State v Temo [2016] FJMC 100; Criminal Case 1709.2012 (26 July 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case : 1709/2012

STATE

V

JOSEVA TEMO

MANASA TEMO

For the Prosecution : Cpl Shaw

The Accused : In persons

Date of Judgment : 26^th of July 2016

JUDGMENT

1. The accused were charged with one count of Attempted Aggravated Robbery contrary to section 44 (1) and 311(1) of the Crimes Decree and one count of Damaging Property contrary to section 369(1) of the Crimes Decree.
2. The particulars of Attempted Aggravated Robbery are “JOSEVA TEMO and MANASA TEMO with others on the 28^th day of September 2010 at Wailoku in the Central Division attempted to rob Shalendra Bhawan and immediately before such attempt used force by assaulting the said Shalendra Bhawan”.
3. The particulars of Damaging Property are “JOSEVA TEMO and MANASA TEMO with others on the 28^th day of September 2010 at Wailoku in the Central Division, willfully and unlawfully damaged the glass near door and glass door of vehicle registration number FS 118 valued at $3000 the property of BRITISH AMERICAN TOBACCOO”.
4. Both accused pleaded not guilty and also challenged the admissions in their respective caution statements and after a voir –dire hearing I found that both accused gave their statements voluntarily.
5. After numerous adjournments due to various reasons, the trial proper was conducted on 09^th and 18^th May and 17^th June 2016. For the prosecution 06 witnesses were called and for the defence both accused elected to remain silent. At the end of the hearing only the 1^st accused filed closing submission and I have considered that also for my judgment.
6. I would first summaries the evidence presented by the prosecution.
7. PW1 (Livai Tuvibavu)- He was working in American Tobacco company and on 28/09/2010 was visiting a shop. He saw some people attacking their vehicle with cane knives and the driver (PW3) managed to take off the vehicle from that place. Some of them tried to attack pW1 also and he ran away from the place. There were 4 people attacking Salendra(driver) and they were wearing masks. One of them tried to throw a block at him and he went inside the shop. When he came out there were no one outside. The witness said all the assailants were wearing masks. During cross-examination by the 2nd accused the witness confirmed that the people were wearing masks.
8. PW2(DC Williame) – He is working in the police force for 15 years and was part of the team that investigated this incident. They managed to arrest the both accused from their homes and the witness also identified them in the court. During cross-examination the witness denied the accused were assaulted after the arrest.
9. PW3(Salendra Bawan)- He is working for British American Tobacco company for past 15 years and on 28/09/2010 parked his vehicle beside a shop. Suddenly someone damaged the back glass of his vehicle and he called his boss. There was money inside the vehicle and one person was putting a cement block to his tire whilst another was damaging the glass. There were 2 boys and he could not see their faces. He was injured and was taken to hospital for treatment. The door glass was smashed. During cross-examination also the witness said he could not see the faces.
10. PW4( DC 3651 Leone)- He is in the police force for past 11 years and conducted the caution interview of the 1^st accused in Samabulla police station. He gave the accused all his rights and the interview was marked as PE1.
11. PW5(PC Nitesh)- He was also part of the investigation team and charged the 1^st accused . The accused signed the charge statement and the witness marked this as PE2. During cross-examination the witness said he could not remember if the cane knife was recovered.
12. PW6(PC Jone) –He is the police force for past 11 years and conducted the caution interview of the 2^nd accused in Samabulla police station. The accused was given all the rights and the witness marked the interview as PE3. He was the investigating officer also and marked the medical report of PW3 as PE4. During cross-examination the witness said he knows one Emosi for past 02 years and did not tell the accused to bring him.
13. Now I would consider the applicable law in this case. 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).

14. 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 relevant for 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 (emphasis added).”

15. The accused were charged with one count of Attempted Aggravated Robbery contrary to section 44 (1) and 311(1) of the Crimes Decree and one count of Damaging Property contrary to section 369(1) of the Crimes Decree.
16. The Robbery is defined in section 310 of the Crimes Decree as :

“(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. “

17. When a person commits a robbery with one of more person then it would constitute Aggravated Robbery [section 311(1)(a) of the Crimes Decree] and therefore the Prosecution has to prove the following elements:
    1. The accused ;
    2. Committed the theft ;
    100. Immediately before committing the theft used force on the complainant ;
    4. He was in company with another person.
18. When the accused could not complete an offence then he can be charged for attempt to commit an offence. To found a person guilty for an attempt the person’s conduct must be more than merely preparatory to the commission of the offence, and the question whether conduct is more than merely preparatory to the commission of the offence is one of fact (Section 44(2) of the Crimes Decree).
19. 369(1) of the Crimes Decree defined the Damaging Property in the in the following manner:

“A person commits a summary offence if he or she willfully and unlawfully destroys or damages any property.”

20. The elements for this offence are :
    1. The accused;
    2. Willfully and unlawfully ;
    100. Destroys or damages any property.
21. Having considered the applicable law, now I would analyze the evidence in this case. Both accused elected to remain silent. This is their right under the 2013 Fiji Constitution (article 14(2) (j)) and I am not going to draw any adverse inference from that.
22. The civil witness (Pw1 and PW3) said whilst they were attending to a business in a shop, some people attacked their vehicle with cane knives. They damaged the vehicle and injured PW3. But they could not take the money inside the vehicle as the driver managed to get away. The accused did not challenge these claims apart from just asking about the identity of the offenders.
23. In view of the above evidence, I find the Prosecution has satisfied the elements of both counts apart from the identity of the accused.
24. And to prove the identity the prosecution relied on the caution statements of the both accused. A court can act on the confession of an accused person only if it satisfied that the statement was given voluntarily by the accused and the content is true. When an accused is unrepresented even if not challenged, a court has to conduct a trial with a trial to satisfy about the voluntariness of the statement.
25. In this case before the hearing both accused challenged their confessions and a voir-dire hearing was conducted on to decide about the admissibility. After considering all the evidence I found both accused confessed voluntarily (ruling dated 19^th February 2014).
26. Now I consider if the confessions of both accused are true and can be relied on by this court to convict the accused.
27. The 1^st accused in his caution statement said on 28^th September 2010 he went to wait for the tobacco delivery van at Wailoku with one Tausia. He took a cane knife and was waiting in the drain with his friend. On the opposite side of the drain there were the 2^nd accused and Emosi .When the vehicle came the accused put a cement block as a barrier. He was standing outside the shop guarding whilst the others were trying to rob the van and it managed to get away. When the accused saw delivery boy coming out from the shop he threw a stone at him and they all ran away from the place.
28. The 2^nd accused in his caution statement said on 27^th September 2010 he with others planned the robbery and on 28^th September visited the place. He was hiding opposite side and saw the 1^st accused running away to the vehicle and putting the cement block. The 2^ndaccused was carrying a knife and ran to the vehicle and broke the glass at the driver side. The driver managed to flee away in his vehicle and the accused with others ran away from the place.
29. In their confessions both accused made incriminate evidence against the co-accused but the confession is admissible only against the author. Therefore I am not going to consider the admissions against the co-accused and confine myself only to the accused only.
30. The above admissions are consistent with what happened on that day according to the eye witnesses and therefore I accept both confessions are trues statements. These confessions clearly reveal both accused with another two accused (Tarusia and Emosi) tried to rob the vehicle and also damaged the vehicle.
31. Therefore I am satisfied these offences were committed by the two accused who are appearing in this court.
32. I find the prosecution has proved all the elements of both counts beyond reasonable doubt.
33. Further I find both accused guilty for this charge and convict them accordingly.
34. 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.
    

Shageeth Somaratne

Resident Magistrate, Suva