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State v Rabalolo - Summing Up [2019] FJHC 271; HAC429.2018 (14 March 2019)

IN THE HIGH COURT OF FIJI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 429 OF 2018

STATE

-v-

ESALA RABALOLO

Counsel: Ms. L. Bogitini with Ms. S. Tivao for Prosecution

Mr. K. Chang for Accused

Dates of Hearing: 11^th -12^th March, 2019

Date of Summing Up: 14^th March, 2019

SUMMING UP

Lady and Gentlemen Assessors,

1. We have now reached the final phase of this case. The law requires me, as the Judge who presided over this trial to sum up the case to you. Each one of you will then be called upon to deliver your separate opinion, which will in turn be recorded. As you listened to the evidence in this case, you must also listen to my summing up of the case very carefully and attentively. This will enable you to form your individual opinion as to the facts in accordance with the law with regard to the innocence or guilt of the accused person.
   
2. I will direct you on matters of law which you must accept and act upon.
   
3. On matters of facts however, which witness you consider reliable, which version of the facts to accept or reject, these are matters entirely for you to decide for yourselves. So, if I express any opinion on the facts of the case, or if I appear to do so, it is entirely a matter for you whether to accept what I say, or form your own opinions.
   
4. In other words you are the judges of fact. It is for you to decide the credibility of the witnesses and what parts of their evidence you accept as true and what parts you reject.
   
5. The counsel for Prosecution and the Defence made submissions to you about the facts of this case. That is their duty as the counsel. They were their arguments, which you may properly take into account when evaluating the evidence. It is a matter for you to decide which version of the facts to accept, or reject.
   
6. You will not be asked to give reasons for your opinions. Your opinions need not be unanimous although it is desirable if you could agree on them. I am not bound by your opinions. But I will give them the greatest weight when I deliver my judgment.
   
7. On the matter of proof, I must direct you as a matter of law that accused person is innocent until he is proven guilty. The burden of proving his guilt rests on the Prosecution and never shifts.
   
8. The standard of proof is that of proof beyond reasonable doubt. This means that before you can find an accused guilty, you must be satisfied so that you are sure of his guilt. If you have any reasonable doubt as to his guilt, you must find him not guilty. However, the doubt must be reasonable and not be based on mere speculation.
   
9. Your opinions must be solely and exclusively upon the evidence which you have heard in this Court and upon nothing else. You must disregard anything you might have heard or read about this case, outside of this court room. Your duty is to apply the law as I explain it to you to the evidence you have heard in the course of this trial.
   
10. This summing-up is not evidence. Statements, arguments, questions and comments by the counsel are not evidence either. A thing suggested by a counsel during a witness’ cross-examination is also not evidence of the fact suggested, unless the witness accepted the particular suggestion as being true. You may take into account those arguments and submissions when you evaluate the evidence.
    
11. In evaluating evidence, you should see whether the story relayed in evidence is probable or improbable; whether the witness is consistent in his or her own evidence or with his or her previous statements or with other witnesses who gave evidence. It does not matter whether that evidence was called for the Prosecution or for the Defence. You must apply the same tests and standards in applying them.
    
12. In the course of cross-examination, the Defence counsel referred to previous statements of witnesses recorded by police. A previous statement made by a witness is not evidence in itself unless it is adopted and accepted by the witness under oath as being true. You can of course use those statements to test the consistency and credibility of the witness if you are satisfied that such a statement was made.
    
13. Documentary evidence is evidence presented in the form of a document. In this case, the medical report is an example if you believe that such a record was made. You can take into account the contents of the document if you believe that contemporaneous recordings were made at the relevant time upon examination of the Complainant.
    
14. Another relevant aspect in assessing truthfulness of a witness is his or her manner of giving evidence in Court. You have seen how the witness’ demeanor in the witness box when answering questions. But, please bear in mind that many witnesses are not used to giving evidence and may find court environment distracting.
    
15. Your duty is to find the facts based on the evidence and apply the law to those facts. Approach the evidence with detachment and objectivity. Do not get carried away by emotion.
    
16. Proof can be established only through evidence. Evidence can be direct evidence that is the evidence of a person who saw it or by a victim who saw, heard and felt the offence being committed. You are also free to draw reasonable inferences in the circumstances of this case if such inferences are based on facts proved by evidence.
    
17. In testing the consistency of a witness you should see whether he or she is telling a story on the same lines without variations and contradictions. You should also see whether a witness is shown to have given a different version elsewhere and whether what the witness has told court contradicts with his/her earlier version. You must however, be satisfied that such contradiction is material to the core issues of this trial and significant so as to affect the credibility or whether it is only in relation to some insignificant or peripheral matter. You must remember that merely because there is a difference, a variation or a contradiction or an omission in the evidence on a particular point or points that would not make witness a liar. You must consider overall evidence of the witness, the demeanor, the way he/she faced the questions etc. in deciding on a witness's credibility.
    
18. Let us now look at the information, a copy of which has been given to you.
    

Statement of Offence

AGGRAVATED ROBBERY: contrary to section 311(1) (a) of the Crimes Act 2009.

Particulars of Offence

ESALA RABALOLO in the company of others, on the 9^th of November, 2018 at Nasinu in the Central Division, stole $150 cash, a BLU brand mobile phone and a wallet with assorted cards, the property of Benjamin Robert and immediately before committing the theft used force on Benjamin Robert.

19. To prove the offence of Aggravated Robbery the prosecution prove the fthe following elements beyond reasonable doubt;
    

a. the accused, EsalaRabalolo

b. committed robbery; and

c. the robbery was committed in the co of one or more other persopersons; or at the time of robbery, has an offensive weapon with him.

20. The first element involves the the identity of the offender. That is the main issue of this whole trial. The prosecution must prove beyond reasonable doubt that the accused Esala Rabalolo and no one else committed the offence in the company of others.
    
21. The offence of Robbery is defined in the Crimes Act. A person commits robbery if he immediately beforeittmmitting theft; or at the time of committing theft; or immediately after committing theft, uses force or threatens to use for another person with intent to commit theft or to escape from the scene.
    
22. A person commits theft if that person;

a. dishonestly;

b. appropriates the property belonging to another;

c. with the intention of permanently depriving the other of that property.

23. The element ‘dishonestly’ is about the state of mind of the accused. So is the element, ‘intention to permanently deprive’. Inferences may be drawn from the conduct of the accused, with regard to an accused’s state of mind.
    
24. Appropriation of property’ means taking possession or control of the property without the consent of the person to whom it belongs. At law, property belongs to a person if that person has possession or control of the property.
    
25. Aggravated Robbery is the aggravated form of robbery. Robbery when committed in ompany winy with one or more other persons or if at the time of robbery the accused had an offenweae weapon with him, that amounts to Aggravated Robbery. Ts the third element of the offence of Aggravated Robbery.
26. An ofAn offence may be committed by one person acting alone or by more than one person acting together with the same criminal purpose. In this case, the Prosecution says that the accused committed the offence in the company of two other persons. I must explain to you the liability of a number of people who commit a crime together. If several people decide to commit an offence together, and all of them participate and assist each other in doing it, each of them is guilty of the crime that is committed. This is so, even though individually, some of them may not actually do the acts that constitute the offence. The offenders’ agreement to act together need not have been expressed in words. It may be the result of planning or it may be a tacit understanding reached between them on the spur of the moment. Their agreement can be inferred from the circumstances.
    
27. Those who commit a crime together may play different parts to achieve their purpose. The prosecution must prove that the accused took some part in committing the crime. If you are sure that the offence of Aggravated Robbery was committed by more than one person and that the accused acted together with the others to commit that offence and took some part in that offence you should find the accused guilty of the offence of Aggravated Robbery.
    
