State v Vitukawalu [2011] FJMC 12; Criminal Case 925.2010 (2 February 2011)

IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Criminal Case No:- 925/2010

STATE

v

JONE VITUKAWALU

For Prosecution : - Ms. Koto L,
Accused : - In person.

JUDGMENT

The accused was charged together with another for the offence of “Aggravated Robbery” contrary to section 311(1) (a) of the Crime Decree No 44 of 2009. The particulars of the offence are “JONE VITUKAWALU with another on 29th day of 2010, at Suva in the Central Division, stole cash $20 from Filimoni Betabua and immediately before stealing they used force on Filimoni Betabua.

Accused pleaded not guilty for the offence of Aggravate Robbery, wherefore, the case was fixed for hearing. During the hearing the Prosecution called 6 witnesses and the accused gave evidence on oaths but did not call any other witnesses for the defense. At the conclusion of the hearing both the prosecution and the accused submitted their final written submissions. Upon careful perusal of the evidence adduced by both prosecution and the defense and their respective written submissions, I now proceed to pronounce the judgment in this case as follows.

In view of the gene general rule in law of Evidence, the onus of proof the charges beyond reasonable doubts against the accused is borne by the prosecution. Ths no onus on the accused used at any stage to prove his innocence or to prove anything else.

The section 311 (1) (a) of the Crime Decree reads as “A person commits an table offence if he or she, she, commits a robbery in company with one or more other persons””.

Section 310 of Crime Decree stipulates the definition of robbery as “A person commits ancindictable offence if he or she commits theft and —

(a) Immi>Immediately b comm committing theft, he or she—

(es force on another person; or

(ii) Threatens to useo use force then and there on another person —

with intent toit theft or to escape from from the scene; or

(b0;At i>At the time of committing theft, or immediately after committing theft, he or she—

(i) Uses force on another person; or

(ii) Threatens to use force then ande on another person—<212;

with intent to commit theft or to escape from the scene.

The force or threat of use of force must be immediately before or after or at the time of the stealing and for the purpose of stealing or escafrom the scene. In addition it must be proved that the accused used force on any person or n or threatened to use force on any person in fear of being then and there subject to force. (R v Dawson and James, 64 Cr.App.R 170).

Wherefore, the main elements of the offence of Aggravated Robbery, are

1. The accused,
   
2. Robbed the complainant,
   
3. At the time of or immediately before or immediately after such robbery uses or threaten to use any force to any person then and there on any person with intent to commit theft or escape from the scene.
   
4. With one or more person.
   

“Robbery is stealing by force. Robbery is essentially an aggravated form of theft. The conduct or circumstances that will convert an ordinary theft to robbery are prescribed by section 293”.( old Penal code) ( Jovesa Vaileba v State (1990) AAU 8/88 ( HAC 93/87) 12 October 1990). Accordingly, in order to prove that accused rob the complainant, the prosecution has to proof beyond reasonable doubts that,

1. The accused,
   
Dishonestly appropriates property belonging to another,

3. With intention of permanently depriving the other of the property.
   

Upon considering the main elements of the offence of Aggravated Robbery, I now briefly review the evidences adduced by both prosecution and the defense.

The summery of facts in this case is that, the accused were alleged that he together with another assaulted Mr. Filimoni Betabua and stole cash $20 from him.

The first prosecution witness Mr. Vilimoni Vatuvoka is a civilian who assisted Cpl Timoci Vusoniyasi to arrest the accused. He stated in his evidence that when he came out from Ritz Night club, heard and saw that two men were scuffling with police officers. Police called out “robbery” and upon hearing that Mr. Vilimoni ran after the accused and assisted Cpl Timoci to arrest him. He positively identified the accused and stated the accused was wearing a grey t-shirt. He further testified that other police officer were managed to arrest the 2nd person who was also scuffling with police. He specifically stated that he did not see the robbery was taking place and only assisted police to arrest the accused.

The second prosecution witness is Cpl Timoci Vusoniyasi, who was on mobile petrol with Sgt Satish, Cpl Antonia and PC Sailasa in a police car on that night of the incident. He stated in his evidence that he together with his colleagues were waiting and observing street kids at Asha’s street as that area is crime prone place in the city. In his evidence he further stated that while he was watching, he saw the accused wearing a grey t-shirt came and pulled the trouser of the complainant who was standing and drag him at the back of the nearby canteen. Then the 2nd accused took his wallet from the complainant’s trouser. He specifically stated that the 2nd accused took the wallet from the complainant’s trouser as soon as the accused punched him and fell down on the ground. He testified that then he together with PC Sailasa ran towards the place of the incident. According to Cpl Timoci, upon seeing them, both accused started to ran towards the front side of the canteen. He ran after the accused and arrested him with the help of PW1.

Third and fourth prosecution witnesses are interviewing officer and charging officer respectively,

The complainant gave evidence as prosecution witness number 5. In his evidence he stated that he went for a drink with his workmates at Ritz night club on that evening of the incident and left the club at about 9 pm. He specifically stated in his evidence that on his way to home, the accused punched him and other person took his wallet. Furthermore he stated that he did not know the reason why the accused punch him. According to his evidence he fell on the ground after the punch and then the 2nd accused took his wallet.

The accused stated in his evidence that after having few drinks at the Ritz night club he came to buy BBQ, and at the BBQ stall he had an argument with the complainant and then he punched him. But he specifically stated that he had no intention to rob him or had no plan with the 2nd accused to rob him too. He categorically denied that he knows the 2nd accused and stated 2nd accused utilized the opportunity to stole the wallet of the complainant after he fell down on the ground.

Bearing in mind the evidence adduced by both prosecution and the accused, I now proceed to examine the submissions tendered by both prosecution and the accused.

The learned state counsel for the prosecution, submitted in her submission that the three ingredients that must be proved for this offence are

1. A person,
2. Commits a robbery,
3. With one or more person.
   

Upon considering evidence adduced from PW1-PW6, the learned counsel for the prosecution stated that all three elements of the offence were proved beyond reasonable doubt. Learned counsel for the prosecution submitted that Mr.Fililimoni and Cpl Timoci positively and direct identified the accused at the crime scene and in the court as one of accused who assaulted and robbed the complainant. Further Cpl Timoci stated that soon after the accused punch the complainant and fell down on the ground the 2nd accused took his wallet from his trouser. The learned state counsel brought to my attention that the accused when he cross examined the prosecution witnesses they all confirmed the accused was the person who punched the complainant and another person who was with him took the wallet from the complainant’s pocket and accused himself in his evidence on oaths confirmed and admitted that he punched the complainant.

The accused contended in his submission that the prosecution failed to establish beyond reasonable doubt that he had a common intention to be in joint enterprise with the 2nd accused to commit this offence. He further emphasized the contradictions of the complainant evidence with his statement to the police on the night of the incident.

The burden of proof of the accused person’s guilt beyond reasonable doubts lies with the prosecution. It was held in Woolmington v DPP (1935) AC 462), that ‘no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law”. Where the burden of proof, remains on the prosecution throughout the trial, in that circumstance, the accused need only to raise sufficient evidence to cast reasonable doubt on the issue”. (“Andrews & Hirst on Evidence” 4th Edition, pg 59). It is noteworthy to mention that the burden of proof of beyond reasonable doubts does not mean that beyond all possible doubts.

Upon considering the evidence adduced by both prosecution and the accused, the main issue to be determine in this instance case is that whether the accused punched the complainant with intend to use force on the complainant then and there to commit the theft in a joint enterprise with the 2nd accused.

In view of the evidence given by the accused, and his line of cross examination, he admitted his presence at the place of the incident and further admitted that he punched the complainant but denied that he was in joint enterprise with the 2nd accused to rob the complainant.

At this point I draw my attention to section 46 of the Crime Decree where it stipulates “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”.

The law of ennt enterprise is clearly discussed by Her Ladyship Justice Shameem in “State v Nute (2008) FJHC 32539.2007 (26 November 2008), where Justice Shameem held that “ the law is that when twen two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and while committing that unlawful act, another offence is committed which is a probable consequence of that first purpose, then each of the persons involved is guilty of the final offence”.

Speight V.P. and Mishra and O’Regan JJ.A in Kumar v R (1987) FJCA 1; (1987) SPLR 131 (13 march 1987) discussed in details about the law of joint enterprise, where it was held that “The relevant part of section 21 of the Penal Code which deals with thet basisbasis is:

21. (1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of tfence may be charged wged with aith actually committing it, that is to say-

(a) every person who actually does the act or makes the omission which constitutes the offences;

(b) ...

(c) every person who aids or abets another person in committing the offence;

Section 22 which deals with joint enise&##16; in t;in the following terms:

When two or more persons form a common intention to prosecn unl purpose in conjunction with one another, and in the prosecution of such purpose pose an ofan 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.

Section 202 defines malice aforethought:

202. Malice aforethought shall be deemed to be established by evidence proving any one or more of the following circumstances:

(a) an intention to cause the death of or to do grievous harm to any person, whether such person is the person actually killed or not;

(b) knowledge that the act or omission causing death will probably cause the death of or grievous harm to some person, whether such person is the person actually killed or not, although such knowledge is accompanied by indifference whether death or grievous bodily harm is caused or not, or by a wish that it may not be caused.

In case of aiding and abetting each aider must be shown to have, at the time the injuries were inflicted, malice aforethought either as in (a) or as in (b) of the definition. In case of joinerpri60;, ho;, however,ever, it suffices if each participant can be shown to have in contemplation the probability of infliction of serious harm on the deceased in the execution of the plannedwful se. Dealing with with the lthe latter the Privy Council in Chan Siu v. The Queen #160;[1985] A.C, 175; [1984[1984] 3 W.L.R. 677, 682; [1984] UKPC 27; [1984] 3 All E.R. 877, 880-881; [1984] UKPC 27; 80 Cr.App.R. 117, 121, stahed the principle thus:

It [rinciturns on contempltemplation or, putting the same idea in otin other words, authorization, which may be express but is more usually im. It meets the case of a cr a crime foreseen as a possible incident of the common unlawful enterprise. The criminal culpability lies in participating in the venture with that foresight.

In view of these legal precedents, I find that the burden is on the prosecution to prove that

1. There was a joint common intention to punch the complainant and /or rob the complainant,
2. The accused and the 2nd accused were party to that common intention,
3. The robbery was a probable consequence of the punch,
   

The evidence of Cpl Timoci and the complainant clearly stated that the accused punched the complainant and drag him behind the canteen. Cpl Timoci clearly saw soon after the accused punch the complainant and fell down the 2nd accused took the wallet from the complainant. In addition Cpl Timoci state in his evidences that he arrested both accused person soon after the incident at the crime scene with stolen property at the hand of second accused.

In line with above stated finding, I am of the view that prosecution established that the accused punched the complainant and soon after that, the 2nd accused stole the wallet of the complainant. There is no direct evidence adduced by the prosecution in respect of the common intention and joint enterprise. Instead the prosecution relies on the circumstantial evidence to prove that the only reasonable inference available is that the accused was part of the joint enterprise with the 2nd accused.

By virtue of general principle of law of evidence, the court requires evidence to be led before it believes in the existence of a fact. However there are some exceptions to this establish principle which could be found in the common law jurisdictions. "A one exception is that a presumption arises where from the proof of some fact the existence of another fact may naturally be inferred without proof from the mere probability of its having occurred. The facts thus inferred to have occurred is said to be presumed, is taken for granted until the contrary is proved by the opposite party. (Archbold, 2009, para 10-1, pg 1381). When there are no positive testimonies of eye witnesses or by conclusive documents the courts are permitted to infer from the facts proved other facts necessary to complete the elements of guilt or establish innocence".

The test of inferring a fact from the proof of some fact was discussed by Lord Normand in Teper v R ( 1952)A.C.480 at 489), where Lord Normand held that " it must always narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there is no other co – existing circumstances which would weaken or destroy the inference".

The law of circumstantial evidence was discussed by Her Ladyship Justice Shameem in her summing up address to the assessors in "State v Vulaca (2008) FJHC 83, HAC120.2007 (22 April 2008), where Justice Shameem held "A case of circumstantial evidence relies on a variety of sources of evidence. One example of how it works is this. One day you find your house broken into. The items stolen are clearly identifiable by you because you have put your initial on your DVD and TV screen. The day after the burglary, your DVD and TV screen with your initials are found inside your neighbour's house. His son is seen to be spending a lot of money at Traps Bar. His fingerprints are found on your kitchen door. On the basis of all this evidence, you are entitled to draw a reasonable inference that your neighbour's son committed the burglary in your house, because there is no other reasonable inference that you can draw from the evidence which is consistent with the son's innocence. However, if for instance you did not initial the stolen items and cannot be sure that these items in your neighbour's house is yours, and if there are no fingerprints found then the evidence of the neighbour's son's spending would not be sufficient for you to draw an inference of his guilt. This is because there are other possible reasonable hypotheses for his sudden wealth.

Therefore, with circumstantial evidence you must look at all the evidence together and ask yourselves whether the only reasonable inference you can draw from the evidence is the guilt of the accused. You must ask yourselves whether there can be any other explanation for the evidence which is also consistent with the accused's innocence. That is the law on circumstantial evidence".

In addition it is noteworthy to mention that the inferred presumption of facts could be taken for granted until the contrary is proven by opposite party. At this point it is noteworthy to examine what kind of explanation should be offered by the accused to rebut the presumption against him. Lord Reading CJ in Abramovitch (1914) 84 L.J.K.B 397) held that "if an explanation has been given by the accused, then it is for the jury to say whether on the whole of the evidence they are satisfied that the accused is guilty. If the jury think that the explanation given may reasonably be true, although they are not convinced that it is true, the prisoner is entitle to be acquitted, inasmuch as the crown would then have failed to discharge the burden impose upon it by our law of satisfying the jury beyond reasonable doubt of the guilt of the accused. The onus of proof is never shifted in these cases; it always remains on the prosecution".

Bearing these aforementioned legal principles in mind, I now proceed to consider whether I can infer a presumption that the accused punched the complainant in order to prosecute their unlawful plan of robbery in joint enterprise. This position of law was considered by Her Ladyship Justice Shameem in Lepani Varani v State (2006) HAA 149/05S, 3 March 2006) where Shameem J held that "It is prudent to examine and analysis whether there are any other possible hypothesis consistence with the innocent of the accused other than the prosecution version of the facts according to the evidence adduced by the prosecution".

Cpl Timoci in his evidence only stated that the accused punched the complainant and dragged him behind the canteen and soon after that the 2nd accused took the wallet from the trouser of the complainant. There is no direct evidence to suggest that both of them were together prior to the incident. The complainant in his evidence stated that he did not know why the accused punched him. The evidential value of the evidence of the complainant's was vehemently challenged by the accused in his cross examination of the complainant, specially regarding identification of the accused at the scene of the incident.

The accused stated in his evidence that both he and the complainant were drunk at the time of the incident took place. He further stated that when he was trying to approach the BBQ stall, the complainant swore at him, which he was not able to bear and punch him.

As it was mentioned above, to rebut the inference of presumption the accused is not require to convince the court that his explanation is true, only he has to give an explanation which may reasonably true.

It was transpired from the prosecution evidence that the complainant was also drunk at the time of the incident, which allow to infer some other inference which is consistence with the accused innocent too. Under these circumstances, I can make inference of other possible hypothesis which is consistence with the accused person's innocence when I analysis the evidence of the prosecution together with the accused explanation. Hence I am of the view that the guilty of the accused based on joint enterprise with the 2nd accused is not the only reasonable inference that I can draw from the circumstantial evidence adduced by the prosecution.

In view of the reasons set out in above paragraphs, I am of the view that prosecution failed to prove beyond reasonable doubt that the accused robbed the complainant in a joint enterprise with the 2nd accused.

Upon considering foregoing reasons, I now determine the accused is not guilty and acquit from the charge for the offence of Aggravate Robbery contrary to section 311 (1) (a) of the Crime Decree No 44 of 2009..

On this 02nd day of February 2011.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.