IN THE MAGISTRATES COURT
AT SUVA

Criminal Case No. 1817 of 2008

THE STATE

–v-

LOTE SERUTALATALA

For Prosecution: Mr. Vodokisolomone
For Accused: Present in Person

JUDGMENT

1.	The accused, LOTE SERUTALATALA is being charged with the following three counts:

Count 1 and Count 2 – Robbery with Violence: c/s 293(1)(a) of the Penal Code Act. 17.
Particulars of Offences:

i.	On the 26th day of September 2008 at Wailekutu, Lami, in the Central Division being armed with spear gun and cane knife robbed Peter Yee Kute on 1 spear gun valued $100.00, 1 cane knife $5.00, 2 mobile phones $200.00, cash $60.00, assorted groceries $20.00 all to the total value of $385.00 and immediately before the time of such robbery threatened to use personal violence to the said Peter Yee Kute.

ii.	On the 26th day of September 2008 at Wailekutu, Lami, in the Central Division being armed with spear gun and cane knife robbed Sereana Ranadi of 1 gold chain valued $112.00 and immediately before the time of such robbery threatened to use personal violence to the said Sereana Ranadi.

Count 3 – Unlawful Use of Motor Vehicle: c/s 292 of the Penal Code Act. 17.
Particulars of Offence:

On the 26th day of September 2008 at Wailekutu, Lami, in the Central Division unlawfully and without colour of right but not as to be guilty of stealing used a private car registration number FJ 015 the property of Peter Yee Kute.

2.	The accused had been tried for the said charges on a previous occasion and convicted by a Resident Magistrate during that time. Upon sentencing the accused had appealed against the Judgment and Sentence of this court and succeeded to have a retrial before another Resident Magistrate. Then the matter was referred to this court and before the commencement of the substantive Hearing, a Voir Dire Enquiry or 'trial within a trial' was conducted, to determine the voluntaries of the Caution Interview of the accused.

3.	Upon determining the fact that the Caution Interview statement of the accused is voluntary, this court proceeded to the substantive Hearing. Prosecution called four witnesses in support of their case and accused offered evidence from the witness box under oath on his behalf. At the end of the defence case prosecution moved to call a witness in rebuttal and that application was allowed by the court. Thereafter, both parties tender their respective written submissions.

4.	The essence of prosecutions submission is that "the evidence that the state is relying on to prove the robbery with violence and unlawful use of motor vehicle against the accused Lote Serutalatala is the evidence from the identification from Sereana Ranadi (PW1) and Sgt/Joape Ravunibola (PW2), evidence coming from the statement of Peter Yee Kute (Exhibit No. 3) confession in the Caution Interview Statement (Exhibit No. 1) and the supporting evidence from the Investigating Officer Sgt/Seniloli (PW3)". Further, prosecution draws the attention of court to Section 45(5) of the Criminal Procedure Decree over aiding and abetting, counsel and procuring the commission of an offence even if the principal offender has not been prosecuted or has not been found guilty. It was highlighted that the accused had admitted in his Caution Interview that he had broke, entered into the complainant's house as a member of a group and was standing at the door as a watchman and therefore Section 46 of the Criminal Procedure Decree applies to the accused.

5.	The argument of the accused in his written submission is that "it is unsafe to rely on this evidence" put forward by the prosecution to convict him. While keep on stressing that his Caution Interview Statement was not voluntarily made, the accused highlights the "Turnbull warning" in challenging the 'identification' made by Ms. Sereana Randi and Sgt/Joape Ravunibola. The written submission insists that Ms. Sereana had identified one Wame of Kalekana according to her statement to Police on 30th September 2008 and no identification parade was conducted to test the correctness of her so-called identification. Referring to Sgt/Joape's quality of identification, the accused highlights that it "was very poor because it was impeded by passing motor vehicles and this is a fleeting glance identification". Further, citing Archbold 2000 page 1304, the written submission tries to differentiate 'recognition' and 'identification'.

6.	Before proceeding to analyses the available evidence, I would like to identify the elements of the charges that the prosecution should prove beyond reasonable doubt in case of charges to be considered "proved".

7.	Elements of robbery with violence, pursuant to Section 293(1)(a) can be itemised as follows:

•	The accused 
•	Being armed with any offensive weapon or instrument or
•	Being together with one or more persons
•	Robs or
•	Assault with intent to rob any person commits the offence to robbery with violence.

8.	To prove the charge of unlawful use of motor vehicle, the following elements need to be proved beyond reasonable doubt

•	The accused
•	Unlawfully and without colour of right, but no so as to be guilty of stealing
•	Takes or converts a motor vehicle to his own use or to the use of any other person is said to have committed the said offence.

9.	In view of the general rule of the Criminal Justice System the accused is presumed to be innocent until otherwise proven by the prosecution and determined by a competent court of law. The proof that a court expects from the prosecution is of the standard of 'beyond reasonable doubt'. There is no onus, burden or responsibility cast upon the accused at any stage of the Hearing, to prove his innocence or otherwise. Having considered the basic concept of evidential burden on the prosecution in a criminal trial, this court proceeds to discuss the evidence led by the prosecution in the course of the trial.

10.	The 1st witness to call by the prosecution was Ms. Sereana Ranadi. She has been staying with Mr. Peter Yee at his 2 bedroom house and occupied one out of it. She recalled 25th of September 2008. When she was sleeping in her room somebody had tried to open her room door, which was locked from inside. Assuming it was Peter she had opened the door. Then she saw 4 men standing in front of the door. She claimed that 3 out of them were short; the other one was tall; all were wearing black jackets and ¾ Lee pants; 3 had covered their faces with pieces of clothes and one with a 'pompom' which covered only the forehead of him while the face was visible.

11.	Ms. Sereana said that she saw the intruders as the lights of Mr. Peter's room, kitchen and outside the house were on. But the light of her room was switched off. She was threatened by one with the use of a cane knife held to her neck and ordered her to lie on the bed. Then they had tied her hands and legs leaving her to face the wall. She went on to say that the intruder with the pompom approached her and started touching her breasts and her private parts. When he was trying to pull her pants down another intruder had come in and stopped him from doing so.

12.	She demonstrated to court as to how she recognized the one who was in the pompom while she was lying on the bed facing the wall. She had about 10 minutes to see him standing in front of the doorway after he approached her. The total time period that she had observed that tall, dark, intruder with a slight beard was said to be more. Later on, the person whom she identified was brought to her house by the police and she confirmed her identification in court by pointing to the accused in the dock.

13.	She testified that her gold chain valued at $110 was 'stolen' by the robbers. The robbers had taken the safe that was at home and left the house with Mr. Peter's blue car towards Suva. When the robbers left the premises, she has untied herself and then untied Peter as well. By that time it was around 2 o'clock in the morning on the 26th of September 2008 and she had rushed to her auntie's place to report the incident to police.

14.	In cross examination she was confronted with the issue of 'Wame', as she has stated in her first statement to police that it was this 'Wame' that she saw in the house on this particular night. In answering to that Ms. Sereana told that the Police Officer who recorded her statement wanted her to said that it was 'Wame' whom she saw and that 'portion' in her statement is wrong. She admitted that there was no identification parade conducted to indentify the accused before he was brought to her house.

15.	The 2nd witness of the prosecution was Sgt/Joape Ravunibola. He testified to the effect that he's been in the Fiji Police Force for the last 17 years and the last 6 years out of which was in the Crime Proactive Unit or Strike Back Unit at Nabua Police Station. He said that on 26th of September 2008 around 8.30pm while he was on duty, he heard a radio telephone message to the effect that a blue Toyota Camry with the number plate 'EM/296' had driven away from Tamavua Superfresh Service Station without paying for the fuel.

16.	Upon hearing that he had gone to drop a fellow officer at Nadawa Settlement. On the way back to Nabua Police Station while he was on Ratu Dovi Road in to Nokonoko, just before approaching the Bayly Bridge, he had noticed a blue Toyota Camry coming towards him in a slow pace because of the traffic queue. Further, he had noticed that the Registration number plate of it was EM/296, the vehicle in issue. Thereafter, he had noticed that the driver of the said EM/296 was one Eparama Nagalu and sitting beside him in the front seat was Lote Serutalatala. Sgt/Joape testified that he recognised the accused as 'we have arrested him several times'. Though Sgt/Joape had taken a 'U turn' to follow the said car, his attempt was futile. While identifying the accused in the dock, Sgt/ Joape confirmed that he was the person whom he saw in the blue colour Toyota Camry car, EM/296 on 26th of September 2008 seated beside the driver.

17.	In cross examination, accused highlighted the fact that Sgt/Joape's statement was made in respect of what he saw only on the 7th of October and it is 7 days belated. Answering to further question Sgt/Joape told he saw the occupants of the car for about 3 – 5 seconds with the use of the lights, of the vehicle at the back of EM/296. He claimed that the moment he saw the Camry he stopped his vehicle and was still when he observed the passengers in the Camry. Further, he said because of the traffic queue the Camry was approaching him in a very slow manner and the gap between the driver of the Camry and him was 4 – 5 feet as Ratu Dovi/Nokonoko Road contained only 2 lanes. Accused challenged that it is impossible to identify 4 things; the car; its number plate; driver and him in this short span of time. Witness reiterated that he was 100% sure of his observations to be correct with his 14 years of experience by that time.

18.	The 3rd witness of the prosecution was Ex-Sgt/Seniloli Nawaqadau. He was the Investigating Officer of the robbery in issue which took place in Wailekutu in Lami. He had received the complaint on 26th of September 2008 at about 6.40am and had visited to the scene of crime. It was the residence of Mr. Peter Yee and the point of entry of the robbers to the house was the rear kitchen door. It was revealed at that point that Mr. Yee's private car, FJ/015, a blue Toyota Camry and some other items of the house were being robbed. Ex-Sgt/Seniloli recalled 29th of September 2008 and said he received information that Mr. Yee's stolen car had been found abandon in Nausori Town. He found the car parked in the Nausori Police Station with the fitted registration number 'EA/716'. He had cross checked it with the licence sticker pasted on the front left side of the windscreen and got it confirmed the exact registration number of the vehicle is FJ/015. Inside the boot of the car he managed to find a cane knife, brown colour t-shirt and 3 vehicle number plates, EM/296, DU/187 and FJ/015.

19.	A photograph (Exhibit No. 1) of the car was identified by the witness. Ex-Sgt/Seniloli was the interviewing officer of the accused as well. He marked the Voir Dire statement of the accused as Exhibit No. 2 (Voir Dire marking P1). As the accused informed court that he has no questions for Mr. Peter Yee his statement was tendered to court with consent marked as Exhibit 3. 

20.	In answering to the questions put by the accused the witness confirmed that Ms. Sereana told in her statement that she saw and identified a person called 'Wame'. The witness admitted that he did not conduct an identification parade as the accused had already admitted to the offence at the caution interview and a Police Officer had identified the accused while he was travelling in the car in issue. Finally, he confirmed that he did not find out any item from the custody of the accused to say that he robbed the items.

21.	PC/3676 Sachendra Monish Lal was the last witness of the prosecution. He recalled that on 8th of October 2008 he received instructions from Sgt/Seniloli to formally charge the accused, Lote Serutalatala. The charging had taken place at Crime Office at Nabua Police Station. Both the accused and the witness had signed the charge statement and the witness confirmed the accused did not make any complain at the time of charging.

22.	As the court was of the view that there is a Prima Facia case built up by the prosecution for the accused to answer, a defence was called from the accused. Accused opted to offer evidence from the witness box on oath.

23.	Lote Serutalatala, the accused, testified to the effect that he was in Raralevu in Tailevu with his wife on the day the alleged robbery took place. He said that he was forced and threatened to admit the charge of this case. The accused was cross-examined at length.

24.	The Learned Prosecutor confronted the accused with his confession. But the accused denied all the suggestions saying that the Police threatened him to admit the charges.

25.	Thereafter the prosecution made a request to call Sgt/Joape to rebut the evidence of the accused as the accused claimed that though Sgt/Joape testified to the effect that he has arrested the accused before September 2008, it was not true. Since that suggestion of the accused was not put to Sgt/Joape directly for him to respond, this court upheld the request of the prosecution and allowed them to call Sgt/Joape in rebuttal as it could be easily assume that the said suggestion of the accused has taken up by the prosecution, with a surprise.

26.	Then prosecution called Sgt/Joape again to testify. It was told by Sgt/Joape that they received an information on 1st September 2008 saying that RRR Pawnshop at Nausori Town had been robbed and Lote Serutalatala, the accused was also comprised the group which was involved to the robbery. A group of police officers had gone to Raralevu Village led by PC/Saimoni Qase though Sgt/Joape had not gone on that mission. The police team had managed to arrest Lote Serutalatala and brought him to the Strikeback Office of Nabua Police Station. Sgt/Joape confirmed that he himself got involved in verbal interrogation and profiling of Lote Serutalatala along with 2 other police officers and he prepared a report based on the elicited facts. Exhibit No. 5, the "Strikeback Tasking Report Form RRR Pawnshop, Nausori" was tendered to court and the first photograph of the suspects is Lote Serutalatala's. Finally Sgt/Joape said that after doing this profiling which normally includes getting details of the accused and his photograph which runs for almost 1 hour on 2nd of September he saw the accused on 26th September in connection with this case.

27.	In cross examination Sgt/Joape admitted that he has not arrested the accused, but he came in contact with the accused when the accused arrested by his team members and when he was doing the profiling. 

28.	According to the above narrated evidence led before court on behalf of the prosecution, it is apparent that the entire case of the prosecution rests on the identifications made by Ms. Sereana Ranadi and Sgt/Joape. I first proceed to look into the fact whether the court can rely on Ms. Ranadi's testimony on the identification of the accused. 

29.	It was revealed in court that Ms. Sereana Ranadi had stated about a person called 'Wame' in her police statement when 1st narrated this incident to the police. There are two conflicting versions in respect of 'Wame'. Ms. Sereana says that 'portion' about 'Wame' in her statement is wrong and it was inserted for the want of the Police Officer who recorded her statement. But, Ex-Sgt/Seniloli, who was the Investigating Officer of this case, and responsible in recording Ms. Sereana's statement as well told court that it was Ms. Sereana who told him that she saw and identified the person called 'Wame' during the alleged robbery. In fact, this court proceeded to peruse the 'portion' in dispute in Ms. Sereana's statement when the accused was offering evidence and it says as follows; 'I managed to identify one Wame of Beqa – residing at Kelekana'.

30.	There is no doubt, that there is a marked difference of what Ms. Sereana has told in her police statement and what she said in court. When she talks about a person called 'Wame' earlier, now she applied all those characteristics to 'Lote'. That could happen for genuine reasons as she claims or otherwise. But, without proceeding to brand any witness a liar, this court thinks the duty of it is to separate grain from chaff. This court is mindful that a direct testimony of a witness should not be discarded on the ground of minor discrepancies. But, discrepancies have to be distinguished from contradictions, whereas major contradictions in a statement of a witness is fatal for the case though minor discrepancies or slight variations in the testimony of that witness would not make prosecution's case doubtful. Thus, in a given scenario where a witness endeavours to introduce at the trial stage a new version or narrates something materially different from his/her original version in the police statement, court will reluctant to accept that version at its face value unless and until a satisfactory and cogent explanation is given for such deviations and improvements made. On the other hand, when the police statement of a witness is recorded within a very short time period after the incident, the interpolation of the names of the accused could easily interpret as a result of afterthought and it is most fatal to prosecution case as it is most likely that the witness had not seen the incident as narrating. Had the witness could not identify any of the suspects or participants it should be specifically stated in his/her police statement as it goes to the credibility and trustworthiness of the witness.

31.	In this context, when Ms. Sereana tells that the portion of 'Wame' inserted by the interviewing officer and the Interviewing Officer says it was Ms. Sereana who told about this 'Wame', the prosecution has not satisfactorily discharged their burden of explaining the 'deviation' of the witness/Ms.Sereana from her original statement. Thus, I am not ready to accept Ms. Sereana's testimony in respect of the identification of the accused at the scene of crime as it lacks the 'credibility' that a criminal court would anticipate from a prosecution witness. Thus, there is no need to proceed to see the applicability of Turnbull Rules of Ms. Sereana's testimony in respect of her identification of the accused.

32.	I now proceed to see whether Sgt/Joape's testimony can be accepted in identifying the accused or not. In Rex –v- Turnbull [1977] QB224 it was stated;

"First whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms the judge need not use any particular form of words".

33.	Further, it was stated that;

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognize someone whom he knows, the jury should be reminded that mistakes in recognise of close relatives and friends are sometimes made.
All these matters go to the quality of identification evidence. If the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger.

34.	The Turnbull directions are generally required in all cases where identification of the accused is a substantial issue. The following directions are been outlined in Turnbull where a case wholly or substantially depends upon the correctness of identification evidence. 

(a)	Warn the jury of the special need for caution before convicting on that evidence

(b)	Instruct the jury as to the reason for such need

(c)	Refer the jury to the fact that a mistaken witness can be a convincing witness, and that a number of witnesses can be mistaken

(d)	Direct the jury to examine closely the circumstances in which each identification was made

(e)	Remind the jury of any specific weaknesses in the identification evidence

(f)	Where appropriate, remind the jury that mistaken recognition can occur even of close relatives and friends

(g)	Identify to the jury the evidence capable of supporting the identification

(h)	Identify evidence which might appear to support the identification but which does not in fact have that quality.

35.	Even according to Turnbull guidelines 'recognition' of a person maybe more reliable then identification of a stranger. But it is still the duty of court to keep in mind that there can be mistakes in recognition of close relatives and friends as well.

36.	In Rex –v- Bentley [1991] Crim. L.R. 620 CA Lord Lane CJ observed that recognition evidence could not be regarded as trouble free. 

"Many people had experienced seeing someone in the street whom they knew, only to discover they were wrong. The expression "I could have sworn it was you" indicated the sort of warning a judge should give, because that was exactly what a witness did – he swore that it was the person he thought it was. But he may have been mistaken even in recognition. In the narrow field of recognition there were degrees of danger; perhaps less so where the parties had known each other for many years, or where the person identified was at the scene. Even here, it is advisable to alert the jury to the possibility of honest mistake and to the dangers, and the reasons why such dangers exist in identification evidence. In a recognition case, the risk is not that the witness will pick out the wrong person on a parade, but that at the time of the offence he mistakenly thinks he recognises the offender; this danger brought home to the jury".

37.	As discussed in Rex –v- Fergus [1992] Crim. L.R. 363 CA, the knowledge of a witness of the alleged offenders name is something of a red herring. Then the only remaining issue will be whether or not the witness was correctly identified the accused as the first offender irrespective of the fact whether he knows the name of the accused or not.

"In order to judge this, the tribunal of fact will want to know how well the witness knew the defendant and what opportunity he had to observe the offender at the material time".

38.	It was accepted in Reid –v- R [1990] A.C. 363 PC that Turnbull guidelines equally apply to the Police Officers who testify on identification issues. In series of cases such as R –v- Ramsden [1991] Crim. L.R. 295 CA; R –v- Tyler [1996] Crim. App. R. 332 CA; Powell –v- DPP [1992] R.T. R. 270, DC; and R –v- Spittle [2009] R.T.R. 14 CA, it was decided

"an identification witness who is involved in the Criminal Justice system is likely to have a greater appreciation of the importance of identification and so to look for some particular identifying feature'. Honest Police Officers are likely to be more reliable than the general public, being trained and less likely to have their observations and recollections affected by the excitement of the situation. Provided that the usual warnings are given, the reasons scrutinised, and the integrity of the witness is not in doubt, the tribunal can give effect to what is only common sense". – Archbold 2012 paragraph 14 – 15 page 1539.

39.	It was decided in R –v- Browning [1994] Cr. App. R. 109 CA, that any guideline or direction analogous to Turnbull directives are not required in relation to the identification of motor cars. Still it was decided to pay the attention to;

(a)	The opportunity that each witness had to identify the car,
(b)	Each witnesses apparent ability to distinguish between makes of cars,
(c)	How far each witness can be relied on as to what he remembered.

40.	While keeping the above mentioned judicial precedents in mind, I now turn to see the factual analysis of the 'identification' of Sgt/Joape. As it was clearly distinguished the difference between 'identification' and 'recognition', I have to say that Sgt/Joape had performed an act of 'recognition'. The facts that led to this conclusion is very clear. According to Sgt/Joape, he had involved in verbal interrogation and profiling of Lote Serutalatala, the accused of this case in connection with another matter on 02.09.2008. That was said to be done at Strike Back Office at Nabua Police Station.

41.	I now see Prosecution Exhibit No. 5; "STRIKE BACK TASKING REPORT FORM_RRR PAWNSHOP, NAUSORI". The name of the accused is reflected on top of the list of the suspects along with Eparama Nagalu in No. 4. The photograph of the accused is also attached to the Report dated 02.09.2008. This is "PROFILING" according to Sgt/Joape; getting all the details of suspects with their photographs. It is with this 'duty' performed by Sgt/Joape on 02.09.2008, he says that he managed to identify the accused and Eparama Nagalu in the front seats of the car in issue. By that time the car was bearing the number plate of EM/296 and it was on 26.09.2008.

42.	Sgt/Joape, in my view has satisfied all the necessary requirements demand by the legal precedents such as Rex v. Fergus (supra.para32) and Reid v- R. (supra.para33) in recognising the accused on 26.09.2008. An experience police officer over 12 years who got involved in active criminal investigations would be very unlike to have his observations to get confused with the excitement of the moment. This reference is justified when Sgt/Joape said that he took a 'U turn' and followed the car in issue to a certain extent. That is the re-action of a trained police officer and in such background is possessed by a witness, even 3 – 5 second would be a considerable period of time to observe variety of things, to which an ordinary person would not pay much attention or concern.

43.	Having had the privilege of watching the demeanour and deportment of Sgt/Joape's testimony, I conclude that Sgt/Joape is a truthful and credible witness. Therefore, I accept the version of Sgt/Joape that he in fact saw the accused and another in the car in issue. It has to be further stated that the testimony of Sgt/Joape gathers more credibility when 'EM/296', the number plate which he saw in the car in issue was not the number plate carried when it was taken into police custody. All what Sgt/Joape describes is an 'in between' incident from the alleged robbery and the recovery of the car. Therefore, I have no reason to disbelieve what Sgt/Joape had narrated to court on the 'identification' of the car in issue and 'recognition' of the accused.

44.	While Exhibit No. 5 confirms that Sgt/Joape had the prior knowledge of the accused and his recognition of the accused is quite accepted and justifiable, I proceed to see whether 'Exhibit No. 5' is admissible in evidence as it might fall into the category of 'Bad character of the accused'. I note that R. v- Spittle [2009] R.T.R. 14. CA and R. v- Isiche 170 J.P. 753 CA decided cases are exactly to this point. Evidence of Accused's previous convictions on both these occasions were admitted in evidence 'on the basis that it was relevant to an important matter in issue between the defence and prosecution by supporting the accuracy of the victim's identification' and the 'correctness of the identification which was the only issue'. (Archbold – 2012 a. para 13 – 46 a page 1494). Thus, I do not see any legal impediment for this court to consider Exhibit No. 5 tendered by the prosecution only to assess the accuracy and the correctness of Sgt/Joape's recognition of the accused. In this background, I conclude Sgt/Joape's evidence in identification of the accused is legally permitted to accept and was in such a convincing manner that this court can rely on its correctness and accuracy.

45.	Coming back to the substantive matter, I see no dispute between both parties that an armed gang of 4 people had involved with a robbery with violence on 26th of September 2008 rather after midnight of 25 September 2008 at Wailekutu, Lami at Mr. Peter Yee Kute's house and robbed some valuables and Mr. Yees's private car (registration number FJ/015, a blue Camry) had been taken out of his place without his consent. Mr. Peter Yee's statement was tendered to court with the consent of both parties marked as Exhibit P3 and the alleged robbery with violence and unlawful use of motor vehicle of Mr. Yee are almost accepted by both parties without any dispute. Apart from the portion of the identification of the accused, Ms. Sereana's testimony also confirms the alleged robbery at Mr. Yee's house on the said night. The only fact in issue to be resolved in this case is whether the accused, Lote Serutalatala, was a participant to those crimes or not.

46.	There is no direct evidence against the accused to establish his presence at the scene of crime as this court has already decided not to rely on Ms. Sereana's identification. But as the court has decided to keep its reliance on Sgt. Joape's testimony over his 'recognition' of the accused inside a car carrying a number plate EM/296, a string of circumstantial evidence comes into limelight against the accused. The court is mindful that the alleged robbery at Mr. Yee's house and removal of his car with the registration number FJ/015 had been done in the early hours of 26th September 2008 and Sgt/Joape had seen the accused in the car which carried the number plate EM/296 around 8.30 in the night on the same 26th September 2008.

47.	Ex-Sgt/Seniloli exposed in court as to how the abandoned car he found in Nausori Police Station carrying the number plate EA/716. The car which Mr. Peter Yee had lost was FJ/015. The car Sgt. Joape observed with the accused sitting in the front left seat was EM/296. Ex-Sgt/Seniloli finally located the car of EA/716. But Sgt/Seniloli's investigation revealed that the licence sticker pasted on the top left side of the windscreen refers to FJ/015. That number plate was found in the boot of EA/716. Further, EM/296, Sgt/Joape's observation was also found in the same boot with another third number plate. Upon perusing the Exhibit No. 1 produced before court by the prosecution, the photograph of the blue Toyota car with the registration number EA/716, it is obvious that Mr. Peter Yee, Sgt/Joape and Ex-Sgt/Seniloli all are referring to the same blue Camry car in three different instances carrying three different number plates. Sgt/Joape refers to the accused seen inside the car in a middle point of the whole sequence of events.

48.	The court has to presume, when nothing is in contrary, that man who is in possession or in control of any stolen item soon after the theft or within a reasonable period after the theft is either the thief or one of the thieves, or has received the item, knowing them to be stolen, unless he can account for his possession. I conclude that any contrary explanation over occupying the vehicle by the accused has not come for the consideration of this court. Thus, it is proven beyond reasonable doubt that the accused was in the unlawfully used motor car within a very short period after the so-called robbery. Then the involvement of the accused stretches back to the alleged incident of robbery as well and the establishment of the accused's participation to the alleged robbery is the only inevitable conclusion. 

49.	It is in this light that I would peruse the Caution Interview Statement of the accused, which was allowed to be led in evidence at the end of the Voir Dire enquiry. I observe that in page 4 of the Caution Interview the accused had admitted that he entered into Mr. Peter Yee's house and was standing outside the door of Mr. Peter Yee's room as a watchman and then was standing inside the kitchen while others entered to another room where a Fijian girl was sleeping. Even at this point of time, I see the voluntariness of the statement of the accused in his Caution Interview. Has it been forced or threatened to admit the offences, the accused couldn't have taken such a remote and distant involvement to the crime by being a mere watchman. This indicates that what the accused said has been put in writing and nothing else.

50.	On the other hand, the fact of mere 'watchman' raises the issue whether the accused can be punished for the main offences as charged. In this regard, I do agree with the prosecution that his scenario is covered by Section 46 of the Crimes Decree (not Section 46 of the Criminal Procedure Decree) which says;

"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 consequences of the prosecution of such purpose, each of them is deemed to have committed the offence".

At the same time Section 45(5) of the Crimes Decree says;

"A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the principal offender has not been prosecuted or has not been found guilty".

In this context, it is obvious that the role of a watchman has also contributed in achieving the main goal as used to say in the famous aphorism "he also serves who stands and waits". Thus, I see no legal barrier in trying an accused who had shared the common purpose of the crime with joint offenders or with the principal offender who are not being prosecuted as yet or haven't been found guilty.

51.	Based on the extensively discussed factual and legal analysis I conclude that the prosecution has proved all the required elements of the three charges raised against the accused beyond reasonable doubt. It was produced before court in such a convincing manner that the three isolated pieces of evidence, Mr. Peter Yee, Sgt/Joape and Ex-Sgt/Seniloli when taken in totality its cumulative effect establishes a strong circumstantial evidential background against the accused resulting in his total denial of the charges unacceptable. The accused did fail to create any doubt of the narration of the said three(3) prosecution witnesses or to show court any motive in them to implicate the accused to the alleged crime maliciously. Therefore, I refuse to act upon the testimony of the accused. I convict the accused for the all three counts separately.

. . . . . . . . . . . . . . . . . .
Mr. Janaka P. Bandara
Resident Magistrate, Suva

Dated: 15th day of November 2012