State v Tabaka [2018] FJMC 14; Criminal Case 713.2017 (27 February 2018)

IN THE MAGISTRATES’ COURT OF FIJI

AT NAUSORI

Criminal Case No: 713 /2017

STATE
v
MESAKE TABAKA

For the Prosecution: Sgt. Rao
The accused: In person
Date of Judgment: 27^th of February 2018

JUDGMENT

1. The accused is charged with one count of Robbery contrary to section 310(1) (b) of the Crimes Act No 44 of 2009(“Crimes Act”). The particulars of the offence are “MESAKE TABAKA on the 12^th day of November 2017 at Nausori Town in the Central Division robbed one SASHI KALA of 9 carat Gold Chain valued at $99.00 the property of said SASHI KALA”.
2. The accused pleaded not guilty wherefore this proceeded for hearing. The prosecution called 04 witnesses and tendered 2 exhibits. The accused elected to remain silent and at the conclusion of the hearing only he made the closing submission.
3. Pw1, Shashi Kala was passing the Bakery shop around 4pm on 12/11/2017 and felt someone grabbing her chain forcefully from back. She shouted and her husband chased that person but could not catch him. She managed to grab half of the chain tightly and ¼ of the chain was taken by the person. The thief took away the back part of the chain and she identified the chain in the court and this was marked as PE1. She did not see who grabbed her chain on that day.
4. In cross-examination the witness said she got scratches from the force of the grabbing and at that time she was going to Wine and Dine shop with her husband. She did not see the person and the husband chased him.
5. PW2, Wame Bainiwalu , came to buy bread at the Bakery around 3.30pm and saw the Indian lady at Westpac asking for help. He also saw a tall I-tukai person running from the scene. At that time he did not know the person has grabbed the chain. When the witness asked a beggar he said the accused committed the offence. When they came to the Nausori police station the police arrested the accused. Beggar, Drose said Messake robbed the lady. PW2 also identified the accused as the person who ran away on that day.
6. In cross-examination the witness admitted he did not know where the accused was staying or where he was working. This incident happened around 3.30pm. Answering to a question raised by the court the witness said he has not seen the accused before the incident.
7. PW3, Taniela Drosei was near the bakery around 3.30pm on 12/11/2017 looking for money when he saw the accused grabbing the chain from an Indian couple and running away. The accused came running in front of him. He knows the accused for past 05 years and also identified him in the court.
8. In cross-examination the witness said he clearly saw the accused on that day. He is from Lakena but the witness does not know where he is working. PW3 saw the accused grabbing the chain and Indian man chasing him.
9. PW4, Cpl Osea Tunidau is in Fiji police force for past 12 years and presently works in CID HQ in Suva. On 12/11/2017 he was traveling in a taxi and saw an I-tukai boy running past the bakery and an Indian man chasing him asking for help. The witness knew something was wrong and asked the taxi driver to follow. He asked the driver to seek help from the Nausori police station and saw the boy hiding in the cemetery changing clothes. He was looking to see if anyone is searching for him. When the police vehicle came PW4 informed about the situation. The boy also saw the police vehicle and tried to run away. Some boys gave the chase and caught him at taxi stand. He was keeping a piece of gold chain in his mouth and when the PW4 tried to retrieve that the boy threw it to a manhole nearby. PW4 could not retrieve the chain from the drain. The boy was escorted to the police station and the witness identified the accused in the court as the person he arrested on that day.
10. In cross-examination PW4 said he did not see the accused grabbing the chain. But he saw the accused running away from an Indian man and the time was 3.30pm. The accused was having a piece of gold chain in his mouth when arrested.
11. PW5, PC Apisai conducted the caution interview of the accused on 13/11/2017 after giving all the rights. The interview was marked as PE2.
12. In closing address the accused said even though PW1 said the incident happened around 4pm all the other witnesses mentioned around 3.30pm and he was innocent of this incident.
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. The accused is charged with one count of one count of Robbery contrary to section 310(1) (b) of the Crimes Act which provides :

A person commits an indictable offence (which is triable summarily) if he or she commits theft and —

