IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Criminal Case: 181/2014

STATE

V

PENISONI SAUKELEA
METUISELA TUINARO

Counsel: Ms.D.Kumar for the State 
 Mr.Nainima(LAC) for the 1st accused
 Ms.Tarei( LAC) for the 2nd accused 
Date of Judgment: 02nd July 2015

JUDGMENT

1. The accused were charged with one count of Aggravated Robbery contrary to section 311(1) (a) of the Crimes Decree. Particulars of the offence are "PenisoniSaukelea and MetuiselaTuinaro on the 1st day of February 2014 at Suva in the Central Division robbed James Kumar of 1 Samsung Galaxy mobile valued $90.00, assorted jewelries valued $400.00 and cash valued $1000.00 to the total value of $2,300.00 the property of James Kumar.

2. Both accused pleaded not guilty of this offence wherefore this proceeded to trial. Before that a voir –dire hearing was held in order to decide the admissibility of confessions of both accused and after considering the evidence in this court decided that only the confession of the 1st accused can be admitted in the trial proper. 

3. Also after considering the evidence the court found there was no case against the 2nd accused and he was acquitted at the end of the prosecution case. Therefore now I have to find out whether the prosecution has proved this charge beyond reasonable doubt against the 1st accused.

4. I would first summarize the evidence brought forward by both parties. The prosecution called only two witnesses (the complainant and the investigating officer) during the trial. PW1 was James Kumar, the complainant in this case and said he is got a pawn shop at no 19, Cumming Street, Suva. On 01/02/2014 he and his wife were in the shop and around 10-11 in the morning two Fijian people came to his shop and robbed him. They were drunk and were trying to enter in to his shop. PW1 knew they were about to engage in an offence and did not open the door. The 2nd person entered in to the shop through a gap. He was long built and dark complex with a short hair. PW1 has seen him previously also. That person came to pawn some rugby boots. On 01/02/2014 the person was in inside his shop for nearly 05 minutes and he opened the drawer and stole cash, mobiles and jewelries. After that the person came outside the shop and PW1 followed him up to the market where the person disappeared. The other person was outside the shop and he threw punches at PW1 and took the money to the value of $300.00 from his pocket. Later PW1 filed a complaint to the police. In the Police Station, he identified both accused. The complainant also identified both accused in the court (dockidentification). In cross- examination the witness said on previous Friday (31/01/2014) the 1st accused came to his shop to pawn some rugby boots and the cell there was only that accused. Also the other person threw punches at him outside the shop. The incident lasted nearly 4-5 minutes. 

5. PW2 was DSgt 2560 Mikaele, the interviewing officer of the 1st accused as well as the investigating officer. There was no ID parade to identify the suspects. He conducted the interview on 01/02/2014 in Totogo Police Station. The accused was given all his rights and was given a break during the interview. The interview was marked as PE-01. In cross- examination the officer said he recorded the complainant statement on the same date. The accused was not forced to admit. The complainant identified the 1st accused in the cell and at that time there were other suspects there. 

6. With the consent the charge statement was marked as PE-02 and the prosecution closed their case after that. 

7. The 1st accused in his evidence denied committing this offence. He said on that day he was at home with his wife and daughter and was not in that pawn shop. He also denied visiting that shop on 31/01/2014 to pawn some rugby boots. The police came and arrested him and threatened to admit the offence. The accused did not accept the identification also in the court. In cross- examination the accused said the complainant identified him in the court because he has seen him in the police station when he was arrested. The police threatened him to admit and did not give a chance to read the statement. They wrote whatever they like and told him to sign. On that day, he was with his wife and daughter. The accused admitted they were not present to give testimony. 

THE LAW 

8. 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).

9. In State v Darshani [2006] FJHC 24; HAC0007S.2005 (26 January 2006) in the summing up his Lordship Justice Gates (as he then was) defined burden placed on the prosecution in the following manner and this is applicable in this case also.

"The burden of proof rests throughout the trial upon the State. In our system of justice there is a presumption of innocence in favour of an accused which is enshrined in the Constitution. The State brings the charge against the accused. Therefore it is for the State to prove the charge against the accused. Each element of the charge must be proved, but not every fact of the story. This burden never changes, never shifts to the Accused. In summary, the Accused does not have to prove anything.

The prosecution must prove its case beyond reasonable doubt. That means that before you express an opinion that the Accused is guilty of the charge you must be satisfied so that you are sure of her guilt beyond reasonable doubt. The test is not doubt, or slightest doubt. The test is reasonable doubt. If you consider her innocent of the charge you must give your opinion that she is not guilty. If you entertain a reasonable doubt of guilt, you must also give your opinion that the Accused is not guilty."

10. In this case, the 1staccused has been charged with one count of Aggravated Robbery contrary to section 311(1) (a) of the Crimes Decree. Therefore the elements of this offence are:

a) The accused 

b) Commits a robbery with another person 

11. The Robbery is defined in section 310 of the Crimes Decree and that section states: 

"(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. "

ANALYSIS 

12. The accused in his evidence said he was in his home with wife and the daughter. A proper alibi notice was never given by the defence even though they had more than ample time. Also accused did not call his wife or daughter to substantiate his version. Therefore I reject his alibi. Nonetheless, just because I reject his alibi it does not confirm the prosecution version. Therefore now I would consider the prosecution evidence. 

13. The State is relying on the direct and the documentary evidence. The direct evidence is coming from the complainant where he said on that day two people came to his shop and stole items. One of the people threw punches at him. He identified the 1st accused as the person who entered in to his shop on that day through the gap. 

14. He also identified the 1st accused in the court (dock identification) which was objected by the counsel for the accused. There was no ID parade conducted by the police after the accused was arrested and he was identified in the cell which I consider was conducted in an improper manner.

15. However, there is evidence to show that this identification was more of recognition by the complainant. According to him, the 1st accused on 31/01/2014 came to his shop to pawn some rugby boots. The accused was at shop for nearly 01 minute and he recognized him when he came to rob his shop on 01/02/2014.

16. I have further considered the Turnbull guidelines and satisfied of the identification made by the complainant. The accused was in his shop for nearly 05 minutes in broad day light and in such a close distance I do not believe he would make a mistake about the identification. Therefore even without an ID parade I think I can consider the identification made by the complainant in the court. 

17. The accused in his caution statement also admitted to this offence. Even though he said during the trial that he was forced to admit, in a voir dire hearing I have already decided that he gave this statement voluntarily. 

18. In his confession, the accused admitted on that day he went to the pawn shop and stole money from that place. In his evidence, the accused said the police fabricated evidence. According to him, the police wrote whatever they like and did not give a chance to read. Having gone through the statement I reject this allegation about fabrication also. In his confession, in fact he has denied taking mobile and some items. If the police was fabricating they would have implicated the accused for them also. 

19. Even though there has not much evidence to suggest that the 1st accused used force on the complainant, his partner punched the complainant and stole money outside the shop. Therefore based on joint enterprise the 1st accused is equally liable for this offence. 

20. Having considered the above reasons I am convinced beyond reasonable doubt that the 1st accused committed this offence.

21. Therefore I find the 1st accused guilty of one count of Aggravated Robbery contrary to section 311(1) (a) and convict him accordingly.

22. Since this court is exercising the extended jurisdiction of the High Court case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal. 

H.S.P.Somaratne
Resident Magistrate, Suva