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State v Basa [2007] FJMC 6; Criminal Case No 1315 of 2006 (23 March 2007)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 1315 of 2006

STATE

V

SAKIUSA BASA & ANO.

Before Ajmal Gulab Khan Esq
Resident Magistrate

Date of Hearing: 16/02/07
Date of Judgment: 23/03/07

Prosecution: Sgt. Wilson
Accused: In Person

JUDGMENT

The accused has been charged with Robbery with Violence Contrary to S293 (1) (b) of the Penal Code.

Particulars are on 2nd June 2006 Sakiusa Basa and another robbed Major Ana Rokomokoti of a bunch of keys valued $50 and immediately before the robbery used personal violence.

PROSECUTION CASE:

The prosecution case is on 2nd June the complainant returned home after a party at friends. She parked her vehicle and looked towards the electrical gate which was closing. She noticed two men ran inside the gate. One man came towards her and another went towards the main house door.

Both men wore balaclavas rolled up with face open. One of them carried a pinch bar.

One person she called (Sakiusa) came towards her and said "give me the keys; Do you wanna die, give me the keys." He kicked her; she screamed to Tevita and husband who was inside the house.

Sakiusa kicked her arms. He then freed her hands and hit her on the head with the anchor he carried. She was close to him so there was little injury but started bleeding. She gave the keys away. He jumped into the vehicle and started it. The reverse light was seen on by the complainant. She heard sound of bottles smashing and breaking glass inside so she went towards the front door of the house. She saw the other robber fleeing. He was hurt in the face. He was loudly saying "enough, I am hurt."

Sakiusa got out of the vehicle and both men fled over the fence. The key was later found in the car.

The complainant recognized accused as ‘Sakiusa Basa’. The complainant was taken to hospital. She had 3X1 cm deep wound to the back of her head. Swelling and bruises in elbow and her left arm. She was stitched and given pain killers. Doctor’s report also refers to psychological effect on victim for a long time.

DEFENCE:

In defence the accused denied he was present at the scene. He said he was an escapee at the time and was in hiding at Wainibuka. He was with another escapee Peni Tirikula.

He called Peni Tirikula as a defence witness who confirmed the accused was with him whole day on 2/6/06. Peni had escaped from prison and used to come to friends at Nadera to pick his rations. He met Basa and took him to his hiding at Wainibuka.

He called his father who had known the complainant since her young days. He couldn’t remember all the conversation when she visited him after robbery but said the voice of the attacker was of Sakiusa Basa; his son.

The defence also called the officer on duty who filled out the medical form before complainant took it to the doctor. He filled the administrative details and signed the front page of the medical form.

Constable Amani was at the scene after the incident was reported. He saw glass scattered on floor and noticed the injury on the head of complainant. He described her as shaken up. Complainant informed this officer that "Sakiusa Basa had hit her."

He accompanied complainant to station where the medical form was picked up and she was taken to hospital. The complainant gave her statement in writing a few days after the incident.

The accused has raised various issues before court and I wish to deal with each of them separately.

IDENTIFICATION:

The accused denies he was correctly identified by complainant. He says she did not give his name to his father but said she recognized the voice only and thought it was that of the accused.

The complainant has known the accused since childhood. They were on visiting terms to each other as they grew up in the same neighborhood. This was confirmed by the accused and his father too. The investigating officer also said the complainant took Sakiusa Basa’s name as the person who had hit her soon after the robbery. The father of accused also admitted he could not recall whole of the conversation when the complainant had visited his home after robbery.

I find the complainant had known Sakiusa Basa well and had ample opportunity to recognize him. He was known to her from childhood and they grew up in the same neighborhood. Basa asked why she had not stated his name on medical report which said "attacked by unknown person with intent to robbery with violence."

She had given sufficient explanation that the officers at the station filled it and not her. Also the officer said it was routine to state as such on the form and then follow it up with investigation.

I am satisfied that the complainant has positively identified the accused as her assailant that night. There was sufficient time, light and opportunity and she knew him very well not to be mistaken about his identity.

ALIBI OF ACCUSED

The accused had not given any notice of his alibi defence to the prosecution from before. However, I still permitted him to lead evidence. He said he was an escapee at the time and was in hiding at Wainibuka with a friend. He was not the person at the scene on 2/6/06.

His accomplice gave evidence to confirm this.

I have considered the whole of the evidence. I do not find the accused or his accomplice to be credible. They were coming to Suva to pick rations from their hiding place. There is nothing to suggest the accused couldn’t have come to Suva that night. I also feel the witness Tirikula was a friend, well known to the accused but denied knowing him in prison. This alibi was also never mentioned in the caution interview by the accused. Any reasonable person would have given this information to police on first instance even if he exercised his right to remain silent this was to his benefit to bring it to the notice of the Investigating officer.

I reject the alibi evidence of the accused.

NOTHING WAS STOLEN.

The accused says the keys were not stolen from the premises, so nothing was robbed by him. The facts show the accused asked for keys. When complainant refused, he said ‘do you wanna die’ and insisted. He raised his arms and hit her with the anchor he had. Complainant bled. She gave away the keys.

Accused started the car and was in process of reversing it. There was noise of smashing bottle and glass broke. The other guy was hurt in face. He tried to flee. Saying ‘enough, I am hurt’. Basa got out of vehicle and ran and jumped off the fence.

S293 1(b) of the Penal Code states: Robbery with Violence

Any person who robs any person and, at the time of or immediately before or immediately after such robbery uses or threatens to use any personal violence to any person is guilty of a felony.

The keys were taken away from the complainant by threat and intimidation. It was used by the accused. He had full intention of taking away the vehicle and moved it. However, the keys were later found in car as the two fled due to injury received on the accomplice.

There was intention to take away keys and was in fact taken away by accused. Accompanied by threat and assault on complaint completes the offence of robbery with violence.

CONCLUSION:

Upon whole of the evidence I am satisfied that the prosecution has proved it’s case beyond reasonable doubt.

I find the accused guilty as charged.

Dated this on the 23rd Day of March 2007.

Ajmal G Khan
RESIDENT MAGISTRATE