IN THE HIGH COURT OF FIJI
AT SUVA

CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 426 of 2012

BETWEEN:

STATE
Prosecution

AND:

MAIKELI SERU
The Accused

Dates of Trial: 16th, 17th, 18th and 19th June 2015
Date of Summing-Up: 19thJune 2015

Counsel:
Mr.M. Vosawale and Ms. L. Bogitini for the State
Mr.P. Tawakefor the Accused

SUMMING UP

Madam Assessors and Gentleman Assessor

[1] After few days of proceedings, the presentation of evidence in this case has reached its conclusion. At this last but important stage of the trial, the law decrees that, I as the judge who presided over this trial, to sum up to you on the relevant law and evidence presented by the parties before us. Thereafter, each one of you assessors will be called upon by me to deliver your individual opinion. Your opinion will be recorded. You have listened to the evidence attentively. Similarly you must also listen to this summing up of the case very attentively and consider it carefully. It will facilitate your task in forming an individual opinion on the primary question of fact, namely the innocence or guilt of the accused. 

Your individual opinions on this case carry a great weight and will be considered by this Court in coming to its own conclusion on the matter before us. 

[2] It must be emphasised here, that any directions given to you by this Court on matters of law, must be accepted by you as correct and must be acted upon. You are bound by such directions on law as it is the duty of this Court to conduct this trial fairly and according to law. I will also guide you on applicable law in determining factual matters which in turn results in your opinion on the guilt or innocence of the accused person.

[3] However, although you have to comply with my directions in the matters of law, each one of you have the unrestricted freedom to decide on the matters of fact. In determining matters of fact, each of you assessors must decide it individually. It should be a decision taken by you exclusively. No one can influence you in demining matters of fact and forming an opinion. You have listened to Counsel for the State as well as Counsel for the Accused. Now you are listening to this summing up. You are not bound by what counsel said if you do not agree with it and similarly if I appear to be expressing any view on the facts you must reject such view unless yourselves are of the same opinion. If I omit an item of evidence which you think is important, you must take it into account, just as if I stress an item of evidence which you think is unimportant, you must disregard the fact that I stressed it.

[4] Each one of you is a judge on facts. As judges of fact, you can discuss and deliberate on them, only among three of you. At the end of your deliberations, each one of you must form your individual opinion as to the matters or questions of fact, based only on the evidence presented before you. Your opinions may be unanimous or divided. If the Court agrees with your unanimous or majority opinion, it will pronounce the final judgment of the case accordingly. 

[5] As you can appreciate, your public duty as assessors is clearly a noble one and a sacred one. Your opinion is vital to this criminal trial and will ultimately decide whether the accused-person is not-guilty or guilty of the offence, as charged.

[6] I have referred to a question of fact. A question of fact is generally understood as what actually had taken place among conflicting versions. It should be decided upon the circumstances as revealed from evidence before you. You may draw any legitimate inference upon these circumstances. You as assessors, in determining a question of fact, will utilise your wide experience which you have acquired in living in this society as its members. Therefore, the reason of your selecting to perform the noble task as a judge on facts is that you have a better understanding and knowledge on day-to-day happenings in the society. You can, therefore, grasp and understand them better than a Court of law would do. This is because, what the evidence seeks to unravel are indeed the facts that come to be in existence in the course of the conduct of the people in their day-to-day lives. As members of the community, you are considered to have a better opportunity and ability of assessing and appreciating such facts. That knowledge could be utilised to decide the case before you.

[7] As judges of fact, it is your own duty and responsibility to decide which fact is to be true and acceptable and which one is not acceptable and should be rejected. Similarly, which witness to be believed; and, which version of the evidence is to be accepted or rejected. They are matters for you to decide by yourself. So, as I already indicated to you before in my summing up, if I happen to express any opinion on facts, or if I appear to do be doing so, you must disregard such opinion if that does not match your thinking on the matter. You must instead form your own opinion without being influenced by such an expression of opinion by me. Please remember that, that is because you are the Judges of fact and, even as the presiding Judge, I cannot and should not, either by design or by accident, do anything that would influence your opinion on facts of this case.

[8] In the same way, as I have said earlier, Counsel for the State and for the accused have made submissions to you as to how you should determine the facts of the case. They have done so on the basis of what they perceived in their own ways of thinking and analysis. However, you do not have to accept what they say. If, what they have said, appeals to your common sense and judgment and concurs with your own conclusions, then it is entirely a matter for you and you may accept it. Otherwise, you are not bound to accept such propositions on facts as advanced by them.

[9] Your decisions must be solely and exclusively upon the evidence, which you have heard in this court, and upon nothing else. You must disregard anything that you have heard about this case, outside this Courtroom. You might have seen or heard news-items in print or in electronic media about this case before or during the trial. You must disregard them and your opinions should, only be based on the evidence given in this courtroom.

[10] I must give each one of you a word of caution. This caution should be borne in mind right throughout until you reach your own opinions. That is - as you could hear from the evidence - this case is about an alleged incident of a aggravated burglary and theft. You may perhaps have your personal experience of such a thing, which undoubtedly would be bitter. You must not, however, be swayed away by such emotions and or emotive thinking. That is because you act as judges of facts in this case not to decide on moral or spiritual culpability of anyone but to decide on legal culpability as set-down by law, to which every one of us is subject to. I will deal with the law as it is applicable to the offence with which the accused-person is charged, in a short while.

