ROBBERY WITH VIOLENCE: Contrary to section 293(1)(b) of tnal Code, Act 17.
Particulars of Offence
MITIELI KALOUDIGIBECI, SIKELI TAMANI, SULIASI RAPUI and MAUSIO SUSAU, on the 4th day of August 1997 at Nasinu in the Central Division,
robbed MING JIU YEE of $2700.00 cash and immediately after such robbery used personal violence on the said MING JIU YEE.
On the same day he was sentenced to 18 months imprisonment to be served concurrently with the te imprisonment he was then serving,
and to $50 court costs. sts. His co-accused Suliasi Rapui was given the same sentence.
The Appellant now appeals against conviction. His grounds of appeal are that:
1. &nbbsp;& p;&bsp; &bsp; &&nbp;;&bsp; &nbbp; Tpan>The Magistrate should not have believe politnesses;
2. p;&nbbsp; &nbssp; &nbp; &nbp; &nbp; ; was inas insufficifficient evidence that he had beund isessi a sciver hinese currency;
3. &nnsp;&&nsp;;&nspp;&nssp;&nsp; &nsp;;&nbpp; The learned Magistrgistrate failed to consider the Defence case.
The facts of the case were led in evidence on 15th November 2000. Ming Jiu Yeehop keeper at Ming’s Store in Laqere gave evidence that
in t in August 1998 he was in the shop with his wife and two children, when at about 1.30am, four people broke into the shop through
the back door. They forced the door and came inside, wearing masks and towels over their heads. The sitting room light was on and
they forced his head down and demanded money. They dragged him into the shop, and he showed them the till. They then took the money,
then went to his wife’s bedroom, where she lay sleeping, and took more money from the bedroom. The total taken was $3000.00 including
Chinese currency in notes. He identified in court, the currency taken from his house. He could not identify any of the robbers.
On the 4th of August 1997, whilst on an investigation in another case, Sergeant 1141 Apakuki of the Valelevu Police Station, went
to s the Appellant’s house in W in Wainibuku. As they came out of his house, a white taxi stopped outside, with the accused inside,
and the first accused at the trial (who pleaded guilty). They were searched and found to be in possession of money and house breaking
implements. They were taken to the Nasinu Police Station.
The person who actually searched the Appellant was PC 1678 Mitieli, who said that the Appellant had a red screwdriver with him, some
Fiji money ($120.00) and two Chinese currency notes. He also had two bunches of car keys with him. He said that the Appellant and
the first accused were first taken to Valelevu Police Station where they admitted they had broken into a Chinese shop at Laqere.
They were then taken to Nasinu Police Station.
PC 1998 Sanaila also gave evidence confirthat the Appellant told them he had taken part in a break in at Laqere Bridge.
The Appellant was interviewed and charged. Under caution, the Appellant said that he knew nothing about the robbery, that he the first
accused had been been at Nadera to buy marijuana from an Indian man, that he did not meet the man but instead drank grog with one
‘Masio’ after which he and the first accused returned home by taxi. They were then arrested by police and taken to the station. He
said he had $500 cash on him and a screwdriver. He said the money was his, and that the screwdriver was lying next to him. He said
he did not know how the Chinese currency was found on him. His charge statement was a complete denial of the offence.
The search list does not specify what was found on each man, but the twnese currency notes, listed as BR66307900, and YH98597907 were
listed as being seized from from “Sikeli Tamani and Mitieli Kalou”. These were the notes (then marked MFI 1(a) and (b)) identified
by Ming Jiu Yee in his evidence.
That was the evidence against the Appellant. In total the evidence was that on the same day as the robbery atre Bridge, (and there
is nois no evidence of the exact time difference) the Appellant was found with some of the currency stolen during the 1am robbery.
I see no relevance of the evidence of the screwdriver. There was no evidence to suggest that a red screwdriver was used in the robbery.
Similarly the evidence of the possession of car keys appears to have no relevance to the case.
The remaining evidence implicating the Appellant was the evidence of his verbal sions to the police at Valelevu Police Station. There
was nwas no written record of these admissions, and the police notebooks which might have contained this admission, were not tendered.
It appears that the learned Magistrate gave no weight to this admission because she said that she convicted the Appellant “in the
light of the compelling circumstantial evidence” (my underlining). The circumstantial evidence can only be a reference to the house-breaking implements found in the taxi,
and the Appellant’s possession of the Chinese currency. I consider that she was right to ignore the evidence of the verbal admission.
The burden to prove voluntariness and admissibility of a statement to the police, is always on the prosecution. According to the
court record, no evidence was led as to the actual words used, whether a copy of the diary or notebook entries were available for
perusal, whether the admissions were made voluntarily, and whether there were any inducements or threats used to procure the admissions.
In the absence of such evidence, a reasonable court could not put any weight on the evidence of these admissions.
ass=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> The grounds of appeal
The Appellant in his grounds of appeal, and his written submissions, said that the evidence was insufficient for conviction, ant the
police officers shoulshould not have been believed.
Of course, the learned Magistrate believed the police witnesses, and the court record shows no glaring inconsistencies or proven lies
which might have affected their credibility adversely. An appellate court will rarely interfere with a finding of fact made by a
subordinate court.
The real question is whether, on the prosecution evidence (which was circumsal) there was sufficient evidence to convict. According
to g to “the doctrine of recent possession” when a person is found in possession of recently stolen goods, and cannot explain such
possession satisfactorily, a court can infer that he or she stole the goods, or received them fraudulently.
In Raviraj & Others (195 Cr. App. R. 93, the Court said, at page 107:
“The doctrine is only a particular aspect of the general proposition that where suspicious circumstances appear to demand an explanation
and no explanation or an extremely incredible explanation is given, the lack of any explanation may warrant an inference of guilty
knowledge in the defendant. This again is only part of a wider proposition that guilt may be inferred from unreasonable behaviour
of a defendant when confronted with facts which seen to accuse.”
As to evidence which is circumstantial, although the House of Lords has held in McGreevey -v- DPP (1973) 1 WLR 276, the court can convict when when it is satisfied of the defendant’s guilt beyond reasonable doubt, and that no special direction
is needed where the evidence is circumstantial, it is usually appropriate to ask if the circumstantial evidence, taken as a whole,
is not only consistent with the accused’s guilt, but is also inconsistent with any other reasonable conclusion (Omufejezyk (1955) 1 QB 388 (per Lord Goddard CJ).)
On the evidence therefore of the evidence of the recent possession of the currency notes, was there any credible explanation for such
possession? In his caution interview, the Appellant was asked about the Chinese currency, and his answer was “I do not know anything.”
When he was asked again he said “I do not know how the currency and the card came to me.”
He offered no explanation for the possession of the currency. On the evidence that the Chinese currency was identified by the shop
o and on the evidence that that the robbery took place the same day as the police search, there is really no other reasonable explanation
for the possession of the currency, other than the Appellant’s guilt.
On the evidence therefore, I find that the learned Magistrate did not err in convicting the Appellant. The appeal against convicts
unsuccessful.
<
As to sentence, the Appellant did not appeal against sentenr did he make any submissions on sentence. He was right not to do so. His
sentence of 18 mo18 months imprisonment (to be served concurrently with his present term) is hardly excessive for an offence for
which the established tariff is from 4 years to 7 years.
This appeal fails.
Nazhat Shameem
JUDGE
At Suva
21st September 2001
Haa0052j.01s
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