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State v Momotu [2014] FJMC 98; Criminal Case 30.2012 (4 June 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case : 30/2012(EJ 18/12)

STATE

vs.

TIMOCI MOMOTU

PC Josuha for the Prosecution
The Accused in person

Date of Hearing : 28th and 30th May 2014
Date of Judgment: 04th June 2014

JUDGMENT

[1] The accused is charged with following offence in this Court.

AGGRAVATED ROBBERY: contrary to Section 311(1)(a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

TIMOCI MOMOTU with another, on the 8th day of January 2012 at Olga Place, Suva in the Central Division stole $54.00 cash, 1 x Alcatel phone valued at $30.00 and 1 x taxi meter valued at $270.00; all to the total value of $354.00 from MOHAMMED KASIN.

[2] The accused initially retained a counsel and pleaded not guilty for this offence and the hearing was fixed for 28th May 2014. On that day the accused waived right to counsel and proceed with the hearing.

[3] For the prosecution's case 08 witnesses (complainant and 07 police officers) were called and for the defence the accused gave evidence and also called his wife as a witness. At the end of the trial both parties opted not to file closing submissions.

SUMMARY OF EVIDENCE

THE PROSECUTION'S CASE

[4] PW1 was Mohomad kasim, the complainant in this case. He said he was working as a taxi driver for more than 10 years and on 08/01/2012 he was near Deep Sea Night Club when 03 people came and asked him to take them to Rewa. The person sitting in the front seat gave him $6 and when he was about to drop them the person sitting in the front seat held his hand whilst the accused who was sitting behind took his mobile and wallet. Other passenger took the taxi meter. After that they ran off. PW1 went and reported the matter to the police and police arrested the accused and recovered his mobile and taxi meter. PW1 also identified the accused. The prosecution also tendered the taxi meter and mobile as prosecution exhibit 01 and exhibit 02 respectively. In cross- examination PW1 said that the accused took out his mobile and wallet and he reaffirmed this in re- examination too.

[5] PW2 was PC Walter who was working at Reiwanga Police Station at that time. On that day he was doing patrol in the morning and received a report about a taxi driver being robbed and went to the area. He received information that the suspects got in to another taxi and they went to Topshop where he arrested the accused and brought him to the station. The police recovered the taxi meter from the other taxi and it was under the seat where the accused sat.

[6] PW3 was DC Peter who was the arresting officer of the accused. On that day he received report about robbery and went to the scene with PC Jone. On their way they passed 3 Fijian men and in the taxi stand received information that the suspects boarded a taxi and were in Topshop. When they went to Topshop there were only 02 people there. PW3 also identified the accused as the person he arrested on that day. In cross- examination he confirmed that there were only 2 people near the Topshop.

[7] PW4 was PC Jone who went with PW3 and arrested the accused. They later found the meter and mobile. In cross- examination PW4 said they found only 2 suspects.

[8] PW5 was PC Koroi and he said that the suspects were brought to the station and they later recovered the mobile from the taxi which the accused used to go to Topshop.

[9] PW6 was PC Jofte who was the interviewing officer of the accused. The accused was given all his rights and the caution interview was conducted in English. The record of the interview was marked as prosecution exhibit 03.

[10] PW7 was DC Pranil, the charging officer and the charge statement was marked as prosecution exhibit 04.

[11] PW8 was PC Mosesi who was the IO in this case. Through him the prosecution marked some bottles of beer seized from the accused as prosecution exhibit 05. The State closed their case after that and being satisfied with the evidence the accused was given his rights pursuant to section 179 of the Criminal Procedure Decree which allows him to testify or remain silent. The accused opted to give sworn evidence.

THE DEFENCE'S CASE

[12] The accused said he got in to the taxi with two of his friends near the night club and was sleeping. When he woke up he saw his friends assaulting the driver. He also denied stealing the mobile or wallet. He came home and there one of the other accused asked him to go to Top shop with him. The police arrested him there.

[13] DW2 was the wife of the accused and she said the accused came home early morning and went out again with his friend.

THE LAW

[14] In Woolmington v DPP [1935] AC 462 it was held that

"Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained" (per Viscount Sankey L.C. at pp. 481-482).

