State v Tabaloa [2008] FJMC 13; Criminal Case No 521 of 2006 (29 July 2008)

IN THE RESIDENT MAGISTRATES’ COURT
AT LAUTOKA
IN THE WESTERN DIVISION

CRIMINAL CASE NO.: 521 OF 2006

STATE

V

ESALA TABALOA

For the Prosecution: Sgt. Mohammed Salim
For the Accused: Ms Naomi Nawaseitoga

Date of Hearing: 08th July, 2008
Date of Ruling: 29th July, 2008

RULING ON SUBMISSION OF NO CASE TO ANSWER

[1] The accused is charged with the offence of robbery with violence. The charge reads as follows:

FIRST COUNT

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293 (1) of the Penal Code Cap 17.

Particulars of Offence

ESALA TABALOA and DOMINIC LATCHMAN KUMAR s/o Vijendra Kumar on the 19th day of August, 2005 at Ruve Place, Lautoka in the Western Division robbed RAKESH KUMAR s/o Sharwan Kumar of a mobile phone valued at $200.00 and cash of $10,032.65 and at the time of such robbery did use personal violence on the said RAKESH KUMAR s/o Sharwan Kumar.

[2] The accused was charged with one Dominic Latchman Kumar and their case was heard by Magistrate Ms Lisa Gowing and they were convicted for the above offence and sentenced to 4 years and 2 years imprisonment respectively. Both appealed against the conviction and sentence and the conviction against Esala Tabaloa in respect of the above offence was set aside a re-trial was ordered.

[3] The defence counsel has made a submission of no case to answer upon completion of the prosecution’s case.

EVIDENCE

[4] The accused was arrested upon certain information given to the police on 19/08/05 and on 20/08/05 he was interviewed by Detective Constable Simione. During the course of the interview which commenced at 11.30 a.m on 20/08/05 the accused denied committing the offence and he also denied any knowledge of the offence and as a result the interview was suspended at 12.50 p.m.

[5] The prosecution did not call the evidence of the person who gave the information which led to the arrest of the accused.

[6] After the suspension of the record of interview the accused was kept in police custody. During this time the police organized an identification parade and the identification parade was conducted on 22/08/05 and the accused was identified as the suspect.

[7] On 22/08/05 the accused was further interviewed and the record of interview commenced at 9.45 a.m. I note that instead of putting a fresh caution to the accused the interviewing officer Detective Constable Simione warned the accused that he was still under caution and that he was not obliged to say anything. In my view this is improper and the interviewing officer should have put a fresh caution to the accused.

IDENTIFICATION EVIDENCE

[8] The only evidence against the accused is one of identification. The accused was brought into the police station upon certain information given to the police. The prosecution as I said earlier did not call evidence as to how this information was obtained and also did not call evidence of the informant. The accused denied any knowledge of the offence and the police then decided to set up an identification parade. Unfortunately, the accused it seems was kept in police custody from 19/08/05 till 22/08/05 when the identification parade was set up.

[9] Usually, the police set up an identification parade on the basis of the information that they obtain from persons who may have seen the suspect at the scene of the crime or during the commission of the crime.

[10] In this case only two persons had seen somebody who resembled like the accused:

a) The first person is Rakesh Kumar (PW1), the accountant of Topik Furniture. In his statement to the police which he gave on 19/08/05 at 12.10 p.m he gave the description of the person that he saw as follows:

"The Fijian man who attack me was about 5 feet 5 inches tall, dark complexion, medium built, was wearing a dark blue round neck T-shirt and three quarter pants and wearing a pair of flip-flop. In his evidence he said that he saw the face very clearly and he also said that he was not very tall."

b) The other person who saw somebody who resembled the accused was Salend Pravin Prakash (PW3) and he gave his statement to the police at 1.30 p.m on 19/08/05 gave the description of the person that he saw as follows:

"I heard them saying "pakro, pakro" meaning hold. I turn around and saw one Fijian man of medium built, long nose, tall in height, he was wearing dark green three quarter trousers and white cap."

In his evidence he said that he was a person of normal built, physically fit, he was a dark person but not very dark.

[11] The accused as I said earlier was arrested on 19/08/05. The exact time as to when accused was arrested has not been established and both Rakesh Kumar (PW1) and Salend Pravin Prakash (PW2) gave their statements to the police on 19/08/05 at 12.10 p.m and 1.30 p.m respectively. I do not know as to whether the accused was in police custody when they gave their statements to the police and if he was in police custody then that would be extremely prejudicial to the accused.

[12] There are some discrepancies in the evidence of the police officers as to the number of people that attended the identification parade. According to ASP Raju (PW4) a total of ten people attended the identification parade and according to Detective Constable Allen Nair only nine people attended the identification parade.

[13] Detective Constable Allen Nair said that he picked the people for the identification parade and in his evidence he said as follows:

"I picked the man for the identification parade according to his size and built of the accused. I went to pick others from the statement of Salend. He said that he would be able to identify the person."

It is not clear as to whether DC Nair used the statement of Salend itself to pick persons to participate in the identification parade or whether he used the accused’s appearance as he was in police custody to pick the persons for the identification parade.

[14] The identification parade took place at the police station bure and according to ASP Raju the nine people were put in the police station bure and he then told one of the police officers to escort the accused to the identification parade. I believe that Salend Prakash was already at the police station and he was later escorted by a police officer to the police bure to do the identification.

[15] When the accused was arrested by Inspector Suliasi Ratu (PW4) he received a cut over his left forehead over his eye and according to Inspector Suliasi he was taken to the Lautoka Hospital and he had a white plaster over his left eye. Salend also agreed that when he identified the accused he had a white plaster over his left eye. ASP Raju was unable to recall if the accused had a plaster over his left eye and he was also unable to recall if the accused had a cut on his forehead. Detective Constable Allen Nair said that accused did not have a plaster when he was put on the identification parade. None of the other people who participated in the identification parade had a plaster over their left eyes so this in my view was extremely unfair to the accused.

[16] The only evidence against the accused is one of identification and in light of the matters that I have highlighted above I am of the view that the whole identification was carried out in a manner which was extremely prejudicial to the accused and I am therefore unable to rely on the evidence of identification and therefore uphold the submission of no case to answer and I acquit the accused of the charge of robbery with violence.

[Mohammed S Khan]
Resident Magistrate

29th July, 2008