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State v Serutalatala [2011] FJMC 48; CRC1817.2008 (1 April 2011)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA

Criminal Case No: 1817 of 2008

STATE

V

LOTE SERUTALATALA with others

For Prosecution: Mr. Daurewa J. (DPP Office)
Accused: In Person
Date of Judgment: 01st April 2011

JUDGMENT

1. Accused in this case is charged with two counts of Robbery with Violence offences punishable under sec. 293 (1) (b) and 293 (1)(a) and one count of Unlawful use of Motor Vehicle an offence punishable under sec. 292 of the Penal Code, Cap 17.
   
2. Six witnesses testified for the prosecution. At the end of the prosecution accused gave evidence on his behalf.
   
3. Prosecution is under obligation to prove the charges beyond reasonable doubt and the accused has to establish his defence on the balance of probabilities.
   

Elements to be proved by the prosecution

4. a). Robbery with Violence 293 (1) (b)
   
   1. The accused,
      
   2. Robbed any person,
      
   3. The accused used or threatened to use personal violence on any person immediately before or immediately after such robbery.
      

b). Unlawful use of Motor Vehicle 292

1. The accused,
   
2. Unlawfully and without colour of right,
   
3. Took the vehicle belongs to the complainant for his own use.
   

Evidence of each witness

PW – 1

5. Witness 78 years old. In Sept 2008 whilst he was sleeping 04 male entered into his bed room and had warned him not to shout. Then they have tied his hands legs and mouth and asked for money. When he was released by his house girl he found his car FJ 105 missing with some items inside the house. (Witness is a very old man who gave evidence in Court with difficulty – witness informed that he cannot remember all the details as it was long time ago). Accused did not cross examine the witness.
   

PW -2

6. Worked as a house girl at the complainant's house. At 1.30 am on 26th September 2008, witness was alone in the house with the complainant and was sleeping in a separate bed room with the door locked. She had heard someone trying to open the door. Thinking that it could be PW-1, she had opened the door. Had seen 04 men standing and one of them had put a knife on her neck and asked her to lie on the bed. Two of the men tied her hands, legs and mouth. Those men had asked whether the old man got any money at home. One person sat beside the bed and started touching the witness on her breasts and private parts whilst others ransacking the house.
   
7. Thereafter another person had come into the room and told the person who was touching her to stop doing it and asked the key for the empty safe from the witness. Robbers had taken the safe with them and stole one gold chain belongs to the witness. Witness had identified one person came to the house as he was wearing a pom-pom which did not cover the whole face. Witness had later identified that person at the police. Witness had heard robbers taking the vehicle.
   
8. During cross examination witness confirmed the identification and informed the Court that she clearly saw the accused. Witness further said that accused was the one who was touching her whilst others ransacking the house.
   

PW- 3

9. Witness was doing his shift at Mobil Service station on 26th September 2008. Between 8.30 to 9 p.m. witness had filled fuel to one blue Toyota car on the request of the person sitting in the passenger seat. When witness filled the fuel, car had taken off without paying for the fuel. At that time the number of the car had been EM-296.
   

PW-4

10. Officer of Strike-Back Unit. On 26th September 2008, witness was on duty on Suva – Nausori area and at about 8.45 p.m. witness had seen EM 296, blue camery car coming towards him along the opposite side of the road. According to the witness, accused was sitting beside one Eparama Nagulu who was driving the vehicle. As it was a time with traffic, witness could not turn vehicle to follow the vehicle driven by Eparama Nagulu. When witness managed to turn his vehicle he could not find the vehicle.
    
11. During the cross-examination witness said that there was nothing to disturb his view and accused and Eparama are known to him.
    

PW-5

12. Investigating Officer. Accused was arrested by Strike-Back Unit. Caution interviewed the accused and accused admitted committing the offence. Car recovered abandoned near Nausori town. Original registration was changed to EA 716 and there were other number plates found in boot. Original number confirmed by wheel tax.
    
13. During the cross examination witness said that he had caution interviewed many suspects through out his career and he had followed all requirements of Judge's rules during the interview. There was no identification parade held.
    

PW-6

14. Charging Officer. Accused declined to make a statement.
    

Evidence of the Accused

15. Arrested by Strike-Back unit and threatened to say 'yes' to all questions they asked. Threatened to do what they did to Malese. Don't know anything about this case. Said "yes" as he was afraid.
    
16. During the cross-examination, accused said that he was in the village during the time in question and he can bring witnesses to that effect. Denied stealing from the complainant and denied entering into his house.
    

Findings and Analysis

17. This case is pending before this Court since 21st October 2008. According to the Court record this case had been fixed for hearing more than two occasions. There is no evidence to show in any occasion accused informed the Court that he is challenging the applicability of the caution interview. Even when I fixed this case for hearing on 04th January 2011, accused failed to inform that he is challenging the caution interview.
    
18. Even when the officer who recorded caution interview was giving evidence, accused chose not to challenge the manner in which the caution interview was recorded. This accused is not a stranger to the Fiji legal system and therefore I am satisfied that he was well aware of the situation. For the above reason, I refuse to take notice of the accused explanation that he was threatened to admit the allegations during the caution interview.
    
19. PW-2 identified the accused as one of the robbers came to the house on 26th September 2008. Identity of the accused established by the accused person's own admission in the caution interview.
    
20. Apart from that PW-2 informed that accused was touching her private parts whilst her both legs and hands were bound. Without no doubt this incident alone had been a traumatic experience to the witness and it is easy to imagine, witness had that person clearly stamped in her mind.
    
21. According to the evidence of PW-2 robbers were armed and one of them had put a knife on to her neck.
    
22. According to the evidence of PW-3, he had identified the accused on the day in question in the car taken from PW-1 without his permission.
    
23. Accused was also seen by PW-4 in a blue Toyota car.
    
24. Even though accused indicated to the Court that he got witnesses to prove his alibi defence, at the end of his evidence accused chose to close his case without calling any of his supporting witnesses to give evidence.
    
25. In the light of the above findings I decide that prosecution proved all charges beyond reasonable doubt against the accused. Hence, I convict the accused as charged.
    

On this Friday the 01st day of April 2011

Kaweendra Nanayakkara
Resident Magistrate