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State v Chand [2012] FJMC 261; Criminal Case354.2008 (21 September 2012)

IN THE MAGISTRATE’S COURT AT LAUTOKA

Criminal Case No 354/08

BETWEEN

THE STATE

AND

1. PREM CHAND
2. WILLIAM DRASUNA
3. KAMINIELI DONU ( ALREADY DEALT WITH)
4. TUPOU VUETAKI
5. SAULA LALAGAVESI
6. EMORI LAGAI
   

JUDGEMENT

1. The Accused persons are charged with the following counts;
   

1st Count

Statement of offence

Larceny contrary to section 259& 262 of the Penal Code

Particulars of offence

Prem Chand in the month of January 2008 at Lautoka in the Western Division stole the ignition key of vehicle registration number DE 407 valued $ 30 the property of Vinod Kumar.

2nd Count

Statement of offence

Conspiracy to commit felony contrary to section 385 of the Penal Code

Particulars of offence

William Drasuna, Kaminieli Donu, Tupou Vuetaki, Saula Lalagavesi and Emori Lagai on the 1st day of May 2008 at Lautoka in the Western Division conspired with each other to commit a felony namely robbery with violence.

3rd Count

Statement of offence

Unlawful use of motor vehicle contrary to section 292 of the Penal Code

Particulars of offence

William Drasuna, Kaminieli Donu, Tupou Vuetaki and Saula Lalagavesi on the 2nd day of May 2008 at Lautoka in the Western Division unlawfully and without colour of right but not as to be guilty of stealing took their own use motor vehicle registration number DE 407 the property of Hydraulic Hose Limited.

2. The 3rd Accused pleaded guilty on the 18th March 2010 and was sentenced accordingly. Later the trial started on the 10th September 2010 against the 1st, 2nd, 4th, 5th and the 6th Accused and it was concluded on the 08th May 2012. The Prosecution called 9 witnesses and after the prosecution case was closed the Court held that there is a case made out against the Accused for them to reply. Accused 1,2,4,5 and 6 gave evidence and Accused 4, 5 and 6 called witnesses too.
   

The Law

3. Larceny is defined in Section 259(1) as; “A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof:”
   
4. Section 385 of the Penal Code reads as follows;
   

“Any person who conspires with another to commit any felony, or to do any act in any part of the world which if done in Fiji would be a felony, and which is an offence under the laws in force in the place where it is proposed to be done, is guilty of a felony, and is liable, if no other punishment is provided, to imprisonment for seven years, or, if the greater punishment to which a person convicted of the felony in question is liable is less than imprisonment for seven years, then to such lesser punishment.”

5. Section 292 of the Penal code stipulates the offence of unlawful use of motor vehicle as follows;
   

“Any person who unlawfully and without colour of right, but not so as to be guilty of stealing, takes or converts to his own use or to the use of any other person, any draught or riding animal or any vehicle or cycle, however propelled, or any vessel, is guilty of a misdemeanour, and is liable to imprisonment for six months, or to a fine of one hundred dollars, or to both such imprisonment and such fine.”

First Count

6. I will first deal with the first count as only the first Accused is charged the first count. The first Accused is charged for allegedly stealing the ignition key of vehicle registration number DE 407.
   
7. The Prosecution witness Vinod Kumar gave evidence that the vehicle registration number DE 407 was a company vehicle and it was in his custody fulltime. He said sometimes between the 1st January and the 31st January 2008 he was drinking liquor with the first Accused at the workshop. He said that he slept for about 2-3 hours and when he woke up he found out that his wallet and the ignition key had gone missing. He said later he used the spare key. The witness said that on the 2nd May 2008 the vehicle registration number DE 407 was found to be missing from the place where he parked it. He said that later on the day he recognized the vehicle at the Police Station and he saw the first Accused was also in the Police custody. The witness said that the first Accused told him that he took the key and gave it to a person called “Junior”. During the cross examination the first Accused only asked one question from the witness and the first Accused could not challenge the evidence given by the witness.
   
8. The Prosecution witness, Jay Singh also known as “Junior Bosco” confirmed that the first Accused gave an ignition key of a vehicle belongs to a company named Hydraulic Hose. The witness replied the only question asked by the first Accused during cross examination in the following manner;
   

Q: You said I gave the key. But I am putting to you that you are lying?

A: He told me he took the key when he was drinking with a friend.

9. The first Accused gave evidence and said that he did not commit this offence. However during the cross examination by the prosecution he admitted that he took the key from Vinod Kumar while he was asleep. However the first Accused said that he did that for Vinod Kumar’s safety. In any event the first Accused admitted that he did not return the key. The first Accused gave very unreliable and inconsistent evidence on the issue of the key being given to Jay Singh. It should be noted that the first Accused could not create any doubt in the Prosecution case.
   
10. I have considered the evidence adduced by the Prosecution with regard to the first count. I am satisfied that the Prosecution has proved the elements of the first count against the first Accused beyond reasonable doubt. In the circumstances I find the first Accused guilty of the first count.
    

Second Count

11. The 2nd, 4th, 5th and the 6th Accused are charged with the second count for Conspiracy to commit felony. The offence of conspiracy is not defined in the Penal Code. Therefore it is worthwhile to ascertain the offence before proceeding to analyse the evidence adduced by the prosecution in this case.
    
12. In R. v. Meyrick & Ribuffi (1929) 21 Cr. App. R. 94 at 99 Lord Hewart C.J. has pointed out, conspiracy is "a difficult branch of the law, difficult in itself, and sometimes even more difficult in its application to particular facts or allegations".
    
13. In R. v. Aspinall (1876) 2 O.P.D. 48 at 58 "Brett J stated that;
    

“the crime of conspiracy is completely committed, if it is committed at all, the moment two or more have agreed that they will do, at once or at some future time, certain things. It is not necessary in order to complete the offence that any one thing should be done beyond the agreement. The conspirators may repent and stop, or may have no opportunity, or may be prevented, or may fail. Nevertheless the crime is complete; it was completed when they agreed."

14. Further it would be pertinent to quote the following passage from Josevata Bolatakeu v. Reginam [1978] FJSC 149 as far as the offence of conspiracy is concerned;
    

“Yet in many cases there are no means of proving directly that the parties did come together and actually agree in terms to have a common unlawful design and to pursue it by common means; and neither law nor common sense requires such proof (Reg. v. Murphy & Anor. (1837) #160; (1837)&#16) [1837] EngR 1120; 173 E.R. 502 a). As Erle J.le J. pointed out in Reg. v. Duffield & Ors. (1851) 5 Cox C.C. 404 at 434: "...it does not happen once in a thousand times, when the offence of conspiracy is trihat anybody comes before thre the jury to say - "I was present at the time when these parties did conspire together, and when they agreed to carry out their unlawful purposes"." In the absence direct evidence, a conspiracy can be inferred from the conduct of the parties alleged to have conspired, from their subsequent overt acts, and from other relevant circumstantial evidence incompatible with their innocence and incapable of explanation upon any other reasonable hypothesis than that of their guilt (Wills On Circumstantial Evidence, 7th Edition, p.19). However a mere aggregation of separate facts, all of which are inconclusive in that they are as consistent with innocence as with guilt, have no probative force.”

15. Having borne the above notions in mind I will now proceed to assess the evidence adduced by the prosecution with regard to the second count. In this regard I would like to categorize the evidence adduced by the Prosecution into three categories. The Prosecution submitted evidence from accomplices, evidence from independent witnesses and evidence from investigating officers. Further the prosecution tendered direct and circumstantial evidence to establish the second count.
    
16. The Prosecution witness Jay Singh gave evidence that on the 1st May 2008 he went for a meeting with a person named Wicky. He said that Wicky introduced the others to him who were at the meeting. The witness referred to their names as Morex, Tupex, Saula and Robert. As per his evidence he said that the person named Robert is not an Accused and he identified Accused 4, 5 and 6 as the persons who were at the meeting.
    
