IN THE MAGISTRATE’S COURT OF NASINU

CRIMINAL CASE NO.376/2009

STATE

VS

YUNUS KOYA

Sergeant Volavola for the state 
The accused present and appeared in person

Judgement

[1] The accused is charged with the offence of Damaging Property. The charge read as follows;

CHARGE:

Statement of Offence [a]

[2] DAMAGING PROPERTY: Contrary to Section 324 of the Penal Code Act 17

Particulars of Offence [b]

[3] YUNUS KOYA s/o MOHAMMED, on the 15th day of January, 2009, at Nasinu, in the Central Division, willfully and unlawfully damaged the rear windscreen of vehicle registration number DW 536, valued at $500.00 the property of NAJENDRA SINGH s/o GOPAL SINGH.

Summary of evidence

[4] At the trial, prosecution called following witnesses.

PW 1-Lajendra Prasad Singh; He said he can remember on 15th January 2009. At about 7 Pm one person called and asked about Alternator. He said that person introduced him as Yunus Ali and he is the accused.( pointed out) PW said he had spare Alternators and the accused bought one Alternator from him for $80. Then the accused brought back that Alternator saying it did not fit. Then Pw1 had another Alternator. On request of the accused the PW1 modified second Alternator by a drill and he then made alternator’s hole bigger. Then the accused took the modified Alternator. Later the accused phoned and told that wire of that Alternator did not fit and he wanted to return it. But PW1 did not agree since the second Alternator had been modified and nobody is going to buy it. Then the accused came and tried to return the alternator which PW1 refused it for same reason. At that time the accused looked angry and he said “I will do something”. The accused came by taxi with small boy. PW1 refused to accept and return the money. He went inside for his prayers. PW1 normally parks his car in front of the road and house is very close to the road. PW1 said he then heard a big sound when he came inside the house. Then PW1 came outside and saw his car’s back windscreen was broken. His wife told him that the accused threw Alternator to the back windscreen. He said that his wife was standing at the door away and she saw that the accused threw the Alternator to the windscreen. The witness positively identified the accused. 

[5] In cross examination witness said that accused gave false name as Yunus Ali. He further said he gave the accused’s phone number and car number to the police and then police traced the accused later. The Accused suggested that he never did this crime it was mistaken identity. The accused further suggested that he was in Suva at that time. The witness refused these suggestions and told the accused is the culprit and his wife also identified him positively. The accused further said it was night time and he has been wrongly identified. But witness said he could see the accused well since it occurred in January long day light prevailed, he identified the accused surely and correctly. 

[6] In re examination witness clearly said he normally starts prayers at 7pm and the accused came twice before that. He told that the accused spoke to him 30 minutes face to face in first time. Then second time it was less than 15 minutes he talked to the accused. Therefore he could positively identify the accused. 

[7] PW 2-Sunil Lata; The witness said that she is the wife of PW1. On 15-01-2009, the accused came one or twice to meet her husband. He was not at the home. Later in the evening the accused came and met her husband. She said there was an agreement between the accused and her husband over a car part. They talked over ½ hour and she managed to see the accused. She said they were speaking loudly and she thought something might happen. So, she closely observed. Then her husband came inside the house. She said that their car was parked on the road in front of the house at that time. While her husband came inside the man stayed outside holding the car part. She said the man threw the car part on their car. It was damaged. After throwing he threatened them that he will burn their house then the accused went. The witness identified the accused and pointed out him as the culprit in open court. 

[8] In cross examination, she said that her house is close to the main gate. The accused suggested that he had been wrongly identifies by them as the culprit, but witness said that she positively identified the accused. She said “It was you” 

[9] PW3- W.P.C. 3265 Vilaili Merama; She said that she has been serving 6 years in Fiji Police force. On 15-01-2009 at about 7pm she said that she received a complaint regarding damaging property. Then PW1 and 2 statements were recorded and they probed about incident and the accused. The complainant gave the LTA registration number and they were able to trace the accused. She said they phoned the accused but it was diverted. Their operation team went couple of time to search the accused but he evaded the police. She said she was a member of the operation team. She then identified the Alternator which was used for the offence. It was marked as EX-1

[10] In cross examination the witness said that finger prints were not taken from the Alternator. The accused suggested that phone number 911656 is registered in the name of Sabra Bibi. Witness is unaware about it. 

[11] PW-4 Sgt Anil Chandra (Retired Police Officer); He said he served 36 ½ years in Fiji Police Force and retired on 02-08-2009. His last station was Nakasi Police station. On 16-01-2009 the accused was brought to the police station. He was with his wife. Then the complainant came and he positively identified the accused as the person who damaged his property on that day. Then he said he interviewed the accused and it was read over in open court. It was marked as EX-2. 

[12] No cross examination was done on this witness and therefore there were no re examinations. 

[13] PW5-Coporal 4046 Rishkesh Prasad; the witness said he has been working for Fiji Police for last three years. On 16-01-2009 he was attached to the Nakasi Police Station and was on duty. He said he charged the accused. Charge statement was marked as EX-3. 

[14] No cross examinations and no re examinations were done on this witness. 

[15] After that prosecution closed their case. Since there was a case to answer the accused was explained and given his rights to call the defence. Then the accused did not give any evidence, he remained silence. But he called one witness before this court.

[16] DW1- Ronesh Prakash; this witness said that he met the accused at about 6.30pm at free Market –Vatuwaqa Then he asked that “is he going to Nausori”? The accused said that he is going to some other place. 

[17] In cross examination the witness said that He did not know the exact time and exact date. He said he only knew that he tried to get in to the accused’s Taxi. But the witness does not know from where the accused came or what had the accused previously done. 

[18] Then the accused closed his case.

The Law

[19] DAMAGING PROPERTY

324.-(1) Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanour, and he is liable, if no other punishment is provided, to imprisonment for two years.

[20] Elements of the charge of damaging property are (1) any person (2) wilfully and unlawfully (3) destroys or damages (4) any property. 

[21] In Woolmington v DPP (1935) AC 462 held that 'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law". Therefore the burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. If the evidence creates any doubt, should be given to the accused.

[22] In State v Seniloli [2004] FJHC 48; HAC0028.2003S (5 August 2004) Her Ladyship Justice Nazhat Shameem told to assessors (summing up);

“The standard of proof in a criminal case is one of proof beyond reasonable doubt. This means that you must be satisfied so that you feel sure of the guilt of the accused persons before you express an opinion that they are guilty. If you have any reasonable doubt as to whether the accused persons committed the offence charged against each of them on the Information, then it is your duty to express an opinion that the accused are not guilty. It is only if you are satisfied so that you feel sure of their guilt that you must express an opinion that they are guilty. One of the defence counsel asked you if you had the slightest doubt about the accused’s guilt. That is not the correct test. The correct test is whether you have any reasonable doubt about the guilt of the accused.”

[23] As Lord Devlin mentioned in the Privy Council in Jayasena v. The Queen (1970 AC 618) reported in 72 New Law Reports 313 (Sri Lanka), 

“A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

[24] Therefore, if the court or prudent man thinks the accused is guilty for offence in considering all the facts placed before them without any reasonable doubt, then charge has been proved beyond reasonable doubt and the accused should be convicted as per charged. If the court or prudent man thinks that the accused is not guilty to the offence in considering all the facts placed before them, then the charge has not been proved beyond reasonable doubt. If evidence creates some reasonable doubt in mind of court or prudent man, the benefit of doubt must be given to accused and accused should be acquitted and discharged from the proceedings. This is the golden rule of criminal law and “one who says the fact exists should prove that fact no burden lies on one who denies it- as legal maxim “Ex qui affirmat non ei qui negat incumbit probatio”. On the other hand court should consider what actually happened and not what adduced by witnesses- as legal maxim “In traditionibus scruptorum non quod dictum est sed qudogestum est inspicitur” have to be noted. 

Analysis of the evidence

[25] In line with the above guiding principles, now I evaluate the evidence adduced before me. The PW1 and 2 positively identified that the accused. But the accused disputed the identification he said that he is wrongly identified and he was in Suva at the time of incident. Therefore the accused claimed Alibi and mistaken of identity. 

[26] In Carter v The State [1990] FJHC 66; Haa0071j.1990s (9 July 1990) Justice D. V. Fatiaki Interprets 

 “Evidence in support of an " alibi " means evidence tending to show that by reason of the presence of the accused at a particular place or in a particular area at a particular time he was not, or was unlikely to have been at the place where the offence is alleged to have been committed at the time of its alleged commission.”

[27] It should be noted if the accused raises defence of Alibi. He should comply certain formalities of the law. Section 125(1) and (2) of the Criminal Procedure Decree 2009 reads as follows:

"...125.—(1) On a trial before any court the accused person shall not, without the leave of the court, adduce evidence in support of an alibi  unless the accused person has given notice in accordance with this section.

(2) A notice under this section shall be given—

(a) within 21 days of an order being made for transfer of the matter to the High Court (if such an order is made); or

(b) in writing to the prosecution, complainant and the court at least 21 days before the date set for the trial of the matter, in any other case..."

[28] In this matter that the accused has not complied above provisions. However for the interest of justice, I consider his Alibi evidence. The onus is to prove Alibi relies on the accused. 

[29] In R. v. Johnson [1961] 3 All E.R. 969 at 1479 (E), English Court held “It may be that the true view of an alibi is the same as that of self-defence or provocation”

[30] In Wood (1968) 52 Cr. App. R. 74 (Parker L.CJ, Edmund Davies L.J and Widgery J), the court said at 78:

“It is said, as I understand it, in the first instance, that it is a rule of law that when an alibi  is raised a particular direction should be given to the jury in regard to the burden of proof, and that in every case when an alibi  is raised the judge should tell the jury, quite apart from the general direction on burden and standard of proof, that it is for the prosecution to negative the alibi . In the opinion of this Court, there is no such general rule of law. Quite clearly if there is any danger of the jury thinking that an alibi , because it is called a defence, raises some burden on the defence to establish it, then clearly it is the duty of the judge to give a specific direction to the jury in regard to how they should approach the alibi .”

[31] The accused statement to the Police was marked as EX-2. In that statement the accused just denied the allegation saying he does not know anything. He has not mentioned his Alibi clearly in his police statement. But he called a witness that the accused was in Free Market, Vatuwaqa on particular time. This version could have mentioned in his police statement, which the accused failed to do so. 

[32] In Ryan (1964) 50 Cr. App. R. 144 at 148 and Hoare [1966] 50 Cr. App. R. 166 Court held 

“A trial judge should not infer guilt because the accused remained silent on those earlier occasions. The accused has a right of silence, but mindful of that, a trial judge is entitled to say that the lateness of the alibi  reduces its weight As a matter of law he has a right of silence on both occasions but as a matter of fact and here we are dealing with facts its belatedness reduces its weight’

[33] In this case the accused failed to clear his defence of Alibi to the police or he did not take proper steps under the law to adduce them. 

[34] I turn now to evaluate the alibi evidence before me. Accused cross examined the witness that he was not the real culprit, but did not suggest that where he was. He did not give any evidence and remained silence at the trial. But he called single witness one Ronesh Prakash but he said one evening he met the accused at about ^.30pm but he cannot remember exact date. This is a very weak evidence of Alibi and Burden is to prove Alibi lies on the accused. In his police statement the accused at least not mentioned that he met the Ronesh Prakash at that evening. Hence the accused took defence of Alibi lately. It was a belated alibi not revealed on any earlier occasion which reduces its weight.

[35] In Wood (1968) 52 Cr. App. R. 74 Held that 

“ defence of alibi  can only arise if there is some evidence (as opposed to speculation) in support thereof; as a defence it puts every matter in issue and if the evidence creates a reasonable doubt in the mind of the trial judge the accused should be acquitted”

[36] In this case the defence of Alibi did not create any doubt of court’s mind whether the accused elsewhere while alleged offence of committed. Moreover the Alibi was not particular and ambiguous. 

[37] If the Alibi was coherent the state has to provide evidence in rebuttal. This was enunciated in Chan Kau v The Queen [1955] A.C. 206 at 211.

“Even under the common law if, but only if, the evidence supports the possible existence of one of the “excusatory defences then the Crown must negative such defence” 

[38] The rule is an alibi given in evidence and found to be false, may, depending on the circumstances, amount to corroboration on a charge. This was clearly held in R. v Knight [1966] 1 All E.R. 647 and .R. v. Lucas (Ruth) [1981] 1 Q.B. 720. In this matter the accused suggested that LTA motor number and Phone number are not belonging to him and belonging to some other ones. The accused has evaded arresting as he left the place for sometimes. He has not given exact Alibi to the police and the court. These events prove that accused's Alibi is false and it is corroborated the story of prosecution. 

[39] Now I turn to resolve the question of mistaken identity. This case basically related to visual identification. 

[40] In R v Turnbull  (1977) Q.B.224, [1976] 3 WLR 445,(1977) 65 Cr. App. R. 242,LORD WIDGERY C.J. articulated special guidance in visual identification. 

a] "whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, judge should warn the jury or the special need for caution before convicting the accused in reliance on the correctness of the identification"

b] " the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made". Then following questions need to be considered.

i. How long did the witness have the accused under observation?

 ii. At what distance?

iii. In what light?

iv. Was the observation impeded in any way as for example by passing traffic or a press of people?

v. Had the witness ever seen the accused before?

vi. How often?

vii. If only occasionally, had he any special reason for remembering the accused?

viii. How long elapsed between the original observation and the subsequent identification to the police?

ix. Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

c] "He (Judge) should remind the jury of any specific weaknesses which had appeared in the identification evidence"

d] "Recognition may be more reliable than identification of a stranger"

e] "if the quality is good and remains good at the close of the accused's case, the danger of a mistaken identification is lessened, but the poorer the quality, the greater the danger".

[41] According to PW1, PW2 and police investigations, it is crystal clear that elements of this charge have been proved. But did PW1 and 2 identify the accused? In applying above principle, I consider that the evidence placed before me. 

i.How long did the witness/es have the accused under observation? About 30 minutes

ii. At what distance? Face to face 

iii. In what light? Day light (This was occurred in January 2009. In this issue, court can take judicial notice that month of January in Fiji has long day light times) 

iv. Was the observation impeded in any way as for example by passing traffic or a press of people? No impediments to the PWs. They were face to face talking. 

v. Had the witness ever seen the accused before? No

vi. How often? Not applicable 

vii. If only occasionally, had he any special reason for remembering the accused? Not applicable

viii. How long elapsed between the original observation and the subsequent identification to the police? According to the police evidence he was brought to the police station next date.

ix. Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? PWs positively identified the accused at the police station and the court. 

[42] In R v Keeble [1983] Crim LR 737, the trial judge had told the jury to be aware of the risk of mistaken identification and to evaluate it, and that the risk would be high where the sighting had only been a fleeting glance, but that in every case it was a matter of degree. But this case the identification is not fleeting type. The accused spoke to the PW1 and they modified the Alternator. PW1 has ample time to identifying the accused. PW2 saw the accused and observed his behaviour. The false denial and Alibi of the accused will corroborate prosecution version. In the light of above legal principles I accept the prosecution's evidence and reject the accused's evidence. 

Conclusion

[43] Further, in this backdrop I hold the prosecution has discharged its burden of proof beyond reasonable doubt against the accused. 

[44] I convict the accused as charged.

[45] 28 days to appeal

On 12th April 2011, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate