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State v Korovou - Summing Up [2018] FJHC 999; HAC212.2018 (4 October 2018)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 212 of 2018

STATE

vs.

NIKOTIMO KOROVOU

Counsel: Ms. B. Khantaria for the State
Mr. I. Ramanu for the Accused
Date of Hearing: 1^st to 2^nd October 2018
Date of Summing Up: 04^th October 2018

SUMMING UP

1. The hearing of this case has now reached to its conclusion. It is my duty to sum up the case to you. You will then retire to consider your respective opinions.
   
2. Our functions are different. It is my task to ensure that the trial is conducted according to law. As part of that, I will direct you on the law that applies in this action. You must accept the law from me and apply all directions I give you on matters of law.
   
3. You are to determine the facts of the case, based on the evidence that has been placed before you in this courtroom. That involves deciding what evidence you accept or refuse. You will then apply the law, as I now explain it to you, to the facts as you find them to be, and in that way arrive at your opinion.
   
4. I may comment on the facts if I think it will assist you when considering the facts. While you are bound by directions I give as to the law, you are not obliged to accept any comment I make about the facts. Hence, it is entirely upon you to accept or disregard it unless it coincides with your own independent opinion.
   
5. You must reach your opinion on evidence, and nothing but on the evidence itself. Evidence is what the witnesses said from the witness box. This summing up, statements, arguments, questions and comments made by the counsel of the parties are not evidence. The opening address by the learned counsel for the prosecution is not evidence. The purpose of the opening address is to outline the nature of evidence intended to be put before you. The closing addresses of the counsel of the prosecution and the defence are not evidence either. They are their arguments, which you may properly take into account when you evaluate the evidence, but the extent to which you do so is entirely a matter for you.
   
6. If you heard, or read, or otherwise learned anything about this case outside of this courtroom, you must exclude that information or opinion from your consideration. You must have regard only to the testimony put before you in this courtroom during the course of this trial. Ensure that no external influence plays a part in your deliberation. As judges of facts you are allowed to talk, discuss and deliberate facts of this case only among yourselves. However, each one of you must reach your own conclusion or form your own opinion. You are required to give merely your opinion but not the reasons for your opinion. Your opinion need not be unanimous. I must advise you that I am not bound by your opinion, but I assure you that I will give the greatest possible weight on your opinion when I deliver my judgment.
   
7. Moreover, I must caution you that you should dismiss all emotions of sympathy or prejudice, whether it is sympathy for or prejudice against the accused or anyone else. No such emotion has any part to play in your decision, nor should you allow public opinion to influence you. You must approach your duty dispassionately; deciding the facts solely upon the whole of the evidence. It is your duty as judges of facts to decide the legal culpability as set down by law and not the emotional or moral culpability of the action.
   

Burden and Standard of Proof

8. I now draw your attention to the issue of burden and standard of proof. The accused is presumed to be innocent until he is proven guilty. The presumption of innocence is in force until you form your own opinion that the accused is guilty for the offence.
   
9. The burden of proof of the charge against the accused is on the prosecution. It is because the accused is presumed to be innocent until he is proven guilty. In other words there is no burden on the accused person to prove his innocence, as his innocence is presumed by law.
   
10. The standard of proof in criminal trial is “proof beyond reasonable doubt”. It means that you must be satisfied in your mind that you are sure of the accused’s guilt. If there is a riddle in your mind as to the guilt of the accused after deliberating facts based on the evidence presented, that means the prosecution has failed to satisfy you the guilt of the accused beyond reasonable doubt. If you find any reasonable doubt as to the commission of the offence as charged or any other offence by the accused, such doubt should always be given in favour of the accused person.
    

Information

11. The accused is charged with two others for one count of Aggravated Robbery contrary to Section 311 (1) (a) of the Crimes Act. The particulars of the offence are before you. Hence, I do not wish to reproduce it in my summing up.
    
12. Section 311 (1) (a) of the Crimes Act states that:
    

“A person commits an indictable offence if he or she —

commits a robbery in company with one or more other persons; or”

13. Robbery is an aggravated form of stealing. If the accused person used any form of force or threatened to use such force on a person, either immediately before committing the offence of theft or with intent to escape from the scene, then he commits an offence of robbery. If the accused commits such robbery in company with one or more persons, then such act becomes the offence of Aggravated Robbery. Hence, the main elements of the offence as charged in the information are that:
    

i) The accused,
ii) In company with two others,
iii) Stole the items as stated in the information from Mr. Saman Kumari, and
iv) Used force on Mr. Saman Kumari before committing the offence of theft or with

intent to escape from the scene,

Agreed Facts

14. I now take your attention to the agreed facts, which are before you. They are the facts that the prosecution and the defence have agreed upon without any dispute. Hence, you can take them into consideration as the facts that are proven beyond reasonable doubt.
    

Evidence of the Prosecution

15. Let me now remind you briefly the summary of the evidence presented by the prosecution. This is a fairly short hearing and lasted only for two days. Therefore, I trust that you can properly and correctly recall all of the evidence adduced during the hearing.
    
    16. The prosecution alleges that the accused together with the two others came behind the complainant and strangled him while he was walking along the Victoria parade in the night of 18th of May 2018. One of them squeezed his neck, while other one twisted his hand. The third person had put a cloth inside his mouth. The complainant had started to scream, asking for help. Then the three assailants took the wallet of the complainant and pushed him away. They then walked across the road. According to the complainant, this incidence lasted only two to three minutes. The complainant had then saw that one of the assailants was caught by some people who were at the other side of the road. The complainant had then approached them. One of the people, who caught the suspect, had asked the complainant whether the wallet that was found in the possession of the suspect was belonged to him. That person was in a civilian dress. The complainant later came to know that he was a police officer. You may recall that the complainant explained in his evidence about the colour of his wallet and the items that were inside it.
        
    17. Special Constable Romeo Nasila was the officer who arrested the accused at the scene of the crime on the 18th of May 2018. According to the evidence given by SC Nasila, he was walking towards to the Temptation night club as he wanted to talk to bouncers at the night club in respect of a murder investigation. While he was passing the Maya Daba restaurant, SC Nasila saw that three i-taukei youth were strangling an Indian man. They were near the Temptation night club. They were approximately 3 to 5 meters away from him. SC Nasila recognized those three i-taukei youth as Niko, Joeli and Tale Daulako. They are known faces to the Police as they used to roam around the town. SC Nasila had searched them many times when he was doing his night petrol before this incident. After few seconds, three of them left the Indian man and walked and crossed the road. Three of them went three different directions. He had observed this incident about five seconds. Time was around 9.45 p.m. There were street lights, verandah lights of the shops and the night clubs. You may recall that SC Nasila said that the place was brighter than the court house. There were people, walking along the verandah, but SC Nasila said that he had a clear view of this incident.
        
    18. SC Nasila said that he went after Niko as other two went to different directions. When SC Nasila came close to the Suva City Library, he saw another i-taukei person had caught Niko and was punching on him. SC Nasila had approached them and asked them to stop the punching. He had introduced himself as a police officer and arrested Niko. He then took Niko to the corridor of the Suva Library in order to check him. While checking the pockets of the trousers of Niko, SC Nasila felt that something was in front of his underwear. He then found that it was a black colour wallet. SC Nasila had seen the driving licence of the complainant and his photographs inside the wallet. He then escorted Niko to the Totogo Police Station. You may recall that SC Nasila identified the accused as Niko.
        

Case of the Defence

19. You may recall that the learned counsel for the defence cross examined the three witnesses of the prosecution.
    
20. The learned counsel for the prosecution suggested to the complainant and SC Nasila that they were lying in their respective evidence, which both of them denied.
    

Right to Remain in Silence

21. At the conclusion of the prosecution’s case, the accused was explained about his right to defence. The accused opted not to give evidence. The accused does not have to give evidence. You must not assume that he is guilty because he has not given evidence. The fact that he has not given evidence proves nothing. It does nothing to establish his guilt.
    
22. I have summarized the evidence presented during the cause of this hearing. However, I might have missed some. It is not because they are not important. You have heard every items of evidence and reminded yourselves of all of them. What I did only to draw your attention to the main items of evidence and help you in reminding yourselves of the evidence.

Analysis and Directions

23. In view of the evidence presented by the prosecution and the agreed facts, the parties do not dispute the occurrence of the robbery. The defence has admitted that the complainant Saman Kumari was robbed by a group of i-taukei youths of his wallet, containing 1x $100, 2 x $20, 2 x $10 and assorted cards on the 18th of May 2018.
    
24. Accordingly, the main dispute in this matter is whether the accused was the person who actually committed this crime together with two other youths. In order to determine that, you have to take into consideration whole of the evidence presented by the prosecution.
    

Evaluation of Evidence

25. Madam and Gentleman assessors, I now take your attention to the directions on evaluation of evidence. It is your duty to determine this case based on the evidence. In doing that, you are required to evaluate the evidence in order to determine the credibility, reliability and truthfulness of them. That will assist you to determine what evidence you may accept and what part of the evidence you may refuse. In doing that, you may accept or reject such parts of the evidence as you think fit. It is for you to judge whether a witness is telling the truth and is correctly recalling the facts about which she or he has testified.
    
26. Moreover, you must bear in your mind that a witness may tell the truth about one matter and lie about another; he or she may be accurate in saying one thing and not accurate in another thing.
    
27. In assessing evidence of a witness, you must consider whether the witness had the opportunity to see, hear and or feel what the witness is talking about in the evidence. You should then consider whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. Apart from that you are required to consider the consistency of the witness not only with his own evidence but also with other evidence presented in the case.
    
28. It is your duty to consider the demeanour of the witnesses, how they react to being cross examined and re-examined and were they evasive, in order to decide the credibility of the witness and the evidence.
    

Inconsistencies in the Evidence of the Complainant

29. Madam and Gentleman assessors, you have heard that the learned counsel for the defence in his closing address invited you to consider the inconsistence nature of the evidence given by the complainant and SC Nasila in respect of the duration of this alleged incident. The Complainant in his evidence said that this incident last for about two to three minutes. SC Nasila in his evidence said that he observed this incident for about five seconds.
    
30. You are allowed to take into consideration about the inconsistencies and the omissions of the evidence given by the witnesses when you consider whether the evidence given by the witnesses are believable and credible.
    
31. If there is an inconsistency, it is necessary to decide firstly, whether it is significant and whether it affects adversely to the reliability and credibility of the issue that you are considering. If it is significant, you will next need to consider whether there is an acceptable explanation for it. If there is an acceptable explanation, for the change, you may then conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then it is for you to decide as to what extent that influences your judgment of the reliability of such witness.
    

Evidence of Identification

32. You have heard that the complainant said that he did not see or recognize any of the assailants as he was frustrated. SC Nasila in his evidence said that he recognized the accused when the accused with his two accomplices robbed the complainant. SC Nasila said that the accused is a known person to the police officers.
    
33. When you consider the evidence given by SC Nasila, explaining how he identified the accused, you need to exercise special caution. The reason for this is that experience tells us that even an honest and impressive witness, genuinely convinced of the correctness of their identification, have, in the past, made mistakes. You cannot convict the accused unless you are sure that the identification made by SC Nasila was accurate and, in making that judgment, you need to look carefully at the circumstances in which it was made and also at any other evidence in the case which may support or suggest otherwise. In doing that you have to take into consideration the following factors, that:
    
    1. How long did SC Nasila have the accused under observation?
    2. At what distance?
    3. In what light?
    4. Was the observation impeded in any way, as for example by passing traffic or the presence of people or any other obstacle
    5. Had SC Nasila ever seen the accused before? How often? If only occasionally, had any special reason for remembering the accused?
    6. How long elapsed between the original observation and the subsequent identification?
       

Final Directions

34. Madam and Gentleman assessors, upon consideration of whole of the evidence adduced during the course of the hearing, if you are satisfied that the prosecution has proven beyond reasonable doubt that the accused has committed the offence of Aggravated Robbery, as charged, you can find the accused guilty for the said offence.
    
35. If you are not satisfied or have doubt whether the prosecution has proven beyond reasonable doubt that the accused has committed the offence of aggravated robbery as charged, you must find the accused not guilty for the said offence.
    
36. Madam and Gentleman assessors, I now conclude my summing up. It is time for you to retire and deliberate in order to form your individual opinions. You will be asked individually for your opinion and will not require to give reasons for your opinion. When you have reached to your opinion, you may please inform the clerks, so that the court could reconvene.
    
37. Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?
    

R.D.R.T. Rajasinghe

Judge

At Suva
04^th October 2018

Solicitors
Office of the Director of Public Prosecutions for the State.
Office of the Legal Aid Commission for the Defence.