State v Khalid [2012] FJMC 309; Criminal Case 1665-2008 (18 September 2012)

IN THE MAGISTRATES COURT AT NASINU

Criminal Case No. 1665/2008

STATE

-v-

ABDUL KHALID
KAMAL DEO

Sergent Volavola Appeared for the prosecution
Mr. Sunil Kumar appeared for the 1st Accused
Second Accused appeared in person.

Ruling on No case to answer

1] The Both accused jointly charged for following offences.

CHARGE:

FIRST COUNT

Statement of Offence [a]

LARCENY BY SERVANT: Contrary to Section 274 (a) (1) of the Penal Code, Act 17.

Particulars of Offence [b]

ABDUL KHALID s/o ABDUL RAHMAN and KAMAL DEO s/o MULA RAM, on the 4th day of April. 2008 at Nasinu in the Central Division being the employee of the Frincos Hire Limited, stole 15 of 12 feet roofing iron valued at $900.00 the properties of ABHIMANJU KRISHNA s/o OM KRISHNA.

SECOND COUNT

Statement of Offence [a]

LARCENY BY SERVANT: Contrary to Section 274 (a) (1) of the Penal Code, Act 17.

Particulars of Offence [b]

ABDUL KHALID s/o ABDUL RAHMAN and KAMAL DEO s/o MULA RAM, on the 8th day of April. 2008 at Nasinu in the Central Division being the employee of the Frincos Hire Limited, stole 7 plyboard valued at $630.00 and 10 of 18 feet roofing iron valued at $1000.00 to the total value of $1630.00 the properties of ABHIMANJU KRISHNA s/o OM KRISHNA.

THIRD COUNT

Statement of Offence [a]

LARCENY BY SERVANT: Contrary to Section 274 (a) (1) of the Penal Code, Act 17.

Particulars of Offence [b]

ABDUL KHALID s/o ABDUL RAHMAN and KAMAL DEO s/o MULA RAM, between 21st day of May, 2008 to the 27th day of May, 2008 at Nasinu in the Central Division, being the employee of Frincos Hire Limited, stole 8 plyboard valued at $720.00 the property of ABHIMANJU KRISHNA s/o OM KRISHNA.

2] At the end of Prosecution case the Counsel for the accused submitted no case to answer. The counsel for the accused filed comprehensive written submission in this regard.

3] To prove its charges, the prosecution called following witnesses.

PW1: Abhimann Krishna: The witness said he is the Managing Director of Frinco Hire Limited and works full time. The company operates more than 8 years and they hire roofing Irons, ply boards scaffolding etc... Thereafter the witness extensively explained the hiring process and system of the company. When order comes they do the hiring. He said that they have own trucks and drivers and own people for load the goods. When job is finished they brought all items to the site (Yard). They do many jobs per day. Before dealing with selling and payment, whatever material is bought is counted and is entered into system. The witness said in November 2008, he got anonymous phone call saying is some of items such as roofing irons, ply boards, timbers have been sold to some people in Sokoca, Khalsa Road. The he reported matter to the Nakasi Police and they investigate whether that call is true or not. When they reached 2nd accused home to check, 2nd accused hid under the bed. The witness said that Kamal, second accused was not working under him at that time and left before six months. The witness said Kamal Deo showed the stolen items and he identified it because F.H letters were in the items. All houses were Kamal's neighboring houses. The items were fixed permanently and most of the materials were used to build houses. Some of items were lying on the floor. The witness said he id not know the buyers, but he knew on Ajnesh Kumar, Ajnesh worked for him and live beside 2 accused's house. When Ajnesh was interviewed he said items were sold by Abdul that is first accused. Ajnesh had roofing irons and ply boards. The witness said he identified the all items but the Police could not seize the Items as those were fixed to the house.

4] Witness was cross examined. He said that he detailed all incidents to the police when reporting. But his police statement was shown to him. Then he admitted there are several omissions. But he said both statements are correct. Defence tendered police statement as DEx-1.Alipate was the sales manager and second accused was the yardman. The first accused was the driver. Sales were done by him or Alipate and then it comes to yardman. There is no one to supervise them. They trust yardman. The witness said he cannot say how many things were taken. Counting parts were done by 1 accused and 2 accused. The first accused suggested counting is not driver's part, but witness provoked and said they have trained drivers to count. He admitted that there is no written work/job description but it was verbally informed. First accused served him from 2006 for 2 years. The witness said there were plenty foremen.

5] The second accused asked how the witness knew where the things unloaded, witness said actually he does not know.

