State v Nakuta [2013] FJMC 206; Criminal Case 1273.2006 (27 May 2013)

IN THE MAGISTRATES COURT OF FIJI
WESTERN DIVISION AT NADI
[CRIMINAL JURISDICTION]

Criminal Case NO.1273/2006

STATE

V

JOPE NAKUTA

WPC Ana for prosecution
Accused in person
Date of Judgment: 27. 05. 2013

JUDGMENT
INTRODUCTION

On 7 December 2006 the accused together with another was charged as follows:

Statement of Offence (a)

OFFICE BREAKING ENTERING AND LARCENY: contrary to section 300 (a) of the Penal Code Cap 17.

Particulars of Offence (b)

JOPE NAKUTA and AMINISITAI VIKILA on the 24th day of November 2006 at Nadi in the Western Division broke and entered into the office of the NADI CENTRE FOR SPECIAL EDUCATION and stole therein two J.W.L amplifiers valued at $700.00 each, all to the total value of $1,400.00, the property of the said centre, NADI CENTRE FOR SPECIAL EDUCATION.

The accused pleaded not guilty to the charge that the matter went on trial.

EVIDENCE FOR PROSECUTION

At trial, the prosecution called four witnesses namely, Cpl Sanaila, Investigating Officer (PW1), DPC Opete Lolo, Charging Officer (PW2), D.I. Peni Tuivaga (PW3), and Gulam Nabi (PW4).

It is noteworthy that the complainant in this case was not called by the prosecution to give evidence. But his statement to police was tendered in evidence by the prosecution. The complainant just made a statement to police about the breaking at the office. He could only confirmed in his statement that two amplifiers missing. The complainant did not know anything about the breaking.

PW2, the investigating officer gave sworn evidence. He told that he recorded caution interview of the accused after giving all his rights. He also told that the accused made statement admitting the allegation that was put to him. He further told the accused made the statement voluntarily and no force, threat or inducement was made in recording the statement.

PW2 was cross examined by the accused himself. Under Cross Examination PW2 denied that he or any police officer putting chilli powder in his eyes and rubbing chilli powder on his (accused) private part.

PW3, the charging officer gave evidence for the prosecution. He told in evidence that he charged the accused and recorded the charging statement. He said that the accused made the charging statement voluntarily. He further told that the accused in the charging statement admitted that he took part in the breaking.

In cross examination by the accused PW3 denied using chilli powder in order to record the charging statement.

Finally PW4 gave evidence. In his evidence he stated that he gave his car E 7174 to one Eroni to drive. Eroni told his wife that one of his friends had taken the car. He found the car near Geleloa junction. The accused and five others were near the car. He saw one black speaker in the car. The Accused threw the speaker into the jungle. Police could not find it. When a speaker shown was to him, he said 'this is not the same speaker that the accused threw but this is the one that was given to police by his driver's brother'.

EVIDENCE FOR DEFENCE

The accused gave evidence on his behalf. He did not call any other witnesses to give evidence on his behalf.

He in evidence stated that:

"I was charged on this matter. I complained to Ms Leveti (previous Magistrate) about the police action. I was not taken to hospital.

They scuffed me at the back and put chilli in my eyes and my private part. I admitted because of the police treatment. I had three files. I got acquittal in those three files.

They put chillies all over my body. I was unrepresented. Other two civilian witnesses were not called.

I seek dismissal of the case. I don't know about the law".

RULING ON CAUTION INTERVIEW AND CHARGE STATEMENT

At trial within trial, the prosecution called PW1 and PW2 to prove that the caution interview of the accused and his charge statement wherein he had admitted taking part in the breaking and those statements were taken voluntarily.

In evidence the accused stated that the caution statement and the charge statement were not obtained voluntarily. He said these statements were obtained using police treatment in that he was applied chilli powder all over his body in order to obtain the alleged statements. Thus the prosecution has failed to prove the charges against the accused beyond reasonable doubts.

I am mindful that the prosecution must prove that the confession was made by the accused voluntarily.

PW1 and PW2 maintained that they obtained the confession voluntarily. They denied using any force, threat or inducement in order to obtain the confession.

The accused had complained that he was not taken to hospital although he demanded to be taken to hospital. Prosecution witnesses offered no explanation to this allegation.

More importantly, the records of the caution interview and the charge statement bear no witnessing officer's signature. This means that the caution interview and charge statement had been recorded without witnessing officers being present. It is imperative that a witnessing officer must be present throughout the caution interview and the witnessing officer must sign the caution interview to confirm that he was present throughout the caution interview. Form A1 (Record of Caution Interview) has a separate column for the witnessing officer to sign. The prosecution witness offered no explanation as to why a witnessing officer was not present during the caution interview. In the circumstances, I am of the view that the caution interview had been taken improperly. Further, I am not satisfied that the alleged confessionary statements made by the accused were made voluntarily. Therefore I hold that the alleged confessionary statements made during the caution interview and charge statement are to be excluded and not admissible in evidence.

ANALYSIS

The accused has been charged with another with one count of office breaking entering and larceny contrary to section 300 (a) of the Penal Code.

Section 300 (a) provides that:

300. Any person who-

(a) breaks and enters ..., or any office, and commit any felony therein.

Pursuant to this section the prosecution must prove beyond reasonable doubt the following elements:-

1. The accused;
2. Broke and entered the office of Nadi Centre for Special Education; and
3. Stole two speakers therein.
   

The prosecution relied heavily on the caution interview wherein the accused had admitted taking part in the breaking with his accomplice. However the court has ruled out that the confessions made during the caution interview and the charge statement were not admissible.
There has been no evidence in court to establish the accused broke the office of the Nadi Centre for Special Education.

PW4 stated in evidence that the accused threw a speaker into the jungle and that was never recovered by the police. When a speaker shown to PW4, he said that was not the same one the accused threw into the jungle. That speaker was the one his driver's brother gave to police.
The Prosecution was unable to prove beyond reasonable doubt that the speaker thrown by the accused from the car was the same one that was stolen from the said office.
In my judgment, none of the elements had been proven by the prosecution beyond reasonable doubt.
I therefore find the accused not guilty to the charge of office breaking entering and larceny contrary to section 300 (a) of the Penal Code. I acquit the accused accordingly.

..................................................
M H Mohamed Ajmeer
Resident Magistrate
Dated at Nadi on this 27th day of May 2013