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State v Kumar [2009] FJMC 12; Criminal Case 450.2007 (10 August 2009)

IN THE FIRST CLASS MAGISTRATE’S COURT
AT NAUSORI
FIJI ISLANDS

Criminal Case No: 450 of 2007

STATE

V

LALESH KUMAR (s/o SURUJ LAL)

BEFORE: MR. C LAKSHMAN
RESIDENT MAGISTRATE

For Prosecutor: Inspector Ali S
Accused: Present

JUDGMENT

The accused is charged with Robbery with Violence, contrary to Section 293(1) (b) of the Penal Code (Cap 17). The accused elected a Magistrates Court trial and waived right to counsel. The accused initially pleaded guilty and when the facts were read and disputed a not guilty plea was entered.

The particulars of the offence are as follows:

“Lalesh Kumar (s/o Suruj Lal) with 2 others on the 3rd day of December 2005 at Nausori in the Central Division robbed John Intesh Permal (s/o Narsingn Permal) of cash $70, 1 car battery valued at $120.00, 20 litres diesel valued at $30.00 and 1 pair gum boots valued at $15.00 all to the total value of $235.00 the property of Mohammed Asraf (s/o Mohammed Yakub) and immediately before such robbery did use personal violence on the said John Intesh Permal (s/o Narsingh Permal).”

The onus of proving the charge of robbery with violence is on the prosecution. It is for the prosecution to prove that the accused committed the offence beyond reasonable doubt and that:

(i). the accused, with others,

(ii). stole,

(iii). from the complainant items belonging to Mohammed Asraf,

(iv). immediately before the robbery use personal violence on the complainant (John Intesh Permal)

From the evidence on the whole, it appears that the accused disputes that he with others robbed the complainant’s of items belonging to Mohammed Asraf and immediately before the robbery use personal violence on the complainant. Essentially the accused denies the charge. He maintained through out that he did not steal the money, diesel and the battery and the gum boot was his wife’s.

The prosecution first witness was the complainant (PW-1) – John Intesh Permal, who told the Court that he is 75 years old and that he worked with the accused fishing for one Asraf.

PW1 recalled that on 3rd December, 2005 that he was under the bridge after returning from sea – fishing. PW1 had returned from fishing, with the accused, Asraf and one other person.

Asraf then went home. The complainant was alone with the accused. The accused later left for town and PW1 was alone. Sometime later the accused returned with some Fijian men. It was night. The complainant told the Court that they hit him and took the money, 20 litres diesel. A Fijian man put a knife on his cheek and the accused said to the accompanying assailant not to hit the complainant. The assailants took a gum boot as well which according to PW-1 belonged to him. The complainant identified the gum boot when it was introduced in Court as his.

The complainant told the Court that the accused came to rob with the others. In the day time the accused was with the complainant and they had fished together. The complainant was about 2 meters away from the accused, when he was robbed.

The light in the boat was on. The boat was illuminated by a hurricane lamp. The complainant stated that he knew the accused for over 35 years. The complainant identified the accused in the accused box and pointed him out. The complainant stated that his eyes sight is ok.

PW1, the complainant was cross examined by the accused, he asked PW-1 where he kept the money. The complainant stated in his handbag and when the accused claimed that the boots were his wife’s. The complainant told the accused that his gum boot was brought from the accused’s house. He further in cross examination stated that the accused took the things.

PW2 was Mohammed Asraf. PW2 was the one the accused and the complainant worked for. PW2 gave evidence that he had asked the complainant and the accused to stay on the boat and they will unload the next day.

When PW2 returned next day he was informed by the complainant that the accused was not there and upon questioning him about the battery and the diesel he was told that the accused took it. The complainant also told the PW2 that they took his money.

The accused in cross examination asked the PW2 that “He did not steal? – PW2 stated that is known by the accused himself.

PW3 was Sergeant Lepani. PW3 led a team that searched the accused home. At the time of the search, the accused’s wife and family were present. The PW3 seized a gum boot from the accused house and initialed it and handed it to the Investigating officer. PW3 identified the gum boot in Court as the one that he had seized from the accused home.

In cross examination the accused asked the PW3 that the boot belonged to his wife.

PW-3 stated he cannot say that. PW3 stated the gum boot was identified by PW-1 (the complainant) as his.

PW-4 was Sergeant Pradeep Lal who was the Investigating officer. The complainant reported that he was robbed by the accused. PW-4 also caution interviewed the accused. PW-4 stated in his evidence that in the caution interview the accused admitted taking the complainant’s gum boots. In Question 34 “ where is the boot of Intesh, now? Answer: At my home in Sawani.

The Court was told that it was after admitting the gum boot was at his home when the interview was suspended for a search. The accused had escaped from police custody then was arrested at his house in Sawani.

The accused did not cross examine the officer on the evidence however he stated that the officer had informed him when the interview was suspended from his return he will hit the accused. The PW-4 denied this. The accused did not dispute his caution interview.

The parties submitted the charge sheet by consent.

At the close of the prosecution case the Court ruled that there was a case to answer and the accused was informed of his rights. The accused who was not represented was told that he had the right to present his witnesses. The accused was further informed that he had the right under section 211 of the CPC:

a). to give sworn evidence where he will be liable to cross examination.

b). to make a statement not on oath from the dock

c). right to remain silent (no adverse reference will be drawn).

The accused gave sworn evidence and stated that he did not steal the money, diesel and battery and once he got of the boat he went home.

In cross examination the accused accepted the gum boot was found at his house. However, he maintained the boot belonged to his wife.

Upon further cross examination that he drank at Syria Park the accused denied doing so. When the prosecution asked him that in his caution interview he stated that he was drinking beer. The accused stated that is not my answer. He further stated he did not know how that answer came. Upon further cross examination the complainant denied drinking beer and stated he went home when he came out of the boat and did not ask money from anyone.

The accused’s other witness was his wife. She told the Court the gum boot belonged to her and she used it to tie cattle. She also stated that the accused was home at 10pm.

In cross examination that the accused was at Syria Park at 9pm his wife did not know where he was at 9pm, at Syria Park or elsewhere. She also stated the accused returned home empty handed.

The court in this case notes that the credibility of the witnesses is an issue and notes that the complainant gave evidence that the accused with others robbed him of certain items and immediately before the robbery used personal violence on the complainant.

The Issues

The court notes that the main issues for consideration in this case are the following:

(a) identification

(b) use of personal violence

(c) credibility of the witnesses – whom the Court believes

Identification

This Court takes note of the identification guidelines, as set out in R v Turnbull & Anor [1976] 3 All ER 549 (CA),

“First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition [the judge] should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words.

Secondly the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Are there any material discrepancies between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, [the judge] should remind the jury of any specific weaknesses which had appeared in the identification evidence:” at 551-52, per Lord Widgery CJ

This court notes the guidelines set in Turnbull and in particular the following questions: (a) How long did the witness have the accused under observation? (b) At what distance? (c) In what light? (d) Was the observation impeded in any way, as for example by passing traffic or a press of people?) (e)Had the witness ever seen the accused before? (f) How often? (g) If only occasionally, had he any special reason for remembering the accused? (h) How long elapsed between the original observation and the subsequent identification to the police? (i) Are there any material discrepancies between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

(a) How long did the witness have the accused under observation?

From the complainant’s evidence it would seem in the absence of a direct answer to this question that the accused was present throughout the commission of the offence. The evidence of the complainant is that “sometime later the accused returned with some Fijian men. It was night. The complainant told the Court that they (meaning the assailants) hit him and took the money, 20 litres diesel. A Fijian man put a knife on his cheek and the accused said to the accompanying assailant not to hit the complainant.”

(b) At what distance?

The evidence of the complainant was that the accused was some two(2) metres away from him when he was robbed.

(c) In what light?

The light in the boat was a hurricane lamp – light was on.

(d) Was the observation impeded in any way, as for example by passing traffic or a press of people?)

However, there was no direct question on this. The Court notes that the that the complainant’s vision was not impeded in any way. He saw the accused.

(e) Had the witness ever seen the accused before?

The complainant and the accused were fishing mates. The complainant was with the accused earlier in the day and the accused had sometime earlier left the boat. The complainant also told the Court that he knew the accused for some 35 years. This was not disputed by the accused.

(f) How often?

The answer in (e) and the evidence of the complainant was that he knew the accused for 35 years and they fished together.

(g) If only occasionally, had he any special reason for remembering the accused?

This question is not applicable as the complainant knows the accused well and they fished together and the complainant was with the accused earlier in the day.

(h) How long elapsed between the original observation and the subsequent identification to the police?

The evidence of PW-2 (Asraf) and PW-4 (Sergent Pradeep- the Investigating officer) shows that the complainant mentioned to them that the accused with others robbed the complainant. The complainant told PW-2 when PW-2 came the next day. PW-4 also told the court that the “complainant reported that he was robbed by the accused.”

(i) Are there any material discrepancies between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

There does not seem to be any material discrepancies in the description of the accused given to the police by the complainant when first seen by him and his actual appearance.

(j) Are there any specific weaknesses appearing in the identification evidence?

