State v Tokaduadua [2022] FJHC 128; HAC055.2020 (22 March 2022)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 55 of 2020

STATE

vs

ERONI KOROVOU TOKADUADUA

Counsels: Ms. Kantharia B - for Prosecution

Mr. Varinava J - for Respondent

Date of Hearing: 14 – 17 March

Date of Judgment: 22 March 2022

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JUDGEMENT

1. The accused in this matter, ERONI KOROVOU TOKADUADUA was charged with one count of Attempted Aggravateglaryglary by the DirectoPublicublic Prosecutions, as below:
   

Count One

Statement of Offence

Attempted Aggravated Burglary:lary: contrary to Section 44 and 313 (1) (a) of Crimes Act of 2009.

Particulars of Offence

ERONI KOROVOU TOKADUADUA on 13^th day of January 2020, at Suva in the Central Division, in the company of others attempted to enter into the premises of Satya Nand as trespasses with intent to commit theft therein.

2. Accused pleaded not guilty to the charge on the 17^th July 2020 and the accused had been granted bail. The trial to this matter commenced on 14/03/2022 and concluded on 17/03/2022.
   

Nature of the Offence

3. Aggravated Burglary is committed when a person commits Burglary in the company e or more otre other persons. Thence of BurglBurglary&#16defineefined in Section 312(1) of the Crimes Act 2009 as, “A n coman inble offe offence (which is triable summarily) if ) if he or she enters or remains in a buil building as a trespasser, with intent to commit theft of a particular item of property in the building.”
   
4. In this matter, the accused is charged with attempting to commit Aggravated Burglary. Section 44 of the Crimes Act of 2009 states, “a person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed”. However, according to Section 44 (2), for the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence, which is a matter of fact. Further, according to Section 44 (3), intention and knowledge are fault elements in relation to each physical element of the offence attempted.
   

Elements of the Offence and Burden of Proof

5. To take home a conviction in this matter, the prosecution must prove the following elements:

(i) the accused

(ii) attempted to enter or remain in the building

(iii) as a trespasser

(iv) with intent to commit theft

6. The Court is mindful that in establishing the above elements, the burden is on the prosecution to prove them beyond reasonable doubt. Each element of the charge must be proved, but not the veracity of every fact that was brought to Court by the prosecution in the trial. This burden never changes and never shifts to the Accused.

Prosecution Case

7. To establish and prove beyond reasonable doubt the above elements of the offence in this matter, the prosecution called 06 witnesses, out of which 03 were lay witnesses and 03 were official witnesses. The evidence of these witnesses were as below:
   

1. Arnold Chand, 75 Augustus Street, Suva: According to him, he is a student and have been living in his present residence for his whole life. The building has 6 flats with 2 flats on each level. This property belongs to PW1, who lives in the ground floor. He lives on the top floor. On 13/01/20 there was an attempted burglary in his block of flats. On that day, he woke up at 5 am and had gone to the balcony. Had seen 3 Fijian boys trying to get into their compound by pushing the fence which was 2 meter high. They had pushed 1 /2 a meter and entered the compound and switched of the lights. Sun had been rising at that time so it had been visible. He had seen them in the compound walking towards the common garage. Though he couldn’t see them but had heard them cutting metal. A garage had blocked his view to PW1’s flat. When they were cutting the gate it had made a big noise. He has called the police force, subsequently, called PW1 and informed the incident and called the crime stoppers. Cutting of gate had continued until police and PW1 arrived. PW1 had opened the electronic gate. Then the boys had gone towards the electronic gate. Police couldn’t arrest them then and there. This incident has taken about 30 minutes. When the police came he has gone down. He had seen half of the gate cut. If the police got 2 minutes late, they would have gone into the property. He couldn’t recognize the boys, since they were wearing hats.
   
2. Satya Nand, 75 Augustus Street, Suva: According to him, he has been residing in the property for 32 years and he owns the flat in partnership. The property has 3 floors he occupies the bottom flat. Other flats are rented. On 13/01/2020, he has left at 5 am to work. At 5. 30 am, he has received a call from one of his tenants, Arnold, who lives in the 3^rd floor. Arnold had told him that some people have walked into the compound and they are trying to walk into his flat. Then he has gone straight back to his flat. He says that he didn’t notice anyone when he went to work. His house has 2 doors, main door and a grill, he locked both doors and had closed the remote control gate. When he came to the flat he had seen the police van coming too. When he opened the gate with the remote, 3 people had run out. Police had run after them, but not able to catch them on the spot. Police had mentioned they were known. He had noticed that the grill was uplifted. The door knob was not working. There was no entry to the house. Estimated damage was $ 1500.
   
3. Dannelle Korovou, 191, Veito Road, Suva: On 13/01/2020, police had come to their compound around 7 am. After her husband went and spoke to them in the car, she had been asked to call her son. She has gone to his room but he had not been there. There had been maid’s courters in the house, she had checked there as well, he had not been there. She is the mother of the accused, she had seen her son in the house the night before, accused has had dinner with her on Sunday night. A day before the accused was arrested, he had come home to get some documents for another matter pending. When she asked the accused where he was, he had not told her. She had been worried since the accused was not home for 13 days. Accused had been arrested very early on the 27^th when he was at home, but she had not known the presence of the accused at home on that day.
   
