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Murty v The State [2002] FJHC 84; HAA0007J.2002S (31 May 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA007 OF 2002

Between:

SEGRAN MURTY
s/o Ram Murty
Appellant

And:

THE STATE
Respondent

Hearing: 24th May 2002
Judgment: 31st May 2002

Counsel: Appellant in Person
Ms S. Shah for Respondent

JUDGMENT

The Appellant appeals against his conviction and sentence of 18 months imprisonment for the following offence:

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to Section 293(1)(b) of the Penal Code, Act 17.

Particulars of Offence

SEGRAN MURTY s/o RAM MURTY, on the 14^th day of May 2001 at Lami in the Central Division, robbed ASHOK KUMAR s/o INDHAR BIR of cash $50.00, and immediately before such robbery threatened to use personal violence on the said ASHOK KUMAR s/o INDHAR BIR.

The trial in the Magistrates’ Court commenced on 6^th September 2001. The Appellant was unrepresented although he had been represented by counsel earlier in the proceedings, and had waived his right to counsel. The first prosecution witness, Ashok Kumar gave evidence that he was a sales representative at the Niranjan’s Ltd., and that on 9^th May 2001 had met the Appellant who wanted to test drive a vehicle. He gave the Appellant the keys to the car. The Appellant drove to Raiwaqa, picked up a “Fijian boy” (later said by the Appellant to be one Jeke Manasa), then went to Walu Bay where fuel was filled at the Niranjan Service Station. Mr Kumar then drove to Uduya Point where the Appellant said they were to pick up his brother. At Uduya Point, the Appellant asked Mr Kumar to wait in the car. Manasa then put a dagger to his neck and took his wallet and key. The Appellant tried to pull Mr Kumar out of the car, hitting him on his shoulder. Mr Kumar refused to leave the car. He said he was afraid and screamed.

Two fisherwomen who were fishing nearby then called out “Butako, Butako.” Manasa then returned the key and the wallet. Mr Kumar drove to Lami Police Station. He found $50.00 missing from his wallet. At the police station, he identified the Appellant to the police.

PW2, Corporal Esala, who worked in the Police Dog Section, said that his dog found the Appellant and Manasa at Uduya Point lying in a drain. They were arrested. The Appellant had a knife, which was later identified by Mr Kumar.

The Appellant was interviewed by Police Constable Tevita. He said under caution that he had directed Mr Kumar to Uduya Point, and admitted trying to pull him out of the car. He said that the Fijian boy “Dike” had held the knife and had threatened Mr Kumar but said (at page 25), “I don’t know how the thing happened, my intention today is not to rob this Indian man.”

The Appellant gave sworn evidence. He said he had robbed the complainant “on compulsion from D.K. Munersor” and that his father had lent him $5000 to buy a taxi and that he was looking for a car, and that the incident happened. He said he was now reformed, and would not re-offend.

Under cross-examination he said he was in Valelevu when the offence was committed and that he had picked Jeke Manasa near Niranjan’s. He said he had no intention to rob. He said he did not take the money from the complainant.

The learned Magistrate convicted him, saying that his sworn evidence was actually mitigation and that the prosecution had proved the case beyond reasonable doubt.

The Appellant appeals against conviction and sentence on grounds he filed in person. I summarise them thus:

1. He did not have an opportunity to call his witness;
   
2. He should have been jointly charged with his alleged accomplice;
   
3. The offence was committed by the accomplice;
   
4. The sentence was harsh and excessive.
   

In court he also submitted that the complainant’s evidence was uncorroborated and not worthy of belief.

The State opposes the appeal saying that the Appellant clearly understood his options at the close of the prosecution case, that he had ample opportunity to call witnesses, that the evidence against him was compelling and that the sentence was in fact lenient in the circumstances.

Witnesses

The trial commenced on 6^th September 2001. The Appellant had pleaded first to the charge on 15^th May 2001. He was admitted to bail on that day. Disclosure was completed by 31^st May 2001. On 16^th July 2001 he was told that the trial would commence on 6^th September. On that day, the prosecution closed its case. The record then reads:

“Accused says his witness is not here.”

The trial was then adjourned to 21^st December 2001 some four months later. On that day he was told of his statutory options. He opted to give sworn evidence. He called no witnesses.

The Appellant had from 16^th July to 21^st December 2001, to have his witnesses (if any) ready. He made no application, according to the court record, for a production order to be served on anyone. Nor did he inform the court on 21^st December that he wanted to call a witness. He chose to give sworn evidence.

I do not consider that the learned Magistrate erred in any way. He gave the Appellant plenty of time to bring his witness or witnesses to court. He did not take the opportunity, and I do not consider that there was a miscarriage of justice. This ground of appeal fails.

Charge

The record shows why the accomplice was separately dealt with. He pleaded guilty, and was sentenced for the offence. There are many reasons why offenders might be charged separately. An expected guilty plea from one, is one such reason. By laying separate charges, the court can deal with the guilty pleas without having to wait for the outcome of a defended trial in respect of the other offenders. There was no prejudice to the Appellant by the fact that he was separately charged. Indeed, it cleared the way for the Appellant, to call the accomplice as a witness, if he had wished to. This ground also fails.

Evidence

The evidence against the Appellant was overwhelming. The complainant identified him as the person who was pulling him out of the car, and who assaulted him while the accomplice held a knife to his neck. The police found both men hiding near the scene of crime. The Appellant had the knife. He confessed to being in the car, although he said he did not intend to rob. In his sworn evidence he said the incident happened when he was looking for a car to drive as a taxi. He said he hadn’t taken the money and would not re-offend.

There is in law no need for corroboration of the complainant’s evidence. However there was plenty of supporting evidence for the complainant’s testimony. The conviction is therefore supported by the evidence. This ground also fails.

Sentence

The Appellant has a string of convictions for Unlawful Use of Motor Vehicle. He is clearly a habitual offender in respect of the type of criminal enterprise he committed on this occasion. He did not deserve leniency, and he was fortunate to receive an 18 month term for an offence in respect of which the tariff is 4 to 7 years. The sentence is neither harsh nor excessive, nor wrong in principle. The appeal against sentence also fails.

Conclusion

This appeal is unsuccessful and is wholly dismissed.

Nazhat Shameem
JUDGE

At Suva
31^st May 2002