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State v Ketewai [2018] FJMC 128; Criminal Case EJR 01 of 2017 (25 September 2018)

IN THE MAGISTRATES’ COURT OF FIJI

AT TAVUA

CRIMINAL JURISDICTION

Criminal Case No: EJR 01 - 2017

HAC 01 - 2017

CF 281 - 2016

STATE

-v-

LUKE KETEWAI

For The Prosecution : Inspector Lenaitasi [ Police Prosecution ]

For The Defendant : Ms Baleilevuka

Trial Date : 11^th day of September 2018

Date of Judgment : 25^th day of September 2018

JUDGMENT

BACKGROUND

1. The Defendant is charged with [ an Amended Charge ]:
   

Statement of Offence

ROBBERY: Contrary to section 310 ( 1 ) ( b ) ( i ) of the Crimes Decree Act of 2009.

Particulars of Offence

LUKE KETEWAI, on the 11^th day of December, 2016, at Vatukoula, in the Western Division, stole $27 cash ( Fijian currency) and 1 x Duos brand mobile phone valued at $80, all to the total value of $107 and being the property of NILESH KUMAR, and at the time of stealing the said items LUKE KETEWAI used force on NILESH KUMAR with intent to commit theft.

2. The defendant was initially charged with aggravated robbery. He had a co-accused.
   
3. Aggravated robbery is an indictable offence. For that reason, it was transferred to the High Court for trial.
   
4. The High Court exercised its discretion and vested extended jurisdiction to the Magistrates’ Court pursuant to section 4 ( 2 ) of the Criminal Procedure Act 2009 to try the matter.
   
5. For that reason, the matter was remitted to the Magistrates’ Court.
   
6. On the 14^th day of August 2017 when the case was before the Magistrates’ Court, the prosecution withdrew the charge against the defendant’s co-accused resulting in his discharge and then filed the current amended charge of robbery against the defendant alone.
   
7. The current charge of robbery is an indictable offence, triable summarily.
   
8. On the same day, that is , the 14^th day of August 2017 when the amended charge was filed for robbery, the defendant elected to have his case tried in the Magistrates’ Court.
   
9. He also pleaded not guilty to the charge of robbery.
   
10. The matter was fixed and proceeded to trial after the defendant had engaged a counsel.
    

PROSECUTION’S EVIDENCE

PW1

11. Prosecution Witness 1 [ PW1 ] was Nilesh Kumar.
    
12. He said in evidence that he is a driver by profession. He was in Tavua town on the 11^th of December 2016 at around 5.30pm going towards Vatukoula. It was a Sunday.
    
13. On the way, he said that he was stopped by 2 Itaukei boys. PW1 said that they were ‘forcing’ him to stop.
    
14. PW1 stopped and they got into the car.
    
15. Both of them sat inside the car but at the back passenger seat.
    
16. When PW1 drove past a bridge, he felt his seat belt tightened. He tried stopping the vehicle but it went off road.
    
17. He described that when the seat belt was tightened, his neck was pulled towards the back.
    
18. PW1 says that was the first time he felt the seat belt that way.
    
19. He identified the defendant as the one who held him from the back and was holding PW1’s front pocket.
    
20. PW1 says that the defendant was wearing a white t shirt on that day.
    
21. They were in the vehicle for 20 minutes.
    
22. PW1 heard the boys talking when they were inside the vehicle.
    
23. That was the first time he had seen the defendant too.
    
24. PW1 said that some shopkeepers were nearby and they came to help him. One of them he knows as Suren.
    
25. PW1 mentioned that the items that was taken from his front pocket included chewing gum and maybe $25 - $26. There could be other things but he has forgotten it.
    
26. His phone inside the vehicle worth $70 was also stolen.
    
27. In cross examination PW1 said that he was driving his brother’s vehicle on that day in question. He was not doing any ‘private job’ on that date.
    
28. PW1 denied that the defendant sat in the front seat. He said that the defendant and the other passenger both sat in the rear passenger seat.
    
