State v Koroivuki [2012] FJMC 193; Criminal Case 251.2011 (15 August 2012)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 251/11

STATE

V

ISOA KOROIVUKI (1ST ACCUSED)
TILA WILLIAMS (2ND ACCUSED)

Prosecution: Ms Leba Koto (DPP's Office)
Accused: Both in person.

Judgment

Introduction

The two accused were charged with Aggravated Robbery, contrary to Section 311 (1)(a) of Crimes Decree Number 44 of 2009. The Particulars of Offence is that:

"ISOA KOROIVUKI and TILA WILLIAMS on the 7th day of August, 2011, Suva in the Central Division, stole $800.00 cash, 1 x White Notebook Laptop valued at $650.00, 1 x Ladies Brown Purse valued at $10.00, 1 x Sky Blue ADS Game Boy valued at $400.00, 20 x $6.00 Vodafone & Ink Recharge Cards valued at $120.00 all to the total value of $1,986.00, the property of YUAN HUA YE."

The High Court pursuant to Section 4 (2) of the Criminal Procedure Decree 2009 on 19th August 2011 extended the jurisdiction of this Court to try this case.

The Law

Section 311 of the Crimes Decree 2009 provides that" (1) A person commits an indictable offence if he or she —

(a) commits a robbery in company with one or more other persons; or

(b) commits a robbery and, at the time of the robbery, has an offensive weapon with him or her.

Penalty — Imprisonment for 20 years.

(2) for the purposes of this Decree, an offence against sub-section (1) is to be known as the offence of aggravated robbery.

(3) In this section —

"offensive weapon" includes —

(a) an article made or adapted for use for causing injury to, or incapacitating, a person; or

(b) an article where the person who has the article intends, or threatens to use, the article to cause injury to, or to incapacitate, another person. "

The main elements of the offence of Aggravated Robbery in this case are:

ii. Robbed the complainant,

iii. With one or more persons.

The onus of proving the charges beyonsonable doubts against the accused persons is borne by the the prosecution. There is no onus onaccused used persons at any stage to prove their innocence or to prove anything else.

The Evidence

The prosecution called nesses. The 1st accused gave sworn evidence and the 2nd accd accused person chose to remain silent. They both did not call any other witnesses.

Evidence of Prosecution Witnesses

Pw-1 was the victim, Yuan Hua Ye whose material evidence in examination in –chief was "am a student. Owner of shop is Ms Mali. Recall 7th August 2011. 8am in shop cleaning and setting shelf with workmates. They left at 10am. I was alone. At 11.40am I was alone playing game on computer. Suddenly two people came in and cover my mouth and eyes. They pulled me out from there. Put me on the edge told me to keep shut. Tied my hands. Covered my mouth. I sat down quietly. They asked for cash till. Key was on cash till. They pulled the cash till and took all money, laptop, wallet and the rest.

No one else in the shop. I was trying to see them. They covered my eyes. The tall one dragged me to the corner. they were masked. Not really sure how they looked. Did not see their face. When I loosen myself, a customer came. I ran after them. I ran down the stairs. They covered my eyes with sort of a cap. They stole my purse, laptop, DS game boy, flashnet, also small fan for the laptop. They also stole cash from the shop, voda and Ink recharge. Shop has one door, same door they entered. Can ID items if shown to me. Game boy is blue colour, had bought 4 days ago. Purse is brown – teddy bear shape. laptop white colour. No brand –Chinese brand. Fan for laptop –black colour.

[witness shown white laptop] – is my laptop. I used this. One of the button missing (shown to Court) I was playing around with it. Has the processor key. My English name is Priscilla. [witness shown brown purse] – is mine. had cash, Id card in this. Had a phone memory card as well. [witness shown blue gameboy] – is the DS game I mention. I received few days ago. On side has keys and memory card. When I got item from police memory card was damaged. Had my picture. Police notified me of items the next day. [prosecution wish to tender the items –items marked respectively] the man when they entered did not hold anything. Did not receive injuries, but hand was tightly tied. Cannot ID the man if I see them. "

In cross-examination PW-1 responded as follows: "was in shop. Was alone. Was playing games at 11am-2guys entered and covered my mouth and eyes. Cannot ID them. I complained of robbery and stolen items. I gave police description of robbers. Police conducted ID parade."

Pw-2 was Sireli Watisoko, whose examination in-chief was "security at Professional Security Services. 1 year at company. Recall 7th August 2011. I was on guard at entrance of Solander Pacific. I was directed by Supervisor, Aria. I was on guard for 2 weeks at Solander Pacific. My job is to see all workers who walk in and out of the area. Am familiar with employees of Solander. On 7th August I was on guard I saw Isoa asking to go in to go and see Joe Pita. Isoa was with someone else when he came to me. Isoa is 1st accused in witness box. Isoa works for Solander. Other person with Isoa did not work for Solander. Know other person with Isoa. Accused #2 was with Isoa, its Tila. Know Tila I used to stay in Raiwaqa once. He stayed there. They did not have anything when they approached me. I did tell them to go in – because I know Isoa. They walked in at 11am. I saw both persons again at 11.50am, they came out this time. When I saw them again one of them was pulling Isoa's shirt and said please donot cheat.

Isoa had a black bag. They came out from entrance they walked in and walked towards Narain Jetty. Isoa had a black bag. Black schoolbag type. They not holding any bag when they went in. Only when they came out. Isoa was wearing a cap when he went in and when he came out he did not wear one. Can Id –Isoa and other man. [witness pointed to Isoa and Tila]. It was fine weather. Many people around. When I allowed Isoa and Tila to enter they were about 1 metre from me. When I saw them with bag they were far from me. From witness box clerks table in Court (2 ½ to 3 metres) – when I saw them leaving with the bag.

When they were walking towards Narain jetty then came running a Chinese lady crying that a robbery occurred at their shop. Am familiar with Chinese lady".

In cross-examination PW-2 responded as follows: "that day was on guard at Solander.i told police about Isoa as in Court today. [shown witnesses statement] I did not mention Isoa's robbery. Know two persons who walked in and out that day. When they came in they walked in, they ran out. Accused #2 stayed in Raiwaqa once. I used to live in black house where Tila Williams came once. Black House where my father stayed. Tila Williams did business. Accused #2 is a Part. I am not lying. No ID parade at the Police station. Did not see accused #2 rob the giant whale. Did not see accused # 2 with items was with accused #1. Did not give names to police.know faces of the gentleman."

In Re-examination Pw-2 stated "can recall at 11 2 fijian youth asked to see Joe Pita at Solander. 2 Fijian male were Isoa and Tila. I ID them in Court today."

Material evidence of PW-3,Mareta Tuisawau, in examination-in-chief "I am a single mother, recall 6th August 2011 at home in Namadi. Did not go anywhere that evening am sure. Later went to gune sede in raiwaqa. Slept there came other morning. Gune sede at aunty's place. Aunty – Nellie. Aunty has 8 kids – Mereoni, Isoa, Mereaia, Jale, nani, Siteri, Ana). Father of child is Isoa. Isoa is accused #1. Isoa was at work that morning – next day. I went home Isoa to work. Isoa works in Walu. Do not know which company. At Midday on 7th August 2011 while I was at home cooking a small boy came and told me, Isoa wanted to see me. Isoa was drinking at house close to my house. Isoa was drinking with Tila and another guy. I donot know Tila. I know Tila because I heard them call Tila.

They were drinking, Isoa passed me a bag. Isoa passed me a black bag, back-pack. Bag had laptop, flashnet, purse, USB connector, a game. Donot know where Isoa got bag from. I took bag home and left it there. I did not know it was stolen item. After isoa gave me bag I went home. At home police came. I do not know if isoa went to work that day. No-one else gave me anything that day. Before police came my cousin, Kristiana came to see me. She came to ask to charge for the phone at home and the items Isoa gave me. Tila sent my cousin to get the items. I only gave phone to Kristiana. Rest of items I kept at home. Police came and asked about isoa and Tila as well. [shown blackbag] same bag that had the stolen items. Can Id the items. [prosecution leave to show items – Court- granted] [shown laptop – was in the bag] my mother knew I kept items given by isoa. Both Isoa and Tila in Court today – [witness pointed to both accused in accused box]."

In cross-examination PW-3 responded as follows: "accused 1 drank with other people that day. The bag was passed to Isoa he passed to me. Do not know items were stolen. Do not know Tila. Was afraid when police came to namadi. I told Police I do not know Tila. Isoa passed bag to me. Was passed to Isoa. I told police Isoa went with guy from Tamavua."

In Re-examination Pw-3 stated "Tila passed bag to Isoa. Tila gave bag to Isoa and Isoa gave to me. Same bag I gave to police."

Material evidence of PW-4, DC Jone Tuwai in examination-in-chief "7 years in Police force.9th August 2011 on duty. Was instructed to interview Isoa. Interview under caution. Made record of interview. Signed by Isoa [PE-5 – Caution interview of accused#1].

In cross-examination PW-4 responded as follows: "I did not arrest the accused on 7th August. Arrested accused on9th August in Suva Court. Accused gave statement freely. Accused can be interviewed alone. I am not lying in Court. Did not arrest accused #2

Material evidence of PW-5, Toni Nasoga in examination-in-chief "17 years in police force. 7th August at CPS. On 10th august on duty. Received instructions to charge Isoa. [charge sheet of accused #1 tendered]."

In cross-examination PW-5 responded as follows: "I interviewed Tila. Tila said he will answer in Court.

At the close of the Prosecution case the Court ruled that the accused persons had a case to answer and the options were explained to the accused persons.

Evidence of Defence Witnesses

Isoa, 1st accused – gave evidence on oath – "day I was arrested for this case I was assaulted by police. For me to admit stolen items were with me. On that Sunday met two friends they told me for us to drink in Namadi. One of them asked me to keep his stuff, the bag. I gave the bag to Mareta for safe-keeping. The police came. She gave them the bag. When police came to her I was not there.

In cross-examination Isoa, the 1st accused responded as follows: "I gave bag to mareta.one friend was Tila not Tila Williams. Does not look like accused #2. Has same name as accused #2. Was not at the millets wharf on 7th August. Did not go past security that day. Must be another Isoa and Tila. Was working for Solander. Sireli is lying. I am telling the truth. I gave bag to Mareta,not another Isoa. Was another tila. Mareta with me when I drank with tila. Mareta did not ID Tila. Mareta was telling the truth about Tila, she only heard the name. all lying except me.

Tila Williams, the 2nd accused chose to remain silent.

Analysis of Evidence in Relation to the Laws

The Court on 24th July 2012 following a voir dire had ruled that the Caution Interview of the 1st accused person can be tendered as evidence. The Court had found the statement to have been obtained fairly and without any threat, duress or inducement.

The Court has noted all the evidence given in Court, together with the exhibits and documents that were tendered. The accused persons have filed written closing submission which this court has considered. This Court notes that the onus on proving that the accused persons committed the offence they are charged with rests with the prosecution. The standard of proof is beyond reasonable doubt. This Court has further noted the main elements of the offence of aggravated robbery which need to be proven by the state.

The complainant in this case told the Court of the items that were stolen from her. She positively identified the items as hers when shown them in Court. She also told the Court that two man came in and covered her eyes and mouth, she did not see them. The Court believed her version of events which she related in Court. The second witness was a security guard where the 1st accused worked. He positively identified the two accused persons who had visited the workplace that day with the 1st accused seeking to see one, Joe Pita. According to Pw-2 they were both empty handed when they went in at about 11am but when they returned they had a black bag and the 1st accused had his cap missing. The complainant had mentioned in her evidence that sort of a cap was used to cover her face. The 2nd prosecution witness who saw the 2 accused persons walk in and later run out with a black bag from the direction where the complainant was located. PW-2 was cross-examined and he was not discredited. He was truthful in Court with the version of events.

PW-3, Mareta Tuisawau was given the bag by the 1st accused which contained the items that were identified by the complainant in Court to have been stolen from her. Pw-3 is the mother of the 1st accused's child. The bag was given to PW-3 by the 1st accused at a drinking party where one Tila was also present. She did not know Tila Williams, the 2nd accused.

PW-4 was Dc Jone Tuwai who had caution interviewed the 1st accused. The caution interview was admitted in Court after a Voir Dire. In the caution interview the 1st accused detailed what transpired that day and what he and Tila Williams did on 7th August 2011. He admitted robbing the complaint in the company of the 2nd accused of the various items.

The evidence in Court by the prosecution witnesses is a series of links, which form the chain of evidence. The evidence of the prosecution witnesses ties together. There are no gaps in the evidence which do not link up and complete the chain. The caution interview of the 1st accused provides the details of the actual offending. PW-1 told the Court of the robbery by 2 persons. The 2nd prosecution witness told the court of the 2 accused persons in the vicinity of the complainants shop entering into the 1st accused persons work place and exiting running after 50 minutes with a blackbag, which was not previously with them. PW-3 told the Court that she was given the bag by the 1st accused, which was passed onto him by the 2nd accused at a drinking party. The bag was indentified to contain the items that were stolen from the complainant, PW-1. The 1st accused admitted in his caution interview giving the bag to Mareta, his girlfriend. The bag containing the items were recovered and in Court the complainant positively identified her belongings.

The Court has noted the evidence of the 1st accused in Court, the Court does not believe he is the only one telling the truth as opposed to all other witnesses. The Court does not believe his evidence in Court. The Court accepts his version as detailed in his caution interview.

The 2nd accused was positively identified by the 2nd prosecution witness who had known him for sometime as being with the 1st accused at Solander Pacific, close to the shop where the complainant was. The complainant had stated in Court there were 2 persons who had robbed her. The Court also notes that the 2nd accused was with the 1st accused at the drinking party when the bag was passed to Mareta. She identified the 2nd accused in Court. The 2nd accused had stated to the police that he will give evidence in Court. He remained silent in Court. The Court draws no adverse inference from the exercise of this right by the 2nd accused person.

Having noted all the evidence and the laws this Court is satisfied that the prosecution has proven all the ingredients of the offence of aggravated robbery that was laid against both the accused persons. The Court is satisfied beyond reasonable doubt as to the guilt of both the accused persons.

The Court finds both the accused guilty of the charge of aggravated robbery and convicts them accordingly. The Court will now hear your mitigation.

Chaitanya Lakshman
Resident Magistrate

15/08/2012