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State v Nimumaiwalu [2011] FJMC 102; HAC 92.2010 (7 September 2011)

IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Criminal Case HAC No: - 92/2010

STATE

V

KOLIWAINIDAOVU NIMUMAIWALU

For Prosecution : - Mr. Wasu Pillay,
Accused : - Mr. Wanagibete,

JUDGMENT

1. The accused was charged with the offence of “Aggravated Robbery” contrary to section 311(1) (a) of the Crime Decree No 44 of 2009. The particulars of the offence are “KOLIWAINIDOVU NIMUMAIWALU on the 18th day of April 2010 at Suva in the Central Division, with others stole a Mobile Phone valued at $ 1,500, cash $ 140, a shirt valued $ 35, and a pair of shoes valued $50, to the total value of $1,725 from one Asit Sen”.
   
2. Accused pleaded not guilty for the offence, wherefore, the case was set down for hearing. During the hearing the Prosecution called Mr. Asit Sen who is the victim of this alleged robbery, Mr. Bimalesh Prasad, the brother-in- law of the victim who was with the victim at the time of this alleged crime, Mr. Cakacaka Cinaviketei, the cousin brother of the accused who had been drinking with the accused throughout the day in question and was present at the time of this alleged crime. The fourth prosecution witness is DC Leone Masitabua who is the investigation officer of this case. He tendered the caution interview of the accused person which was not contested by the defence. At the end of the prosecution case the accused gave evidence on oaths but did not call any other witnesses for the defense. At the conclusion of the hearing the learned counsel for the prosecution and the learned counsel for the accused submitted their respective final written submissions. Upon careful perusal of the evidence presented by the prosecution and the defense and their respective written submissions, I now proceed to pronounce the judgment in this case as follows.
   
3. In view of the general rule in law of Evidence, the of proof the charges beyond reasonable doubts against the accused is borne by the prosecutiecution. There is no onus on the accused at any stage to prove his innocence or to prove anything else.
   
4. Section 311 (1) (a) of the Crime Decree reads as “#8220;A person commits an indictable offence if he or she, commits a robbery in company with one or more other persons””.
   
5. Section 310 of Crime Decree stipulates the definition of robbery as “A perommits ants an indictable offence if he or she commits theft and —
   

(a) Immediately before committing theft, he or she—

(i) Uses force on another person; or

(ii) Threatens to use force then and there on another person —

with the intent to commit theft or to escape from the scene; or

(b) At the time of committing theft, or immediately after committing theft, he or she—

(i) Uses force on another person; or

(ii) Threatens to use force then and there on another person—

with the intent to commit theft or to escape from the scene.

6. The force or threat of use of force must be immediately before or after or at the time of the stealing and for the purpose of stealing or escaping from the scene. In addition it must be proved that the accused used force on any person or threatened to use force on any person in fear of being then and there subject to force. (R v Dawson and James, 64 Cr.App.R 170).
   
7. Wherefore, the main elements of the offence of Aggravated Robbery, are
   
   1. The accused,
      
   2. Robbed the ainant,
      
   3. At the time of or immediately before or immediately after such robbery uses or threaten to use any force on any person then and there on any person with the intent to commit theft or escape from the scene.
      
   4. With one or more persons and/or at the time of robbery has an offensive weapon with him.
      
8. “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”.( old Penal code) ( Jovesa Vaileba v State (1990) AAU 8/88 ( HAC 93/87) 12 October 1990). Accordingly, in order to prove that accused robbed the complainant, the prosecution has to prove beyond reasonable doubts that,
   
   1. The accused,
      
   Dishonestly appropriates property belonging to another
   3. With theh the intention of permanently depriving the other of the property.
      
9. Upon considering the main elements of the offence of Aggravated Robbery, I now briefly summaries the facts of this case in line with the evidence adduced by both the prosecution and the defense.
   
10. The facts in this case is that, the accused was alleged that he together with another assaulted Mr. Asit Sen and robbed a Mobile Phone valued at $1500, Cast $ 140, a shirt valued at $ 50, and a pair of shoes valued at $150 at Foster Road, Walu Bay on the 17th of April 2010. Mr. Asit Sen and his brother in law Mr. Bimlesh Chand went to a birth day party at Mr. Sen’s office place in the evening of 17th of April 2010. They had consumed “cava” and few bottles of beer till 11.30 pm from around 7pm with few others at Mr. Sen’s office place. After having drinks and food, they then decided to proceed to the town and waited for taxi along the foster road. Since there is no Taxi, then they decided to walk towards the town. As they were walking past the Fiji Sun Office, they met three Fijian boys. In front of the Fiji Sun Office they had a bit of an argument with the boys as they were causing trouble but before things got out of hand one of the boys. The third prosecution witness said that he knows Mr. Sen and assured him that everything is alright and that they then left the boys and walked towards Foster Street to get a taxi. Mr. Sen and his brother in law then walked along Foster Road near the Pacific Transport Office where they crossed the road to stop a taxi. As they crossed the road Mr. Sen was hit on the head from the back with a hard object. Mr. Sen fell to the ground and hit his head. According to the prosecution, Mr. Sen, was kicked on the head and the left side of his ribs repeatedly. Mr. Sen tried to regain his feet but could not do so as he was repeatedly assaulted and was not allowed to stand up. Since he was attacked from behind he could not get a look at his assailant but he said that he held one of the assailant’s legs to try and stop the attack. The attack lasted about five minutes. Mr.Sen stated in his evidence that his wallet containing $140 cash, Blackbery Mobile phone, his shirt, shoes and bunch of keys were taken from him during the attack. Meanwhile one of the assailant tried to hold Mr. Bemalash Chand, the brother-in- law-of Mr. Sen but he managed to get rid of him and ran for help. Mr. Sen then got the help of the security officers from Muaiwalu House and Fiji Sun Office together with his brother in law and other people present at the party and he was taken back to Muaiwalu House. From there Mr. Sen and his brother-in-law caught a taxi and left for home. His reason for not reporting the matter immediately was that he was stripped of his shirt and shoes and that he did not want to go to the Police Station in such a condition and that he was not feeling well after the attack. Mr. Sen reported the matter to the Police on Tuesday the 21st of April 2010 of the following week. Mr. Sen was medically examined by Doctor De Asa of Nasese Medical Center on 21st April 2010.
    
11. The accused does not dispute his presence at the scene of the incident and also he admitted that he assaulted Mr. Sen but for his self defence. In accordance with the accused evidence, the accused was bumped on Mr. Sen in front of the “Fiji Times’ office while they were crossing each others. A bit of argument took place over this incident and then Mr. Sen tried to push the accused away when he tried to apologies. At this point the accused threw several punches at Mr. Sen for his self defence.
    
12. At the conclusion of the prosecution and the defence case, the learned counsel for the prosecution and the defence tendered their respective written submissions. The learned counsel for the prosecution stated in his well comprehensive detailed submission that the prosecution has successfully proved all the elements of this offence of ‘Aggravate robbery” and invited the court to consider the evidence presented by the prosecution and find the accused guilty of this offence of “aggravated robbery”.
    
13. The learned counsel for the Defence, contended in his detailed and comprehensive written submission that the prosecution has failed to prove their case beyond reasonable doubt and court cannot safely return a verdict of guilt.
    
14. Bearing in mind the evidence presented by the prosecution and the defence and their respective written submissions, and the main elements of the offence of “aggravate robbery”, I now proceed to analyses the evidence presented before me by the prosecution and the defence with the laws pertaining to the offence of Aggravate robbery.
    
15. Upon careful perusal of the evidence adduced by the prosecution and the defence and their respective written submissions, I inferred that this instance case against the accused depends mainly on the issue of fault element of this offence, which is the criminal intention of the accused person. In view of the evidence presented before me, I do not find there is an issue of the identity of the accused person and the use of force at the time of this alleged robbery as the accused person admitted such in his evidence on oaths and also in his statement in his caution interview.
    
16. The accused does not dispute his presence at the scene of this alleged offence and also admitted in his caution interview and also in his evidence on oaths that he assaulted Mr. Sen for self defence. Moreover he does not contradict the evidence of Mr. Cakacaka, the third prosecution witness that on the day of this alleged incident he was with Mr. Cakacaka and other alleged accomplice of this crime at the scene of this incident. The all three prosecution witnesses and the accused were not disputed the events leading up to their meeting in front of the “ Fiji Times’ office. From there on wards, the accused version of the evidence has deviated from the prosecution version of the evidence as he testified in his evidence that he was pushed away by the Victim when he tried to apologies for bumping on him. At that point he threw several punches on Mr. Sen for his self defence. In contrast the first and second Prosecution witnesses testified that after this minor arguments in front of the “Fiji Times” office, they were parted by the intervention of Mr Cakacaka and then both Mr. Sen and his brother – in – law had gone alone the Foster street to hail a taxi. Once they crossed the road, the accused and his accomplice came behind them and assaulted Mr. Sen and robbed his belongings. In line with the evidence of first and second prosecution witnesses, the third prosecution witness Mr. Cakacaka stated in his evidence that after that alleged incident in front of the Fiji Times’ office, the accused and the alleged accomplice suddenly disappeared and then he saw both of them ran towards the two Indian men, the first and second prosecution witnesses and started to assaulted them. He specifically stated that he saw either the accused or the alleged accomplice took something from the victim while he was lying on the road side.
    
17. In view of these evidence presented by the prosecution and the defence, the nucleus in this instance case is that whether the accused took these stolen items from the victims and / or the accused acted in joint enterprise with the alleged accomplice in this incident. This issue mainly revolves around the criminal intention of the accused person and the principle of joint enterprise. Wherefore, it is prudent at this point to examine the laws relating to the issues of criminal intention and the principle of joint enterprise.
    
18. The section 13 (1) of the Crime Decree No 44 of 2009, stipulates that an offence consist with physical element and fault element and in pursuant of section 14 of the Crime Decree, in order to for a person to be found guilty of committing an offence the following must be proved –
    

(a) Thei>The existence of such physical elements as are, under the law creating the offence, relevant to establishingt;




(b) In respect of each such physical element for which a fault elemenlement is required, one of the fault elements for the physical element.



19. Moreover section 18 has defined the fault element of the offence as “A fault element for a particular physical element may be intention, knowledge, recklessness or negligence”. Section 19 has defined the intention in three spheres, as
    
    1. A person has intention with respect to conduct if he or she means to engage in that conduct.
       
    2. A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
       
    3. A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events”.
       
20. Section 19 of the Crime Decree has defined the knowledge as “A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events”.
    
I now turn to the principle of joint enterprSection 46 of the Crime Decree deals with the principle of Joint enterprise where it stipultipulates that “When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence”.

22. The law of joint enterprise is clearly discussed by Her Ladyship JusticmeShameem in 0;StaNutv Nute <160; (2008) FJHC 32;HAC1;HAC139.2007 (26 November 2008), where Justiameem held that " the law is that when two or more persons form a common intention to proseprosecute an unlawful purpose in conjunction with onther and while committing ting that unlawful act, another offence is committed which is a probable consequence of that first purpose, then each of the persons involved is guilty of the final offence".
    
In line with those aforesaid sections in the Crime Decree and the judicial pents, the prosecution has to prove in this instance case, tse, that

1. The accused and his alleged accomplice had formed a common intention to assault, and rob the victim in conjunction with one another,
   
2. They prosecuted such purpose, and
   
3. This alleged offence of "aggravate robbery" was the probable consequence of such purpose.
   
24. Both the prosecution and the defence forcefully challenged the credibility of witnesses of either side as they were drunk at the time of this alleged crime. In a most bizarre manner all the prosecution witnesses and the accused person had been drinking for some hours prior to this alleged incident. But all of their evidence is quite similar up to the point of this allege incident and also to the events relating to the post incident period apart from the evidence pertaining to the time of this alleged crime. Therefore, I do not consider the drunkenness of these witnesses have discredited their credibility.
    
25. The evidence presented by the prosecution did not specifically identify who took those stolen items from the victim. The victim stated in his evidence that he did not see who assaulted him and who took his items from him. But he specifically mentioned that the way he was kicked and punched, there were two persons involved in this alleged assault and stealing of his belongings. The second prosecution witness, the Brother-in-law of the victim, precisely stated in his evidence that three boys came behind from them and two of them started to assault the victim. When one of them tried to hold him, he managed to pull him away and ran for help. Though he did not specifically identify who assaulted the victim, he identified the assailants as the same boys who confronted with them in front of the "Fiji Times' office". The third prosecution witness stated in his evidence, that after the incident in front of the "Fiji Time's office, the accused and the alleged accomplice suddenly disappeared and then he saw they ran towards the two Indian men, the victim and his brother-in-law and assaulted them. He further stated he saw one of them took items from the victim but did not specify which one was it.
    
26. All the prosecution witnesses and the accused person do not disputed that after the incident of assault, the accused, the accomplice and the third prosecution witness fled away from the scene of the incident. In addition the second and third prosecution witnesses testified in their evidence that they saw the victim was lying on the road side without his shirt and shoes immediately after he was assaulted by the accused and his alleged accomplice.
    
27. In line with these evidence presented by the prosecution, they have established that the accused was with the third prosecution witness and the alleged accomplice at the time of the incident and he together with his accomplice came behind the victim and assaulted him and one of them stole the items described in the particulars of offence from the victim. Soon after this allege assault the second and the third prosecution witnesses have witnessed the victim was lying on the roadside without his shirt and shoes.
    
28. Generally a court requires evidence to be led before it believes in the existence of a fact. However there are some exceptions to this establish principle which could be found in the common law jurisdictions. "A one exception is that a presumption arises where from the proof of some fact the existence of another fact may naturally be inferred without proof from the mere probability of its having occurred. The facts thus inferred to have occurred is said to be presumed, is taken for granted until the contrary is proved by the opposite party". (Archbold, 2009, para 10-1, pg 1381). When there are no positive testimonies of eye witnesses or by conclusive documents the courts are permitted to infer from the facts proved other facts necessary to complete the elements of guilt or establish innocence".
    
29. The test of inferring a fact from the proof of some fact was discussed by Lord Normand in Teper v R ( 1952)A.C.480 at 489), where Lord Normand held that " it must always narrowly examined, if only because evidence of this kind may be fabricated to cast suspicion on another. It is also necessary before drawing the inference of the accused's guilt from circumstantial evidence to be sure that there is no other co – existing circumstances which would weaken or destroy the inference".
    
30. In view of above mentioned principle of "presumption of fact", I now draw my attention to examine whether I can form an inference from the facts established before me, that the accused had formed a common intention to assault and rob the victim and this alleged offence of "aggravated robbery" was the probable consequence of such purpose.
    
31. In view of the evidence presented before me, it is established that the accused was at the scene of the incident with the alleged accomplice. The third prosecution witness saw that the accused and the accomplice ran together towards the two Indian men and started to assault them. The second prosecution witness also collaborates the evidence of third prosecution witness as he saw three boys came behind them and two of them assaulted the victim. The third prosecution witness saw one of them took items from the victim and second prosecution witness confirmed that when he came back to the place of the incident he saw the victims was lying without his shirt and his shoes. Both the second and the third prosecution witnesses stated that after the incident the accused and his accomplice ran away from the scene of the incident together with the third prosecution witness.
    
32. These evidence sufficiently direct me to form an inference that the accused and his alleged accomplice had formed a common intention to assault, and rob the victim in conjunction with one another and they prosecuted such purpose, and this alleged offence of "aggravate robbery" was the probable consequence of such purpose.
    
33. It is an established principle in common law that the inferred presumption of facts could be taken for granted until the contrary is proven by opposite party. It is noteworthy to examine what kind of explanation should be offered by the accused to rebut the presumption against him. Lord Reading CJ in Abramovitch (1914) 84 L.J.K.B 397) held that "if an explanation has been given by the accused, then it is for the jury to say whether on the whole of the evidence they are satisfied that the accused is guilty. If the jury think that the explanation given may reasonably be true, although they are not convinced that it is true, the prisoner is entitle to be acquitted, inasmuch as the crown would then have failed to discharge the burden impose upon it by our law of satisfying the jury beyond reasonable doubt of the guilt of the accused. The onus of proof is never shifted in these cases; it always remains on the prosecution".
    
34. This legal position was discussed by Her Ladyship Justice Shameem in Lepani Varani v State (2006) HAA 149/05S, 3 March 2006) where Shameem j held that "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".
    
35. I now turn to the evidence of the defence. As I stated above, the accused is not required to prove his innocent. He only requires giving an explanation which may reasonably true. The strongest evidence against the accused is the evidence of Mr. Cakacaka who is his cousin brother and was with the accused person throughout the day in which this incident took place. Mr. Cakacaka had been drinking with the accused throughout the day and opted to give evidence in contrast to the evidence of the accused person. The accused failed to give reasonably true explanation why he ran away from the scene of the incident when people shouted at them and came toward to the scene if he actually assaulted the victim for his self defence. I do not find any valid reason for him to run away with his accomplice and Mr. Cakacaka if he was not drunk and innocent as he claimed in his evidence. Hence I am of the view that the explanation given by the accused in his evidence may not reasonably true. Wherefore, I incline to disregard the accused evidence and accept the evidence of Mr. Cakacaka against the accused person.
    
36. In view of the reasons set out in above paragraphs, I am of the view that the prosecution has successfully proved that the accused together with another accomplice stole a Mobile Phone valued at $ 1500, cash $ 140, a shirt valued at $ 35, and a pair of shoes valued at $ 50, from Mr. Asit Sen and immediately before stealing those items, used force on Mr. Asit Sen.
    
37. Upon considering foregoing reason, I find the accused guilty for the offence of Aggravated Robbery contrary to section 311 (1) (a) of the Crime Decree No 44 of 2009 and convicted for the same.
    

On this 7th day of September 2011.




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

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