6] PW2: Ajnesh Kumar: He said he was in Khalsa Road 2008/2009. He then built a house He said he bought roofing iron and ply boards. He paid $200 for ply boards and $400. When he was working he met two persons on the road they were Abdul and Avinil. They asked him to buy ply boards and roofing irons .they talked about the price and in the evening they supplied the goods. He said that Abdul is known to him previously. The witness identified the first accused. He said police came in September searching goods. Then he realized those were stolen goods. He gave statement to the police.

7] In the cross examination witness statement was referred and ask whether he paid $400 or $300, but witness said he paid $400. The defence showed the contradiction that he only paid $300. The defence said because of this the witness were lying to the court. Defence suggested that the first accused did not know the witness, but witness answered they had grog party. The witness was suggested to avoid being an accused of receiving stolen property, he made false story, but witness denied it. Statement tendered DEx-2.

8] PW3: Krishna Dutt Khishore: He said that he had built a house in Khalsa road in 2008. He wanted to buy timber ad roofing irons. He met Abdul, first accused. He knew him, because both from Labasa. When he was going to Southern Forest he met Abdul. Abdul said there was garage sale and he can provide goods that PW3 needed. Then, He gave 6 ply boards for $400. Abdul delivered those following day. When those were delivered Abdul parked the vehicle 500 meters away from his house, because there were water pipes. The goods were in good condition. There was a Fijian Boy with Abdul. Witness identified the Abdul, first accused.

9] In cross examination the witness said his evidence is correct. Defence suggested there are big differences in police statement than evidence. The statement tendered as DEx-3.

10] PW4 Parmod Chand: He said between 14th to 19th April 2009, First accused Abdul came and met him. He is a driver. He was going to by timer and iron. He offered to buy timber and iron which were rejected. He gave 3 x 18 roofing iron and 6 ply boards. Witness identified the first accused. Goods were delivered at night. He constructed a verandah and same year September police came and inspected the materials. Police officer took him and kept two days in police custody.

11] In cross examination the defence highlighted that the witness said he paid $150 to the accused but now he says he paid $200. Statement tendered as DEx-4. Witness admitted he was arrested and another 4 witnesses were also locked up in police cell.

12] PW5 Ravinesh Nand: He said he had been living Khalsa road for considerable period of time. He can remember 04-04-2008. At about 5 pm he was arrested by the police for receiving stolen property, stolen by Frinco hired. He said the second accused Kamal Deo sold 15 roofing iron at $200 to him he delivered goods at night time. Kamal Deo was his neighbor. At that time Kamal was working at Frinco. He came alone. The witness identified the second accused. Witness said some of roofing iron were used some of them still lying on the floor.

13] In cross examination he admitted there was a driver when goods were delivered but he did not identify the driver.

14] PW6 Arvind Chand: He said the Second accused is his neighbor. In April 2008, he was building a house. 2nd accused said that Frinco was selling rejected and old roofing iron and he could buy them. He bought 10 roofing irons and 7 ply boards at $440. Later in September same year police came and inspected the material. Only police came, PW1 did not come.

15] The witness in his cross examination said that 2nd accused and he came from same social group. He was arrested by the police, but he was not charged for receiving stolen property.

16] PW7 Jagadish Kumar: He said he was staying in Khalsa Road and Kamal Deo was his neighbor. He saw Kamal sold ply boards and roofing irons to other neighbor and he was intending to buy. Kamal said when he got rejected ones he can get it for him. Then, later Kamal, second accused supplied him 8 ply boards value of $240, $30 each. Then Police came. No one came; He said he showed purchased items to Police.

17] He said he had not seen Kamal served other neighbors only his wife saw it.

18] PW8 DC 3541 Sikeli: When he was in Nakasi police in September 2008, he received a complaint from Manager Frinco Hire Ltd. He said when he received the complaint he visited the Khalsa road. Most of the products were fixed to houses. The PW1 identify the goods. He investigated the incident. He was informed those were sold by Mahen and one Indian man. When Mahen was questioned then he said he came with Abdul. The witness said Abdul was 1st Accused and Mahen was 2nd accused. Both were identified by the witness. The original exhibits were misplaced and photocopies were tendered as PEx-1 subject to objections.

19] In cross examination, witness said that receivers were not charged. But he admitted receiving stolen property is a serious charge if there is no receiver people do not tend to steal. He said he did not conduct identification parade to identify the accused.

20] PW9 PC 3752 Ilaitia Drauna Radoko: he said on 250-09-2008 he interviewed Kamal Deo. No inducement was done. Original note could not find. He made a photocopy, it was marked. In that caution interview in question 16 the second accused has made a confession. Tendered as PEx-2.

21] In cross examination the witness said he cannot remember that he enter that he photocopied the interview as it way back in 2008. Second accused suggested that he never made a confession in question 16. But witness rejected and said he made a confession to him.

22] The prosecution closed thereafter. The first accused submitted no case to answer which I consider now.

