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State v Waaqnivalu [2010] FJMC 44; Criminal Case 889 of 2008 (19 March 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 889 / 08

BETWEEN

THE STATE

AND

1. ASELAI WAAQNIVALU
2. ERONI VAQEWA

JUDGEMENT

1. The first and the second accused persons are charged with one count of Robbery with violence.
   
2. The statement of offence and the particulars of offence reads as follows;
   

The Statement of offence

Robbery with violence: contrary to Section 293(1)(a) of the Penal Code.

Particulars of offence

Aselai Waaqnivalu and Eroni Vaqewa on the 27th day of November 2008 at Lautoka in the Western Division robbed Yogeshwar Prakash s/o Rovinda Prakash of cash $ 240 and a Vodaphone mobile phone valued $ 280 all to the total value of $ 520 and immediately before the time of such robbery did use personal violence to the said Yogeshwar Prakash.

BACK GROUND

3. The complainant, Yogeshwar Prakash is a taxi driver. The two accused persons alleged to have hired his taxi on the 27th November 2008 soon before the alleged commission of the crime.
   
4. The accused persons were charged on the 8th December 2008 and the case was taken up for hearing on the 11th February 2010. Both accused persons were unrepresented at the hearing and a Police Corporal prosecuted the case.
   
5. The prosecution called Yogeshwar Prakash, the Complainant and Akisi Waqatairewa, the Police Constable who recorded the cautioned interview of the accused persons. The first accused cross examined the prosecution witnesses while the second accused did not ask any question from the prosecution witnesses.
   
6. At the close of the prosecution case the court decided that the prosecution has made out a case for the accused persons to reply.
   
7. The first accused made a dock statement and the second accused opted to remain silent.
   

THE LAW

8. The Section 293(1)(a) provides that:
   

"Any person who being armed with any offensive weapon or instrument, or being together with one other person or more, robs, or assaults with intent to rob, any person is guilty of a felony, and is liable to imprisonment for life, with or without corporal punishment."

9. Therefore the prosecution has to basically prove;
   

i. The time and the place of the offence

ii. The identification of the accused persons

iii. That there were more than one accused persons

iv. That they have robbed or assaulted the complainant with the intent to rob

ANALYSIS

10. Before the evidence is assessed it has to be noted that I have decided to exclude the caution interviews led in evidence by the prosecution. It appears that although the prosecution was intending to lead in evidence the caution interviews of the accused persons, they were not afforded an opportunity to challenge them if they wished to do so. The accused persons were unrepresented and therefore it appears that a miscarriage of justice could happen if the caution interviews are admitted as evidence in this case. Therefore I decide to disregard the caution interviews of the both accused persons in the interest of justice.
    
11. The prosecution has led only the evidence of the complainant apart from the police officer who recorded the interview. I have cautioned myself of the risk of assessing uncorroborated testimony. The charge levelled against the two accused persons is very serious in nature and therefore the court has to be extremely cautious when examining evidence. Although it appears that there have been some other witnesses, prosecution did not call them to give evidence for reasons best known to them.
    
12. Be that as it may in any event the court has to examine whether the prosecution has discharged the burden of proof and whether the elements of the offence are proved beyond reasonable doubt. It has to be noted that the accused persons have not put forward any defence as such. Yet it's the duty of the court to see whether the prosecution has proved the charge beyond reasonable doubt.
    
13. Yogeshwar Prakash, the complainant said that on the 27th November 2008 while he was running his taxi he picked up two Fijian boys from Sukinivalu road junction. The complainant said those two boys wanted to go to Cama Street in Simla. However he said when he came to Cama Street that he was asked to take them to Regg Street. He said that he was robbed by these two persons came in his taxi at the Regg Street, round about.
    
14. In this case one of the most crucial issues the court has to consider is the identification of the accused persons. It appears that no identification parade has been held by the Police. Apparently the accused persons had not been known to the complainant prior to the incident. There were no other witnesses to identify the accused persons. The only witness called to give evidence is the complainant and the court has to examine how credible his identification of the accused is.
    
15. While giving evidence the complainant has identified the first and the second accused and gave evidence regarding what each accused person did to him. The complainant said that few days after he was robbed he went to the Police Station to inquire about the progress of the investigations. He said then he saw the two persons who robbed him were sitting there at one of the Police officers office. Having seen that he had informed about it to a Police officer.
    
16. It should not be forgotten in a case like this the biggest burden on the prosecution is to establish the identification of the accused. The proper procedure of establishing identification of accused persons would be holding an identification parade. However in a situation where a witness subsequently identifies an accused person at a police station or for that matter in other place the issue of holding an identification parade would not arise. However the court has to be mindful that a common allegation that can be brought against the prosecution would be that the accused person or persons were shown to the witnesses at the Police station.
    
17. In this case according to the evidence led, it appears that the whole episode has taken place during a considerable span of time. Although the exact time period within which this incident happened was not led in evidence it is very clear that the complainant had a fair amount of time to see and remember the accused persons who robbed him. The accused persons were not covering there faces and they have first got in to his taxi on the pretext of going to Cama Street. When they came to Cama Street the accused persons have asked him to take them to Regg Street. The complainant said that at the Regg Street the first accused had got down from the car and had come around the taxi to the driver's side. The complainant said then the first accused gave him a punch and searched for money. He said the second accused has strangled him from the back seat and later when he threw out some money the second accused had got down and had collected that money. Further the complainant said while the first accused was standing at a distance the second accused had robbed a lady who came to that place too.
    
18. According to the evidence led by the prosecution I am satisfied that the complainant had ample time to see the accused persons and remember their faces. Further this incident has happened during the day time. Also it should be noted that the accused persons have not disputed the fact that the complainant had enough time to see them and remember.
    
19. Be that as it may, the law does not bar the admission of any evidence regarding an identification of an accused at a Police Station by accident or by coincidence. As long as the prosecution proves that the accused were not shown to the witnesses and as long as the defence does not create a reasonable doubt about it such evidence regarding identification becomes admissible. The only two issues the court has to consider are whether the prosecution evidence is strong enough to rule out any possibility of a foul play regarding identification and whether the defence has created a reasonable doubt regarding identification of the accused.
    
20. The first accused while cross examining the complainant suggested that a police officer has asked him to come to the police to identify them. However the complainant denied that. Further at his dock statement the first accused said that he did not see the complainant at the Police Station and no identification parade was held. Therefore he said that there is no identification by the complainant. It should be stated that if the complainant has not seen the accused at the Police Station according to the first accused, no issue arises as to foul play. On the other hand a witness is not barred from identifying an accused from the witness box too.
    
21. I have carefully analysed the evidence in this case regarding the identification of the accused persons. Apart from the mere fact that the accused were seen by the complainant at the Police Station there is no iota of which suggests that the accused persons were shown to the complainant. Besides the circumstances of this case it self, seem to have given the complainant enough time and opportunity to see the accused persons well during the commission of the crime. The complainant is a 27 year old young gentleman and I did not observe any vacillation or vagueness in identifying the accused persons from the witness box. He identified them in a very positive and convincing manner. I did not see any confusion in the evidence given by the complainant regarding each accused person's involvement in this alleged offence. Thus I am satisfied that the prosecution has proved the identification of the first and the second accused beyond reasonable doubt.
    
22. The complainant said that two Fijian boys got in to his vehicle. He said that the first accused was sitting in the front passenger seat and the second accused was sitting in the rear seat. The complainant gave evidence regarding what the first and the second accused did during the whole episode. Therefore it is very much clear that two accused persons have participated at this alleged commission of the offence.
    
23. The complainant said that the first accused got down from the car and gave him a punch after coming to the driver's side of the taxi. Further the complainant said that the first accused have taken the ignition key of the car and the money which was in the ash tray, in his pocket and under the carpet.
    
24. He said while the first accused was taking the money the second accused was strangling him with his arm from the back seat. He said the second accused has asked for his wallet and when he said that he doesn't have one, the second accused has punched him on his head. Later when the complainant threw out some money out of the car the second accused has got out and has started collecting them. When the complainant too got out of the car from the right side he said the second accused came and punched him on his jaw again. After that the second accused has robbed a lady who came there too and fled the scene. He said the two accused persons have robbed about 240 dollars.
    
25. The complainant said he was frightened when he was robbed. He further said his mobile phone which he bought for 280 dollars was also taken by one of them but he did not see which one took it.
    
26. The evidence given by the complainant was not challenged by the two accused persons. Although the first accused has cross examined the complainant, he did not dispute any fact regarding the robbery. He only cross examined the complainant regarding what happened at the Police Station. The second accused remained silent through out the case. Above all the complainant gave very clear and precise evidence without any contradiction. It is clearly discernible that the prosecution evidence incriminates the two accused for assaulting and taking money from the complainant.
    
27. It should be noted at this juncture that the complainant's demeanour and the way in which he gave evidence was very impressive and convincing. His credibility was not shaken at any point and he narrated the whole episode in a very clear and unambiguous manner. Although the complainant's evidence was not corroborated by any witness I did not see any reason as to why this court should not believe his evidence.
    
28. I have considered the evidence presented by the prosecution with lot of caution. Although the prosecution case is based solely on uncorroborated evidence the defence was not able to challenge the credibility of the complainant's evidence nor did they were able to create any doubt regarding the prosecution case. I decide that the prosecution has discharged the burden of proof in respect of proving the charge against the first and the second accused beyond reasonable doubt. I find them guilty of the charge brought against them.
    
29. Thus I convict the first accused and the second accused for the charge of committing robbery with violence contrary to Section 293(1)(a) of the Penal Code.
    

Rangajeeva Wimalasena
Resident Magistrate

Lautoka.
19.03.2010.