away from him. He said the robbery occurred between 10.45 and 11.15am in broad daylight. He said, there was no impediment in the way when observing accused no. 2's face. He said, this was the first time he saw accused no. 2. It would appear that a special reason for PW1 to remember accused no. 2's face that day, was what he did to him that day. No police identification parade was done.
    
34. In any event, when assessing PW1's identification evidence against accused no. 2, 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.
    
35. You have heard the complainant (PW1) give evidence. He pointed Accused No. 2 as the person who came to him during the robbery and hit him 3 times on the head with a stone. He was 1 footstep away from him. He observed his face for 5 to 10 seconds. While looking at my watch, this was a long time to observe someone's face. It was broad daylight. There was no impediment in the way. He hadn't seen the accused before. However, the experience he had that day would make him not forget the accused's face. Although, a weakness in the identification evidence was that no police identification parade was done to test the veracity of PW1's identification evidence, the circumstances surrounding PW1's identification appeared good to the extent that it was capable of dampening the effect of the above weakness. However, it is a matter entirely for you.
    
36. The second type of evidence the state is relying on against accused no. 2 is his alleged confession to the police. Corporal 2821 Mataiasi Raivuni (PW8) caution interviewed accused no. 2 on 3 April 2013, a day after the alleged robbery. He started at 11.25am and stopped at 12.56pm for lunch. There was a 2 hours break. He started again at 3.10pm and stopped at 4pm. Then there was another 2 hours break. Then he started again at 6.10pm and finished at 7.35pm. At the end of the interview, 80 questions had been asked and 80 answers were given. The interview notes were tendered as Prosecution Exhibit No. 5(A) and 5(B). The accused was given his legal rights and the standard meal and rest breaks. He was also formally cautioned when the allegation was put to him.
    
37. From questions and answers 18 to 78, accused no. 2 admitted he was part of the group that robbed the complainant of $45,000 plus at the material time. You will have to read and understand questions and answers 18 to 78. But bear in mind the direction I gave you in paragraph 14 hereof. You must also, when assessing accused no. 2's alleged confession, bear in mind the direction I gave in paragraph 30 hereof.
    
38. The voluntariness of accused no. 2's alleged confession was disputed by the parties during the trial. The police said [ie. PW8 and retired Police Inspector Levani (PW9)], they did not assault, threaten or made false promises to accused no. 2 when he was caution interviewed. They said, accused no. 2 was given his legal rights, the standard meal and rest breaks, and he was very co-operative during his interview. They said, the accused gave his statements voluntarily and out of his own free will. The accused said exactly the opposite. He said, he was repeatedly assaulted when arrested, and when at the Pacific Harbour police post and when at Navua Police Station. He said, he was knocked unconscious by the police officers. He said, he was so scared that he admitted whatever the police told him to admit. He said, the police fabricated his answers. However, he admitted he didn't complain about police behavior when he first appeared in the Navua Magistrate Court on 5 April 2013 – 2 days after the caution interview; nor the High Court on 19 April 2013. He also admitted, he didn't ask the Magistrate Court or High Court for an order for his medical examination to confirm injuries received from police assaults.
    
39. Which version of events to accept is a matter entirely for you? If you accept the alleged confession, you will have to find accused no. 2 guilty as charged. If you don't accept his alleged confession, you will have to work on the other evidence to find him guilty or not guilty as charged. It is a matter entirely for you.
    
40. The last type of evidence the State relied on against accused no. 2 was that $16,000 plus in cash was found on him when arrested by police on 2 April 2013, a while after the robbery. The police say this was part of the money the complainant (PW1) had that day. The accused admitted he was a cash crop farmer. What you make of this evidence is entirely a matter for you.
    

(e) Case Against Accused No. 3
41. The State's case against Accused No. 3 is somewhat similar to Accused No. 2. First, on the complainant (PW1) identifying accused no. 3 as the first person who rushed towards him, at the material time, to grab the money bag from him. PW1 said, accused no. 3 rushed to him, grab the money bag, but he held the same, and both of them ended up in the drain, struggling against each other. PW1 said, accused no. 3 punched him twice on the face and shoulder. PW1 said, he saw accused no. 3's face for 5 to 10 seconds. He said, it was broad daylight. He was close to him, as they were struggling and holding each other in the drain. PW1 said, there was no impediment in the way when he saw his face. That was the first time he saw accused no. 3. However, what he did to him that day was a special reason for remembering his face forever. PW1 admitted there was no police identification parade held.

42. In assessing PW1's identification of accused no. 3 at the material time, you must follow the directions I gave in paragraph 34 hereof. If you find that the quality of PW1's identification of accused no. 3 is of a high quality, you can rely on it against accused no. 3. If it's otherwise, you may reject it. Given the observations made in paragraph 41 hereof, the circumstances surrounding PW1's identifying accused no. 3, appear strong although there was no properly held police identification parade to test the veracity of PW1's identification evidence. In any event, it is a matter entirely for you.
    