28. There is a final legal matter I must direct you which is very important. In this case the Prosecution case depends wholly on the correctness of identification of the accused as the offender. The Defence challenges this identification and says that the witnesses are mistaken. The Prosecution relies on photograph identification in addition to other evidence adduced to prove the identity of the accused. In these circumstances I must warn you of the special need for caution before convicting the accused on the correctness of this identification.
    
29. The reason for this is the danger that a wrong identification will cause a miscarriage of justice and there have been cases where this has happened. It is not a question of a witness being untruthful but mistakenly believing the person seen at the crime scene at the crucial time was the accused. With this genuine belief a mistaken witness can nevertheless be a convincing one. I am not saying that is necessarily the case here. I am explaining the reason for the special care with which you must approach this issue.
    
30. You must decide whether the evidence of identification is reliable and should be accepted or whether it is unsatisfactory and should be rejected or leaves you in doubt. To do this you must examine all the circumstances and determine the strength or quality of the identification. It is for you to assess the value of the evidence that has been given.
    
31. To do this you must closely examine the circumstances in which the identifications came to be made. Generally, this will include such matters as:
    

- How long did the witness have the person under observation? Was it a significant period or just a fleeting glimpse?
- At what distance?
- In what light?
- Was the view impeded or obstructed in any way?
- Was the accused a person known to the witness?
- Had the witness ever seen the accused before and, if so, how often?

- How long elapsed between the original observation and any subsequent identification of the accused as that person?
- How was the subsequent identification made?

32. Such matters as these go to the quality of the identification evidence.
    
33. The Prosecution adduced evidence in respect of photograph identification parade conducted by police on the 11th November, 2018, two days after the alleged incident. It is not improper for the police in doubt as to the person who committed a particular crime to show a number of photographs of different individuals to persons who may thereafter become witnesses at the trial of one of those individuals, in order that they may be assisted in their efforts to find out who the culprit was. The object of showing a group of photographs to a witness is to test his or her ability to pick out the photograph if it is there, of the person whom the witness has said that he has seen previously in the crime scene. Every precaution should be taken by police in this procedure to exclude any suspicion of unfairness or erroneous identification.
    
34. The Defence argues that, in conducting the photograph identification parade, the police have not followed the proper procedure and conducting such a procedure when the suspect is already in custody is contrary to Fiji Police Force Standing Orders. They also say that the identification was based on police assistance.
    
35. I must tell you that the Fiji Police Force Standing Orders are not Rules of law and are only meant to ensure the fairness of the procedure. Photographs should not be shown if the circumstances allow of personal identification, e.g. when there is already a suspect who is readily available to be asked to stand on an identification parade. The police officer Chand who conducted the photo identification parade said that the accused refused to take part in a personal identification parade and that is why he opted to conduct a photograph identification parade.
    
36. The accused does not deny that he refused to take part in a personal identification parade. He says that he was pointed out to the identifying witnesses by police officers prior to the identification parade and that is why he refused to take part. It is for you to decide what weight to be attached to the photograph identification evidence and if it has helped at all to bolster other identification evidence adduced for prosecution.
    
37. I must tell you that the fact that the accused refused to take part in the personal identification parade must not be held against him. You should not jump to the conclusion that the accused refused to take part in the identification parade because he is guilty. It is for you to decide whether this particular conduct of the accused is consistent with his guilt. If you accept the evidence of the accused that, prior to the photo identification parade, he was pointed out to the identifying witnesses you should not rely on photograph identification evidence at all.
    
38. That completes my directions to you on the legal issues.
    
39. I must also remind you of the evidence given and the cases of both the Prosecution and Defence. In doing this I do not propose going through all the evidence of every witness. It should still be fresh in your minds. If I refer to only some aspects of a witness's evidence it does not mean that the rest is unimportant. You must weigh up and assess all the evidence in coming to your decision on this case.
    

Case for Prosecution

PW.1 Benjamin Robert (The Complainant)

40. Witness Robert is a taxi driver. He said that on the 9^th of November 2018, around 10pm he got a job at Carnavon Street, where all the nightclubs are. An iTaukei guy came and asked him to bring his wife from Vesida back to Suva. He agreed. This guy sat in front, and 2 other guys sat at the back.
    
41. They reached Vesida around 10.30 pm. One sitting in front was wearing a white t-shirt. One person sitting at the back was wearing a brown t-shirt and the other one a white t-shirt. All of them were in ¾ pants, wearing caps.
    
42. As soon he reached Vesida roundabout, the guy sitting at the back told him to go further down pointing to a house with a light on. He refused to go further because that place looked dangerous. They forced him to go just further in front which he did. Upon reaching that place they forced him again to go further in front. He stopped his vehicle right there as he knew something was going on. The one sitting at the back right behind him grabbed his neck from behind. This guy then came in front and opened his door and started punching him. He received three punches in his face. This guy was not wearing the cap at that time. He was wearing a round neck white t-shirt. He looked into his face because he was standing in front of him. He was looking at his face for 1 minute.
    
43. They threatened to kill him if he yelled or asked for help. One who was sitting in the front told him to go at the back. As soon as he came to the back seat, he managed to go outside and run for help. He was yelling, ‘butako, butako’. Just within a minute a lot of people from the nearby houses came to support him.
    
44. Robert said that the lighting condition was good and bright. He could see the robbers nicely because there was a street light on top and also the light was coming from the other side of the house where his car was parked. Nothing was blocking his view.
    
45. He said that the other person sitting at the back moved outside to watch and the one sitting in front was searching his car, looking for money. They took his wallet and $150.00 it had, and his phone. When the robbers saw him yelling outside, they seemed shocked and started to run in the wrong direction where the people were coming from.
    
46. He came back to his vehicle and drove to Valelevu Police Station to lodge a complaint. While he was still at the police station, the police received a call just within 5 minutes’ from Vesida that someone who did this robbery was caught. At around 11p.m. while he was still at the police station, a person was brought to the police station. He recognised that person as the one who robbed and punched him.
    
47. The same night, the police sent him for a medical examination at Valelevu Health Centre. He tendered the medical report in his evidence (PE1). He said that he had a black eye as a result of the punches he received.
    
48. On 11th of November, 2018, he was called to the Valalevu Police Station to identify a person who robbed him. He was taken to a room and shown 10 photographs of 10 iTaukei males whom he guessed were known criminals. He pointed out photograph No. 3 which portrayed the person who had punched and robbed him. He said that he remembered the person very well because it was the first time somebody had punched in his face. He identified the accused sitting in the dock as the person who punched him.
    
49. Under cross examination, Robert admitted that he did not turn around to look at the faces of the two who were sitting at the back seat. He said that he had a look at the rear mirror and was paying attention to the two guys sitting at the back. He said that the place he parked the car was not dark although there were trees along the road. He admitted that things went too fast and he closed his eyes each time he received punches. He admitted stating to police that he refused to drive to the blue house they pointed to because that place was dark as it did not have any security lights. He admitted that after he was robbed he ran fast to a place where there was better visibility.
    
50. Robert denied that, before the photograph identification parade, the accused was pointed out at the police station by police officers as one of the persons who robbed him. He admitted that he did not take part in a personal identification parade and that he was shown only black and white photographs to identify the accused. He admitted that the t-shirt depicted in the photograph was white but a printed one. He admitted that he had not mentioned earlier that it was printed one. Robert said that he picked the photographs No.3 by looking at the face and not the t-shirt.
    
51. He denied the proposition that the accused was taking a short-cut near the crime scene and the arrest was made because of his suspicious appearance and because he was trying to run away from police officers who had known the accused from before. Explaining his statement to police, Robert said that he refused to drive further down to the dark place and the place he had parked the car had enough light.
    
52. Under re-examination, Robert said that he clearly saw the face of the accused when he took the wallet and counting money in his wallet.
    

