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State v Malatolu [2012] FJMC 72; Criminal Case 340.08 (3 February 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 340/08

BETWEEN

THE STATE

AND

SAULA MALATOLU

JUDGMENT

1 The Accused is charged with one count of robbery with violence. The statement of offence and the particulars of offence are as follows;

Statement of Offence
Robbery with violence contrary to Section 293 (1) b of the Penal Code.

Particulars of Offence

Saula Malatolu on the 26th day of April 2008 at Lautoka in the Western Division robbed Ashant Kumar of assorted ladies cosmetics valued $300-00 and a pair of canvas valued $90-00 to the total value of $390-00 and at the time of such robbery did use personal violence on the said Ashant Kumar.

2 Originally the accused was charged with burglary, larceny in a dwelling house and for damaging property. On the 29th April 2008 a substituted charge was filed and on the 30th June 2009 the three counts which were initially filed were withdrawn by the Prosecution. Accordingly the accused has pleaded not guilty to the new count of robbery with violence and the case was taken up for trial on the 20th September 2010.

3 The accused was unrepresented and the Prosecution was conducted by a Police prosecutor. Four witness gave evidence for the Prosecution and after the Prosecution case was closed, the Court held that the Prosecution has made out a case for the accused to reply. The accused and another witness gave evidence for the Defence.

4 Section 293(1)(b) of the penal code reads as follows;

"Any person 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."

5 The Prosecution witness, Ashant Kumar gave evidence that on the 25th April 2008 he went to sleep around 9.30 in the night. He said around 1.45 in the morning he was woken up by his wife. The witness said when he opened his eyes he saw two persons inside their room. He further said that they normally keep a 60 watt lamp on, in the room since their daughter is small. He said that he saw the face of one person but the other's face covered. The witness said that the one whose face was not covered was wearing a black and red stripes T shirt. He said when he tried to stand up one of them punched him and he fell on the floor. Further he said that they broke a pedestal fan and hit him with the iron rod of the fan. Ashant Kumar said that his wife took the child and jumped out of the window. He said he had come around the house to the window of the room and when the two persons tried to get out of the window he found another iron rod and hit them. He said the two persons ran away and he even gave a case to the person who was not covering his face. Also he said that items worth of $390-00 were stolen by them.

6 Ashant Kumar said that soon after the incident a Police vehicle came to the scene and he was taken to the hospital. He said he gave the description of the two persons to the Police. After about half and hour the Police had informed him that they caught two boys. The witness had gone to the Police Station and he said that he identified the accused from a distance when he entered the Police Station. He said when he went closer he identified the accused by his face. The T shirt the accused was wearing was shown to the witness and he positively identified it.

7 The main issue in this case was the identification of the accused. The accused vehemently disputed the identification. However the witness, Ashant Kumar said that he identified the accused by his face since there was enough light in the room. Further the witness said that he confronted the accused a few times during this incident.

8 The accused cross examined the witness on this issue in the following manner;

Q: Did you see me on that day?

A: Yes I saw you.

Q: There are different types of jerseys, was I the only one who wear that jersey?

A: I saw you wearing it. I saw your face also not only the T shirt.

Q: At the Police Station you only identified the T shirt not me?

A: Before I enter I saw him. When I went in I saw his face and told the Police this is the one.

9 It is very clear that although the witness has mentioned about the T shirt of the accused that is not the only manner in which he has identified the accused. The witness clearly said that he saw the accused's face during the incident. Also it should not be forgotten that the witness saw the accused nearly a half and hour later at the Police Station. Thus it can be expected that the witness had a fresh memory to identify the accused, who robbed him a short while ago.

10 Rena Ritika Kumar gave evidence that on the 26th April 2008 when she was sleeping with her husband and the baby, she saw two men trying to enter the house around 1.45am. She said that they entered from the window as she work up her husband. She said that she shouted and her husband started struggling with them. She said that her husband was assaulted with an iron rod and she got out of the room with the baby. She said they have taken items worth about $300-00 - $400-00. Further she said that one person was wearing a black and red stripe T shirt. She identified the T shirt when it was shown to her. Although she did not positively identify the accused she said that the accused looks like one of those persons.

11 SC 17345 Joeli Maravi gave evidence that on the 26th April 2008 around 2am in the morning he arrested the accused whilst he was hassling a person near Village 4 Cinema. He said there was another person and he ran away. The witness said that the accused was wearing a black and red T shirt. He said that he arrested him and handed him over to the Police Station. The witness further said that later one person came and identified the accused as the person who came to his house. The witness also said the accused is known to him and he has arrested the accused several times before.

12 I have considered the evidence given by the accused as well. The accused denied that he robbed Ashant Kumar. Whilst giving evidence the accused said that he was arrested for another offence and the Police charged him for this offence. He also identified the Prosecution exhibit 1 and confirmed that it was the T shirt he was wearing on the day he was arrested. In reply to cross examination the accused said that on that night he was at the Zone Night Club with one Mosese Tuinanuya.

13 Mosese Tuinanuya gave evidence for the Defence. He said that the accused drank together with him at his place. He said that later he came to Hunter's Night Club with some other people. He said that the met the accused inside the Hunter's Night Club. After drinking there he said that they all came out with the accused and on their way back, the Police came and arrested the accused. However it should be noted that not only this witness contradicted the evidence of the accused, his credibility too was attacked successfully by the Prosecution during the cross examination. Finally the defence witness said that he was giving evidence regarding a different case.

14 I have perused the caution interview too. The accused has not mentioned anything about an alibi. He has just denied the allegation and has said that he will answer in Court. It should be noted that although the accused tried to put forward an alibi as his defence I am not satisfied about the credibility of the evidence he gave in Court. Further the credibility of his witness was profusely damaged by the Prosecution. I am reluctant to accept the evidence of the Defence witness as his evidence was so inconsistent and full of contradictions.

15 I have carefully examined the evidence given by the Prosecution witnesses. I am satisfied that the Prosecution witness, Ashant Kumar has positively identified the accused as one of the persons who robbed him. Further the Prosecution proved that the witness was assaulted during the incident and some items were stolen by the accused and the other person at this incident.

16 I am satisfied that the Prosecution has proved all the elements of the offence the accused is charged with beyond reasonable doubt. Accordingly I convict the accused for robbery with violence contrary to Section 293(1) of the Penal Code.

28 days to appeal.

Rangajeeva Wimalasena

Resident Magistrate

Lautoka

03.02.2012