IN THE MAGISTRATE’S COURT AT SUVA
CRIMINAL DIVISION

Criminal Case No. 102/2009

The State

v

Peni Gonemaituba
Ropate Raqauqau
Akuila Bula

For the State: Ms. Whippy
For the Accused: Accused 1 and 3 in person
Mr. Waqainabete for 2nd Accused only

RULING

The Accused are charged with the offence of Robbery with Violence contrary to section 293 (1) (b) of the Penal Code.

It is alleged that on the 31st day of October 2008 at Suva in the Central Division, the three Accused robbed one Rita Dewan of $243 E-pay money, $130 cash, one Apple brand laptop computer valued at $3, 000 – the total value of the items taken was $3, 373 and at the time of such robbery the Accused threatened to use personal violence to the said Rita Dewan.
All the Accused entered pleas of not guilty and the matter was fixed for trial on the 17th of October 2011.

At the trial the State called 5 witnesses, the civilian complainant and four police officers. 

The case for the State

The first witness was Rita Dewan, and at that time she was employed by Logical Systems based at Garden City, Raiwai.

 Her testimony is that on the 31st of October 2010 there was a robbery at work. She saw one masked man entering the shop. He came and held her hair and demanded that she pay money. She told him that she did not have the money as she had already done the banking. This man then seized her bag containing $243 in E pay money, $60 in cash as well as $50 taxi and $20 petty cash as well as her laptop. The man also took the company laptop.

The man had a pinch bar in his hand and he was masked with only his eyes showing. She could not identify any of the Accused as the person who attacked her that day.

The second witness was PC 4260 Mosile based at Raiwaqa police Station.

 He was on duty on the 31st of October 2008 and at 1:30 pm he received a report from the Information room regarding a robbery in progress in Garden City, Raiwai. He informed the police vehicle by RT (radio telephone) however since there was no response he then proceeded to the scene on foot. He was accompanied by WDC Salote and they took about 3 minutes to arrive at the scene. At the scene he was informed by the ladies present at the scene that there had been 5 Fijian people and they had left through the back door.

He then ran towards the mangroves behind the store and went towards the mangroves. As he followed this direction he met a few construction engineers who showed him where the offenders had run to. He did not manage to meet any of the suspects and he proceeded along Muanivatu settlement towards Fletcher Road. He then returned to the station and when he arrived at the station he saw a police fleet arriving with 4 suspects on board. All the suspects were covered in mud and there were 4 of them.

The third witness was PC 3341 Kaitoga Leakai of CID Headquarters.

He testified that on the 31st of October 2008 he was directed to assist Dog section fleet 87 in investigation of Robbery with Violence. They went to the scene and were informed that the suspects had left the scene and so they went along Grantham Road and then on to Fletcher road close to Tui Suva’s residence. They checked a short cut that was there and saw nothing there. Later they were then informed that the suspects had been apprehended by dog section fleet 37 and they were requesting assistance. They then went and accompanied the suspects to Raiwaqa police station.

The fourth witness was Cpl 4033 Sevuloni Waqa. On the 31st of October he was on patrol in dog fleet vehicle with PC Jonetani Dobui. They had gone to Muanivatu settlement and then proceeded on foot along the shortcut in the settlement where they noticed four boys in the water.

He called to them and they swam over to their side of the river and they then escorted them to the police vehicle. He asked them about the robbery at Garden City and Ropate Raqauqau told him that they had hidden the items at Muanivatu. They then left together in the police fleet vehicle to Muanivatu Settlement. At Muanivatu Settlement PC Dobui went with Ropate Raqauqau and they returned a short time later with two bags of stolen items. 

According to this officer he recalls that there were 8 laptops, 3 IPods and some chargers and other items. The handbags were also stolen and he testified that they received the initial report at 1:15pm and the items were recovered after about an hour. He confirmed that 4 youths were arrested from the river that day and he identified two of them, Peni Gonemaituba and Ropate Raqauqau. He stated that this was the first time that he had ever seen them and he ascertained their names later.

Under cross examination he confirmed that when he called the boys from the river he had pretended to call on his mobile and told the boys that there were 50 officers on the other side so they swam over to him.

He was shown his statement and he confirmed that on that day he had not actually identified any of the four youths by name in the statement that he recorded. He maintained that the youths were trying to hide in the river and they were looking guilty. He did not agree that they were just swimming or doing chores that day. He confirmed that the youths were taken to the station in their wet clothes and he further denies that they were assaulted at the station.

The last witness was PC 4582 Jonetani Dobui.

He accompanied Cpl Sevuloni Waqa and his evidence basically corroborated his testimony. They arrested the four boys and escorted them to the station. According to this officer, Ropate Raqauqau then led them to the stolen items in the mangrove swamps. They recovered 8 laptops and he does not recall the amount of IPods seized as well.

Under cross examination he maintained that there were four boys in the water, not two. He was shown his statement where he had not identified any of the Accused, yet in his evidence in chief he had specifically named him. The officer maintained his testimony and stated that he was not lying under oath.

Under cross examination he also stated the boys appeared to be hiding in the water and they were not doing chores as they claimed. He also confirmed that they did not seize any masks or weapons from the boys at the river.

That was the case for the State.

All the Accused accepted that they had a case to answer and they were put to their defence.

The 1st Accused Peni Gonemaituba exercised his right to remain silent while Ropate Raqauqau and Akuila Bale elected to give evidence under oath.

The evidence for Ropate Raqauqau

Ropate Raqauqau testified in his defence.

 He is 22 years old and is a student at FNU, school of Maritime. He resides at Raiwai Housing with his mother and 3 brothers.

On the 31st of October 2008 he was at home at 10 am watching a movie. His friend Akuila Bula came to his home and asked him to accompany him to cut firewood. He agreed to go with him as his family also used firewood to cook. Akuila went to his home and got the cane knife and they left together to search for firewood. They left at about 12 pm and they went to the mangrove swamps close to their homes a distance of about 15 metres. They went and collected firewood and they then heard dogs barking and someone calling them. They were on one side of the river and the two policemen were on the other side of the river. There was no one else in the river, just Akuila Bula and they swam across to the police officers as they thought that the officers would arrest them. When they arrived at the other side, the officers told them to go to the station. They then asked the officers what they had done and the officers told them not to worry and to go with them to the station.

They then got into the vehicle and came straight to Raiwaqa Police station – the firewood remained there. The officers were Sevuloni and Jone Dobui and when they arrived at the station there were no other officers there apart from Sevuloni and Dobui.

Under cross examination he confirmed that his home was close to the mangrove swamp and also close to Garden City. He also confirmed that they heard dogs barking and two men across the river from there. He maintained that there was no other way to cross that part of the river than by swimming. He maintained that the cane knife was used to cut firewood.

He denied that they took two hours to commit the robbery and hide the stolen goods. He also denied that they were using the mangroves as an escape route. He denied hiding any goods in the mangroves and he also denied giving up the goods and his friends and he denied leading the police to any stolen items.

That was the evidence from Ropate Raqauqau

The evidence for Akuila Bula

 Akuila Bula gave evidence in his own defence.

He is employed with Ports Fiji Ltd and he resides at Grantham Housing Raiwai. He recalls the events of 31st October 2010.

On that day he was at home and he had gone to Ropate Raqauqau’s home to ask him to accompany him to the mangroves to collect firewood. His testimony also corroborated Ropate Raqauqau’s testimony. He confirmed that Sevuloni and Dobui had called them across the other side of the river. At first he thought that they would be asked to give assistance to the police however they were then handcuffed and taken to the station.

They were taken in police vehicle, Ropate Raqauqau and himself. Apart from the two officers and Ropate Raqauqau there was no one else in the police vehicle. They arrived at the station and according to Akuila Bula they were beaten up.

Under cross examination he confirmed that he had been present when Ropate Raqauqau gave his evidence. He denied parroting his evidence and he stated that although the mangrove forest is 15 minutes from their home, it takes 40 minutes to reach the centre of the forest. It took them one hour to reach the centre of the mangroves and he agreed that there was a disparity in time and distance. He admitted that they are close friends, Ropate Raqauqau and himself, but he denied that he was trying to protect him. He denied lying in Court to protect them both.

He maintained his evidence that they were in the mangrove forest to collect firewood. They were not there to escape from the police and he maintained that there was no one else in the water apart from the two of them.

That was the Defence case.

At the close of the Defence case, counsel for the 2nd Accused Ropate Raqauqau gave a short submission on the evidence and submitted that the State had failed to make out a case against his client. No weapons or mask were seized from him nor were any fingerprints taken.

He attacked the State’s evidence and stated that no evidence has been made out against his client and he is entitled to be acquitted.

Accused 1 Peni Gonemaituba submitted that there is no evidence against him. None of the witnesses have identified him and nothing was found in his possession.

Accused 3 Akuila Bale submitted that nothing was seized from him and he was telling the truth.

The State replied in their submissions that the best evidence was the evidence in Court under oath and it was misleading for the Accused to state that no evidence was produced against them. The State’s evidence is that 4 suspects were arrested; the items were recovered and have been returned to the owner.

The State also relies on the doctrine of recent possession PW1 gave evidence that she was robbed that morning by men wearing masks and Cpl Sevuloni Waqa and PC Jonetani Dobui have given evidence that Ropate Raqauqau led them to the stolen items. Items including 8 laptops and IPods were recovered that day. The State submits that the Court is entitled to infer that the items were stolen as laptops do not suddenly appear in swamps.

The matter was then adjourned for ruling.

Analysis

The Accused are all charged with the offence of Robbery with Violence contrary to section 293 (1) (b)

Robbery

“293.-(1) Any person who-

(a) 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; or

(b) 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, and is liable to imprisonment for life, with or without corporal punishment.

(2) Any person who robs any person is guilty of a felony, and is liable to imprisonment for fourteen years, *with or without corporal punishment.

* Inserted by, Act No. 15 of 1973.

(3) Any person who assaults any person with intent to rob is guilty of a felony, and is liable to imprisonment for five years, *with or without corporal punishment.”

* Inserted by, Act No. 15 of 1973.

The State had the burden of establishing the following elements of this offence: -

(a)	That on the 31st of October 2010 – Peni Gonemaituba, Ropate Raqauqau, and Akuila Bula

(b)	Robbed Rita Dewan of $243 E-pay money, $130 cash, one Apple brand laptop computer valued at $3, 000 – to the total value of $3, 373

(c)	And immediately before such robbery the Accused threatened personal violence on Rita Dewan.

The complainant did not identify any of the Accused persons that day. Out of all the police officers who have given evidence, only Cpl Sevuloni Waqa and PC Jonetani Dobui identified the Accused as the youths who they discovered in the river. The 2nd Accused was identified as the person who led to the recovery. 

No fingerprints were taken at the scene nor did any of the Accused supply their fingerprints. No mask or weapons were seized from these Accused persons. There was no search list of the items recovered from Muanivatu Settlement.

The second Accused had led evidence that he did not lead the police to any item and that he was not hiding anything. His evidence and that of the 3rd Accused is that they were doing chores on that day.

This case relied on circumstantial evidence entirely and so the State had the duty to ensure that the different strands of the evidence that are before this Court are so firmly established that the only interpretation that can be made of the evidence is that it was the three Accused persons and no one else, that committed the robbery at Logical Systems on the 31st of October 2010.

The State also relies on the doctrine of recent possession. This was discussed in the case of The State –v- Malakai Cakau & others [2011] FJHC 249, where the High Court stated: -

“The doctrine of ' recent possession ' furnishes a legal and factual basis to found a criminal prosecution. The underlying principle in the doctrine is that a person, who is in possession of stolen goods soon after a theft or an associated offence, implicates him in the act of receiving [stolen goods] or in the act of theft itself or in associated offences (R v. Garth [1949] 1 AER 773; R v Raviraj (1986) 85 Cr App R 93).

7. The prosecution, for it to be benefitted from the application of the doctrine, must prove that: 

(i) The accused possessed the goods;

(ii) The goods possessed by the accused were the subject matter of the offence, as complained to by the complainant; and,

(iii) There is no explanation from the accused in regard to his possession of the suspected goods.

8. It is of paramount importance to note that the proof beyond a reasonable doubt of the first two elements only attracts the application of the third element of an explanation in order to establish a sustainable prosecution." 

In this case the State relies on this doctrine with respect to the goods alleged to have been recovered from Muanivatu Settlement with the assistance of Ropate Raqauqau. 

Here the State's witnesses have stated that the good recovered comprised 8 laptops and IPods as well as chargers.

 Does this form the subject matter of the charge or not?

The Charge alleges that the three Accused robbed one Rita Dewan of $243 E-pay money, $130 cash, an Apple brand laptop computer valued at $3, 000 – the total value of the items taken was $3, 373. The items recovered from Muanivatu Settlement were 8 laptops and IPods as well as chargers. 

Counsel has invited the Court to draw an inference that the items recovered that day were stolen as laptops do not suddenly appear in mangrove swamps. 

There is no doubt that such an inference can be drawn here that the items recovered that morning were stolen items. The question that remains is this, were these items part of the charge in this case? The answer to that is maybe only one laptop while the IPod and chargers are not part of the charge. The conclusion that can be reached is that not all of the items seized that day form part of the charge before the Court.

The doctrine of recent possession does not assist the State here.

The Accused have given evidence that explains why they were in the mangroves at the time in question, no weapons or masks were discovered on them or at their properties and forensic evidence such as fingerprints have not placed them at the premises in Garden City. 

The police witnesses testified that items were seized from Muanivatu Settlement but no record of Exhibits or search list was ever tendered in Court. The items were not produced in evidence or at the very least a photographic record taken to assist the Court.

This particular issue was addressed by the High Court in the above case of The State –v- Cakau (suppra) where the State relied on the doctrine of recent possession but the recovered items were not presented in Court for identification. 

The Court stated as follows: -

"The concept of possession also plays a dominant role in the doctrine of recent possession. First and foremost, the prosecution must establish its fundamentals in that it must prove the conscious possession of the relevant articles. That could be achieved only by establishing clearly that what was presented in court was, in fact, what was recovered from the accused by means of a chain of custody of productions.

The chain of custody of productions was not even thought of in this case. The situation is more exacerbated by the total absence of evidence  to identify the jewellery as possessed by the 1st and the 2nd accused separately by the two police witnesses, who claimed to have recovered such jewellery from the possession of the two accused."

The Accused have therefore raised reasonable doubts in the Court's mind as to their guilt as the State has not discharged its burden of establishing all the elements of this offence beyond a reasonable doubt.

The Accused are therefore all acquitted of the charge against them.

28 days to appeal

U. Ratuvili
A/Chief Magistrate
16th December 2011