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State v Rokovesu - Summing Up [2020] FJHC 289; HAC232.2019 (2 March 2020)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Crim. Case No: HAC 232 of 2019

STATE

vs.

1. EMOSI ROKOVESU
2. LEDUA TALEMAITOGA
   

Counsel: Mr. Z. Zunaid for the State
Mr. K. Prasad and Ms. A. Sharma for Accused

Date of Hearing: 24^th, 25^th, 26^th February 2020
Date of Closing Submission: 26^th February 2020
Date of Summing Up: 02^nd March 2020

SUMMING UP

1. The hearing of this case has now reached its conclusion. I have to sum up the case for you. As I explained to you before the commencement of the hearing, we have different functions. 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 to this action. You must accept the law from me and apply all the directions I give you on matters of law.
   
2. Your function is to determine the facts of the case based on the evidence. That involves deciding what evidence you accept or refuse. You will then apply the law, as I shall explain it to you, to the facts as you find them to be, and in that way, arrive at your opinion.
3. 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 any comment I make about the facts of this case unless it coincides with your own independent opinion.
   
4. You must reach your opinion on evidence and nothing but on the evidence itself. Evidence is what the witnesses said from the witness box and the documents tendered as exhibits. This summing up, statements, arguments, questions, and comments made by the counsel of the parties are not evidence. The purpose of the opening address is to outline the nature of evidence. Therefore, the opening address of the prosecution is not evidence. The closing addresses of the counsel of the prosecution and the defense are not evidence. 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.
   
5. If you heard, or read, or otherwise learned anything about this case outside of this courtroom, you must exclude that information or opinions from your consideration. You must have regard only to the testimony put before you in this courtroom during this trial. Ensure that no external influence plays a part in your deliberation. You are allowed to talk, discuss, and deliberate facts of this case only among yourselves. However, each one of you must reach 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 your opinion does not bound me, but I assure you that I will give the highest possible weight on your opinions when I make my judgment.
   
6. 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, witnesses, 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. You have to determine the legal culpability as set down by law and not the emotional or moral culpability of the action.
   

Burden and Standard of Proof

7. 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 guilty of the offence.
   
8. 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 persons to prove his innocence, as his innocence is presumed by law.
   
9. The standard of proof in a criminal trial is "proof beyond a 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 a 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 favor of the accused person.
   

Information and elements of the offences

10. The prosecution has charged the accused with one count of Aggravated Robbery, contrary to Section 311 (1) (a) of the Crimes Act. The particulars of the offence are in the information which is before you; hence, I do not wish to reproduce them in the summing up.
    
    1. The main elements of the Aggravated Robbery are that:
       2. The accused with two others,
       3. in the company of each other,
       4. committed the robbery on Navin Bhugaloo of one black iPhone 7.
          
11. The first element involves the identity of the offender. The prosecution should prove beyond a reasonable doubt that the accused committed this offence.
12. The prosecution has to prove the accused with two others have committed this offence. Hence, the prosecution's case is that the accused and the two others committed this offence together. Where two or more persons commit a criminal offence, each of them may play a different part, but if they are acting together as part of a joint plan or agreement to commit the offence, they all are guilty.
    
13. The word plan or agreement does not mean that there has to be any formality about it. An agreement to commit an offence may arise on the spur of the moment. Nothing needs to be said at all. It can happen with a nod and a wink or a knowing look, or it can infer from the behavior of the parties. In joint responsibility, each accused shares a common intention to commit the offence and plays his part in it, however great or small, to achieve that aim.
    
14. Robbery is the aggravating form of theft. A person commits theft if that person:
    
    1. Dishonestly,
    2. Appropriates the property belonging to another,
    3. with the intention of permanently depriving the other of that property.
       
15. The 'dishonestly' and "the intention of permanently depriving the other of the property" is the fault elements of the theft. These two elements denote the mind of the accused at the time of committing the offence. Inferences of the state of mind of the accused could be drawn from the conduct of the accused.
    
16. 'Appropriation of property' means taking possession or control of the property without the consent of the person to whom it belongs. At law, the property belongs to a person if that person has possession or control of the property.
    
17. Accordingly, in respect of the charge, the prosecution has to prove beyond a reasonable doubt that:
    
    1. The accused, with two others,
    2. In the company of each other,
    3. Dishonestly appropriated one iPhone 7 mobile phone belonged to Navin Bhugaloo,
    4. With the intention of permanently deprive it,
    5. And used force on Navin Bhugaloo immediately before or after stealing the said item.
       

Agreed Facts

18. I now request you to draw your attention to the agreed facts, which are before you. They are the facts that the prosecution and defence have accepted without dispute. Hence, you are allowed to consider them as proven facts by the prosecution beyond a reasonable doubt.
    

