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State v Bulivou [2011] FJMC 27; Criminal Case 1699 of 2008 (14 March 2011)

IN THE MAGISTRATE’S COURT OF NASINU

CRIMINAL CASE NO.1699/2008

STATE

v

ANTONIO BULIVOU

Sergeant Volavola for the state
The accused present and appeared in person

Judgement

[1] The accused are charged with the offence of Robbery with Violence. The charge read as follows;

CHARGE:

Statement of Offence [a]

First Count

[2] ROBBERY WITH VIOLENCE – Contrary to Section 293 of the Penal Code Act 17

Particulars of Offence [b]

ANTONIO BULIVOU and others on the 25th day of December, 2008 at Nasinu in the Central Division robbed VIJENDRA PRASAD s/o RUP RAM of a wallet valued at $2.99, driving licence valued at $17.00, imitation jewelries valued at $100.00, a nokia mobile phone valued at $29.00, a wrist watch valued at $55.00, DVD player valued at $99.00, gold necklace valued at $199.00, gold chain valued at $99.00 and a gold bangle valued at $20.00 to the total value of $421.00 and before the time of such robbery did personal violence to the said VIJENDRA PRASAD s/o RUP RAM.

Statement of Offence [a]

Second Count

[3] DAMAGING PROPERTY – Contrary to Section 324 of the Penal Code Act 17

Particulars of Offence [b]

ANTONIO BULIVOU and others on the 25th day of December 2008 at Nasinu in the Central Division, willfully and unlawfully damaged the windscreen of the vehicle registration number DF 050 valued at $1,800.00 the property of the VIJENDRA PRASAD s/o RUP RAM.

Summary of evidence

[4] At the trial, prosecution called following witnesses.

PW 1-Vijendra Prasad; PW1 said about 2 years, back he lived in Moala settlement, Nadera. On 25th December 2008 at about 230am he was sleeping at the house. He did not have the electricity to the house, they used generator. Power off was at about 1am in this morning. Suddenly he heard his dog was barking. He was on the bed with his wife and same room on the floor his daughter was sleeping. First time when dog barked, he lifted the curtain no one was inside his compound. Then, again his dog barked. Then, he saw that group of boys were in his compound. He shouted “Help me... Help me”, then group of people broke his front door and went into the house. He was standing on the bed and trying to save his wife and kids. He said there was mobile phone and with that he managed to identify the accused. He is a tall guy, did not have any mask on his face. He further said some of them had masks on their faces; He said the accused entered into the bed room and held his hand. He asked the knife first. He said for protection, normally Indians keep knife under the pillow. He said at that time he saw the accused’s face about 2 minutes by mobile torch. Then, tall guy pushed him into the sitting room and asked money and the jewelleries. After that these people started punching the PW1. He said that he cannot do much; robbers steal imitation jewelleries, his wallet, mobile phone and Video Deck. After assaulting him robbers assaulted his wife and kids. Then they ran away. Before they go they damaged the glass of his car. Then he called to the police and police came within 15 minutes. Then police recorded his statement and later he was admitted to the hospital. The witness identified the Medical Report which was issued to him. He said on 26th Morning He appeared in the identification parade which was held in police barracks. He said, He was in pain and two police officers assisted him to walk around the identification parade. Then he positively identified the accused as tall guy which he was robbed and punched. The witness also identified the accused in the dock.

[5] In cross examination witness said that accused was not wearing a mask therefore he could identify the accused. He said police took two or three statement from him. The accused suggested that he was shown to the witness four times before the identification parade which witness denied it. The accused disputed the identification.

[6] The Court put this question to the witness “Have you ever seen this accused before the incident? Answer No.”

[7] PW 2-Ralina Devi; She said she is married to the PW1 and got two girls from that marriage. She said on 25th December 2008 at about 2.30am she was at home with husband and two kids. Then robbery took place. The witness corroborated the PW1’s evidence. She said both of us (Husband) were standing on the bed and were scared. They managed to indentify the accused by mobile phone torch light. She said her husband was beaten and house was ransacked. The robbers took her wrist watch, mobile, ring, chain and video deck. Her husband was badly injured and was in pain. She said in the identification parade she identified the accused. Guy was Fijian and she pointed out the accused to the police.

[8] In cross examination, she said that she saw the accused clearly; she cannot remember how many statements were given to the police by her. She said Inspector Naidu did not give any counselling to them. She said other assailant wore the mask only the accused did not wear a mask.

[9] PW3- Rajesh Sunil Naidu (Ex-police Officer- Assistant Superintendant of Police); He said he severed 24 years for Police Service. He said he could recall on 25th December 2008 early morning at about 2.30 am. He was on duty at Valelevu Police Station. Then Robbery was reported at Moala Settlement, Nadera; a group of people entered into a dwelling house and robbed the valuables. He said first his junior officers were sent to the scene, soon after he went to the scene. While his junior officers were there he spoke to the complainant. Witness said while he was going to the scene, he noticed that the accused was going towards the group of other people with Fiji Bitter bottle who were drinking near by the vicinity. They were drinking 300 metres away from the scene. No one is around the scene. The complainant described the description of the first person who entered the house it was mostly similar to the accused description. So, he arrested the group upon suspicion and since owner of the house badly injured, he was hospitalised. There were 14 people of the group. They were fully drunk and he asked one of officer to question them. He was trying to sort out the things and where to keep these accuseds. While these people were in the police station victims also arrived to the police. So, he directed the victim be admitted to the hospital and while victim was in the driveway he pointed out to the accused and identified that this person was the one who entered to his house first. The arrested persons were questioned separately and no production was recovered. Then the accused was interviewed and requested proper identification parade to be conducted. Therefore he conducted proper identification parade.

[10] In cross examination the witness said that he saw the accused at Soqe place, Nadera. It was 200 metres away from the vicinity he added. The accused was identified in front of the police station by the victims informally. since there were several people were taken into custody at that morning and they were to be sent to other police station with escorting officers. The accused suggested he did not commit any offence. Witness replied soon after the incident the witnesses indentified the accused therefore this charge levelled against him. Witness admitted there are many tall guys living in Nadera. He said that the accused was charged with proper evidence. The accused suggested for this offence there were 7 others have been sentenced. Witness denied that suggestion. He further adduced that he did not warn P.C. Rupin. Though witnesses identified informally, the accused requested the identification parade to be held. Thus, he arranged the Identification Parade.

[11] PW-4 Sani Suren (A.S.P); He said on 26th December 2008 he was called to hold an Identification Parade (IP) by Inspector Naidu. Then he held the Identification Parade and illustrated how he held the Parade. There were nine people participated and the accused did not object for people or mode of holding Parade. PW1 was called and purpose of the IP was explained to him. Then, PW1 straight away without hesitation identified the accused. Then accused told to the witness “Brother it was not me”. Then PW2 was called and she identified the accused without hesitation. Then he dismissed the IP thanking the participant and informed the outcome of IP to Inspector Naidu.

[12] In cross examination he said that the accused did not complain to him that he was shown to the witnesses prior to the IP. He said he carefully considered that other nine men were much more similar to the accused.

[13] PW5- Detective Sergeant Ajeet Singh; He said on 26th December 2008, he was on duty after 3pm. He interviewed the accused. He identified the interview notes and it was marked as EX-1.

[14] In cross examination witness admitted that the accused denied the story and claimed Alibi. Then he checked the Alibi of the accused. He questioned the accused’s witnesses and said the accused’s “Alibi were intact”. Then he informed the outcome to the Crime officer for further directives. The crime officer decided to charge the accused and he said that he was not the charging officer.

[15] PW6-Nilesh Gounder Police Constable 3722; On 26th December 2008, at about 6pm, under the instruction of the crime officer, he said that he formally charged the accused for offence of Robbery with Violence. Through this witness, the prosecution marked the PW1’s Medical Report as EX-2 and Charge Statement as EX-3.

[16] After that prosecution closed their case. Since there was a case to answer the accused was given his rights to call the defence. Then the accused gave sworn evidence and called several witnesses before this court.

[17] DW1- Antonio Bulivou (the accused); He said on 25th December 2008, Christmas Eve, he went to friend’s place in Kinoya to have a grog party. Then they started drinking KAVA from 7pm to 2.30am. He said at about 2.30am he was really dope. Then he proceeded to friends place in Kaudomu Road, Kinoya. He took shortcut without going by main road. Before joined to the friend he met another group and they invited him and he had three KAVA bowls from them. Then he started vomiting, because he had too much grog. So, they excuse the accused and gave two bottles of Fiji bitter and one CD which belongs to the accused. Then he reached to the home and left CD and came out with one bottle of beer. His intention to joined his brother at Nadera and he got a Taxi and went his brother’s place. They were drinking KAVA at the porch. Since he was too much of dope he did not want to join them so he came back by same Taxi. Then he got off opposite side to the Taxi stand. There was a barrack near to the Taxi stand. Behind that barrack 10 boys were drinking and they called him to join them. He joined and had only one glass, and then police came and arrested the gang. He thought because of drinking in a public place they were arrested. He said he spent 123 hours in police custody then he was charged for this offence. The accused said the reason for his arrest is his bitter past; known as a criminal. He said the real culprits are serving and his last criminal activity in 2005 and has reformed. Now he is married and having 2 kids.

[18] The accused was cross examined at length. In the cross examination he said the person who were drinking on that day are relations of him. He said his is supported by his mother and sister. He said though he could phoned to his brother he choose to visit him that morning. Prosecution suggested that the accused is giving untruth evidence which he denied. Further he said that he is not foolish and he knew what was the alibi is. Prosecution suggested the accused past criminal knowledge has made up an alibi in this case. The accused said prosecution has right to form an opinion on that issue, but he did not commit the crime.

[19] DW2-Vasea Saini Serukalan; This witness said on that particular date, the accused was with them and had KAVA 7pm to 2am. She is not related to the accused and her son is a student of Ramakamalan Primary school. Which is the accused’s mother teacher of that school. So they know each other. She has no reason to tell untruth to the court.

[20] In cross examination she said that she cannot recall the exact time but it was 2 to 2.30am. She said though she is living 35 years in Nadera, she does not know where the Maola settlement is situated. After two, three days she came to know that the accused ,Mr. Antonio is in police custody for robbery. She said that she did not know that the accused participate a robbery.

[21] DW3-Rupeni Ravavu; This witness reiterated the DW3’s story. This witness is a police officer and he confirmed that the accused was with them at particular time. The accused left grog party after 2.30 am. After, somewhere in January 2009, the Inspector Naidu came and asked whether he knows about the grog party. The he was asked keep away from this case. Witness was threatened if he involved, he will be sacked from police service. He further said that while this threat was made to him, he was on Kinoya police station. The Inspector Naidu came from Valelevu police station to Kinoya to treat him. He said he has no reason to tell untruth to the court.

[22] In cross examination the witness admitted that he has not taken permission to give evidence from the Commissioner of Police for this case. He said he is sure that the accused left the grog party after 2.30 am because he had the watch and accused said that he had enough. He further said the accused is known to him for last 10 years. Inspector Naidu was his immediate supervisor and warned not to involve with this case. He said he knows the Moala Settlement and by 2 minutes one can go to that place by a car.

[23] DW4- Selau Tikoisuva; He said that he is a servicing prisoner and convicted for robbery case by Nasinu Magistrates court. He claimed that he was convicted for this offence. He said he was serving 2 years 2 months up todate and total sentence is 4 years. This convicted prisoner said that with other 8 people he committed this crime. All were arrested and were serving for this crime. Then he elaborated how they did this crime. Amazingly, it was in line with PW1’s evidence. Since he is a serving prisoner, there is no chance to coach the witness. The witness categorically said the accused did not participate the offence. He further adduced that PW1 did not shoot a mobile phone torch at them. The two of assailant were fitted to same description of the accused (tall). He said they were arrested for this offence after two, three weeks in commission of the offence.

[24] In cross examination the witness said he was unemployed at that time. He said the accused known to his since his birth. They were drinking and they wanted money for Christmas. Therefore they planned to do this crime; he added. He said that he did not know that the accused walked along that morning. The witness was reluctant to reveal other culprit’s names. He said “I am telling the truth; even I can kiss the Bible for telling the truth. The accused did not know anything about this robbery, the accused has been wrongly charged”

Then the accused closed his case.

The Law

[25] ROBBERY WITH VIOLENCE

“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.”

[26] In Jovesa Vaileba v State (1990) AAU 8/88 (HAC 93/87) 12 October 1990 robbery defined as “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 of the Penal Code.”

[27] DAMAGING PROPERTY

324.-(1) Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanour, and he is liable, if no other punishment is provided, to imprisonment for two years.

[28] Elements of the charge of damaging property are (1) any person (2) wilfully and unlawfully (3) destroys or damages (4) any property.

[29] In Woolmington v DPP (1935) AC 462 held 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". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[30] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

“The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused’s guilt. That is not the correct test. The correct test is whether you have any reble doubt about the the guilt o accu accused.”

[31] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen ( 1970 AC 618)rted New Law Reports orts 313 (Sri Lanka),

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“A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[32] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and “one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim “Ex qui affirmat non ei qui negat incumbit probatio”. On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim “In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur” have to be noted.

Analysis of the evidence

[33] In line with the above guiding principles, now I evaluate the evidence adduced before me. The PW1 and 2 positively identified that the accused who came first to their house/room and threatened them. Both told that they saw the accused by mobile phone torch light. The time duration is two minutes. Gang of people entered their house but only the accused did not wear a mask. Therefore they identified the accused clearly. Prosecution contents that the accused has past criminal history due to that the accused pre-planned the crime and defence of alibi. It should be noted the accused was arrested soon after the incident. But none of the items were recovered by the accused. Prosecution police witness Ajeet Singh admitted that the accused Alibi were intact. That means police officer has probed the defence of Alibi and satisfied while crime was being committed the accused was in some other place. Then why the accused was charged? It is plainly seen that the accused was arrested and brought to the police station on suspicion or charge of drunken and disorderly behaviour. .while in the police station the accused was identified the PW1 and 2 soon after the incident. It is therefore natural any one could imagine that the accused is the culprit. Was this identification proper? This case is purely based on visual identification. In relation to visual identification the Turnbull guidelines plays a vital roll.

[34] In R v Turnbull ( Q.B.[24, [1976] 3 WLR 44LR 445 ,( 1977) 65 Cr. App. R. 242,LORD WIDGERY C.J. articulated special guidance in visual ificat/p>

a] “whenever the case againsgainst an t an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, judge should warn the jury or the special need for caution before convicting the accused in reliance on the correctness of the identification”

b] " the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made”. Then following questions need to be considered.

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?

c] “He (Judge) should remind the jury of any specific weaknesses which had appeared in the identification evidence”

d] “Recognition may be more reliable than identification of a stranger”

e] “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".