(b) at the time of committing theft, or immediately after committing theft, he or she—

(i) uses force on another person;

15. Hence the prosecution has to prove the following elements beyond reasonable doubt :
    1. The accused;
    2. Commits Theft ;
    100. And at the time of committing theft or immediately after committing theft he used force on another person.
16. Pw1 said whilst she was going to Wine and Dine shop a unknown person came and grabbed her chain from behind and ran away with part of that . The force of grabbing was such that she got injured also (scratch marks). This evidence is enough to prove that there was a theft of chain and at the time of committing there was force used on that person. I am mindful that a simple grabbing of an item from a person in the street maybe not sufficient to constitute a Robbery. But here a force was used to steal the chain which caused the injuries to the victim. Accordingly I find the prosecution has proved that the victim was robbed on that day.
17. Disputed issue here is that the identity of the person who robbed the chain on that day. The victim did not see the person and also did not identify the accused as the person who committed the offence in the court.
18. PW2 saw the accused running away from the scene and an Indian Person chasing him. When inquired PW3 told him it was Mesaka who robbed the Indian lady on that day. But this witness has not known the accused before the incident and in my view it is unsafe to rely on his evidence alone to find the accused committed this offence.
19. PW3 saw the accused grabbing the chain from the lady. He also saw the accused running away. He knows the accused before the incident. But I am mindful that there may be mistaken identification of a person known to a witness. Hence to decide whether this witness has properly identified the accused on that day I am going to apply the guidelines laid down by Court of Appeal of England in R v Turnbull (1977) Q.B.224 for this case.
20. 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.”

21. 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?

22. After applying the above guidelines if I am satisfied that the witness has properly identified the accused I can rely on that convict the accused. .
23. PW3 said he knows the accused from past 05 years. He even knows where the accused is from and his name. This observation was made around 4pm when the visibility is good and the accused was running close to him. There is no contrary evidence to show his view was obstructed. Hence I find PW3 has properly identified the accused in this case.
24. Now I consider the evidence of PW4 which are circumstantial evidence in this case.
25. Pollock CB, likening circumstantial evidence to a rope comprised of several cords, said:

“One strand of the cord might be insufficient to sustain the weight, but three stranded together may be quite of sufficient strength.

Thus it may be circumstantial evidence – there may be a combination of circumstances, no one of which would raise a reasonable conviction, or more than a mere suspicion; but the whole, taken together, may create a strong conclusion of guilt, that is, with as much certainty as human affairs can require or admit of. (Exall (1866) 4F & F 922, at p. 929).

26. ‘It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference’ (Teper v The Queen [1952] AC 480, per Lord Normand at p. 489)
27. From PW4 ‘s evidence I find the following facts are proved in this case:
    1. PW4 saw the accused running in the town at 3.30pm pm with an Indian Man chasing him;
    2. The accused was hiding in the cemetery trying to change his clothes;
    100. When he saw the police vehicle he tried to escape and arrested at the taxi stand by some local boys;
    4. PW4 found the accused hiding a piece of gold chain in his mouth and stop it from recovering he threw it to a manhole.
28. From these facts only reasonable inference that I can draw is that the accused committed this offence.
29. The accused has remained silent during the hearing and this is his right under the Constitution and I would not draw any adverse inference from that. In his caution statement also he denied being aware of this offence.
30. Also he said there were contradictions between the prosecution witnesses. But only one he managed to show is that the victim saying this happened around 4pm whilst all the other witnesses putting the time of the incident around 3.30pm. This is not a major contradiction to consider in this case. It is more likely the complainant was not much aware about the correct time of the incident. It is not possible for a party would keep an eye on the watch whilst attending to their daily routine and would be only have a general idea about the time. But what is not discredited is that around that time she was robbed in the town and based on the direct and circumstantial evidence it has been proven during this hearing that it was the accused who committed this robbery.
31. Based on the above mentioned reasons I find the prosecution has proved this charge beyond reasonable doubt.
32. The accused is found guilty for this charge and convict accordingly.
33. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate