State v Kean [2011] FJMC 37; CRC664.2005 (18 February 2011)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 664/05

BETWEEN

THE STATE

AND

GUSTON FREDRICK KEAN

JUDGEMENT

1. The accused is charged with one count of escaping from lawful custody contrary to Section 138 of the Penal Code.
   
2. The statement of offence and the particulars of offence are as follows;
   

Statement of offence

Escaping from lawful custody; Contrary to Section 138 of the Penal Code.

Particulars of offence

Guston Fredrick Kean on the 21st day of October 2005 at Lautoka in the Western Division being in the lawful custody of Police Officer's and escaped from such lawful custody.

3. The accused was charged on the 07th November 2005. The case was taken up for hearing on the 22nd June 2010. The prosecution was conducted by a Police Prosecutor and the accused was unrepresented. The prosecution called only one witness and after the prosecution case, it was held that there is a case for the accused to reply. The accused gave evidence. Although the accused wanted to call other defence witnesses later he closed his case without calling them.
   
4. The Section 138 of the Penal Code read as follows;
   

"Any person who, being in lawful custody, escapes from such custody, is guilty of a misdemeanour."

5. The prosecution has to prove the following elements in this case;
   
   1. The date, time and place
      
   2. The identity of the accused
      
   100. The accused was in lawful custody
        
   4. The accused escaped form lawful custody
      
6. The prosecution called only one witness namely, Constable 708 Poasa. He gave evidence that on the 21st October 2005 he was in charge of escorting prisoners from Natabua. He said there were 4 officers including him and 8 prisoners including the accused of this case.
   
7. It should be noted at the very outset that the prosecution witness was not confident about the evidence he gave in courts. From the very beginning he contradicted his own evidence highlighting the lackadaisical approach towards their duties. He said there were three courts in session on that day and he cannot recall in which court the accused was required. He further said that he cannot recall what happened in the Magistrate's Court. He said the accused was in his custody and he was the officer in charge of the team.
   
8. In contrary to the position that he cannot recall any thing, the witness later said that the accused was locked in the cell in the down stairs and the accused's name was called by the orderly. He said then the accused was produced in Court No 1. He said the Court further remanded the accused. The witness further said;
   

" He was not taken back to the cell. He was kept in Court house with other remand prisoners and Police Officers. When the Court had a break we checked the prisoners. Then I found the accused person gone missing. We checked him around the building and searched for him. But couldn't found him."

9. The witness later said that he does not know how the accused escaped. He said the other prisoners were taken back to Natabua. It should be noted that the Court cannot be satisfied about the credibility of the only witness called by the prosecution. First he said he can not recall what happened in the Magistrate's Court. Later he said the accused was produced to Court. How ever it is surprising to hear, that he did not know how the accused escaped being the officer in charge of the team.
   
10. Be that as it may, in this case there was no dispute regarding the date, time and place of the alleged offence. Further the identity of the accused was also not in issue. The accused himself admitted these elements.
    
11. The only issues the court has to determine is whether the accused was in lawful custody and whether he escaped from such lawful custody.
    
12. Although it is clear that the accused was brought to court on the 21st October 2005 the accused contended that there was no case for him on that particular date. He challenged the evidence of the prosecution and said that neither his name was called that day nor his name was there on the cause list. The accused tendered the copy records of all his cases pending against him during that time. It appears that he was first produced to Court in all those four cases on the 07th October 2005. Later on the 14th October 2005 he had been further remanded till 28th October 2005. The position of the accused was that he did not have a case in between those two dates.
    
13. The prosecution did not take any attempt to establish that the accused had any cases on the 21st October 2005. Although the prosecution witness said that the name of the accused was called and he was further remanded on the 21st October 2005, there was no other evidence to corroborate this. At least the prosecution did not produce any production order or a remand committal warrant to prove that the accused remained in lawful custody. Instead the prosecution witness in answer to a question by the accused admitted that the accused was released from remand prison in the morning of the 21st October.
    
14. I am not ready to accept the evidence of the prosecution witness in this regard without any other evidence to show that the accused in fact was to be produced on the 21st October. In absence of proof of the fact that the accused was produced for a particular case, it appears that the accused had been brought to Court by mistake or for some other reason best known to the escorting officers.
    
15. The accused said that although he was brought to court his name was not called for any case. He said he told one escorting officer to check his name on the cause list. He said his name was not there on the list. He said he was there the whole morning and the officers left court with the other prisoners. He gave evidence in the following manner;
    

" I was in the Court the whole morning. The officers had left me there and taken up other remand prisoners back into custody. I remained in Court until the session was over. It was about 11.30 the Court was over. My name was not called nor my file was there in this Court. There was no sign of escorting officers when the Court was over. I came out. The Court was empty. The corridors were empty. So I walked home. I did not run. I did not hide. I did not evade Police. I did not escape. I freely walked home because there was no one. 9 days later I was arrested at my residence at Lot 65, Vunato Sub Division."

16. At this juncture the Court has to decide whether the accused was in lawful custody. It is clearly evident from the evidence of the prosecution witness that the escorting officer did not even know how the accused escaped. The prosecution did not adduce any evidence to prove exactly at what point of time the accused escaped. The prosecution witness did not explain as to why the accused was not kept at the cell if his cases were called. It should be noted that the evidence produced by the prosecution is very much vague on this issue. But the accused gave an explanation as to how he went home, creating a doubt in the prosecution case.
    
17. It appears from the copy records of the cases which were pending that the accused had been remanded in custody from 14/10/05 to 28/10/05. However the prosecution questioned the accused during the cross examination as to why he left the court if he was aware that he had been remanded till 28/10/05. The accused gave a reasonable explanation in the following manner;
    

" I was not aware. I got the information only when I got the copies of Court records."

18. Then the prosecution suggested that the accused is not a stranger to the system. It should be noted that the accused gave an acceptable explanation to that as well. He said he was a stranger to the system prior to this incident. Apparently this seems to be true as it appears from all his copy records that he was produced before a Court only on 07/10/05. By the time this incident took place he had been there in remand only for 3 weeks which I believe is not a sufficient time to call a person "not a stranger". Besides the prosecution did not tender any other evidence to show that he was not a stranger to the system.
    
19. Thus it appears the accused gave an explanation as to why he went home on that particular day. In the absence of clear evidence as to what happened to the accused after he was brought to court, the accused's version, that he was left by the escorting officers, clearly creates a doubt in the prosecution case. Thus he was able to create a doubt that he was not in lawful custody. In the above circumstances I decide that the prosecution failed to prove beyond reasonable doubt that the accused was in lawful custody.
    
20. In this backdrop I decline to accept that the accused escaped from lawful custody. Accordingly I acquit the accused from the offence he is charged with.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate

Lautoka

18.02.2011