State v Rokotuiveikau [2022] FJHC 764; HAC007.2022 (23 November 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

CRIMINAL CASE NO. HAC 007 OF 2022

STATE

V

MANASA ROKOTUIVEIKAU

Counsel: Ms B Kantharia & Mr T Naimila for the State
Accused in Person

Date of Hearing: 14 November – 17 November 2022
Date of Judgment: 23 November 2022

JUDGMENT

[1] The accused in the trial has pleaded not guilty to a charge of aggravated robbery. He is innocent until proven guilty. It is for the prosecution to prove the guilt of the accused. Additionally the guilt of the accused has to be proved beyond a reasonable doubt. If there is a reasonable doubt as to the guilt of the accused he must be found not guilty.

[2] The accused elected to remain silent. That is perfectly his right. The fact that he has not given evidence proves nothing, one way or the other. I draw no adverse inference against the accused for exercising his right to remain silent.

[3] The accused's defence is one of alibi. His witness has told the court that he was not at the scene of the crime when it was committed. As the prosecution has to prove his guilt, he does not have to prove he was elsewhere at the time. On the contrary, the prosecution must disprove the alibi. Even if the alibi is false, that does not by itself mean the accused is guilty. I bear in mind that an alibi is sometimes invented to bolster a genuine defence.

[4] The charge is aggravated robbery in a company. The prosecution must prove beyond reasonable doubt the following:

(i) That the accused
(ii) In company of others
(iii) Robbed a person.

[5] The prosecution alleges that the accused in the company of three others robbed a cashier of a shop at Nasinu. Robbery is stealing by using force and stealing means the unlawful taking away of someone's property with no intention of returning it.

[6] The cashier, Adi Esiteri Nasoki gave evidence that on 19 December 2021 at around 3 pm, she was the only employee present in the shop when an intruder entered the shop and grabbed her mouth and pushed her away. The intruder had concealed his identity with a mask and a cap. While the intruder was inside the counter, three other boys were outside the counter. The intruder grabbed three containers containing cash and pushed them across the counter top to the three boys. They then fled the scene with the money.

[7] The alleged robbery was captured by the shop’s CCTV. PC Finau uplifted the CCTV footage and tendered it in evidence as PE 1.

[8] The owner of the shop, Sophie Chen gave evidence that approximately $1700.00 was stolen from her shop after she verified the sum from her cash sale book.

[9] The evidence of the cashier and the CCTV footage proves beyond reasonable doubt that on 19 December 2021 at around 3 pm cash money belonging to Sophie Chen was stolen by four people acting together using force or a threat of violence. The real issue is the identity of the accused as one of the perpetrators of the robbery.

[10] There is no direct evidence of identification of the accused at the scene. The prosecution relies upon circumstantial evidence to prove the accused’s involvement in the alleged robbery. To find the accused guilty of the charge based on circumstantial evidence, it is not sufficient that the proved circumstances are merely consistent with the accused having committed the crime. For the accused to be guilty an inference of guilt is the only rational conclusion to be drawn from the combined effect of all the facts proved. It must be an inference that proves beyond reasonable doubt that the accused committed the crime. If the inference to be drawn from the circumstantial evidence falls short of that standard then the accused must be found not guilty.

[11] Two civilian witnesses living next to the shop saw the accused at a close proximity of the shop when the robbery took place.

[12] Viliame Manakitoga is an army officer. On the day of the incident (Sunday) he met a person by the name ‘Manasa’ twice near the shop. The first encounter with Manasa was in the morning when he was on his way to the shop. He saw Manasa drinking alcohol with three other boys. He observed this group of boys for about 5 minutes. He overheard the three boys whom he had known from his neighbourhood refer to the fourth boy by the name Manasa. He described Manasa as a short man with not really dark complexion. He said Manasa was wearing a white cap, a black t-shirt and a surf shorts. He said that the boys engaged in a conversation with him by offering him a cigarette but he refused the offer.

[13] The second time Viliame saw Manasa was in the afternoon of the same day at around 3 pm when he heard the shop siren. When Viliame came to the road to investigate the alarm he saw the four boys walking towards him in a normal manner. He said that the boys were Manasa, Isireli, Taito and Samu. He was about 5 meters away from the boys. He saw Isireli holding white containers and Manasa was holing a white cash register similar to the one removed from the shop when he was shown the video of the robbery. He also confirmed that the person he came to know as Manasa that day was wearing the same clothes and cap as the masked intruder shown in the video.

[14] The next witness was a 22 year-old FNU student, Levi Matanibuli. His house is a few meters away from the shop where the robbery took place on 19 December 2021. When he heard the security siren from the shop he came out to the roadside and saw Sireli, Samu, Taito and Manasa walking along the road, holding containers and calling out pizza while trying to flag down a taxi. He had met Manasa three days before the incident while they were playing volleyball with the boys from his neighbourhood. He said that Sireli had introduced Manasa to him. He identified the accused to police as Manasa using photos. He said that the containers he saw the boys were holding were the same containers that were removed from the shop during the robbery after seeing the video. He said that Manasa was wearing the same clothes as the masked intruder seen in the video.

[15] Litia Legalega was called as an alibi witness by the accused. She is the partner of the accused. She said that on 19 December 2021 at around 3.30 pm the accused was with her watching movies at Lot 47, Velau Drive, Kinoya. However, when she was cross-examined she could not recall any details of the movies they watched or the other household members present at the house at the relevant time or her surroundings. She said that she did not pay much attention to these matters.

[16] The accused did not comply with the statutory notice period for alibi. Since he was unrepresented I allowed him to lead alibi evidence. Although alibi evidence is before the court I do not accept it to be true. I am not convinced that Litia told the truth when she said that the accused was with her at the time of the robbery. She was adamant that the accused was with her, but when she was pressed for details to test the veracity of her evidence, she gave vague or evasive answers. However, disbelieving her does not mean that the accused is guilty. The prosecution carries the burden to prove guilt of the accused beyond reasonable doubt.

[17] This is a trial where the case against the accused depends wholly on the correctness of identification of him by Viliame and Levi which the accused alleges to be mistaken. I warn myself of the special need for caution before finding the accused guilty in reliance on the evidence of identification of these two witnesses. A witness who is convinced in his own mind may, as a result, be a convincing witness, but may nevertheless be mistaken. Mistake can also be made in the recognition of someone known to a witness, even of a close friend or relative.

[18] I examine carefully the circumstances in which the identification of the accused was made. How long the witness had the accused under observation? At what distance? In what light? Did anything interfere with the observation? Had the witness ever seen the accused before? If so how often?

[19] Both witnesses have identified the accused during broad daylight and while the accused was in their plain view. The instances of identification were not fleeting. Viliame saw a person by the name Manasa twice near the shop with a group of boys. On the second occasion he saw Manasa carrying a money till which was similar to the one stolen from the shop. His description of Manasa’s clothes fits the description of the clothes that the masked intruder wore on the day in question.

[20] Levi had met the accused three days before the robbery at the volleyball court. On the day of the robbery he saw the accused carrying a container along the road with three other boys. His identified the container to be the same container that was removed from the shop during the robbery. His description of the clothes the accused was wearing when he saw him carrying the container while the shop siren was on fits the description of the clothes that the masked intruder wore during the robbery. Although Levi had identified the accused for the first time in the dock after the alleged robbery, his recognition of the accused is reliable. Levi’s description of the accused fits the description of the person by the name Manasa that Viliame saw twice near the shop on the day of the robbery.

[21] I feel sure that both Viliame and Levi are not mistaken about what they saw on the day of the robbery. I feel sure that both Viliame and Levi’s description of the accused’s clothes and the white container or till that he was carrying shortly after the robbery is accurate and reliable. I feel sure that the person whom Viliame and Levi saw on 19 December 2021 carrying the white container or till was the same person who was the masked intruder involved in the robbery and had used force on the cashier before removing the container containing cash belonging to the shop owner with no intention of returning it. I feel sure of the guilt of the accused.

[22] I find the accused guilty of aggravated robbery in company of others and I convict him of the charge accordingly.

. ...........................................
Hon. Mr Justice Daniel Goundar

Solicitors:
Office of the Director of Public Prosecutions for the State
Accused in Person