Evidence of the Prosecution

19. Let me remind you of the evidence presented by the prosecution and the defence during the hearing. The prosecution called five witnesses. The accused gave evidence for the defence. I will now summarize the evidence of the prosecution and the defence.
    
20. The first witness of the prosecution is Mr. Navin Bhugaloo. He is Mauritius national and working in Fiji. On the evening of the 14th of June 2019, he had gone to the Holiday Inn hotel with his workmate to celebrate a work achievement. Having consumed a few beers, the two workmates had gone to a nightclub to continue their celebration. They left the nightclub around 2 a.m. and came to Suvavou house as Navin wanted to get his work bag from the office. While he went to the office, his workmate stayed outside. Navin found his workmate had gone when he came back. He then put his backpack on his back and took the mobile phone to text his workmate, informing him that he was going home. Navin was walking towards the Holiday Inn hotel while texting to his workmate. All of a sudden, someone came from his behind and snatched his mobile phone and ran away. Navin tried to chase after that boy, but someone pushed him from behind. Navin felt down and sustained injuries on his left palm and left knee. When he tried to stand up, the boy who pushed him from behind, called him. Navin then saw the boy who snatched his mobile phone was coming towards him with another. His nose was also bleeding. The boys held him. He started to yell, asking for help. All of a sudden, the three boys left him and ran away. They ran towards the main road.
    
21. Navin said that he did not see the face of the boy who snatched his mobile phone. He ran to the direction of the road between Suvavou house and the Holiday Inn. He saw him running away from him.
    
22. A taxi came and stopped in front of him. The driver told him that he saw what happened, and he can help Navin. Navin then got into the taxi, and they went around the city for two rounds, looking for the boys, but did not see them. They then went to the Totogo Police Station.
    
23. Navin had given a statement to the police explaining this incident. The statement does not state that the boys held him from his back. Navin said that he was in a state of shock and trauma when he made the statement to the police.
    
24. You may recall Navin identified the mobile phone, which the boys snatched from him on the night of the 15th of June 2019.
    
25. The second witness of the prosecution is Mr. Iliki Bia. On the early hours of the morning of the 15th of June 2019, he had been traveling alone Suva City in a 4WD vehicle with his cousins and siblings. His son was driving the vehicle, while Mr. Bia was seated on the front passenger seat. When they approached the Suvavou House through the road alone FBC, he saw three boys were robbing an Indian man. One of the boys was holding the Indian man, while the other two were searching his pockets. The victim was wearing a white shirt. Mr. Bia saw blood strains on the shirt of the victim. They decided to help the victim and approached them. As they approached, the three boys ran away. One of them ran away, and Mr. Bia lost his sight. One of them was tall and fair but not board, while the other one was dark and also not board. Mr. Bia did not see the third one who ran away.
26. Their vehicle was at the T-junction of the Suvavou house and the road from the FBC station. Mr. Bia saw the faces of the two boys as the light of the vehicle flashed on them. He saw the incident from the front side, and nothing obstructed his view of the incident. The incident took place about three meters away from their car. There was no one on the road or the vicinity at that time. Mr. Bia had not spoken to the victim and turned the vehicle making a 180 turn and chased after the two boys. By the time the car made the 180 degrees turned, the two boys had taken the lead along the road of FBC station. They ran towards the backside of the Union club. Mr. Bia lost the sight of the two boys at the backside of the Union club. There were no people at the backside of the Union Club. They then drove along the back road and turned to the road of the Charman’s gym. It took about half a minute for them to reach that road. When they turned into the road, Mr. Bia saw the two boys again. They were coming towards them. He saw them from the light of the car and recognized them from their clothing and appearance.
    
27. The two boys jumped into the compound of the gym when they saw the vehicle. Mr. Bia got off the car with one of his nephews. They then went to the compound of the gym and arrested the two boys. One of them was in a white t-shirt, and yellow shorts and the other boy was in a white shirt and short. Mr. Bia arrested and took them to the Police Station. Mr. Bia identified the accused as one of the boys who robbed the victim and then ran away from the scene with the other boy.
    
28. The police had recorded a statement of Mr. Bia about this incident. You may recall the learned Counsel for the defence cross-examined Mr. Bia about certain omissions and inconsistencies between his evidence and the statement.
    
29. During the cross-examination, Mr. Bia said that he did not punch the accused when he was walking towards the vehicle. He saw the two boys jumped to the compound of the gym from the light of the vehicle. Furthermore, Mr. Bia said he did not take the mobile phone of the accused when he took the accused to the police station.
    
30. The third witness of the prosecution is PC Moshin. On the 15th of June 2019, he was doing the nightshift at the Totogo Police Station. Mr. Bia brought in two suspects, claiming they were involved in a robbery. One of the suspects was the accused. He was wearing a white t-shirt and brown yellowish shorts. Two minutes after their arrival, a man named Navin came to the police station, complaining he was robbed. Navin's nose was bleeding. The accused appeared normal and physically okay. He did not make any complaints about assaults.
    
31. The next witness of the prosecution is DC Manasa. He had recovered a mobile phone at the scene of the arrest. It was a black iPhone 7 mobile phone with a black cover. DC Manasa then handed over the mobile phone to PC McDonalds.
    
32. PC McDonalds is the fifth witness of the prosecution. He had received a black iPhone 7 with a black cover from DC Manasa.
    
33. The last witness of the prosecution is Doctor Rakuita. He had conducted a medical examination of the complainant on the 15th of June 2019 at the CWM Hospital. You have heard the evidence of Doctor Rakuita, where he explained his findings and the opinions about the medical examination of the complainant.
    

Evidence of the Defence

34. The accused, in his evidence, denies this allegation. The accused was walking along the street to get a taxi when Mr. Bia came and stop his vehicle in front of him. Mr. Bia then got off the vehicle and threw multiple punches on his face. He then put the accused to the back tray of the vehicle and went to the police station. During the journey to the police station, Mr. Bia took the accused's mobile phone. The accused had informed the police about the punches he received from Mr. Bia.
    
35. During the cross-examination, the accused said he knows a boy by the name Moss. He is a friend of the accused. The accused and Moss used to play billiard in Nausori. The accused said he was not with Moss and another at around 2.30 a.m. on the 15th of June 2019. The accused was wearing a white t-shirt and yellowish short on that day. He had not seen any people walking around the Suvavou house on the 15th of June 2019. The accused said he did not know anything about this alleged robbery. The accused was in the Union Nightclub. When he came outside, he met Moss. He only talked to Moss for a while, telling Moss that he was going home. Moss then asked if he can go with the accused. The accused further said that he did not jump to the Charman's gym when the vehicle of Mr. Bia came. The accused was walking on the footpath while Emosi was following him. Then the car of Mr. Bia came and punched him. Mr. Bia then took the accused to the Police Station.
    
36. I have summarized the evidence presented during this hearing. However, I might have missed some. It is not because they are not important. You have heard every item of evidence and recall yourselves on all of them. What I did only was to draw your attention to the main issues of evidence and help you in remembering yourselves of the evidence.
    

Analysis and Directions

Evaluation of Evidence

37. It is your duty now to determine whether the prosecution has established beyond a reasonable doubt that the accused have committed this offence of Aggravated Robbery as alleged. To do that, you have to evaluate the evidence presented by the prosecution and the defence. In evaluating the evidence, you have to determine the reliability and credibility of evidence given by the witnesses.
    

Reliability of Evidence

38. It would be best if you were satisfied that you could rely on the evidence as true, reliable, and credible evidence. To do that, you have to convince yourself that evidence is free from mistakes, errors, and inaccuracies. If you find the evidence is free from such mistakes, errors, and inaccuracies, you can consider the evidence as reliable evidence.
    

Credibility of Evidence

39. The assessment of the credibility of evidence focuses on the lies or inaccurate facts that are intentional and motivated attempts to deceive. The credibility of the evidence depends on the individual who gives evidence, his motivations, his relationship to, and the reaction to the particular situation.
    
40. Evaluation of the reliability and credibility of evidence will assist you in determining 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 he or she has testified.
    
41. In assessing evidence of the witnesses, you must consider whether the witness had the opportunity to see, hear, and feel what the witness is talking about in the evidence. You should then find whether the evidence presented by the witness is probable or improbable considering the circumstances of the case. In addition, you have to consider the consistency of the witness, not only with his or her evidence but also with other evidence presented in the case.
    
42. You have to consider the demeanour of the witnesses, how they react to being cross-examined, and re-examined and were they evasive. That will help you to decide the credibility of the witness and the evidence. You have to keep in your mind that some witnesses are not used to giving evidence in court and may find the different environment in the court house distracting.
    
43. Moreover, you must bear in 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.
    

Evidence of the Defence

44. I now kindly draw your attention to the evidence adduced by the defence. The accused elected to give evidence on oath. The accused, in his evidence, denies this allegation. He claims that he does not know anything about this allegation. He was just walking up the street to get a taxi when Mr. Bia arrested him. He was at the Union Nightclub before he came to the street.
    
45. It is for you to decide whether you believe the version of the accused. The accused is not required to establish the defence beyond a reasonable doubt. If the accused establishes that the defence is or may reasonably be true, although it is not convinced that it is true, then you have to find the accused not guilty of this offence as charged. Accordingly, if you consider that the account given by the defence is or may be true, then you must find the accused not guilty of the offence as charged.
    
46. If you neither believe nor disbelieve the version of the accused yet, it creates a reasonable doubt in your mind about the prosecution case. You must then find the accused not guilty of any of the two offences as charged.
    
47. If you reject the version of the defence, that does not mean the prosecution has established the accused guilty of this offence. Still, you have to satisfy the prosecution has proven on its evidence beyond a reasonable doubt that the accused has committed the offence as charged.
    

Inconsistency and Contradictions

48. You have heard that the learned Counsel for the accused crossed examined Mr. Navin and Mr. Bia about the inconsistent nature of the evidence they gave in the court with the statement they have made to the police during the investigation.
    
49. Let me explain to you the laws relating to such inconsistencies and contradictions between the evidence given by a witness with the previously made statement.
50. You are allowed to take into consideration such inconsistencies and contradictions when you consider the credibility and reliability of the evidence given by the witness. However, you have to be mindful that the previously made statements are not evidence of the truth of its contents. The evidence is what a witness testified in the court.
    
51. 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. Furthermore, the capacity of the memory of people is different. People have various capacities in understanding and remembering the events and the people. Some people might focus on one or a few activities, while others might focus on the entire events and people involved. Some people can remember the whole event while others may remember only part of the event. Therefore, you have to be mindful of these practical limitations and conditions when you consider those inconsistencies and contradictions.
    
52. In respect of the inconsistency between the evidence presented in the court and the previously made statement, 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 substantial, you will next need to consider whether there is an acceptable explanation for it. If there is a satisfactory explanation for the change, you may then conclude that the underlying reliability of the evidence is unaffected. If the inconsistency is so fundamental, then you have to decide as to what extent that influences your judgment of the reliability of such witness.
    

Evidence of the Identification

53. The main issue, in this case, is whether Mr. Bia had mistaken in his identifications of the accused as one of the three suspects involved in the alleged incident of Aggravated Robbery.
    
54. Therefore, you must determine whether Mr. Bia has clearly and adequately identified the accused as one of the three robbers. To do that, you have to decide whether or not you can accept the evidence of Mr. Bia as reliable, credible, and truthful evidence. If you are satisfied, you must then proceed to determine whether what he said in his evidence is probable or improbable according to the circumstances which he was explaining.
    
55. When you are considering the evidence of identification given by Mr. Bia, you need to exercise special caution. The reason for this is that experience tells us that honest and impressive witnesses, genuinely convinced of the correctness of their identification, have in the past made mistakes, even several witnesses making the same identification. You cannot convict the accused unless you are sure the identification of the accused made by Mr. Bia was accurate. In making that judgment, you need to look carefully at the circumstances in which he made those identifications and at any other evidence in the case which may support it. Especially you have to take into consideration the followings:
    
    1. For how long could witness see the person witness says was the accused and, in particular, for how long witness could see the person's face?
       
    2. How clear was the witness's view of the person, considering the distance between them, the light, any objects or people getting in the way, and any distractions.
       
    3. Had witness ever seen the accused before the incident? If so, how often and in what circumstances? If only once or occasionally, had witnessed any special reason for remembering the accused?
       
    4. How long was it between the time of the incident and the time when the witness identified the accused to the police?
       
    5. Is there any significant difference between the description witnesses gave of the person and the accused's appearance?
       
56. Let us consider the circumstances in which the identification took place. Mr. Bia was traveling around the city with his nephews, cousins, and siblings in a 4WD vehicle. He was sitting on the front passenger seat. He saw this incident just three meters away when they approached the T-junction of Suvavou house and the road from FBC Station. Mr. Bia said he saw the faces of the robbers clearly. They then chased after the two of them until they lost sight of them at the back of the Union nightclub. The two boys emerged back in ½ minute when Mr. Bia entered the road of Charman’s gym.
    
57. When you are deciding the evidence of identification, you can take into consideration other evidence that tends to support the evidence of identification. In doing that, you can take into account the testimony of Mr. Navin, DC Moshin, and the accused.
    

Final Directions

58. Madam and Gentlemen assessors, I now take your attention to the final directions of the summing up.
    
59. If you are satisfied that the prosecution has proven beyond a reasonable doubt that the accused has committed the offence of Aggravated Robbery as charged, you can find him guilty of the offence of Aggravated Robbery.
    
60. If you are not satisfied or have doubt whether the prosecution has proven beyond a reasonable doubt that the accused has committed the offence of Aggravated Robbery as charged, you can find him not guilty of the offence of Aggravated Robbery.
    

Conclusion

61. Madam and Gentlemen assessors, I now conclude my summing up. It is time for you to retire to your room and deliberate and 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 your opinion, you may please inform the clerks, so that the court could reconvene.
    
62. Learned counsel of the prosecution and the accused, do you have any redirections to the assessors?
    

R.D.R.T. Rajasinghe
Judge

At Suva
02^nd March 2020

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