State v Michael [2012] FJMC 256; Criminal Case 768.2008 (16 August 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 768/08

BETWEEN

THE STATE

AND

NARENDRA MICHAEL
2nd Accused

RULING

1. The Accused in this case was initially charged for larceny contrary to Section 259 & 262 of the Penal Code with another Accused. The particulars of offence are as follows;
   

Sainivalati Tuivunimoli and Narendra Michael on the 19th of October 2008 at Lautoka in the Western Division stole 4 tyres with Mag wheels valued $ 800 the property of Rajiv Narendra Singh.

2. This case had been initially heard on the 23rd February 2009. Later when the case was pending for judgement the Court has ordered a trial de novo on the 19th May 2010. On the 07th July 2010 the first Accused pleaded guilty and he was sentenced on the 25th August 2010.
   
3. The case was taken up for hearing afresh in respect of the 2nd Accused (hereinafter referred to as the Accused) on the 23rd August 2011. The Accused was represented by a Counsel and the Prosecution was conducted by a Police Prosecutor. The Prosecution called two witnesses and tendered the cautioned interview of the Accused as evidence. After the Prosecution was closed the Counsel for the Accused sought time to make submissions on no case to answer. However the Defence did not file any submissions on no case to answer afterwards. Yet the Court fixed the case for ruling on no case to answer pursuant to Section 178 of the Criminal Procedure Decree.
   
4. Section 178 of the Criminal Procedure Decree states as follows;
   

"If at the close of the evidence in support of the charge it appears to the court that a case is not made out against the accused person sufficiently to require him or her to make a defence, the court shall dismiss the case and shall acquit the accused."

5. Justice Nazhat Shameem in Abdul Gani Sahib V The sate discussed the tests that are applicable in considering whether there is a no case to answer. Accordingly the court has to consider;
   
   1. Firstly whether there is relevant and admissible evidence implicating the accused in respect of each element of the offence and;
      
   2. Secondly, whether on the prosecution case, taken at its highest, a reasonable tribunal could convict.
      
6. I have considered the evidence led by the Prosecution. The first Prosecution witness, Rajiv Narendra Singh gave evidence that on the 19th October 2008 he received a call from one Sanjil Singh. The witness said that he was informed by Sanjil Singh that some people are trying to steal items from his yard. He said then he called the Police and reported the matter. Further he said when he came to the yard he saw 4 mag wheels and tyres, truck batteries, various tools and a truck muffler were missing. The witness identified four tyres with mag wheels as the ones which were stolen from him.
   
7. However the defence disputed the identification of the tyres. The witness could not positively give a description of the tyres. Instead he said that he gave the serial numbers of the tyres to the Police when he gave the statement. However during the cross examination the witness admitted that he gave the statement to the Police after seeing the tyres at the Police station. Thus the Defence suggested that the witness got the serial numbers at the Police Station when he saw the tyres. Further the Defence demanded to produce stock cards to prove that the serial numbers were known by the witness before he saw the tyres at the Police Station. The witness failed to produce any stock cards.
   
8. The only important piece of evidence which was purported to be adduced through this witness was the identification of the allegedly stolen tyres. Therefore it was very vital for the Prosecution to establish that the Police recovered the same items which were stolen from the Complainant's yard. But the Defence was successful in discrediting the evidence of the witness in relation to the identification of the tyres.
   
9. The Prosecution witness, Arunesh Singh gave evidence that he work as a carrier driver and on the 19th October at about 1 pm the Accused asked him whether he can take the Accused with a Fijian boy to a particular place and bring them back. The witness said that he dropped them near the Asco motors. Later the witness said that it was only the Fijian boy who went with him and not the Accused. The witness said that the Fijian boy loaded four tyres into his van and brought it to the Accused's garage. However he said that the Accused paid money for the taxi fare. In reply to the cross examination the witness said that when he told the Fijian man that his hire is $ 2.50, the Fijian man asked for money from the Accused.
   
10. It should be noted that the second Prosecution witness gave very confusing evidence. First he said that the Accused and another Fijian person came in his van. However later he changed his story and said that it was only the Fijian person went in his van to bring the tyres.
    
11. Although the Prosecution produced some tyres for the first witness to identify there was no evidence adduced by the Prosecution as to how the Police took charge of the items. It is crucial for the Prosecution to establish the link between the theft and the allegedly stolen items. It was not elicited how the items were recovered or from whom they were recovered. The Court cannot make assumptions and fill up gaps in the Prosecution case.
    
12. The Prosecution did not call any other witnesses and the cautioned interview of the Accused was tendered as evidence with consent of the Defence. I have perused the cautioned interview of the Accused. There is no confession made by the Accused with regards to this offence and he has denied any knowledge of the theft.
    
13. The Accused has stated in his caution interview that on the said date one Fijian boy came drunk and ask for some money for his taxi fare. The Accused had said that the said Fijian boy was known to him and he gave $ 2.40 for the taxi fare for him to go somewhere. Further he has stated that after a while that person came back to his garage with 4 tyres and asked him whether he want to buy them.
    
14. It should be noted that the only instance that the prosecution rely on a caution interview is when there is a confession made by an accused admitting the commission of the offence. When a caution interview is tendered in evidence it becomes part and parcel of the prosecution evidence. However in this case the statement of the Accused contradicts the Prosecution evidence. Thus I cannot understand as to why the Prosecution relied on a totally contradictory piece of evidence by tendering the cautioned interview of the Accused.
    
15. It is the duty of the Prosecution to prove the charge against the Accused. Although at this stage the Court need not look into the merits of the case in a comprehensive manner, it is the duty of the Court to test the evidence of the Prosecution as it was stated by justice Shameem in Abdul Gani Sahib V The Sate.
    
16. I am not satisfied that the Prosecution has adduced relevant and admissible evidence to cover all the elements of the offence that the Accused is charged with. In a criminal case the Prosecution has the burden to prove the charge beyond reasonable doubt. Yet at this stage when the Prosecution case is closed the Court has to see whether the prosecution has made out a case against the Accused to reply. If the evidence adduced by the Prosecution does not at least touch all the elements of the offence that an accused is charged with there is no necessity for the Court to invite the Defence to present their case.
    
17. Secondly the Court has to consider whether the Prosecution has adduced credible and admissible evidence that a Court can rely on. In that respect too the Prosecution failed as the evidence of the Prosecution was discredited by the Defence. Further it was worsened by the Prosecution itself by tendering the cautioned interview of the Accused as evidence.
    
18. In the circumstances I am of the view that the Prosecution failed to adduce relevant and admissible evidence implicating the accused in respect of each element of the offence and a reasonable Tribunal cannot convict the accused on the Prosecution case taken at its highest.
    
19. Accordingly I acquit the Accused.
    

28 days to appeal.

Rangajeeva Wimalasena
Resident Magistrate
Lautoka

16.08.2012