17. It should be noted that this witness gave evidence with so much of fear. He informed the Court that he is frightened and scared to talk in Court. He said that what ever he said when he gave the statement to the Police is true. The Court had to explain him that he need not be scared to give evidence. I have observed that initially there were slight inconsistencies in his evidence. However at the later stage the witness gave evidence in a very convincing and consistent manner. When the 5th Accused cross examined the witness referring to his statement, the witness answered in the following manner;
    

Q: Why did you say Wicky came to your home? You have not said that in your statement?

A: I said we went to Amadiya for a test drive. I cannot remember whether its 1st 2nd or 3rd.

Q: Which statement is true?

A: Whatever I said in the statement I gave with a fresh memory. But now it’s been a long time. What I said to the Police is correct. I cannot forget everything. Might have forgotten some.

Q: You lie in whichever statement?

A: What am I lying ? If they can ask questions from the statement I can also answer from the statement. If someone ask you about something after two years can you remember everything unless you read the statement again.

Q: Who told you to tell additional things which are not in the statement?

A: Give me a chance to read my statement. They are looking at my statement and asking questions. I tell the Court whatever I can remember. If I can be given my statement I will answer.

18. I am satisfied that the witness, Jay Singh’s evidence was convincing although there were few contradictions which are ignorable. Over the passage of time it is reasonable for a person to forget every little detail of an incident. Further the witness clearly said that since it has been a long time he may not remember everything. In any event I am satisfied that his credibility is intact despite the lengthy cross examination by the Defence.
    
19. The Prosecution witness Jay Singh referred to a person called “Wicky” in a number of times. He said that Wicky told him so many things regarding this incident. However the Prosecution failed to elicit who is called as Wicky and it does not appear that the person referred to as Wicky was called to give evidence. Thus I disregard those particular facts said to have been uttered by Wicky as they amount to hearsay evidence.
    
20. At any event the witness gave evidence with regard to the reason for the meeting in the following manner during the cross examination by the 6th Accused;
    

Q: Do you know that you are liable to be prosecuted if you say something false?

A: Yes

Q: Did you also have a part in the meeting?

A: Yes I was at the meeting

Q: Can you tell the reasons and contents of the meeting?

A: To plan a robbery at the garment factory

Q: Did you see any one at the meeting?

A: I saw 4 persons.

21. The Prosecution called another witness to testify regarding the alleged meeting to plan a robbery. Ropate Drauniniu said that he met 4th, 5th and 6th Accused at the meeting. Further it was clearly seen that this witness knew the three Accused very well. He further said that those who were at the meeting were planing a robbery and asked him whether he wants to join them. He said that he participated in the attempt to commit the robbery at the Danam’s garment. He also said that the 6th Accused made the plan while 4th, 5th and two other Indian men were present. However this witness gave very evasive answers during the cross examination by some Accused persons. But when the 5th and the 6th Accused persons cross examined him, he again gave evidence in a consistent manner. Although this witness corroborated the evidence given by Jay Singh I am not inclined to attach much weight to his evidence due to the inconsistent manner in which he testified at times.
    
22. This Court is very well mindful of the danger of convicting Accused on uncorroborated evidence of accomplices. However the Prosecution adduced circumstantial evidence to establish that the 2nd, 4th, 5th and the 6th Accused conspired to carry out a robbery.
    
23. As it was earlier stated as per Wills On Circumstantial Evidence, 7th Edition, p.19 “In the absence direct evidence, a conspiracy can be inferred from the conduct of the parties alleged to have conspired, from their subsequent overt acts, and from other relevant circumstantial evidence incompatible with their innocence and incapable of explanation upon any other reasonable hypothesis than that of their guilt.”
    
24. Further The Fiji Court of Appeal in Narendra Prasad v. Reginam (1979) 25 FLR 231 at 224 expressed the issue more clearly as follows:
    

"A conspiracy is often proved by proving acts on the part of the accused persons which lead to the inference that they were acting in concert in pursuance of an agreement to do an unlawful act. Frequently the implementing action is itself the only evidence of the conspiracy and this has been referred to in numerous cases as the doctrine of overt acts. In Reg. v. Murphy 1837 C & P Coleridge J. said at page 311. 'It is not necessary that it should be proved that these defendants met to concoct this scheme, nor is it necessary that they should have originated it'.

It concluded –

"If the conclusion to be drawn from the overt acts proved against the appellant and the other accused was that there was a conspiracy, then a charge of conspiracy will lie notwithstanding the lack of evidence of a formal agreement between the appellant and the other accused person concluding such a conspiracy. Where and when the conspiracy originated is often unknown and seldom relevant as conspiracy is often proved by overt acts from which an antecedent conspiracy is to be inferred."

25. The Financial Controller of Danam Fiji Ltd, Minesh Dhansukhlan gave evidence that on the 02nd May 2008 his staff went to the bank to bring cash for wages for the staff. He said the cash was transported under the escort of some security guards and he was informed that the vehicles are being followed by another vehicle. In reply to cross examination the witness said that the matter was reported to the Police by the security guards before they did.
    
26. Amanalave Nasilivata, a security guard who was on duty that day said that he was at the main gate at the Danam factory. He said a white single cab came twice and the driver was wearing a wig. He said he called the escort vehicles and alarmed them about the suspicious vehicle. He said the single cab was following the vehicles carrying cash and he opened the gate for two vehicles to enter while the third escort vehicle stopped out side blocking the gate. He said then the single cab turn around and went back. In reply to the cross examination the witness said the single cab was trying to find the gap between the vehicles carrying the cash but it could not find gap. Although the witness was cross examined at length by the Accused persons, his evidence could not be challenged by them.
    
27. The prosecution called a bowser attendant named Navitalai Bilo to corroborate that the 6th Accused with two other Indian men came to fill fuel on the 02nd May 2008 in the morning. He said one Sujit came in his 7 seater van with another Indian man and the 6th Accused. He said he knew the 6th Accused, whom he referred to as Morex since he was a kid.
    
28. The above three witnesses evidence corroborated the evidence given by Jay Singh and Ropate Drauniniu as to the manner in which they planned to carry out the robbery on the 2nd May 2008. According to Jay Singh and Ropate Drauniniu evidence it was revealed that the 6th Accused had gone in one Sujit's 7 seater van along with Jay Singh and on their way Jay Singh said that they went to fill fuel. He further said that he saw the 2nd Accused driving the single cab registration number DE 407 wearing a wig. Ropate Drauniniu said that the 4th and 5th Accused were there in the single cab along with the third Accused named Donu. According to their evidence after the robbery was aborted the 2nd Accused had left the single cab and they all have got into the 7 seater van to come towards the fisheries wharf. As per their evidence then a Police vehicle has followed them and stopped.
    
29. It was corroborated by the Police witnesses, Constable 4178 Jone Sauqaqa and Cpl 2708 Eliya that the Accused persons were arrested when they were travelling a in a 7 seater van driven by one Sujit. They confirmed that on the 02nd May 2008 when they were on patrol duty around 11 am they saw vehicle registration number EP 915 at Natabua. They said after seeing Emori Lagai and William Drasuna they felt suspicious and started to follow them. According to the evidence of the Police officers after a chase they have managed to stop the van. Cpl Eliya said that it was driven by Sujit and in front there was a person referred to as Junior Bosco. He said Emori, William, Tupou Kaminieli, Saula and Ropate were there in the van. Further the Police witnesses gave evidence that they found a cane knife under a seat and a mask, jacket, wig, home made spikes, glows and track pants in some bags inside the van. The items were tendered as Prosecution Exhibits.
    
30. It appears that arrest of Accused 2,3,4,5 and 6 at the same time while they were travelling in a vehicle along with Jay Singh, Sujit and Ropate corroborates the evidence given by the other witnesses in this case. Further it should be noted that even the Accused persons did not deny that they were arrested in that manner although they gave various reasons to be in the same vehicle.
    
31. Although there was no evidence adduced to establish that the 2nd Accused was present at the alleged meeting, the evidence adduced with regard to the 2nd Accused's subsequent conduct clearly establishes that he was acting together with the other Accused person and there was an agreement between them with regard to a conspiracy to commit an offence.
    
