State v Turagatani [2020] FJHC 1005; HAC121.2018 (19 November 2020)

IN THE HIGH COURT OF FIJI
AT SUVA
[CRIMINAL JURISDICTION]

High Court Criminal Case No. HAC 121 of 2018

BETWEEN : STATE

AND : 1. APETE TURAGATANI
2. NAVITALAI LOATUICAMA
3. PAULA VURA (in absentia)

Counsel : Mr Samisoni for the State
Mr Varinava T. for the first Accused
Mr Korotini J. for the second Accused
Mr Sharma N. for the third Accused (in absentia)

Dates of Hearing : 09, 10 & 11 November 2020
Closing speeches : 11 November 2020
Date of Summing up: 13 November 2020
Date of Judgment : 19 November 2020

JUDGMENT

1. The Accused persons are charged for the following offences;
   

First Count

Aggravated burglary: contrary to Section 313(1)(a) of the Crimes Act 2009.

Particulars of offence

Apete Turagatani, Navitalai Loatuicama and Paula Vura in the company of each other between 13^th day of January 2018 and the 15^th day of January 2018 at Koro Island in the Eastern Division entered as trespassers into Koro Island Community Police Post with intent to commit theft from that property.

Second Count

Theft: Contrary to section 291(1) of the Crimes Act 2009.

Particulars of offence

Apete Turagatani, Navitalai Loatuicama and Paula Vura in the company of each other between the 13^th day of January 2018 and the 15^th January 2018 at Koro Island in the Eastern Division dishonestly appropriated five plants believed to be cannabis sativa, the property of the Fiji Police Force.

2. The Accused persons pleaded not guilty to both counts. The Prosecution informed the Court that they intend to rely on the admissions in the caution interviews of the Accused persons. Accordingly, a voir dire hearing was conducted, and this Court held on 06 November 2020 that the caution interviews of the three Accused persons are admissible in evidence.
   
3. When the case was set for trial the third Accused stopped appearing in Court and the Court ordered the Counsel for the third Accused to defend him in his absence as the Counsel was prepared for the trial with sufficient instructions from the third Accused.
   
4. Subsequently this case was taken up for trial and the Prosecution called five witnesses to prove the charges against the Accused persons. After the closure of the Prosecution case the first and second Accused persons gave evidence. No other witnesses were called for the Defence.
5. At the summing up I have given directions to the assessors on degree of proof, elements of the offences, joint enterprise, assessing caution interviews and assessing credibility of witnesses, among other things. After the summing up the assessors returned with the following unanimous opinion;

First Count – all three Accused persons are guilty

Second Count – first and second Accused persons are not guilty, and the third Accused is guilty

6. Having directed myself in accordance with the summing up I will now consider the evidence adduced in this case to pronounce my judgment.
   
7. The case for the Prosecution was that between 13 January 2018 and 15 January 2018 the three Accused persons entered as trespassers into the exhibit room of Koro Island Community Police post by removing a window and stole five plants believed to be cannabis sativa. The Prosecution substantially, if not exclusively relied on the admissions in the caution interviews of the Accused persons to prove the two counts. The Accused persons denied the allegations.
   
8. According to the first prosecution witness, PC 6813 Timoci Waqabaca on 15 January 2018 he had noticed that five plants believed to be Marijuana had gone missing from the exhibit room. He had also noticed that the grills of a window of that room had been removed along with three louvre blades. The witness had then reported it to PC 3752 Ilaitia Drauna.
   
9. He also stated that the inside grill was broken, and the outside grill and three louvre blades had gone missing.
   
10. However, in contrary to his evidence the last Prosecution witness, Cpl Ilaitia Drauna said that when he entered the exhibit room the grill to the window and the louvre blades were open. Although PC 6813 Timoci Waqabaca said that the three louvre blades were missing, Cpl Ilaitia stated under cross examination that the louvre blades were properly wiped and therefore no fingerprints were found. He further confirmed that the louvre blades were inside the exhibit room.
    
11. During the cross-examination PC 6813 Timoci Waqabaca was asked whether he was at the Koro Police Post when the third Accused was interviewed. The witness said that he was in the island when the third Accused surrendered but he was away in Suva when the third Accused was interviewed. However, when he was confronted with the Station Diary the witness finally admitted what he said earlier was incorrect and he in fact reported for duty at Koro island Police Post on 25 April 2018.
    
12. The second Prosecution witness, PC Ropate gave evidence that on 10 March 2018 he attended the investigation into the alleged incident at Koro island. He stated that he interviewed the first Accused, Apate Turagatani and tendered his caution interview. Under cross examination PC Ropate said that he accompanied Cpl Sikeli and Cpl Ilaitia to Naqaidamu village. However, he said that he got off the vehicle upon arrival at the village and instructed Cpl Ilaitia and Cpl Sikeli to go straight to the first Accused’s house.
    