[11] Before doing so, I must tell you about a very important principle of law in a criminal trial. This is sometimes described as the golden thread running in the fabric of criminal law. That is the presumption of innocence that an accused-person is entitled to in law. In my opening address, I have mentioned this to you. But I will repeat myself. The effect of the presumption is that the accused-person is considered to be innocent until he is proven 'guilty'. In other words, even though, there is an offence, with which the accused-person is charged, by law he is considered to have been innocent. This presumption is in force until you form your own opinion at the end of this case solely on evaluation of evidence. Therefore, your independent opinion only could remove this presumption after all these proceedings and your deliberations on evaluation of facts are over.

[12] The presumption of innocence, which is always in favour of an accused person, brings into play another very important principle of law. That is with regard to the burden of proof of the case. The case, as you know, has been brought forth by the Director of Public Prosecutions on behalf of the State and against the accused person on the basis of an allegation of committing the offences of aggravated burglary and theft. The burden of proof of the case, in light of the presumption of innocence that I explained to you, therefore, lies always with the prosecution. Therefore, the burden of proof of the case against the accused person rests always on the prosecution, that is the State, the complainant. The prosecution is never relieved of that responsibility and it does not shift to the accused person at any point of time.

[13] In other words, if I am to put it from the perspective of the accused-person, there is no burden of proof on the accused-person to prove that he is innocent of the offence with which he is charged. You will recall the principle of law, that the accused-person is presumed to have been innocent. Therefore, there need not be any burden on him to prove his innocence. His innocence is presumed by law. This presumption should only be rebutted by the prosecution by proof of their allegation to a standard set by law. 

[14] The standard of proof, set by the law is 'proof beyond reasonable doubt'. Therefore, please remember that the standard of proof in a criminal trial is proof beyond reasonable doubt. This means that the prosecution, having the burden of proof on its shoulders, should prove its case against the accused-person beyond a reasonable doubt. Then only the prosecution can rightly claim that they have proved their case.

[15] Prosecution, in establishing its case, must prove the following; beyond a reasonable doubt,

 (i) each and every element or ingredient of the two offences

(ii) identity of the accused or the fact it was the accused who committed these offences and not any other person.

I will deal with the elements of the offences of aggravated burglary and theft as I go on.

[16] Madam and Gentleman assessors, please note that if the prosecution has not discharged its burden of proof or has not been able to reach the standard of proof as set by law, then the case for the prosecution necessarily fails. If you find a reasonable doubt in the case for the prosecution, benefit of such doubt should always be given to the accused-person. You have to remember that, at no time the prosecution is entitled to the benefit of any doubt that may occur in the course of the prosecution case or defence case, which I will advert to when I sum-up evidence later.

[17] Proof beyond reasonable doubt, therefore, means that before you find the accused-person guilty of the offence charged, you must be satisfied in your mind that you are sure of the guilt. If something goes against the reasoning in your mind as to the guilt after evaluating facts based on the evidence - that means - that the prosecution has not satisfied you on its standard of proof. In other words, there is a doubt you reasonably perceive as to the commission of the offence as charged. Such doubt should always be resolved only in favour of the accused-person. You must, thereupon, express an opinion that he is not guilty. 

[18] Let us now look at the charges contained in the information, which were read over to the accused-person, upon which this trial proceeded. 

[19] There are two charges contained in the amended information:

FIRST COUNT
Statement of Offence
AGGRAVATED BURGLARY: Contrary to section 313 (1) (a) of the Crimes Decree No. 44 of 2009

Particulars of the Offence
MAIKELI SERU and another between the 19thday of March 2011 at Nausori in the Eastern Division, entered into shop of DHARMENDRA PRASAD as a trespasser with intent to steal.

SECOND COUNT
Statement of Offence
THEFT: Contrary to section 291 of the Crimes Decree No. 44 of 2009

Particulars of the Offence
MAIKELI SERUand another between the 19thday of March 2011 and 21st day of March 2011, at Nausori in the Eastern Division, 2 laptops valued $ 300.00, assorted wrist watches valued $ 310.00, assorted shoes valued at $ 310.00, one DVD player valued $ 30.00 and cash $ 125.00, all to the total value of $ 1075.00, the property of DHARMENDRA PRASAD.

[20] I will now deal with the elements of the offence.

(i) The offence of Aggravated burglary is defined under section 313(1)(a) of the Crimes Decree. Section 313(1)(a) of the Decree makes the offence of Aggravated burglary an offence triable before this Court. Section 313(1)(a) states as follows:

"A person …. commits a burglary in the company of one or more other persons; …."

(ii) Section 313(2) states when a person commits a burglary in the company of one or more other persons it is aggravated burglary.

 (iii) The offence of burglary too has been defined in section 312(1) of the Decree as " ..if he enters or remains in a building as a trespasser with intent to commit theft of a particular item of property in the building."

(iv) When we consider all these legal definitions setting out the several ingredients of offences with which the accused is charged, it is clear that the prosecution must prove beyond reasonable doubt that;

a.	MAIKELI SERU and another committed burglary. In order to prove this component of the charge, prosecution must establish the fact that they entered into the pawn shop of DHARMENDRA PRASAD as trespassers.

b.	When they entered that building their intention was to commit theft of a particular item of property kept in that pawn shop and there was common purpose.

c.	It must be stressed here that mere entry to the pawn shop by the accused is not sufficient to prove he committed burglary. The prosecution must prove that he entered into the pawn shop with the intention to commit theft.

d.	The accused's intention is a central issue here. No one can look inside of his mind. So you will need to examine the evidence in relation to his conduct and ask yourselves whether it is proved beyond reasonable doubt that the defendant entered the pawn shop to commit theft of a particular item of property kept in that shop.

e.	The offence of burglary becomes aggravated burglary only when a person commits burglary in the company of one or more other persons. This brings in an additional element to be proved by the prosecution. That additional element is that this accused committed burglary in the company of one or more persons.

[21] Apart from these elements of the offences, the identity of the person who is alleged to have committed the offence is very important. There must be positive evidence as to the identification of the accused-person to connect to the offences in the two counts that he is alleged to have committed.

[22] Proof of the elements of these offences could be established only through evidence. Evidence can be from direct evidence that is the evidence of a person who saw it or by a victim who saw, heard or felt the offence being committed. In this case, for example, the alleged victim who offered direct evidence, if you believe him as to what he saw, heard and felt.

[23] Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, caution interview statement and search list which before you, are documentary evidence. If you believe such records were made, as the prosecution presented to you, then you can act on such evidence. You can take into account the contents of the documents if you believe them to have existed at the relevant time. 

[24] Generally, a witness is not allowed to give opinions on something. They are allowed to give evidence on what they have seen, heard or felt by their physical senses only as I described earlier. 

[25] You must consider all direct evidence - that is what witnesses saw, heard or perceived by his/her senses as well as documentary evidence that form the mass of evidence in this case. You must, in addition, consider circumstantial evidence that is the evidence that is not direct but you can put proved factors together and make some inferences and come to conclusions. 

[26] In assessing evidence of witnesses you need to employing a series of tests. 
 These tests are as follows:

(a)	Consistency: 

1. What that means is whether a witness has been saying his or her version of events on the same lines without variations and differences. You must see whether a witness is shown to have given a different version elsewhere. If so, whether what the witness has told court contradicts with her earlier version. You must consider whether such contradiction is very material and significant so as to affect the credibility or whether it is only in relation to some insignificant or peripheral matter. If it is shown to you that a witness has made a different statement or a different version on some point, you must then consider whether such variation was due to loss of memory, faulty observation or due to limitation of his or her power of expression. These had to be considered in the light of the mental status of the witness at that particular point of time of commission of the alleged incident.

2. You must remember that merely because there is a difference, a variation or a contraction in the evidence on a particular point or points that would not necessarily make the witness a liar. You must consider overall evidence of the witness, the demeanour, the way he or she faced the questions etc. in deciding on credibility of a witness.

3. In dealing with consistency you must see whether there is consistency per se and inter se that is whether the story is consistent within a witness himself or herself and whether the story is consistent between or among witnesses. In deciding this issue you must bear in mind that the evidence comes from human beings. They cannot have photographic or superhuman memory power. All inherent weaknesses that you and I suffer insofar as our memory is concerned, the memory of a witness also can suffer same inherent weaknesses.

(b) Belatedness: 

1. That is where there is a delay in making the allegation of the alleged act by the accused to a relation, to a friend, to a person in authority or to the police on the first available opportunity after the alleged incident. If there is a delay that may give room to make-up a story which in turn could affect the reliability of the story. If the complaint is prompt, that usually leaves no room for fabrication. If there is a delay in making the allegation, then you have to consider the evidence of the witness to satisfy yourself that whether there was an acceptable reason is offered for the delay. If the explanation offered by the witness is acceptable to you, then you can ignore the delay in making the allegation as a factor which would make her evidence unreliable.

2. It must be clearly emphasised here that even if there is a recent statement or a prompt complaint, that fact should not be taken as a factor which would corroborate his evidence. It merely shows that he is consistent in his narration of the alleged incident to that person and later in Court, in his evidence. That factor could enhance only his credibility as a witness.

(c) Motive: 
That is whether there was some animosity or enmity or some other reason for a complaint to be made against the accused person and falsely implicate him. In short, what you have to consider in this regard is whether this is a concocted story, created by the alleged victim of crime or witness. This could be coupled with the test of recent complaint, which I have referred to you before this new test. In applying this test, you have to consider the reason for the delay in making the allegation could be attributable to the time taken to create an allegation falsely against the accused or not.

[27] You need to consider all these matters in evaluating the evidence of witnesses. You shall, of course, not limit to those alone and you are free to consider any other factors that you may think fit and proper to evaluate the evidence of a witness.

[28] I will now deal with the evidence presented by the prosecution in this case briefly. 

[29] Evidence of witness DHARMENDRA PRASAD SHARMA

(i)	He is currently in employment as taxi driver and had worked in that capacity for 15 years. In 2011 he was running a pawn shop, located in Haniffa Arcade in Nausori.

(ii)	He could recall events of 21st March 2011 and on that day,he had gone to his pawn shop at about 8.00 in the morning. When he entered the shop he had seen the whale's teeth (Tabua), shoes, wrist watches, DVD players, mats and canvasses which were inside the shop has been scattered all over the place. Seeing this he realised that his shop had been robbed, went to Nausori Police Station and reported.

(iii)	According to him, the robbers have taken away whales teeth, wrist watches, laptop computers, canvasses and a lot of other items which he cannot remember. He could remember that there were two Toshiba laptops that had gone missing with two or three whale's teeth. There were four DVD players also among missing items.

(iv)	He had given the serial numbers of the laptops to Police, traced from his register and when showed a laptop marked as PE No. 1, the witness stated if its serial number matches with the serial number he has given in his statement to the Police, then he could identify it as the laptop that had been taken from his shop. The witness was shown five whales teeth and he stated that he had identified them at the Police on the stickers placed on them with numbers. In Court, when he examined the stickers were not there and stated they look like the ones gone missing from his shop. These five whale's teeth were marked as PE No. 2. In addition, a black computer bag was shown to the witness but he did not identify it for sure.

(v)	The witness stated that the robbery at his shop had affected him and he felt bad about it.

(vi)	Describing the details of the shop, the witness said that it had two doors. One in front, where he used to enter and another one at the back, closed with a grille fitted in to it. The rear door also had a 1 ½ feet long window on top of it. He observed that the robbers had got in using the window on top of the back door and had gone through the back door as it too was left open with the grille. There was a gap between the buildings to gain access to back door. The window, rear door and the grille were forced open.

(vii)	About five days since the breaking in, he was shown some items recovered by the Police, during their investigations. 

(viii)	In cross examination, the witness admitted that the pawn shop is owned by one Rupe Narayan and not by him. The items taken by robbers also belonged to the shop and not to him. He further added that stolen items were actually pawned items and what he meant by pawning is when a customer brings an article, the shop keeps it and the customer takes money for it and they have 30 days to settle money back. The shop would issue a receipt to a customer.

(ix)	He admitted that he has not seen the person or persons who broke into his pawn shop. He also admitted that the items stolen by the intruders were not insured as no insurance company would insure them. He conceded that he had maintained a register in which details of these items were recorded and had referred to it, in order to compile a list of items stolen from the shop. The register was not given to Police.This witness was cross examined as to how he first lodged a report to Police and his reply was that the moment he saw the items were scattered in the shop, he reported the break in to the Police.

(x)	In relation to the identity of the items shown in Court, the witness replied in cross examination that particularly in whale's teeth he had affixed a sticker with a number written on it, but in Court those were not to be found. As a result he cannot confirm their identity since all whale's teeth looks the same.

(xi)	The witness admitted that he made his 2nd statement giving details of stolen items on 23rd March 2011 and it was shown to him before coming to Court on Monday by a person from DPP.

(xii)	In re-examination the Prosecution clarified that although the witness did not own the pawn shop, it was under his control as he looked after it. In relation to the identity of the whale's teeth, the witness clarified his stance that when he identified it in the Police he identified it as he has suspected them to the ones stolen from his shop.

[30] Evidence of witness SERU NETANI

(i)	It is evidence that he is currently unemployed but goes to sea for living and is a resident of Namena village, Tailevu for 43 years and his closest town is Nausori.

(ii)	In relation to the incident, the witness testified that on 20th March 2011 at about 5.00 p.m. he was drinking at Nausori club and someone came to sell a laptop for one carton of beer. He bought one carton of beer to the person and was given the laptop. It was the accused who sold it to him in the company of another. After that he had gone home with the laptop and kept it until the Police came in search of it. They took away the laptop and the witness too was "arrested" and taken to Police. He was told that the two persons who sold him the laptop had told that to Police that he bought it for a carton of beer.

(iii)	This witness first described the accused in his full name and then added that he is known to him as "Maku" as a person he usually meets in town.

(iv)	In cross examination, the witness denied any knowledge of the origins of the accused, but admitted that he had met him in Nausori at the club. He further admitted that he did not know the real name of the accused back in 2011 and only through Court he learnt it.

(v)	When he was cross examined on the incident, he stated that he was drinking rum and beer at about 5.00 pm on 20th March 2011 at Nausori club with his friend. All have contributed for the drinks. He admitted that he was drinking at a spot outside the club and there was a light besides a breadfruit tree. Then only the accused had approached him. At that time a carton of beer has cost about $ 50 and he was earning about $ 150 to 200 by going out to sea.

(vi)	Upon being cross examined about the identity of the individual who sold laptop, the witness said that he made no mistake as he knew them and they had talked to each other.

(vii)	He conceded when the Police came in search of the laptop he too was taken to Police by "arresting" him but he was not handcuffed. They took his statement after questioning. He was at the Police for about one hour and was questioned by Ropate at the "Crime".

(viii)	The witness denied when it was suggested to him that he possessed the laptop because he had broken into the pawn shop. He similarly denied the suggestion to save himself he had lied about the laptop by answering that he told Police the laptop was sold to him.

[31] Evidence of witness SEVENACA

(i)	It is the evidence of this witness that he had served 8 years at Nausori Police station as a detective constable and on 22nd March 2011 at about 10.00 pm whilst waiting at single men's barrack, he received a phone call from a friend who conveyed information that the accused and two of his friends were drinking beer at Deep Sea Night Club at Suva. He had conveyed this information to Ropate and Vilivu.

(ii)	They have set off to Suva immediately and have walked up to mini bus stand at Nausori and came to Suva. From Suva mini bus stand they walked to Deep Sea club. When they entered into the club they saw the accused and two of his friends were drinking. They moved in quickly to surround them as the group had begun to separate. 

(iii)	The witness and Ropate have arrested the two friends while the other two officers arrested the accused. He explains when a policeman makes an arrest he holds the person and then inform him of the reasons for his arrest. He further stated that having arrested the two friends, he had handcuffed them. He further added that though the lighting inside the club was low one could identify another. After the arrest, the three suspects were escorted to Totogo Police Station where they waited the arrival of a vehicle from Nausori Police. The reason to take the suspect there was they had to wait for the vehicle to arrive and they kept the suspect in the charge room.

(iv)	When the vehicle driven by Detective Inspector Savou arrived, they all got in and having reached Nausori Police Station, the suspects were properly handed over. But he could not recollect the officer who was on duty that night. Thereafter he headed back to barracks.

(v)	He further testified that the suspects were drunk and were staggering butthey co-operated with the Police. They have not assaulted any of the suspects at the time of arrest, on their way to Totogo Police station and nothing improper was done at any point of time.

(vi)	In cross examination he clarified that his friend who gave information is not a policeman and he could not recall his name. He explained that they had to take a bus as no vehicle was available at that time. He admitted that he had not seen the arrest of the accused as he was busy with arresting his friends. He conceded if something was done to the accused he would not have known it. He agreed with the Defence Counsel that Deep Sea club is located underground and one had to go downstairs to reach it. All the suspects were inside the club and he had used the back door to exit. Others too had exited the same way. Although they were in the same group, the witness could not recall whether the accused was in handcuffs or not.

(vii)	He too conceded that the club was in dimly lit with loud music on. He denied the suggestion that the suspects were assaulted on their way to Totogo Police Station while they were handcuffed. The vehicle from Nausori was a crew cab and only four could sit in the cabin. There were 7 of them and he could not recall exactly how they have sat on their way to Nausori. He accepted that the some suspects may have sat in the back of the vehicle and if he was seated in the cab, he would not have known what happened at the back.

(viii)	He admitted when he got the phone call he was off duty and had to walk to get into a bus and pay bus fare. He denied any knowledge of what happened to the suspects after their handing them over to Nausori Police. He admitted seeing the accused next morning but could not recall when and in which part of the Police he saw him. He denied the suggestion that he assaulted the accused.

[32] Evidence of witness VILIVO

(i)	This witness has been in Police for over 11 years and had served in the crimes branch of Nausori Police. On 22nd March 2011 he was alerted to information that one of the suspects of a burglary case was having liquor at Deep Sea Night Club in Suva. The burglary was committed at a pawn shop in town. He had then proceeded with two other officers to Suva and reached Deep Sea club. There he saw the accused and two other were consuming liquor. While two of his colleagues arrested the other two suspects, he had arrested the accused. As there was loud music in the club, he had taken the accused outside and explained reasons for his arrest. Although the accused was drunk, he could understand the reasons. He was handcuffed and was escorted to Totogo Police Station with others within 10 minutes from the arrest. The suspects were kept in the charge room after their handing over to unit corporal of that station. They were kept there as it was safe to keep the suspects until the vehicle from Nausori arrived to take them back.

(ii)	He had called Inspector Savou on his mobile phone and reported the arrest of the suspects and requested a vehicle to bring the suspects in. It was Inspector Savou who drove the vehicle which came to pick them up. Having reached Nausori, the suspects were handed over to the Officer in charge of night shift. The suspects were searched at that point before they were finally locked up. After the handing over, the witness reported off duty.

(iii)	The witness knew the accused by his name and at a subsequent stage of investigations he had participated in a search conducted on 24th March 2011. They had a search warrant authorised by a Justice of Peace and proceeded to the place where stolen items were kept. After the search a search list was issued to the occupant of the house, SeruNetani. Upon the search we recovered a Toshiba laptop with a bag and charger. He marked search list as P.E. No. 3, laptop bag as P.E. No 4, and its charger as P.E. No. 5. He denied that he or his colleagues have assaulted the accused at any point of time.

(iv)	During his cross examination, he testified to the effect that when he arrested the accused he had explained reasons for his arrest. He had carried out the arrest by touching his shoulder and thereafter holding on to him. He had handcuffed the accused after the reasons were explained and that too was at the front entrance. Thereafter the accused taken to Police on foot. The accused cooperated after he was handcuffed. The moment he saw them, the accused tried to move away. He tried to evade them. He was drunk at that time but had not staggered. 

(v)	The witness denied the suggestion that the accused was assaulted after he was handcuffed or at the charge room. He stated that the vehicle which came to pick them up was a twin cab in which 5 persons can travel. However, he could not recall how he travelled but recalled the accused was on the back seat. He denied that he had assaulted the accused inside of the vehicle. The witness admitted having searched the residence of the accused but could not recollect whether they recovered any item. He admitted that Toshiba laptop was recovered from Netani's house and identified from its serial number, but had not included it in P.E. No. 3.

(vi)	He further admitted he had interviewed many suspects and had cautioned interviewed them. He agreed that there were requirements to be fulfilled in interviewing suspects and had termed the requirement to counter sign the signature by a witnessing officer as a "practice". He too denied having assaulted the accused.

[33] Evidence of witness IFEREIMI SAVON

(i)	He has served Police for 27 years and in 2011 was serving at Crimes Branch of Nausori Police Station. On 22nd March 2011 at about 11.00 pm he received a call from Vilivo informing him of the fact that three suspects were arrested and awaiting for vehicle to bring them to Nausori. He had driven a vehicle to pick them and it had taken about 30 or 40 minutes to reach Central Police Station. Thereafter they were brought to Nausori and handed them over to night shift officer. At no point of time the suspects were assaulted.

(ii)	Afterwards he had participated in a search in order to recover some stolen articles. The search was conducted at a handicrafts centre at Naisausau village. It was the residence of Seru (Qase) and when shown the search warrant he handed them over a laptop. The laptop was taken charge and a search list was issued. Thereafter the owner was called in to identify the laptop. He identified it at the Police Station.

(iii)	In addition he acted as a witnessing officer at the interview of the accused. However, he could not countersign on the cautioned statement in three places as he forgot to place his signature on those places having placed his signature in other two places.

(iv)	During cross examination he admitted having driven the cab in which the suspects were brought in to Nausori. According to him only five persons could sit in the cab. Since all of them could not sit in, it is his recollection some of them must have travelled in the tray of the cab. He denied the suggestion that as the driver it is not possible to know if something happened at the tray whilst admitting that he cannot hear a conversation. He denied having assaulted the accused.

