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State v Fraser - Judgment [2014] FJHC 715; HAC022.2010 (1 October 2014)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 022/2010

BETWEEN:

THE STATE

AND:

JACK ANTHONY FRASER

COUNSEL : Mr F. Lacanivalu for the State
Ms. S. Jiuta for the Accused

Dates of Trial : 26-30/09/2014
Date of Summing Up : 01/10/2014
Date of Judgment : 01/10/2014

JUDGMENT

[01] Jack Anthony Fraser has been charged with the following charge on amended information dated 21st day of November 2012 by Director of Public Prosecutions.

The Charge

Statement of Offence

ROBBERY WITH VIOLENCE: Contrary to section 293(1) (b) of the Penal Code Cap 17.

Particulars of Offence

Jack Fraser and another, on the 26th day of October, 2009 at Lautoka in the Western Division, robbed Ronika Kiran of $3200.00 cash and assorted jewelleries worth $5779.00, 10 mobile phones worth $7429.00, 2 Ipods, 1MP3 player, 2 Tabua, 1 chopper and 1 black Canterbury carry bag worth $5305.00 all the total value of $21713.00 and immediately before such robbery did use personal violence on Ronika Kiran.

[02] After trial on the charge, the assessors returned unanimous opinion of not guilty verdict against the accused. I direct myself on my own summing up and on looking at the evidence and its entirety I find that I cannot agree with the not guilty verdict of the assessors. I find the not guilty verdict of the assessors appears to be perverse.

[03] In this case prosecution charged the accused for committing Robbery with Violence on the victim Ronika Kiran.

[04] According to Ronika Kiran in the year 2009 she was residing with her son and her de- facto husband Imran Ali alias Vicky at Lovu, Lautoka. On 26/10/2009 at about 9.30pm while she was watching T.V Jack Fraser and two others came to her house. At that time her son was doing his home work and her husband was not at home. First she had seen Jack Fraser was talking to some body over the phone. After talking the trio entered the house through the main door. The main door was opened at that time. Jack Fraser then went inside the house to use the washroom. When he came back from wash room he went to the kitchen and picked a chopper and came close to her. She knows Jack Fraser for about 2-3 years before the incident as he had been a friend of her husband. She knew one of the two but not the third one. The second one she knew was Samuel Singh. When Jack Fraser came close to her the other two closed the door and draw all the curtains preventing anybody could see inside the house. Jack Fraser then kept the chopper on her neck and threatened her to give what they wanted. They then took her to the room and lowered all the curtains. Jack Fraser then punched her head and demanded all their valuables. As a result of punching blood started coming from her forehead and from the nose. Thereafter she was dragged to other room under her armpit by Jack Fraser and demanded valuables. Jack Fraser was seated in front of her with the chopper while other two searched the house for valuables. Jack Fraser then started to punch her after seen Samuel Singh found some jewelleries. At this time hearing a vehicle sound Samuel Singh closed her mouth with cello tape and tied her hand. Her son was pushed in to the washroom. Then she was ordered to call her husband inside but she could not do so as cello tape was around her mouth. She had seen her husband looking through the window from outside. Thereafter she heard her husband calling for help from neighbours. Hearing this they switched off the lights and ran away from the scene. Though Imran Ali had chased them but not apprehend anybody. She was untied by her husband. Number of properties including jewelleries, gold and imitation, mobile phones and Tabuas had been robbed from the house. She had identified the accused from the lights of the house. She identified Jack Fraser in open court.

[05] In the cross examination witness said that she reported the matter to police immediately. She could remember going to hospital but unable to tell as to who took her to hospital. She could see her husband through the window as the person stood behind her open the curtain little to see outside. But she could not go up to the window. She admitted what she told the police is correct.

[06] According to Imran Ali he is a businessman. He lived with Ronika Kiran and her son and resided at Lovu. On 26/10/2009 at 9.00pm he had gone out to buy some auto parts. When he came home at 9.30pm had seen all curtains down in his room. When he called his wife she did not answer but he could hear murmuring sound coming from his room. When he peeped through the window had seen his wife was taped around her mouth and three persons standing close to her. She was sitting on the bed. He identified Jack Fraser and another person at that time. He knew Jack Fraser as he was his friend for a long time. He then tried to enter the house from rear door but it was closed. When he came to front door two of them ran away the main door and Jack Fraser had run away from rear door. He then entered the house and untied her wife. She was bleeding from her forehead and she was in terrified mood. He then tried to go the police. On their way he had seen a van coming from his house direction. As he felt suspicion, he slowed his vehicle and observed the van. He had seen two of the suspects got in to the van. He then followed them. On his way he called the police and informed the incident. As per the direction of the police he followed the vehicle and saw the van stopped in front of a house at Waiyavi. At that time police also arrived and they called the owner to open the door. But he took about 15 minutes to open the door.

By that time the two persons had fled the area from the rear door of the house. The witness identified Jack Fraser in the open court. When all three were inside the house he identified them with the help of kitchen and other room lights. He was looking at the persons for about 30-60 seconds. The distance between the window and the bed was about one meter. When he checked the house had found number of items were missing. This includes mobile phones, cash and jewelleries.

[07] In the cross examination witness said that he went to the police on the day of the offence. But his statement was recorded on 28/10/2009. He admitted that he not went straight to police as he was following the getaway vehicle as per the instruction of the police. He had seen her wife was sitting on the bed and the accused was standing beside her when he peeped through the window. When he untied her wife his son was there but he gave much attention to apprehend the escaping accused. Witness admitted that he took her wife to hospital. When he returned home he was with a friend and he too went after Jack Fraser. Witness reiterated that Jack Fraser was inside his house on 26/10/2009. But he had not seen Jack Fraser getting in to the getaway vehicle. He said that he did not have any dispute with Jack Fraser before this incident.

[08] The evidence of the victim Ronika Kiran and her husband Imram Ali clearly establishes that the accused with two others had robbed their house on 26/10/2009. The accused was properly identified by the witnesses as he was a very well known person to them. Further his name was immediately given to the police. At the time of committing the offence he was armed with a chopper.

[09] The evidence presented by prosecution is very strong and it establishes the charge beyond reasonable doubt.

[10] In the premise, I find that the accused is guilty of the charge of Robbery with Violence. I convict him accordingly.

P Kumararatnam
JUDGE

At Lautoka
01/10/2014

Counsels: Office of the Director of Public Prosecution
Legal Aid Commission