State v Tawatatau [2016] FJMC 165; Criminal Case 886.2011 (27 June 2016)

IN THE MAGISTRATE’S COURT
SITTING AT NAUSORI

Criminal Case No. 886 of 2011

State

.v.

Joeli Tawatatau (1^st accused)
Leone Vakarusaqoli (2^nd accused)

Prosecution : Mr Y Prasad and Ms S. Serukai

1^st Accused : Present – Mr E Koroi

2^nd Accused : Present – Mr Luvena

Judgment

Introduction

The accused persons are charged as follows:

Count one, Aggravated Robbery, contrary to Section 311 (1)(a) of Crimes Decree Number 44 of 2009. The Particulars of Offence is that:

"Joeli Tawatau and Leone Vakarusaqoli on the 31^st day of March, 2011, at Naduru Road, Nausori in the Central Division, immediately before committing theft, used force and robbed Ravin Prasad of assorted jewelleries valued $9500.00 cash $200.00, one easy-tel phone valued $90.00, one nokia phone valued at $50.00, one Samsung mobile valued at $2000.00 and all to the total value of $12140.00."

Count two, Resisting arrest, contrary to Section 277 (a) of the Crimes Decree. The Particulars of the offence is that:

“Joeli Tawatatau on the 31^st day of March 2011 at Tacirua in the Central division resisted lawful apprehension.”

The High Court pursuant to Section 4 (2) of the Criminal Procedure Decree 2009 extended the jurisdiction of this Court to try this case.

The Law

Section 311 of the Crimes Decree 2009 provides that" (1) A person commits an indictable offence if he or she —

(a) commits a robbery in company with one or more other persons; or

(b) commits a robbery and, at the time of the robbery, has an offensive weapon with him or her.

Penalty — Imprisonment for 20 years.

(2) for the purposes of this Decree, an offence against sub-section (1) is to be known as the offence of aggravated robbery .

"offensive weapon" includes —

(a) an article made or adapted for use for causing injury to, or incapacit, a person; or

(b) an article where the pers person who has the article intends, or threatens to use, the article to cause injury to, or to incapacitate, another person. "

The main elements of the offence of Aggravated Robbery is case are:

i. Thesed pers person,

ii. Robbed the complainant,

iii. and at the time of the ro he had an offensive weapon.

Resisting Arrest

277. A person coon commits a summary offence if he or she—

(a) assaults any person with intent to commit an indictable offence, or to resist or prevent the lawful apprehension or detention of himself, herself or of any other person for any offence; or

(b) assaults, resists or wilfully obstructs any police officer in the due execution of his or her duty, or any person acting in aid of such an officer; or

(c) assaults any person in pursuance of any unlawful combination or conspiracy to raise the rate of wages, or respecting any trade, business or manufacture or respecting any person concerned or employed by it; or

(d) assaults, resists or obstructs any person—

(i) engaged in lawful execution of court process; or in

(ii) making a lawful distress, with intent to rescue any property lawfully taken under such distress; or

(e) assaults any person on account of any act done by him or her in the execution of any duty imposed by law.

Penalty - Imprisonment for 5 years.

Onus and Burden of Proof

The onus of proving the charges beyond reasonable doubts against the accused persons is borne by the prosecution. There is no onus on thused used persons at any stage to prove their innocence or to prove anything else.

The burden of proof is beyond reasonable doubt.

The Evidence

The prosecutalled 6 witnesses. The 1st accused person gave sworn evidence. The 2^nd accused remained silent and gave evidence for the voir dire. The other defence witnesses were Alifasi Kirikiti, Sitiveni Tuisamoa and Jonetani Rokoua.

Analysis of Evidence in Relation to the Laws

The Court following a voir dire ruled that the Caution Interview of the 2^nd accused person can be tendered and admitted as evidence. The Court had found the statement to have been obtained fairly and without any threat, duress or inducement.

The Court has noted all the evidence given in Court, together with the exhibits and documents that were tendered. This Court notes that the onus on proving that the accused persons committed the offence that they are charged with rests with the prosecution. The standard of proof is beyond reasonable doubt. This Court has further noted the main elements of the offence of aggravated robbery which neede proven by t by the state.

There was no direct evidence of identification of any accused person. The victim told the Court he could not identify them as were masked and it was dark. The victim told the Court that that on 31^st March 2011 some people broke into his house at around 2 to 2.30am and assaulted him and he fell, his mouth was covered with masking tape. The victim told the Court of the things and the approximate value of items stolen by the persons who broke into his house. The Court is satisfied from the evidence of the victim of the date and the items and its value that was stolen from his house. A company vehicle was also taken from his residence. There is no doubt by this Court that the items belonged to the victim and that the company vehicle was in the victim’s possession.

The evidence of Police Officer Timoci Bola (PW-1) was that he was on mobile patrol with other officers and spotted the 1^st accused at Tacirua. The company vehicle of the victim was found abandoned at Cunningham, not far from Tacirua. PW-1 saw Joeli, the 1^st accused and asked to search his bag when the 1^st accused threw the bag and ran off. The 1^st accused was later arrested and a search of the bag revealed a number of items, which included jewellery, number plate, a phone. The witness identified those items in court. PW-1 also identified the 1^st accused as the person they arrested and the person who had the bag with him the day he was arrested. The items and the bag found with the 1^st accused belonged to the victim/

PW-2 was DC Vereti, he told the Court at Tacirua he recalled seeing Joeli, the 1^st accused throw the bag as he was approached and they later arrested him in the Cassava patch. PW-2 also identified the bag in Court and the items that were in the bag. He also identified the 1^st accused as the person with the bag.

Pw-1 and 2 both were thoroughly cross-examined by the respective counsels for the two accused persons. The 1^st accused denied the allegation and that he had any bag with him when he was confronted by the police. His version is that the police assaulted him and told him to admit to the robbery. He was taken to Police Station and also later taken to hospital. One of the witnesses for the 1^st accused was Jonetani he told the Court that he was with the 1^st accused on the evening of 30^th March 2011 they had a drink and he knocked out at 11pm and after that he did not know where the 1^st accused was. The allegation of the robbery by the victim was at around 2 to 2.30 am on 31^st March 2011.

The Court has noted the evidence of Sitiveni, a witness for the 1^st accused person. His evidence is that police got out of a van, shouted at Joeli and assaulted him. His other evidence was that Joeli did not run to the cassava patch and did not carry the bag. He further admitted in Court he saw everything tried to verbally stop the police but did not report about them later on. This Court has noted all this evidence as well.

Both the prosecution witnesses (PW-1 and 2) answered the questions by the counsels in cross-examination and were not discredited. The Court believes their version of events. The Court further believes from their evidence that the 1^st accused fled after throwing the bag and he was arrested later. The Police officers had to use force to arrest the accused. The Court has noted from the medical of the 1^st accused that he received injuries whilst being arrested. This Court further believes the Police Officers that the accused evaded arrest and they had to chase and apprehend the accused. According to the prosecution witnesses the accused punched the police officers and the Court believes that the injuries the accused received were from him evading police and the police using reasonable force in arresting the accused. The Court finds from the evidence before it that the injuries were from the time the police arrested the accused but not separately inflicted.

The caution interview of the 2^nd accused which was admitted in evidence after the voir dire details the robbery, the actions of the 1^st accused and the role of the 2^nd accused. The evidence in Court by the prosecution witnesses is a series of links, which form the chain of evidence. The evidence of the prosecution witnesses ties together. There are no gaps in the evidence which do not link up and complete the chain. Thist accepts the evidence of the prosecution witnesses. All the elements of the offence the ache accused are charged with are proven by the prosecution.

Having heard all the evidence and perused all the documents submitted in Court the Court finds that the prosecution has proven the case against the accused persons beyond reasonable doubt. All the elements of the charges laid against the accused person are proven. For the foregoing reasons this Court finds the 1^st and 2^nd accused guilty of aggravated robbery and the 1^st accused of resisting arrest and convihem accordingldingly.

Chaitanya Lakshman

Resident Magistrate

27^th June 2016

IN THE MAGISTRATE’RT
SITTING AT NAUSORI

ht"> Criminal Case No. 886 of 2011

State

v

Joeli Tawatatau
Leone Vakarusaqoli

Prosecution : Ms Serukai

1^st Accused : Present – Mr E Koroi

2^nd Auused : Present – Mr Luvena

Voir Dire - Ruling

The 2^nd accused has challenged the admissibility of the caution interview. It was submitted that:

(a) He was assaulted by 5 police officers at Nabua Police Station before being taken to Nausori police station where he was charged.
(b) The answers were fabricated as he was already sapped of his free will to take the interview and in the process admitted to allegations involuntarily.
(c) There was breach of his rights under the Judges Rules and Article 14 (3) (d) of the International Covenant on civil and Political Rights during his interview by the Police.

The Burden and the Legal Test

Justice Madigan in State v Temo [2012] FJHC 1122; HAC60.2011 (22 May 2012) stated that “the test in assessing whether an interview is admissible in evidence is whether it was made voluntarily or not, obtained without oppression or unfairness and not obtained in breach of the suspect's Constitutional (now read Common Law) rights. The burden of proving that the statement was obtained voluntarily, without oppression or unfairness and in accordance with common law rights is on the Prosecution and that burden remains on the State throughout. The standard is of course beyond reasonable doubt. I have kept these tests and the burden uppermost in my mind in deciding on this application by the State.” This Court has noted the guidelines and the tests as pronounced by his Lordship and works on the basis of this guideline.

The Evidence
The Prosecution called 6 witnesses. The 2^nd accused gave evidence and the other witness for the 2^nd accused was Jovili Mocewasa.

The evidence of the accused person was that “recall 2011. 26^th May 2011. Residing at makosoi, pacific harbour. On the morning I was lying at home. Heard some knock. Saw torch light outside at 430am. I got up and opened the door. Police were at the door. Many police. I opened the door they started assaulting me. Hit my chin (jaw). Punched my mouth. Punched my ribs. Stomach. Lower body. Handcuffed me and told me to sit down... they brought me to Nabua Police Station.”

The 2^nd accused further informed the Court that “on 26^th May 2011 at Nabua Police Station they told me they brought in Joeli. Said to make it easy for us. They slapped, swore and intimidated me. They told me to admit the allegation. Kept me at Nabua not for very long. They brought me to Nausori. I donot know the names but recognise the face. I had cut in my mouth. Swollen back. Bruises on my cheeks. Marks visible when brought to Nausori Police Station. Donot recall the time at Nausori Police Station. On the same day. It was almost mid-day. They brought me in the crime office. They told me to make it easy and admit to allegation they went back said if I did not co-operate they will come back. I was not feeling ok. Asked to be taken to hospital. They told me to wait. Minor injuries. They did not take me to hospital.”

The other evidence of the 2^nd accused was that “admission not of own free will. I was assaulted to admit.... Prior to caution interview did not know Joeli. It was only them who gave Joeli’s name to me... they produced me in Court after interview and charge. When came to Court Injuries were visible. Not asked about those injuries. Told Court about injuries I sustained. Magistrate did not state anything at the time.”

The Police Officers denied the allegation of assault. No medical examination report as stated in Court was tendered by the 2^nd accused. According to the 2^nd accused he told the Court of his injuries and that the Magistrate did not state anything at the time. Having perused the files this Court did not find any record of any complaints of assaults by the Magistrate.

The Court noted from the evidence of the witnessing officer to the caution interview that the accused was treated well and he gave his answers voluntarily. The Court believes the police officers and The Court finds that having seen the accused within 48 hours the Court would have noted any injuries that were visible on the accused person. The accused did not complain of any assault when he appeared first before a Magistrate and later before a Judge in the High Court. The Court has perused the files and found no records of any complaints of assault by the 2^nd Accused when he was initially produced in Court.

Having perused the caution interview this Court finds that the 2^nd accused was given his rights before the caution interview. The information provided in the caution interview is detailed and one which could not easily be concocted by the police.

The Court finds that the caution interview was fairly conducted and the accused answered the questions without any coercion or threats to him by any person. The caution interview is admitted in evidence.

Chaitanya Lakshman

Resident Magistrate

27^th June 2016