Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Vakatalai - Judgment [2016] FJMC 127; Criminal Case 912.2016 (30 August 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case : 912/2016

STATE

V

TEVITA VAKATALAI

For theProsecution : Inspector Suli

The Accused : In person

Date of Hearing : 29^th of August 2016

Date of Judgment : 30^th of August 2016

JUDGMENT

1. The accused is charged with one count of Robbery contrary to section 310 ( 1) (a) (i) of the Crimes Decree No 44 of2009. The particulars of the offence are “TEVITA VAKATALAI, on the 04^th day of June 2016 atSuva in the Central Division, robbedand stole an I Phone valued $800.00 the property of the said SEAN FRASER”.
2. The accused pleaded not guilty wherefore this proceeded for hearing. The State called 05 witnessesto prove their case .PW1 was Sean Fraser, the complainant in this case. On 04/06/2016 after clubbing he came out from Onyx night club and was walking to Macarthur Street when the accused came and grabbed his phone. PW1 managed to get hold of the accused by his shirt and started tussling. The accused managed to wriggle and escaped leaving the shirt and flip flop with the witness. The witness stopped a police vehicle and informed that the accused was running in to a street and after 20 minutes the accused came back looking for his flip flop. PW1 identified the accused again and informed the police vehicle who arrested the accused. When the accused was trying to grab the phone distance was 15 cm and PW1 clearly saw the face of the accused. There was street light at that place. The phone I Phone valued at $800.00 used by the complainant. PW1 also identified the accused in the court. He also identified the red t-shirt and flip flop shown by the prosecution as the items worn by the accused on that time.
3. During cross-examination the witness said he drank only 01 glass and was not drunk. He tussled with the accused 20-30 seconds and clearly saw the face. It was well lit up and there was no impediment to his view. He positively identified the accused and in the second instancethe accused was only 2 feet away when the witness identified him. There was street light at that place.
4. PW2 was PC Inoke , who was in mobile patrol on that night and around 4am in the morning the complainant came and informed that someone robbed his I Phone. The police could not locate the suspect after a search. Later the complainant again informed the police he found the suspect and the police arrested him. At that time the suspect was wearing a t-shirt and short. PW2 also identified the accused in the court.
5. During cross-examination the witness said he was not there when the incident happened and the complainant identified the accused on that night.
6. PW3 was PC Richard, who was also on night patrol at that time and his vehicle was parked in Kimberly Street. He heard someone shouting and saw the accused running away without a shirt as someone chasing him. PW3 suspected the accused was involved in something. PW3 also identified the accused in the court.
7. During cross-examination the witness said he knows the accused before the incident as he has seen him few times in the town. Only after the arrest the witness got to know the name.
8. PW4 was D/Cpl Apolesio who conducted the caution interview of the accused (PE1) and was also on duty in that night. He also saw the accused running away without a shirt and even though the police tried to catch the accused got away. During cross-examination the witness also said he knows the accused and only he was running at that time in that street.
9. PW5 was WPC Kesa who was the investigating officer and also conducted the charging of the accused (PE2). She also collected the t-shirt (PE3) and flip flop (PE4). During cross-examination the witness said she saw the accused wearing t-shirt on that night and charged the accused based on evidence.
10. The Prosecution closed the case after that and I gave the accused his rights pursuant to section 179 of the Criminal Procedure Decree. He elected to give evidence.
11. In his evidence the accused said he came clubbing with one of his friend and when he came out from Signal night club the police arrested him for a robbery. He was not aware about that. This version he maintained in his cross-examination also.
12. In his closing address the accused again reiterated his evidence and said he was not involved in this offence.
13. In Woolmington v DPP [1935] AC 462 it was held that :

“Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner’s guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained” (per Viscount Sankey L.C. at pp. 481-482).

14. The accused is charged with one count of Robbery contrary to section 310 ( 1) (a) (i) of the Crimes Decree which reads :

“(1) A person commits an indictable offence (which is triable summarily) if he or she commits theft and —

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

(i) uses force on another person;”

15. Hence the prosecution has to prove the following elements beyond reasonable doubt :
    1. The accused;
    2. Stole the I Phone from the complainant ;
    100. Immediately before committing theft he used the force on the complainant.
16. Having considered the applicable law, now I would analyze the evidence in this case. The accused has denied this offence. His version is that he was clubbing and the police arrested him for an offence he was not aware of. The accused has no burden in this case and the burden is on the prosecution to prove that the accused committed this offence.
17. Now I turn to the Prosecution case. The State called the complainant, the arresting officer and some other police officers as witnesses. The complainant identified the accused in the court (dock identification) and this was objected by the accused at that time because there was no ID parade before the case.
18. But in this case an ID parade would not have made any differences as the complainant identified the accused number of times before coming to the Court. First he identified the accused when he tried to grab the phone and shortly after again identified him when the accused came looking for his flip flop.
19. There is also no dispute that the accused was arrested by PW2 on that day based on the identification by the complainant on the second time.
20. Therefore main issue to consider iswhether the complainant could have properly identified the accused on that day. This brings me to the guidelines laid down by Court of Appeal of England in R v Turnbull (1977) Q.B.224.
21. Lord WidgeryCJ in R v Turnbull(supra) said :

“Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

22. Accordingly when considering identification evidence the court has to consider the following grounds:

(i) has the witness known the accused before?

(ii) For how long did the witness have the accused under observation and from what distance?

(iii) Was it more than a fleeting glance?

(iv) In what light was the observation made?

(v) Was there any obstruction to his view?

23. Having considered above grounds, if I am satisfied about the identification then I can act on that. According to the complainant, he was tussling with the accused for 20-30 seconds and saw the face clearly. The distance was not far and there was light at that place and there was no impediment to his view.
24. The second time he identified the accused only after 20 minutes and at that time also there was not much distance. Also there was sufficient light at that place. The accused was looking for his flip flop which he left at that place and did not notice the complainant who was also at that scene.
25. Hence I am satisfied that the complainant has properly identified the accused on that day which led to his arrest.
26. PW3 and PW4 in their evidence said they saw the accused running at that time without a shirt near to the scene of the crime. Even though they suspected he was involved in an offence they could not catch him. They know the accused before the incident. This is consistent with the evidence of the complainant.
27. During the tussle he managed to grab to the shirt and the accused ran away from the place without that. According to PW4 no one else was running at that time apart from the accused. Even though the accused is denying this I have no reason to doubt about the observations of PW3 and PW4. Hence the only reasonable inference I can draw is that the accused committed the offence and was running away from the place.
28. The evidence of the prosecution witnesses was consistent there was no doubt created through cross-examination or the testimony of the accused.
29. Accordingly I accept the version of the prosecution and rejected the accused version in this case.
30. I find the accused guilty for this offence and convict him accordingly.
31. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate