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State v Vakarise - Summing Up [2018] FJHC 1114; HAC280.2017 (23 November 2018)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 280 of 2017

[CRIMINAL JURISDICTION]

STATE

V

JONE VAKARISE

Counsel : Mr. E. Samisoni for State

Mr. J. Dinati for Accused

Hearing on : 19^th - 23^rd November 2018
Summing up on : 23^rd November 2018

SUMMING UP

Madam and gentleman assessors;

1. It is now my duty to sum up the case to you. I will now direct you on the law that applies in this case. You must accept my directions on law and apply those directions when you evaluate the evidence in this case in order to determine whether the accused is guilty or not guilty. You should ignore any opinion of mine on the facts of this case unless it coincides with your own reasoning. You are the judges of facts.
   
2. Evidence in this case is what the witnesses said from the witness box inside this court room, the admitted facts and the exhibits tendered. As I have told you in my opening address, your opinion should be based only on the evidence presented inside this court room. If you have heard, read or otherwise come to know anything about this case outside this court room, you must disregard that information.
   
3. A few things you heard inside this court room are not evidence. This summing up is not evidence. The arguments, questions and comments by the lawyers for the prosecution and the defence are not evidence. A suggestion made by a lawyer during the cross examination of a witness is not evidence unless the witness accepted that suggestion. The arguments and comments made by lawyers in their addresses are not evidence. You may take into account those arguments or comments only if you agree with them.
   
4. You must not let any external factor influence your judgment. You must not speculate about what evidence there might have been. You must approach the evidence with detachment and objectivity and should not be guided by emotion. You should put aside all feelings of sympathy for or prejudice against, the accused or anyone else. No such emotion should influence your decision.
   
5. You and you alone must decide what evidence you accept and what evidence you do not accept. You have seen the witnesses give evidence before this court, their behaviour when they testified and how they responded during cross-examination. Applying your day to day life experience and your common sense as representatives of the society, consider the evidence of each witness and decide how much of it you believe. You may believe all, part or none of any witness’ evidence.
   
6. In assessing the credibility of a particular witness, it may be relevant to consider whether there are inconsistencies in his/her evidence. That is, whether the witness has not maintained the same position and has given different versions with regard to the same issue. You may also find inconsistencies between the evidence given by different witnesses. This is how you should deal with inconsistencies. You should first decide whether that inconsistency is significant. That is, whether that inconsistency is fundamental to the issue you are considering. If it is, then you should consider whether there is any acceptable explanation for it. If there is an acceptable explanation for the inconsistency, you may conclude that the underlying reliability of the account is unaffected. You may perhaps think it obvious that the passage of time will affect the accuracy of memory. Memory is fallible and you might not expect every detail to be the same from one account to the next.
   
7. However, if there is no acceptable explanation for the inconsistency which you consider significant, it may lead you to question the reliability of the evidence given by the witness in question. To what extent such inconsistencies in the evidence given by a witness influence your judgment on the reliability of the account given by the witness is a matter for you to decide.
   
8. Therefore, if there is an inconsistency that is significant, it might lead you to conclude that the witness is generally not to be relied upon; or, that only a part of the witness’ evidence is inaccurate; or you may accept the reason the witness provided for the inconsistency and consider the witness to be reliable.
   
9. When you assess the testimony of a witness, you should bear in mind that a witness may find this court environment stressful and distracting. Witnesses have the same weaknesses you and I may have with regard to remembering facts. Sometimes we honestly forget things or make mistakes regarding what we remember.
   
10. You may also consider the ability and the opportunity a witness had, to see, hear or perceive in any other way what the witness said in evidence. You may ask yourself whether the evidence of a witness seem reliable when compared with other evidence you accept. These are only examples. It is up to you how you assess the evidence and what weight you give to a witness' testimony.
    
11. Based on the evidence you decide to accept, you may decide that certain facts are proved. You may also draw inferences based on those facts you consider as directly proved. You should decide what happened in this case, taking into account those proven facts and reasonable inferences. However, when you draw an inference you should bear in mind that that inference is the only reasonable inference to draw from the proven facts. If there is a reasonable inference to draw against the accused as well as one in her favour based on the same set of proved facts, then you should not draw the adverse inference.
    
12. In this case, there are certain facts which are agreed by the prosecution and the defence. You have been given copies of those admitted facts. You should consider those facts as proven beyond reasonable doubt.
    
13. As a matter of law you should remember that the burden of proof always lies on the prosecution. An accused is presumed to be innocent until proven guilty. This means that it is the prosecution who should prove that the accused is guilty and the accused is not required to prove that he is innocent. The prosecution should prove the guilt of the accused beyond reasonable doubt in order for you to find him guilty: you must be sure of the accused person’s guilt.
    
14. In order to prove that the accused is guilty of an offence, the prosecution should prove all the elements of the offence beyond reasonable doubt. If you have a reasonable doubt concerning any one of those elements, that is, if you are not sure that the prosecution had proven that element beyond reasonable doubt, then you must find the accused not guilty of the offence. A reasonable doubt is not a mere imaginary doubt but a doubt based on reason. I will explain you the elements of the offences in a short while.
    
15. You are not required to decide every point the lawyers in this case have raised. You should only deal with the offences the accused is charged with and matters that will enable you to decide whether or not the said charges have been proven by the prosecution.
    
16. Please remember that you will not be asked to give reasons for your opinion. In forming your opinion, it is always desirable that you reach a unanimous opinion. But it is not necessary.
    
17. Let us now look at the amended Information. The Director of Public Prosecutions has charged the accused for the following offences;
    

FIRST COUNT

Statement of Offence

ARSON: contrary to section 362(a) of the Crimes Act of 2009.

Particulars of Offence

JONE VAKARISE with others, between the 5^th day of September, 2017 to the 6^th day of September 2017, at Nasinu in the Central Division, willfully and unlawfully set fire to the dwelling house of MICHAEL ASHLEIGH.

SECOND COUNT

Statement of Offence

ASSAULT CAUSING ACTUAL BODILY HARM: contrary to section 275 and read together with section 45 of the Crimes Act of 2009.

Particulars of Offence

JONE VAKARISE with others between the 5^th day of September, 2017 to the 6^th day of September 2017, at Nabua in the Central Division, assaulted JITENDRA KUMAR thereby causing JITENDRA KUMAR actual bodily harm.

18. To prove the offence of arson, the following elements must be proved beyond reasonable doubt;
    1. the accused;
    2. wilfully and unlawfully set fire;
    100. to any building or structure.
         
19. The first element of the offence is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that it was the accused who committed the offence and no one else. You may have noted that this is the element that is mainly disputed in this case.
    
20. The accused says that he did not commit the two offences and he was not at the places where the two offences were alleged to have been committed. According to the first prosecution witness (“PW1”) who is in fact the only witness who spoke about the accused, he had known the accused and he had recognised the accused as the offender who committed the two offences.
    
21. When you consider the evidence on the identification of the accused in respect of each offence, please bear in mind that an honest and a convincing witness can still be mistaken. Mistaken recognition can occur even of close relatives and friends. Therefore, you should closely examine the following circumstances among others when you evaluate the evidence given by the PW1 on identification of the accused in relation to each offence;
    1. Duration of observation;
    2. The distance within which the observation was made;
    100. The lighting condition at the time the observation was made;
    4. Whether there were any impediments to the observation or was something obstructing the view;
    5. Whether the PW1 knew the accused and for how long;
    6. Whether the PW1 had seen before, how often, any special reason to remember;
    7. Duration between original observation and identification; and
    8. Material discrepancy between description to Police and appearance.
       
22. The second element involves setting of fire. The setting of fire should be wilful and unlawful. The word “unlawfully” simply means without lawful excuse.
    
23. As per the third element the fire should be set to any building or structure. It is an admitted fact that the house in question was burnt down between the 05^th to the 06^th September 2017. Therefore, the third element should be regarded as proven beyond reasonable doubt.
    
24. To prove the second count, the prosecution should prove the following elements beyond reasonable doubt.
    1. the accused;
    2. committed an assault;
    100. occasioning actual bodily harm.
         
25. Again the first element of the offence is concerned with the identity of the person who committed the offence. The prosecution should prove beyond reasonable doubt that it was the accused who committed the offence and no one else.
    
26. Assault is the use of unlawful force. A touch constitutes an assault if it is done without a lawful excuse.
    
27. To establish the third element, the prosecution should prove that actual bodily harm was caused due the assault.
    
28. The prosecution says that they have charged the accused for the second count on the basis that he assisted or helped others to commit the relevant offence. Please remember that a person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence. A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the principal offender has not been prosecuted or has not been found guilty.
    
29. For an accused to be guilty of an offence on this basis;
    • (a) the person’s conduct must have in fact aided or abetted the commission of the offence by the other person; and

(b) the offence must have been committed by the other person.

30. Further, the accused must have intended that;

(a) his or her conduct would aid or abet the commission of any offence of the type the other person committed; or

(b) his or her conduct would aid or abet the commission of an offence and have been reckless about the commission of the offence that the other person in fact committed.

31. However, a person cannot be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person —

(a) terminated his or her involvement; and

(b) took all reasonable steps to prevent the commission of the offence.

32. Now let us look at the evidence. Please remember that I will only refer to evidence which I consider important to explain the case and the applicable legal principles to you. If I do not refer to certain evidence which you consider important, you should still consider that evidence and give it such weight you may think fit.
    
33. The first prosecution witness was one Jitendra Kumar (“PW 1”). He said;
    1. On 05/09/17 around 11.00pm he went to Raiwasa to meet his friend Aman. He said he was accused of stealing a dog and he went there to tell his friend that he bought the dog from one Michael.
    2. While he was sitting inside Aman’s house “Pei” came inside the house and asked him about the dog. He said that Pei threated to kill him. Then he suggested that they should go to see Michael to verify that he bought the dog from Michael. He said there were 8 to 9 people including Pei and he had to go with them though he was frightened.
    100. He said, Michael’s house was at Kinoya and he went with Pei in Pei’s car. When they reached Michael’s house, Michael was not there. Then he saw one boy enter through a window at the back of the house and then that boy opened the front door.
    4. Thereafter, they stared damaging the property inside the house and collected all the valuable items and loaded those items into the van. After that, they placed a mattress on the floor and they set fire to the mattress using matches. Then he said Pei set fire to the mattress. After the fire was lit they ran to the vehicle. He said he was standing outside 2 – 3 metres from the front door when Pei set fire to the mattress. Nothing was blocking his view and there was a bulb inside the house.
    5. He said he did not know that they are going to set fire to Michael’s house when they took him there. After Pei set fire to the mattress he went to Aman and asked him what is happening as he got frustrated. Aman told him not to worry and to sit in the car.
    6. Then he sat inside the car and they left. Pei was driving and two Fijian boys were sitting at the back. He was in the front seat. He said the car should have turned at Nabua roundabout, but it went straight. He asked Pei why they are going that side. Then Pei said the word “boot” and the person who was sitting at the back hit his head using a small pinch bar. He started bleeding and he covered his face.
    7. They took him to Mead Road Housing and further assaulted him. Thereafter they took him to Aman’s house and threatened him not to complain to the police. He said Pei threatened to kill him and his family. He was sitting in that house for about an hour and then they left.
    8. After that he made a complaint to the police.
    9. He said he worked at Carpenter’s Shipping from 1999 to 2007 and he knew Pei since 2004. He had met Pei many times since 2004 and he met Pei again in 2016 where they talked for a long time. He pointed at the accused as the person he was referring to as Pei.
    10. During cross-examination he said that he received a phone call from Aman where Aman told him to come in order to reconcile the matter concerning the dog. After he was shown his statement, he agreed that he received the call from Aman on 04/09/17. He said Aman called him on 04/09/17 and he gave his statement to the police on 05/09/17.
    11. When it was pointed out that he had mentioned in his statement that the reason Aman called him was to discuss the issue of him of being a police informant and not about a dog, he said Aman called him so that while drinking grog he can solve the matter regarding the dog and he could also clarify to them that he is not a police informant.
    50. When he was asked why he didn’t mention about the dog in his statement to the police, he said at that time where he had been assaulted and threatened to be killed, the ‘small matter’ about the dog did not come into his mind.
    13. He said when he entered Aman’s house he saw Edwin and Navin outside the house and Pei came when he was inside the house. When he was asked how many of them were there altogether, he said 6. When it was pointed out that he said in his evidence in chief that there were 8 to 9, he said he only knew 6 men but the people who were renting were also standing there. He further said that 8 to 9 were there but 6 men were involved ‘with the problem’.
    14. When he was asked how he knows Pei from Nabua, he said he used to buy weed from Pei and therefore they used to meet regularly. He said he knew Pei very well for about 2 to 3 years when he was smoking weed. When he was asked what Pei was doing in 2004, he said he would only go to him to buy and then would return. He said it was a buyer and a seller relationship.
    15. When it was suggested to him that in 2004, the accused was a form 4 student at Suva Muslim College, he said ‘no’. He said the accused used to shave his hair in 2004 and was of same height as he was. He said he did not know the age.
    16. When he was asked how far was the closest neighbour’s house from Michael’s house, he said it is far away and he denied the suggestion that it is just 3 metres away.
    17. When it was pointed out that in his police statement it is stated that “men then got a pinch bar and broke the door”, and his evidence was that a boy entered through the window and opened the door, he said the window was just beside the door and they broke the window.
    18. When it was pointed out that he mentioned during examination in chief that the window the boy entered was at the back of the house, and during cross-examination he is saying the window was just beside the door, he said, it was on the side but at the back of the house. He said he was standing at an angle and he could see the back of the house as well as the front.
    19. It was pointed out that he had mentioned in his police statement that he “. . . saw them lit a fire inside . . .” and was asked to explain what he meant by “them”. His answer was “Pei”.
    20. When it was suggested to him that the accused never assaulted him, he said “he is the one who hit me that day.”
        
34. The second prosecution witness was Michael Ashleigh (“PW 2”). He said that;
    1. He lived in the house at Lot 9, Nasinu Secondary School Road, Kinoya in September 2017. On 05/09/17 around 11.00pm he was at his girlfriend’s house and he returned between 12.00am and 1.00am the following morning.
    2. When he returned, his house was on fire and it had completely burned down. He had lived in the house since 2015 and it belongs to his Cousin Brother, Yasin Ali.
    100. He said the estimated cost of the damages to the interior of the house was betwwen $5000 to $7000.
         
35. The third prosecution witness was one Yasin Ali (“PW 3”). He said that he is the owner of the house at Lot 9 Nasinu Secondary School Road, Kinoya and the estimated cost of the damages to the house is around $50,000.
    
36. The fourth prosecution witness was Fire Officer Petero Nodrakoro of the National Fire Authority (“PW4”). He said that;
    1. He has been a fire officer for 10 years and he had undergone several trainings overseas. He visited Lot 9 Nasinu Secondary School Road, Kinoya on 08/09/17 to conduct an assessment. He tendered the report he prepared as PE 1.
    2. In his opinion, the point of origin of the fire was the floor. According to him the suspected cause of fire was ‘incendiary’ which means that the fire wouldn’t have started naturally. He could not determine what was used to start the fire.
    100. During cross-examination he said the fire had originated from the sitting room towards the rear end of the structure. He said, from his experience and assessment the fire did not start from a single point but the ignition source was introduced on an area where the fire started all at once on that area. He said he would rule out the possibility of a single person lighting fire in one point.
    4. During re-examination he said the fire was not lit on a single spot but a multiple area within that floor.
       
