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State v Tawake [2016] FJMC 244; Criminal Case 2143 of 2014 (22 December 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: 2143/2014

STATE
V
EPARAMA TAWAKE

For the Prosecution : Ms.S.Navia and Ms.Tamani(ODPP)
The Accused : In person
Date of Hearing : 21^stof December 2016
Date of Judgment : 22^nd of December 2016

JUDGMENT

1. The accused is charged with one count of Aggravated Robbery contrary to section 311(1) (a) (b) of the Crimes Decree No. 44 of 2009. The particulars of the offence are “Eparama Tawake with another, on the 12^th day of December 2014 at Vatuwaqa in the Central Division, assaulted, robbed Krisank Singh, of $20.00 cash and at the time of robbery had a knife (offensive weapon) with him”.
2. The accused pleaded not guilty for this charge wherefore this proceeded for the hearing. The prosecution called only the complainant whilst for the defence the accused gave evidence.
3. The complainant in his evidence said whilst he was going home after work the accused with another person called and asked for money. When the complainant said he did not have money the accused hit him with the knife whilst the other person assaulted him with the iron rod. The accused is the neighbor of the complainant and at that time they were close to each other. The accused was talking for 30 minutes and after the assault the accused took $20.00 from the complainant. The complainant lodged a report with nabua police station and went for medical examination. He also identified the accused in the Court. During cross-examination he said he met the accused at Bindy Street. He did not ask the accused to sniff glue with him and was not carrying a knife with him. The accused was selling coconuts and had knife with him.
4. The accused in his evidence denied committing this offence. He met the complainant in Bindy Street. The complainant asked the accused to come and sniff glue with him and then wanted to stab him. The complainant cut himself with his knife. During cross-examination the accused admitted in his police interview not mentioning about the complainant brining glue and trying to stab him.
5. 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).

6. According to the charge sheet the accused is charged with one count of Aggravated Robbery contrary to section 311(1) (a) (b) of the Crimes Decree NO 44 of 2009which reads :

“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.

7. In this case the prosecution is alleging that the accused robbed the complainant with another and also at that time had an offensive weapon with him. Even though it would have been more desirable if the prosecution relied on one limb in section 311 of the Crimes Decree instead of both, I do not think the accused was prejudiced by this. He is denying carrying the knife with him and also robbing the complainant with another.
8. Even though the prosecution led evidence to show about the identity of the accused to satisfy the Turnbull guidelines, based on the facts in this case I also do not think the identity is an issue. The accused has admitted meeting the complainant on that day.
9. Hence only issue to decide is whose version to accept in this case. The prosecution alleges that the accused with another person assaulted the complainant with a knife and stole $20.00. The accused on the other hand submits that the complainant asked him to sniff glue and then tried to stab him. He denied stealing the money or injuring the complainant on that day.
10. But as admitted by the accused he did not mention any of these in his caution interview and coming first time only in his testimony. Hence I find he is not a credible witness. I have come to this conclusion based on these omissions as well as the studying the demeanor of the accused.
11. On the other hand the complainant has clearly explained that the accused and another person called him and asked for money. When the complainant denied having any the accused assaulted him with a knife and stole $20.00 from him. The accused failed to raise doubt about this version through cross-examination.
12. Having considered the above reasons I find that the prosecution has proved this charge beyond reasonable doubt.
13. I find the accused guilty for this charge and convict him accordingly.
14. Since this court is exercising the extended jurisdiction of the High Court case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.

ShageethSomaratne

Resident Magistrate