IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Criminal Case No HAC: - 053/2010

STATE

V

USAIA KOROI

For Prosecution: - Mr. Pillay,
Accused person: - in person.

JUDGMENT

1.	The accused person is charged with one count of Robbery with Violence contrary to section 293 (1) (b) of the Penal Code Act. The particulars of the offence are ;

USAIA KOROI with others on the 25th day of February, 2009 at Nabua in the Central Division robbed SHIRI CHAND of 1 Nokia black flip mobile phone valued $900.00, 1 pair size 10 black puma canvas valued $135.00, 1x 22ct gold bracelet valued $800.00, 1x 22ct gold handband valued $650.00, 3x 22ct gold bangles valued $600.00, 1x 22ct gold 3 piece ring valued $185.00,1x 22ct wedding ring $80.00, 3 off white ladies handbag valued $40.00, I pure leather purse valued $100.00, 1x 750ml Williams green bottle of whiskey valued $58.00, cash of $100.00 all to the total value of $3648.00 and immediately before such robbery did use personal violence on the said SHIRI CHAND. 

2.	The accused pleaded not guilty for the count, wherefore, the case was set down for hearing. The prosecution called four witnesses for the prosecution. Mr. Satish Chand who identified the accused person as one of the seven youths who came out from the house of Mr. Shiri Chand on the night of 25th of February 2009. Mr. Illiesa Raiqisa who is the second prosecution witness was with Mr. Satish Chand and also identified the accused person as one of the seven boys who came out from the house of Mr. Shiri Chand. DC 3683 Solomoni is the arresting officer and the interviewing officer of the accused person. Mrs. Chand is the wife of Mr. Shiri Chand and was with him at the house when this alleged crime took place on the night of 25th of February 2009. The prosecution did not call Mr. Shiri Chand as he has deceased. 

3.	Subsequent to the Prosecution witnesses, the accused did not give evidence on oaths; neither did he call any defence witnesses. At the conclusion of the hearing I invited the learned prosecutor and the accused person to file their closing written submissions which they filed accordingly. 

4.	I now draw my attention to briefly summarize the prosecution case. The prosecution alleged that the accused together with another six accomplices forcibly entered into the house of the Mr. Shiri Chand and assaulted him with a knife and threatened Mrs. Chand with a knife and stole properties and cash worth of $ 3,648. 

5.	The first prosecution witness Mr. Satish Chand specifically identified the accused person when he together with his other six accomplices came out from the house of Mr. Shiri Chand. Mr. Satish Chand stated in his evidence that he was sleeping in his house when he heard his neighbor’s dogs braking which awoke him on the 25th of February 2009 at around 1.00a.m. Following this he heard a lady scream. He then switched on the lights to their porch and went outside where he was met by his neighbor Mr. Illiesa who was standing outside his house and looking in the direction of Mr. Shiri Chand’s house. He stated that they stood and watched Mr. Chand’s house for about three minutes following which he screamed “butako, butako” meaning “robbery, robbery “. He was joined in the shouting by his neighbor, Mr. Illiesa. He then noticed youths running out of Mr. Chand’s house carrying bags and things in their hands. He recognized one of the youths as ‘Usa’, because he was not masked and that he wore a black t-shirt. He says he knows the Accused well as the same person had robbed his wife once in 2008. Moreover he stated that he know the accused for about 14 to 15 years and the father of accused is also a friend of Mr. Satish Chand. 

6.	Mr. Illiesa stated that he heard his neighbor’s wife screamed. Upon hearing her scream he came out of his house to check what the matter was. He stated that he instinctively knew that they were being robbed. He came out of his house and stood beside his garden watching the house of the complainant. He says that he and another neighbor (Mr. Satish Chand) shouted and upon hearing their shout the youths that were in the house fled the scene. He further stated that while they were running away the youths threw beer bottles at him and that from the seven boys who ran away from the scene he identified two. One of the boys he identified was ‘Usa’, the Accused. He stated that the Accused was wearing a black round neck t-shit and his head covered with a white cloth. The accused person’s face was not covered and that he managed to see his face. He added that the lights were on and that he was 8 meters away when he saw the accused. He said that he had known the accused for 6 years and he was from the same neighborhood.

7.	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”. 

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

i.	The accused, 

ii.	In joint enterprise with his accomplices,

iii.	Robbed the complainants, 

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

9.	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). Accordingly, in order to prove that accused rob the complainant, the prosecution has to proof beyond reasonable doubts that,

i.	The accused, without the consent of the owner, 

ii.	Fraudulently/ without a claim of right made in good faith,

iii.	Takes / carries away the goods belongs to the Complainants,

iv.	 With intention of permanently depriving the owner thereof, at the time of such taking.

10.	Upon considering the main elements of the offence of “Robbery with Violence”, I now proceed to examine the submissions tendered by the prosecution and the defence. The learned counsel for the prosecution tendered comprehensive and detailed written submission. The learned counsel extensively discussed the main elements of the offence of Robbery with violence and also the principle of “joint enterprise”. Having discussed the main elements of the offence and the principle of join enterprise, the learned counsel analysised the evidence presented by the prosecution with the relevant principles of law and the main elements of the offence. At the conclusion, the learned counsel submitted that the prosecution has proved its case beyond reasonable doubt that the accused has robbed the complainant house together with his six other accomplices in joint enterprise. 

11.	The accused person in his brief written submission contended the evidence of Mr. Satish Chand. He argued the evidence of identification by Mr. Satish Chand is not reliable as his identification based on from an earlier incident of robbery. 

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

13.	The section 13 (1) of the Crime Decree No 44 of 2009, stipulates that an offence consist with physical element and fault element and in pursuant of section 14 of the Crime Decree, in order to a person to be found guilty of committing an offence the following must be proved – 

(a) The existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;

(b) In respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.

14.	Moreover section 18 has defined the fault element of the offence as “A fault element for a particular physical element may be intention, knowledge, recklessness or negligence”. Section 19 has defined the intention in three spheres, as 

i.	 A person has intention with respect to conduct if he or she means to engage in that conduct. 

ii.	A person has intention with respect to a circumstance if he or she believes that it exists or will exist. 

iii.	 A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events”. 

15.	Section 19 of the Crime Decree has defined the knowledge as “A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events”. 

16.	Accordingly, the prosecution has to prove beyond reasonable doubt both the physical and fault elements of the count. 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).

17.	Lord Goddard CJ in R v Summers (36, Cr. App R. 14 at 15 CCA) held that “Jury before they convict, they must be satisfied so that they are sure of the guilt of the accused”. furthermore, it was held in “ R v Bentley ( 2001) 1 Cr App R 21” that on reviewing all the evidence, if they were unsure or left in any reasonable doubt as to the accused’s guilt, that doubt must be resolved in the accused’s favour”. 

18.	Upon careful perusal of the evidence presented by the prosecution, the submissions of the prosecution and the defence and the laws relating to the standard of proof, I am inclined to infer that this instance case against the accuse person depends mainly on the correctness of identification of the accused person. The accused only challenged the correctness of the evidence of identification when he cross examined the two main witnesses of the prosecution Mr. Satish Chand and Mr. Illiesa both of them identified and recognized the accused person when he came out from the house of Mr. Shiri Chand with his other six accomplices. 

19.	The main considerations pertaining to the identification of the accused person has widely discussed in the celebrated case of R v Turnbull (1977) Q.B.224, where it was held that “the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. 

i.	How long did the witness have the accused under observation?

ii.	At what distance?

iii.	In what light?

iv.	Was the observation impeded in any way as for example by passing traffic or a press of people?

v.	Had the witness ever seen the accused before?

vi.	How often?

vii.	If only occasionally, had he any special reason for remembering the accused?

viii.	How long elapsed between the original observation and the subsequent identification to the police?

ix.	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?

20.	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
 
21.	In view of the evidence given by Mr. Satish Chand, the accused is known to him over a period of 14 to 15 years. His father is a friend of Mr. Satish Chand. He had a special reason to remember the accused because the accused had robbed his wife a year ago. According to Mr. Satish Chand, the seven perpetrators came out one by one from the house of Mr. Shiri Chand. He was looking at the house of Mr. Shiri Chand from his porch of the house which is 7 to 8 meters away from the victim’s house. He saw six out of seven persons were masked and only the accused was not masked. Mr. Satish Chand precisely stated that he saw these people from the distance of about 10 meters away from them. Though it was rainy drizzling night, the area was well lit from the lights of his house, of the victim’s house and Mr. Illiesa’s too. Moreover he stated that he saw that those persons were carrying bags and something like plastics. 

22.	According to the evidence of Mr. Illiesa, he walked close to the house of Mr. Shiri when he was awoken up by the scream of Mrs. Chand and closely observed the this alleged robbery. He was standing beside his garden and close to his porch. The light of the porch has lit the nearby foot path too. Seven persons came out from the house of Mr. Shiri and all of them were masked apart from the accused, who only covered his head. According to Mr. Illiesa, he had a good look at the accused. He knew the accused for over a period of 6 years and recognized him as Usa. Mrs. Chand stated in his evidence that she did not identified any of the robbers inside the house. 

23.	In view of the evidence of Mr. Satish Chand and Mr. Illiesa, I am of the view that the identification of the accused person by these two witnesses on that night of 25th of February 2009 is amount to recognition of a known person. At this point, I am mindful of the fact that it is quite possible for an honest witness to make a mistaken identification. The accused is known to Mr. Satish Chand for about 14 to 15 years and his father is a friend of Mr. Chand too. Mr. Chand had a special reason to remember the accused apart from his long acquaintance of the accused. The accused had robbed the wife of Mr. Chand a year ago. In respect of Mr. Illiesa, the accused is known to him for a period of six years. 

24.	Accused was not masked though his all other accomplices were masked. That was the reason of his identification by the two prosecution witnesses. Mr. Chand and Mr. Illiesa were about 10 meters away from the accused and his accomplices when they came out from the house of Mr. Shiri Chand and ran along the foot path. The area was adequately lit from the lights came from the nearby houses. 

25.	Having considered the evidence of the identification of Mr. Satish Chand and Mr. illiesa, I am of the view that these positive and collaborative evidences of identification are persistence. Wherefore, I am inclined to hold that it is safe to accept the evidence of identification of the accused person presented by the prosecution. 

26.	No evidence presented by the prosecution to explain the role played by the accused person in this alleged crime. The learned counsel of the prosecution submitted in his written submission that the prosecution is relying on the principle of joint enterprise in order to prove the guilt of the accused person. Accordingly, I now turn to the principle of joint enterprise. Section 46 of the Crime Decree deals with the principle of Joint enterprise where it stipulates that “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”.

27.	The law of joint enterprise is clearly discussed by Her Ladyship Justice Shameem in “State v Nute (2008) FJHC 325;HAC139.2007 (26 November 2008), where Justice Shameem held that " the law is that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and while committing that unlawful act, another offence is committed which is a probable consequence of that first purpose, then each of the persons involved is guilty of the final offence".  

28.	In line with the section 46 of the Crimes Decree and the judicial precedents, the prosecution has to prove in this instance case, that 

i.	The two accused persons had formed a common intention to assault, and rob the victim in conjunction with one another, 

ii.	They prosecuted such purpose, and 

iii.	This alleged offence of "aggravate robbery" was the probable consequence of such purpose. 

29.	The prosecution only established that the accused was among these seven perpetrators who forcibly entered into the house of Mr. Shiri Chand and assaulted Mr & Mrs. Chand. Moreover the evidence of Mr. Satish Chand and Mr. Illiesa affirmed that the six accomplices of the accused person were carrying bags and plastics when they came out from the house of the Mr. Chand and ran along the foot path. 

30.	The evidence of Mrs. Chand ( Motafaga Mamau) precisely described the event took place inside the house when these seven robbers forced into their house. She stated in her evidence that she was pushed onto the settee of their house where two of the youths put a knife to her neck and removed her wedding ring. They threatened to cut her hand if she did not remove her wedding ring. The men assaulted her husband and struck him with a cane knife. She was also threatened that she would be killed if she screamed. She stated that the youths than ransacked her house and left. Several items were stolen from her house including mobile phone, cash, alcohol, handbags and her gold jewelry. In addition to this, the prosecution tendered the medical report of Mr. Shiri Chand as prosecution exhibit for my perusal and consideration. 

31.	In view of these evidences, the prosecution successfully established that the accused was among the seven perpetrators and was inside the house of Mr. Chand when this alleged robbery took place. 

32.	These evidence sufficiently allow me to form an inference that the accused and his six other alleged accomplices had formed a common intention to forcibly enter into the house of Mr. Chand, assault, and rob the victims in conjunction with one another and they prosecuted such purpose. This alleged offence of "robbery with violence" is the probable consequence of such purpose. 

33.	It is an established principle in common law that the inferred presumption of facts could be taken for granted until the contrary is proven by opposite party. It is noteworthy to examine what kind of explanation should be offered by the accused to rebut the presumption against him. Lord Reading CJ in Abramovitch (1914) 84 L.J.K.B 397) held that "if an explanation has been given by the accused, then it is for the jury to say whether on the whole of the evidence they are satisfied that the accused is guilty. If the jury think that the explanation given may reasonably be true, although they are not convinced that it is true, the prisoner is entitle to be acquitted, inasmuch as the crown would then have failed to discharge the burden impose upon it by our law of satisfying the jury beyond reasonable doubt of the guilt of the accused. The onus of proof is never shifted in these cases; it always remains on the prosecution". 

34.	Bearing in mind the principle enunciated by Lord Reading CJ in Abramovitch (Supra) the accused failed to provide any reasonable explanation to rebut the inference of joint enterprise. 

35.	In view of these reasons set out in aforesaid paragraphs, I hold that the prosecution has proved beyond reasonable doubt that the accused with other robbed SHIRI CHAND of 1 Nokia black flip mobile phone valued $900.00, 1 pair size 10 black puma canvas valued $135.00, 1x 22ct gold bracelet valued $800.00, 1x 22ct gold hand band valued $650.00, 3x 22ct gold bangles valued $600.00, 1x 22ct gold 3 piece ring valued $185.00,1x 22ct wedding ring $80.00, 3 off white ladies handbag valued $40.00, I pure leather purse valued $100.00, 1x 750ml Williams green bottle of whiskey valued $58.00, cash of $100.00 all to the total value of $3648.00 and immediately before such robbery did use personal violence on the said SHIRI CHAND. 

36.	Accordingly, I hold that the accused person is guilty for offence of Robbery with Violence contrary to section 293 (1) (b) of the Penal Code Act and convict for the same.

On this 19th day of December 2011.

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