State v Usa [2016] FJMC 70; Criminal Case 1246.2015 (27 June 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case : 1246/2015

STATE

V

JEKOPE USA

For the Prosecution :Ms.Shirley Tivao(ODPP)

The Accused : In person

Date of Judgment : 27^th of June 2016

JUDGMENT

1. The accused is 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 “JEKOPE USA WITH ANOTHER , on the 05^th of July 2015 at Suva in the Central Division ,robbed MOHOMMED IFZAAL KHAN of his wallet valued at FJD $5.00 and cash valued at FJD $85.00 the property of MOHOMMED IFZAAL KHAN .”
2. The accused pleaded not guilty wherefore this proceeded for hearing. The State called 02 witnesses to prove their case .PW1 was Mohommed Ifzaal Khan the complainant in this case. He is working as a taxi driver and on 05/07/2015 around 10am took a job from Cunningham to Nailuva Road. There were 2 passengers and they told him to enter to Raisara Road. The front passenger was bit short, wearing black jacket and ¾ pants and the other passenger was wearing white t-shirt. As soon as PW1 entered Raisara Road, they asked him to stop. Then the front passenger punched him in his stomach and took his wallet. The one in behind held him. The wallet contained money, FNPF card and driving license. The front passenger got off, came and wanted to have his mobile. When the other one got off also, PW1 drove away in front and contacted other taxi drivers through RT communication and they also came to the scene. Then they started searching for the robbers and whilst he was going along Grantham Road, he saw them again in ground opposite Garden city. At that time distance was not far (same as the witness box to FBC building) and only 45-50 minutes elapsed from the robbery. There was no obstruction and through a friend he called the police. When the police arrived, he told them about the robbers and the police managed to arrest one wearing the black jacket. The other one got away. In the police post also he recognized the person. The complainant saw him in the taxi and when he came to take the mobile. The person was medium height with, broad lips with a beard and the witness also said that person who he picked on that day is in the court wearing a red T-shirt .The complainant did not receive injuries and the wallet contained $80.00 cash.
3. During cross-examination the witness said the time was 10.15 am when he picked the passengers and that was the first time he has seen them. He was at the scene and his friend went to call the police. He saw them in the ground. There was no ID parade but he clearly saw them.
4. PW2 was PC 5085 Khan, the arresting officer in this case. On that day he was in Raiwaqa Police Station doing morning shift and around 1100hrs the complainant came and informed about a robbery. The complainant told that a Fijian man wearing black jacket, cap and pant robbed him and that suspect is in Raj Mothilal Housing which is near to the police station. The ground is Kauvesi Park and when he went there with some police officers, he saw the suspect wearing black jacket and ¾ pant. The suspect ran away when he saw the police and PW2 arrested him with the help of another officer. The complainant came and identified the suspect and again in the police station he identified. PW2 also said the person he arrested that day is in the court wearing a red t-shirt. During cross-examination PW2 said that the complainant informed him the suspects entering Raj Motilall housing and the suspect was wearing black jacket and ¾ blue pants. During re-examination the officer said as the complainant was present during the arrest there was no need for ID parade and the pant was dark blue.
5. The Prosecution closed the case after that and having satisfied with the evidence; I found a case against the accused and gave his rights pursuant to section 179 of the Criminal Procedure Decree. The accused elected to give evidence and called another witness.
6. In his evidence the accused said he was in his home drinking grog with his wife and around 4am went to a night club to have some beer. They were there till 10am in the morning and wife left him after an argument about a mobile. He followed her to Raiwai . He got off the bus and was arrested by the police. He did not know anything about this robbery. During cross-examination he admitted running away from the police. The reason was because they were in outing and he was afraid they might do something to him. The police was not in uniform. On that day he was wearing black jacket and ¾ pants (blue). He filed the notice of alibi through the legal aid, which said he went to Raiwaiwith one Eremesi. The wife did not tell him that she was going to Raiwai but he went there. He lives in Vesai with the wife. During re-examination the accused said he got relatives in Raiwai.
7. DW2 was Selina, the wife of the accused. She said they went to the night club around 4am in the morning and after an argument about the phone she left the accused around 9.30 am to 10am. She went to Raiwai to her friend place and was not aware the accused came to look for her. During cross-examination she said she was not drunk and left the club at 9.30am. She was not aware what her husband was doing after 9.30 on that day. The defence closed the case after that.
8. Both parties were allowed to file closing submissions. The learned State counsel in her submission submitted that they have proved their case and the alibi presented by the accused should not be accepted and the defence has failed to prove that on balance of probabilities.
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 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. “

11. 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.
12. 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 another place ( Raiwai ) and called his wife as an alibi witness.
13. The State in their closing submission, argued that the defence has failed to prove this defence on balance of probabilities. This argument is wrong in principle. Normally in a criminal trial the accused has no burden and even when he takes an alibi he does not have a legal burden to prove that also. The State has to disapprove that the alibi beyond reasonable doubt.
14. Even if a court find that the alibi taken by an accused is false, it would not mean 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.
15. Even though the accused called his wife as an alibi witness, she was not aware what her husband was doing after 09.30 am on that day. This alleged incident happened around 10 am. Therefore her evidence is not relevant in this case.
16. The accused in his evidence said he went to search for his wife in Raiwai after an argument. But she has not told him that she was going there. They live in Vesai and why he did not go to his home first? Also in his evidence he said he went to search his wife alone, but the State managed to show that in his alibi notice he said he went with another person. These issues raise doubt about the credibility of the accused about his version of the events.
17. Now I turn to the Prosecution case. The State called the complainant and the arresting officer as witnesses. Even though there was no dock identification both accused identified the accused as the person who was wearing red t-shirt in the court (the accused was the only one wearing the red t-shirt in the court this day). The reason the State did not directly asked for dock identification was because there was no ID parade in this case.
18. But in this case an ID parade would not have made any differences as the complainant identified the accused number of times before coming to the Court. First he identified the accused when he was in the ground whilst searching for him. Then after the arrest he again identified him in the police station and according to arresting officer after the arrest also.
19. There is no dispute that the accused was arrested by PW2 on that day. When tried to arrest the accused tried to escape. The reason given by the accused is that he was afraid the police trying to assault him on that day. But this explanation is not acceptable.
20. According to the arresting officer, the complainant identified the accused as one of the person who robbed him on that day. 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.
21. 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.”

22. 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?

23. Having considered above grounds, if I am satisfied about the identification then I can act on that. According to the complainant, the accused was sitting with him on the front seat. He saw the face clearly there and when the accused got off the vehicle and came to take his mobile. This happened around 10am in the morning which means day time. Even though he has not seen the accused before, in this instance there was nothing to prevent his view. He also described the clothes worn by the accused on that time.
24. Second time he saw the accused was in the ground. This was not long after (40-45 minutes) and at that time also he was wearing the same clothes. The distance was not far (from the witness box to FBC building) and third time was when the accused was arrested and in police station.
25. The complainant also described the features of the accused which is consistent with the accused in the court apart from beard which the accused could have easily shaven whilst in custody.Therefore I am satisfied about the identity of the accused in this case.
26. The complainant also said the accused punched him in his stomach (using force), took his wallet (stealing). At that time there was another person who also involved in this offence and accordingly all the elements of this offence are proved by the State beyond reasonable doubt whist rebutting the alibi.
27. I find the accused guilty for this offence and convict him accordingly.
28. 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