(v)	He further admitted been the witnessing officer to the accused interview. He reiterated that he was present during the full interview and he forgot to countersign at three places.He denied the suggestion that the answers recorded during the caution interview are not of the accused. He also denied the allegation that the answers were a fabrication by him and the investigating officer. He admitted that the interviewing officer would ask the suspect whether he wishes the statement to be read back and to make corrections, deletions or additions and termed it as non-mandatory rule and they would only ask that when recording a charge statement. He was further cross examined having allowed to read Rule IV (e) of Judge's Rules.

(vi)	He confined to the breaks given during the interview to the breaks resulted in to conduct search and reconstruction and admitted the accused also had to accompany the Police during those.

(vii)	During re-examination the witness explained that reconstruction means the suspect is taken to show the places and in this investigation the accused had took them to the pawn shop and showed them where he entered and what he took.He could not recall whether house of the accused was searched as he has not got a permanent address to live in. 

[34] Evidence of witness ROPATE

(i)	This witness too had served Police for 9 years and in 2011 was attached to Nausori Police Station. His role in this case was that he acted as the investigating officer. In addition he was involved in the arrests and interviewing. 

(ii)	He too was informed of the presence of the accused at Deep Sea by Vilivo on 22nd March 2011 and having proceeded to Deep Sea club they arrested the three suspects who were drinking beer at that time. Thereafter the suspects were escorted to Totogo Police Station from which point they were picked up by the vehicle came from Nausori.

(iii)	This witness or any of his colleagues have not assaulted any suspects and having reached Nausori, the suspects were handed over to the night shift officer. The suspects were involved with a break in of a pawn shop in town. It was revealed that laptops, whale's teeth, assorted jewellery and shoes were removed from the pawn shop.

(iv)	This witness has interviewed the accused in English language. The suspect was asked the preferred language and whether he needed someone to be present during the interview. He did not wanted anyone to be present. Inspector Savou was present during the interview conducted on 24th March 2011. Original of the caution statement is marked as P.E. No. 6.

(v)	During the interview the accused was given breaks to use washroom, to drink water and to have meals. The reason not to record them in the statement was the washroom and kitchen was located close to the place where the interview was conducted. A search was carried out about a laptop and some whale's teeth stolen from a pawn shop. The accused only admitted that he stole only laptops and whale's teeth. He managed to locate laptop from Netani. As other stolen items were not admitted only these were recovered.

(vi)	During cross examination this witness stated after the arrest of the suspect all of them came out from the front entrance of the Deep Sea Club. The accused was handcuffed and made to walk to Police. The witness repeatedly denied having assaulted the accused at any point of time.When it was suggested to him during the interview the accused denied allegation, the witness replied that he had admitted breaking into the pawn shop with his accomplice Rupeni Diane. He admitted that the accused co-operated during interview. He denied the suggestion that the reason for the accused's admission is the assaults.

(vii)	He admitted that all breaks during an interview should be recorded and the statement is silent on them. He further admitted no search was done at the residence of the accused and nothing was recovered from him. He denied the suggestion that the answers attributed to the accused are fabrications by him and the accused is framed by him.

[35] After the case for the prosecution was closed, you may recall, that I explained the rights available to the accused. I was under a duty to do so. You must not misunderstand, that the exercise of my power under law; as a call for the accused to answer the charges and to prove his case. That was only to inform him that the court was mindful of proceeding with the case and that the options which are available to him under our law. The accused decided to give evidence and to call a witness on his behalf. That is his legal right and you must consider that evidence too in the same way you consider the evidence of the prosecution.

[36] The accused gave evidence and called his wife and her aunt to give evidence on his behalf. I will now similarly deal with the evidence presented by the accused.

[37] Evidence of AccusedMAIKELI SERU

(i) The accused person in his evidence before this court saidthat he did not agree with the allegations levelled at him and in 2011 he was residing at Namena, Tailevu. In March 2011 he was at Nausori village with his daughters, wife and her aunt. He is a farmer and married to Sera Cavora. It was his evidence that during the time period mentioned in the allegations he was at home with his family.

(ii ) He testified that on 22nd March 2011 at about 10.00 pm he was at Deep Sea Night Club drinking with his friends. Then these officers came in and started assaulting them. He fell on the floor and Ropate stepped on his back, while Vilivo handcuffed him. From there they weretaken to Totogo Police and the assault continued.He was punched on his ribs, chest, back, head and eye.

(iii) Thereafter they were taken to Nausori Police Station and were locked up in the cell. Following morning Ropate took him out to crimes room and having questioned; assaulted him while threatening to admit the offence. They have threatened to beat himuntil he is badly hurt.

(iv) The accused denied the signatures appearing in the caution statement alleging that it is not his. He stated that he cannot see his signature anywhere in the statement.

(v) He further asserted that he had suffered injuries to his eye, chest, head and his ribs wereswollen.

(vi) During cross examination he stated that on 22nd March 2011 he was at home having returned from the farm and it was a Tuesday. He further clarified though the Police officers were bigger and taller than him but it was not this much back in 2011. He admitted that he lied down after the assault at night club.

(vii) The accused reiterated his evidence that after the arrest and whilst on their way to Police he was assaulted by the officers and conceded that it happened in a public place. He denied the suggestion that he was not at all assaulted. He further said that his right eye was injured but did not complain as he was afraid they would assault him again. The Police refused to take him to Hospital for the fear that the assault on the accused would be thus revealed. He pointed to a scar on his head.

(viii)	He denied the suggestion that if he was so seriously assaulted he should be limping when he was produced before the Magistrate on 25th March 2011 and answered that he was really injured. He admitted that he was produced on 25th March and the Magistrate is an independent person. He also admitted that the Magistrate would have seen the injuries suffered by him. When it was suggested to him that he could have requested to be taken to hospital, the accused replied that he had asked for bail instead thinking that then he could go to a doctor for medical check-up but was told to see the nurse at the Remand Centre. He insisted that he told magistrate that he needed to see a doctor but he may have failed to put it down in writing. Even after he was released on bail, the accused did not think to lodge a complaint as they all are Police.

(ix)	He denied when the allegations are suggested to him and denied the suggestion that the signature appearing on the statement is his.

[38] Evidence of witness SERA RADINITUBOU

(i) It is her evidence that she is 27 years old and the accused is her husband for 10 years and she is a mother of two children. During the period 19.03.2011 to 21.03.2011 she was at home with her husband and kids.

(ii) During her cross examination she admitted she loved her husband and it is a good thing to do anything to him. She confirmed that the Police came in search of her husband on 24th March and it was a Thursday. At that time her husband was at home and towards mid-day the Police came and took him away. She again saw him when he returned home. According to her husband had returned home after two days.

(iii) The witness was shown a copy of the Magistrate's Court case record and suggested that he was remanded on the 25th of March but she insisted that her husband came home two days later.

[39] Evidence of witness SERA CAVORA

(i) Her evidence is that she lives in Nausori village and during the period 19.03.2011 to 21.03.2011 she was at home with her family and MaikeliSeru.

[40] I have thus summarized all the evidence before you. But, still I might have missed some. That is not because they are unimportant. You heard every item of evidence and you should be reminded yourselves of all that evidence and form your opinions on facts. What I did was only to draw your attention to the salient items of evidence and help you in reminding yourselves of the evidence.

[41] There are no eye witnesses called by the Prosecution to prove the two charges. The prosecution case is based on two main items of evidence. They firstly relied on the cautioned statement of the accused, in which, according to them, he had admitted the two allegations. Secondly, they have placed items of circumstantial evidence to the effect that in the evening of the burglary, the accused and another had given a laptop marked as P.E. No. 1, to Seru Netani in exchange of one carton of beer. The pawn shop keeper too had identified it as a laptop taken from his shop.

[42] Let us consider the cautioned statement of the accused. Prosecution says the accused has admitted breaking into the pawn shop; and removed laptop and whale' teeth from that shop. The Accused, in his evidence, has taken up two positions. Firstly he said that he was continuously assaulted by Police officers and in order to avoid serious bodily harm he admitted to the allegations. Secondly he denied having placed his signature on cautioned statement marked as P.E. No. 6. Thereby denying any sort of admission. 

[43] You will recall that the Prosecution, when examining the Police witnesses repeatedly asked whether they assaulted the accused at any point of time. They have all consistently denied any assault on the accused. On the other hand the accused, in his cross examination suggested to all of them that they did assault and had threatened to the accused to admit to the allegation. In addition, the accused pointed out from these witnesses, that various procedural lapses have occurred in recording his statement. The witnessing officer had forgotten to place his signature on three places. The Interviewing officer had failed to record the breaks given to the accused, in recording his statement, for use of washroom and for his meals. He failed to offer the accused to read the statement at the conclusion of its recording and the accused could make correction, additions and deletions.

[44] These witnesses have offered reasons for their failures. Whether they are acceptable explanations and whether the accused was forced to make a statement under the circumstances you have to decide. You also have to decide whether it is a fabrication by the Police to frame up the accused as suggested by the accused. 

[45] In this regard, the allegation of continued assault had to be examined by you. The prosecution says if the accused was assaulted as the way he described it that it is probable that he should have suffered serious injuries. The accused says he ad injuries. He says his eye was injured his rib cage was swollen and e had an injury on his head. The prosecution challenged him that he had failed to mention these assaults to the Magistrate, when he was produced before him on the 25th of March 2011. They further challenged that when he was enlarged on bail he could have obtained a medical report. You have to decide whether the assault on the accused by the officers who gave evidence before you would lead to injuries and to what extent. You also have to decide the failure of the accused to complaint to the Magistrate on the first available opportunity is an indication of this allegation of assault as an afterthought. The accused offered his explanation for the failure. He says the Magistrate has failed to note it down and advised him to go to nurse at the remand facility. These are essentially questions of facts and it is your exclusive right to decide on them having considered all the circumstances.

[46] In relation to allegation of threats and assaults or further bodily harm you have to consider the evidence of the Police officers and of the accused. If you conclude that the alleged threats and assaults were made or may have been made to the accused it would have been quite improper. You cannot rely upon a confession whose reliability is put in doubt by such circumstances. If it is what you decide then you must totally disregard the caution statement.

[47] In assessing the evidence of the accused, you must apply the same rules as you did for the prosecution witnesses. I have mentioned before that there were two positions advance d by the accused. Firstly he said that he was continuously assaulted by Police officers and in order to avoid serious bodily harm he admitted to the allegations. Secondly he denied having placed his signature on cautioned statement marked as P.E. No. 6. Thereby denying any sort of an admission. It might appear to you these two positions are contradictory.

[48] If the accused admitted the allegations to avoid serious bodily harm, one might infer that he did sign the caution statement. Without the signature of the accused it has no value to the prosecution. On the other hand, the accused categorically denies having placed his signature on that statement and says it is a fabrication. You have to consider these two versions. If you find there is no conflict it you may accept it and act on it. If you think there is a conflict but there could be a valid reason for it still you may accept it and act on it. If you think there is conflict, then you must decide what value you could attach to it.

[49] In addition, the accused has placed before you a defence of alibi. He has called his wife and her aunt to support it. His wife in giving evidence stated that the accused was home during the period 19.03.2011 to 21.03.2011. He was arrested by the Police came home after two days from his arrest. The prosecution challenged her that he was remanded and he never came home after two days. The accused agrees with the prosecution on his date, place and time of his arrest. 

[50] Wife of the accused in her evidence stated something factually wrong. She said the accused returned home two days after his arrest. It is clear that he has not as he was remanded on 25th March 2011. It is up to you to decide credibility of this witness. Being the wife of the accused, whether she deliberately lied on this point; or made a genuine mistake about the dates and the fact that her husband came home, must be decided by you. Even if you decide she had lied on this point you can act on other parts of her evidence. Please consider these considerations. The other witness was not cross examined by the prosecution. She also says that the accused was home during the period 19.03.2011 to 21.03.2011. Her evidence remained unchallenged. You may consider these and any other consideration you might think is important and then should decide the credibility of that evidence and reliability of the evidence adduced by the accused. 

[51] In relation to the defence of alibi, the burden remains always on the prosecution to prove that it was the accused and none other committed the offence. Having carefully considered the evidence, placed before by the accused on his alibi, that it is false, that is a finding of fact which you are entitled to take into account when judging whether he is guilty. But do not jump to the conclusion that because the alibi put forward is false the accused must be guilty. The main question for you to answer is, are we sure that the circumstances points to the inference which could be fairly drawn that the accused and another had entered the pawnshop to steal. 

[52] If you accept evidence of Dharmendra, then his pawn shop has been burgled and valuable items were taken away. He reported the burglary to Police on 21st March 2011 when he discovered it in the morning on the same day. Having referred to his register for details of the items, he made a second statement to the Police giving out the items that had gone missing since the burglary. Again he was called in by the Police at a later point of time to identify a laptop and 5 whale's teeth. In considering the credibility of this witness you may consider the fact that he had an opportunity to refresh his memory as he was shown his statement few days prior to his evidence. Whether he was placed at a advantage and whether it had a bearing on the overall credibility is a matter for you to decide.

[53] If you accept evidence of Seru Netani, then the accused and another had exchanged a laptop for a carton of beer at Nausori Club on 20th March 2011 at about 5.00 p.m. It was the evening, before the discovery of the burglary. He admitted being drunk but maintained he identified the accused. He says he knew the accused and since he talked with him there was no mistake in identity. It is to you to consider this evidence. You have to consider the circumstances under which he made the identification. There was one light by the breadfruit tree and the witness was after liquor. Whether he identified the accused without a mistake you have to decide.

[54] In addition, the accused suggested to this witness that having robbed the pawn shop, he (the witness) now shifts liability on to the accused. In this regard, during cross examination it was elicited by the accused that the witness was arrested and taken to Police Station and his statement was recorded. According to the witness the Police party came, looked for laptop and when given he was arrested taken to Police Station and recorded his statement. He spent an hour in the Police Station. The accused want you to consider this witness as the person who broke into the pawn shop or at least an accomplice who would implicate the accused to secure his release from the case. If that is the case, then you must reject his evidence. If you accept his evidence as credible then you can act on it.

[55] It must be emphasised here that in considering the prosecution and defence cases, you must not place them side by side and weigh them to see which version is more probable. That is done only in civil litigation. In this matter where the accused is charged with criminal offences, the prosecution alone must prove its case. The accused is not under any duty to offer evidence. In this instance, he had opted to do so. That is his right. All you have to consider is whether you entertain a reasonable doubt about the prosecution in consideration of the evidence adduced by the accused.

[56] Please remember, even if you reject the version of the accused that does not mean that the case for the prosecution is established for the accused to be found guilty. You must satisfy that the prosecution has established its case beyond a reasonable doubt that the accused entered with another into the shop of Dharmendra Prasad as a trespasser to steal and stole the items described in the second count from said Dharmendra Prasad.

[57] If you consider that the charge of Aggravated burglary only in count (1), after consideration of all evidence, is proved beyond a reasonable doubt, you can find the accused guilty of count (1) and you must then acquit the accused of count (2). On the other hand, if you consider that the charge theft only as per in count (2), after consideration of all evidence, is proved beyond a reasonable doubt, you can find the accused guilty only of count (2) and acquit the accused of count (1). If you believe that both charges, after consideration of all evidence, are proved beyond reasonable doubt, then only you can find the accused guilty of both counts. If you believe that both charges, after consideration of all evidence, are not proved beyond reasonable doubt, then you can find the accused not guilty of both counts. 

[58] In considering the above, and what to accept or reject, you must look at the evidence objectively and not to be swayed away by emotions, speculations, your imaginations or wishful thinking. You must form your opinion only on evidence available on each and every fact as put forward by the two parties applying more often than not commonsense principles as reasonable women and men in our society. 

[59] Madam assessors and Gentleman assessor, this concludes my summing up of the Law and the evidence. Now you may retire and deliberate together and may form your individual opinions on the charge against the accused. You may peruse any of the exhibits you like to consider. When you have reached your separate opinions you will come back to Court, and you will be asked to state your separate opinion.

[60] I thank you for your patient hearing to my summing-up.

Any re direction the parties might request.

You may retire for your opinions now. When you are ready with your opinions please inform that to the Court staff. The Court will then resume its proceedings. 

AchalaWengappuli
Judge

High Court
Suva