Tuibua v The State [2004] FJHC 99; HAA0034J.2004S (6 May 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0034 OF 2004S

Between:

SEMESA TUIBUA
Appellant

And:

THE STATE
Respondent

Hearing: 29th April 2004
Judgment: 6th May 2004

Counsel: Appellant in Person
Mr. W. Kurisiqila for State

JUDGMENT

The Appellant was sentenced to two years imprisonment on the following charge:

Statement of Offence

HOUSE BREAKING ENTERING AND LARCENY: Contrary to Sections 300 (a) and 270 (a) of the Penal Code, Act 17.

Particulars of Offence

SEMESA TUIBUA, on the 27th day of June 2001 at Nasinu in the Central Division, broke and entered the dwelling house of MANJULA WATI d/o Mani Rama and stole therein 1 Kawasaki brush-cutter valued at $1008.48, 1 Muster brand video deck valued at $1,258.00, Gold chain valued $300.00, 1 Panasonic disc walk-man valued at $700.00 and cash of $500.00 to the total value of $3766.48 the property of the said MANJULA RAMA.

The grounds of appeal can be summarised thus:

1. The Appellant was never seen at the crime scene and the police forced him to confess;

2. No stolen item was exhibited in court;

3. There was insufficient evidence on which to base a conviction.

The hearing in the Magistrates’ Court was delayed because of the non-appearance of the Appellant. He was eventually brought to court on the 20th of August 2003 and remanded in custody. The trial commenced on the 28th of October 2003. Manjula Devi gave evidence that on the 27th of June 2001 she left her home locked and returned to it at 2.25pm. She found it had been ransacked and the items specified in the charge missing. Her evidence as to the value of some of the property differed from the values specified in the charge. The brush-cutter and DVD player were eventually recovered by the police and returned to her.

PW2 was PC Maika Rogera who gave evidence that he attended the crime scene and discovered that three louvres had been removed from a window. The brush-cutter and DVD player were recovered from an Indian man in Bureta Street. The Appellant was arrested and interviewed under caution. He initially denied the offence but later admitted it and directed the police to the stolen property. He tendered the caution interview in carbon copy, the original being missing.

The interview was conducted at Valelevu Police Station at 6.30pm on the 16th of July 2001. The Appellant said at first that he had been at home with his wife at the time of the offence. The interview was then suspended to check on the alibi and for an identification parade. The interview continued on the following day at 11.59am. He agreed that he had committed the offence and that he had taken the stolen items away in a taxi and that he sold them at Samabula to two Indian boys for $80 and $100.

The Appellant suggested that the interviewing officer had obtained the confession by assaults and threats. This was denied. The next witness was the charging officer who said that the Appellant had taken the police to the person who held the stolen property. He also tendered the charge statement which contained an admission as to the stealing of the brush cutter and deck.

The Appellant gave sworn evidence saying that he had not committed the offence and that the police had obtained the confession by force. He said he had been at home on the day of the break-in. His wife gave evidence saying that the Appellant had been at home with her all day. However under cross-examination she said that she had been coached to say what she had said in court. She retracted this on re-examination. Another witness, Ruci Rokowati, said that the accused was at her house on the day of the offence. She said she had been sitting in court when the Appellant had given evidence.

The learned Magistrate directed himself on the burden and standard of proof and summarised the evidence for prosecution and defence. He then said:

“When comparing and examining all the evidence, I am persuaded to accept PW2’s caution statement of the accused and reject the accused’s and his two witnesses’ evidence. I find as a matter of fact that the accused voluntarily confessed to the crime on 17.7.2001 when caution interviewed by PW2. I therefore find that the prosecution had proven his case against the accused beyond reasonable doubt and I find the accused guilty as charged.”

The learned Magistrate did not conduct a trial within a trial to determine admissibility of the confession. It is also unfortunate that he did not remind himself that the burden of proving admissibility is on the prosecution. However, I do not consider these failures to be fatal. The Appellant failed to put specific allegations of assault to the interviewing officer. He did not for instance elaborate on the nature, length and source of the assaults. He was unable to produce any medical report showing the existence of any injuries. Nor did he in his sworn evidence, give any detailed information about the alleged assault. The grounds for challenging the confessions were sparse. Further he never suggested to the charging officer that he had forced the confession, although the charge statement also contains a confession. Lastly, although the procedure recommended by the Court of Appeal in Vinod Kumar v. State Cr. App. AAU0024 of 2000S was not followed, the Appellant chose to give sworn evidence and was therefore not prejudiced by a deprivation of an opportunity to give sworn evidence about the voluntariness of the interview.

The other grounds of appeal have no merit. The evidence against the Appellant was his confession and the recovery of the stolen items from the place shown to the police by him. There was no need to exhibit the stolen items especially when the complainant said she had identified the two items specified as a result of the police showing them to her. Nor does the small difference in the value of the items affect conviction.

Section 122 of the Criminal Procedure Code requires charges to be framed with sufficient particularity so that the accused understands the substance of the charges are clear. The discrepancy in the value of items does not reflect on the ingredients of the offence, and there was no need to amend the charge. Further although the Appellant admitted to stealing only two items, the learned Magistrate obviously accepted the complainant’s evidence that more items were missing.

There was more than sufficient evidence to convict the Appellant. The appeal against conviction is dismissed.

The Appellant was sentenced to two years imprisonment. He is 35 years old and sells barbecue at the market. He has 31 previous convictions of similar offences. In the circumstances, the two year term is not harsh or excessive. The appeal against sentence is dismissed.

Nazhat Shameem
JUDGE

At Suva
6th May 2004