32. I have considered the evidence given by the Accused 2, 4, 5, 6 and their witnesses. It should be noted that none of the Accused persons could not create even a slightest doubt in the Prosecution case as the Defence evidence lacked consistency and credibility.
    
33. While giving evidence Accused 2 said that he went to help "Bosco" to steal a vehicle belong to Hydraulic Hose. He said he refused to steal it as it belongs to the Company his wife works for and on their way back they picked up some passengers from the road.
    
34. Accused 4 gave evidence that on the 2nd may 2008 he went to collect his track pants sent by his spouse's elder sister in New Zealand. He said he got into a van on his way back which was filled with other passengers. However the wife of the 4th Accused totally contradicted his evidence when she was cross examined.
    
35. Accused 5 said that he came from Suva and on the 2nd May he went to the Natabua prison to drip a paper for a prisoner. He said on his way he got into a 7 seater van which was later stopped by the Police. He said the Police officers took some bags which were under the seats but he does not know whose bags were they. Further he said that he knew some masks and some other implements were found in the bags. However the brother of the 5th Accused explicitly contradicted his evidence when he was cross examined by the prosecution.
    
36. The sixth Accused said that he was drinking grog on the 1st May 2008 and was at home. He said on the following day he went to his uncle's place to ask for some sugar. He said that on his way back he got into a 7 seater van which was later stopped by the Police. It should be noted that the witnesses who were called by the 6th Accused contradicted each others evidence.
    
37. It should be noted that the evidence adduced by the Accused 2,4,5 and 6 were full of contradictions and inconsistencies. The explanations they gave in respect of being in the same vehicle did not sound reliable at all. Although the Accused need not prove their innocence they could not at least create any doubt in the Prosecution case. Thus I am not inclined to accept their evidence.
    
38. As it was earlier stated conspiracy is an offence which is very difficult to establish. It will always be risky to convict Accused solely on the evidence of accomplices. However in this case the prosecution was successful in adducing other direct and circumstantial evidence as well to corroborate the evidence given by Jay Singh and Ropate Drauniniu. Further evidence adduced regarding the subsequent conduct of the 2nd, 4th, 5th and 6th Accused persons clearly demonstrates that they acted in that manner following a conspiracy to commit an offence. In view of the forgoing reasons I am convinced that the Prosecution was successful in establishing the offence of conspiracy to commit an offence of robbery with violence. In the circumstances I am satisfied that the Prosecution has proved the second Count beyond reasonable doubt. Thus I find the 2nd, 4th, 5th and the 6th Accused guilty of the second count.
    

3rd Count

39. The 2nd, 4th and the 5th Accused are charged for the third count for Unlawful use of motor vehicle. Prosecution witness Jay Singh gave evidence that he gave the ignition key of vehicle registration number DE 407 to the 2nd Accused when he was with the 6th Accused. Jay Sigh said that the 2nd Accused got off from his vehicle in the town and he later saw him driving the single cab. Later the Prosecution adduced evidence that the 2nd Accused drove the said vehicle along with the 4th and 5th Accused. Jay Singh said after the robbery was aborted the 2nd,4th and 5th Accused were picked up from somewhere in Natabua.
    
40. The evidence adduced by the prosecution in this regard could not be challenged by the Accused persons. It was established by the prosecution that the vehicle registration DE 407 belong to Hydraulic Hose and it was taken away without the consent of the owners. Further the Prosecution established that the said vehicle was used by the 2nd, 4th and 5th Accused for their use without any lawful right. The prosecution evidence revealed that this vehicle was later found by the Police whilst it was left by the Accused.
    
41. I am satisfied that the prosecution proved the third Count as well beyond reasonable doubt and I find the 2nd, 4th and the 5th Accused guilty of the third count.
    
42. In the circumstances I convict the first Accused for the first count. I convict the 2nd, 4th, 5th and 6th Accused for the second count. I convict the 2nd, 4th and 5th Accused for the third count.
    

Rangajeeva Wimalasena
Resident Magistrate
Lautoka
21.09.2012