[15] The standard of proof where the judge has to decide an issue of fact in a criminal case where the burden of proof is on the prosecution is proof beyond reasonable doubt (ARCHBOLD CRIMINAL PLEADING, EVIDENCE AND PRACTICE 2010 page 542).

[16] In STATE v Delana - [2014] FJHC 336; Criminal Case 158.2010 (16 May 2014) his Lordship Justice Madigan defined burden placed on the prosecution in the following manner:-

"The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you."

[17] The accused is charged with one count of Aggravated Robbery contrary to section 313(1) (a) of the Crimes Decree.

[18] Section 313(1) (a) of the Decree provides:

"A person commits an indictable offence if he or she —

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

[19] Robbery is defined in section 310 of the Crimes Decree in the following manner.

1) A person commits an indictable offence (which is triable summarily) 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 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 intent to commit theft or to escape from the scene.

[20] Therefore the prosecution has to prove following elements beyond reasonable doubt in this case.

1. The accused
   
2. Commits the theft
   
3. At the time of or immediately before or immediately after such theft 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.
   
4. With one or more persons
   

ANALYSIS OF THE EVIDENCE

[21] The defence taken by the accused in this case is that he was an innocent bystander and this was committed by other accused (friends). He categorically denied taking the mobile and the wallet from the complainant on that day. On the other hand the victim in his evidence said clearly that whilst another person held his hand it was the accused who took out his mobile and the wallet.

[22] Having considered the evidence as well as demeanor of parties I am satisfied about PW1's evidence and therefore find that the accused stole the mobile and the wallet that day. This position is further confirmed by police recovering the mobile of the victim from a taxi the accused traveled after this incident.

[23] I am mindful that to convict the accused for aggravated robbery in addition to theft the prosecution needs to prove also at that time he was with one or more persons and also he used or threatened to use force on the victim. In this case even though the accused was with some of his friends the violence was used by other accused. There was no evidence led in this case to show that the accused used any force on the victim.

[24] But I believe that the accused can be liable for this offence on the principle of joint enterprise. Joint enterprise is defined in section 46 of the Crimes Decree in the following manner

"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".

[25] In State v Nute (2008) FJHC 325;HAC139.2007 (26 November 2008), Madam Shameem held that "the law is that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and while committing that unlawful act, another e is committed which is a probable consequence of that first purpose, then each of the persons involved is guilty of the final offence".

[26] In STATE v Delana (supra) Justice Madigan said:

"If you find that these two accused were two of the robbers on the 22nd July 2010, and you find that they were acting together as part of a plan to steal by robbery, then each of them is jointly liable for whatever every member of the group does. This is called in law the "doctrine of joint liability". So in the execution of an agreed plan then whatever one does, they all do. There are exceptions to this in serious cases of murder etc. but none of those exceptions apply here in this case. What it means in our case is that if you find there is a joint agreement to rob, and there is a robbery then even if one doesn't steal anything or doesn't hit anyone with a bolt cutter, he is still in law liable for these actions if he is part of the group."

[27]Therefore the prosecution needs to prove that the accused with his friends formed a common intention to rob the victim and based on that this offence was committed by one or few others in that group. To decide this issue again I would consider the evidence presented in this case.

[28] Evidence showed that the accused got in to the taxi with other two accused near Deep sea night club in the early morning and asked the driver to take them to Rewa. When the taxi was parked his friends assaulted the driver. This is confirmed by the victim as well as the accused. The accused did not take any steps to prevent this. In fact whilst this was happening the accused took out the mobile and the wallet of the victim. After the robbery all the accused ran away from the place and later all hired another taxi and went to Topshop to buy drinks again where police arrested them. All these evidence clearly shows that the accused had formed common intention to rob the victim and based on that this offence was committed.

[29] Therefore I decide that the prosecution has proved this charge beyond reasonable doubt.

[30] I find the accused guilty for this offence and convict him accordingly.

[31] Since this court is exercising the extended jurisdiction of the High Court in your case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.

H.S.P.Somaratne

Resident Magistrate