State v Matasau [2022] FJHC 176; HAC085.2021S (7 April 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO. HAC 085 OF 2020S

STATE

vs

PITA MATASAU

Counsels : Mr. Z. Zunaid for the State
Accused in Person, but tried in Absentia.
Hearings : 4 and 5 April, 2022.
Judgment : 7 April, 2022.

JUDGMENT

1. As a preliminary issue, the accused first appeared in the Suva Magistrate Court on 28 February 2020, charged with “aggravated robbery”, contrary to section 313 (1) (a) of the Crimes Act 2009 (Count No. 1) and “damaging property”, contrary to section 369 (1) of the Crimes Act 2009 (Count No. 2). The matter was transferred to the High Court on 13 March 2020. The accused appeared in the Suva High Court on 13 March 2020. His right to counsel was read and explained to him. He waived his right to counsel and chose to represent himself.
   
2. The matter was adjourned to 3 April 2020 for the prosecution to file and serve the information and disclosure. The accused was present on 3 April 2020. The accused was remanded in custody. On the next two appearances on 30 April and 15 May 2020, the accused was not in court. On 29 June 2020, the accused appeared in court and was served his copy of the information and disclosures. He was released on bail, and the matter was adjourned to 24 July 2020 for his plea to be taken.
   
3. On 24 July 2020, the following information was read over and explained to the accused:

“Statement of Offence

AGGRAVATED ROBBERY: Contrary to Section 311 (1) (a) of the Crimes Act 2009.

Particulars of Offence

PITA MATASAU & ANOTHER on the 15^th day of February, 2020 at Suva in the Central Division, in the company of each other stole 1x JI Ace mobile phone from MOHAMMED NAZIMUD DEAN and at the time of stealing from MOHAMMED MAZIMUD DEAN, used force on him.”

4. The accused said, he understood the charge and pleaded not guilty to the same. The matter was then adjourned for pre-trial conferences on 24 August, 18 September and 23 October 2020. On all those occasions, the accused was present in court. On 23 October 2020, the matter was adjourned to 25 February 2021 for another pre-trial conference. The accused failed to appear on 25 February 2021 and a bench warrant was issued against him. He failed to appear again on 26 March 2021, when the case was called. From 18 June to 4 October 2021, the courts were shut down because of the Covid-19 pandemic. On 4 October 2021, the accused again failed to appear. He failed to appear again on 22 October 2021.
   
5. On 7 December 2021, the prosecution verbally applied in court for the accused to be tried in absentia, on the ground that he had failed to appear in court since 25 February 2021. The prosecution said, the accused was aware of the court proceedings, as he had previously attended court on 13 March, 3 April, 29 June, 24 July, 24 August, 18 September and 23 October 2020. Because he was not present in court to reply to the prosecution’s verbal application, he was deemed by the court to have chosen to exercise his constitutional right to remain silent. The court then granted the prosecution’s application for the accused to be tried in absentia, relying on the authority of section 14 (2) (h) (i) of the 2013 Constitution, in that, the accused, by conduct, had chosen not to attend trial. The prosecution then asked for a trial date to be set. On this application, the accused, by not attending court, was deemed to have chosen to remain silent. Trial was then set from 4 to 8 April 2022. Further pre-trial conferences were set for 25 March and 1 April 2022, which the accused did not attend. The bench warrant against him was still pending.
   
6. On 4 April 2022, the trial of the accused in absentia started. The information mentioned in paragraph 3 hereof was read in open court. The court deemed the accused to have understood the same, as he did on 24 July 2020. The accused’s plea was taken. The court deemed the accused to have entered a not guilty plea, as he did on 24 July 2020. The prosecution then opened his case by reading and summarizing his case theory dated 17 September 2020. He then called his first witness, Mr Mohammed Nazimud Dean (PW1).
   
7. Before discussing the evidence, it must be remembered that, as a matter of law, the onus or burden of proof rest on the prosecution throughout the trial, and it never shifts to the accused. There is no obligation on the accused to prove his innocence. Under our system of criminal justice, an accused person is presumed to be innocent until he is proved guilty. The prosecution must prove the accused’s guilt beyond reasonable doubt. If there is a reasonable doubt, so that the court was not sure of the accused’s guilt, he must be found not guilty as charged and acquitted accordingly.
   
8. For the accused to be found guilty of “aggravated robbery”, the prosecution must prove beyond reasonable doubt, the following elements:
   • (i) the accused,
   • (ii) in company with one or more persons,
   • (iii) steals
   • (iv) the complainant’s property or properties, and
   • (v) before the theft,
   • (vi) uses force or threatens to use force,
   • (vii) on another person,
   • (viii) with intent to commit theft.
     
9. “Stealing” is the act of taking away someone’s property or properties without his permission, and with an intention to permanently deprive him of the ownership of that property or properties. “Force” means “any type of force, whether or not done physically or verbally, for example, beating someone with a stick or threatening to do the same”.
   
10. Before stealing the complainant’s properties, the accused, in company with one or more persons, must use force or threaten to use force to subdue the complainant or others’ resistance, and at the time, had the intention to steal.
    
11. The complainant, Mr. Mohammed Nazimud Dean (PW1) said, he recalled the 15^th February 2020, a Saturday. It was between 2.15 pm and 2.30 pm. PW1 said, the sun was shining. He said, he got off at a bus stop, opposite Garden City in Raiwai, Suva. He said, he went through an alley passing the Raiwai Mosque. He said, two i-taukei youths approached him. He said, he had never seen them before. He said, the youths tackled him to the ground and began punching and kicking him. He said, the youths later snatched his mobile phone from his pocket and fled. He said, his mobile phone was a JI Ace type. He said, he ran after them. He caught them and they fought again. He said, some i-taukei girls saw the robbery. He said, he later reported the matter to Raiwaqa Police Station. He said, he suffered bruises to his cheeks and the top right side of his head was swollen. In cross-examination, the accused was deemed to have chosen to remain silent. There was no re-examination.
    
12. The prosecution next called Ms. Elenoa Nasedra Tikoinabureveve (PW2). PW2 said, she was 17 years old at the time. PW2 said, she recalled the 15^th February 2020, between 2.15 pm and 2.30 pm. PW2 said, she had just returned from town in a bus, and got off at a bus stop beside the Raiwai Methodist Church, at Leys Road. PW2 said, she and two friends then sat at the bus stop. PW2 said, she saw two i-taukei youths attacking an Indian man by punching and kicking him to the ground. PW2 said, she saw one of the youths steal the man’s mobile phone. PW2 said, she observed the youth’s face for about one minute. The youth wore a black t-shirt and ¾ pants. She said, the youth was about 5 feet 8 inches in height. PW2 said, the youth was 20 footsteps away from her. PW2 said, the sun was shining and that enabled her to see the youth’s face. PW2 said, nothing impeded her view in seeing the youth’s face. PW2 said, she knew the youth. PW2 said, the youth was her uncle, and she had known him for 17 years. PW2 said, the youth was her mother’s cousin brother. PW2 said, her uncle’s nick name was “Jupita”, and she knew him as “Pita”.
    
13. PW2 said, she would meet her uncle, “Jupita”, about once every week. PW2 said, a special reason for remembering his face was because he was related to her and he was her uncle. Since a dock identification was impossible as the accused had absconded, the prosecution sought the Court’s leave to show PW2 a computer generated photo of the accused, for the purpose of identification. Since the accused had chosen, by conduct, not to attend trial, he was deemed by the Court, to have chosen to exercise his right to remain silent, in reply to the above application by the prosecution. The Court, in exercising its discretion, granted the prosecution’s application. In the Court’s view, the probative value of the computer generated photo, far outweighs its prejudicial effects. Had the accused attended trial in person, there would be no need for the above prosecution’s application.
    
14. Computer generated photo No. 1 was shown to PW2. She identified the person, as “Jupita”, the person she saw attacking and stealing the Indian man’s phone on 15 February 2020. Photo No. 1 was marked for identification No. 1. Computer generated photo No. 2 was also shown to PW2. She identified the person as “Jupita”, the person she saw attacking and stealing the Indian man’s phone on 15 February 2020. Photo No. 2 was marked for identification No. 2. PW2 said, after seeing the above robbery, she wanted to call the police. PW2 said, her uncle “Jupita” came to her and warned her not to report the matter to police. PW2 said, the two youths later fled the scene. PW2 said, she later took the complainant (PW1) to Raiwaqa Police Station.
    
15. PW2 said, in the last two weeks, “Jupita” was looking for her. PW2 said, she met him at the same bus stop she was sitting on 15 February 2020. PW2 said, they talked. PW2 said, “Jupita” told her to tell the Court that she saw another person, not him, attacking the Indian man on 15 February 2020. PW2 said, she later told her family about the above and later reported the matter to Raiwaqa Police Station. In cross-examination, the accused was deemed to have chosen to remain silent. There was no re-examination.
    
16. The prosecution next called DC 5053 Aceni Toga (PW3) of Nabua Police Station. PW3 had been in the police force for 8 years, 7 years of which was at Raiwaqa Police Station. PW3 said, in February 2020, he was based at Raiwaqa Police Station. PW3 recalled 25 February 2020, when he was on police duty. PW3 said he received information involving an aggravated robbery matter involving Pita Matasau, alias “Jupita”. PW3 said, the alleged robbery occurred on 15 February 2020. PW3 said, a witness had given her statement and the suspect Pita was still at large. PW3 said, he had known Pita for 7 years given his community involvement. PW3 said, while on mobile patrol on 25 February 2020 along Madam Place, he saw Pita Matasau alias “Jupita”. He later arrested him and took him to Raiwaqa Police Station, where he handed him over to DC Eliki, the police investigation officer. Pita’s photo in MFI No. 1 and 2 were shown to PW3. He identified the photos as that of Pita Matasau, alias “Jupita”. On cross-examination, the accused was deemed to have chosen to remain silent. There was no re-examination.
    
17. The last prosecution witness was PC 5479 Eliki Vakalawa (PW4) of Raiwaqa Police Station. PW4 was the police investigation officer. He compiled the police file on this case. PW4 said, he took witnesses’ statements. He sent the complainant to Raiwaqa Health Centre for medical examination. He obtained Pita Matasau’s computer generated photo from the Crime Writer and put the same in the police file. MFI No. 1 and 2 were showed to him in Court, and he identified the photos as that of Pita Matasau, alias “Jupita”. He tendered the photos as Prosecution Exhibit No. 1 and 2 respectively. On cross-examination, the accused was deemed to have chosen to remain silent. There was no re-examination. The prosecution then closed his case.
    
18. The prosecution submitted that on the basis of the evidence so far laid before the Court, there was a case to answer against the accused. The accused was deemed to have chosen to remain silent on this issue. The Court agreed with the prosecution and ruled accordingly. The standard options outlined in section 321 (2) of the Criminal Procedure Act 2009 was put to the Accused. By his non-attendance, the accused was deemed to have chosen to exercise his constitutional right to remain silent, that is, not making an opening address; not giving any evidence; not calling any witnesses and not making any closing submission. The prosecution then made his closing submission.
    
19. The prosecution’s case against the accused was based fundamentally on the evidence of the complainant (PW1) and the eye witness (PW2). PW1 said he was attacked and robbed of his mobile phone on 15 February 2020, between 2:15pm and 2:30pm. PW2 said, she was present at the crime scene at the same time. PW2 said, she saw the accused attacking PW1 and robbing him of his mobile phone, at the material time. The Court had carefully analyzed PW2’s identification evidence in terms of the R v Turnbull (1976) 63 Cr. App R. 132 guidelines. The Court had warned itself of the danger of relying on a mistaken identification, because it was always possible that an honest and convincing witness or witnesses, may be mistaken. PW2 had the suspect under observation for about 1 minute. PW2 said, he was 20 footsteps away. PW2 said, it was bright sunlight at the time. PW2 said, her observation was not impeded in any way. PW2 said, the suspect was her uncle. He was her mother’s cousin and she had known him for 17 years. PW2 said, she was 17 years at the time. PW2 said, a special reason for remembering his face was that he was her uncle. This was a case of recognition and a police identification parade was not necessary. PW2 identified the photo of her uncle, when shown the same in Court.
    
20. In my view, the quality of PW2’s identification evidence was high, and I have no reservation in accepting her identification evidence. Looking at the totality of the evidence, I find the prosecution had proven its case against the accused beyond a reasonable doubt. I find the accused guilty as charged and I convict him accordingly.
    

Salesi Temo
JUDGE

Solicitor for State : Office of the Director of Public Prosecution, Suva
Solicitor for Accused : In Person