The most pronounced issue here is the identification of someone known to the complainant, and linking this person, by reason of that knowledge, back to an offence. The court warns itself of this possibility and judging from the evidence of the complainant he clearly identifies the accused and knows the accused for a considerable period of time. He would not make a fatal mistake of not being able to identifying someone he knows for a long time.

(k) The circumstances in which the identification by the witness came to be made are crucial

The accused was indentified at the scene of the alleged crime.

The evidence of the complainant as to the identification fulfils the criterion laid down in Turnbull. The court is of the view that the accused was properly indentified by the complainant using the Turnbull guidelines.

Use of personal violence before the robbery on the complainant

The evidence of the complainant is that “sometime later the accused returned with some Fijian Men. It was night. They hit me and took the money, 20 litres diesel. A Fijian man put a knife on my cheeks and the accused said to the accompanying men not to hit the complainant.”

The issue on this element is whether the accused use personal violence on the complainant. As the complainant himself stated that the accused did not use personal violence against him but he stopped the other men with him from hitting him.

Section 21 (1) of the Penal Code (Cap 17) provides that:

“(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say-

(a) every person who actually does the act or makes the omission which constitutes the offences;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids or abets another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence.

In the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission.”

In, State v Deo [2008] FJHC 216; HAA026J.2008 (12 September 2008), Justice Shameem stated that “Section 21 of the Penal Code does not define what constitutes an aiding and abetting. However the common law does. An aider and abetter must share the same mens rea as the principal offender (Abendra Kumar, Manoa Naqase and Sivorosi Raikali v. R [1987] SPLR 131), or must at the very least know what the principal offender intends to do, and act with the intention of assisting him/her (Sheik M. Hussein v. State [2001] AAU0032/98 and State v. Prakash Chetty [2001 AAU0034/98)."

A person can be guilty of an offence committed by another is defined by our Section 22 of the Penal Code as follows:

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

Applied to the present charge it means that if the accused formed a common intention to commit the robbery together other persons and it was the probable consequence of committing the robbery that the victim would be threatened with personal violence, then each of the people participating would be equally responsible for that threat and guilty of robbery with violence.

So, in this case, it would be necessary for the Court to consider the actions that have been proved to have occurred in the boat on that day. This would include the conduct of those who participated and the manner in which the alleged robbery was carried out, including the facts that the person who actually accosted the victim was carrying a knife. The Court also has to determine whether, in the proved circumstances, the threatening of the victim with the knife was a probable consequence of the robbery the accused and others intended to commit. If so, then each person proved to be participating would be responsible for that threat and be a party to the offence of robbery with violence.

In summary therefore, if the accused is proved to have been one of the those persons present and participating in the robbery of Mr. Permal - and only if this is proved, then there are two ways that he could be responsible for the threat made by the others to Mr. Permal and be guilty of the offence of robbery with violence.

First, if in setting out on this joint enterprise to rob, the accused and others intended to threaten the victim with personal violence or if the use of a threat of personal violence was not pre-determined but was a probable consequence of the robbery that they intended to commit.

The court finds that the accused aided and abetted the others with him in stealing the items as per the charge sheet from the complainant. He was present at the time of the commission of the offence and he asked the others with him not to hit the complainant when the knife was put to the complainants neck. The accused came with the others and they used personal violence. The accused formed a common intention with others to rob the complainant and he is therefore deemed to have committed the offence he is charged with.

Credibility of the Witnesses – whom the Court Believes

The complainant was the key prosecution witness. He is 75 years old and knew the accused for over 35 years. The Court found the complainant to be truthful in his answers in court. The court believes the complainant. He recalled the events clearly and identified the accused as one of the persons who with others robbed him. He could have easily stated that the accused used violence on him, but he stated what actually happened that when others were using violence on him the accused who was present stopped them.

The wife of the accused the court feels is attempting to save her husband. She does know where her husband was at 9pm at Syria Park or elsewhere. She stated that the gum boots were hers. The court noted the demeanor of the accused wife and does not believe her.

The accused who in his caution interview to the police told them that the complainants gum boots were at his residence. While he told the court that he feared that the Police told him that he will beat him up. The Court notes that there is no evidence that violence was used or other threats made to the accused. The accused did not complain that police extracted his statement by using any force or duress. The accused in cross examination that the gum boot was recovered from his residence. He maintained that it belonged to his wife. The court noted the demeanor of the accused and does not believe the accused.

The court finds that the prosecution has proved the elements of the offence the accused is charged with and the court believes beyond reasonable doubt that the accused committed the offence he is charged with.

The court finds the accused guilty of the offence that he is charged with.

Chaitanya Lakshman
RESIDENT MAGISTRATE
NAUSORI

10/08/09