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State v Uluicicia [2017] FJHC 850; HAC298.2016 (7 November 2017)

IN THE HIGH COURT OF FIJI AT SUVA

CASE NO: HAC. 298 of 2016

[CRIMINAL JURISDICTION]

STATE

V

MOSESE ULUICICIA

Counsel : Ms. U. Tamanikaiyaroi with Mr. E. Samisoni for State

Ms. S. Hazelman for Accused
Hearing on : 25^th October – 02^nd November 2017
Summing up on : 06^th November 2017
Judgment on : 07^th November 2017

JUDGMENT

1. The accused is charged with the following offence;
   

Statement of Offence

AGGRAVATED ROBBERY: contrary to section 311(1) (a) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

MOSESE ULUICICIA WITH ANOTHER on the 6^th day of August 2016 at Samabula in the Central Division, robbed Jan Mohammed Sakur of AUD 50 dollars cash, FJD 150 dollars cash, one Apple iPhone valued at $2,000.00, one Samsung Galaxy 5 valued at $2,000.00 and Assorted Jewelries valued at $10,000.00, one Honda CRV registration number FH 787 valued at $35,000.00, all to the total approximate value of $49,250.00 and immediately before the theft did use force on the said Jan Mohammed Sakur.

2. The assessors have returned with the unanimous opinion that the accused is guilty of the above offence.
   
3. I direct myself in accordance with the summing up delivered to the assessors on 06^th November 2017 and the evidence adduced during the trial.
   
4. The prosecution led the evidence of 14 witnesses. The accused gave evidence and called 3 other witnesses in his defence.
   
5. In my view, all the prosecution witnesses except the fifth and the seventh witnesses were generally credible and reliable.
   
6. According to the fifth prosecution witness’ evidence, when ‘Lui’ approached him and said that he (Lui) does not have money showing him the phone tendered as PE 2, without any hesitation the fifth prosecution witness volunteered to sell that phone. At once he decided to go to the seventh prosecution witness who was a bartender at Signals Nightclub to sell the phone. However, according to the seventh prosecution witness, she does not know the fifth prosecution witness with whom she negotiated and bought PE 2 which was an Apple iPhone for $160 around 2.00am in the morning. The fifth prosecution witness said he did not receive any money from ‘Lui’ for selling the phone. But in his statement given to the police it is stated that he received $20 from ‘Lui’. There were inconsistencies between the evidence given by the fifth prosecution witness and the evidence of the sixth and the seventh prosecution witnesses. The above facts taken together with the demeanour and deportment of the fifth and seventh witnesses when they gave evidence, prompted me to approach their evidence with caution.
   
7. There was a significant inconsistency between the evidence given by the fifth prosecution witness and the evidence of the sixth prosecution witness with regard to the place where the person the two witnesses referred to as ‘Lui’ approached the fifth prosecution witness. Though the fifth prosecution witness said in his evidence that he was approached by ‘Lui’ outside the nightclub, the sixth prosecution witness said this happened inside the nightclub. It was revealed during cross examination that the fifth prosecution witness had told the police that he met ‘Lui’ at the top bar in the nightclub. Considering all the evidence I accept the version of the sixth prosecution witness, that is, ‘Lui’ approached the fifth prosecution witness inside the Sand Dunes Nightclub.
   
8. However, I note that there was no inconsistency with regard to the fact that ‘Lui’ gave PE 2 to the fifth prosecution witness in front of the sixth prosecution witness in the early hours of 07/08/16.
   
9. Based on the evidence of the tenth prosecution witness, I am satisfied beyond reasonable doubt that PE 2 was recovered from the seventh prosecution witness. Further, considering all the evidence, I am satisfied beyond reasonable doubt that the fifth prosecution witness sold PE 2 which was given by ‘Lui’ to the seventh prosecution witness.
   
10. Accordingly, the following facts have been established;
    1. ‘Lui’ gave the phone tendered as PE 2 to the fifth prosecution witness in the early hours on 07/08/16;
    2. The fifth prosecution witness sold PE 2 to the seventh prosecution witness in the early hours on 07/08/16; and
    100. PE 2 was recovered by the police from the seventh prosecution witness.
         