PW.2 Sainimili Sakuru

53. Sainimili said that on the 9th November, 2018, at around 11 pm, she went to sleep upstairs of her two storied house in Veisida when she heard someone yelling butako.., butako... When she went to the porch, she saw a taxi parked with its lights on and the taxi driver and also another person wearing a white t-shirt. The person wearing the white t-shirt was coming towards her back yard. She also started shouting.. butako..butako.... Then he changed his direction and went towards the fence of the neighbour.
    
54. Under cross- examination, Sainimili admitted that the street lights were quite apart from her house. She said that there were no big trees along the road. She said under re-examination that her neighbour’s house had a big light and it was quite bright and the light of the taxi was also on at that time.
    

PW. 3 Marica Sovaki

55. Marica said that on the 9th November, 2018, before going to bed at around 11.30 p.m., she heard someone yelling butako... butako.. She went to the back yard from where the sound was coming from. She saw a person climbing the fence. She grabbed him and put him down to the ground and sat on his chest. Neighbours came and took him to their compound and informed the police. She said that this person was wearing a round neck white t-shirt and shorts. This person wanted them to release him saying that he knew nothing about the robbery. Marica said that she was able to observe his face for nearly 15 minutes at a close distance in bright light coming from her neighbour’s house. When the police arrived in 15 minutes, he was handed over to the police who had known him prior to the incident.
    
56. Marica further said that on the11th November, 2018, she went to the Valelevu Police Station and identified the photograph of the person she apprehended. She identified the accused in the dock as the person she had apprehended that night.
    
57. Under cross examination, Marica agreed that she did not see the taxi driver being robbed or assaulted. She acted on instinct when she heard the sound and she apprehended this man because of his suspicious behaviour. She agreed that the person apprehended was assaulted by her neighbours. She admitted that there was no personal identification parade held and that, in the photographs shown to her, only 3 people were wearing white t-shirts. She admitted that a phone or a wallet was not found in his possession.
    

PW.4 DI Vinod Chand

58. Inspector Chand said that as the most senior police officer available at the Valelevu Police station, he, on the 11^th November, 2018, conducted the photograph identification parade on the instructions of the crime officer. He explained in detail the procedure to be followed in conducting a photograph identification parade. He said that he followed the proper procedure. He said that the photograph of the suspect was displayed in a separate room with 9 other photographs, numbered 1-10, of persons of similar physical characteristics, and that the two witnesses who were being kept in separate locations, were escorted, one after the other, to the room and asked to pick out the photograph of the suspect. He said that both the witnesses pointed to the photograph No.3. Officer said that he briefed the witnesses only as to the procedure and he did not talk anything other than that.
    
59. When asked by court as to why he conducted a photograph identification parade, instead of personal identification parade, the officer said that the accused had refused to stand on a personal identification parade.
    
60. Under cross examination, the officer admitted that he was informed that there is a suspect in custody but not of his descriptions. He admitted that all the photographs are in black and white and the colours are not distinguishable and they did not portray the true colours.
    
61. That was the case for the Prosecution.
    
62. At the close of the Prosecution’s case you heard me explain to the accused what his rights were in defence and how he could remain silent and say that the Prosecution had not proved the case against him to the requisite standard or he could give evidence in which case they would be cross-examined.
    
63. The accused elected to give evidence under oath although he is under no obligation to prove his innocence. Now I must tell you that the fact that an accused gives evidence in his own defence does not relieve the Prosecution of the burden to prove their case to you beyond reasonable doubt. Burden of proof remains on the prosecution throughout. Accused’s evidence must be considered along with all the other evidence and you can attach such weight to it as you think appropriate.
    

Case for Defence

64. Esala Rabalolo (The Accused)
    

Rabalolo said that on the 9^th November, 2019, around 9- 10 pm. he met a girl by the name of Vilisi from Cunningham and she inquired about a short cut to Cunningham. He gave the the directions of the short cut and while going towards Vesida roundabout on the short-cut talking to each other, he had sexual intercourse with this girl. He said that as they reached the Vesida roundabout he saw people running and yelling butako... butako.. He realised that something was going on and the police will arrive soon. He told the girl to take a different way because he feared that he will be arrested along with this girl because he is known to police.

65. Rabalolo said that he went towards a fence and when he was trying to jump over the fence he got pulled down by somebody and people started beating him while interrogating him about a robbery. He told them that he did not know anything about the robbery. He said that he did not have anything in his pockets, but they continued to assault him.
    
    66. Rabalolo further said that when he was taken to the Valalevu Police Station, he saw the complainant and the police officers pointing at him saying that he is one of the robbers. He admitted that he refused to take part in the identification parade because he was pointed out to the complainant as one of the robbers. He said that he knew nothing about the robbery and nothing was recovered from his possession.
        

Analysis

67. As you listened to the closing remarks by the Counsel, you would appreciate that there is no dispute in this case that the complainant Mr. Robert was robbed by three people on the 9^th of November, 2018 at Nasinu. The only dispute is with regard to the identity of the accused. That is entirely a matter for you to decide. The accused completely denies that he took part in this robbery. Defence takes up the position that the complainant was mistaken when he identified the accused as one of the robbers, in difficult conditions. You must consider the identification evidence in terms of the directions I have given to you.
    
68. The circumstances of the identification evidence in this case are that the observation of the offender was done during night time. According to eye witnesses the street lights were on and so is the light of the taxi and light coming from the nearby house. The complainant said that he observed the offender in close proximity for one minute while he was being punched thrice and also when the offender was counting money. The complainant said that nothing was obstructing his view and he particularly remembered assailant’s face because it was the first time he was punched by somebody in his face. The Prosecution says that it was not a fleeting glimpse although the whole episode was over fairly quickly.
    
69. The Prosecution also led evidence of photograph identification done at the police station two days after the alleged incident. The Prosecution relies on photograph identification to bolster the identification evidence of the complainant and says that 10 photographs portraying ten individuals including that of the accused were shown to the complainant two days of the alleged incident and the complainant was able to positively identify the photograph of the accused.
    
70. The Defence alleges that the photograph identification parade was improperly conducted and the identification was based on police assistant. If you are satisfied that the photograph identification parade was conducted properly and fairly, you can compare the description of identification given by the complainant and the photograph shown to you with the accused sitting in the dock for you to be satisfied as to the identity of the robber. If after a consideration of all the evidence the quality of the identification remains good the danger of mistaken identification is lessened.
    
71. The Defence case is that this identification is incorrect and cannot be relied upon. Accused denies that he took part in the robbery. They say that nothing was found in accused’s possession soon after the incident and that the accused was apprehended by Marica and her neighbours, based on accused’s suspicious behaviour.
    
72. The prosecution says that the accused’s evidence is totally untrue the Defence evidence must be rejected. Taking into consideration the directions I have given to you, you decide if the complainant is an honest witness and whether he positively identified the accused.
    
73. It is up to you to decide whether you could accept the version of the Defence and that version is sufficient to establish a reasonable doubt in the prosecution case. If you accept the version of the Defence, you must not find the accused guilty. Even if you reject the version of the Defence still the Prosecution should prove its case beyond reasonable doubt.
    
74. Remember, the burden to prove the accused's guilt beyond reasonable doubt lies with the Prosecution throughout the trial, and never shifts to the accused, at any stage of the trial. The accused are not required to prove their innocence, or prove anything at all.
    
75. That concludes my summing up of the law and the evidence in this particular trial. We have now reached the stage where you must deliberate together and form your individual opinions on whether the charge has been proved against the accused. On your return you will be asked to separately state in Court whether the accused is guilty or not guilty of Aggravated Robbery.
    
76. Would you please now retire to consider your opinions? When you have made your decisions would you please advise the Court clerk and the Court will reconvene to receive your opinions?
    
77. Any redirections?
    

Aruna Aluthge

Judge

AT Suva

On 14^th March, 2019

Counsel: Office of the Director of Public Prosecution for Prosecution

Office of the Legal Aid Commission for Accused