43. Second, the State relied on accused no. 3's alleged confession. He was caution-interviewed by D/Corporal 2105 Senitiki Nasave (PW10), on 2 and 3 April 2013, at Navua Police Station, in the English language. On 2 April 2013, the interview started at 7.52pm and finished 1 hour 32 minutes later at 9.24pm. 20 questions were asked and 20 answers were given. Accused no. 3 was rested. On 3 April 2013, the interview started at 9.43am and finished 2 hours 55 minutes later at 12.38pm, for a lunch and rest breaks. 35 questions and 35 answers were given. The break was for 3 hours 7 minutes. At 3.45pm, the interview re-started and 45 minutes later, it stopped at 4.30pm. 16 questions were asked and 16 answers were given. There was a 1hour 15 minutes break for reconstruction. The interview re-started at 5.45pm and finished 1 hour 10 minutes later at 6.55pm. 8 questions were given and 8 answers given. The caution interview notes were tendered as Prosecution Exhibit No. 6(A) and 6(B).
    
44. In the caution interview notes, it could be seen that accused no. 3 reached Form 7 education. He preferred to be interviewed in the English language. His right to counsel, and his right to see his relatives were given to him. He was given the standard caution and the standard meal and rest breaks. He was given the right to see a doctor, but he declined. From questions and answers 14 to 20; 25 to 56, 60 to 73 and 75 to 79, accused no. 3 admitted he was the one who attacked the complainant (PW1) first, at the material time, and he was part of the group that robbed him, at the material time. You must carefully read the above questions and answers to understand accused no. 3's role in the crime. Remember my directions in paragraph 14 hereof on accused no. 3's statements against his co-accused. His statements against his co-accused are inadmissible evidence, and you can't rely on them. You can only use his statements against himself.
    
45. The complainant (PW1) identified accused no. 3 in the courtroom as one of the persons, who robbed him at the material time. However, when considering his alleged confessions mentioned in paragraph 44 hereof, you must take on board the directions I gave in paragraph 30 hereof. In this case, the voluntariness of accused no. 3's confession was hotly disputed by the parties. The police witnesses said, they did not assault, threaten or made false promises to accused no. 3 from his arrest, while been caution interviewed and when taken to the Navua Magistrate Court on 5 April 2013. They said, they saw no injuries on him, and he was very co-operative with the police. They said, he gave his caution interview statements out of his own free will.
    
46. Accused no. 3 said exactly the opposite. He said, the police assaulted him when he was arrested in the bush. He said, they again assaulted him at the Pacific Harbour Police Post, and also at Navua Police Station. He said, he was knocked unconscious by police when assaulted. They also threatened him to admit the offences. He said, the police fabricated his caution interview statements, and they forced him to sign the statements. He said, he did not give his statements voluntarily, and ask you to disregard the same, He admitted that he did not complaint to the Navua Magistrate Court on his first appearance on 5 April 2013 about police alleged misbehaviour, and he did not ask for a medical examination and report to prove the alleged police assaults on him. He also admitted he did not ask the High Court on 19 April 2013 for a medical examination, and did not complain of any police misbehaviour.
    
47. You have heard the parties' witnesses in the courtroom, and had observed their demeanours. Which version of events to accept and/or reject is a matter entirely for you. If you accept accused no. 3's alleged confession, then you have to find him guilty as charged. If you reject his alleged confession, then you have to work on PW1's identification to find him guilty or otherwise. Also, you will have to consider the next type of evidence the State is relying on to ground a possible conviction, which we will discuss below.
    
48. Third, the State is relying on the fact that $11,000 hard cash was found on accused no. 3, so soon after the robbery, and in a nearby bush in Pacific Harbour. Accused no. 3 admitted the cash was with him at the time of his arrest. He admitted he is a subsistence farmer. The State said, the inference is that the money was part of the money stolen from the complainant (PW1) on the same day. What you make of this evidence is entirely a matter for you.
    

I. SUMMARY

49. Remember, the burden to prove the accuseds' 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 accuseds is not required to prove his 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.
    

50. Your possible opinions are as follows:

(i) Aggravated Robbery :

Accused No. 1 : Guilty or Not Guilty

Accused No. 2 : Guilty or Not Guilty

Accused No. 3 : Guilty or Not Guilty

51. 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 Accused No.1 : Vaniqi Lawyers, Barrister and Solicitor, Suva.
Solicitor for Accused No. 2 : Accused in Person
Solicitor for Accused No. 3 : Mr. R. Vananalagi, Barrister and Solicitor, Suva.