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State v Rarawa [2007] FJMC 26; Criminal Case No 1072 of 2005 (17 September 2007)

IN THE RESIDENT MAGISTRATE’S COURT
AT SUVA

Criminal Case No. 1072 of 2005

STATE

V

JITOKO RARAWA
SESONI VOLAU
ILAISA SOUSOU

Before Ajmal Gulab Khan Esq
Resident Magistrate

Prosecution: Insp. Suruj
Accused: Mr Naco.

Date of Hearing: 31/07/07
Date of Judgment: 17/09/07

JUDGMENT

The accused Ilaisa Sousou has been charged with unlawful use of motor vehicle contrary to S292 and with Robbery with Violence contrary to S293 (1)b of the Penal Code.

He is the third named accused in the charge and the only accused on trial. It is alleged with others on 30th May 2005/07 at Samabula unlawfully used vehicle DL774 property of Nitya nand Shankar. Also on 30th May 2005 robbed a supermarket of cash and goods to the total value of $4882 after an attack with knives on the cashiers.

The prosecution facts are Nitya Nand parked his vehicle outside Phoenix Restaurant while he sat inside the restaurant. It was a Nissan Cefiro registration number DL774 navy blue in colour. His wife remained in the vehicle.

Wife Nirmala Shankar gave evidence. She was threatened by about 5 youths one of whom sat in the driver’s seat. She jumped out of the car. She identified two boys one of whom was present in gallery and Sousou in box. He had black T-shirt and Bermuda pants. She saw them from 3m. It was around 1.30 – 2pm in the afternoon. She said she saw the face of person in driver’s seat and identified him as Sousou in the box.

The shop manager described how youths jumped out of Cefiro which had a fake cardboard number plate DD165, navy blue. They jumped into counter brandishing knife and threatening them and customers with knife and empty beer bottles. They took the goods and cash register as in charge and fled from the scene.

Matter was reported and police radio telephoned all its mobile cars with descriptions given by the complainants. At Raiwaqa, four police officers in a patrol car gave a chase. The robbers abandoned their Cefiro and ran. One suspect was arrested at the scene. The others were arrested later that day.

The car had a fake number plate DD165 written on cardboard. Items recovered from the vehicle were positively identified by complainant to belong to his shop.

The accused gave sworn evidence and called his wife as a witness. Accused said he was home on 30/5/05. He left after 3 pm to buy tickets for a concert at the National Stadium.

He was around Evan’s Street when police chased him. He said he had a packet of marijuana with him which he threw away during the chase. He was arrested and taken to the police station. He says no identification parade was conducted by police. His wife also gave evidence. He left home around 3.30 pm after an argument. He went to buy tickets to Lucky Dube concert.

I have considered whole of the evidence adduced in this case.

Identification and Analysis of Evidence

The accused denies he was involved in the robbery at all.

The 2nd prosecution witness identified 2 accused when they forcefully took her car. She said the accused in the box sat on driver’s seat and another one who had pleaded guilty. She described his clothing as black t-shirt and a Bermuda pants. She saw it from 3m in broad day light around 1.30pm. She sat in front passenger seat listened to the radio. The accused sat in driver’s seat which made her jump out of the car in a fright. She said she saw the face of person in driver’s seat. Under cross-examination she was adamant it was this accused. She was positive and forthright in her evidence.

After the chase by police vehicle the occupants abandoned the vehicle and police chased them on foot.

PW4 said 3 were arrested that day and identified accused as one of them arrested. He saw him walk and run away from police. PW5 described the vehicle stopped and occupants fled. They ran up Bryce Street where PW5 followed in their vehicle.

He jumped from flower bed on to the road. He gave a chase on foot about 3 m behind accused. He got tripped and arrest was made by his collegues.

PW6 described how occupants took a short cut to Bryce Street after fleeing their cars. He saw a youth jump from flower bed wearing a black t-shirt and ¾ pants. He looked suspicious and jumped over flower bed. He chased and arrested him. He identified him as accused in court. He didn’t see him getting off the vehicle. The crime officer in his R.T. report had described the clothes worn by accused being a black t-shirt and ¾ jeans.

Most stolen items of robbery were recovered from the abandoned vehicle of complainant carrying a fake number plate DL165.

The accused has said he was at home that night and went out to buy tickets for Lucky Dube concert. He was on the street when police chased him so he ran. He admitted giving a voluntary caution interview although in evidence he did say police assaulted him.

I have seen the accused to be an intelligent person well versed as to his rights and liberties under the constitution. He was forthright in his answers and withstood prosecution questions during cross-examination. He could not be a person afraid of police in public or flee by seeing police on the road. Furthermore, he fully described the route taken by the robbers that night and gave exculpatory answers to all questions saying "I will answer in court." I do not think he was assaulted by police and I accept that is the reason he has not contested the voluntariness of the caution statements. This was confirmed by his counsel in his final submissions to court.

However, on my own volition, I have expunged from record Q13 to answer Q16 as it was unfair to the accused. It does not form part of the evidence.

Also the evidence of accused where he says he went to look for marijuana and threw away on heap when police chased him on the street is disregarded and it’s not held against him or prejudices him in any way in the present judgment.

The description of his clothes that day was given by the complainant when the car was stolen. Police later saw him run up toward Bryce Street after the car was abandoned. I do not consider him to be a person who would be afraid of police or flee when seeing them on the street. I find it as a fact that accused was one of the robbers described as driver by PW1 and he had ran up Bryce Street and fled from police whilst they gave a chase. He was seen and identified by the PW1 and the police officers.

I do not accept the explanation given by the accused and find his evidence untrustworthy. I have also considered the evidence of defence witness (2) his wife. She said he left the house around 3.30 pm that day.

She was not such help in answering any other questions put to her. I do not give much weight to her evidence as it was obvious she tried to protect her husband.

I also reject the evidence of the accused as incredible. If he had left home after 3 pm that day, he would have told so to the police at the 1st instance. Also he showed the police the exact route followed by the robbers with great deal of accuracy.

I find he was positively identified and was the driver of the hijacked vehicle. PW1’s evidence is accepted in total. She said she saw the face of the driver who jumped into her car and could not forget the incident. She was positive of being unmistaken. I found her evidence credible and a worthy witness who knew what she was talking about.

The vehicle had most of items stolen from the supermarket except for the cash.

I am satisfied beyond reasonable about that the prosecution has proved its case.

The accused is found guilty of two counts charged being unlawful use and Robbery with Violence.

Dated this 17th day of September 2007.

Ajmal Gulab Khan
RESIDENT MAGISTRATE