State v Kotobalavu [2011] FJMC 72; CRC 1683.2008 (21 June 2011)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 1683/2008

STATE

V

TUIMOALA KOTOBALAVU

For Prosecution: - Sgt. Feroz,
Accused: - In person.

JUDGMENT

1. The accused was charged with the two counts of offence of "Damaging Property" contrary to section 324 (1) of the Penal Code as first count and " Disorderly Conduct in a Police Station" contrary to section 47 of the Police Act.
   
2. The particulars of the 1st count are that "TUIMOALO KOTOBALAVU on the 29th day of August 2008 at Suva in the Central Division willfully and unlawfully damaged a rear left door glass of vehicle registration number DT 877 valued at $ 200, the property of Vasiti Fuli".
   
3. The particulars of the 2nd count are that "TUIMOALO KOTOBALAVU' on the 29th day of August 2008 at Suva in the Central Division conducted himself in a disorderly manner in Totogo Police Station Charge Room to which public have access".
   
4. Accused pleaded not guilty for the both counts of Damaging Property and Disorderly Conduct in a Police Station, wherefore, the case was set down for hearing. During the hearing the Prosecution called 6 witnesses and tendered 2 prosecution exhibits. The accused gave evidence on oaths and did not call witnesses for the defence. At the conclusion of the hearing, both parties opted not to tender their final submissions and relied on the evidence led by them. Upon careful perusal of the evidence adduced by both prosecution and the defense, I now proceed to pronounce the judgment in this case as follows.
   
tyle='text-indenindent:0pt; margin-top:0pt; margin-bottom:0pt;' value='5' value="5">In view of the general rule in law of Evidethe onus of proof the charge beyond reasonable doubts against the accused is borne by the pthe prosecution. There is no onus on ccused used at any stage to prove his innocence or to prove anything else.

6. Section 324 (1) of the Crime Decree reads as "Any pery 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".
   
7. Section 47 of the Police Act stipulates that " Any person who, in any police station, police office or cell, or in any part of a police compound to which the public have access, is guilty of any riotous, indecent, disorderly or insulting behaviour shall be guilty of an offence and liable to imprisonment for a period not exceeding three months".
   
8. The main elements of the offence of Damaging Property, are
   
   1. The accused,
      
   2. Willfully and unlawfully,
   3. Damage or destroy,
      
9. Upon considering the main elements and the definitions of the offences of damaging property and Disorderly conduct in a Police Station, I now briefly review the evidences adduced by both the prosecution and the defense.
   
10. The brief summary of two alleged charges against the accused is that he is alleged of smashe the rear left door glass of the vehicle registration No DT 877 when it was park at the opposite side of the Defence Club. Later on that night he was arrested by the Police and taken to the Totogo Police Station where he is alleged that he behaved in disorderly manner.
    
11. The first prosecution witness Mrs. Vasiti Fuli is the complainant of this case. In her evidence she stated that she went into the Defence Club to attend a gathering after securely parked her car registration No DT 877 at the opposite side of the Defence club. While she was in the gathering, she was informed by PW2 that someone had smashed her car. In her evidence she specifically stated that she did not see who smashed her car as all the material time of this alleged incident she was inside the defence club.
    
12. The second prosecution witness is Mrs. Adi Mitiniti Dreunamisimisi. She is the main witness of this alleged crime as she witnessed the accused person smashed the rear left door glass of the said vehicle on that night. In her evidence she stated that she observed a person who is slim, fair complexion in a three quarter jeans and a white T shirt was peeping into the cars which were parked at the opposite side of the defence club when she came out from the Defence Club to answer a phone call on her mobile phone. Then she heard a sound of a window breaking and saw that person who was peeping into the car smashed the window of the car of her aunt who is the complainant of this matter which was parked opposite the defence club. She further stated that upon hearing and seeing that act she yelled at him to stop him causing further damages. Then she saw that he walked away from the scene of the incident.
    
13. The third prosecution witness is the security officer of the Hotel Southern Cross who was on duty on that night and heard the yelling of PW2. He testified that he saw the person who smashed the car window was walking away from the scene and identified and recognized the person who smashed the car window as he has seen him several times before and known to him. He further stated that he identified the accused as he is known to him by his nick name of "white Shark".
    
14. The fourth prosecution witness is the arresting officer who stated in his evidence that on the particular night he saw the accused was walking on the corner of the Gordon Street and he positively identified and recognized the accused as he is a regular visitor to the Totogo Police station when PW4 was attached to the Photo unite of the police. He further stated that subsequent to his meeting with the accused at the Gordon Street he was instructed by SC Maciu to arrest the accused for an allege breaking. Then on that instruction he arrested the accused later on that night near the Sukuna Park.
    
15. Fifth prosecution witness IP Levi Seduadua was on duty on the night of 29th of August 2008 at the Totogo Police station and received a report of car breaking. He then informed all officers on patrol on that day to look into this matter and arrest the accused. He further stated that he saw the accused was brought to the police station on that night and he was very drunk. According to IP Levi the accused was swearing at police officers in the police station and he was warned 4 times by IP Levi. Since the accused kept on behaving in disorderly manner IP Levi arrest the accused for the offense of disorderly conduct in a police station.
    
