State v Macedru [2014] FJMC 106; Criminal Case 1344.2009 (16 June 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case : 1344/2009

STATE

VS

SAMUELA MACEDRU

Cpl Josuha for the prosecution
Ms. Ratidara(Duty solicitor) for the accused

JUDGMENT

[1] The accused is charged in this Court for following offence.

ROBBERY WITH VIOLENCE: contrary to Section 293 (1)(b) of the Penal Code, Act 17.

Particulars of Offence

SAMUELA MACEDRU and another on the 3rd day of October 2009 at Milverston Road, Raiwai, Suva in the Central Division, robbed Rajneel Kumar of Nokia mobile phone valued at $600 and cash $40 and immediately before such robbery did use personal violence to the said Rajneel Kumar.

[2] The accused pleaded not guilty for this offence and the hearing was conducted on 11th March and 23rd May 2014. During the hearing the prosecution called two witnesses and for the defence the accused gave evidence.

[3] At the end of the hearing only the accused filed closing submission which I have also considered for this judgment.

SUMMARY OF EVIDENCE
THE PROSECUTION'S CASE

[4] PW1 was Rajneel Kumar , the complainant in this case. On 03rd October 2009 he was waiting for transport to go to work near Nairere road when two boys approached him and asked for money. PW1 told them that he did not have any money and suddenly one boy punched him whilst other started searching him pocket. They kept punching him and then took his mobile and cash. PW1 also said that he recognized both of them and the accused in the Court was one of them ( Dock identification) . He recognized the accused as he was from the area . They took mobile valued at $600 and cash of $30 from PW1. PW1 reported the matter to police. PW1 further said that he knows the accused as Samu and he has seen him often coming to the shop. Pw1 got injuries in his jaw and was examined by a doctor. In cross- examination PW1 said it was nearly 08.15pm at that time and there were street lights near to that place and this incident lasted nearly 15 to 20 minutes. There was no ID parade but PW1 confirmed that he was certain about the identity of the accused. In re- examination also he confirmed that there were street lights and he recognized the accused clearly that day .

[5] PW2 was PC Tora who was duty on that day and was doing patrol when he came across the accused near the Nairere road and at that time the accused was holding two mobiles. Later he met PW1 who informed one Samu robbed him. In cross- examination he said at that time the accused was holding a nokia mobile phone and he did not see this robbery.

[6] After calling this witness the prosecution closed their case and the defence made a ' no case submission ' which was dismissed by this Court on 15/04/2014. The learned counsel from the Legal Aid also informed that they wanted to file Alibi notice in this case. Even though this notice was not given before the hearing as the accused was unrepresented before the hearing I granted leave and the alibi notice was filed on 28th April 2014. The defence hearing was taken on 28th May 2014.

THE DEFENCE'S CASE
[7] The accused whilst denying this incident said on that day he was in his uncle's home drinking Grog and around 8pm went to Babus shop to buy rolls . On his way he met PC Tora(PW2) and the accused greeted him and PW2 told him he was going to investigate a report. The accused told him he was coming from the uncle's house. At that time he had two mobiles and one belonged to his girl friend . The accused did not know the complainant and the first time he saw him was in the Court. The defence also closed the case after that.

[8] In his closing submission the accused submitted that he was not properly cautioned by the police and therefore the Court should not consider his confession and he was not properly charged . Further the police did not conduct an ID parade and the prosecution failed to prove this charge beyond reasonable doubt.

THE LAW ora
[9] In Woolmington v DPP [1935] AC 462 it was held that

"Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained" (per Viscount Sankey L.C. at pp. 481-482).

[10] The standard of proof where the judge has to decide an issue of fact in a criminal case where the burden of proof is on the prosecution is proof beyond reasonable doubt (ARCHBOLD CRIMINAL PLEADING , EVIDENCE AND PRACTICE 2010 page 542).

[11] In STATE v DELANA [2014]FJHC 336in his summing up his Lordship Justice Madigan defined burden placed on the prosecution in the following manner:-

"The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you."

[12] The accused is charged with one count of Robbery with Violence contrary to section 293(1) (b) of the Penal Code.

[13] Section 293(1) (b) states that :

"1) Any person who-

(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."

[14] In view of the above sections the prosecution needs to prove that

a. The accused

b. robbed the complainant and

c. at that time or immediately before or immediately after such robbery uses or threatens to use any personal violence on the Complainant

ANALYSIS OF THE EVIDENCE
[15] The accused in his closing submission argued that the Court should not consider the confession as he was not properly cautioned. But the prosecution did not tender this statement as an exhibit and therefore no need for this Court to dealt with that. There was no ID parade conducted by the police and the complainant identified the accused only in the Court. It has been held that dock identification is not safe to rely on when the identity of an accused is main issue in a case. But in this case according to the complainant the accused was not a stranger and he has seen him even before the incident that day. According to him the accused was from his area and was known as Samue . Therefore even without an ID parade I would think this Court can consider the evidence of the prosecution witnesses. But as the accused was denying that he was involved in this incident I would have to consider if the complainant has properly identified the accused on that day .

[16 ] In R v Turnbull (1977) Q.B.224, 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.

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?

[17] In STATE v DELANA [supra] in his summing up his Lordship Justice Madigan said:

"In assessing identification evidence, you must take the following matters into account:

(i) has the witness known the accused before?

(ii) For how long did the witness have the accused under observation and from what distance?

(iii) Was it more than a fleeting glance?

(iv) In what light was the observation made?

(v) Was there any obstruction to his view?

If after taking into account all these considerations, you think that the identification is reliable then you may act on it. "

[18] Based on the above guidelines now I would consider the evidence of PW1. In his testimony he said this incident lasted for 15 to 20 minutes and there were street lights at that place. There were no obstruction to his view and he knew the accused before the incident. He recognized him as Samu from his neighborhood and he informed this to PW2 ( PC Tora) when he reported the robbery. Therefore I believe that PW1 has correctly identified the accused in this case and the Court can rely on his identification .

[19] I also find there are circumstantial evidence also to support the testimony of the complainant. According to PC Tora he saw the accused near to this incident and at that time he was carrying two mobiles. Even though the accused explained that one mobile was his girlfriend I find that hard to accept.

[20] Apart from denying this incident the accused also took alibi as a defence in this case. The Alibi is defined as evidence tending to show that by reason of the presence of the accused at a particular place or in a particular areas at a particular time he was not, or was unlikely to have been , at the place where the offence is alleged to have been committed at the time of its alleged commission. ( BLACKSTONE'S CRIMINAL PRACTICE page 1743)

[21] In State v Nalave [2013] FJHC 496; Criminal Case 29.2004 (24 September 2013) in his summing up his Lordship Justice De Silva stated :

"As the prosecution has to prove his guilt so that you are sure of it, he does not have to prove he was elsewhere at the time. On the contrary the prosecution must disprove the alibi . Even if you conclude that the alibi was false, that does not by itself entitle you to convict the accused. It is a matter which you may take into account, but you should bear in mind that an alibi is sometimes invented to bolster a genuine defence."

[22] In this case the accused took alibi at late stage in the hearing . He did not give notice before the hearing . The prosecution did not mark his caution statement as an exhibit and the accused also did not rely on that as it contains admission. Therefore I find that he has not taken this alibi even when he was interviewed by the police. Also this position was never put to the prosecution witnesses during cross – examination and he never called any other witnesses to corroborate this defence. Based on all these I find that the accused has failed to raise a sufficient evidence to satisfy this Court about his alibi.

[23] Based on the above mentioned reasons I am prepared to accept complainant's evidence in this case which satisfy me beyond reasonable doubt that the accused committed this offence

[24] Therefore I find the accused guilty for this charge and convict him accordingly.

[25]28 days to appeal

16th June 2014

H.S.P.Somaratne
Resident Magistrate