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State v Vuli [2010] FJMC 188; Criminal Case 324 of 2009 (29 December 2010)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No:- 324/2009

STATE

JEKESONI VULI

For Prosecution : - Ms. Lomani A,
Accused : - in person.

JUDGMENT

The accused is charged with the offence of "Robbery with violence" contrary to section 293(1) (b) of the Penal code act 17.
The particulars of the offence are " JEKESONI VULI ", on the 8th day of March, 2009, at Suva in the Central Division robbed one Steven Fong Toy of $70 cash and immediately before such robbery used personal violence on the said Steven Fong Toy.
Accused pleaded not guilty for the offence of Robbery with Violence, Wherefore, the case was fixed for hearing. During the hearing of this case, the Prosecution called 5 witnesses and accused gave evidence on oaths but did not call any other witnesses for the defence. At the conclusion of the hearing of this case, both prosecution and the accused submitted their final written submissions. Upon careful perusal of the evidence adduced by both prosecution and the defence and their respective written submissions, I pronounce the judgment in this case as follows.

According to the general rule in law of Evid the onus of proof the charges beyond reasonable doubts against the accused is borne by they the prosecution. There is no onus o accused used at any stage to prove his innocence or to prove anything else.

The section 293(1) (b) of the Penal Code reads as " 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 felony".

The main elements of the offence of Robbery with violence, which has to be proof beyond reasonable doubts by the prosecution are

Robbed the complainant,
At the time of or immediately before or immediately after such robbery uses or threaten to use any violence to any person.

Robbery is stealing by force. Robbery is essentially an aggravated form of theft. The conduct or circumstances that will convert an ordinary theft to robbery are prescribed by section 293. ( Jovesa Vaileba v State (1990) AAU 8/88 (apf HAC 93/87) 12 October 1990). ( Put State v Nimacere) Accordingly, in order to prove that accused rob the complainant, the prosecution has to proof beyond reasonable doubts that,

The accused, without the consent of owner,

TakesTakes / carries away the cash of $ 70 of the Complainant,
With intention of permanently depriving the owner thereof, at the time of such taking.

The summery of facts in this case is that, the accused were alleged that he together with another three youth approached the complainant when he came out from the Night Club and punched him and robbed cash of $70 from his pocket.

The first prosecution's witness, who is the arresting officer gave evidence that while he was in Fleet 47 with Inspector Savirio and SC Kaminieli at Carnavon Street, the complainant came to them and told that he had been robbed alone the Carnavon Street in front of "Sukuna" house. Then he together with SC Kaminieli went to help him. PW1, further stated that he asked the complainant to show him who is the right person, then the complainant pointed out the Accused who was in front of "Sukuna" house with another two boys. Then PW1 arrested him and escorted to the Police Station. In his cross examination he affirmed that he was not in the scene when this alleged crime took place and he arrested the accused mainly because the complainant pointed him out to him as the person who robbed him.

The second prosecution witness was Cpl 2956 Josefa Lutunauga, who gave evidence that he was on duty at the charge room at the Totogo Police Station on the morning of 8th of March 2009, when he received a report from Steven Fong Toy, the complainant of this case. According to the report he received that the complainant was robbed outside "Bournbon Bluez" club at the Victoria parade. He further testified that at the same time he received the report of this crime, the accused who was wearing a 1/3 Blue Lee paint and a blue T-shirt, were brought into the police by operation team. At the charge room the complainant pointed out the accused as the person who robbed him. In his cross examination, Cpl Josefa stated that the complainant was smell of liquor but he is not able to say that he was drunk or not. The PW2 further stated in his re examination that the complainant was very angry with the accused when he identified the accused.

The investigating officer and interviewing officer of this case DC3586 Jone Tuwai gave evidence as third prosecution witness. In his evidence he stated that he recorded the caution interview of the accused. DC Jone Tuwai was lengthy cross examined by the accused. In his cross examination, he stated the reason for not conducting an identification parade was that the accused was identified by the complainant at the scene of the incident and subsequently at the police station too. He further stated that the complainant was drunk but he was mindful to state that the complainant was not heavily drunk.

DC Jone stated the only thing he did in respect of investigating on what short of violence the accused inserted to the complainant was obtained the medical report issued to the complainant. He admitted that he did not take the complainant to the doctor but it was the arresting officer who took the complainant to the doctor. It is noteworthy to mention, that neither arresting officer nor investigation officer tender and marked the medical report issued to the complainant. In addition DC Jone admitted that though he knew importance of cease the cloths of the accused whenever the issue of identification is material for investigation he failed to cease them from the accused.

The fourth prosecution witness was Cpl Viliame Duguivalu, who was the charging officer of this case.

The complainant gave evidence as fifth prosecution witness. He stated in his evidence that he came out from the club after few drinks and outside the club he met four youths. He stated that lighting was bright due to street light. One of them punched on his face on right chin. Due to the intense of the punch he fell down on the concrete foot path. Then the accused took his money from his right side pocket. The complainant stated that he can clearly remember that it was the accused that punched him and took his money because he was wearing a blue round neck t- shirt.

Further the complainant testified in his evidence that he got up and met the police officer. He explained to him that he had been robbed. In his evidence the complainant stated that he explained to Police officer the colure of T-shirt, build of the person who robbed him. Then the police officer stated to him that this was not the first time. He further stated that when he was talking to Police officer, the accused was just at the scene outside the Bourbon Blues night club.

In his cross examination, he admitted that just before he was robbed he had about 8 glasses of Beer within ½ hours in the night club. Further he admitted that he stated four youth approached him, then they robbed and he fell down, then they ran away" in his statement given to the police on the night of the incident. In addition he admitted that he stated "that he don't know who robbed him" in his statement given to the police on the night of the incident. Moreover, he admitted that he stated "I was robbed, then I came to police station to lodge my complain, then I know that the suspect was in charge room" in his statement given to the police.

The complainant answered affirmatively that it is possible the one of the person who robbed him on that night looks like the accused in his evidence.

The accused in his evidence on oaths stated that he did not know anything about this incident and he was standing at "carnavon" street having his dinner when three police officers approached him and informed him that he robbed a person. He stated that the complainant did not identified him at the scene of the incident but only at the police station but that is also not in a proper identification parade.

I now proceed to examine the submissions tendered by both prosecution and the accused.

The learned state counsel for the prosecution, submitted in her submission that the two ingredients that must be proved for this offence are

That the robbery was committed,
That immediately before that robbery, the robber used personal violence on another person,

Upon considering evidence adduced from PW1,PW2 and the complainant, the learned counsel for the prosecution stated that the first and second elements of above states two ingredients were fulfilled.

The accused vehemently contended in his submission that the omission of the police of not conducting an identification parade entirely weaken the evidence relied upon by the prosecution. The accused further submitted that the identification of an accused for the first time in court is undesirable, unsatisfactory and should be avoided if possible. He emphasized that there is no evidence produced in court to prove the complainant was injured in the course of the robbery.

The burden of proof of the accused's guilty beyond reasonable doubts lies with the prosecution. It was held in Woolmington v DPP (1935) AC 462), that ' no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Where the burden of proof, remains on the prosecution throughout the trial, in that circumstance, the accused need only to raise sufficient evidence to cast reasonable doubt on the issue". ("Andrews & Hirst on Evidence" 4th Edition, pg 59).

Upon careful perusal of the evidence adduced by both parties and the submissions of both prosecution and the accused, I infer that this instance case against the accused depends mainly on the correctness of identification of the accused which the defended alleges to be mistaken.

It was held in R v Turnbull (1977) Q.B.224, " 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?
Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

In State v Raymond Johnson, (Crim, HAC120 of 2008), Gounder J held in his summing up to the assessors that " In assessing the identification evidence, you must take such matters into account:

(1) Whether the witness has known the accused before?
(2) For how long did the witness have the accused under observation and from what distance? Was it more than a fleeting glance?
(3) Did the witness have any special reason to remember?
(4) In what light was the observation made?
(5) Whether there was any obstacle to obstruct the view

In view of the evidence given by the complainant, four youth approached him and one of them punched him on his face, then he fell down. Then one of them robbed his money from his pocket. During this incident, the complaint observed the accused from his cloths and his build. It's indicated that the complainant had observed the accused for few minutes. During the said little period, his observation were disturbed with the sudden attacked on his face and he was fallen on the ground. He had never seen the accused before. It is now to determine whether the complainant's observation on the accused during little period of time under such disturbing condition was able to sufficiently identify the accused

I now draw my attention to the contradictions of the complainant's evidence and his statement given to the police which the complainant himself admitted in his cross examination. He admitted in his cross examination that he stated in his statement to the police "that the four youth who robbed him ran away after robbing him". And further he stated in his statement to the police, that "I was robbed, then I came to police station to lodge my complain, then I know that the suspect was in charge room". According to these two versions of complainant's statement given to the police soon after he was robbed on that night, which he subsequently admitted in his cross examination arise a doubt on his evidence of identification of the accused in the scene to the police officer.

Furthermore, it's established that the complainant was drunk with 8 glasses of beer. The complainant in his evidence stated that he explained the police officer about the colour of the t-shirt and the build of the person who robbed him and the police officer replied that it was not the first time. In this inconclusive evidence of the complainant on the police officer's reply generate a doubt whether the knowledge of the police officer in respect of the accused as a previous offender might directed to the arrest of the accused.

I have to give much consideration for the evidence of the complainant where he answered affirmatively in his cross examination that it is possible that one of the person who robbed him on that night looks like the accused.

It is prudent to examine and analysis whether there are any other possible hypothesis consistence with the identification of the accused other than the prosecution version of the facts according to the evidence adduced by the prosecution. (Shameem J in Lepani Varani v State (2006) HAA 149/05S, 3 March 2006). The drunkenness, inconsistence of the complainant's evidence with his statement given to the police which goes to the roots of the identification, I am of the view that its created few hypothetical possibilities in respect of identification of the accused while generating reasonable doubt of the prosecution version of the evidence of identification.

In aforementioned circumstances, I am of the view that the evidence of the identification of the accused is poor. It was held in R v turnbull (supra) that 'if the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened, but the poorer the quality, the greater the danger".

At this point I draw my attention to the summing up address of the Gounder J in State v Raymond Johnson (supra), where his lordship justice Gounder directed that "if you are satisfied beyond a reasonable doubt -

(1) that a robbery took place; and
(2) the victim was threatened with a knife as he says; and
(3) that the accused was one of the persons involved

You will advise me that he is guilty on count 1. If you have a reasonable doubt about any of the three you will advise me that he is not guilty.

In view of the reasons set out in aforesaid paragraphs, I am of the view, that the prosecution failed to prove beyond reasonable doubt, that the accused robbed the complainant's $ 70 cash, whereby failed to prove beyond reasonable doubts the accused is guilty for the offence of Robbery with Violence contrary to section 293(1)(b) of the Penal Code Act 17.
Upon considering foregoing reason, I now determine the accused is not guilty and acquit from the charge for the offence of Robbery with Violence contrary to section 293(1)(b) of the Penal Code Act 17.
28 days to appeal,

On this 29th day of December 2010.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.

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