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State v Tusiga [2005] FJMC 2; Criminal Case No 2488 of 2004 (1 February 2005)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 2488 of 2004

STATE

V

IOWANE TUSIGA

JUDGMENT

The accused has been charged with 2 counts in this case.

Particulars are:

Robbery with Violence: Contrary to Section 293 (i) (b) of the Penal Act 17.

Iowane Tusiga with another, on the 9th day of October 2004 at Suva in the Central Division, robbed Parmesh Kumar s/o Hari Ram of $60.00 cash and immediately after such robbery did use personal violence on the said Parmesh Kumar.

Unlawful use of Motor Vehicle: Contrary to Section 292 of the Penal Code, Act 17.

Iowane Tusiga with another, on the 9th day of October 2004 at Suva in the Central Division Unlawfully and without colour of right but not to be guilty of stealing took to their own use a Taxi registration number LT1358 the property of Parmesh Kumar.

Prosecution called 6 witnesses and the accused elected to give sworn evidence in his defence.

The prosecution facts allege on the 9th October 2004 the accused with another hired the taxi of complainant near village 6 Cinemas. The accused set in front seat next to complainant whilst the other sat at the back. The accomplice grabbed hold of the complainant at Matonitabua Road. They forcefully pulled out the taxi driver from the car and pushed him in a near by drain.

The accomplice punched the driver and the car key was forced out of his hand. The driver managed to keep hold of the key ring with alarm remote. $60.00 was also taken away from driver. The accused sat on driver’s seat with accomplice on his left and drove off in the taxi. The driver managed to get up and go towards Rewa Street from where he got help. He gave a chase of his taxi in another vehicle.

The taxi came down Rewa Street into Cakobau Road and towards city. The complainant on approaching his taxi pressed the alarm remote. The taxi engine went off. Both passengers from the taxi got out of car and fled on the street.

The complainant called for help from nearby Hotel security guards. The accused and accomplice escaped on foot. The guards and the complainant gave a chase on foot.

A bag was thrown at the complainant to prevent him catching up to the two during the chase. This bag belonged to the accused. It had his driving licence in it with I/D photo.

The complainant took the taxi and the bag to the Central Police Station where he reported the matter. On 19th October complainant was called for identification when he positively identified the accused as the person who hired his vehicle and drove it after the robbery. Complainant also suffered some injury to his finger bruised left eye and pain in chest wall. He was medically examined and a medical report tendered as exhibit in court.

In his defence the accused in evidence denied being at the scene. He said his bag was stolen at a volley ball tourney on the 9th October. He also says his alibi of being at Lami at the time of the incident was not properly verified by the police.

IDENTIFICATION

The whole case depends on the issue of identification.

The English case of R –v- Turnbull (1977) QB 224 is still regarded as good law where the court laid certain guidelines for identification usually. It considered the following:

1. Length of time the witness had accused under observation.
   
2. Distance
   
3. Light available.
   
4. Was observation impeded in anyway or clear.
   
5. Was accused known to defendant from before.
   
6. Identification to police – length of time from initial incident.
   
7. Any discrepancies in evidence of description by witness.
   

The accused has denied being present at the scene of the robbery or hiring the complainant’s vehicle.

The complainant described and recognized him as the person who sat next to him in the hired taxi. He also saw him during the robbery and gave chase when escaped. In the identification parade which was some 10 days later the complainant recognized accused without hesitation.

The accused has raised an important issue that the complainant recognized him only because he had seen his photo in the driver’s permit which was found in his bag.

I have considered the demeanor of both witnesses in court. The complainant was straightforward, positive in evidence. He has seen the accused at close distance and for considerable time that day.

The accused said his bag was missing from the volley ball tourney and he had reported the matter to police and his team captain.

The investigating officer’s before charging had checked the registry which had no report of missing bag. Also the volley ball captain in evidence said it was not until Tuesday 12/10 that accused had come to him to make report of his missing bag.

I also found the accused to be evasive in evidence and repetitive as to his reports on the missing bag.

Upon whole of evidence I accept the complainant that it was the accused who hired and robbed him with another. This accused was properly identified by the complainant during the identification parade not merely due to his photo but due to the complainant’s personal recognition of accused that night.

ALIBI

The accused said in his statement he was at Lami at the time of the incident. He had gone to his grandmother’s home.

But at question 27 he said he had met Junior on the road and did not go to his grandmother.

The investigating Officer in evidence tried to locate junior whom accused had met but he was not known or located. No other information was given about this person. Accused also didn’t go to his grandmother but met him outside grandmother’s house.

The onus is on the prosecution to investigate and check the accused’s alibi once raised.

I accept the prosecution has discharged the onus. The accused also kept changing his story about his whereabouts and his visit to his grandmother that night.

I find the complainant’s evidence to be both reliable and credible. A medical examination also shows injuries to the complainant as per the medical report tendered in evidence.

I find it as a fact that the accused was the person present at the scene of crime and did commit the offences alleged. The prosecution has proved it’s case beyond reasonable doubt and the accused is found guilty as charged.

Dated this 1st day of February 2005.

Ajmal Gulab Khan
RESIDENT MAGISTRATE