IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 065/2010

STATE

V

JOSAIA MURIMURI

For Prosecution : - Ms. Koto L,
Accused : - In person.

JUDGMENT

1.	The accused was charged with the offence of "Aggravated Robbery" contrary to section 311(1) (a) (b) of the Crime Decree No 44 of 2009. 

2.	The particulars of the offence are "JOSAIA MURIMURI with others on 15th day of March 2010, at Pacific Harbour, Navua in the Central Division, being armed with an offensive weapon namely stick and beer bottle stole 2 Nokia Mobile Phones valued at $ 160, one TFL handy phone valued at $80, and cash $200, all to the total value of $ 440, from Michael Thoms and Kathleen Thoms. 

3.	 Accused pleaded not guilty for the offence of Aggravate Robbery, wherefore, the case was fixed for hearing. During the hearing the Prosecution called 6 witnesses and the accused gave evidence on oaths but did not call any other witnesses for the defense. At the conclusion of the hearing both the prosecution and the accused submitted their final written submissions. Upon careful perusal of the evidence adduced by both prosecution and the defense and their respective written submissions, I now proceed to pronounce the judgment in this case as follows. 

4.	In view of 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. 

5.	Section 311 (1) (a) of the Crime Decree reads as "A person commits an indictable offence if he or she, commits a robbery in company with one or more other persons"". Section 311 (1) (b) stipulates that "A person commits an indictable offence if he or she, commits a robbery and at the time of the robbery, has an offensive weapon with him or her".

6.	Section 310 of Crime Decree stipulates the definition of robbery as  "A person commits an indictable offence if he or she commits theft and — 

(a) Immediately before committing theft, he or she—

(i) Uses force on another person; or
(ii) Threatens to use force then and there on another person —
with the intent to commit theft or to escape from the scene; or 

(b) At the time of committing theft, or immediately after committing theft, he or she—

(i) Uses force on another person; or
(ii) Threatens to use force then and there on another person—

with the intent to commit theft or to escape from the scene. 

7.	The force or threat of use of force must be immediately before or after or at the time of the stealing and for the purpose of stealing or escaping from the scene. In addition it must be proved that the accused used force on any person or threatened to use force on any person in fear of being then and there subject to force. (R v Dawson and James, 64 Cr.App.R 170). 

8.	Wherefore, the main elements of the offence of Aggravated Robbery, are 

i.	The accused, 

ii.	Robbed the complainant, 

iii.	At the time of or immediately before or immediately after such robbery uses or threaten to use any force on any person then and there on any person with the intent to commit theft or escape from the scene. 

iv.	With one or more persons and/or at the time of robbery has an offensive weapon with him.

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".( old Penal code) ( Jovesa Vaileba v State (1990) AAU 8/88 ( HAC 93/87) 12 October 1990). Accordingly, in order to prove that accused robbed the complainant, the prosecution has to prove beyond reasonable doubts that,

i.	The accused,  

ii.	Dishonestly appropriates property belonging to another,

iii.	 With the intention of permanently depriving the other of the property.

10.	Upon considering the main elements of the offence of Aggravated Robbery, I now briefly review the evidences adduced by both the prosecution and the defense. 

11.	The summery of facts in this case is that, the accused were alleged that he together with anothers invaded into the house of Mr. Michael Thoms in the late evening on 15th of March 2010. The accomplice of the accused threatened Mr. Michael Thoms with an empty beer bottle and assaulted him. The accused got hold of Mrs. Kathleen Thoms and forced her to give money. The accused tried to tie up Mrs. Kathleen Thoms but on her request to not to do so as she is a heart patient he decided not to tie her up. The accused ransacked the room and then dragged her in to the other room where Mr. Thoms was struggling with the accomplice of the accused. The accused stole the money from the cash register and from the handbag of Mrs. Thoms and stole two mobile phones and one TFL Handy phone. It was alleged the accused was not masked but had covered his head. Mrs. Thoms was able to identify the accused as he was so close to her. The accomplice who attacked Mr. Thoms was masked and covered his face. 

12.	Few days later, Mr. Thoms tried to contact one of his stolen mobile numbers and a girl answered. On that information Sergeant Elia and his team located that girl who answered from Mr. Thom's stolen mobile phone and found that it was given to her by the accused. Later Sergeant Elia managed to arrest the accused. 

13.	The first prosecution witness Mr. Michael Thoms, is the complainant, and was present during the robbery and struggled with the accomplice of the accused who threatened him with an empty beer bottle and assaulted him. He stated in his evidence that two mobile phones and one TFL handy phone were stolen by the robbers. He further stated that he identified the mobile phone as one of his stolen item at the police station after it was recovered from Ms. Timaima Tabua. Moreover, he identified the said mobile phone and tendered it as prosecution exhibit in his evidence. 

14.	The second prosecution witness is Mrs. Kathleen Thoms. She stated in her evidence that when she was looking at her husband who went outside the house to look for why dogs are barking, someone grabbed her from behind and threw her on the floor. Then he tired to tie her up, but she pleaded not to do so as she is suffering from heart problem. She stated that it was appeared to her that the accused was listing to her and did not tie her up. She was asked to sit on the bed and accused kept on demanding money. She further stated that the accused was not covering his face but only his head. She testified she was able to see his face as he was close to her and from the light in the room. She identified the accused from the dock. In her cross examination too, she affirmatively stated that she can still remember the face of the accused even after some 8 months from the incident. Her evidence further established that the accused stole money from her handbag and cash register. Then she was forced to the room where her husband Mr. Thoms was struggling with the accomplice of the accused. She testified that when she was forced into the room, she witnessed that the accomplice of the accused was top of her husband who was lying on the bed while struggling with the accomplice.

15.	DC 2821 Mataiasi who is the investigating and interviewing officer in this case gave evidence as third prosecution witness. He testified that he recorded the caution interview of the accused in Fijian and later translated it into English. He stated that he recorded the statements of Mr. and Mrs. Thoms and show Mr. Thoms the recovered mobile phone for identification. Further he stated Mr. Thoms identified the said phone as the one of mobile phones stolen from his house on that evening. 

16.	Sergeant Elia the fourth prosecution witness gave evidence that he with his team located the girl who answered Mr. Thoms from his stolen mobile phone and on her information arrested the accused. In addition he was the witnessing officer for the caution interview. 

17.	Fifth prosecution witness, Ms. Timaima Tabua stated that the accused who lives next to her aunt house gave her a Nokia mobile phone for use it. She testified it was not her mobile phone and only she received it from the accused. 

18.	The accused in his evidence took up a defence of alibi. He stated that it was a hurricane day and he moved to a nearby school with his family. Then in the evening he came back to his house as elders asked them to find "cava" from the village. After finding "cava" he went back to his house where he slept for a while and had tea. Again he falls to sleep and awaken by the noise of others who were returning from dinner and heading to his aunt place for "grog' session. Then he awake up and followed them but he realized he need more cigarettes. Then he went to shop to buy cigarettes where he met a boy who asked him that can he spend the night at his place as he can't find any transport to travel Suva. The accused further stated that he offered his help to him and this unknown stranger who stayed his house on that night gave him this Nokia mobile phone and some cash.

19.	Bearing in mind the evidence adduced by both the prosecution and the accused, I now proceed to examine the submissions tendered by both prosecution and the accused. 

20.	The learned state counsel for the prosecution, submitted in her submission that the three ingredients that must be proved for this offence are 

i.	A person,
ii.	Commits a robbery,
iii.	With the use of an offensive weapon.

21.	Upon considering evidence adduced from PW1-PW6, the learned counsel for the prosecution stated that all three elements of the offence were proved beyond reasonable doubt. Learned counsel for the prosecution submitted that Mrs. Thoms identified the accused as he was not covering his face while he was assaulting her and demanding money. Further Ms. Tabua positively identified the accused as a person who gave her the mobile phone to use on 18th of March 2010. Based on the evidence of Mr. Thoms and Mrs. Thoms the learned state counsel submitted that other two limbs of this offence also proved by the prosecution. Though the prosecution failed to tender any medical reports of Mr. and Mrs. Thoms as exhibits, the learned counsel tried to explain the injuries sustained by both victims according to their respective medical reports which I have to disregard. 

22.	The accused contended in his submission that the sole evidence against him on this charge is the mobile phone which was found from Ms. Tabua who claimed it was given to her by the accused. Apart from this evidence, there is no other evidence produced in court by the prosecution to prove their case beyond reasonable doubt. He further submitted therefore, the prosecution could not prove their case on the sole evidence of the said mobile phone. 

23.	The accused submitted that the proper manner of identification as required by law was not followed by the police soon after his arrest. He further submitted that though Mrs. Thoms identified him from the dock and she stated in her statement given to the police that she identified one of the accused who robbed them, the police failed to give a satisfactory explanation why they failed to conduct an identification parade after he was arrested. 

24.	Upon careful perusal of the evidence adduced by both parties and the submissions of both prosecution and the accused, I inferred that this instance case against the accused depends mainly on the evidence of the stolen mobile phone which was found from Ms. Tabua, who testified in court that it was given to her by the accused just three days after the robbery took place. 

25.	The burden of proof of the accused person's guilt 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). It is noteworthy to mention that the burden of proof of beyond reasonable doubts does not mean that beyond all possible doubts. 

26.	Generally a court requires evidence to be led before it believes in the existence of a fact. However there are some exceptions to this establish principle which could be found in the common law jurisdictions. "A one exception is that a presumption arises where from the proof of some fact the existence of another fact may naturally be inferred without proof from the mere probability of its having occurred. The facts thus inferred to have occurred is said to be presumed, is taken for granted until the contrary is proved by the opposite party". (Archbold, 2009, para 10-1, pg 1381). When there are no positive testimonies of eye witnesses or by conclusive documents the courts are permitted to infer from the facts proved other facts necessary to complete the elements of guilt or establish innocence". 

27.	The test of inferring a fact from the proof of some fact was discussed by Lord Normand in Teper v R ( 1952)A.C.480 at 489), where Lord Normand held that " it must always narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there is no other co – existing circumstances which would weaken or destroy the inference". 

28.	In view of above mentioned principle of "presumption of fact", I now draw my attention to examine whether I can presume the accused, who was found in possession of the stolen mobile phone of Mr. Michael Thoms just three days after the robbery is guilty for the offence of aggravated robbery. 

29.	The fifth prosecution witness Ms. Tabua who testified in court that she got the Nokia Mobile phone from the accused on 18th of March 2010. She positively identified the accused as the person who gave her mobile phone in court too. Mr. Thoms in his evidence identified the mobile phone as it is one of the stolen mobile phones from his house on that evening. Mr. Thoms and DC Mataiasi's evidences precisely affirmed that Mr. Thoms identified this mobile phone at the police station soon after it was recovered by the Police. 

30.	The evidence of Sgt Elia is vital in this case as he conducted the raid to locate the girl who answered to Mr. Thoms' calls from his stolen mobile phone. He confirmed that on the information provided by Mr. Thoms he located Ms. Tabua. He also positively identified the mobile phone as the one he recovered from Ms. Tabua. Based on the information provided by Ms. Tabua, he arrested the accused. Mr. Tabua affirmed the same in her evidence. 

31.	Upon considering these evidences, I am of the view that the prosecution proved that the accused was in possession of the stolen mobile phone after the robbery took place on 15th of March 2010. 

32.	In line with the Lord Normand findings in "Teper v R (Supra), before I make an inference on accused person guilt based on the proven fact of accused was found in possession of the stolen mobile phone three days after the robbery took place, I now proceed to examine is there other co – existing circumstances which would weaken or destroy the inference of accused's guilt. This legal position was discussed by Her Ladyship Justice Shameem in Lepani Varani v State (2006) HAA 149/05S, 3 March 2006) where Shameem j held that "It is prudent to examine and analysis whether there are any other possible hypothesis consistence with the innocent of the accused other than the prosecution version of the facts according to the evidence adduced by the prosecution".

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.	In line with the above mentioned judicial precedent, the test for rebut the presumption against the accused is to provide a reasonable explanation which may be true, not a explanation to convince that it is true. 

35.	The accused in his evidence testified that the mobile phone was given to him by an unknown stranger who sought shelter at his house on the night of 15th of March 2010, when all other family members have gone to school compound due to hurricane warning. I find every vital moment in the explanation of the accused of how he met this stranger and how the mobile phone came to his possession, accused was away from his villagers and rest of his group. The accused himself admitted that there was a curfew imposed on that night, but he was not able to explain how shops were opened in a curfew day for him to buy cigarette when he met up with this stranger. The accused gave shelter to the stranger without even getting permission from his parent and also without even knowing the details or information of this stranger. 

36.	Upon considering the evidence of the accused, I do not find the accused gave a reasonable explanation on how the stolen mobile phone came into his possession and whether the stranger from whom the accused received the phone is a real person. Accordingly I find the explanation is false and cannot be considered reasonable. Hence accused failed to rebut the presumption arose from proved fact that accused was found in possession of the stolen mobile phone three days after the robbery took place. 

37.	I now move to examine the issue of identification of the accused. Mr. Thoms specifically stated in his evidence that the two robbers were Fijian boys though he did not see their faces. Mrs. Thoms identified the accused from dock and affirmatively testified in her evidence that she saw the face of the accused from the lights in the room as he was not covered his face and was close to her. It was transpired in cross examination of DC Mataiasi that Mrs. Thoms stated in her statement to the police that she saw the face of the person who robbed her house. 

38.	It was held in R v Turnbull (1977) Q.B.224, " 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?

39.	In considering the evidence of Mr. and, Mrs. Thoms and the DC Mataiasi, it has been established that Mrs. Thoms saw the face of the accused. Now I have to consider that the evidence of identification of Mrs. Thoms could be considered as a positive evidence of identification. 

40.	Mrs. Thoms was with the accused from the moment she was grabbed from her behind by the accused when she was looking at her husband through the window of her bed room until they left the house. According to her evidence lights were on in the rooms and were able to see the face of the accused from that light. I now have to consider that whether there is a possibility of mistaken identity due to the excitement and the shocking situation faced by Mrs. Thoms though she was able to see the face of the accused closely and from the lights in the room. 

41.	Mrs. Thoms was confident and affirmative in her evidence of identification in the court and she specifically stated that it appeared to her that the accused was listening to her when she pleaded him not to tie her up as she is a heart patient. It appears at this point Mrs. Thoms started to build up a positive feeling towards the accused mistaking the lack of abuse by the accused as an act of kindness. It transpired from her evidence that she got her handbag which contained her wallet when the accused demanding more money after taking all cash in the cash register. Furthermore, Mr. Thoms stated in his evidence that Mrs.Thoms asked him to stop continuing resistance against the accused and his accomplice as she had given them all the money they had in the house, when she was brought into the room where he was struggling with the accomplice of the accused. These evidences specifically establish Mrs. Thoms was in a paradoxical psychological phenomenon known as "Stockholm Syndrome" where victim has kind of a positive feeling towards the accused mistaking a lack of abuse by the accuse as an act of kindness. In such circumstances, Mrs. Thoms was in a positive state of mind to see and clearly remember the face of the accused. 

42.	In line with the above stated findings, I accept the evidence of identification of Mrs. Thoms but still I am of the view that the failure of the Police to conduct a proper identification parade, no specific reason given for that failure and eight months time period between the first identification and the dock identification by the witness have weaken the quality of the evidence of the identification of Mrs. Thoms. It was held in R v turnbull (supra) that '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".

43.	Even though the quality of the evidence of identification of Mrs. Thoms is weak, yet it could be considered as vital collaborative evidence when taken with other circumstantial evidence to draw an inference of presumption of facts. 

44.	Both Mr. and Mrs. Thoms clearly stated in their evidence that both accused and his accomplice used force on them prior to and during the robbery in order to inflict fear on them and robbed the house. Mr. Thoms further testified that the accomplice of the accused used an empty beer bottle to threaten him before the robbery took place. Though prosecution failed to tender any medical reports of both victims, yet I accept the evidence of use of force and use of offensive weapon by the accused and his accomplice in this robbery. 

45.	At this point I draw my attention to the summing up address of the Gounder J in State v Raymond Johnson where his lordship justice Gounder directed that "if you are satisfied beyond a reasonable doubt -

(1)	that a robbery took place; and
(2)	the victim was threatened with force and use of offensive weapon, 
(3)	that the accused was one of the persons involved 

You will advise me that he is guilty on count 1. If you have a reasonable doubt about any of the three you will advise me that he is not guilty.

46.	In view of the reasons set out in above paragraphs, I am of the view, that the prosecution successfully proved beyond reasonable doubt, that the accused committed this robbery on Mr. and Mrs. Thoms in the evening of 15th of March 2010.
 
47.	 Upon considering foregoing reason, I find the accused guilty for the offence of Aggravated Robbery contrary to section 311 (1) (a) (b) of the Crime Decree No 44 of 2009 and convicted for the same.

On this 10th day of January 2011.

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