1. JUDGMENT

The burden to prove the elements of the offence charged rests solely on the Prosecution. The proof must also be  beyond  all  reasonable  doubt  for  a successful conviction of any offence; Woolmington v OPP (1935) AC 462; Kargbo  v R ( 1968-69) ALR SL 354 CA per Tambiah, JA at 358 LL3-5. In my opinion, this burden was proved by PWl  and  PW2 by their testimonies in  Court.

The offence of Robbery contrary to section 23(2) of the Larceny Act 1916 as amended by Act No. 16 of 1971 is defined as: "Every person who  robs  any person  shall  be  guilty  of   a   Felony  and  on  conviction  shall  be  liable    to

...........im prisonment for life.11

"Robbery consists of felonious taking of money or goods of any value from the person of another or in his presence against his will, by violence or putting him in fear. Taking by either of these , means against the will of the party is sufficient to constitute robbery.11    Archbold Criminal Pleading, Evidence  &  Practice 36th Edn. The elements that the Prosecution is  required  to  prove  as  contained  in paragraph 1760 to l 771of Archbold Criminal Pleading, Evidence & Practice 361h edn. at  p644 are:

1. The actual taking either by force or  by  putting  the  victim  in  fear.  "An actual taking either by force or by intimidation of property which is in the peaceable possession of another must be proved; it must appear that the robber actually got possession of the goods........" Para . 1762 p 644 of Archbold Criminal Pleading, Evidenc e and  Practice 36'h  edn.

From the evidence presented in Court by PWl, the Ac c used , Alpha Turay, forcibly took the bag containing the alleged stolen items from the Complainant, Josephine Turay after physic a lly assaulting her and threatening her with a knife, which put her in fear of her life. Also, PW2 testified that when they presented at

Furthermo re, PW2 testified that the Accused took them to a site where they recovered a bag identified by PW 1 to be her stolen bag; and  at  page  5 of Exhibit A1-6, the Accused admitted that he had stolen the handbag from  PWl.

I find this piece of evidence compelling and therefore proves the elements as presented in paragraph (a) above .

1. That the property stolen was taken either from the person of the victim or in her prese nce and against her will. In Archbold (supra) at para. 1763 at p645, " the goods must be proved to have been taken  either  from  the person of the prosecutor or in her prese nce." Also , " for the taking to have taken place in the presence of the victim , it sufficient  that  the  property taken should have been under her immediate and personal control at  the time when the force or fear was effectively made to operate and that the robber's purpose could have been effected only if the victim's  power  to protect was overcome."  Archbold (supra) at para. 1764 at  p 645.

In proving this eleme nt, the PW 1 testified that after being physically assa ulted, the Accused snatched her bag from her grasp  that  contained  the  alleged stolen items and this was not controverted during cross-examination. From the evidence prese nted, it proves beyond all reasonable doubt that the bag was taken from the control of PWl  and against her will.

1. That the taking was against the will of the person. Archbold (supra) at para. 1765 p 646 states that: "it must appear in evidence that the goods were taken against the will of the party robbed ; that is, that they were either taken from her by force and violence or delivered up by her to the prisoner under the compulsion of that degree of fear and apprehension which is necessary to constitute robbery." "The prosecution must either prove that she was actually in bodily fear from the prisoner's ac tions,  at

the time of the robbery, or she must prove circumstances from which the court and jury may presume such a degree of apprehension of danger as would induce the prosecutor to part with his property;" Archbold (supra)  at parag. 1766 at p 645.

PW1 testified that the Accused pointed a knife at her and threatened to kill her if she did not hand over her bag to him. She said that when she refused , he slapped her and assaulted her, which caused her to fall to the ground and that was when the Accused snatched her bag away from her. She actually told the court that she was in fear of her life. From the facts of the evidence, the prosecution has proven this element of the offence.

1. That there was a carrying away/Asportation. Carrying away is defined as the removal of anything from the place which it oc cupies, but in the case of  a  thing  attached,  only  if it  has been  completely  detached;  Section l {2)/ii) of the Larceny Act 1916 . In: The State v. Unisa Swarray and Another   [61h    Nov.  2015   at   p   41  [unrep orted],   "carrying   away"   was described as one which requires the active conduct on the part of the Accused Persons."

The prosecution was able to prove from the testimony of PW1 that after  the Accused had physically assaulted her, he sna tc hed her bag from her grasp and carried it away with him when he ran away from the cemetery. The pro sec ut ion was able to show that the Accused imputed active conduct which proved this element  of  the  offence  beyond  all reasonable  doubt.

Defence Counsel argued vehemently that this has been a case of mista ken identity; an argument that I do not subscribe to. At no point during the case did the Accused indicate that he was not the person. He even cross-examined the Complainant, PW l and never raised the issue.

5

the telecentre the card which was discovered on the person of the Accu sed