State v Vulawalu [2012] FJMC 84; Criminal Case 415.06 (7 May 2012)

IN THE RESIDENT MAGISTRATE'S COURT
AT NADI

CRIMINAL CASE NO. 415 OF 2006

THE STATE

V

JOELI VULAVALU

Sgt. Naidu for prosecution
Accused in person
Date of Judgment: 07.05.2012

JUDGMENT

[1] Accused was charged with two counts of robbery with violence as follows:-

FIRST COUNT

Statement of Offence (a)

ROBBERY WITH VIOLENCE: Contrary to section 293 of Penal Code Cap 17

Particulars of Offence (b)

JOELI VULAWALU with others on the 13th day of April 2006 at Nadi in the Western Division robbed PETER RAFESH CHAND s/o SUBHAS CHAND of $200-00 in cash, assorted recharge cards valued at $350-00, two packets of BH 20 valued at $8-40 all to the total value of $558-40 and immediately before such threatened to use personnel violence to the said PETER RAFESH CHAND s/o SUBHAS CHAND.

SECOND COUNT

Statement of Offence (a)

ROBBERY WITH VIOLENCE: Contrary to section 293 of Penal Code Cap 17

Particulars of Offence (b)

JOELI VULAWALU with others on the 13th day of April 2006 at Nadi in the Western Division robbed MOHAMMED ANWAR s/o MOHAMMED SHERRIF of $15-00 in cash and immediately before such robbery threatened to use personnel violence to the said MOHAMMED ANWAR s/o MOHAMMED SHERRIF.

[2] After electing Magistrates Court the accused pleaded guilty to the charges that the matter proceeded to trial.

[3] When explained his right to counsel the accused told court that he is not going to engage counsel, private or legal Aid counsel and he can defend himself.

PROSECUTION EVIDENCE:

[4] At trial, the prosecution led oral evidence of six witnesses namely Peter Rafesh Chand (PW1), Mohammed Anwar (PW2), Maria Ady (PW3), Cpl Siromi (PW4), Sgt Meli Daughty (PW5) and PC Wyne (PW6). The prosecution also tendered the record of the caution interview and the charge statement as prosecution exhibits P/Exh-1 & 2 respectively.

[5] A summary of the evidence of PW1 is as follows:

"I work for Carpenters Service Station, Namaka. In 2006, I worked for Total Service Station. I worked there for 4 years. Carpenter's better that's why I joined carpenters. I recall 13/04/2006 I worked for night shift, 5.00 pm – 7.00 am. Some unusual happened about 3.30 am. I was counting stocks. Suddenly one of the cars came and told me serve from the window. I thought maybe customers but they broke the glass with a hammer. They were carrying cane knife and pinch bar. They were wearing mask. Two of them came inside and asked who the cashier is and I told I am. They asked where the money is and quickly tell otherwise we will cut your neck. One of them came without mask. He is in the Court Accused Box. They were about six. Except one all was wearing mask. There was light in the shop.

The one who was without the mask threatened me with a hammer. He was in front of me. I was at the cashier counter. There was no destruction between him and me. The counter was about 3 feet high. They asked for cash. I got $200.00 cash and $350.00 worth of recharge cards. They also demanded cigarette. They pulled the drawer and took the items.

I think he was the person who was present. ....... Later I am sure he was the person.

They tried to fill fuel but they couldn't. They threatened taxi driver –Anwar. I saw attacking the taxi driver. Accused was attacking him. After few minutes Police came. I informed the Police. That was first time I met the Accused. After that I met 2 to 3 times in Court".

[6] PW1 under cross examination told that he saw the accused in court.

[7] A summary of the evidence of PW2 is as follows:

"I reside at korodiri- not working now. I was a Taxi driver before. 2006- I recall 13/04/2006 I was driving then. I got a job. I took the taxi to the service station to buy recharge card approximately 3.00 am.

I was going to Waimalika to drop a girl. I don't know the girl. She's a customer. I went to Namaka Bowser about 3.00 am. The passenger told me she wanted to buy recharge.

Suddenly, they came with mask. Accused was without mask. He was carrying an axe. The accused was sitting in the box. He told me to move to the corner. The girl and myself were there. Then we heard glass breaking sound. They were 5 or 6. Accused was without mask, others were wearing mask.

At the corner Accused asked me to give all money. I had $15.00, I gave.

There was another person near the shop. He called the accused- masked man- called. They set in a car and went. At the service station there was light. In the corner there was no light. Accused was too closed to me. There was a bright light. I saw him at the Service Station. There was light. He threatened me to kill. That's why I gave the money. I didn't receive any injury.

I reported at Namaka Police Station and dropped the passenger. I met Accused on that day. Today also I saw. I saw him so closely. That's why I remember. My memory is good. I can remember the accused.

[8] Under cross examination PW2 stated that: he was a taxi driver and driving for 15 years in Nadi. He could not recall the Bowser's name. The accused was carrying an axe. He was with us and went off in car. He threatened me, got money and went away. I saw the accused once in court.

[9] Re- Examination PW2 stated that: I don't know how many Bowsers in Nadi. There may be 5 or 6. I don't know the names. We were there at the service station at that time and buying Recharge Card.

[10] A summary of the evidence of PW3 is as follows:

'The Tappoo is my employer. I am working for 10 years. Working hours are 8.00 - 4.00 and 2pm-9pm. 13/04/2006. I recall I was in town at 3.00 am. I hired a Taxi to go to Waimalika from Nadi Town. On my way near Namaka I told the taxi driver I need a Recharge Card then he stopped at Bowser. When I turned left I saw 6 men- 5 with mask and 1 without mask. The man without the mask told me and the driver to go at the back. He had an axe or hammer. He was a Fijian. [The witness looked around and pointed out the accused] It was not dark. Street light were there. At the back of the store also there was light. It was not even 5 minutest rob the Service Station. The unmasked man then another unmasked man came and they went in a car. He didn't talk to me he talked to the driver. 5 masked men were inside the Service station and unmasked man was outside. The accused was only man who was without mask. I don't know him personally. The Accused was closer to us. I didn't see Accused entering the service station. From that day I have seen 2 times'.

[11] Under Cross Examination PW3 stated that she did know the police brought the accused to Police Station.

In Re- Examination PW3 told that she saw the accused twice in this Court after the incident.

[12] A summary of the evidence of PW4 is as follows:

'I am at the Crime Branch for last 10 years. I have 14 years service in FPF. 13/04/2006 I recall, I was doing duty- 7 pm – 7 am. I received a report. I heard that often Police Officers are following the vehicle registration.....We went in the Police vehicle. We saw vehicle at Nawakai towards Nadi Airport. Upon approaching the junction- Nawakai and Airport we could hear sound of engine of a vehicle. A car and a seven seater went passed us. We gave a chase from Nadi Muslim Road toward Nadi back road. They went passed Nawakai road.

In the village a car and a white van were passed near Vatutu River- may be 3 km away from Nadi. We found the vehicle. We searched every where we could not catch anyone.

I went back to the place where the car was parked. Then I received a call from the Police Station. They informed there are 2 Fijian guys. They're with wet clothes. I went to that place I saw one Fijian boy sitting with the other guys and other guy was out side – BBQ shop.

I upon approaching the guy who was sitting on the bench, notice he was tall and wet with mud. He is sitting in the Accused Box.

I know his name I questioned. All of a sudden he picked up a rod and said he want to hit me. We came along BBQ road. We fell- myself and accused. Accused fell first and then me, we tumbled. I managed to arrest him.

I escorted Accused to Police Station I saw injury on the Accused. I didn't assault or threat the Accused. No other Police Officers assaulted him. No forced used to the Accused. PC Meridau was present when I escort the Accused. He did not complain assault by any Police Officer. He did not complain any where of the assault by Police Officers.

I have no knowledge of any investigation regarding assault to accused".

[13] Under Cross Examination PW4 stated as follows:-

Q: After lapse of 2 hours we were seating at BBQ shop near the light?

A: Yes there was light he was sitting.

Q: You did not assault me?

A: No.

[14] PW 4 was not re-examined by the prosection.

[15] A summary of the evidence of PW5 is as follows:

"I am Investing Officer and have 10 years service at CID Branch. On 21/04/2006 I recall interviewing the accused – Joeli. He is at Accused Box. I interview for robbery in English language. I gave him his rights. I put the allegations. This is the Interview. Original could not be located. I made personal check to get original. It was missing from movement. I made a through check- I am having the copy. This is the true production of the original. He (Accused) signed & I also signed it.

He made a confession voluntarily. No threat, promise or inducement uses. Not force used. No one assaulted the Accused. I didn't assault the Accused. I have no knowledge of anybody assaulting the Accused. The witnessing officer was present during the interview and witnessed the interview. I cannot recall whether he (accused) had injury. The Accused did not complain to me of any assault. I have no knowledge of accused complaining of assault to Ethical Standard of the Police.

There was no investigation regarding assault of the accused person. No other police officer investigated about assaulting the Accused.( PW5 tendered a copy of the record of the caution interview of the accused as P/Exh-1).

[16] Under cross examination PW5 stated that he could not recall whether the accused had injury. He also said he was preparing the file when asked by the accused where he was on the first call date of the case.

[17] PW5 was not cross examined by the prosecution.

[18] A summary of the evidence of PW6 was that:

"I am the witnessing officer of caution interview of the accused. I have 16 years service in Fiji Police. 10 year serve in the Crime Division. 21/04/06 I recall. I was present during the interview of Joeli – Accused. He is present in court.It was in English Language. I was present throughout the interview. The Accused was given his rights. Allegations were explained to him. (Exhibit 1 identified. my signature is there). The Accused also signed. Investigation officer signed.

The Accused was answering the questions voluntarily. No threat, promise or inducement caused.
The Accused was not assaulted or threatened nor any police officer assaulted or threatened him. I have not seen any injury on the Accused.

There was no complaint from the Accused regarding any assault. I have no knowledge of complaint made by the Accused regarding assault. I was not an investigation officer of assault of Accused. Nor any other police officer investigated.

[19] Under Cross-Examination PW6 told that he could not notice any visible injury on the accused.

[20] PW6 was not re-examined by the prosecution.

[21] Last prosecution witness was PW7. He in evidence stated that:

"I am the charging officer. I have 12 years service in Fiji Police Force. I am currently in CID. In 2006 I worked in CID branch. On 21/04/2006 I charged Joeli. He is in Accused box. I gave him his right.

He made a statement. He admitted the charges. He signed. I signed. Witness also signed. He made the statement voluntarily. No force, threat or inducement used. No other police officer assaulted or threatened the Accused. I have no knowledge of assaulting the Accused. I did not note any injury. He did not complain to me of any assault by police officers. I have no knowledge of Accused complaining of Ethical Standard of Police regarding assault by police officer. (This witness marked and produced the original of the charge statement as P/Exh-2)".

[22] Under cross examination PW7 stated that he could not recall noticing any visible injury on the accused. He told that he was not present in court on the first day when the case was called in court. He also told that Mr Narewa was the Inspector in Nadi Police Station that time.

[23] PW7 was also not cross examined by the prosecution.

EVIDENCE OF THE DEFENCE

[24] The accused is facing two charges under old Penal Code. Therefore, the court explained the three options that were available to him under old Criminal Procedure Code. Accordingly, the accused chose to give unsworn evidence. He did not call any witnesses to give evidence on his behalf.

[25] In unsworn evidence the accused stated that:

"... I was taken to hospital. One of the Crime Officers who took me to the hospital passed away. This case was fist called on 21/04/2006. That day it was on the media. They tendered photo copy of the caution interview".

THE RELATING TO ROBBERY WITH VIOLENCE

[26] As far as it applies, section 293-1 (b) of the Penal Code states:

293.-(1) Any person who-

(a) ...; or

(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,

[27] The prosecution must prove beyond reasonable doubt the following elements:

a. the accused;

b. robbed the complainants:

c. at the time of or immediately before or immediately after such robbery used or threatened to use personal violence to the complainants.

ANALYSIS OF EVIDENCE

[28] The accused is charged with two counts of robbery with violence. It is alleged the accused on 13 April 2006 robbed PW1 of $200-00 in cash, assorted recharge cards valued at $350-00, two packets of BH 20 valued at $8-40 all to the total value of $558-40 and immediately before such threatened to use personnel violence to PW1. On the same day he also robbed PW2 of $15-00 in cash and immediately before such robbery threatened to use personnel violence to the PW2.

[29] PW1 in evidence stated that on 13 April 2006 at approximately 3.30 am when he was counting the stocks at total Service Station about six persons entered the shop after breaking the glass with the hammer and demanded money if not they will cut his neck. Except the accused all of them were wearing mask. They were carrying cane knife and pinch bar. They took cash, recharge and cigarettes. He said that the accused was in front of him without mask that he identified him clearly in the light.

[30] PW2 testified that he is a taxi driver. On 13 April 2006 at around 3.00 am he got a job. A girl hired him to travel from Nadi to Waimalika. He didn't know the passenger girl. The girl wanted to buy a recharge card. So he stopped at Namaka Service Station. Then we heard glass breaking sound. There were 5 or 6 guys. Accused was without mask, others were wearing mask. He told that the accused demanded money by threatening to kill him (PW2). He had a cane knife with him. PW2 got afraid and gave all the money he had ($15.00) to the accused. He said the accused was too close to him without mask and he identified the accused as there was light.

[31] Under cross examination PW2 stated that he could not recall the Bowser's name. The accused was carrying an axe. He was with us and went off in a car. He threatened me, got money and went away. He saw the accused once in court.

[32] PW3 the passenger girl also gave evidence for the prosecution. In her evidence she stated that at about 3.30 am on that day when she was at the Namaka Bowser she saw six men, five with mask and one without mask. The guy without mask was a Fijian. He took the drive and her to the back. There was street and store light at the back. The accused was too close to them. The accused had an axe or hammer. He talked to the driver. She saw the accused for five minutes in the light. She identified the accused from the dock as the person who was without mask on that day.

[33] It is to be noted that the accused has been identified by the prosecution witnesses PW1, PW2 and PW3. They told that they saw the accused for five minutes in the light on that day with the axe or hammer.

[34] However, the accused disputed their dock identification on the basis there was no identification parade in the Police Station. He this is the first time they identify him in the dock. The accused has been arrested few hours after the incident on pursuit. PW1 stated that he saw the accused at the police station that day morning. PW1 saw the accused immediately after the incident at the Police Station. PW1 told to court that he clearly identified the accused. Further, PW2 and PW3 also confirmed that they identified the accused clearly in the light. Therefore the court disallowed the objection raised by the accused regarding dock identification.

[35] I had already analyzed the evidence of PW4-PW7 in my voir dire ruling hence it is not necessary to discuss their evidence in this judgment.

[36] The accused challenged the caution interview being tendered in evidence on the basis assault during interview and the statements therein were not voluntarily made. A voir dire inquiry was held to determine the voluntariness of the statement in the caution interview. I decided that the statements in the caution interview were made voluntarily hence it is admissible in evidence. Pursuant of my ruling on voir dire the prosecution led the caution interview of the accused along with the charge statement in evidence.

[37] Under caution interview conducted with the accused he had made admissions to the two charges of robbery with violence allegedly committed on 13 April 2006 wherein he has said that "we broke the door of the grocery shop, Koli and another boy went inside the shop, Koli lifted the cash register, recharge cards, cigarettes and loaded in the van then the boy robbed the taxi driver"

[38] In the charge statement the accused has said that "he was involved in this robbery at the Shell Service Station, Namaka with ... some other boys whom he does not know. Only $200.00 and one $15.00 recharge card was given to him as his share. He had used the money and the recharge card".

[39] The accused has sent two closing submissions to this court dated 4 April 2012 and 30 April 2012. He sent these submissions to court without seeking leave of the court. However, I have considered these submissions as he is unrepresented. In his submissions he has certain issues regarding police assault during caution interview, prosecution tendering photo copy of the caution interview and the dock identification. In my opinion these issues are not relevant in this judgment, for I have already decided these issues during the trial proper and in my ruling on vior dire inquiry.

[40] Three prosecution witnesses (PW1-PW3) identified the accused and he has made voluntary statements in the caution interview and the charge statements admitting his involvement in the two robberies stated in the charges.

[41] PW1-PW3 in evidence stated that they saw the accused having an axe or cane knife. They confirmed in court that they clearly identified the accused at that time. PW1 stated that they threatened to cut his neck before taking the items from the shop. PW2 stated that the accused took him to the corner and forcefully got all the money he had ($15.00) after threatening to kill. These witnesses evidence was not dented during cross examination. They gave forthright evidence. I therefore accept their evidence.

[42] The prosecution succeeds in proving beyond reasonable doubt each element of the charges in both counts.

[43] I therefore find the accused guilty as charged on both counts for robbery with violence, contrary to section 293-(1) of the Penal Code. I accordingly convict the accused.

M. H. Mohamed Ajmeer
Resident Magistrate

At Nadi
7 May 2012