State v Biu [2013] FJMC 385; Criminal Case 1153.2012 (24 October 2013)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 1153/12

State

V

Temo Tawake Biu

Prosecution : Sgt Jiten
Accused : Present – In person

Judgment

Introduction

Temo Tawake Biu is charged with others for Damaging Property, Theft and Resisting Arrest, Respectively contrary to Section 369 (1), 291 (1) and 277 (b) of the Crimes Decree 2009.
The accused represented himself. This Court was informed that the accused had confessed in his caution interview. The Court at the outset informed the accused and the prosecution for a need of a Voir Dire. The accused was informed of the voir dire hearing and it’s procedures. The Voir dire was held. After the voir dire the Court found the caution interview to be properly conducted and admissible as evidence in Court.

The Standard and Burden of Proof

The onus in this case, as is with all criminal cases is on the prosecution to prove the case and the standard of proof is beyond reasonable doubt. Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated: "it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice."

The Evidence

The prosecution called 4 witnesses. The accused chose to remain silent. He had no other witnesses. The Court has noted all the evidence that was given in Court and the documents that were tendered.

Analysis of Evidence in Relation to the Law

This Court has analysed all the evidence by all the witnesses in this case. The onus was on the prosecution to prove the elements of the offences the accused was charged with.

PW-1, Vipul Ramrakha, the complainant in this case gave evidence that on 24th August 2012 his car was broken into at Padam Lala round-about. The passenger window was broken. Various items from the car were stolen. PW-1 described the stolen items and gave its value. He had reported immediately and the police checked the vehicle and followed an alley-way leading away from the vehicle. Officers recovered his bags moments after the vehicle break in and he identified his property. On 26th August he was called into the police station to ID some other items. In cross-examination Pw-1 told the Court he did not see the accused steal that day.

Pw-2, PC Timoci Vuli was the officer who attended the scene of the crime and followed the path that led away from the car. He told the Court that he saw 2 persons near the Catholic Church Hall. They had shown the torch on the persons from some 10 to 15 metres out. They called out one of them as Jojo. PW-2 approached the one with the bag and he knew this person by face. Jojo ran away. The accused had tried to run away, but was grabbed with the bag. PW-2 identified the accused in the accused box as the person with the bag. PW-2 stated that the accused tried to take his T/shirt off after he was grabbed with the bag by PW-2. They rolled down the hill after the accused tried to assault PW-2. PC Pauliasi was few metres behind him in the pursuit and assisted in the arrest of the accused. The accused was arrested and escorted with the items that were with him. Pw-2 told the Court they found the accused with the items that were stolen from the complainants car moments after the car was broken into.

Pw-3 was Pauliasi, he was the other person who was with PW-2 Timoci. He helped arrest the accused and told the Court that Temo and Jojo were together before Jojo ran away and they arrested Temo. The items that were recovered from the accused were identified to be those of the complainant. PW-4 DC Amani’s evidence was that he interviewed the accused and gave him all his rights. The interview was freely and voluntarily given. The Caution interview was admitted as evidence after a voir dire.

The Complainants car was broken into. Within moments the accused was apprehended with the items from the complainant’s car. This Court notes the law on identification principles relating to reliance upon identification evidence, as set out in R v Turnbull [1976] 3 All ER 549, approved by the Court of Appeal in State v Wainiqolo [2006] FJCA 70. The principles set out in Turnbull are not relevant in this case as there was no direct evidence in Court that any one saw the accused person break into the vehicle. Turnbull principles are applied where direct identification evidence of witnesses is in dispute or there is issue that there is mistaken identity. The accused was identified by the police officers and called by his name when they followed a path leading away from the vehicle. The accused was captured with the stolen items and taken to the police station. The identity of the accused as the person apprehended with the stolen items, which were items belonging to the complainant is not in dispute o challenged by the accused.

This Court notes the law on circumstantial evidence and warns itself of it. The law of circumstantial evidence was discussed by Her Ladyship Justice Shameem in her summing up address to the assessors in State v Vulaca (2008) FJHC 83, HAC120.2007 (22 April 2008), where Justice Shameem stated "A case of circumstantial evidence relies on a variety of sources of evidence . One example of how it works is this. One day you find your house broken into. The items stolen are clearly identifiable by you because you have put your initial on your DVD and TV screen. The day after the burglary, your DVD and TV screen with your initials are found inside your neighbour's house. His son is seen to be spending a lot of money at Traps Bar. His fingerprints are found on your kitchen door. On the basis of all this evidence, you are entitled to draw a reasonable inference that your neighbour's son committed the burglary in your house, because there is no other reasonable inference that you can draw from the evidence which is consistent with the son's innocence. However, if for instance you did not initial the stolen items and cannot be sure that these items in your neighbour's house is yours, and if there are no fingerprints found then the evidence of the neighbour's son's spending would not be sufficient for you to draw an inference of his guilt. This is because there are other possible reasonable hypotheses for his sudden wealth.

Therefore, with circumstantial evidence you must look at all the evidence together and ask yourselves whether the only reasonable inference you can draw from the evidence is the guilt of the accused. You must ask yourselves whether there can be any other explanation for the evidence which is also consistent with the accused's innocence. That is the law on circumstantial evidence ".

This Court has also warned itself that in considering circumstantial evidence it must be satisfied beyond reasonable doubt that the only reasonable inference available is the guilt of the accused before this Court can find him guilty. If the Court finds that there are other reasonable inferences which can be drawn which are consistent with the Accused's innocence or if the Court has a reasonable doubt about it, then the Court should find the accused not guilty.

Having noted all the evidence and having analyzed it in totality this Court is satisfied beyond reasonable doubt that it can draw no other inference but the guilt of the accused. The accused was apprehended by the police officers with items stolen from the complainants vehicle that was broken into. The accused resisted arrest while being apprehended and tried to flee from the police officer. One of the persons with the accused fled when confronted by the police. There are no other reasonable inference that this Court can draw which are consistent with the accused's innocence.

The prosecution witnesses evidence was reliable. From the evidence before it this Court finds that the prosecution has proven the charges against the accused beyond reasonable doubt. The prosecution has proven the charges laid down and proven that the accused broke into and damaged the complainants car, stole the various items and resisted arrest while he was being apprehended. All the 3 counts proven beyond reasonable doubt.

The accused is convicted as charged for all the 3 counts. The Court will now hearing accused's mitigation.

Chaitanya Lakshman
Resident Magistrate

24th October 2013