23] Elements of the charges are to be proved by the prosecution are:

(a) Accused was an employee;
(b) Stole valuables belonging to his employer;
(c) Theft occurred during the cause of employment.

24] Law: Section 178 of the Criminal Procedure Decree No. 94 states:

"If at the close of the evidence in support of the charge, it appears to the Court that a case is not made 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".

Test: Practice Note (1962) 1 ALLER 448 where it was stated that:

A no case to answer may properly be made and upheld:

(a) Where there has been no been no evidence to prove an essential element in the alleged offence; or

(b) Where the evidence adduced by the Prosecution has been so discredited as a result of cross-examination or is, so manifestly unreliable that no reasonable tribunal could safely convict upon it.

25] In Fiji the law as to a submission of no case to answer was long settled in R v Jai Chand (1972) 18 FLR 101. His Lordship Mr. Justice Grant in upholding a no case to answer at P. 103 of the Judgment said:

"It seems clear that the decision as to whether or not there is a case to answer should depend not so much on whether the adjudicating tribunal would at that stage convict or acquit but on whether the evidence could or might convict on the evidence so far laid before it in other words, as the close of the Prosecution case the Court should adopt an objective test as distinct from the ultimate subjective test as adopted at the close of the trial. But the question does not depend solely on whether there is some evidence irrespective of its credibility or weight sufficient to put the accused on his defence. A mere scintilla of evidence can never be enough nor can any amount of worthless discredited evidence" (emphasis added).

26] Mr. Justice Grant's view was further supported by the Fiji Court of Appeal in Moiden v State Criminal Appeal No. 41/76.

27] The Fiji Court of Appeal in the above case expressly accepted the practice Note issued by Queens Bench Division in England, with is reported in (1962) ALLER 448.

The celebrated case of R v Galbraith (1981) 2 ALLER 1060 AT 1060

"How then should the Judge approach a submission of "no case"? (1) If there is no evidence that the crime alleged has been committed by the Defendant, there is no difficulty. The Judge will of course stop the case. (2) The difficulty arises where there is some evidence but it is of a tenuous character, for example because of inherent weakness or vagueness or because it is inconsistent with other evidence. (a) Where the Judge comes to the conclusion that the Crown's evidence, taken at the highest, is such that a jury properly directed could not properly convict on it; it is his duty, on a submission being made, to stop the case. (b) where however the Crown's evidence is such that its strength or weakness depends on the view to be taken of a witness' reliability or other matters which are generally speaking within the province of the jury and where on one possible view of the facts there is evidence on which a jury could properly come to the conclusion that the defendant is guilty, then the Judge should allow the matter to be tried by the Jury (in this Magistrate).

28] The case of HAW TAU TAU v PUBLIC PROSECUTION (1982) ALL ER 136, from which the following portion of the judgment to is to assist the bench who has the role was to decide both the facts and law in a charge:-

"The proper attitude of mind that to decide the fact ought to adopt towards the Prosecution evidence at the conclusion trial before a Judge and jury.......it is well established that in a jury at the conclusion of Prosecution's case it is the Judges function to decide for himself whether evidence has been adduced which, if it were to be accepted by the jury as accurate, would establish each essential elements in the alleged offence: for what are the essential elements in any criminal offence is a question of law: If there is no evidence (or only evidence that is so inherently incredible that no reasonable person could accept it as being true) to prove any one or more of those essential elements, it is Judge's duty to direct an acquittal' for it only upon evidence that juries is entitled to convict, but, if there is some evidence in Magistrate's Court Trial the Magistrate performs the duty of Judge and jury...."underlined is my emphasis.

29] The former Chief Justice Honorable Fatiaki J in delivering his judgment in April, 1996, in the State v Vijay Kapoor and Kalessa Chandra Suva High Court, Criminal Appeal No. 6 of 94, after citing the discrepancies in Prosecution case said this at P4 of the Judgment:-

"Needless to say in my view the phrase 'no evidence' as it occurs in Section 293 (1) of the Criminal Procedure Code (now Section 178 of the Criminal Procedure Decree 2009) must mean 'no reliable evidence' and not simply any evidence no matter how inherently vague or unreliable such evidence may be".

30] In R v Shippery (1988) Crim L R 767 Turner J stated that taking Prosecution's case to its highest level as it does not mean "picking out all plumps and leaving all duffs behind".

31] In Wentworth v Rogers (1984) 2 NSWLR 422 at 429 Glass JA said "that the trial Judge is required to rule up the sufficiency of evidence".

32] State v Mosese Tuisawau F.C.A. Criminal Appeal No. 14/90. By a fairly strong and distinguish penal of Judges of Fiji Court of Appeal had this to say on page 11, 2nd paragraph" Mr. Wikaramanayaka (Prosecutor) also complained that the learned Judge failed to refer to various pieces of Prosecution evidence which he claimed were unfavorable to the Respondent............". At 3rd Paragraph Pursuant to the duty imposed on the trial Judge by Section 293 (1) (in this case) Criminal Procedure Decree No. 43 of 2009 Section 178, he had to consider at the conclusion of the Prosecution's case whether there was any evidence that the accused committed the offence. If he considered that there was no evidence that he committed the offence it is his duty to record a finding of not guilty.

At 4th paragraph "In order to come to the conclusion that there was "some evidence" direct or circumstantial and irrespective of its weight, credibility or its tenuous nature, it must be shown that the evidenced in question was relevant, admissible and in its totality inculpatory of the accused. This means that the evidence in its totality must at least touch on all the essential ingredients of the offence charged: underlined my emphasis. Assuming that an offence contains 3 essentials ingredients, proof of two ingredients only would not justify holding there was a case to answer if no evidence is led in respect of the 3rd element.

33] This judgment has reiterated the Judgment of former Chief Justice in State v Vijay Kapoor and Kallesa Chandra Suva High Court, Criminal Appeal Number 6 of 94, after citing the discrepancies in Prosecution case said this at P4 of the Judgment.

"Needless to say in my view the phrase 'no evidence' as it occurs in Section 293 (1) of the Criminal Procedure Code (now Section 231 (1) of the Criminal Procedure Decree 2009 must mean 'no reliable evidence' and not simply any evidence no matter how inherently vague or unreliable such evidence may be".

34] In line with the above principle I consider evidence. The complainant said he was about to be bankrupt by accused's actions. But lamentably few items were recovered but not produced in open court. It is said that items have been fixed permanently, and identified by the PW1. But, it was not identified in open court at least no sample of items were tendered. This is a serious charge and charges to be proved beyond reasonable doubt by the prosecution. Thus, to get the fair trial, items must be shown and inspected before cross examining the witness. This is just because the stolen items were common in open market and it should be identified by particular marking "Frinco". Without producing the items this fact were not proved.

35] During cross examination witnesses contradicted their own statement given to Police much closer to the time of incident and the four witness statement was tendered by Defence as defence exhibits. They were contradict on material points.

36] As I noted in above, none of these witnesses ever identified the items they received by the accused which was later seized by Police as Prosecution has failed mark for the identification.

37] Prosecution case revolved against the accused was that whilst in employment the accused stole items enumerated in the charges and sold it to four civilian witnesses. Police received report armed with the search warrant and complainant went to various places and seized the items identified by the complaint. No search list was ever produced in this Court as evidence of search and there is not a scintilla of evidence when the accused has been alleged to have stolen during working hours or off duty.

38] It is submitted that the Prosecution of this case was done by the Prosecutor on the basis of assumption and supposition: but this criminal case is proved on facts and facts alone; State v Kaitani - judgment [2005] FJHC 225; HAC0044J.2004S (15 August 2005) (Gates J as he then was)

39] Further, the police witness could not produce the original caution interview, when asked that they would record their movement in the official note book provided by the force, they agreed, but when asked if they could show it to Court, they said that it was in Station and they don't have it on them. Defence objected that Photocopies being marked. The police witness said that he photocopied the statements, but he failed to tender his notes books. Admissibility of photocopies is considered in Singh v State [1999] FJCA 77; [1999] 45 FLR 96 =14 May 1999). In this scenario it is unwise to accept photocopies.

40] The prosecution tendered evidence of accomplices. PW1 did not see stealing incidents. Prosecution tried to prove their case by putting accomplices against both accused. They are receivers of stolen property, but they did not identify the goods in open courts. On the other hand the prosecution failed to prove that both were under employment of PW1's Frinco. PW1 failed to give evidence whether this incident happened during the employment. Pw1 did not tender any letter of appointment or termination letter to confirm the exact date of employment. It is an essential element to prove this incident was occurred during the employment as this is larceny by servant. I hold the prosecution failed to prove this ingredient.

41] As I noted in my judgment, prosecution must prove all ingredients of the charge beyond reasonable doubt. But it seems that they have failed to prove some essential elements. No items were tendered and identified by witnesses. Surprisingly prosecution failed to tender photographs of the items or sample of the items. The prosecution showed lackadaisical manner in investigating and prosecuting. I cannot say this is a false allegation by PW1. I can only say that investigation is not done properly and charges were not proved against both accused with required standard of law. Benefit of the doubt must be given to the accuseds. I therefore hold there is no case to answer. Both accused are acquitted and discharged.

42] 28 days to appeal

Delivered on 18th September 2012, at Nasinu, Fiji Islands

Sumudu Premachandra
Resident Magistrate-Nasinu