13. However, in contrary to the evidence given by PC Ropate, the fourth Prosecution witness Sgt 3541 Isikeli Rokodreu said that it was him, Pc Ilaitia and Constable Taufa who were in the team that went to arrest the Accused persons. But he later admitted that according to the Station diary the team consisted of only him, Pc Ropate and Cpl Isikeli. However, the witness again said that PC Ropate was not part of the arresting team.
    
14. The third Prosecution witness, PC Inasa Nasialsila initially said that he was the charging officer for the first Accused, Apate and the witnessing officer for the second Accused, Navitalai. He denied that he was the witnessing officer for the first Accused. Later when the record of interview of the first Accused was shown to the witness, he agreed that he was the witnessing officer for the first Accused.
15. Cpl Ilaitia Drauna said that he was the investigating officer. He stated under cross examination that photos were taken of the crime scene. He further said that he preserved the crime scene by locking the exhibit room. However, under cross examination he admitted that although he said that he preserved the exhibit room until any evidence is collected, the window of the exhibit room was left open without louvre blades and grills.
    
16. I am of the view that the Prosecution witnesses were not consistent in their evidence. It should also be noted that the Prosecution witnesses not only contradicted each other but they gave unreliable evidence with regard to the alleged incident.
    
17. In this case one of the main contentions by the Defence was about the existence of allegedly stolen plants believed to be Marijuana. PC 6813 Timoci Waqabaca said that the last time he saw the Marijuana plants inside the exhibit room was on 12 January 2018. But under cross examination the witness admitted that he cannot prove that there were five Marijuana plants as he does not have the exhibit register with him.
    
18. Sgt 3541 Isikeli Rokodreu said that in other stations the articles in the exhibit room are noted down and he is not sure whether there was any exhibit register at Koro Police Station. He further said during cross examination that he never checked the exhibit register.
    
19. The investigating officer, Cpl 3752 Ilaitia Drauna said that he saw the five plants believed to be Marijuana on previous Monday. Under cross examination Cpl Ilaitia said that although the exhibits are entered in the exhibit register, he has no copy to submit to court to confirm that the plants were there at the exhibit room prior to the alleged break in. However, he went on to say that although the exhibit register is not available, he can confirm that the allegedly stolen items were in the exhibit room as there are entries in the Station diary. The witness confidently said during cross examination that the day Marijuana plants were brought to the station, it was entered in the Station diary. Accordingly, the witness was given the Station diary to confirm to the Court that the Marijuana plants were in fact brought to the Station. However, upon perusal of the Station diary the witness stated that it is not recorded in the Station diary. He further admitted that it cannot be confirmed that Marijuana plants were brought to the Station as it is not entered in the Station diary.
    
20. In this case the Defence challenged the existence of allegedly stolen items. Therefore, it is the duty of the Prosecution to prove beyond reasonable doubt that the allegedly stolen items in fact were there in the exhibit room. However, a reasonable doubt was created when the Investigating officer could not show that such items were actually brought into the Station. According to his own evidence if such items were brought in that should be recorded in the Station diary. But after carefully perusing the Station diary he confirmed that there is no such entry made. In that back drop a reasonable doubt was created by the Defence as to whether there were any Marijuana plants kept at the exhibit room prior to the alleged break in and whether they were stolen.
    
21. This Court held that the caution interviews of all three Accused person are admissible in evidence. However, the Court has to consider the truthfulness and probative value of the admissions in the caution interview statements to use them against the Accused persons as evidence in this case.
    
22. In Naicori v State [2017] FJCA 103; AAU0106.2013 (14 September 2017) Justice Rajasinghe noted that;

“In order to determine the truthfulness and the probative value of the contents of the caution interview, it is necessary to take into consideration all the evidence adduced in the hearing.”

23. The Prosecution did not adduce any credible evidence apart from tendering the caution interviews with regard to the alleged incident. The Prosecution witnesses gave contradictory evidence with regard to the damage caused to the window where the alleged entry was gained. Although it was said in evidence that pictures were taken at the crime scene no such pictures were submitted to corroborate the Prosecution evidence. Secondly, a reasonable doubt was created whether the allegedly stolen Marijuana plants were there at the exhibit room. In those circumstances when the evidence of the Prosecution is taken as whole it is my considered opinion that I cannot satisfy myself with regard to the truthfulness of the admissions in the caution interviews. Further I am not inclined to accept that the admissions in the caution interviews of the Accused persons are of any probative value.
    
24. In the circumstances I am of the view that the assessors do not seem to have followed the directions given at the summing up. For the foregoing reasons I cannot concur with the opinions of the assessors.
    
25. For the foregoing reasons I decide that the Prosecution failed to prove the offences against the Accused persons beyond reasonable doubt. As such I acquit the first, second and third Accused persons in respect of the first and second counts.
    

Rangajeeva Wimalasena
At Suva
20 November 2020

Solicitors
Office of the Director of Public Prosecutions for the State
Office of Legal Aid Commission for the 1^st and 2^nd Accused
Nilesh Sharma Lawyers for the third Accused (in absentia)