State v Kean [2012] FJMC 266; Criminal Case 600.2005 (5 October 2012)

IN THE MAGISTRATE'S COURT AT LAUTOKA

Criminal Case No 600/05

BETWEEN

THE STATE

AND

GUSTON FREDERICK KEAN

JUDGEMENT

1. The Accused is charged with one count of workshop breaking entering and larceny contrary to Section 300 of the Penal Code. The particulars of the Offence are as follows:
   

" Guston Frederick Kean with others on the 24th day of September 2005 at Lautoka in the Western Division broke and entered workshop of the Industrial Switchboard Company and stole therein one Hitachi electric drill valued $ 400 and one roll electrical cable valued $ 1000 the property of Mohammed Kaiyum."

2. The trial commenced on the 25th March 2010. The Prosecution called 4 witnesses and after the Prosecution case was closed the Accused and two other witnesses gave evidence for the Defence.
   
3. This case was then fixed for judgement and later it was transpired that although the Accused has asked for a trial within trial on the 13th February 2008 the prosecution has not taken any steps to hold a trial within trial. Thus the Court ordered the Prosecution to hold a trial within trial before the judgement is pronounced. The Prosecution sought adjournments since 18th March 2011 until 09th May 2012 to hold a trial within trial. Finally the Prosecution informed Court that they are not in a position to hold a trial within trial as some of the witnesses have passed away and the only one witness available is also critically ill. Accordingly the case was fixed for judgement again.
   
4. In this case the whole Prosecution case was based on the confession of the Accused. Apart from the confession there was not an iota of evidence adduced by the Prosecution against the Accused. The Prosecution tendered the caution interview as evidence.
   
5. It should be noted that a confession of an Accused is admissible in evidence only if the confession is made voluntarily by the Accused. Thus a Court of law will admit a confession of an Accused only and only if the voluntariness is established by the Prosecution. That is the very purpose of holding a voir dire inquiry or a trial within trial. The journal entries dated 13th February 2008 clearly demonstrate that the Accused has informed the Prosecution that he needs a trial within trial. He has informed that he was subject to torture by the arresting officers and the interviewing officers. He has even informed Court that he was medically examined following a Court order. However due to some reason the Prosecution had not taken steps to hold a trial within trial in this case until the trial proper.
   
6. The Prosecution called three Police Officers to give evidence at the Trial proper. IP Apao gave evidence that he conducted the cautioned interview of the Accused. However he could not positively deny that the Accused was not assaulted. During the cross examination this witness answered in the following manner creating a doubt regarding the assault on the Accused:
   

Q: I put to you that I was assaulted when you were outside?

A: May be.

7. Police Constable 4342 Paulocata gave evidence that he escorted the Accused for scene reconstruction. The Accused cross examined this witness at length. The Accused inquired whether he has made any notes of the duties this officer has done. However the witness could not show any notes that he made to confirm the evidence he gave.
   
8. IP Gounder gave evidence on the 29th June 2010. He said that he went with a team of Police Officers to arrest the Accused on the 05th October 2005. He said the team comprised of officers named Suliasi Ratu, Sgt Druma, Cost Simione, Const. Koroi and Cost Paulo. However he said those are the names that he can recall. This witness failed to confirm the names of all the Officers who went to arrest the Accused. The Accused inquired from the witness whether he has his notes to confirm his evidence. This witness as well failed to produce any notes that he had made to confirm his testimony. It should be noted that one purpose of making notes by Police Officers is to use them when they give evidence at a later stage to confirm their testimonies. However in absence of such notes the Defence can easily challenge credibility of Police witnesses.
   
9. The Accused maintained his position right through out the case that he was assaulted and his confession was not made voluntarily. However the Prosecution did not even attempt to call all the arresting officers as requested by the Accused. At least the Officers who gave evidence could not testify with certainty who were the officers that were present during the investigations.
   
10. Further the Accused tendered a medical certificate to confirm that he was assaulted during the investigations. He gave evidence that he was assaulted during the investigations and he did not make the confession on his own free will. The Prosecution was so ignorant of the fact that the Accused had already asked for a trial within trial and questioned the Accused several times whether he asked for a trial within trial. The Accused confirmed that he did so although the Prosecution failed to hold one.
    
11. It should be noted that it is the duty of the Prosecution to prove the charges against the Accused. If the Prosecution intends to rely on a cautioned interview it is the paramount duty of the Prosecution to first prove the admissibility of such a statement by holding a trial within trial. The Court cannot rely on a confession which is not proved to have been made voluntarily by an Accused. As it was earlier stated the Accused had requested to hold a trial within trial. Thus it is the fault of the Prosecution not to hold a trial within a trial.
    
12. This case has been pending since 2005. Due to so many reasons it had been dragging on for 7 years. It appears that the prosecution had ample time to hold a trial within a trial as there was no other evidence found by the Police against the Accused. Even when the Court granted an opportunity for the last time to hold a trial within trial the Prosecution failed to do so after seeking adjournments for one year. It is not surprising that witnesses cannot be found after so many years. Had the Prosecution attended to its duties on time this debacle would not have arisen.
    
13. The prosecution failed to adduce any evidence to prove the charge against the Accused. The only evidence that the Prosecution relied on was the cautioned interview of the Accused. However the Court cannot accept it as a piece of admissible evidence as it was not proved to have been made voluntarily by the Accused. In the circumstances I decide that the Prosecution failed to prove the charge against the Accused.
    
14. Accordingly I acquit the Accused from the offence he is charged with.
    

Rangajeeva Wimalasena
Resident Magistrate
Lautoka
05.10.12