State v Turagalevu [2013] FJMC 30; Criminal Action 1299.2009 (25 January 2013)

IN THE RESIDENT MAGISTRATE'S COURT OF FIJI
AT SUVA

Criminal Action No: 1299/09

THE STATE

V

PONIPATE TURAGALEVU

Prosecution : Cpl Temesi, Police Prosecutor.
Accused : In Person.

JUDGMENT

1. The accused Ponipate Turagalevu was charged by the State on a count of Theft contrary to section 259(1) and 262(2) of the Penal Code Act 17.
   
2. The particulars of the offence states that between 25.5.2009 and 26.05.2009 Ponipate with another stole two ACER laptop computers worth of $ 3,198 from Telecommunication Fiji Limited shop at Garden City in Raiwai.
   
3. It appears that the co-accused had pleaded guilty to the count at the inception. Ponipate pleaded not guilty and the matter proceeded to trial before this Court on 28.05.2012. During the trial prosecution called three witnesses to take the stand. The accused remained silent during his case. It is to be noted that the rights of the accused person was safeguarded by the Court during the proceedings as there were no legal representation for him.
   
4. The onus is with the prosecution to prove following elements of the offence in order to secure a conviction. And it should be proved beyond any reasonable doubt.
   
   • The identity of the accused person,
   • On the day of the incident,
   • Dishonestly appropriated,
   • The items belonged to another,
   • With the intention of permanently depriving the items from the owner.
     

Evidence of the Prosecution

5. The State called Mr. Jey Kumar to testify on the actual circumstances of the case. He stated that he was employed at the Telecommunication Fiji Limited [TFL] Raiwai outlet in 2009 as a sales person. His job description involved selling laptop computers and printers. There were two sales persons at the outlet.
   
6. On 26.05.2009 this witness decided to playback the video footage of the CCTV cameras to gather information on some missing laptops of the shop. Witness states that he saw from the footage that two ladies and a man entering the shop, one lady and the man kept them busy while the other lady went to the corner to pick up the laptop.
   
7. Later the matter was reported to the police and he had gone to the police station to identify the recovered items. According to the witness two laptops were stolen and each one valued at $ 1500.
   
8. The learned prosecutor produced three photographs which were extracted from the video recording to the witness and marked the same as exhibit -1. But the witness stated that he doesn't know as to who gave those photos to the police. He further failed to identify the accused person in open Court. He explained his difficulty and it was due to the delay between the actual incident and the trial. The accused did not pose any question to the witness during the cross examination.
   
9. Sgt 1110 Waisea gave evidence next for the prosecution. He stated that as a result of the initial report he visited the scene. He has not seen any evidence of breaking in. He stated that he viewed the video recordings and found two suspects who came inside the shop as customers before the incident. He further added 'We do not know the persons who were in previously'.
   
10. Then he visited the Natabua prison to record a statement from the accused as a suspect to the case. The same was marked as Ex- 2. He stated that the accused gave the statement without any influence. However it should be noted that when the accused was informed by the Court on the available options to challenge his caution interview, he stated that he do not wish to do so. The position with regard to the caution interview statement of the accused will be discussed later in this judgment.
    
11. The witness confirmed that he saw the accused in the video recording and also he identified him at the dock. During the cross examination the accused asked whether the person in Ex-1 is exactly him. The witness stated 'Yes'. But he further added that it is clearer in the video. However this video was never produced in evidence.
    
12. Detective Constable 3659 Inoke Tui was called next to testify on the procedure followed in the charging of the accused. He formally marked the 'Charge Statement' as exhibit -3. The prosecution thereafter closed their case.
    

Defence Case

13. The Court explained on the rights of the accused person during his case. However the accused opted to remain silent.
    

Common Intention

14. The prosecution case is based on the principles of 'Common Intention'. Therefore the prosecution is burdened to prove, either that the accused Ponipate actually took the items from the shop or he shared the intention with the other in the event of items were removed by the co accused. It is essential to prove that there were 'meeting of minds' between the accused persons before or at the time of the physical act carried out.
    

Evaluation of Prosecution Evidence

15. There are no eye witnesses to the incident. Mr. Jey Kumar states that he identified two ladies and a gentleman from the Video. One lady and the gentleman had kept the sales agents busy. And the other lady has gone to the counter to pick up a laptop.
    
16. The witness states that he saw the face of the gent. However he failed at least to make dock identification on the accused. Further he is silent whether he saw the accused after he was formally arrested by the police. That would have been an opportunity for him to confirm on the identity of the accused person. He only left evidence on the circumstances of the offence for the Court to conclude.
    
17. Exhibit 1 comprised with three photographs of the CCTV recordings.
    
    • Photo - 1 has two men and a woman,
    • Photo - 2 has four men and a woman,
    • Photo - 3 has three men and a woman.
      
18. The prosecution did not lead evidence from the witness to ascertain which person he identified as the accused. There was no marking made on the photographs. Nevertheless the Court notes that these photos are primitive in the component of clarity and none of the persons can be identified properly.
    
19. In a case of joint enterprise the prosecution should necessarily adduce evidence that there were acting among the accused to achieve a common object. In the absence of the video footage the Court was left without any evidence of, whether they came together, they had any interaction inside the store, the actual acts done by the accused and whether they left together.
    
20. However Sgt 1110 Waisea who conducted the investigations was confident on the identification of the accused. He stated that it is very much clear in the video. The officer did not explain why they failed to produce the video footage in evidence. And he did not speak about the behaviour of the accused person which he saw from the video. In the absence of any marking on an identified accused person in the photographs a doubt creates on his own testimony as there are several men in it.
    
21. Further it was stated that the accused was in the prison at the time of the investigations. Therefore it is necessary to provide evidence on the date he was sent to prison. Police witness has not addressed this issue whether the accused person was not in the prison at the time of committing this offence.
    
22. Having considered the evidence of lay witness and the investigating officer the view of this Court is that the prosecution is lacking with evidence of visual identification and act of common intention.
    
23. It is prudent to consider whether there are any formal admissions in the accused person's caution interview. The accused states that he met a woman called Sainimili on 25.05.2009 at the Garden City. They roamed around and had gone inside the TFL shop for five minutes. He states that was on a call by Sainimili. Then they both went to the town. On the following day she again called him to go back to the TFL shop. They entered in for a short time and came back. Later she had asked his help to sell two laptops which were inside her bag. He then directed her to a shop in Samabula.
    
24. Accused at any stage of his caution interview has not admitted that Sainimili committed the offence of theft. Further there is no implication that he had the knowledge of the items Sainimili possessed were stolen. Therefore the Court concludes that there is no incriminating evidence against the accused from his own statement. He refrained from making any statement during the charging process.
    
25. The view of this Court is that the prosecution has failed to meet the standards of proving a criminal charge. There is a reasonable doubt created within their own evidence. Hence the accused is benefited to get an acquittal from the charge.
    
26. Accordingly Ponipate Turagalevu is acquitted.
    
27. Twenty eight [28] days to appeal.
    

Pronounced in open Court,

Yohan Liyanage
Resident Magistrate

09th January 2013

• Judgment delivered on 25th January 2013