16. Sixth prosecution witness PC Tomas is the interviewing officer of the accused.
    
17. At the conclusion of the prosecution case, the accused gave evidence on oath but did not call any witness for the defence.
    
18. The accused stated in his evidence that he did not know anything of this incident and only he can recall that he was drunk and beaten up at the police station.
    
19. The burden of proof of the accused person's guilt beyond reasonable doubts lies with the prosecution. It was held in Woolmington v DPP (1935) AC 462), 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". Where the burden of proof, remains on the prosecution throughout the trial, in that circumstance, the accused need only to raise sufficient evidence to cast reasonable doubt on the issue". ("Andrews & Hirst on Evidence" 4th Edition, pg 59).
    
20. Lord Goddard CJ in R v Summers (36, Cr. App R. 14 at 15 CCA) held that "Jury before they convict, they must be satisfied so that they are sure of the guilt of the accused". furthermore, it was held in " R v Bentley ( 2001) 1 Cr App R 21" that on reviewing all the evidence, if they were unsure or left in any reasonable doubt as to the accused's guilt, that doubt must be resolved in the accused's favour".
    
21. Bearing in mind the aforementioned legal precedents on the standard of proof, I now analysis the evidence of the prosecution and the defense.
    
22. Upon careful perusal of the evidence adduced by both parties I infer that this instance case against the accused depends mainly on the correctness of identification of the accused.
    
23. It was held in R v Turnbull (1977) Q.B.224, " the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made.
    
    1. How long did the witness have the accused under observation?
       
    2. At what distance?
       
    3. In what light?
       
    4. Was the observation impeded in any way as for example by passing traffic or a press of people?
       
    5. Had the witness ever seen the accused before?
       
    6. How often?
       
    7. If only occasionally, had he any special reason for remembering the accused?
       
    8. How long elapsed between the original observation and the subsequent identification to the police?
       
    9. 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?
       
24. In State v Raymond Johnson, (Crim, HAC120 of 2008), Gounder J held in his summing up to the assessors that " In assessing the identification evidence, you must take such matters into account:
    
    • (1) Whether the witness has known the accused before?
      
    • (2) For how long did the witness have the accused under observation and from what distance? Was it more than a fleeting glance?
      
    • (3) Did the witness have any special reason to remember?
      
    • (4) In what light was the observation made?
      
    • (5) Whether there was any obstacle to obstruct the view
      
25. In view of the evidence given by the PW2, she observed a slim, fair complexion man in a three quarter jeans and a white T shirt was peeping into the cars which were parked at the opposite side of the defence club. She was standing in front of the Defence club and lights came from the street lights and the lights from the Defence Club. There were no obstructions to impede her view on that person. She clearly stated in her evidence that upon hearing of the sound of window breaking which came from the direction where the cars were parked, she saw the same person who was peeping into the cars has smashed the rear window of her aunt's car. She yelled at him to prevent him causing further damages to the car. The description of the person who allegedly smashed the rear window of the said car is fittingly matching with the accused.
    
26. The Security officer of the Hotel Southern Cross, who came to the scene of the crime after hearing the yelling of PW2, has seen the accused before he walked away from the place in question. He identified the accused and recognized him as a one of shoe shining boys at the Dolphin Plaza. He specifically stated that he has seen this accused several times at the Dolphin Plaza and also known him by his nick name "White Shark".
    
27. In addition to the identification of the accused by PW2 and PW3, former Constable Tent who is the arresting officer in this case, has seen the accused near Gordon Street few minutes after the incident.
    
28. All the witness who saw the accused at the time of incident and soon after the incident stated that he was wearing a three quarter jeans and a t-shirt. In view of the evidence of PW2, PW3, and PW4, I incline to accept their evidence of identification and recognition of the accused at the time of this alleged offence.
    
29. PW2 specifically stated that she heard the sound of window breaking and saw the accused smashed the rear window glass of her aunt's car. Prior to this incident she observed the accused was peeping into the cars which were parked at the opposite side of the Defence Club. Later, PW3, the Security officer has witnessed the accused was standing close to the said car and started to walk away from there. In line with these evidences I am of the view that the prosecution successfully established the accused person's willful and unlawful intention in committing this crime.
    
30. In respect of the second count where the accused is alleged to have behaved in disorderly manner in the police station, PW5 stated in his evidence that accused was very drunk at the time he was brought into the police station in that night, which accused did not deny. He further stated that the accused was swearing at police officers irrespective of several warning given to him by him.
    
31. In view of the reasons set out in foregoing paragraphs, I conclude that the prosecution has successfully proved beyond reasonable doubt that the accused person damage the rear left door glass of the said vehicle and conduct himself in a disorderly manner at the Totogo Police Station.
    
32. Accordingly, I find the accused guilty for the two counts of Damaging Property contrary to section 324 (1) of the Penal Code Act 17 and Disorderly conduct in a police station contrary to section 47 of the Police Act 85. I convict the accused accordingly the same.
    

On this 21st day of June 2011.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.