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State v Turuva - Summing Up [2019] FJHC 637; HAC118.2015 (17 June 2019)
IN THE HIGH COURT OF FIJI
AT LAUTOKA
[CRIMINAL JURISDICTION]
High Court Criminal Case No. HAC 118 of 2015
BETWEEN
STATE
AND
AISEA TURUVA
Counsel : Mr Seruvatu for the State
Ms N Sharma for the Accused as duty Solicitor
Dates of Hearing : 13 and 14 June 2019
Closing speeches : 14 June 2019
Date of Summing up: 17 June 2019
SUMMING UP
Ladies and gentleman assessors,
- I must now sum up the case to you. You must then retire to consider your opinion. I will direct you on the law that applies. You must
accept those directions I give you on matters of law. You are to decide the facts of the case, based on the evidence that has been
led before this court. You will then apply those directions to the facts and give me your opinions as to whether the accused person
is guilty or not guilty to the counts he is charged with.
- You are bound by the directions I give you as to the law. But you are not obliged to accept any opinion I may express or appear to
have expressed while going through evidence. If you do not agree with that opinion you will ignore it and form your own opinion with
that evidence.
- You must base your opinion only on evidence given by the witnesses before this court. But a few things that you heard in this court
are not evidence. Opening submission, closing submissions, statements, arguments and comments made by the counsel and this summing
up are not evidence. But you may consider those as a guidance when you evaluate evidence and the extent to which you do so is entirely
a matter for you. If you have acquired any knowledge about the facts of this case outside this court room, you must exclude that
information from your consideration. Make sure that external influences play no part in forming your opinion. You will also not let
any sympathy or prejudice sway your opinions.
- I will give you only a summary of evidence. I will not go through every word uttered by the witnesses in this case, and if I leave
out something that seems to be important, nothing stops you from taking that into account. Because you decide the facts.
- After this summing up, you may give your individual opinion as the representatives of the community. You may reject or accept any
evidence in forming your opinion. Your opinions need not be unanimous. And you need not give reasons for your opinions.
- Your opinions will assist me in giving my judgement. I will give the greatest weight to your opinions in my judgement. However, I
am not bound to conform to your opinions.
Ladies and gentleman assessors,
- I will now mention some considerations that may assist you in evaluating evidence. As I said before you may reject the whole evidence
of a witness, accept the entirety or even accept only a part of a witness’s evidence and may reject the rest. You have to decide
whether a witness has spoken the truth or correctly recalled the facts and narrated it.
- You have seen the demeanour of the witnesses and how they gave evidence in court. You have seen whether they were forthright or evasive
in giving evidence. But you may also bear in mind that some witnesses have good memory, some may not remember every detail and it
is also likely that some may perceive the same incident differently and narrate differently. You have to use your common sense in
assessing the reliability and credibility of witnesses. Remember, that many witnesses are not comfortable in giving evidence in a
court room, they may act in anxiety and get distracted in this environment.
- When you evaluate evidence, you should see whether the version of a witness is probable or improbable. You must see whether the witness
has relayed a consistent story and whether it tallies with his or her previous statements or the evidence of other witnesses.
- A previous statement made by a witness to the Police is not evidence. But those statements can be used to test the consistency and
credibility of the witness if you are satisfied that such a statement was made. The statement to Police could only be used to ascertain
whether the witness has said something different to what he or she said in Court. These portions only assist to decide whether the
witness was consistent in that particular issue.
- According to the law the prosecution must prove its case beyond reasonable doubt. For the prosecution to discharge its burden of proving
the guilt of the Accused, it is required to prove beyond reasonable doubt that he is guilty. The burden of proof remains on the prosecution
throughout the trial. For this purpose, the prosecution must prove every element of the offences, beyond reasonable doubt.
- The Accused need not prove his innocence. The fact that the Accused did not give evidence in this case does not imply any burden upon
him to prove his innocence. It is not his task to prove his innocence. The burden is on the prosecution to prove the guilt of the
Accused. That means you must be satisfied that the state has proved every element of the offence beyond reasonable doubt. A mere
imaginary doubt is not a reasonable doubt. The doubt should be a reasonable one and if you are left with a reasonable doubt you must
find the Accused not guilty. If you are not left with any such doubt and if you are sure that the prosecution proved every element
of the offences, you must find him guilty to those offences.
- In this case the Accused is indicted for two counts. You must consider each count separately. If you find the Accused guilty to one
count it does not automatically make him guilty to the other count. You must consider whether the prosecution has proved the elements
of each count beyond reasonable doubt.
- Now let us look at the counts contained in the amended information.
First Count
Aggravated robbery: contrary to Section 311(1)(b) of the Crimes Act 2009.
Particulars of offence
Aisea Turuva with others on the 13th day of July, 2015 at Nadi, in the Western Division robbed Lales Service Station of $ 41,429.00 cash and at the time of the robbery
used force and offensive weapons namely, cane knife and pinch bar.
Second Count
Resisting arrest: contrary to Section 277(a) of the Crimes Act 2009.
Particulars of offence
Aisea Turuva with others on the 13th day of July, 2015 at Nadi, in the Western Division, resisted arrest of Corporal 3015 Opeti Lolo whilst effecting arrest in the due
execution of his duty.
- For the offence of aggravated robbery, the Prosecution must prove the following elements beyond reasonable doubt;
- The Accused
- Committed robbery
- In the company of one or more other persons; or
- Had an offensive weapon with him at the time of robbery
- The first element is the identity of the Accused. The Prosecution must prove beyond reasonable doubt that the Accused committed the
offence.
- A person commits robbery ifmmedi bely before committmmitting theft; or at the time of committing theft; or immediately after committing
theft, uses force or threatens to use force on another person with intent to committ or cape from the scee scene.
- Theft is dishonest appropriation of the property belonging to another with the intention of permanently depriving the other of that
property. ‘Dishonesty’ and ‘intention to deprive permanently’ are about the state of mind of the Accused.
Inferences may be drawn from the conduct of the Accused, with regard to the Accused’s state of the mind. ‘Appropriation
of property’ means taking possession or control of the property without the consent of the person to whom it belongs. In law,
property belongs to a person if that person has possession or control of the property.
- The offence of robb> becomes aggra robbery, if , if it is committed in the company with one or more other persons, or if at the time of robber the Ad had an
oifensive weapon with him. Off. Offensive weapon includes any article, mle, made oade or adapted for use for causing injury to orpacitating
a person for example, a cane knife, pinch bar, gun, iron rod, piece of stick, etk, etc.
- The second count is resisting arrest. The Prosecution must prove the following elements beyond reasonable doubt to prove resisting
arrest;
- The Accused
- Assaults any person
- with intent to commit an indictable offence, or to resist or prevent the lawful apprehension or detention of himself, herself or of
any other person for any offence
- The first element is regarding the identity of the Accused. The Prosecution must prove that the Accused committed the offence. ‘Assaulting
a person’ is intentionally of recklessly applying unlawful force to another person. For the third element the Prosecution must
prove that the Accused assaulted a police officer to resist lawful arrest of himself.
Ladies and gentleman assessors
- I will now briefly outline the evidence presented in this case. However, you should consider the entirety of the evidence adduced
in this case when forming your opinions.
- The first Prosecution witness, Mohammed Aiyaz Munif gave evidence that he is the CEO of Lale’s Millennium Group of Companies
and on 13 July 2015 Lale’s Service station was robbed. He said that the cashier, Mr Tiko informed him about the incident over
the phone around 3.30 am and he immediately called the Police. He said that the Police arrived within 3 – 5 minutes. The witness
said that around $ 41000 cash was stolen.
- During the cross examination the witness said that he has not seen the Accused before. Further he admitted that he does not have any
document to show how much cash was stolen.
- Ratu Epeli Naliva was the next witness for the Prosecution. He said that he was employed at Lale’s Service Station in Nadi and
on 13 July 2015 at around 3.00 am two persons entered the shop. The witness said that one person was holding a pinch bar and the
other was holding a cane knife. According to the witness both the men were wearing pompoms and the one with the pinch bar had entered
the counter. The one with the cane knife had been standing in front of the counter and that person had threatened to chop him if
he does not keep still.
- The witness said that the man with the cane knife was about 1-1/2 meters away from him. He said that about four times he was told
to keep still. The witness said that the man with the cane knife was wearing black trousers and a sky-blue long sleeve shirt. His
face had been covered with a pompom mask and there had been holes only for the eyes.
- According to the witness some Police officers had arrived soon after the incident. The witness said that the Police officers left
the scene after a while, and they again came back in about 30 minutes. The witness said that they took his statement while the police
vehicle was parked outside. Then the witness had seen the Accused inside the Police vehicle. He said that the vehicle was parked
about 50 meters away from where he was. He had gone beside the vehicle and had seen the Accused sitting inside the Police vehicle.
