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State v Filipe [2011] FJMC 172; Criminal Case 1809.2003 (24 October 2011)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 1809/2003

STATE

SAKARAIA FILIPE

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

JUDGMENT

The accused is charged with five other co accused persons with the four counts of offence of "Robbery with violence" contrary to section 293(1) (b) of the Penal code act 17. The particulars of the said four counts of robbery with violence are;

First Count:

Robbery with violence: contrary to section 293(1)(b) of the Penal Code, Act. 17.

Particulars of Offence

Setareki Pauliasi, Mataiciewa, Sakaraia Filipe, Semi Raiqeu, Aporosa Vulaca and Solomone Toa on the 14th day of February, 2003 at Suva in the Central Division, robbed Mahendra Hargovind s/o Hargovind of $500.00 cash and a mobile phone valued at $329.00 to the total valued of $829.00 and immediately before such robbery did use personal violence to the said Mahendrah Hargovind s/o Hargovind.

Second Count:

Robbery with violence: contrary to section 293(1)(b) of the Penal Code, Act. 17.

Particulars of Offence

Setareki Pauliasi, Mataiciewa, Sakaraia Filipe, Semi Raiqeu, Aporosa Vulaca and Solomone Toa on the 14th day of February, 2003 at Suva in the Central Division, robbed Joyti Bala d/o Magan Lal of a gold chain valued at $800.00 and a gold bracelet valued at $350.00 to the total value of $1,150.00 and immediately before such robbery did use personal violence to the said Joyti Bala d/o Magan Lal.

Third Count:

Robbery with violence: contrary to section 293(1)(b) of the Penal Code, Act. 17.

Particulars of Offence

Setareki Pauliasi, Mataiciewa, Sakaraia Filipe, Semi Raiqeu, Aporosa Vulaca and Solomone Toa on the 14th day of February, 2003 at Suva in the Central Division, robbed Felix Gidorees of a mobile valued at $399.00 and immediately before such robbery did use personal violence to the said Felix Gidorees.

Fourth Count:

Robbery with violence: contrary to section 293(1)(b) of the Penal Code, Act. 17.

Particulars of Offence

Setareki Pauliasi, Mataiciewa, Sakaraia Filipe, Semi Raiqeu, Aporosa Vulaca and Solomone Toa on the 14th day of February, 2003 at Suva in the Central Division, robbed Mahendra Hargovind s/o Hargovind and stole therein, four bottle whisky valued $112.00 and wrist watch valued at $70.00 to the total value of $182.00 and a wrist watch valued at $70.00 the property of Mahendra Hargovind s/o Hargovind.

Accused pleaded not guilty for these four counts of offence of Robbery with Violence, Wherefore, the case was set down for hearing. At the commencement of the hearing the accused person informed that he challenges the admissibility of his confessionary statement in the caution interview made by him on 20th day of March 2003. Accordingly a voir dire hearing was conducted and at the conclusion of the same I held that that the confessionary statement made in caution interview by the accused person is admissible as part of the prosecution evidence in this trial.

The section 293(1) (b) of the Penal Code reads as "Any person who robs any person and attime of or immediately before or immediately after such robh 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
1. The accused,
2. In joint enterprise with his accomplices,
3. Robbed the complainants,
4. 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). Accordingly, in order to prove that accused rob the complainant, the prosecution has to proof beyond reasonable doubts that,
1. The accused, without the consent of the owner,
2. TakesTakes / carries away the goods belongs to the Complainants,
3. With intention of permanently depriving the owner thereof, at the time of such taking.
Having discussed the main elements of the offence of "Robbery with Violence" I now turn to summarize the evidence presented by the prosecution and the defence.
The summery of facts in this case is that, the accused was alleged that he together with five accomplices forcibly entered in to the business compound of Mr. Mahendra Hargovind and forced the employees of Mr. Hargovind to lie down on the floor facing their face down. Thereafter they proceeded to steal therein by using violence on Mr. Hargovind and his wife.
The first prosecution's witness Mr. Mahendra Hargovind, who is the complainant and owner of the Dominion Electronic Limited workshop at 28 Rewa Street, Suva stated in his evidence that he was at work with two of his employees namely Navin and Faizal when one of the co-accused persons brought a video deck and requested that it be repaired on 14th day of February 2003. One of his employees, Navin referred the Matter to him and upon checking the deck he told the Fijian boy that the deck could not be repaired as it was rusty. He further told the court that when this Fijian boy walked out soon afterwards the accused and others forced their way into the workshop. He testified that the accused and others forced his two employees and Felix who was at the workshop onto the floor. The Accused and another then dragged him into his office. One of them was wearing a mask and holding a cane knife. The one holding the knife threatened him to show them as to where the money was kept. Mahendra identified the accused as the person who forced open a drawer in his office with a screw driver and took $500.00 in cash. He also identified the accused as the person who took his mobile phone worth $329.00 and removed the house keys from his wife, Jyoti and also his car keys. He further stated that the accused tried to start his car with the car keys he took from him.
The second prosecution witness Mr. Navin Nitesh Narayan who is one of the employees of Mr. Hargovind. Mr. Navin stated in his evidence that he was working at Dominion Electronic Limited workshop at 28 Rewa Street with Faizal and Mahendra Hargovind when a Fijian boy walked in with a VCR deck requesting that it be repaired on 14th day of February 2003. He testified that he referred it to Mr. Hargovind. He further stated that soon after the said Fijian boy walked out from the shop, a group of Fijian boys stormed in to the shop and forced them to lie down on the floor. The third prosecution witness Mr. Faizal Adrian who is the other employee of Mr. Hargovind reaffirmed the evidence of Mr. Navin. Mr. Felix Giborees who is the fourth prosecution witness relates to the court as to how he was manhandled by the co-accused persons and made to lie on the floor. He also stated that prior to him being forced to lie on the floor, one of the co-accused removed his mobile phone which is worth $399.00.
The fifth prosecution witness is Mrs. Joythi Bala who is the wife of Mr. Hargovind. She stated in her evidence that on 14th February 2003, whilst she was upstairs at their house she heard noises coming from their workshop downstairs. Jyoti said that she walked down the steps to investigate and saw a Fijian boy standing at the door of the workshop. As she was about to return upstairs, the Fijian boy grabbed her from behind. She was then taken into her husband Mahendra's office and ordered to sit on a chair. One of the co-accused removed her gold chain worth $800.00 and a gold bracelet worth $350.00 she further said that whilst she was in her husband's office, the accused removed the house keys from her and told her that they were going upstairs to clean the house.
The sixth and seventh prosecution witnesses are DS Lemaki Mawalu and Malakai Seru who are the interviewing officer and charging officer respectively.
The Defence took the defence of alibi. The accused stated in his evidence that he was at home with his brother Jack Sotia and they were cleaning up. At about 2.30pm, Sotia and he attended at a volleyball tournament. The brother of the accused Mr. Sotia also gave evidence for the defence affirming the position of the accused person.
I now proceed to examine the submissions tendered by the prosecution and the defence.
Upon considering evidence adduced from the prosecution witnesses the learned counsel for the prosecution stated that the prosecution has proved all the essential elements of these four counts of Robbery of Violence.
The accused vehemently contended in his submission that the prosecution failed to prove the charges beyond reasonable doubt. He firmly argued that he was not involved in this allege crime.
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 e accused used at any stage to prove his innocence or to prove anything else.
The burden of proof of the accused's guilty beyo 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 defence alleges that the accused was not involved in this alleged crime and was not at scene of the incident during the time of this alleged crime.
The principles pertaining to the identification of the accused person has succinctly 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.
1. How long did the witness have the accused under observation?
2. At what distance?
3. In what light?
4. Was the observation impeded in any way as for example by passing traffic or a press of people?
5. Had the witness ever seen the accused before?
6. How often?
7. If only occasionally, had he any special reason for remembering the accused?
8. How long elapsed between the original observation and the subsequent identification to the police?
9. 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, he has not known the accused prior to this allege incident. It was the first time that both the complainant and his wife saw the accused in the midst of the disturbing environment of the time of this alleged crime. In view of the evidence presented from the prosecution that no proper identification parade was conducted by the police in order to identify the accused when he was taken in to custody in relation to this crime. Hence the three prosecution witnesses Mr. Hargovind, Mr. Filix Giborees and Mrs. Bala who identified the accused person during the hearing had no subsequent opportunity to identify the accused person before they make their dock identification after nearly seven years of this alleged incident.
It was held in Edwards v The Queen (2006) UKPC 29) that the "dock identification of an accused person for the first time during the course of the trial itself has been considered an unfair and unsatisfactory procedure". The first visual identification of the accused person by the witness during the course of the trial has been considered as problematic and unreliable in the domain of common law jurisdiction. In view of this position of the common law in relation to the dock identification of an accused person for the first time by the witness, the court has to treat such evidence of identification cautiously.
Bearing in mind the legal precedence in relation to the dock identification of the accused person for the first time during the course of trial by the witness, I am of the view that the absence of satisfactory explanation from the prosecution for not conducting a proper identification parade has raised a reasonable doubt on the evidence of identification of the accused person. The witnesses have been seeing the accused person since this case was instituted in seven years ago. The failure of conduct a proper identification parade before the accused person was charged has denied the witnesses to identify the accused person subsequent to this crime and exposed the accused person to the witnesses in open court. It should be considered the possibility of mistaken identification of the accused person as one of the perpetrators of this crime. Accordingly, I am inclined to hold that it is not safe to accept the evidence of dock identification of the accused person presented by the prosecution.
I now draw my attention to the confessionary statement made by the accused in his caution interview dated 20th day of March 2003. The prosecution heavily relied on the confessionary statement of the accused person during the course of the hearing. It is not the duty of the court at a voir dire to determine the truthfulness of the confession, but simply whether it should be admitted as prosecution evidence. The conflicting nature on this issue was cleared in Wong Kam-ming v the Queen ( 1980) Ac 247, where Lord Edmund held " if the Defendant denies the truth of the confession or some self incriminating admission contain in it, the question whether his denial is itself true or false cannot be ascertained until after the voir dire is over and the defendant's guilt or innocence has been determined by the jury".
In line with the laws relating to the truthfulness of the confession in the caution interview, I now endeavor to examine the truthfulness of the confessionary statement of the accused person presented by the prosecution. The statement of the accused person in his caution interview has brought several contradictions with the evidence of other prosecution witness. Mr. Hargovind and his two employees stated that they returned the video deck brought by one of the co- accused person before the accused together with his other accomplices forced into the shop. The accused in his statement stated that the video deck was not return at that moment and it was kept for repair. Moreover the accused admitted in his confessionary statement that two of his accomplices tied up Felix's hands and legs which was not collaborated by Felix himself. These contradictions go into the roots of the main allegation and they have created a reasonable doubt on the truthfulness of the confessionary statement of the accused person in his caution interview. Having considered these reasons set out above, I disregard the statement made by the accused person in his caution interview.
In view of the reasons set out in aforesaid paragraphs, I hold that the prosecution failed to prove beyond reasonable doubt that the accused together with other accomplices entered in to the business place of Mr. Hargovid and robbed therein.
Upon considering foregoing reason, I hold the accused is not guilty for the four counts of offence of Robbery with Violence contrary to section 293(1) (b) of the Penal Code Act 17 and acquit from the same.
28 days to appeal,

On this 24th day of October 2011.

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

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