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State v Vulivuli [2023] FJHC 743; HAC162.2021 (5 October 2023)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION


CRIMINAL CASE NO. HAC 162 OF 2021


STATE


-vs.


1. JOSUA VULIVULI
2. TUPOU WAQABACA
3. SIMIONE ROKACIKACI


Counsel: Ms. Kantharia B and Mr. Naimila T - for State
Ms. Singh M - for Accused 1
Ms. Boseiwaqa K - for Accused 2
Ms. Chand N - for Accused 3


JUDGEMENT


  1. The accused in this matter, 1. JOSUA VULIVULI; 2. TUPOU WAQABACA; 3. SIMIONE ROKACIKACI were charged with one count of Aggravated Robbery by the Director of Public Prosecutions, as below:

COUNT 1

Statement of Offence

AGGRAVATED ROBBERY: Contrary to Section 311(1) (a) of the Crimes Act 2009.


Particulars of Offence

JOSUA VULIVULI, TUPOU WAQABACA and SIMIONE ROKACIKACI in the company of each other, on the 13th day of September 2021 at Raiwaqa, in the Central Division, stole a wallet containing $140.00 cash and assorted card from SURUJ PRASAD and immediately before stealing from SURUJ PRASAD, used force on him.


COUNT 2

Statement of Offence

RESISTING ARREST: Contrary to Section 277(b) of the Crimes Act 2009.


Particulars of Offence

JOSUA VULIVULI, on the 5th day of September 2021 at Raiwaqa, Suva in the Central Division resisted arrest from DETECTIVE POLICE CONSTABLE 2518 SEVANAIA SEDRA in the due execution of his duty.


COUNT 3

Statement of Offence

RESISTING ARREST: Contrary to Section 277(b) of the Crimes Act 2009.


Particulars of Offence

TUPOU WAQABACA, on the 5th day of September 2021 at Raiwaqa, Suva in the Central Division resisted arrest from DETECTIVE POLICE CORPORAL 3641 TANIELA TUBUNA in the due execution of his duty.


COUNT 4

Statement of Offence

RESISTING ARREST: Contrary to Section 277(b) of the Crimes Act 2009.


Particulars of Offence

SIMIONE ROKACIKACI, on the 5th day of September 2021 at Raiwaqa, Suva in the Central Division resisted arrest from DETECTIVE POLICE CONSTABLE 4579 JOSAIA SORO in the due execution of his duty,


  1. All 3 Accused pleaded not guilty to the charges filed against them by the Director of Public Prosecutions on 03rd of March 2022. The Voire Dire of this matter in relation to all 3 Accused commenced on 12th of September 2023 and concluded on the 15th day of September. Thereafter, this Court admitting the caution interviews of the 2nd and the 3rd Accused on 18/09/2023 the proper trial to this matter commenced on the same day. For the Prosecution 7 witnesses gave evidence. At the end of the Prosecution case since the Court was satisfied that a prima facie case has been established against the accused, acting under Section 231 of the Criminal Procedure Act of 2009, the Defense was called from the Accused and the standard options available for the Defense were spelt out. For the Defense case, all 3 Accused opted to give evidence in Court under cross-examination.

Nature of the Offence

  1. The offence of Robbery is defined in Section 310 of the Crimes Act 2009; accordingly, a person commits robbery if he immediately before committing 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 commit theft or to escape from the scene. According to Section 291 of the Crimes Act 2009, 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.

Elements of the Offence of Aggravated Robbery

  1. The elements of the offence that need to be established by the Prosecution beyond reasonable doubt, are as follows:

a. the accused,

b. committed robbery; and

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


Burden of Proof

  1. The Accused is presumed to be innocent until proven guilty. As a matter of law, the onus or burden of proof rests on the Prosecution throughout the trial, and it never shifts to the Accused. There is no obligation or burden on the Accused to prove his innocence. The Prosecution must prove the guilt of the Accused, beyond reasonable doubt. If there is a reasonable doubt, so that the Court was not sure of the guilt of the Accused, or if there be any hesitation on the part of the Court of the establishment of the elements of the offence or on the evidence led by the Prosecution the Accused must be found not guilty of the relevant charge and accordingly acquitted. Accused has given evidence in this case. Thus, if this court accepts the Defense evidence or is unable to reject or accept the Defence evidence, then too the Accused is entitled to a finding in his favour.

Prosecution Case


  1. The first witness for the prosecution at the trial per se was the victim of this incident, i.e., the taxi driver Suruj Prasad (PW1). This witness testified in Court that In 2021 he was driving a taxi, which was a silver car bearing no LT6882. He alluded that on 03/09/2021 he was robbed, where 3 i-taukei boys hired his taxi from Nadera Hexagon Complex and wanted me to take them to Agriculture site in Grantham Road. They said they wanted to go to Wailea where there is a China yard. He mentioned that they spoke to him in English, but on the way, they were speaking in i-taukei among themselves. He had noticed that they were young boys, and the boy wearing the black T-shirt had sat in the front and the other two at the back.
  2. This witness informed Court that near China yard when he stopped the taxi, one guy from the back had come and opened his door and pulled him out-side. In the process he had been punched on the face and arms causing injuries. According to this witness, the robbers had robbed his wallet with $140 and some cards. They had also taken his license, some coins and his joint card. He alluded that his wallet was inside his trouser pocked. Thereafter, he had seen the 3 suspects running towards the Pundit Vishnu Deo Memorial School, which was about 30m away. He had immediately then gone to the Grantham Police Post, which had been 1 minute away and informed the incident. As a consequence, from the police station, 3 officers had come with me to the scene. This incident had happened at around 2-3 pm. Subsequently, police had taken this witness to see a doctor at the Valelewu health center. However, this witness had not identified the people who robbed him.
  3. The second witness for the Prosecution (PW2) was Sophia Ramiza Ali. According to her, on 03/09/2021 a taxi driver had been robbed, where she had seen 3 i-taukei boys wearing black T-shirts and Covid masks run towards the Pundit Vishnu Deo Memorial School when a taxi driver continued tooting his horn many times indicating a robbery. At that time, she had been hanging her towel in her porch and the taxi had been about 30 meters away from her house. She further claimed that before entering the school, the boys had taken off their t-shirts, where she had observed them for about 5 minutes. This had happened at around 2.30 pm.
  4. The third witness for the Prosecution (PW3) was Dr. Salanieta Lomavatu. According to her she has been practicing medicine for the past 5 years as a general practitioner. She informed this Court that on 09/2021 she was station at the Valelevu Health centre. She marked the original Medical Report prepared for the victim Suruj Prasad as PEX1. She admitted that she had done this medical report. She claimed that she observed a slight swelling on the right side of the forehead of the victim, a tenderness on the neck and an injury on the lip. According to her, this first injury can happen if the patient was hit with something, and the second injury could have happened if the patient was pushed. The injury of the lip could have happened if he was punched. She alluded that it appeared that all the injuries would have happened the same day due to assault.
  5. The next witness for the Prosecution (PW4) was PC 5589 Meli, who visited the scene of the crime with the victim in this matter. According to him, on 03/09/2021 he had gone on beat petrol as an officer attached to the Raiwaqa police station. While on duty, he claims to have received a complaint of robbery from the Grantham police post at 15.00 hours. Acting on this complaint, he had got into the taxi that was robbed with other officers and gone to where the offence happened. He claimed that the driver managed to take the police team to the place of crime in few minutes. At the place of crime, the victim had informed that after robbing the accused ran towards the ground of the school, which was about 10 meters away. Thereafter, on getting further information from a villager, the police officers had surrounded the school.
  6. This witness had then seen 5 i-taukei youth standing in the passage in the school between buildings. At this point two of them had been exchanging t-shirts, where one was not wearing a t-shirt. When this witness instructed the boys to stand still where they are, 3 of them had taken to their heels and ran away. This witness informed the Curt that he knew the 5 i-taukei youth and the 3 youth who ran away were Josua, Simi Kali and Tupou. He claimed that though the police officers ran after them they entered the Mangroves, where they gave up the chase and returned to the Raiwaqa police station. This witness identified the 3 suspects who ran away in the dock of the Court. He further claimed that he knew the 3 Accused since 2017.
  7. The fifth witness for the Prosecution (PW5) was PC 7593 Sateki Umu. He claimed that he has been in Fiji police for 3 years. According to him, on 03/09/2021 he had been conducting patrols with a police party in Graham Road, Raiwaqa. At that time, at around 3 pm, they had received a report of robbery. In this report, complainant taxi driver had been an Indian, where he had explained that 3 suspects robbed him and ran away. Thereafter, the victim taxi driver had taken the police party to the place of the incident in few minutes. The victim had told them that that the suspects ran to the school, which was about 50m away. This witness informed this Court that when they went to the school, they have seen 5 boys standing between buildings, where seeing the 3 suspects had run away. He alluded that he knew the 3 boys who ran away to the Mangroves, whom they didn’t follow. This witness identified the 3 accused who ran away on the dock in Court. In cross-examination, he admitted that he has made a mistake by writing the name Abdul Ifthikar in the statement as the driver instead of Sujith, since they were attending to another robbery complaint by Abdul Ifthikar
  8. The next witness for the Prosecution (PW6) was PC5469 Samuela who conducted the admitted caution interview of the Second Accused TUPOU WAQABACA. In his evidence this witness marked the caution interview conducted by him of the 2nd Accused by questions and answers as PEX2. According to this witness, in PEX2 from question 51 to 61 the 2nd Accused had admitted how himself and two others hired a taxi to go to Wailea and how they robbed the taxi driver of his money forcefully and ran towards Vishnu Deo Primary School. Further, from questions 76 to 79 of PEX2 the 2nd Accused admitted how he ran away to the Mangroves on seeing the police officers to avoid getting caught. In cross-examination by the Defense this witness rejected making any suggestions to the 2nd Accused during the caution interview. He also confirmed that finally he read the caution interview recorded to the 2nd Accused.
  9. The last witness for the Prosecution was (PW7) PC 5514 Krishneel, who conducted the admitted caution interview of the 3rd Accused SIMIONE ROKACIKACI. In the cause of his testimony, he marked the caution interview conducted by him as questions and answers as PEX3. According to him, in PEX3 from questions 17 to 21 he had admitted hiring a taxi from Nadera and robbing him of his wallet at Wailea and running to the school through the short cut. This witness further claimed that in answering these questions the 3rdAccused admitted running away to the Mangroves from the school after seeing the police at the school.
  10. Further, since the Defense admitted the evidence led by the prosecution at the Voire dire in relation to the arrest of the Accused, no further evidence was led by the Prosecution in relation to arrest.

Evaluation of Prosecution Evidence

  1. The two police officers who gave evidence in Court, (PW4) PC Meli and (PW5) PC Umu informed Court how they received a report of robbery of a taxi driver and how they went to the Pundit Vishnu Deo Memorial School in search of the suspects on the direction of the victim taxi driver Suruj Prasad. They further testified how they found the 3 Accused in this matter in the school exchanging black T-shirts and how they took to their heels seeing the approaching police officers and ran to the Mangroves by the school. In addition, the evidence of (PW2) Sophia Ali appraised this Court how she saw 3 i-taukei boys running towards the Pundit Vishnu Deo Memorial School dressed in black t-shirts from the direction where a taxi driver was tooting the horn of the taxi. She also confirmed how the boys took-off their black t-shirts before entering the school.
  2. In considering the trajectory of events claimed by these witnesses, one strong string of evidence required to infer the possibility of the 3 Accused identified by PC Meli and PC Umu in the dock of this Court committing the offense in issue was established. That is immediately after the commission of the offence the 3 suspects were seen running away from the crime scene to the nearby school and the 3 Accused also ran away from the same location seeing the police party dressed in similar attire. However, that string alone is not sufficient to prove the guilt of the Accused without uncertainty beyond reasonable doubt.
  3. In reaching the above conclusion, this Court take guidance from the pronouncement made by the Court of Appeal of Wellington, New Zealand in the case of R v Wanhalla [2007][1], where it was stated as follows:

“It is not enough for the Crown to persuade you that the accused is probably guilty or even that he or she is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events and the Crown does not have to do so.

What then is reasonable doubt? A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.

In summary, if, after careful and impartial consideration of the evidence, you are sure that the accused is guilty, you must find him or her guilty. On the other hand, if you are not sure that the accused is guilty, you must find him or her not guilty.”


  1. Nevertheless, in considering the guilt of the Accused beyond reasonable doubt, this Court must consider other available evidence led in Court. In this regard, in the caution interviews of the 2nd and the 3rd Accused that were led in evidence, both Accused had admitted their participation in the robbery in issue and how they robbed the money of the taxi driver with the use of force and ran to the Vishnu Deo Primary School
  2. With regard to the arrest of the 1st Accused, during the Voire dire hearing PC 3518 Seva Nasedra testified in Court that a police party surrounded and entered a house in 296 settlement on 05/09/2021 on information received to arrest the suspects in relation to the robbery in issue. According to him, at this search and arrest the 1st Accused had attempted to hide behind a sofa, resisted arrest and tried to run away, where this officer had to use reasonable force.
  3. With regard to the arrest of the 2nd Accused, for the Voire dire hearing Detective Taniela Tubuna testified in Court that on 05/09/2021 he was a part of a raid team which searched houses in Wailea settlement and proceeded to 296 Ratu Mara Road and searched a tin house owned by a lady. When the police party entered this house, he had seen Tupou the 2nd Accused who had punched him and tried to run away, where this officer had managed to catch him and cuff him with the help of another police officer.
  4. As testified for the Voire dire hearing, the 3rd Accused had been arrested by DC Josaia Soro on 05/09/2021 as a part of the same raid team that searched houses in Wailea settlement. According to him, one officer had shouted that a suspect was trying to break the wall and I when he went inside, had seen the 3rd Accused. At that juncture, the 3rd Accused had tried to run out of the house and fallen down. At that point, this officer had arrested the 3rd Accused with the help of another officer.
  5. In relation to the arrest of these 3 Accused, this Court observed that the 3 police officers who gave evidence at the Voire dire hearing appraise this Court the official duty performed by them in relation to this case and how the 3 Accused attempted to resist arrest. Though all these police witnesses were cross-examined by the Defence counsel, this Court was convinced that they didn’t manage to discredit the consistent testimonies of these police officers.

Defence Case


  1. In this matter for the Defense case all 3 Accused gave evidence under cross-examination. Testifying in Court, the 1st Accused informed that on 03/09/2021 he was at home and can’t remember going anywhere, where his sister and her children were at home. He admitted that though he filed an alibi notice in this Court, the witnesses didn’t turn up. He claimed that he knew PC Meli of Raiwaqa police station since 2017. He claimed that on 05/09/2021 he was sleeping at 296, where he went to watch a movie with friends and a police team came to the premises and arrested him and two others.
  2. Testifying in Court the 2nd Accused informed that on 03/09/2021 he was in his house and came to the High Court registry at around 9 am to check the date for a case. He claimed that thereafter he came near Pundit Vishnu Deo Memorial School and started smoking with friends. He admitted that when he was at the school some police officers came there and inform them to stand still, but he ran away since I was smoking Marijuana. He further claimed that 04/09/2021 he went to Jittu, 296 and when he went there some other people had also been there. According to him, at that place he had fallen asleep and when he woke up the next morning, he had heard people knocking on the door and a man has arrested him and taken him to the Raiwaqa Police Station, where a caution interview had been recorded and taken him for a medical check. He denied all allegations of a robbery against him.
  3. Giving evidence in Court the 3rd Accused mentioned that on 03/09/2021 he was at Dolphin Plaza selling coconuts till about 5 pm and on finishing work he went home. He informed this Court that the next day after attending to his trade work in the morning he went in search of clothes in the afternoon and ended up at 296 with a friend at around 5pm and remained there till dark. He alluded that at the request of his fried he stayed at 296 the night, where there were some other people in the house. In the night they have watched an English movie. However, when he was questioned by Court of his knowledge of the English language and the ability to follow, he mentioned that it was an old war movie and there were English sub-titles that he could understand. He claimed that he fell asleep at this house, and he got up the next morning hearing the noise of the presence of police offices in the house, where he was arrested and taken to the Raiwaqa police station. According to him, he had been assaulted by the police officers on the way to the police station and taken to the Raiwaqa health center and recorded a caution interview at the police station.

Evaluation of Defense Evidence

  1. As per the evidence given by the Accused, they have admitted being in the same house at 296 on 04/09/2021 night and sleeping over. In this regard, this Court was surprised to see why the 3 Accused remained together, after been last seen by the police offices running away to the Mangroves against their instructions from the Pundit Vishnu Deo Memorial school. This position becomes more questionable, as to why they remained at 296, when their family homes were few hundred meters away.
  2. Further this Court observed that the 3 Accused opted to give evidence in i-taukei language and the Court noticed how the 3 Accused acted lost when questions were asked in English language by Court and counsel. When facts were such of the understanding and the proficiency of the English language of the 3 Accused, one would only shudder to think why they should go to a friend’s house and spent time watching an English movie, especially since they had not met up for any other function or reason. Further, when Court questioned the 3rd Accused how he understood an English movie, his answer was he understood because there were subtitles in English. In this light, the 3rd Accused wanted this Court to fathom that though he does not understand spoken English, he understood written English that was displayed at a pace in a running movie.
  3. Further the Court observed the manner in which the 3 Accused gave evidence, where they avoided explaining their responses in answering question raised at cross-examination in detail. In this regard, this Court observed that the testimonies of the Accused were riddled with unpersuasive expiations that gave them the appearance of made-up stories. Therefore, in toto, this Court doesn’t find it safe to accept the unconvincing stories narrated by the 3 Accused for the Defense case.

Finding of Court

  1. As per the elements that need to be established by the Prosecution for count 1, this Court is convinced that all the required elements have been proved beyond reasonable doubt in the relation to the 2nd and the 3rd Accused in the background of this Court accepting the caution interview admissions made by them. Therefore, Court convicts the 2nd and the 3rd Accused in this matter for AGGRAVATED ROBBERY committed contrary to Section 311(1) (a) of the Crimes Act 2009. However, Court acquits the 1st Accused from the 1st count due to lack of evidence.
  2. In relation to count 2, count 3 and count 4 this Court is convinced that the 3 Accused had resisted arrest by police officers on 05/09/2021. Therefore, this Court convicts JOSUA VULIVULI, TUPOU WAQABACA and SIMIONE ROKACIKACI for RESISTING ARREST contrary to Section 277(b) of the Crimes Act 2009.
  3. You have 30 days to appeal to the Court of Appeal of Fiji.

...................................................
Hon. Justice Dr. T. Kumarage


At Suva
This 5th day of October 2023


cc: Office of Director of Public Prosecutions
Office of Legal Aid Commission

[1] [2006] NZCA 229; [2007] 2 NZLR 573

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