He said he identified the person sitting inside the Police vehicle as Aisea Turuva. He said that Aisea Turuva was living with his
previous wife during that time. He also said that he had met Aisea for more than once and he was not in a good relationship with
Aisea Turuva. The witness also said that when they meet they will talk and after that they will have an argument. The witness further
said that Aisea Turuva sometimes used to call him and threaten him.
- Ratu Epeli Naliva further gave evidence that Aisea Turuva was wearing clothes similar to the person who came to rob with a cane knife.
He said that Aisea Turuva was wearing a sky-blue shirt. He also said the following regarding the voice;
“The tone of his voice is like when he calls me on the phone when he threatens me is the same tone he used on that night of
the robbery.”
- The witness identified the Accused as Aisea Turuva in Court.
- During the cross examination the witness said that he made a statement to the Police and everything was fresh when he gave the statement
to the Police. The Accused asked the witness whether he told the Police that the man was wearing a black hood. The witness said that
what he meant was a black pompom. Again, the witness was asked whether he has stated in the statement that the person was wearing
a dark blue shirt and not a sky-blue shirt. The witness admitted that he said it was a dark blue shirt. But again, the witness said
that he did not inform the Police that it was a dark blue shirt. He was further cross examined by the Accused as follows;
Q: I put it to you that your wife left you to come and stay with me, that’s the reason you mentioned my name in this robbery?
A: I didn’t know it was Aisea Turuva who was holding to the cane knife during the robbery. I only came to know when the Police
brought him and the cloth he was wearing and his built and his voice.
- Further under cross examination the witness admitted that he assumed that the voice he heard could be Aisea Turuva’s voice after
he saw Aisea in the Police vehicle. The witness confirmed during cross examination that he assumed that it was the Accused’s
voice as follows;
Q: Now Mr Naliva, I will tell you what happened on that day. You went outside, you saw Aisea sitting at the back seat of the Police
vehicle, you assumed that it was the same person holding the cane knife and that’s when you mentioned his name to the Police?
A: Yes
- At this juncture I must caution you regarding the identification of an Accused person. In this case the Defence disputes identity
of the Accused. A wrong identification can cause a miscarriage of justice. The danger of wrong identification would not be about
a witness being untruthful, but there are chances for a witness to mistakenly believe that the person seen at the crime scene was
the Accused. You must decide whether the evidence of identification&is reis reliable and should be accepted or whether the evidence on identification is unsatisfactory and should be rejected. To do
this you must examine all the circumstances and determine the strength or quality of the identification.
- The witness, Naliva said that he assumed that it was the Accused who came to rob with a cane knife after he saw the Accused in the
Police vehicle. You must remember that the witness related to the similarities only after he saw the Accused in the Police vehicle.
He said that his assumption was based on the similarity of the shirt, built and the voice. It is a very important question of fact
for you to decide whether the witness made a positive identification of the Accused byvoice,oice, shirt and built. The witness said that the voice of the person who came with the cane knife was similar
to the voice of the Accused when the Accused to threaten him over the phone. The witness did not say thay that it was similar to
the voice of the Accused when he met and spoke with him during other times. Therefore, you must use your common sense to assess what
weight you would attach to the evidence on identification by voice.
- Further you must assess the reliability of evidence on identification by clothes and by built. I must warn you that there is a big
difference in identifying a person by face and by clothes or by built. Therefore, you must carefully decide whether such identification
is correct and not mistaken. To do this you must closely examine the circumstances in which the identification came came to be made. Generally, this will include such matters as; How long did the witness have the person under observation?
t a significant period or just a fleeting glimpse? At what distance? In what light? Was thes 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 Accas that persoperson? How was the subsequent identificationb>made?made?
- The next Prosecution witness was Tiko Luva. He said that he was the cashier at the Lale’s Service Station. He said on 13 July
2015 at about 3 am he was stacking some ice cream when a person in a pompom mask threatened him with a cane knife to keep still.
According to the witness the man with the cane knife was wearing a long sleeve blue shirt and a black long pants. The witness said
then a second person entered the counter and took the money.
- During the cross examination the witness said that he has never met the Accused before. The witness admitted that at the time he gave
the statement to the police everything was still fresh in his mind. It was put to the witness that he has stated in his statement
to the Police that the person with the cane knife was wearing an overall with black shoes. The witness said that he was scared, and
he thought it was an overall as it looked joined together. Further he said that from where he was standing he could not properly
make out whether it was a shirt or an overall. The witness again said that all what he knows is that the person with the cane knife
was wearing a shirt and it was blue.
- The last Prosecution witness was Inspector Opeti Lolo. He said that on 12 July 2015 he received information of a possible robbery
at a service station in Nadi. He said that he went with a team to warn the service stations. The witness said at around 3 am he received
a call about a robbery at Lale’s service station. They had reached the crime scene within about ten minutes. The witness said
that later they went to Akuila Settlement as the name Aisea Turuva was also received with the information he received that night.
- The witness said that when they reached near the house of the Accused they saw fresh tyre marks on the grass and noticed someone moving
at the back of the house. He said that a person started running and after giving a chase they arrested Aisea Turuva. The witness
said that when they tried to arrest the Accused, he pushed them, and they overpowered the Accused. The witness said that they pinned
the Accused to the ground. According to the witness the Accused had been wearing a long sleeve blue shirt and long dark trousers.
- He said that on their way to Namaka Police Station they stopped at Lale’s Service Station and one of the security officers said
that the Accused looks similar to the one who was standing near the door at the counter holding a cane knife. The witness further
said that the security officer told them that the Accused was still wearing the same long sleeve blue shirt. The witness said that
it was Ratu Epeli who recognized the Accused.
- During the cross examination the witness admitted that no money or any other thing was recovered from the Accused although the Accused
was arrested soon after the robbery. The witness said that they did not focus on searching the house as they were involved in chasing
the Accused. Further he admitted that he did not enquire from the neighbours of the Accused whether a vehicle came during that time
or about the tyre marks.
- During the re-examination the witness said that the Accused was arrested based on the information he received and the description
of the light blue shirt by the workers.
- I must caution you that although the witness said that the Accused was arrested on information received by the Police prior to the
alleged offence, there should be other independent evidence to link the Accused to the robbery. It is for you to decide whether the
Prosecution presented reliable evidence to link the Accused to the offence of robbery as no witness has identified the Accused person
during the alleged incident.
- That was the case for the prosecution.
- After the closure of the prosecution case the Accused was explained his rights. You must bear in mind that although those options
were given, still the burden is on the prosecution to prove the guilt of the Accused and he need not prove his innocence. The Accused
opted to remain silent.
- You heard the evidence given by all the Prosecution witnesses. The main issue in this case is the identity of the Accused person.
You heard that the colour of the shirt worn by the person who was holding a cane knife was described as sky-blue, dark blue and light
blue. Further the Defence highlighted that a witness has described the clothes of the person who was holding the cane knife as an
overall in his statement to the Police.
- The position of the Prosecution regarding the first count was that the Accused was arrested by the Police on some information they
received prior to the incident and a witness in this case later recognized the similarity of the Accused and one of the persons came
for the robbery based on the shirt, voice and the built. As far as the second count is concerned the Prosecution submits that the
Accused pushed the Police officers when they tried to arrest him.
- The Accused totally denied his involvement with the alleged incident and claimed that the main witness, Ratu Epeli Naliva gave false
evidence to take revenge from him as he was living with Ratu Epeli Naliva’s wife at that time. Further the Accused contends
that recoveries should have been made if he was arrested soon after the alleged incident. In respect of the second count the Accused
denies that he resisted arrest.
- Remember, it is for the Prosecution to prove the charges against the Accused beyond reasonable doubt. I have now given you the directions
of law and summarized the evidence adduced in this case. It is a matter for you to decide whether the Prosecution proved all the
ingredients of the offences beyond reasonable doubt.
- You must find him guilty if you decide that the Prosecution has proved the offences beyond reasonable doubt.
- Finding the Accused guilty to one count does not automatically make him guilty to the other count. You must consider relevant evidence
separately for each count when arriving at your opinions. If you have a reasonable doubt in respect of any count, then you must find
the Accused not guilty to that count or counts.
- You may now retire and consider your opinions. Before you do so, may I ask the counsel of both parties whether you wish to request
any redirections?
- When you are ready with your opinions, the Court will reconvene for you to inform your opinions to court.
Rangajeeva Wimalasena
Acting Judge
Solicitors
Solicitors for the State: Office of the Director of Public Prosecutions
Office of Legal Aid Commission for the Accused (Duty Solicitor)
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