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State v Wainiqolo [2006] FJHC 52; HAC015.2004S (21 July 2006)

IN THE HIGH COURT OF FIJI
AT SUVA

Crim. Case No: HAC015.04S

THE STATE

V

SEMISI WAINIQOLO

Fiji High Court, Suva
21st July 2006
Gates J

JUDGMENT

Counsel:
Mr A. Rayawa for the State
The Accused in Person

All 3 assessors present.

[1] The assessors have returned unanimous opinions of guilty to the remaining charge on the information, count 1 robbery with violence.

[2] I remind myself of the specific and general directions in the summing up.

[3] The Accused disputed identity in his case. He says he was at home at the time 4 men stormed into the RB Patel Supermarket at Centrepoint and carried out a robbery.

[4] The evidence of Manasa Waqa for the State was unsatisfactory. He was obviously honest and trying to give accurate evidence. However he was unable to produce any documentary evidence that the Accused had stayed in Room 14 of the King’s Hotel on the night the Accused was meant to be at home. His evidence was also confused and at one point he said he saw the Accused for the first time that night, and at another, that he had seen his face around, at least 3 times and at the wharf. His evidence on identification was therefore in a state that could not safely be relied on.

[5] The evidence of alibi given by the Accused’s son Maxie Fine was also unsatisfactory. It neither threw doubt on the identifications nor did it support the alibi. There was no reason given for remembering the date. The witness was not sure of the day and did not mention going to the funeral proceedings earlier in the day, which is what the Accused said he had done. When the sister of the Accused came home she was unable to confirm that the Accused was in the living room watching TV as Maxie had said. It seems improbable that she should not have been aware of the Accused’s presence in the living room throughout the evening. I accept that the sister was a witness of truth and that she could not bring herself to say what she had not seen, even for her brother. This was no doubt painful for her.

[6] Whoever the man was, who removed his mask from his face that day, he was clearly acting jointly with others to commit a robbery on R.B. Patel’s Supermarket. Three of the armed robbers headed straight for the Liquor Department where the safe was kept and to which point the day’s takings from the cashiers tills had been or were being brought. All of the elements of robbery have been established. I am satisfied beyond reasonable doubt of this and that $150,359.24 was indeed stolen by the robbers.

[7] Both identifying witnesses gave strong evidence. Milika was not a cashier but a sales assistant. She moved closer to the Liquor Department in order to get a better look at what was going on. She was brave enough also to move even closer when she saw the man on the outside of the counter take off his mask. I accept the evidence of both of these witnesses Milika and Naina, that this man did lift his mask to his forehead. The other witnesses did not see this or were too concerned to get away from the area of the Liquor Department where 3 of the armed robbers were.

[8] I accept Milika’s evidence when she said she concentrated on the man who had lifted the mask. The lighting in the store was fully on, and was good. She was very close to him. She gave a detailed description to the police straight afterwards which did not clash with the Accused’s actual appearance.

[9] Milika found herself trapped near the cupboard next to the Liquor Department. When the robber turned, their faces met. He knew he had been seen at close quarters without his mask. I accept her evidence that both "freaked out" at this confrontation. He pushed her and ran out of the store with the metal box. Her gaze at the Accused at such close quarters meant she had a brief but definite observation. I do not find the minor inconsistencies in her police statement significant. I accept these witnesses did not collude with each other. Though she was shocked and frightened by this incident she did not lose her cool. She gave her evidence calmly and carefully.

[10] Both selected the same person from the gallery of photographs and picked out the Accused readily from the identification parade.

[11] I accept the evidence of these two witnesses as being accurate. I concur with the opinions of the assessors and find the charge of robbery with violence proved against the Accused beyond reasonable doubt. I convict the Accused on count 1 therefore. I find the Accused not guilty of count 2, the unlawful use of a motor vehicle a verdict I had already entered in my earlier ruling.

A.H.C.T. GATES
JUDGE

Solicitors for the State: Office of the Director of Public Prosecutions, Suva
The Accused in Person