[35] According to PW1, PW2 and police investigations, it is crystal clear that elements of these charges have been proved. But did PW1 and 2 identify the accused? In applying above principle, I consider that the evidence placed before me.

i.How long did the witness/es have the accused under observation? About 2 minutes

ii. At what distance? Face to face

iii. In what light? Mobile torch light

iv. Was the observation impeded in any way as for example by passing traffic or a press of people? Not applicable

v. Had the witness ever seen the accused before? No

vi. How often? Not applicable

vii. If only occasionally, had he any special reason for remembering the accused? Not applicable

viii. How long elapsed between the original observation and the subsequent identification to the police? After two three hours in the police station and one day in the proper identification parade

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? Only description is given was the accused is tall, Fijian man.

[36] In R v Keeble [ 1983] Crim LR 737, the trial judge had told the jury to be aware of the risk of mistaken identification and to evaluate it, and that the risk would be high where the sighting had only been a fleeting glance, but that in every case it was a matter of degree.

[37] In Daley y. R. (1994) 98 Cr. App. R. 447 a decision of the Privy Council on an appeal from Jamaica it was:

"Held: allowing the appeal, that where the quality of the identifying evidence is poor, or so slender as to be unreliable and there is no other evidence in support of identification, then the judge should withdraw the case from the jury. ... In the instant case, considering the weaknesses of the identification evidence, the case should have been withdrawn from the jury."

[38] It is to be noted that both victims identified the accused in the dock. But the courts in England had disapproved of the practice of allowing dock identifications as the first identification since the first sighting. In R v Hunter [1969] Crim LR 262

“Dock identification raises a different point: the reliability of the identification of the suspect as the person seen in the initial sighting. ... but the courts had, for a very long time, taken the view that dock identification itself is undesirable”

[39]Dock identification is dismissed several overseas commonwealth/common law jurisdictions see; R v Horsham JJ ex p Bukhari [1981] 74 Crim App R 291, Cartwright [1914] 10 Crim App R 219 , Caird [1970] CrimLR 656, and The Queen v Rangi Tawea Walker [2000] NZCA 42, 9 March 2000. But in this case Proper Identification Parade was held but the accused suggested before the IP, he was shown to the victims four times. The question of Dock Identification does not arise.

[40] It is to be noted the witnesses have never seen the accused before the incident. The incident took place at or about 2.30 midnight. There was no power (electricity) and only light available was mobile phone torch. Both victims were under threats and it is dubious that they managed to identify the accused by mobile torch though it was face to face. This mobile phone was stolen at the incident. Would the culprit allow identifying himself in these circumstances by mobile torch light? Will prudent man believe this identification? Other culprits were wearing masks at the time. Why the accused did not wear a mask if he is a trained criminal? Though the accused past history is unsavoury, the answers for these questions are unsatisfactory. The protection by the law, right of fair trial or any other fundamental right will not be deprived to the known/convicted criminals. This principle was enunciated in Amal Sudath Silva v Kodikuwakku [1987] 2 Sri Lanka Law Reports 124-127 Athukorala J. In the Supreme Court of Sri Lanka "Every person in this country, be he a criminal or not, is entitled to this right to the fullest content of its guarantee". In Gamini Sugathasena v State [1988] 1 Sri Lanka Law Reports 405, Asoka Z. De Gunawardene J. (Court of Appeal) held that Identity of the accused in a criminal case should be beyond reasonable doubt. These common law/ commonwealth principles are persuasive me to reach a fair conclusion. The accused is a total stranger to the victims. The identification is fleeting type. I hold the quality of identification in this case is poor. Therefore mistaken of identity is eminent and inevitable. In contrast, the accused has proved his Alibi. Further, if the accused was the real culprit police could have recovered some kind of items which were stolen since robbery took place very recently at the time of his arrest. None of them recovered. This is weaken the prosecution and proves the mistaken of identity.

Conclusion

[41] In this backdrop I hold it is unsafe to convict the accused on accused evidence. I therefore hold that the charges have not been beyond reasonable doubt against the accused.

[42] The Accused is acquitted and discharged from the proceeding.

[43] 28 days to appeal

On 14th March 2011, at Nasinu, Fiji Islands.

Sumudu Premachandra
Resident Magistrate