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State v Tikina [2013] FJMC 193; HAC002.2012, 058.2012 and 057.2012 (15 May 2013)

IN THE MAGISTRATES COURT AT NASINU
(Under extended jurisdiction of High Court –Suva)

High Court Cases Nos: HAC: 002/2012, 058/2012 and 57/2012
Nasinu Criminal Cases Nos. 18/2012, 1279/2011 and 1283/2011

STATE

-v-

TIMOCI TIKINA
EPARAMA KAITANI
APISALOME KOLINIVALU
ILIESA VIRIBALE

PC Ravi Narayan for the prosecution
All are present and appeared in person

JUDGMENT

1] The accused were arrested separately. Both counts are indictable offences and cases were sent to the High Court. All cases were remitted back to this court under extended jurisdiction of the High Court. Charges were then amended and amalgamated. All four accused were tried on following offences.

AMENDED CHARGE:

FIRST COUNT

Statement of Offence [a]

AGGRAVATED BURGLARY: Contrary to Section 313 [1] of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

TIMOCI TIKINA, EPARAMA KAITANI, APISALOME KOLINIVALU and ILIESA VIRIBALE on the 18th day of December 2011, at Tovata, in the Central Division entered into the dwelling house of Dhan Raj as trespasser, with intent to commit theft of a particular item of property from the said house.

SECOND COUNT

Statement of Offence [a]

AGGRAVATED ROBBERY: Contrary to Section 311 [1] [a] of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

TIMOCI TIKINA, EPARAMA KAITANI, APISALOME KOLINIVALU and ILIESA VIRIBALE on the 18th day of December 2011, at Tovata, in the Central Division stole $10,000 cash from Dhan Raj.

2] At the trial all four accused pleaded guilty to the count one aggravated burglary. But they disputed count 2 saying that they did not steal any money from PW1's house. . The trial went on that issue for second count.

3] PW1 Dhan Raj called first to prove this charge. He said he lives with his wife 6 children and two wife's relatives. He is the Manager of "Kingdom Closet". He manages 4 shops and timber yard. He said that the normal expected income from a shop would be $2000 to $3000 per day. He said he can recall 18th December 2011, it was early morning of Sunday, and half pass two his child shouted. The one robber came to him and jumped on him, but he managed to escape and run to the security. The witness said money was kept inside the draw in the small bag. The witness said it was $10,000 all were notes and coins were put separately. The witness said this income was sales of 4 shops on that weekend Friday and Saturday.

4] In the cross examination, PW1 was questioned if you are a good businessman why did he keep the money in the draw. He replied it was weekend collection he was unable to bank it. He said he did not write actual amount of sales from all shops but this is individual sale from all shop for that weekend.

5] PW2 was Adi Anaseini Qisa: She said she is the Operational Manager of kingdom closet. The witness elaborated how the robbery took place. She said her left hand was dislocated by the commotion and the some robbers were caught at the scene. Since the accused only disputing the amount of money the court do not stress on other element of the charge.

6] In cross examination she said she did not say to anybody that $10,000 was not stolen. The thing that was covered with blood was one of the staffs wages the pack only 1 wages, it was covered with blood it was with the coins. She said although they had a discussion she didn't tell him about anything about the money was missing. She told first accused the Court will decide. She said smaller shop can do about $1,000 the bigger one in Suva can make about more than 2 gran. She said it was 2 day sales. It was packed into a plastic and into the drawer. The witness said the money was not insured. She said she did not see anyone took the money. She said the robbers were 20 minutes inside the house.

7] PW3-Akuila Naseqa: This witness was the Security guard of the house at the time of the incident. He informed how the incident happened but he did not know about the amount of money stolen.

8] in cross examination, the witness said the owner of the house went inside the house after the incident.

9] PW4: Livai Onisimo Soqotin: he said he was having grog session and while he was going down to home he heard shouting by neighborhood. When he was going towards to house a stick landed on his head he grabbed the one who hit. It was Jim he identified the accused. This witness did not tell anything about money that was stolen.

10] PW5: DC 2561 Vinod Chand: This witness said about the recording caution interviews. He tendered 4th accused's caution interview.

11] PW6: DC 3286 Peter: He said he conducted Eparama Kaitani's caution interview.

12] PW7: DC 3588 Alvin Kumar: this witness conducted Tinoci Tikina's caution interview.
13] PW8: PC 3712 Naveet: this witness conducted Apisolome Kolinivalu's caution interview. In cross examination, he said he did not find anything from him.

14] The prosecution closed the case. Since there is a case to answer, right to call defence is explained. All accused opted to give sworn evidence.

15] DW1: 1st Accused: Timoci Tikina: He said he pleads guilty to the count 1 entering the house but he did not take any money from the house at all. He denied assaulting PW2.

16] In cross examination he admitted he and other accomplices entered the house. He said he was drunk he cannot recall what happened there. He said he did not take the cash, but it was planned robbery.

17] DW2: 2nd Accused: Eparama Kaitani: he said they were coming from Night Club and he said that he went inside the house. But he was not stealing any money.

18] In the cross examination the accused said 3rd accused broke the glass. It was planned robbery. He said that he cannot recall because all were drunk. But he said he did not take any cash. But they know the owner of the house is a businessman he keeps money inside the house.

19] DW3: 3rd Accused: Apisalome Nakolinivalu: He said on that day they did not have any conversation, but they went straight to the house and broke the door. But he did not get any cash.

20] In cross examination, the accused admitted he broke the glass. He said they planned the robbery just inside the taxi. He admitted in the process of breaking the glass he hurt himself and blood was coming out. The prosecution suggested that blood was found where money was kept and he is the only one who hurt this process and he took the money. But the accused denied that he took the cash.

21] DW4: 4th Accused: Iliesa Viribale.: He admitted that he went in the house. He was just at the door when people shouted he ran outside. He did not take any money.

22] In the cross examination the accused said he did not know what other accused were doing. He said 2 of them (he and 3 accused Apisolome) escaped from the scene. He did not meet Apisolome. He saw 1st Accused armed with a stone.

23] Thereafter defence closed their case.

24] All accused pleaded guilty to the count 1. In their sworn evidence they confirmed it on oath. Section 313 interprets Aggravated burglary. It says:

"313. — (1) A person commits an indictable offence if he or she —

(a) commits a burglary in company with one or more other persons; or

(b) commits a burglary, and at the time of the burglary, has an offensive weapon with him or her.

Penalty — Imprisonment for 17 years."

25] The second count was denied by all accused. This count was Aggravated robbery. Section 311 interprets as;

"311. — (1) A person commits an indictable offence if he or she —

(a) commits a robbery in company with one or more other persons; or

(b) commits a robbery and, at the time of the robbery, has an offensive weapon with him or her.

Penalty — Imprisonment for 20 years"

26] Burden of proof lies on the prosecution. 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 reaso doubt. This mhis 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 hay reasonable doubt as to whto 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 reasonable dou60;about the the guilt of the accused."

27] This is straight forward case. All accused admit that the commicount 1 aggravated burglary. But they denied they robbed money from Pw1's house. The only qnly question left is to decide was did the accused steal $10,000 from PW1's house? The PW1 and 2 told $10,000 cash was stolen. Cash was in the drawer according to PWs. They said those were weekend collection from their 4 shops-Kingdom Closet. Pw2 (Adi) said she never said to first accused that no money was stolen. It is apparent; during the investigation no money was recovered. But in cross examination of all 4 accused, it shows that robbery was planned and they acted in joint enterprise for common purpose that is to steal or rob money and rob the house.

28] Section 46 of the Crimes Decree discusses Offences committed by joint offenders in prosecution of common purpose. It says;

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence."

29] In case of joint enterprise, however, it suffices if each participant (accused) can be shown to have in contemplation the probability of the execution of the planned, here is robbery. In Chang Wing-Siu v The Queen [1985] A.C. 165, 175; [1984] UKPC 27; [1984] 3 W.L.R. 677, 682; [1984] UKPC 27; [1984] 3 All E.R. 877, 880-881; [1984] UKPC 27; 80 Cr.App.R. 117, 121, stated the principle (joint enterprise) thus:

"It (the principle) turns on contemplation or, putting the same idea in other words, authorization, which may be express but is more usually implied. It meets the case of a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight,"

30] In this case all were same intention to rob the house. PW1 and 2 said the amount $10,000 cash was their weekend collection. The money was not insured and hence there is no need to put false claim by PW1. The money was kept in a drawer. It was kept in a plastic bag and in another plastic; coins and one worker's pay were also kept in that drawer. This was not stolen, but it contained blood. The only one who got injured by this process is 3rd accused Apisolome, from either party, prosecution or defence. When he broke the glass, he got injured which he admitted in the cross examination. Apisolome managed to escape for 2 months after incident. It is obvious after breaking the glass Apisolome reached the drawer and took the money sometimes without knowing other accused. But according to the common intention or principle of joint enterprise their intention was to rob the house which was succeeded by Apisolome's (3rd Accused) action. While robbing, they used forced on PW2 and her left hand was dislocated. This was robbery in company and it proved that all were acting for common purpose and thereby committed aggravated robbery. I have no doubt in my mind about the prosecution version. I admit it as true version and reject the defence. I hold prosecution proved it case beyond reasonable doubt. For second count all accused are equally liable of their actions, as any accused's action represents other's intention. Thus, all should be guilty to count 2 as well.

31] I therefore return the verdict as follows;

Count 1: all accused are convicted on their own admissions.

Count 2: all accused are convicted by full hearing.

32] I now call mitigation before sentencing. 33] 28 days to appeal.

On 15th May 2013, a Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu