State v Niumataiwalu [2012] FJMC 38; Criminal Case 149.2010 (9 March 2012)

IN THE MAGISTRATE'S COURT
OF NASINU

CRIMINAL CASE NO.149/2010

STATE

Vs.

JIOFILITI NIUMATAIWALU

Sergeant Volavola for the state
The accused present and appeared in person

Judgement

[1] The accused are charged with the offence of Robbery with Violence. The charge read as follows;

CHARGE:

Statement of Offence [a]

First Count

ROBBERY: Contrary to Section 310 (1) (a) (i) of the Crimes Decree No. 44 of 2009.

Particulars of Offence [b]

JIOFILITI NIUMATAIWALU, on the 8th day of February, 2010 at Nasinu in the Central Division stole a Hello brand taxi meter valued at $250.00 from SHAMEEM MALLAM, and immediately before stealing, he used force on the said SHAMEEM MALLAM.

Summary of evidence

[2] At the trial, prosecution called following witnesses.

PW 1-Shameem Mallam; PW1 said that he can recall08-02-2010 at 2.30 am. He drove LT 5148. When he was driving towards Taxi base one girl and two boys stopped him. The two boys got in and they went to Bonu Road, Nadawa. When he stopped the Taxi, the person at the back grabbed his neck. The one was in the front pulled the taxi metre. Then they ran. This was happened in Bonu place. He said he could not do much but public heard the noise and caught one accused. The public came other side. I blocked him, we managed to catch him. The witness said the accused was a Fijian and he can identify the person. But he did not manage to find the Taxi metre. The witness pointed the accused and identified him as the culprit. He reported matter to the Valelevu police station and medical was also done after that on him. Medical Report was tendered as Ex-1.

[3] There was no cross examination. But the court put question regarding identity. The witness admitted it was dark early in the morning. He said when he stopped the vehicle the street lights were there. The witness has never seen the accused before the incident. He said he stayed 5 minutes in the taxi. He said there was a light in the car also. The witness said the accused was at the back and he grabbed his neck.

[4] PW 2-DC 3180 Niklesh; He said he was duty on that night. He received a call regarding robbery with violence. He then went to the scene with DC 371 Paramesh. The suspect was arrested by the public at the scene. He said then he rearrested the suspect. He indentified the accused as the suspect that they arrested. He said the accused was heavily smelt of liquor. The accused was escorted and later charged for the offence.

[5] There was no cross examination.

[6] PW3- PC Josefata; He said He recorded the statement of the accused. He was on duty on that date. Interview notes tendered as Ex-2 and charging statement tendered as Ex-3.

[7] There is no cross examination done.

[8] After that prosecution closed their case. Since there was a case to answer the accused was given his rights to call the defence. Then the accused gave sworn evidence.

[9] DW1- JIOFILITI NIUMATAIWALU (the accused); He said that on that particular night he went to buy cigarettes from grog shop. On his way, he was caught by the public. He said it was little bit dark he took a short cut. He was assaulted by the public. Later he was escorted to the Valelevu Police station. He said the he was assaulted by the police and they forced him to admit the offence. He said he is innocent and denying the charge of robbery with violence.

[10] The accused was cross examined at length. In the cross examination he said he was drinking with his cousin. He does not know the exact time. He said before the incident he started gorging till late night. The accused said he went to Henry's Grog shop it is 3-5 minutes walk from his cousin's place but he took the short cut.

[11] The accused said he has two witnesses to be called. The court adjourned the hearing. But on the continuation of hearing date the accused was absent and no reasons for absence were given. Then court fixed matter for judgement.

The Law

[12] ROBBERY WITH VIOLENCE

"310. — (1) A person commits an indictable offence (which is triable summarily) if he or she commits theft and —

(a) immediately before committing theft, he or she—

(i) uses force on another person; or

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

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

(b) 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 and there on another person—

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

Penalty — Imprisonment for 15 years"

[13] In Jovesa Vaileba v State (1990) AAU 8/88 (HAC 93/87) 12 October 1990 robbery defined as "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 of the Penal Code."

[14] In Woolmington v DPP (1935) AC 462 held 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". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[15] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

"The standard of proof in a criminal case is one of proof beyond reasonable dou>. This mhis means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any rable doubt as to whether ther the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused's guilt. That is not the correct test. The correct test is whether you have any reasonable doubt the guilt of the accused."

[16] As Lord Devlin mentioned in the Privy Council in Jayasena v. e 1970 AC 618) reported in 72 New Law Reports 313 (Sri Lanka),

"A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[17] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and "one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim "Ex qui affirmat non ei qui negat incumbit probatio". On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim "In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur" have to be noted.

Analysis of the evidence

[18] In line with the above guiding principles, now I evaluate the evidence adduced before me. The PW1 said he positively identified the accused. Was this identification proper? This case is purely based on visual identification. In relation to visual identification the Turnbull guidelines plays a vital roll.

[19] In R v Turnbull&#11977) Q.B.224, [24, [1976] 3 WLR 445,( 1977) 65 Cr. App. R. 242,LORD WIDGERY C.J. artied special guidance in visual identification.

a] "whenever the case case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, judge should warn the jury or the special need for caution before convicting the accused in reliance on the correctness of the identification"

b] " the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made". Then following questions need to be considered.

i. How long did the witness have the accused under observation?

ii. At what distance?

iii. In what light?

iv. Was the observation impeded in any way as for example by passing traffic or a press of people?

v. Had the witness ever seen the accused before?

vi. How often?

vii. If only occasionally, had he any special reason for remembering the accused?

viii. How long elapsed between the original observation and the subsequent identification to the police?

ix. 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?

c] "He (Judge) should remind the jury of any specific weaknesses which had appeared in the identification evidence"

d] "Recognition may be more reliable than identification of a stranger"

e] "if the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened, but the poorer the quality, the greater the danger".

[20] It is clear that elements of these charges have been proved. But did the PW1 identify the accused? Is he the real accused? This is important because the accused is denying the charge and identification. In applying above principle, I consider that the evidence placed before me.

i.How long did the witness/es have the accused under observation? About 5 minutes

ii. At what distance? Face to face

iii. In what light? car light and street light

iv. Was the observation impeded in any way as for example by passing traffic or a press of people? Not applicable

v. Had the witness ever seen the accused before? No

vi. How often? Not applicable

vii. If only occasionally, had he any special reason for remembering the accused? Not applicable

viii. How long elapsed between the original observation and the subsequent identification to the police? After few minutes

ix. 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? No

[21] In R v Keeble [ 1983] Crim LR 737, the trial judge had told the jury to be aware of the risk of mistaken identification and to evaluate it, and that the risk would be high where the sighting had only been a fleeting glance, but that in every case it was a matter of degree.

[22] The suspect was caught after few minutes of the incident. There was face to face talking with the victim. He came with the victim. Light was enough to identify the accused. There was no any impediment to identify him. I hold the accused was sufficiently identified by the victim.

[23] The prosecution tendered Ex-2 the accused statement. The accused said he was beaten by the police so he admitted the offence. But he did not make any complained that the confession is involuntarily taken till he gave evidence. The accused did not file grounds for Voir Dire to impeach his confession. Even This court forgets the confession there is sufficient evidence to prove charge against the accused.

Conclusion

[24] In this backdrop I hold the prosecution has discharged its onus. The charge has been proved beyond reasonable doubt. Therefore, the Accused is convicted as charged.

[25] 28 days to appeal

On 09th March 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate