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State v Vuniwawa [2017] FJMC 66; Criminal Case 1724.2016 (5 May 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case : 1724/2016

EJ 123/2016

STATE

V

SAMUELA TUIBEQA VUNIWAWA

For the Prosecution : Cpl Shaw

The Accused : In person

Date of Judgment : 05^th of May 2017

JUDGMENT

1. The accused was charged with one count of Aggravated Robbery contrary to section 311(1) of the Crimes Decree No 44 of2009. The particulars of the offence are “SAMUELA TUIBEQA VUNIWAWA with two others on the 29^thh day of September 2016 at Samabulla, Suva in the Central Division robbed one ANIT RAM and stole 1 Lenovo Mobile Phone valued at $500.00 ,cash $80.00 ,all to the total value of $580.00 , the property of ANIT RAM and before the robbery used force on ANIT RAM”.
2. The accused pleaded not guilty wherefore this proceeded for hearing. The Prosecution called 07 witnesses.
3. PW1 was Anit Ram a taxi driver by profession and said the accused and 2 others hired his taxi from base at Namadi height and went to Tikaram place. The accused was sitting in the front passenger seat. It was 4.45 pm and in Tikaram place they said they were looking for a home. The accused took a wallet and was trying to pay when the person behind also said he would also pay. Suddenly the witness saw one in front with a knife and he grabbed with him. He said he would kill the driver. One from behind came and pulled him from the taxi and another one tried to drive the car. The witness turned off the car and kicked the car key away. They took the phone (MFI-1) and $80.00 was missing after that. PW1 got injuries and after going to the hospital he came to the police station. The police found the wallet in front passenger seat and later found the mobile. The police showed him the ID of the accused (MFI-3) and his wallet (MFI-4). PW1 also identified the accused in the court.
4. In cross-examination the witness said the accused was sitting next to him and he noticed the face. There was no obstruction. In re-examination PW1 said the police officer gave the ID card and through that he identified the accused and could have identified in an ID parade too if given the opportunity. The wallet found in the car was not his.
5. PW2 was Azim Nisha who was in her home on 29/10/2016 and heard some yelling outside. She also saw Toyota prius taxi and a person asking for help in Indian. She saw an Indian and 3 I-tukai men and they ran away. She did not see their faces.
6. PW3 was PC Eroni who arrested the accused from his aunt home.
7. PW4 was DC Maciu who conducted the caution interview of the accused and this was marked as PE1. In cross-examination the witness denied the wallet was with the police and said the phone was given to a lady by the accused.
8. PW5 was D/SgtSukuna who conducted the charge statement of the accused and this was marked as PE2. He also seized the phone from a lady and prepared the search warrant and list (PE3). In cross-examination the officer said he recovered the phone from the lady.
9. PW6 was Adi Senibiya who was in possession of the phone. After refreshing the memory she first said on 29/09/2016 around 7pm whilst she was preparing the dinner a person gave the phone. After a break she said it was given by Tui , the accused who was present in the court. In cross-examination by the accused she said she does not know Tui, but when asked by this court she said she knows him previously from the town.
10. PW7 was WDC Lice who was the investigating officer. She complied the docket and marked the phone, wallet and ID and the medical report as PE4, PE5 and PE6 respectively. In cross-examination the witness said she found the wallet and the Id from the car when it was brought to the station on the same date.
11. For the defence the accused gave evidence. He said for an earlier case in Nadi the police seized his wallet and Id and the police did not return them. When he was in aunty place the police came and arrested him. They said they found his wallet in the taxi. In cross-examination the accused denied giving the phone to PW6.
12. 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).

13. The Robbery is defined in section 310 of the Crimes Decree as :

“(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; or

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

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

14. When a person commits a robbery with one of more person then it would constitute Aggravated Robbery [section 311(1)(a) of the Crimes Decree] and therefore the Prosecution has to prove beyond reasonable doubt the following elements:
    1. The accused ;
    2. Committed the theft ;
    100. Immediately before committing the theft used force on the complainant ;
    4. He was in company with another person.
15. Having considered the applicable law, now I would analyses the evidence in this case. The accused has denied this offence. His version is that the police was trying to implicate him by planting his wallet and Id in the car.
16. The complainant said some people hired his taxi and at Tikaram place assaulted him and stole his mobile and the money. The accused did not challenge this part. Hence I am satisfied about all the elements of this offence apart from the identity which is the disputed point in this case.
17. The complainant identified the accused in the court and the accused objected for this dock identification. At that time I allowed it and these are the reasons for my decision.
18. It has been held that without a first time dock identification in the court is not safe. It is obvious the accused is the only person standing in the dock and asking the witness to identify that person is tantamount to a leading the witness.
19. In Lotawa v State [2014] FJCA 186; AAU0091.2011 (5 December 2014) his Lordship Justice Madigan held :“Dock identification is completely unreliable in the absence of a prior foundation of identity parade or photograph identification because it then becomes the ultimate leading question. The answer is obvious to any witness -- the person to be identified is sitting in the dock. The Privy Council has examined the merits and demerits of such identification in the case of Holland v. HM Advocate(The Times June 1, 2005) where it was held that such an identification was not per se incompatible with a fair trial but other factors must too be considered such as whether the accused was legally represented, what directions the Judge gave to the finders of fact on this identification and how strong the prosecution case was in all other respects. It has been decided now in a line of English cases that it should be refused by a trial Judge except in situations where the accused has refused to participate in a formal identification parade or where he has otherwise avoided attempts at identification. Even then very strong directions must be given as to how little weight is to be placed on such identification.”
20. In this case there was no ID parade as shown through the evidence. But the complainant identified the accused through the ID card that was shown by the police soon after the robbery. This ID was found in his car. Therefore I do not think an ID parade would have added anything more for this identification.
21. Now I have to consider whether 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.
22. 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.”

23. 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?

24. Having considered above grounds, if I am satisfied about the identification then I can act on that. According to the complainant, the accused was sitting next to him in the front passenger seat from Nadera to Tikaram place and he has time to see the face. There was no obstruction for his view and there was enough light to see the face (4.45 pm ). . This is not a fleeting glance .Hence I accept this identification as correct in this case and can rely by me.
25. The stolen mobile was found with a lady and she said on that day evening the accused gave her that phone. But under oath she initially said she did not see who gave this phone. Later she said she did not know the person and again said she has seen him in the town. I find this different version taken by the witness make her evidence not reliable and would not rely on that.
26. The complainant said he took the vehicle to the police station and there the police found the wallet and ID of the accused in the front passenger seat. In fact the IO said she found them on the same date in the vehicle. The accused also admitted the wallet and the ID belonged to him.
27. This evidence can be described as circumstantial evidence against the accused.
28. In Fiji Independent Commission Against Corruption [FICAC] v Mohammed - Summing Up [2015] FJHC 454 Justice Madigan said : “Circumstantial evidence can be very powerful evidence , but it is important that you examine it with care, and consider whether the evidence upon which the prosecution relies in proof of its case is reliable and whether it does prove guilt. Furthermore before convicting on circumstantial evidence you should consider whether it reveals any other circumstances which are or may be of sufficient reliability and strength to weaken or destroy the prosecution case. Finally, you should be careful to distinguish between arriving at conclusions based on reliable circumstantial evidence , and mere speculation. Speculation in a case amounts to no more than guessing or making up theories without good evidence to support them and neither you nor anybody else should do that.”
29. In Teper v The Queen [1952] AC 480 at p. 489Lord Normand held that ‘It is also necessary before drawing the inference of the accused’s guilt from circumstantial evidence to be sure that there are no other co-existing circumstances which would weaken or destroy the inference’
30. To neutralize this crucial evidence the accused said this wallet and the ID was seized by the police previously in another case in Nadi . He was trying to suggest the police had planted these to implicate him in this case. The police witnesses denied that they had the wallet with them before this incident. Further the complainant said he saw the wallet with the accused on that day when he took the money to pay. Accordingly I find this version of the accused is not credible.
31. Soon after the Robbery the police found the wallet and the ID of the accused from the taxi. Through this only reasonable inference that I can draw is that the accused was in the car on that day and he was part of the team that committed this offence.
32. Through the evidence of the complainant and the circumstantial evidence I find the prosecution has proved the identity of the accused which is the only disputed point in this case.
33. I am satisfied that the prosecution has proved this charge beyond reasonable doubt against the accused.
34. I find the accused guilty for this charge and convict him accordingly.
35. Since this court is exercising the extended jurisdiction of the High Court case, the parties may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

Shageeth Somaratne

Resident Magistrate