State v Vakatalai [2012] FJMC 226; Criminal Case 524.2010 (21 September 2012)

IN THE MAGISTRATE'S COURT
AT SUVA,FIJI
CRIMINAL CASE HAC N0: 524 OF 2010

BETWEEN:

THE STATE
Prosecution

AND:

TEVITA VAKATALAI
Accused

BEFORE: Resident Magistrate Mr. Thushara Rajasinghe,
COUNSEL: Srg Feroz for the Prosecution,
Accused in person,
Date of the Judgment: 21st day of September 2012.

JUDGMENT

1. The accused is charged with one counts of "Robbery" contrary to section 310 (1) (a) (i) of the Crime Decree No 44 of 2009. The particulars of the offence are
   

Statement of offence (a)
Tevita Vakatalai, on the 4th day of April 2010, at Suva in the Central Division, stole a wallet containing $22 in cash from Subash Chand and immediately before stealing, he used force on the said Subash Chand".

2. Accused pleaded not guilty for this offence, wherefore, the case was set down for a hearing. During the hearing the Prosecution called 3 Prosecution witnesses and the Accused gave evidence on oaths but did not call any witness for the defence. At the Conclusion of the hearing I invited the prosecution and the defence to file their closing submission in writing which they filed accordingly.
   
3. In view of the general rule in law of Evidence, the onus of proof the charges beyond reasonable doubts against the accused is borne by the prosecution. There is no onus on the accused at any stage to prove his innocence or to prove anything else.
   
4. Section 310 of Crime Decree stipulates the definition of robbery as "A person commits an indictable offence if he or she commits theft and —

b>(a) Imtely before committing thng theft, he or she—

(i) Uses force on another person; or

i) Threatens to use force then and there on anothanother person —

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

<&#(b) At the time of committing ,heft, or immediately after committing theft, he or she—

(i) Uses force on another person; or

(ii) Thrs to orce then and thed there on another person—

with the 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 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).

I find the main elements of the offence of Robbery, are

"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 peof permanently depriving the other of the property.
   

8. Upon considering the main elements of the offence of Robbery, I now briefly summaries the evidence of this case in line with the evidence adduced by the prosecution and the defense.
   
9. The first prosecution witness is SC Peceli who is the arresting officer. SC Peceli stated in his evidence that the vehicle he was traveling from Rewnqa Police station to Central Police station was stopped by an Indian man near the Viti FM broadcasting Station. The Indian man then told the SC Peceli that he was robbed by a group of Fijian youth and pointed out a one Fijian youth who was about 10 meters away from the witness. SC Peceli then ran after him and arrested the accused. He positively identified the accused as the person he arrested on that day. Upon arresting the accused PC Peceli escorted the accused to the Central Police station with the complainant. PC Peceli stated that he did not see the this allege crime was talking place but he reached the place when the accused was trying to move away from the scene. He confirmed that he did not search the accused at the time of arrest.
   
10. The second prosecution witness is PC 3608 Sikeli who received the accused at the Central Police station upon he was arrested and handed over by SC Peceli. PC Sikeli searched the accused at the police station and found $27 in his three quarter jeans. He stated that he found one $20 note and 2x1 coins in his procession which were claimed by the Complainant as the money that the accused robbed from him.
    
11. The main prosecution witness is Mr Subash Chand who gave evidence as last prosecution witness. He stated that he was walking towards the health center via a short cut through Jay Shantharam and met three Fijian youth in front of the Ocean View hotel. The first offered him some juice and then one of them came from behind and holds his hand when he refused the juice. The witness stated that another one and the accused searched his trouser pocket and the accused got his wallet and money of $22. He shouted for help but no one was around at the time of this incident took place. The three Fijian youth then released him after robbing his money. At that time the witness saw a police vehicle was coming along the road. He stopped it and asked for help. The witness further stated in his evidence that the accused was still around the scene of the incident and pointed out to the police office. The police officer then arrested the accused and escorted to the Central Police Station. Moreover, Mr. Chand stated in his evidence that the accused offered him $27 which was found in his three quarter jeans and asked for settlement. He positively identified the accused as one of the Fijian youths who robbed him and specifically stated that accused took his money and the wallet. Mr. Chand testified that he knew the accused before this incident as the accused person's father is working with him in the Suva Market.
    
12. The accused vehemently denied the allegation and stated in his evidence on oaths that he was in front of the Ocean View Hotel with his girl friend and friends waiting for a taxi and then went to the nearby shop to buy cigarettes. The police came and arrested him while he was at the shop to buy cigarettes. He denied his involvement in this crime but does not dispute that he was present at the scene of the incident when the police arrived.
    
13. At the conclusion of the prosecution and the defence case, the learned prosecutor for the prosecution and the accused tendered their respective written submissions. The learned prosecutor for the prosecution stated in his submission that the prosecution has successfully proved all the elements of this offence of 'robbery" and invited the court to consider the evidence presented by the prosecution and find the accused guilty for this offence.
    
14. The accused contended in his submission that the prosecution has failed to prove their case beyond reasonable doubt and court cannot safely return a verdict of guilt.
    
15. Bearing in mind the evidence presented by the prosecution and the defence and their respective written submissions, and the main elements of the offence of "robbery", I now proceed to analyses the evidence presented before me by the prosecution and the defence with the laws pertaining to the offence of robbery.
    
16. Upon careful perusal of the evidence adduced by the prosecution and the defence and their respective written submissions, I find that the accused has not disputed his presence at the place of this allege incident but only denied his involvement in this crime. The accused himself admitted that he was waiting for a taxi with his friends in front of Ocean View hotel and then went to a nearby shop to buy cigarettes. The complainant Mr. Chand positively identified the accused as he knew him even before this allege crime took place. In view of these reasons, I find the main issue that the court has to determine is that whether the accused actually rob the complaint.
    
17. Mr. Chand in his evidence positively stated that there was no one presence apart from the three Fijian youth at the time they rob him. SC Peceli in his evidence confirmed the evidence of Mr. Chand. When SC Peceli approached the place of the incident he saw only the accused who was trying to move away from the scene and no one was present at that time. Both Mr. Chand and SC Peceli positively identify the accused as both of them knew him before. Soon after the incident cash of $22 was found in accused person's procession and $20 note were folded in the same way as it was folded by the complainant. With the consistence of the prosecution evidence I am inclined to accept the evidence of the prosecution.
    
18. The accused is indeed not required to prove his innocence, but the explanation gave by the accused is wayward and inconsistence. He said he came from the Ocean View hotel with his girl friend and some other friends. Accused failed to provide reasonable explanation why he was at the Ocean View hotel at around 7 a.m. in the morning. Hence I disregard the accused evidence.
    
19. In view of the aforesaid findings, I hold that the prosecution has successfully proved beyond reasonable doubt that the accused together others robbed Mr. Chand.
    
20. Upon considering foregoing reason, I hold that the accused is found guilty for the offence of "Robbery" contrary to section 310 (1) (a) (i) of the Crimes Decree and convicted for the same.
    

On this 21st day of September 2012.

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