State v Jitoko [2011] FJMC 91; CRC 1008.2007 (11 August 2011)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 1008/2007.

STATE

V

ASIVOROSI JITOKO,
OPERAIA VULI,
AISEA LEDUA

For Prosecution: - Mr. Fotofil,
First Accused Person: - In person,
Second Accused Person:- In person,
Third Accused Person:- In person

JUDGMENT

1. Mr. Asivorosi Jitoko, Mr. Opetaia Vuli, Mr. Jake Vakararawa, and Mr. Aisea Ledua were charged with two counts of offence of " Robbery with violence" contrary to section 293 (1) (b) of the Penal Code Act 17 and Mr. Asivorosi Jitoko and Mr. Opetaia Vuli were charged for the offence of "Resisting Arrest" contrary to section 247 (a) of the Penal Code Act 17 and Mr.Jake Vakararawa was charged for the offence of " Resisting Arrest" contrary to section 247 (a) of the Penal Code act 17.
   
2. The particulars of the first, second, third, and fourth counts are;
   

First count; "Mr. Asivorosi Jitoko, Mr. Opetaia Vuli, Jake Vakararawa, and Mr. Aisea Ledua on the 3rd day of June 2007, at Lami in the Central Division, robbed Bedh Wati Lal of $ 4,160 cash, one Mobile Phone valued at $150, 1 ladies gold wrist watch valued at $ 375, 1 gold chain valued at $ 800, and assorted Liquor valued at $ 709, to the total value of $ 6,194, and immediately before such robbery did use personal violence on the said Badh Wati Lal"

Second Count; "Mr. Asivorosi Jitoko, Mr. Opetaia Vuli, Jake Vakararawa, and Mr. Aisea Ledua on the 3rd day of June 2007, at Lami in the central Division robbed Vir Chand Lal of one Mobile Phone valued at $ 400, and immediately before such robbery did use personal violence on the said Vir Chand Lal",

Third count; 'Mr. Asivorosi Jitoko, Mr. Opetaia Vuli, on the 4th day of June 2007, at Lami in the central division resisted the lawful arrest by Police Constable 1785 Sakaraia Tuberi in due execution of his duty",

Fourth count; Mr. Jake Vakararawa on the 4th day of June 2007, at Lami in the central division resisted the lawful arrest by Police Constable 222 Jone Raravisa in due execution of his duty",

3. The third accused person Mr. Jake Vakararawa pleaded guilty for the first, second and fourth counts. Consequent to that the case was set down for hearing in respect of first, second and third counts against the first, second and fourth accused persons as they pleaded not guilty for the respective counts for which they were charged.
   
4. At the commencement of the hearing the 1st and the 2nd accused persons challenged the admissibility of thier statements in the caution interviews made by them on the 4th and the 5th of June 2007 respectively. Accordingly a voir dire hearing was conducted and at the conclusion of it I hold that that both the statements made in caution interviews by the 1st and 2nd accused persons are admissible as part of the prosecution case in this trial.
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5. During the hearing the Prosecution called 6 witnesses and the 1st, nd 4th accused persons gave evidence on oaths and also call called two defence witnesses for the 2nd and 4th accused persons. At the conclusion of the hearing the prosecution and the defence submitted their final written submissions. Upon careful perusal of the evidence presented by the prosecution and the defense and their respective written submissions, I now proceed to pronounce the judgment in this case as follows.
   
6. In view of the general rule in law of Evidence, the onus of proof the charges beyond reasonable doubts against the accuseborne by the prosecution.&#on. Tis no onus on the accused used at any stage to prove his innocence or to prove anything else.
   
7. Section 293 (1) (b) of the Penal Code reads as Any person who-

   (b) >(b) 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. In line with the section 293 (1) (b ) of the penal code, the main elements of the offence of robbery with violence are;
      
      1. A person,
         
      2. Robs any person,
         
      3. at the time of or immediately before or immediately after such robbery,
         
      4. Uses or threatens to use any personal violence to any person.
         
   9. 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 escaping from the scene. In addition it must be proved that the accused used force on any person 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).
      
   10. "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 robbed the complainant, the prosecution has to prove beyond reasonable doubts that,
       
       1. The accused,
          
       2. Dishonestly appropriates property belonging to another,
          
       3. With the intention of permanently depriving the other of the property.
          
   11. Upon considering the main elements of the offence of robbery with violence, I now briefly review the evidences presented by the prosecution and the defense.
       
   12. The summery of facts in this case is that, the three accused persons were forced into the shop of the complainants and robbed them. In the cause of this alleged robbery, it is alleged that one of the accused stabbed Mrs. Bedh Wati and another accused punched Mr. Vir Chand and tied his hands and legs. Then they stole the items in the shop and fled in a car driven by the 3rd prosecution witness.
       
   13. The first prosecution witness Mrs. Bedh Wati stated in her evidence that when she was watching a movie at her shop, the first accused person came into the shop and asked for cigarettes. But he did not buy any and went outside. At the very moment 2nd and 3rd accused person forced into the shop. The third accused person holds her from her back with a knife and in that process he stabbed on her arm. When she screamed, Mr. Vir Chand who is the husband of Mrs. Bedh Wati came into the shop from the adjacent room where he was sleeping. Once Mr. Vir Chand entered into the shop, the second accused person punched him on his forehead and fall him down. Then the 1st and 2nd accused persons tied his hand and legs. The 4th accused was not inside the shop but he was standing outside. Subsequent to that, they stole the money, two mobile phones, a wrist watch, a gold chain together with some assorted liquor therein. They put all the stolen items into a black sports bag. After packing the stolen items into the bag, Mrs. Bedh Wati was released by the person who was holding her from her back, but then the fourth accused who was standing outside came into the shop and tied her hands to her back. Then all of them left the shop with the stolen items. Mr. Bedh Wati further stated in her evidence that once they left, she managed to untie her hands and came outside the shop, where she saw a black taxi. The driver of the said black colour taxi has told her that the robbers were fled in another taxi. The second prosecution witness Mr. Vir Chand collaborate the evidence of his wife the first prosecution witness in his evidence.
       
   14. The third prosecution witness Mr. Josua Vunisa is the driver of the taxi in which the accused persons travelled to and fled from the shop. He stated in his evidence that on day of this alleged robbery took place, all four accused persons got into his taxi and asked him to take them to the Vaisari. Upon reaching to Vaisari, they got off at the Quick Stop Shop and 2nd accused asked him to go and turn his vehicle from the bridge which he did. He took about 15 minutes to return from the bridge and on his way back he saw the 2nd accused person was waiting for him near the road. Then he was asked to park his taxi near the shop. He opened his booth on the request of the one of the accused person and saw that they put a black sport bag into it. Then he was asked to go back to the village where all four accused persons and Mr. Josua reside. He was given few bottles of rum instead of his taxi fair. He hid them in the bush close to his resident and he explained that he did not want his family know that he had bottles of rum on Sunday.
       
   15. Fourth prosecution witness D.C. George Lanyan who is the interviewing officer of the 1st and second accused persons. He tendered the caution interviews of these two accused persons as prosecution exhibits. Fifth prosecution witness DC Mikael Kora is the interviewing officer of the fourth accused. I. P Sakaraia Tuberi is the investigation officer of this case and he gave evidence as the sixth prosecution witness.
       
   16. At the conclusion of the prosecution case, all three accused persons gave evidence on oaths. The mother of the second accused and the brother of the fourth accused gave evidence for them as their alibi witnesses.
       
   17. Having considered the evidence presented by the prosecution and the defence, I now turn to the respective submissions tendered by the prosecution and the defence.
       
   18. The learned counsel for the prosecution submitted a detailed and comprehensive written submission where he submitted that the prosecution has proved all the essential elements of this offence beyond reasonable doubt. Furthermore, he stated that the evidence of alibi witness were successfully rebutted by the first, second and third prosecution witnesses.
       
   19. The first accused contended in his submission that the identification evidence of PW1 and PW2 is highly unreliable and should not accept in this case. His main contention is that there was no proper identification parade conducted at the police station which reduces the credibility of the evidence of identification. The second and fourth accused persons also vehemently denied their involvement in this crime and forcefully challenged the credibility of the evidence of identification. In addition to that all three accused persons submitted that the prosecution failed to produce any stolen items though the PW1 stated in her evidence that she positively identified some of the stolen items at the Lami Police station.
       
   20. Upon careful perusal of the evidence adduced by both parties and the submissions of the prosecution and the defence, I inferred that this instance case against the accused persons mainly depends on the evidence of identification.
       
   21. 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).
       
   22. I now turn to examine the issue of identification of the accused person. The law pertaining to the identification of the accused person has discussed in R v Turnbull (1977) Q.B.224, where it was held that "the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made.
       
       1. How long did the witness have the accused under observation?
          
       2. At what distance?
          
       3. In what light?
          
       4. Was the observation impeded in any way as for example by passing traffic or a press of people?
          
       5. Had the witness ever seen the accused before?
          
       6. How often?
          
       7. If only occasionally, had he any special reason for remembering the accused?
          
       8. How long elapsed between the original observation and the subsequent identification to the police?
          
       9. Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?
          
   23. Mrs. Bedh Wati stated in her evidence that she clearly and positively identified all the accused persons at the scene of the crime. She knew all of them as they usually come to her shop to by liquor and cigarettes. Mrs. Wati and Mr. Vir Chand stated that they have been runnig this business over a period of 15 years and very much familiar with the people who used to be their customers. Both of them testified that the incident took place in a day light. The windows and louvre blades were open at that time. I am satisfied that there were sufficient light for the witnesses to clearly see and identify the accused persons.
       
   24. The evidence of identification of Mrs. Wati and Mr. Vir Chand revealed that they have recognized these three accused person since they have seen and knew before as their regular customers to their shop. They do not identify strangers; they recognized three persons whom they have seen before in many times.
       
   25. All three accused persons challenged the reliability of PW1's and PW2's memory as this incident took place in 2007. The way the PW1, and PW2 gave evidence in court, I do not find that their memory on this incident have not faded away through the passage of time. Both of them confidently and positively gave their evidence of identification. Though the police have not conducted a proper identification parade to identify these three accused persons, I accept their positive identification of three accused persons at the Lami Police Station on the following day of this incident. Both Mrs. Wati and Mr. Vir Chand categorically denied that the accused persons were masked. Mrs. Wait stated in her evidence that they entered into the shop with mask but they rolled them up while they were inside. Mr. Chand affirmed that while stating that at the time when he tried to enter into the shop, none of them were masked.
       
   26. The evidence of Mr. Josua Vunisa clearly identified the three accused persons by their names. He knew them as they all are from the same village and the three accused persons are well known in their village. He had an opportunity to closely monitor and observe the three accused persons during their journey to the shop and their return to the village after committing this alleged robbery. He clearly witnessed that they brought a black sport bag from the shop and loaded it in his car booth.
       
   27. The evidence of identification of these three civilian witnesses of the prosecution is further collaborated by the caution interviews of the 1st and the 2rd accused person where both of them admitted that they were at the shop at the material time of this alleged robbery.
       
   28. At this point I now draw my attention to the defence of alibi taken by the accused persons. First accused person stated in his evidence that he was at his home watching movies and sports on the TV. 2nd accused person stated that he was at home looking after his small daughter as his mother was away. He called his mother as his alibi witness. She stated that the 2nd accused person was at home while she was away selling her products at her vegetable stall. 4th accused person denied his involvement in this alleged robbery and sated that he was with his brother and went to the church. He stated that after the church he was at home.
       
   29. The PW1, PW2 and PW3, specifically identified all three accused person. The 1st and 2nd accused persons admitted that they went to the shop and stole therein in their respective caution interviews. In view of their own admission in their respective caution interviews, I find the alibi defences of 1st and 2nd accused are not consistence wherefore; I do not incline to accept them. There are noticeable contradiction in the evidence of fourth accused and the evidence of his brother. The fourth accused stated in his evidence that he went to home alone after the church and his brother followed him. Conversely the Brother of the 4th accused stated that he accompanied his brother to home from the church. Apparently this contradiction in materially related to the time of this alleged offence. Though the 4th accused person's alibi witness stated that he was with the accused person throughout the material time of this alleged incident, this vital contradiction goes to the roots of his own alibi defence. Having considered aforementioned reasons, I do not accept the defence of alibi of the three accused persons.
       
   30. All accused person contended that the failure of the prosecution to produce the recovered stolen items has raised reasonable doubts in the prosecution case. Mr. Wati in her evidence stated that she positively identified some of the stolen items recovered by the Police at the Lami Police station on the following day. The investigation officer IP Sakaria in his evidence stated that those items were produced to the court registry but could not locate them. I am of the view that the prosecution case mainly depends on the identification of the accused persons at the scene of the crime by their main three witnesses. The prosecution case does not depend on the principle of "freeze and possession of the stolen goods". In line with these views, I do not find that there is a reasonable doubt arises in the prosecution case due to their failure to produce these stolen items. Moreover, Mr. Josua stated in his evidence that he saw the accused persons brought a black sport bag from the shop and loaded it into his car booth apart from the evidence of PW1 and PW2 in respect of stolen items.
       
   31. The evidence of PW1, PW2, PW3, have established that all three accused persons carried out this robbery in pursuance of joint enterprise which they agreed upon to execute. I am satisfied that three accused persons committed this crime in common intention.
       
   32. Having considered the reasons set out above, I am of the view that the prosecution has proved beyond reasonable doubt that three accused persons have entered into the shop of PW1 and PW2 and robbed therein and used personal violence on Mrs. Wati and Mr. Vir Chand at the time of or immediately before or immediately after such robbery.
       
   33. Ironically, the prosecution did not present any evidence against the first and the second accused persons in respect of count three where the first and the second accused persons have been charged for the offence of "Resisting Arrest".
       
   34. Upon considering foregoing reason, I hold that Mr. Asivorosi Jitoko, Mr. Opetaia Vuli, and Mr. Aisea Ledua are guilty for the two counts of Robbery with violence contrary to section 293 (1) (b) of the Penal Code Act 17 and convicted for the same.
       
   35. Further I find that prosecution has not prove beyond reasonable doubt that Mr. Asivorosi Jitoko, Mr. Opetaia Vuli, have committed the offence of "Resisting Arrest' contrary to section 247(a) of the Penal Code Act 17 and acquitted them for the same.
       

   On this 11th day of August 2011.

   
   

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