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State v Raduabale [2004] FJMC 6; Criminal Case No 924 of 2004 (15 October 2004)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 924 of 2004

STATE

V

MARIKA RADUABALE
MILIO NAKOROLUVU
JOSEFA LUBA
JOSEFA TAGIVAKATINI

JUDGMENT

The four accused have been charged with the following offences:

COUNT 1:

Robbery with violence:

Contrary to section 293 (1) (b) of the Penal Code Act 17.

COUNT 2:

Unlawful use of Motor Vehicle:

Contrary to Section 293 of the penal Code Act 17.

COUNT 3:

Resisting Arrest:

Contrary to Section 247(b) of the Penal Code Act 17.

COUNT 4:

Assaulting Police Officer in due Execution of his duties:

Contrary to Section 247 of the Penal Code Act 17.

COUNT 5:

Driving Motor Vehicle without a valid Driving Licence:

Contrary to Section 56(a) (6) and 114 of Land Transport Act No. 35 of 1998.

COUNT 6:

Driving Motor Vehicle in Contravention of the Third party Policy Risk:

Contrary to Section 4(1)92) of Motor Vehicle (Third party Policy) Act 177.

Accused 2 has pleaded guilty to Count 2, 5 and 6 and Accused 3 has pleaded guilty to Count 2. They have been dealt with.

CAUTION INTERVIEW

The first accused has challenged the voluntariness of his caution interview. He says he was assaulted by the interviewing officer. The prosecution has denied this.

After considering the evidence I find his allegation untrue. The prosecution has proved beyond reasonable doubt that the interview was voluntary and the Judges Rules were followed. A witnessing officer was present throughout. The contents of the interview and the answers given by the first accused were true. This accused knew and described the incidents and the events and places with precise details. It could not have been known to him as a result of assault.

I am satisfied the statements given were voluntary and admissible in evidence.

FACTS:

The first accused chose to give sworn evidence. He was a poor witness and contradicted himself in the box. I find him to be incredible as a witness. The other 3 accused remained silent. The fourth accused called 1 witness in his defence.

After considering evidence as a whole I find the following facts.

On 3rd April 2004 all 4 accused drank together. The first accused hired the complainant’s vehicle EG 069. He was known to the van driver. Three others sat in the van. When it arrived at Pritam Singh Road the van driver was instructed to go further uphill. Upon stopping the first accused got off and went to the driver’s side. He threatened driver to move out and hand over the van. First accused pulled the driver’s shirt. The van driver managed to escape and ran down the road.

Accused 2 drove the van with all others in it. Accused 1 punched the driver who fell on the road. All of them grabbed him. They forcefully took out his wallet from back pocket which had $8.00. They asked him for more money and Accused 1 pointed something which looked like a knife. The complainant under fear gave $80.00 from his trousers pockets to the accused. All accused drove off in the vehicle leaving the complainant behind. The complainant reported the matter to police. He was vivid and straight forward witness whose evidence I accept in the whole.

On information, a chase was given by a police patrol vehicle. The accused stopped the vehicle and fled. Constable Danford (PW1) with (PW6) followed accused to make arrests. Accused 3 assaulted Const. Danford and resisted arrested trying to release himself and escape. Another accused in order to release Accused 3 assaulted const. Danford from back. PW6 saw him and identified him as Accused 1. He saw him from some 20 meters away.

Identification parade was conducted during which Accused 3 was identified by PW1 and PW5.

The van driver identified the first accused. He was also known by the clothes he wore on the day. These clothes were recovered with a search warrant from the home of this accused . It fitted the description given by the witnesses. All accused were together as a common enterprise and had a common intent and purpose. Davies –v- DPP (1954) All ER 507 On question of common enterprise described participes criminis as follows: " On any view persons who are participes criminis in respect of the actual crime charged; whether as principals, or accessories.........before or after the fact (in felony) or persons committing procuring or aiding and abetting (in case of misdemeanor ) this surely is the natural and primary meaning of the term . . . "

Their caution interviews (A2 and A3) were by consent tendered except for the interview of the first accused. State –v- Alowesi Rasawa Cr. Appeal 48 of 1997 The FCA "said accepted confession can be best evidence and can result in conviction so long as it’s proved to be made and true."

Accused 4 was together with others. He remained silent but called his wife as a witness. She agreed under cross-examination that she didn’t know anything but was told what to say in court by the accused who was her husband.

I reject the evidence of his witness as unworthy of belief. The caution interviews of the accused corroborate the evidence of the prosecution.

I am satisfied beyond reasonable doubt that the prosecution has proved all elements of the charges. All accused together robbed the van driver of $88 and used violence on him. They unlawfully used his vehicle and resisted arrest.

Accused assaulted Const Danford who was in due execution of his duties.

I find the accused guilty as charged.

Dated this 15th day of October 2004.

Ajmal Gulab Khan
RESIDENT MAGISTRATE