State v Tokivakadua [2016] FJMC 114; Criminal Case 1226.2015 (11 August 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case : 1226/2015

STATE

V

BILIQITA TOKIVAKADUA

For the Prosecution : Cpl Shaw

The Accused : In person

Date of Judgment : 11^th of August 2016

JUDGMENT

1. The accused was charged with one count of Aggravated Robbery contrary to section 311(1) of the Crimes Decree No 44 of2009. The particulars of the offence are “BiliqitaTokivakadua and KoroiVeikoso on the 27^th day of June 2015 at Lot 2 Crompton Place, Suva in the Central Division stole a handbag approximately valued at $300 which contained a black berry mobile phone approximately valued at $1000 and a wallet containing $100 cash, driving license, and assorted ATM cards; all to the total value of $1400, the property of Lai Yeejay and immediately before committing theft, used force on the said Lai Yeejay with intent to commit theft”.
2. The accused pleaded not guilty wherefore this proceeded for hearing. The Prosecution called 06 witnesses and for the defence the accused and his co-accused gave evidence.
3. PW1 was Lia YeeJay , the complainant in this case . She is residing in Crompton Place, Tamavua and at that time was working in Westpac Bank as head of finance. On 27/06/2015 around 9.20pm she left the Restaurant and came home. She parked vehicle inside the garage and was closing the gate when 3 people approached her. The one in front came face to face and asked for her hand bag and when she refused grabbed it. She struggled and he dragged her in the drive way up to neighbor place and managed to take her hand bag. They ran away from that place and she ran after them. When she could not locate them she went to Samabulla police station and met one PC Senibici who accompanied her to search for the offenders. When they could not find the criminals she went back to her place and just after 10 O’clock the police asked her to come and identify some documents that were in her hand bag. These were found in a service station and she spoke to the attendant about that. Monday morning a friend called and said a relative found the missing bag and she went and got it back. But the money in the wallet was missing. She can recognize the person who was grabbing the bag from her from street light even though it was few seconds as he came face to face. Later the police asked her to come and identify the suspects and through the photos (PE1) she managed to identify the accused. The witness also identified the accused in the Court (dock identification). The witness also identified her bag, red t-shirt and ¾ pants the accused was wearing that night and the documents and these were also marked as prosecution exhibits.
4. During cross-examination the witness admitted that she has not seen the accused before this incident. In her statement she did not state about identifying the suspects because the police did not ask about that. The accused was so close to her that day and was her height so she managed to identify him. In the police station no one showed her his photo and she managed to identify the accused through the photos. Answering to my questions also she said she was called to the police station nearly a week after the incident and on that night the accused was so close and she could easily see his face.
5. PW2 was Korovata , who was working in Total service station in Laucala beach on 27/06/2015 and a person came around asking for a tap. He showed the person the tap and was filling fuel to the vehicle. When he came back the witness saw blood all over the work site and saw some documents in the dustbin. He called the boss and later this was informed to the police. PW2 also identified the documents that were marked as PE5 as the once that one in dustbin that night. There was no cross-examination by the accused.
6. PW3 was SanjanaiDevi , who discovered the hand bag of the complainant in her rubbish can on 28/06/2015. She found Westpac documents inside the bag and also described the bag to the Court and also identified that.
7. PW4 was TitilaSau, who was informed about a bag by her neighbor and she saw ID cards and some other items inside. One of her relative was working in Westpac bank and through her PW3 got to know the bag belonged to one Lee Jay (PW1).
8. PW5 was DC Solomoni Luke who conducted the identification for the complainant. He is in the police force for 06 years and during that time was in strike back unit as a team leader. The accused refused identification parade and therefore photo id was conducted where the complainant identified the accused. During the cross-examination the witness said the Investigating Officer (“IO”) informed him that the accused refused to participate in an ID parade.
9. PW6 was DC Wilikesa , who conducted the caution interview of the accused after giving all the rights and this was marked as PE6. He was also the IO in this case and said the accused refused the ID parade and therefore photo ID was conducted. The accused did not cross-examine this witness. With the consent of the accused charge statement was marked as PE7.
10. The Prosecution closed the case after that and having satisfied with the evidence I gave the accused his rights as per section 179 of the Criminal Procedure Decree and he elected to give evidence.
11. The accused in his evidence denied this incident. He said on that night he was in the town drinking alone and was not aware of this incident. During cross-examination the accused said by 8pm he was in Town, but in his caution interview he said at that time he was in his home having dinner. During re-examination he explained the reason for the contradiction was because he did not have time to study his caution interview before the hearing.
12. The accused also called the co-accused in this case and he said the accused was not with him on that day and it was someone else with the same name. The accused closed his case after that and opted to file closing submission.
13. 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 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. “

16. 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 beyond reasonable doubt 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.
17. Having considered the applicable law, now I would analyses the evidence in this case. The accused has denied this offence and taken an alibi. He said at that time he was in town drinking and was not aware about this incident.
18. In a criminal trial when an accused takes an alibi he does not have a burden to prove that. The State has the burden to rebut that beyond reasonable doubt.
19. Even if a court find that the alibi taken by an accused is false, it would not automatically means the accused has committed the offence. There may be instances where the accused does not want to admit that he was at the scene of the crimenot because he committed the offence, but for various other reasons. Therefore the Prosecution has to prove that the accused was at the crime scene and he committed the offence.
20. In this case even though the accused said he was in the town the prosecution shown during the cross-examination that the accused has taken different position in his caution interview. According to the interview around 8pm the accused was in his home having dinner whilst in his evidence he said at that time he was in the town.
21. I am mindful that the evidence is what a witness would come and give in witness box and not his out of court statement. But if it can be shown that he has said different thing outside the court then that would go to the credibility of him. The accused has contradicted in giving evidence about the place around 8pm on that night and the explanation about this contradiction by the accused is not acceptable. Hence I find his alibi not credible.
22. Before turning to his co-accused I would consider the evidence of prosecution witnesses. Even though the prosecution called 06 witnesses only relevant evidence is the complainant. Other witnesses could not give evidence to link the accused to this offence.
23. The complainant said whilst she was trying to close the gate 3 people came and robbed her handbag. According to her the person who came near to her asked her hand bag and then used force to take it from her. Based on this part I find apart from the identity all the elements of this offence have been proved.
24. She also identified the accused through photo ID and identified him in the court (dock identification). According to the IO, the accused refused to participate in an ID parade which led to the photo ID and these were marked as exhibit in the court and also the officer who conducted this ID came and gave evidence.
25. Therefore I have to consider whether the complainant could have properly identified the accused on that day. This brings me to the guidelines laid down by Court of Appeal of England in R v Turnbull (1977) Q.B.224.
26. Lord WidgeryCJ in R v Turnbull(supra) said :

“Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? 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? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

27. Accordingly when considering identification evidence the court has to consider the following grounds:

(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?

28. Having considered above grounds, if I am satisfied about the identification then I can act on that. According to the complainant, she has not seen the accused before the incident. But she said the accused was so close to her she can clearly identify him.
29. But in her statement she has not given any description about the accused. The witness said the police did not ask her which would have been what really happened on that night with regard to omission in her statement. Further she said she identify the accused in the police station nearly after week from the offence. The time lapsed from the incident to the subsequent identification even though no fault of the complainant is bit troublesome to me. With the lapse of time it is natural for a person to make mistakes in identification. Further according to the complainant she was observing the offender on that day only for few seconds. Hence I find there are weaknesses in the identification that need to be held in favor of the accused.
30. The accused called his co-accused to give evidence. The co-accused in his caution statement has implicated the accused but under the law this statement is not admissible against the accused.
31. During the hearing the co-accused said the accused was not with him on that day when this offence was committed. Due to some unexplained reason the prosecution did not cross-examine the co-accused about this claim. Maybe the Prosecution would have been satisfied about the evidence of the complainant. But as mentioned earlier there is weakness in identification by the complainant.
32. Having considered totality of evidence considered view of this court is that through the unchallenged evidence of the co-accused and weakness in identification evidence there is a reasonable doubt about the accused committing this offence.
33. Hence I find the accused not guilty for this charge and acquit him 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