State v Vunivesi [2012] FJHC 987; HAC061.2010 (26 March 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 061/2010

BETWEEN:

THE STATE

AND:

SAULA VUNIVESI

BEFORE: Hon. Justice Mr Prabaharan Kumararatnam

COUNSEL: Ms. R. Drau for the State
Accused in Person

Date of Hearing: 15-20/03/2012
Date of Summing Up: 22/03/2012
Date of Judgment: 26/03/2012

JUDGMENT

01. SAULA VUNIVESI, you have been charged with the following charges on amended information dated 14th day of March, 2012.

First Count

Statement of Offence

AGGRAVATED ROBBERY: Contrary to section 311(1) (b) of the Crimes

Decree No: 44/2009.

Particulars of Offence

ELIA MANOA, SAULA VUNIVESI and others on the 13th day of March, 2010 at Suva in the Central Division, when armed with offensive weapon, namely a cane knife and pinch bar, robbed one Rajendra Sami of 03 pairs of gold necklaces valued at $10,000, 03 pairs of gold bangles valued at $7,000, 03 pairs of thick sized gold bangles valued at $3,500, 01 thick sized bangle valued at $3,500, 01 thick sized gold bracelet valued at 1,500, 01 gold bracelet valued at $1,500, 01 thick twisted gold chain valued at $2,500, 01 black Nokia N95 mobile phone valued at $1,350, NZ currency amounting to $300, $20,000 cash and a black HP laptop valued at $2,600, all amounting to a total value of $53,795, the properties of the said Rajendra Sami.

Second Count

Statement of Offence

AGGRAVATED ROBBERY: Contrary to section 311(1) (b) of the Crimes

Decree No: 44/2009.

ELIA MANOA, SAULA VUNIVESI and others on 13th day of March, 2010 at Suva in the Central Division, when armed with offensive weapons, a cane knife and a pinch bar, robbed one Lalita Sami of Guess gold with white stone band valued at $370,01 Diamond ring valued at $1,000, 01 Olympus grey camera valued at $300, 01 Guess brand wallet valued at $80, and 01 wrist watch valued at $150, all amounting to a total value of $1900, the properties of the said Lalita Sami.

02. After trial on these charges, the assessors returned unanimous opinions of guilty against the accused. I direct myself on my own summing up and on looking at the evidence in its entirety I find that I cannot agree with the assessors. I find the opinion of the assessors appears to be perverse.

03. In this case prosecution charged the accused jointly with Elia Manoa and some others unknown to the prosecution. Elia Manoa pleaded guilty to the charge and he was convicted accordingly.

04. The complainant and his wife gave evidence in this case. Both could not identify any body at the time of the offence. Both identified their car key and Lalita Sami identified the guess jewelleries and the box which had been found near Elia Manoa's house. Further she identified her passport in this case. But in the charge sheet the car key and her passport were not included.

05. The prosecution marked a cane knife, a pinch bar and a wall cutter through witness Terega James. But in the charge submitted against the accused by prosecution not mentioned the wall cutter. Further the prosecution not led any evidence from whom they recovered these items. Further the lap top which had been recovered and handed over to the complainant was not produced in this court by the prosecution. Hence prosecution not proved from whom they recovered the laptop.

06. Diana Kaluva's evidence has no effect against the accused in this case. It can be used only against Elia Manoa who had pleaded guilty to the charge.

07. The taxi driver though he knew the accused for considerable period of time he failed to mention accused's telephone number in this court. He had only changed some American dollars but it is not in the charge. According to the taxi driver he had seen gold bangles and ear rings in the possession of the accused. But according to Vicky Praneel it was bangles, chain and pendent. According to Mukesh Chand it was some earrings, pendants and necklaces. The taxi driver had given his statement to police on 20/03/2010 after seven days of the robbery. The delay was not explained by the prosecution.

08. As per witnesses Vicky and Mukesh it was Elia Manoa who possessed the jewelleries which had been taken for sale. Their description of jewelleries somewhat tally with the charge. Elia Manoa already pleaded guilty to the charge. Ravina Devi unable to tell court what sort of jewelleries melted by Dinesh Jogia.

09. Dinesh Jogia who is the best person to give clear description about the jewelleries which he bought from Mukesh Chand was not called to give evidence in this case. Though he was summoned but prosecution not called him to give evidence in this case. Hence there is no evidence before court what sort of jewelleries melted by Dinesh Jogia.

10. The evidence presented by prosecution is not consistence and not corroborative of each other and they fall apart in material parts. Hence it creates a genuine doubt in my mind and the benefit of doubt must be given to the accused.

11. In the premises, I find the accused not guilty on both counts and he is acquitted on both counts.

P.Kumararatnam
JUDGE

At Suva
26/03/2012