37. The fifth prosecution witness was Dr. Jennillyn Palo Singh (“PW5”). She said that;
    1. She had been a medical officer for 2 years and she had not given evidence in her capacity as a medical officer before.
    2. She recalled medically examining Jitendra Kumar on 06/09/17. She tendered the medical report she prepared as PE 2.
    100. She said she observed a superficial laceration on the left side of the scalp which was a few millimetres deep only and did not extend to the skull bone. She also found abrasions on the chest and the upper wrist.
    4. She said the lacerations are usually caused by a blunt trauma. Blunt trauma is any physical injury caused by a body part or a weapon that would not cause an open wound. Abrasions are usually caused when the skin goes against a rough surface.
    5. She said it is possible for the injury on the head to have been caused by a pinch bar.
       
38. At the end of the prosecution case you heard me explain several options to the accused. The accused had those options because he does not have to prove anything. The burden of proving his guilt beyond reasonable doubt remains on the prosecution at all times. The accused chose to give evidence on oath.
    
39. The accused said in his evidence that;
    1. He is 29 years old. On 05/09/17 he was mixing cement with his cousins at Rewa Street. They installed two posts to mount a punching bag. They finished around 11.00pm. Then he went to pick his wife from Cunnigham where she was attending a bible study.
    2. They then went straight home. He started watching a movie after dinner, but since he was tired he went to bed without watching it. He said he does not know Michael Ashleigh. He said he had no reason to burn Michael’s house and he did not do that.
    100. He said he did not know Jitendra Kumar. He said in 2004 he was a form 4 student at the Suva Muslim College. He said he does not smoke Marijuana and he has not been charged for any drug related activity.
    4. He said when the police approached him, he was told that he is a suspect because his name is ‘Pei’. After he was interviewed, the interviewing officer told him to go home. The Crime Officer came inside the room and said “just charge him” and told him to argue his case in court. He asked him to bring the complainant to the station to identify him but the police did not want to do that. He said he was wrongly charged for this case.
       

Analysis

40. The prosecution case is that the accused with others set fire to the dwelling house of Michael Ashleigh located at Lot 9 Nasinu Secondary School Road, Kinoya and thereafter the accused while travelling with PW1 in accused’s car instigated others who were travelling in the same car to assault PW1 thereby causing actual bodily harm to PW1.
    
41. The accused totally denies the allegations and he says that he was at Rewa street at the time of the incident and from there he went to Cunningham and then to his house. Defence says that PW 1 was not a credible witness.
    
42. First, may I explain you about the defence of alibi raised by the accused. Please bear in mind that though an accused raises the defence of alibi, there is no burden for the accused to prove that he was elsewhere during the time the offence is alleged to have been committed. The prosecution should still prove that it was the accused that committed the offence and therefore the alibi is not true.
    
43. When you consider the evidence of the accused regarding his alibi, if you think that the version of the accused is true or it may be true, then you must find the accused not guilty of the offence.
    
44. However, you should also bear in mind that you should not assume that the accused is guilty of the offence merely because you decide not to accept his alibi. You should remember that sometimes an accused may invent an alibi just because it is easier to do so rather than telling the truth. The main question remains the same. That is, whether you are sure that it was the accused who committed the offence.
    
45. The main issue in this case is the identification. PW1 said that he knew the accused since 2004 as he used to buy weed from the accused and according to the account given by PW1, during the time of the alleged incident he was with the accused for quite some time and had spoken with the accused. However, in his statement given to the police, PW 1 had only mentioned the name ‘Pei’ and had not mentioned anything about buying weed from the accused. According to the accused, he was 15 years old and was a form 4 student in 2004. In this case no formal procedure was followed to have the accused identified during the investigation stage. After PW1 gave his statement where the name ‘Pei’ was mentioned, he pointed at the accused as the person he was referring to as ‘Pei’ for the first time, in court which is after 1 year.
    
46. Identifying an accused for the first time in court after the alleged incident when the accused is inside the accused box is known as ‘dock identification’. Dock identification is unreliable in the absence of a prior identification in the investigation stage during an identification parade or photograph identification. Therefore, you should consider the evidence pertaining to identification of the accused with caution. It is because the witness may identify the accused merely because he is in the ‘dock’. Witness may assume that the accused is the person who committed the crime because he is in the dock.
    
47. Considering all the evidence you would decide to accept, you should carefully consider whether the accused’s identity has been established by the prosecution beyond reasonable doubt.
    
48. The fourth and fifth prosecution witnesses gave their opinions based on what they had observed and their experience. You are not bound to accept that evidence. You will need to evaluate that evidence for its strengths and weaknesses, if any, just as you would with the evidence of any other witness. It is a matter for you to give whatever weight you consider appropriate with regard to the observations made and the opinion given by the said witnesses. Evaluating their evidence will therefore include a consideration of their expertise, their findings and the quality of the analysis which supports their opinion.
    
49. You may have noted the following inconsistencies among others;
    1. In the statement made to the police, PW1 does not mention any details about the offenders apart from mentioning the name ‘Pei’ as one of the individuals who were involved. During evidence in chief, he says for the first time that he had known the accused since 2004. During cross-examination he further adds that he knows the accused because he used to buy weed from the accused since 2004;
    2. In the statement made to the police, PW1 has not mentioned that Aman called him to discuss about the dog and what he had said is that the purpose was to discuss about him being a police informant. He mentions about the dog for the first time in court. According to the evidence given by PW1, the house in question was burned and he was assaulted because of an issue involving a dog. When he was asked during cross-examination the reason he did not mention about the dog in his police statement, he said the issue about the dog was a ‘small matter’ and therefore it did not come to his mind;
    100. In the evidence in chief, PW 1 said that the individuals sitting in the back of the car assaulted him when the accused said the word ‘boot’. During cross examination when it was suggested that the accused did not assault him, he said the accused is the one who hit him;
    4. In the police statement, PW 1 has stated that he “saw them lit a fire”. In his evidence he said ‘Pei’ lit the fire.
       
50. You should deal with the above inconsistencies and any other inconsistencies you have noted according to the direction I have already given you.
    
51. Please remember that you should not hold the evidence that PW 1 used to buy weed from the accused either against PW 1 or the accused in the event you believe that evidence as that issue is not relevant to the charges in this case.
    
52. You must remember to assess the evidence for the prosecution and the defence using the same yardstick but bearing in mind that always the prosecution should prove the case against the accused beyond reasonable doubt.
    
53. I must again remind you that even though an accused person gives evidence, he does not assume any burden of proving his case. The burden of proving the case beyond reasonable doubt remains on the prosecution throughout. An accused’s evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
    
54. Generally, an accused would give an innocent explanation and one of the three situations given below would then arise in respect of each charge;
    
    • (i) You may believe his explanation and, if you believe him, then your opinion must be that the accused is ‘not guilty’.
      
    • (ii) Without necessarily believing him you may think, 'well what he says might be true'. If that is so, it means that there is reasonable doubt in your mind and therefore, again your opinion must be ‘not guilty’.
      
    • (iii) The third possibility is that you reject his evidence. But if you disbelieve him, that itself does not make him guilty. The situation would then be the same as if he had not given any evidence at all. You should still consider whether the prosecution has proven all the elements beyond reasonable doubt.
      

If you are sure that the prosecution has proved all the elements, then your proper opinion would be that the accused is ‘guilty’ of the offence.

55. Any re-directions?
    
56. Madam and Gentlemen Assessors, that is my summing up. Now you may retire and deliberate together and may form your individual opinion on the charges against the accused. When you have reached your separate opinion you will come back to court and you will be asked to state your separate opinion.
    
57. Your opinion should be whether the accused is guilty or not guilty on each count;
    

Vinsent S. Perera
JUDGE

Solicitors;

Office of the Director of Public Prosecutions for State.
MIQ Lawyers, Suva for Accused.