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State v Vakatalai [2010] FJMC 137; CRC1454.2008 (30 November 2010)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 1454 of 2008

STATE

V

TEVITA VAKATALAI
JONE VUVUNAKULA

For Prosecution: Mr. Ratakele C. (DPP Office)
Both Accused: In Person
Date of Judgment: 30th November 2010

JUDGMENT

1. Both accused in this case is charged for committing Robbery with Violence an offence punishable under sec. 293 (1) (b) and Assault with Intent to Rob an offence punishable under sec. 293 (2) of the Penal Code, Cap 17.
   
2. Three witnesses testified for the prosecution. At the end of the prosecution both accused persons remained silent.
   
3. Prosecution is under obligation to prove the charges beyond reasonable doubt and the accused has to establish his defence on the balance of probabilities.
   

Elements to be proved by the prosecution

4. a). Robbery with Violence 293 (1) (b)
   1. The accused,
   2. Robbed any person,
   3. The accused used or threatened to use personal violence on any person immediately before or immediately after such robbery.
      

b). Assault with Intent to Rob; 293 (2)

1. The accused,
2. Assault any person,
3. With an Intention to rob.
   

Evidence of each witness
PW – 1

5. On 13th August 2008 between 11 pm and midnight witness was at Stinson Parade, Sakuna Park with his girl friend. He has witnessed some Fijian youths walking towards Tiko's floating restaurant and then attacking one Asian man who was with a group of Asians. Witness had run towards them shouting. Then the Fijian youths had run towards the Victoria parade. According to the witness he had been about 40 -50 meters away from the place of the incident and he had come about 20 meters close to the assailants when he came for the aid of the Asian youth. When assailants were running past the witness and his girlfriend they were about 10 meters away form them.
   
6. According to the witness he had recognized the assailants by their t-shirts. Witness had found the victim with blood covered face. Witness had got some other police officers who were in a police vehicle to go after the assailants after explaining them about the incident and about the colours of t-shirts they were wearing. In few minutes the police vehicle had returned with two youths and witness identified one with green t-shirt as the person who assaulted the Asian man. According to the witness that person is the second accused in the court.
   

PW -2

7. On 13th August 2008 witness was on mobile patrol with one other officer around 11.30 pm and had been stopped by PW-1 at Stinson Parade. PW-1 had explained to the witness that two Fijian youths wearing green and blue t-shirts had assaulted Asian man and had run towards Victoria Parade. Police vehicle then had gone towards that area. Upon reaching Kanavan street, witness had found two youths wearing green and blue t-shirts acting suspiciously. Since the description given by PW-1 matched them witness had arrested them and brought them to the police station.
   
8. During cross examination by the first accused witness admitted that he did not seize and stolen items from the accused. According to the witness in the police station PW-1 and the Asian man had identified the accused persons.
   

PW- 3

9. Witness informed that he took the statement of one of the accused but he could not recall from which he took the statement.
   

Analysis and Findings

10. In this particular case, prosecution failed to lead the evidence of the victim and offered no explanation. There is no evidence to prove that the victim had indeed being robbed. Another aspect of this failure to lead the evidence of the victim is that the identity of the accused person could be easily challenged by the accused.
    
11. Offence of Robbery combines the offences of assault and larceny. It is essential to prove that the person assaulted is also the person robbed and the person or persons committing the assault are the same as those committing the robbery.
    
12. The count two against the both accused require proving of 'intention'. However, there is no evidence in this Court to prove the fact that both accused person had intention to rob the victim whist they were assaulting the victim. In fact, there is no evidence to prove that both accused robbed the items mentioned in Count one.
    
13. In the light of the above findings I decide that prosecution had failed to prove both charges beyond reasonable doubt against the accused. Hence, both accused are acquitted.
    
14. 28 days for the prosecution to appeal.
    

On this Tuesday the 30th day of November 2010

Kaweendra Nanayakkara
Resident Magistrate