29. PW1 maintained that it was the 1^st defendant who pulled his seat belt.
    
30. PW1 said that it was the defendant who took the money from his front pocket but he did not say that the defendant took the phone from PW1’s vehicle. PW1 after having run away and returning to the vehicle, then saw that the phone was missing.
    
31. PW1 said that the phone was not recovered but he received the monetary value of the phone from the defendant. The phone PW1 says is worth $70.
    
32. PW1 explained that the defendant gave him the money ( around $130 ) with the help of the police, a day after the incident.
    
33. PW1 said that he was medically examined because of the incident and he showed police his torn shirt.
    

PW2

34. PW2 is Suren Chand.
    
35. He is a businessman, running a grocery and liquor shop at Toko, Vatukoula.
    
36. On the 11^th of December 2016, PW2 was outside his shop.
    
37. His shop is about 9 meters away from the road.
    
38. PW2 saw a vehicle come past his driveway and continued down the road. He then saw someone grabbing the driver of that vehicle. PW2 called for people to go and see what was happening.
    
39. PW2 saw two people get off and run away from the car.
    
40. PW2 saw this from 9 meters away.
    
41. This was around 6.30pm.
    
42. PW2 could not see who exactly was in the vehicle but when they ran out, PW2 recognised that one of them was the same man who had stoned his house before.
    
43. He identified that man to be the defendant.
    
44. PW2 refers to the defendant as Bule.
    
45. In cross-examination, PW2 said that the defendant came to buy beer at his shop before his shop was stoned.
    
46. PW2 said that the defendant came to buy with Anasa who is PW2’s neighbour.
    
47. PW2 asked Anasa who the defendant was.
    
48. PW2 identified the defendant as the one who held the driver.
    
49. PW2 maintained that he saw this from 9 meters away.
    
50. PW2 added that when they were inside the vehicle, he could not see their faces but when they exited the vehicle then he could see that it was the defendant.
    
51. PW2 said that there was still light at the time and he could see the defendant.
    

CASE TO ANSWER

52. After prosecution called their 2 witnesses, the court found that there was a case to answer.
    
53. The defence were provided their options and the defendant chose to give evidence.
    

DEFENCE CASE

54. DW1 is the defendant Luke Ketewai.
    
55. He said that on the 11^th of December 2016 he was in town and they were having a break up party.
    
56. He said that he only came to know PW1 at the police station.
    
57. The defendant said that he was at the police station because PW1 alleged that he robbed him.
    
58. When he was told this allegation by police, the defendant said that he wanted to meet PW1.
    
59. He did meet PW1.
    
60. The defendant explains that PW1 was called to bring drinks over for their party.
    
61. The defendant said that ‘every time’ he met PW1 in Tavua town, PW1 would tell the defendant that he was happy that the defendant paid him the money.
    
62. The defendant explains that the police told him to pay the $130 to PW1 so that the case would not proceed or be cancelled.
    
63. The defendant also said that he has a namesake and it is his namesake that stoned PW2’s house but PW2 keeps blaming the defendant.
    
64. PW2 is the defendant’s neighbour and they have been neighbour’s for 12 years.
    
65. When the defendant was inside PW1’s vehicle, the defendant said that he sat in the front passenger seat. The defendant passed out as he was drunk.
    
66. In cross examination, the defendant repeated that PW1 drove them on the impugned day.
    
67. The defendant said that he consumed lots of drinks. He passed out at the barbershop.
    
68. The defendant said that on the way to his home, they were waking him up.
    
69. He denied robbing PW1 and said he could not have robbed because he had withdrawn $100.
    
70. The defendant said that he bought 4 cans and then they called a taxi or PW1.
    
71. The defendant said that PW1 is fabricating this allegation.
    
72. The defendant said that he went home from the taxi.
    

ANALYSIS

BURDEN AND STANDARD OF PROOF

73. I remind myself that the burden is on the prosecution to prove the allegation as the defendant is presumed innocent until proven guilty.
    
74. Even if I reject the evidence of the defendant or I don’t accept his denial, it doesn’t necessarily mean that the prosecution has proven their case.
    
75. I remind myself too that the prosecution’s evidence must satisfy me beyond a reasonable doubt or I must be sure that it is the defendant who committed the offence, before I can find him guilty.
    

ELEMENTS OF THE OFFENCE

76. The defendant is charged with committing robbery which is contrary to section 310 ( 1 ) ( b ) ( i ) of the Crimes Act 2009.
    
77. The elements are:
    
    1. The Defendant;
       
    2. Committed theft; &
       
    3. At the time of committing theft, used force on PW1 Nilesh Kumar
       
78. Theft is when a person dishonestly appropriates property belonging to another, with the intention of permanently depriving the other of the property [ section 291 ( 1 ) of the Crimes Act 2009 ].
    
79. Treating a property as if it was yours without the consent of the owner is tantamount to appropriating the property [ section 293 ( 1 ) of the Crimes Act 2009.
    
80. Any decent dictionary will define force to mean something that is done through compulsion or coercion or something that is involuntary. If it is in relation to a physical matter such as a door, it could mean breaking through.
    
81. It is really a matter of fact and degree and it is up to the presiding court to discern whether the action taken was forceful.
    
82. In summary, robbery involves two main components.
    
83. It is stealing but at the time or immediately before stealing, force is used.
    

FINDINGS

84. Giving $130 to PW1 one day after the incident could be construed as an admission of guilt by the defendant or circumstantial evidence of his guilt.
    
85. However, I don’t place any weight on this evidence.
    
86. Suspects or defendants do these things for various reasons. Some do it because they are ignorant of the law as it could be construed as trying to interfere with a witness. Some do it in the hope that the case will end and there is no further action although they are innocent. Some, because they are genuinely guilty.
    
87. I am inclined to accept that the defendant in the hope of ending the matter quickly, decided to take the step he did and pay the $130. I don’t take this as a sign of his guilt.
    
88. Incidentally, it is not in dispute that the defendant was in the vehicle on the day in question.
    
89. Where the parties’ versions diverge is in relation to the tightening of the seatbelt and the grabbing of the driver or PW1 from behind and the taking of PW1’s properties.
    
90. The defendant says that he didn’t do it. He says that he had just withdrawn some money and so he had no reason to. He also says that he was drunk or had passed out so he was not in any condition to commit the robbery.
    
91. Even if I reject the defendant’s version, it does not mean that he is guilty.
    
92. It is the prosecution that must satisfy me that it was the defendant. If the evidence of the prosecution satisfies me, then it is axiomatic that I reject the version of the defence although they are not obliged to prove their innocence.
    
93. Having processed the evidence, I am certain that this case is not about mistaken identification.
    
94. A reading of the defence case fortifies this view.
    
95. PW1 was in the company of the defendant for a while on the trip to Vatukoula. PW1 identified the defendant to be the one who grabbed him from behind and took out things from PW1’s front shirt pocket.
    
96. PW1 met the defendant a day later where the defendant gave him some money.
    
97. Although this was the first time that PW1 had met the defendant, that the defendant according to PW1 was seated in the rear passenger seat and that there was no subsequent identification parade, PW1 and the defendant’s subsequent meeting at the police station suggests that PW1’s initial inclination that it was the defendant is accurate.
    
98. Even if I disregard the accuracy of PW1’s identification of the defendant, PW2 who was standing 9 meters away identifies the defendant to be the assailant. Even the defendant when giving evidence admits that he is neighbours with PW2.
    
99. The real question here is not the accuracy of the prosecution witnesses’ evidence.
    
100. The real issue is credibility. Or whether PW1 and PW2 should be believed that it was the defendant.
     
101. I was not satisfied with PW1’s explanation that the defendant and another forcefully stopped him on the road to Vatukoula and that is how they came to be inside PW1’s vehicle.
     
102. I am convinced that PW1 was lying when he described how the defendant and the other male got into his vehicle.
     
103. PW1 was illegally operating and charging passengers on that day in question. This I am sure of and it comfortably explains how both the defendant and the other man got into PW1’s vehicle.
     
104. Despite not believing PW1 on that portion of his evidence, I do believe PW1 that it was the defendant who tightened the seat belt and grabbed PW1 from behind and took the items out of PW1’s front shirt pocket.
     
105. I observed PW1 when giving evidence and I believe him on that part.
     
106. In addition, I accept that PW2 is not in good terms with the defendant as PW2 holds the defendant responsible for stoning his shop.
     
107. PW2 was not coy about his dislike of the defendant when giving evidence.
     
108. A person can have an animus relationship against another but it does not necessarily mean that they will fabricate stories. It certainly calls for caution when assessing that witnesses’ evidence or assessing the evidence of someone who may have an axe to grind against the defendant.
     
109. Fabrication was in my mind when I heard and observed PW2 giving evidence and also when I retired to consider both what I observed in court and the totality of the evidence or court record.
     
110. I am still satisfied that PW2 was not making up the story.
     
111. I believe PW2 that he saw the defendant grabbing PW1. PW2 did not see the defendant’s face at first because it was obstructed by the vehicle but when he came out, PW2 saw that it was the defendant.
     
112. I also believe PW2 that the defendant ran from the vehicle when others came to help PW1.
     
113. This means that the defendant was not passed out as he claims.
     
114. PW1 and PW2’s evidence satisfies me that the defendant although drinking, was aware of what was going on and was sober enough to run away from there.
     
115. I find all the elements of the allegation, proven beyond a reasonable doubt.
     
116. Having found that it was the defendant who grabbed PW1 and took the valuables from PW1’s shirt pocket, it could be circumstantial evidence that the defendant also took the other items from PW1’s vehicle such as the phone.
     
117. Circumstantial evidence can be powerful evidence but it must be considered with care. It is evidence from which a reasonable inference can be drawn linking the defendant to the offence. It should not be confused with conjecture. Timing, motive, opportunity amongst other factors assist in determining whether there is sufficient circumstantial evidence. At the end of the day, the court must be convinced beyond a reasonable doubt [ Varasiko Tuwai v. The State Criminal Appeal Number CAV 13 of 2015 ( 26^th August 2016 ) at paragraph 51 to 53 ].
     
118. To repeat, I am sure that it was the defendant who tightened the seat belt and grabbed PW1 or used force and took the valuables or approximately $25 worth of items from PW1.
     
119. However, from the evidence, I am not sure who took the other items from PW1’s vehicle. This included PW1’s phone and other valuables.
     
120. The evidence suggests that the defendant ran when help approached.
     
121. PW1 also said that when he came back to the vehicle, his phone was missing.
     
122. There was also another person who was inside the vehicle at the time. It could be that this person took the phone and acted on his own independently of the defendant.
     
123. There are other probabilities relating to the other missing items.
     
124. I am not sure that the defendant stole the other items in the vehicle.
     

CONCLUSION

125. Based on the aforementioned reasons, I am satisfied beyond a reasonable doubt or I am sure that the defendant committed the robbery as alleged on PW1 Nilesh Kumar which is contrary to section 310 ( 1 ) ( b ) ( i ) of the Crimes Act 2009.
     
126. I find that the defendant used force at the time of stealing PW1’s valuables.
     
127. I am sure that the defendant used force and only stole PW1’s valuables which was inside PW1’s front shirt pocket.
     
128. These valuables approximate to $25.
     
129. I am unsure who stole the other items which belonged to PW1.
     
130. I will now hear your mitigation Mr. Luke Ketewai.
     

_____________________

LISIATE T.V FOTOFILI

Resident Magistrate

At Tavua this 25^th day of September, 2018.