11. Given the evidence of the fifth prosecution witness that he had known the accused since the time they were living at Raiwai and the fact that he had been having conversations with the accused at least for more than an hour in the early morning on 07/08/16, there is no possibility of him making a mistake in identifying the accused. I accept the evidence of the sixth prosecution witness that he knew the accused due to the previous encounter he had with the accused and that he positively identified the accused on that morning.
    
12. The fourth defence witness, the brother of the accused clearly said that the accused is called ‘Lui’, though he became defensive when it was suggested to him that other people also knows the accused as ‘Lui’ and said that only the family calls the accused ‘Lui’ and the friends calls the accused ‘Mosese’. Based on the above evidence and the evidence of the thirteenth prosecution witness who said he wrote in PE 7 ‘Lui’ as an alias of the accused based on the information given by the accused, I have no doubt that the person the fifth and the sixth prosecution witnesses referred to as ‘Lui’ is the accused in this case.
    
13. Based on the evidence of the twelfth prosecution witness and the final witness for the prosecution I am satisfied beyond reasonable doubt that the finger prints PE 4 and PE 5 were uplifted from 37, Toganivalu Road, Samabula and they were obtained and compared following the proper procedures established in the Fiji Police Forensic Services with PE 7 which contained the finger prints obtained from the accused by the tenth prosecution witness. Further, I accept the opinion given by the final witness for the prosecution that the finger print from the crime scene and the finger print in the finger print form are from the same person and that is the accused in this case.
    
14. The defence pointed out that there was an inconsistency between the evidence of the twelfth prosecution witness and the final witness for the prosecution in that, where the twelfth prosecution witness’ evidence was that he handed over the prints and the report to his officer in charge who was an officer by the name of Marshal, the evidence of the final witness for the prosecution was that the twelfth prosecution witness provided him with the information in order to do the comparison on 13/10/16. In my view, this inconsistency is not significant and is not sufficient to cast a doubt on the credibility of the aforementioned witnesses.
    
15. I am satisfied that the prosecution has established the following circumstances inter alia beyond reasonable doubt;
    1. Two iTaukei youth assaulted the first prosecution witness in the early hours on 06/08/16 inside his house at 37, Toganivalu Road, Samabula and stole $150 FJD and $50 AUD, 1 x Apple iPhone valued at $2,000 which was tendered as PE 2, 1 x Samsung Galaxy 5 valued at $2,000, assorted jewelries valued at $10,000 and 1 x Black Honda CRV registration number FH 787 valued at $35,000.00. The total value of the aforementioned items belong to the first prosecution witness that was stolen is $49,150. During the incident, the password of the phone PE 2 which was 201236 was obtained by the two persons who attacked the first prosecution witness;
    2. The second, third and fourth prosecution witnesses, found the first prosecution witness lying on the floor inside a bedroom in 37, Toganivalu Road, Samabula in the morning on 06/08/16 where the first prosecution witness’ hands were tied at the back.
    100. There was a ladder leaned on to the wall near the kitchen window and the said window was open when the second, third and fourth prosecution witnesses entered the house through the back door in the morning on 06/08/16;
    4. The accused’s finger prints were found on the tiles below the kitchen window at 37, Toganivalu Road, Samabula on 06/08/16;
    5. The accused gave the phone tendered as PE 2 to the fifth prosecution witness on 07/08/16 around 1.00am in front of the sixth prosecution witness and the accused also gave the password of that phone which was 201236 to the fifth prosecution witness;
    6. The fifth prosecution witness sold PE 2 to the seventh prosecution witness and gave her the password 201236;
    7. PE 2 was recovered from the seventh prosecution witness by the police; and
    8. The vehicle registration number FH 787 was found abandoned near the Food Town Supermarket at Valelevu.
16. The above circumstances, taken together, leads to the irresistible inference that the accused had committed the offence of robbery at 37, Toganivalu Road, Samabula in the company of another.
    
17. Given all the evidence led in this case, I do not find the evidence given by the accused and his defence witnesses that the accused did not leave his house at Jittu Estate from the evening of 05/08/16 to the morning of 06/08/16 credible and reliable.
    
18. In the circumstances, I am satisfied that the prosecution has proven the charge against the accused beyond reasonable doubt and I agree with the unanimous opinion of the assessors in finding the accused guilty as charged. The accused is convicted accordingly.
    

Vinsent S. Perera
JUDGE

Solicitors for the State : Office of the Director of Public Prosecutions, Suva.
Solicitors for the Accused : Legal Aid Commission, Suva.