State v Lalagavesi [2010] FJMC 63; Criminal Case 605 of 2008 (29 June 2010)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 605/08

BETWEEN

THE STATE

AND

SAULA LALAGAVESI

JUDGEMENT

1. The accused was charged on the 07th August 2008 with one count of Robbery with violence.
   
2. The statement of offence and the particulars of offence are as follows;
   

Statement of offence

Robbery with violence; Contrary to Section 293(1) of the Penal Code.

Particulars of offence

Saula Lalagavesi and another on the 4th day of August 2008 at Lautoka in the Western Division robbed Nalin Kumar of a bunch of keys and a Samsung brand flip on camera phone valued $ 850, and at the time of such robbery did use personal violence on the said Nalin Kumar.

BACKGROUND

3. Initially another accused was charged with Saula Lalagavesi in this case and he pleaded guilty after the evidence of the complainant was led.
   
4. The alleged offence is committed on the 4th August 2008. The accused was produced to court on the 7th August 2008. The case was taken up for hearing on the 27th March the 8th May 2010.
   
5. The accused was unrepresented and the prosecution was conducted by a police prosecutor. The prosecution called two witnesses and after the prosecution case the court decided that the prosecution has made out a case for the accused to reply. The accused gave evidence and did not call any witnesses.
   
6. The accused is alleged to have committed the robbery on a van driver.
   

THE LAW

7. Section 293(1)b of the Penal Code reads as follows;
   

"Any person who robs any person and at the time of or immediately before or immediately after such robbery, uses or threatens to use any personal violence to any person, is guilty of a felony and is liable to imprisonment for life, with or without corporal punishment."

8. Basically the prosecution has to prove the following elements;
   
   1. date and time of the offence was committed
      
   2. identification of the accused
      
   100. that personal violence was used immediately before or after the robbery
        
   4. that the complainant was robbed of a bunch of keys and a camera phone.
      

ANALYSIS

9. Initially there were two accused and one ( 2nd accused) pleaded guilty during the trail. The caution interviews of the accused were not produced at the trial as the accused objected at the very out set for them being tendered without calling the investigating officer. The prosecution solely relied on the evidence of the complainant and another witness.
   
10. According to Section 22 of the Penal Code when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. In the light of that provision the court will have to consider evidence led against the other accused who is already dealt with as well to assess the culpability of the accused presently dealt with in this judgement.
    
11. The complainant, Nalin Kumar gave evidence on the 27th March 2010 and said that he is a carrier driver of a 7 seater van. He said that on the 04th August 2008 at around 7.30 am one Fijian lady came to him when he was waiting for customers. She had told him that she wants to go to a church and pick some flowers to go for a funeral at a village. The complainant said then she directed him towards Maravu Street and came to a church which was still closed. Then they have waited about ten minutes near the church and the lady told had him that she wants to relieve her self.
    
12. He said when she got down from the van two Fijian boys came towards his van. He said he even told the lady to be careful. He said one of them was wearing a mask. Further he said he recognized the other one who was without a mask. The complainant said that he knew the one without a mask (who later pleaded guilty) through his brother and his friends.
    
13. The complainant said that the one who was recognized came from the side and opened the driver's door and grabbed him by his leg. He said that he unlocked the seat belt and tried to pull him out of the van. The complainant said that the person who was wearing a mask too came and held him from his neck and tried to grab him out. The complainant said he struggled with them and started yelling while holding on to the steering wheel. He said after a while they managed to grab him out of the van and he fell on the ground. He said when he got up he was punched by the one without a mask and fell down again. The complainant said then that person took the bunch of keys and his mobile phone valued 850 dollars.
    
14. The complainant said a pastor came from the church and the two boys ran away when they saw the paster. He further said that he managed to start the van with a key given by the Paster and brought the Fijian lady to the Police as he felt suspicious about her. The complainant tendered his medical report and it describes several injuries caused by multiple blows.
    
15. The accused did cross examine the complainant. However it should be noted that the accused could not challenge the credibility of the complainant. The complainant's evidence was solid and impressive. How ever he did not identify the accused.
    
16. The accused denied the allegation. Yet it is the duty of the prosecution to prove the charge beyond reasonable doubt. According to the evidence led by the prosecution, the incident has taken place on the 4th August 2008 at about 7.30 in the morning.
    
17. The main issue that the court has to consider is the identification of the accused. The complainant did not identify the accused. According to the complainant one of the two persons who robbed him was wearing a mask. He only identified the one without the mask, who pleaded guilty during the trial. However the prosecution witness, Seraseini Finau identified the accused when she was called to give evidence.
    
18. Seraseini Finau is happening to be the lady who took the complainant to the church at Marau Street. She said that the accused and one Navitalai (the other accused who pleaded guilty) asked her to bring a van for them to rob. It should be noted that she corroborated the evidence given by the complainant too.
    
19. The accused suggested the witness Seraseini is not telling the truth. It should be noted that I have observed her to be a very convincing and a credible witness. She gave very clear and impressive evidence. She said in examination in chief that she met the accused and Navitali in the morning of the 4th August 2008. However later at the cross examination she said that she lied to the Police regarding how and when she met the accused and the other one. She said that she did like that to save one of her friends from getting in to trouble, at whose house they all met on the previous night. She said that she is a religious person and she will not lie on oath. She said apart from that all the other things she said was true and correct. I have observed the demeanour of the witness and the way she gave evidence and I am convinced that she is a genuine witness and her credibility is not damaged.
    
20. This witness said that he knew the accused very well and she identified the accused when they came to rob the van driver. She said that she got involved because she was afraid of the accused and the other one. She said she got to know the accused through her brother who is in prison now. Once when the accused cross examined this witness regarding the identification, she said;
    

"Because we talked about going and getting the van, you were the one who told me to go and get the van."

21. Further during the cross examination she said that the police officers did not harass her or force her to tell his name. It appears that the evidence of this witness is very crucial regarding the identification of the accused. The accused said when he gave evidence that the police failed to hold an identification parade.
    
22. Further the accused said that he was acquitted by the Court of Appeal in one case for the reason that the police did not hold an identification parade. However it should be noted that I do not see any reason to hold an identification parade in this case as the accused is recognized by a witness by his name. The witness says she knew the accused very well and she refers to him by his first name. In such a situation I do not see any reason to hold an identification parade.
    
23. As I said before it should be noted that I believe the evidence of this witness despite the suggestions by the accused with regard to her credibility. I am convinced that this witness has identified the accused beyond any doubt. In the circumstances I decide that the prosecution has proved identification of the accused beyond reasonable doubt.
    
24. The evidence of the complainant and the witness Seraseini Finau clearly show that the complainant was assaulted soon before the robbery. Further it is corroborated by the medical report tendered in evidence. According to the evidence of the complainant the accused was only holding his neck while the other person was assaulting him. However it is very clear that both, the accused and the other person have acted with common intention. Thus I am satisfied that the prosecution has proved use of personal violence beyond reasonable doubt.
    
25. The complainant and the prosecution witness said that the other person took the mobile phone. The complainant said that the other person took his keys too. Although it appears that these items were taken by the other person (the 2nd accused who pleaded guilty ) the evidence suggests that the both were acting with common intention. Therefore clearly this accused too is liable for those acts.
    
26. In the circumstances I decide that the prosecution has discharged its burden and I find the accused guilty of committing robbery with violence against the complainant.
    
27. Accordingly I convict the accused for committing robbery with violence contrary to Section 293(1)(b) of the Penal Code.
    

Rangajeeva Wimalasena
Resident Magistrate

Lautoka.
29.06.2010