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State v Mateyawa [2010] FJMC 34; Criminal Case 1488.2008 (1 September 2010)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 1488/08

STATE

V

KILIFI MATEYAWA

For Prosecution: - I.P.Raisuni
Accused: - in person.

JUDGMENT

1. The accused is charged with the offence of "Robbery with violence" contrary to section 293(1)(b) of the Penal code act 17 as first count and offence of " Giving false name and address to a police officer" contrary to section 24 of the Police Act.
   
2. The particulars of the offence in respect of first count are "KILIFI MATEYAWA", on the 17th day of August, 2008, at Nabua in the Central Division robbed Amith Nitesh Deo of a Gold chain valued at $ 700 and immediately before such robbery used personal violence on the said Amith Nitesh Deo".
   
3. Accused pleaded not guilty for the offence of Robbery with Violence and pleaded guilty for the offence of "Giving false name and address to a police officer". Wherefore, the case was fixed for hearing in respect of first count. During the hearing of this case, the Prosecution called 4 witnesses and accused made a dock statement. At the conclusion of the hearing of this case, only the prosecution made their final submission in oral. Accordingly I pronounce the judgment in this case as follows.
   
According to the general rule in law of Evidence, the onus of proof the chargeond reasonable doubts against the accused is borne by the pthe prosecution.

5. The section 293(1)(b) of the Penal Code reads as " Any person who robs any pernd at the time of or immediately before or immediately afte after such robbery, uses or threatens to use any personal violence to any person is guilty of felony".
   
6. The main elements of the offence of Robbery with violence, which has to be proof beyond reasonable doubts by the prosecution are
   
   The accused,
   
   2. Robbed the complainant,
      
   3. At the time of or immediately before or immediately after such robbery uses or threaten to use any violence to any person.
      
7. Robbery is stealing by force. Robbery is essentially an aggravated form of theft. The conduct or circumstances that will convert an ordinary theft to robbery are prescribed by section 293. (Jovesa Vaileba v State (1990) AAU 8/88 (apf HAC 93/87) 12 October 1990). Accordingly, in order to prove that accused rob the complainant, the prosecution has to proof beyond reasonable doubts that,
   
   1. The accused, without the consent of owner,
      <
   2. Fraudulently/ without a claim of right made in good faith,
      
   3. '3' >Takes / carries away the Gold chain valued at $ 700 of the Complainant,
      
   4. With intention of permanently depriving the owner thereof, at the time of such taking.
      
8. The summery of facts in this case is that, the accused got into the bus where the prosecution witness 1 (the Complainant) was travelling from Suva to Nasouri. On the way to Nasouri, the accused punched on the complainant's jaw and robbed his gold chain.
   
9. The first prosecution's witness, who is the complainant of this case, gave evidence and stated that he got into the bus belong to Dee Cee's bus company to go home after visiting Hibiscus festival at about 1.00 a.m. on 17th of August 2008. Complainant stated that he seated in the middle of the bus in the long seat towards the work away and two girls were sitting beside him. Then he saw the accused climbed from the window of the bus and got into it and stood beside him. The accused was drunk and started to touch the complainant's left side of chest. Then the accused asked the complainant whether he is a Fijian or Indian?. Complainant stated, he did not answer the accused and shifted to the middle of the seat and one of the girls who were sitting on the same seat moved to the place where complainant was sitting before. Then the accused started swearing at the complainant. The complainant stood up to go towards the driver to complaint about the conduct of the accused. At that time, accused pulled his gold chain from his neck and punched him on his left jaw.
   
10. Furthermore, the complainant stated in his evidence, after he was punched by the accused, he got black out for about 10 minutes. Then he told the driver about the incident where driver told him that he will stop at the police post at Nabua and complainant can inform the police about the incident. It is further stated; the complainant then got off from the bus and told to police. Then the police officer told everyone in the bus to get off and accused get off from it last. Then police took him to the police station. The complainant further stated that he got injured due to the punch on his jaw. There was a cut inside his mouth. The police took him to the CWM hospital and produce to the doctor. The medical report of the complainant tendered to the court and marked it as prosecution exhibit 1.
    
11. The second prosecution witness, ( PW2) who was the arresting officer of the accused gave evidence and stated, while he was on road petrol duty in the night of 17th of August 2008, he received a complaint that a drunken man was hitting another man inside a bus. The bus was parked in front of the Nabua police station. He stated that it was a bus belongs to Dee Cees Bus Company. When PW2 arrived to the bus, the driver of the bus informed him the drunken person is still inside the bus. PW2 was accompanied by another police officer. PW2 got into the bus then he saw accused was still bit violent in nature. The complainant described to the PW2, that the accused is a Fijian tall, dark complexion man. PW2, further stated in his evidence that he then took the accused to the police station since he caused trouble in the bus. He clearly stated that he did not make any attempt to locate the stolen jewelry inside the bus. The PW2 stated that he searched the accused for the stolen jewelry, search his cloths but did not find anything in accused.
    
12. The third and fourth prosecution witnesses were interviewing officer and the charging officer respectively. In their evidence they stated, that they could not locate the original copies of the caution interview and the charging statement at the exhibit room of the Nabua police station after they conducted a diligent search for them. They tendered and marked carbon copies of the caution interview and charging statement of the accused. The accused did not objected to mark the carbon copy of his caution interview but objected for the carbon copy of charging statement. I accept the carbon copies of both the caution interview and charging statement of the accused according to the principle of "Regina v Vincent Lobendahn".
    
13. Accused did not give evidence on oaths, but made a dock statement, where he stated that particular day, he came to Suva to sell his crops. After selling them, he had some beer with his friends. He stated further, that he was so drunk on his way back and don't know about everything happened in that night.
    
14. The burden of proof of the accused's guilty beyond reasonable doubts lies with the prosecution. It was held in Woolmington v DPP (1935) AC 462), that ' no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Where the burden of proof, remains on the prosecution throughout the trial, in that circumstance, the accused need only to raise sufficient evidence to cast reasonable doubt on the issue". ("Andrews & Hirst on Evidence" 4th Edition, pg 59).
    
15. According to the evidence given by the complainant and the PW2, I am of the view that both prosecution witnesses positively identified the accused. The complainant observed the accused from the time he got into the bus trough the window until his complaint to the police about the incident. From Suva to Nabua police station, accused travelled close to the complainant. Accordingly, I satisfied that the complainant's identification of the accused is positive and acceptable, which is collaborated by the evidence of the PW2.
    
16. The medical report of the complainant confirmed that the complainant was injured after he was punched by the accused on his jaw. The PW2 in his evidence stated that he received a complaint, that a drunken man is hitting another person inside the bus, which collaborates with complainant's evidence. Wherefore, prosecution proved that the accused punched the complainant on his jaw and injured him.
    
17. At this stage, I draw my attention to analysis the evidences of the prosecution in respect of the main element of this offence, that whether the accused took or carried away the Gold chain valued at $ 700 of the Complainant with intention of permanently depriving the complainant thereof, at the time of such taking.
    
18. The evidence adduced by the prosecution, established that accused was arrested by the police soon after the incident of robbery took place in the bus. The complainant stated in his evidence, that the accused pulled his gold chain from his neck and punched on his jaw when he stood up from his seat to go forward to the driver and to complain about the conduct of the accused at Samabula. Then he was black out for about ten minutes and soon he got up, he went to the driver and complained. Then driver stopped the bus in front of the Nabua police station. PW2, stated in his evidence that when he arrived to the bus, the driver informed him the accused is still inside the bus. PW2, saw the accused inside the bus and when he saw the accused, he was still in violence nature causing troubles. Accordingly, it's confirmed that the accused was arrested at about 10-15 minutes after the alleged robbery, while he is still inside the bus.
    
19. The PW2, stated in his evidence, that he did not search for the stolen jewelry inside the bus, but search the accused and his cloths but did not find anything in accused. The accused also emphasized in his cross examination of the complainant and the PW2 that nothing was found in his possession though he was arrested on the spot soon after the incident.
    
20. It is prudent to examine and analysis whether there are any other possible hypothesis consistence with the innocent of the accused other than the prosecution version of the facts according to the evidence adduced by the prosecution. (Shameem J in Lepani Varani v State (2006) HAA 149/05S, 3 March 2006). At this point, I am aware of the fact that prosecution burden of proof of beyond reasonable doubts dose not indicated beyond all possible doubts.
    
21. In view of the evidence given by the complainant, he stated that the accused was drunk and stood beside him, where he was seated in the bus. Then he started to touch the complainant's chest and asked him whether he is a Fijian or Indian. Then the complainant shifted his place of seating with the girl who seated next to him. At that point, the accused started to swear at the complainant. The accused pulled his chain from his neck and punched him on his jaw when he tried to go forward to the driver and to complain.
    
22. Though the complainant stated in his evidence that the accused pulled his chain from his neck and punched. Subsequently PW2 stated that he did not find any stolen jewelry in accused after searching the accused soon after he was arrested. Furthermore, the PW2 did not search for the stolen jewelry inside the bus, neither the complainant did. It is significantly important to consider the facts of short period of time between the allege incident of the robbery and arrest of the accused. It created few hypothetical possibilities in respect of this incident generating reasonable doubt of the prosecution version of the facts.
    
23. The one hypothetical possibility is that the accused may dropped or throw out the stolen gold chain when the bus stopped in front of the Police station. On other hand considering the events leading to the incident of punching of the complainant and pulling of his gold chain from his neck from the moment of the accused's alleged touch on the complainant's chest the accused may got angry with the complainant when he stood up to go forward to the driver and to complain. With that anger the accused pulled the complainant's gold chain from his neck and punched. The PW2 stated accused was still in bit violence in nature when he got into the bus and approached the accused and nobody made any attempt to search for the gold chain inside the bus. In considering these factors, I determine that there is a reasonable doubt whether the accused took or carried away the complainant's gold chain valued at $700?, and if he took or carried away, whether he did it with intention of permanently depriving the complainant thereof, at the time of such taking?.
    
24. In view of the reasons set out in aforesaid paragraphs, I am of the view, that the prosecution failed to prove beyond reasonable doubt, that the accused robbed the complainant's gold chain whereby failed to prove beyond reasonable doubts the accused is guilty for the offence of Robbery with Violence contrary to section 293(1)(b) of the Penal Code Act 17.
    
25. At this point, I reiterated paragraph 15 and 16 above. I determined that the prosecution has proved beyond reasonable doubts the accused is guilty for the offence of assault causing actual bodily harm contrary to section 245 of the Penal code act 17 in pursuant to section 160 (1) of the Criminal Procedure Decree 2009.
    
26. Wherefore, in view of the reasons set out in the aforesaid paragraphs I acquit the accused from the charge for the offence of Robbery with Violence contrary to section 293(1)(b) of the Penal Code Act 17 and found guilty for the offence of assault causing actual bodily harm contrary to section 245 of the Penal code act 17 in pursuant to section 160 (1) of the Criminal Procedure Decree 2009.
    
27. 28 days to appeal,
    

On this 01st day of September 2010.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.