4. S/CPL Suli v) D/A/CPL 4952 McDonald vi) WPC6301 Cite
   

These are the police officers who reported to the scene of the crime on receiving an RT when on mobile duty on 13/01/2020.

According to witness Suli, he had been on mobile duty with PC McDonald, WPC Cite and PC Victor when they received the RT message at 5.40 am of a breaking in happening at 75 Augustus Street. When they arrived at that location, he had seen the gate open and 3 iTaukei boys coming out of the gate casually. He had recognized one boy and when he called his name ‘Eroni’ the boys had started running and offices have given chase without any success. Thereafter, since he knew where Eroni was living, the police party had gone to Eroni’s residence in Veiuto. However, the prosecution failed to lead evidence of this witness to recognise Eroni in the dock. As a result, the evidence of this witness for the recognition of the accused is not established. Further, as a police officer, the evidence of this witness was not led regarding the observation to the damage to the property in issue.

In the evidence of witness D/A/CPL McDonald, while confirming the evidence of CPL Suli, he stated that on arriving at 75 Augustus Street, he noticed 3 iTaukei boys at the property and he approached them and questioned them what they were doing inside the compound, standing 2-3 feet away from them. And when CPL Suli called the name Eroni Tokaduadua, they ran away. According to him, he had chased after Eroni, whom he knew through work without any success in apprehending. However, prosecution failed to lead his evidence to recognise the accused on the dock to establish that is Eroni Tokaduadua. This witness had then gone back to the scene of crime, where he had found a carry bag. This bag has contained break-in equipment like a chisel, screw-driver and a pinch bar. It had also contained the driving license of Manoa Tumate. Mr. Satya Nand had showed him the damage to the grill of his flat and the damage to the main door knob of his flat by the attempted breaking-in.

The last prosecution witness was WPC 6301 Cite Longquat, who stood out as the principal prosecution witness who recognized the accused at the scene of the crime. While confirming the evidence of the other two police witnesses, this witness recognizes the accused and Manoa Tumate walking towards them at the scene of the crime. She mentioned that Eroni Tokaduadua and she had been friends on Facebook for a while and that she attempted to start a conversation with Eroni Tokaduadua after 13/01/2020 to identify his whereabouts to arrest him. She further mentioned that she knew Manoa Tumate, since Eroni and Manoa used to visit the same Chinese shop to which she used to go when she was living in Nasova Police Barracks. This witness identified the accused in the dock as Eroni Tokaduadua whom she knew before the incident in issue and whom she recognized at the scene of the crime. In cross examination, defense counsel attempted to discredit this witness on the premise that she did not know Eroni Tokaduadua before this incident and she only attempted to become friends after the incident in issue. Court witnessed the manner this young police officer withstood defense allegations. In this regard, the demeanor and deportment of this witness was very noteworthy and the Court has no reason to doubt her evidence.

8. It needs to be mentioned that there is no specific identification of the accused in this matter to apply Turnbull guidelines. In this matter, it is a recognition by the witnesses of a known person as the accused.
   
9. The prosecution closed its case with this evidence. In proving the elements of the offence, Court was satisfied that the prosecution proved the identity of the accused through the evidence of WPC 6301 Cite Longquat, proved that the accused attempted to enter the building as a trespasser with intent to commit theft through the evidence of Arnold Chand, Satya Nand, together with the observations of CPL 4952 McDonald. With the strength of this evidence, Court called the defense from the accused.
   

Defence Case

10. For this end, the accused gave evidence under oath and called two witnesses, as below:
    1. Eroni Tokaduadua, 199 Veiuto Road, Nasese: He mentioned that he was residing at the current address on 12/01/2020 with his mother, father, grandfather and his sister. That he went to sleep at 9 p.m. on the 12^th night and got up at 4.30 a.m. on the 13^th to go for training at Nasese seawall. After training till about 6 a.m. he went home and went to the cassava patch, and saw police come to his house.

Disappearance of the Accused after the alleged offence

In cross-examination, this witness admitted that he went missing, even from his family, from the 13^th to the 27^th. In his opinion, the reason for this absence was due to the fact that he was afraid that police would assault him, since he was assaulted by the police a week before the 13^th and the police wanted to charge him for another case. When the prosecution questioned him whether he complained of his fear to this Court, he admitted that he didn’t. He mentioned that he complained to several other authorities without any success, but did not produce any evidence of complaining to authorities.

Regarding this claim of the witness (accused), this Court notices that he had been represented by a private counsel for the bail hearing. Therefore, if he complained to his legal counsel of such threats and injuries sustained due to assault, the legal counsel should have brought those matters to the attention of this Court. Also, police assaults are not welcomed in our community, there was always the opportunity to complain to the Human Rights Commission. On the contrary, when one was identified at the scene of the crime by police officers, it is human nature that one would attempt to avoid interactions with anybody, not even family members. Therefore, the reasons provided by the accused for his disappearance after the alleged offence is without credit.

Alibi of Training

In this matter, the accused claims that he was doing training at Nasese seawall during the time the alleged offence was committed. This is the first instance that he came up with this position in the investigations and the subsequent trial. He had the ample opportunity to instruct the relevant witnesses to give statements to the Police earlier of being with him on the day of the crime. Court finds that this position is riddled with many illogical stances. Firstly, the accused had dinner the previous night with his mother and went to sleep at 9 p.m. While having dinner, he didn’t bother to inform the mother that he has an early start the next morning, attending training. When police goes in search of him the next morning, his mother is surprised that he is not in the house after searching every corner. Therefore, the accused had disappeared from the family home, even without informing the mother, at dawn. Thereafter, he avoids coming home for 13 days. Ironically, though the accused claims that he was training at the time of the alleged crime, a police officer who knew him before this date and had interactions on Facebook recognised him at the crime scene at that time.

Though the defence of the accused is this alibi, the main police witness who identified the accused at the scene of the crime and other police officers who visited the crime scene were not challenged by the defence by submitting this alibi to them. On the above analysis, this Court refuses to accept the alibi of the accused.

2. Laloata Togoloa, Blue Kky Air-Conditioning: On the 13^th of January 2020, I woke up at 4 a.m. to go for training at Nasese Seawall. The training is from 5 a.m. to 6 a.m. On the 13^th January Myself, Eroni, Samisoni and Pita. Eroni’s full name is Eroni Korovou. After 6 am, I went back home.

This witness does not recognise the accused in the dock as the Eroni he is referring to. As a result, there is no confirmation that the Eroni he is referring to is the Eroni in the dock. Though he mentioned that Eroni’s full name is Eroni Korovou, the accused in this matter is Eroni Korovou Tokaduadua. In view of the above explained position in relation to the defence of alibi of the accused, this Court is of the view that Volleyball training has only been brought in by the defence as a fig leaf through witnesses well known to the accused. Also, in the absence of clear identification of the accused by this witness in Court, this Court rejects the evidence of this witness in relation to the defence of alibi.

3. Manoa Tumate Setinaviti, Turners and Grower Co: According to this witness, on the 13^th of January 2020 after 5 a.m., he had gone to Augustus Street with Tevita Bale and Eroni Tamanivalu. In their attempt to break-in, they had only managed to damage the door. They have not managed to take anything from the house, since they couldn’t break open the door. At that point, police had come and they had run away. He had run to Raiwai, police had come and arrested him. When the police took him, they had assaulted him and asked him for the names of other people for the break – in. He had mentioned Eroni Tamanivalu and Tevita Bale, but the police had assaulted him saying that it was Eroni Korovou. To put an end to the police assault, he had agreed that it was Eroni Korovou.

Though this witness was charged for this offence in the Magistrates Court separately, he had not mentioned the police assault on him that led to the implication of an innocent person to the Learned Magistrate, as charged in this matter. This is the first instance this witness mentions the involvement of another Eroni in this offence, though he had the ample opportunity earlier to inform the Magistrates Court or the police and rectify. Further, prosecution witness WPC 6301 Cite Longquat recognised this witness together with the accused at the scene of the crime, since she knew them from Nasova.

In relation to the testimony of this witness, this Court intends to apply the principle of “Divisibility of Credibility” as pronounced by the Fiji Supreme Court in the case of Chandra v State [2015] FJSC 32; CAV21.2015 (10 December 2015). In this regard Justice P. Dep held as below:

“In the past, the courts applied the maxim 'Falses in Uno Falses in Omnibus' - meaning "He who speaks falsely in one point will speak falsely upon all" - to a witness who gives false evidence. The present trend is instead of rejecting the totality of evidence, to act on that part of evidence which is true and reliable. This approach is known as y.........the assessors should be informed that they are free to act on his eviderovided he had given a satisfactory explanation or can act on parts of evidence corroborateorated by independent evidence.”

Though this Court intends to reject the evidence of Manoa Tumate that attempted to falsely exculpate the accused with the offence in issue, Court is willing to accept his testimony with regard to his commission of this alleged offence with two others, since this position was corroborated by the prosecution witness Arnold and the case filed against him in the Magistrate’s Court. According to the prosecution, one of the other two who participated in this attempted burglary was this accused.

11. In conclusion, in view of the reasons elaborated above, this Court finds that the Prosecution has successfully established that ERONI KOROVOU TOKADUADUA committed Attempted Aggravated Burglary: contrary to Section 44 and Section 313 (1) (a) of Crimes Act of 2009 as charged.
    

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Hon. Justice Dr. Thushara Kumarage

At Suva
22 March 2022

cc: Office of the Director of Public Prosecutions
Office of the Legal Aid Commission