State v Soko [2014] FJMC 89; Criminal Case 1361.2013 (26 May 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case: 1361/2013

STATE

vs.

SERU SOKO

Cpl Josuha for the prosecution
The accused in person

JUDGMENT

[1] The accused is charged in this Court for following offence.

ATTEMPTED BURGLARY: contrary to Section 44 and 312(1) of the Crimes Decree No. 44 of 2009.

Particulars of Offence

SERU SOKO on the 23rd day of July 2013 at Suva in the Central Division, attempted to break and enter into Lot 21 Huon Street, Toorak as a trespasser with intent to steal from therein.

[2] The accused waived right to counsel and pleaded not guilty for the charge. During the hearing the prosecution called 04 witnesses and the accused gave evidence for the defence.

[3] At the end of the hearing only the accused opted to file closing submissions which was filed accordingly and I have also considered that for this judgment.

SUMMARY OF EVIDENCE

THE PROSECUTION'S CASE

[4] PW1 was Ms. Nafisa Ahamed the complainant in this case. She said that she lives in Toorak street for 30 years and on 23rd July 2013 she was in her home. As she could not sleep around 1am she went to the sitting room. She heard someone trying to open louvers in the sitting room and turned the light on. Then she went to the bedroom and from the window saw someone hiding outside the window. She saw him for 20 seconds and at that time there were lights in the poach. She called the police and later saw that person with the police. PW1 also identified the accused in the Court. In cross- examination PW1 said she saw the accused first time outside her window and the distance was nearly 1 and ½ meters. PW1 had not seen the accused before that. His son caught him in their compound later. She also said from the lights in the poach she saw the accused clearly and it was easy to recognize him from that lights. When he was arrested he resisted. In re- examination also she confirmed that she saw him for 20 seconds and also she had enough time to recognize him.

[5] PW2 was Ijaz Ahamed, the son of the complainant. He said on that day he was at home sleeping when his mom woke him and told that someone in their land. He went to check and also called the police who came later. In the meantime he went out with his dad and saw a person in their compound. They apprehended that person and they saw the person clearly from the lights. PW2 recognized in the Court the accused as the person who they apprehended that day. In cross- examination he said he could clearly remember the face and in re- examination also confirmed the accused as the person who was in their land.

[6] PW3 was WPC 3142 Arieta Samosi who conducted the caution interview of the accused on 23rd July 2013. She gave the accused his rights and in the interview the accused denied this offence. The caution interview was marked as prosecution exhibit 01. By consent the charge statement was marked as prosecution exhibit 02.

[7] PW4 was SC Samisoni the arresting officer. He was on duty that day and received a report about attempted burglary. He went with some other officers to the place and the complainant told him the accused has gone to another land. They were searching the compound when the complainant arrested the accused and handed him to them. The accused was resisting when they were taking him to the station. PW4 also identified the accused.

[8] After calling this witness the prosecution closed their case and being satisfied with the evidence the accused was given his rights pursuant to section 179 of the Criminal Procedure Decree. The accused elected to give evidence and also to call a witness. Therefore the accused was given time to call his witness but when this was called again on 15th May 2014 the Court found that the accused has not taken any meaningful steps to call this witness. The accused was asking for further time to call his witness but this was rejected by me.

THE DEFENCE'S CASE

[8] The accused denied trying to break in to the complainant's house that day. The accused said on that day he was with one Maphi in Toorak street and had some arguments with that person. Maphi punched the accused and he ran away and Maphi came after him. He went to a compound where the police arrested him. In cross- examination he admitted that he was arrested in the complainant's compound.

[9] In his closing submission the accused submitted that he was assaulted by police officers and disputed the identification by the complainant.

THE LAW

[10] In Woolmington v DPP [1935] AC 462 it was held that

"Throughout the web of the English criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt, subject [to the qualification involving the defence of insanity and to any statutory exception]. If at the end of and on the whole of the case, there is a reasonable doubt, created by the evidence given either by the prosecution or the prisoner, as to whether [the offence was committed by him], the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained" (per Viscount Sankey L.C. at pp. 481-482).

[11] The standard of proof where the judge has to decide an issue of fact in a criminal case where the burden of proof is on the prosecution is proof beyond reasonable doubt (ARCHBOLD CRIMINAL PLEADING, EVIDENCE AND PRACTICE 2010 page 542).

[12] In STATE v DELANA [2014] FJHC 336 in his summing up his Lordship Justice Madigan defined burden placed on the prosecution in the following manner:-

"The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you."

[13] The accused is charged with one count of Attempted Aggravated Burglary contrary to section 44 and 312[1] of the Crimes Decree.

"A person commits a summary offence if he or she unlawfully and indecently assaults any other person."

[14] Section 44 of the Crimes Decree defines the attempt in the following manner.

" 44. — (1) A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

(2) for the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence, and the question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

(3) Subject to sub-section (7), for the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted

(4) A person may be found guilty even if —

(a) committing the offence attempted is impossible; or

(b) the person who actually committed the offence attempted is found not guilty.

(5) A persn who is found guilty of attempting to commit an offence cannot be subsequently charged with the completed offence.

(6) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence.

(7) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.

(8) It is not an offence to attempt to commit an offence against section 45 (complicity and common purpose), section 49 (conspiracy to commit an offence) or the offence of conspiracy to defraud."

[15] Section 312 (1) of the Crimes Decree provides that:

"A person commits an indictable offence (which is triable summarily) if he or she enters or remains in a building as a trespasser, with intent to commit theft of a particular item of property in the building."

[16] In view of the above sections the prosecution needs to prove that

a. The accused

b. Attempted to enter in to the complainant's house as a trespasser

c. With intent to commit theft.

ANALYSIS OF THE EVIDENCE

[17] In this case even though the accused admitted that he was arrested in the compound of the complainant his defence was that he was running away from an assault and was in that land because of that . PW2 and the arresting officer also confirmed that the accused was arrested in the compound.

[18] But the accused in the cross- examination as well as his closing submission has disputed the identification of PW1. When PW1 identified the accused in the Court the accused objected also to that. According to PW1 even though there was no ID parade she identified the accused when he was arrested by her son. On that night she found someone trying to open the louvers in the sitting room and when she went to bedroom she noticed a man who was hiding near her window and she recognized that person again when he was taken away by the police. In the Court she identified the accused as the person who was hiding near her window and who was arrested later by her son.

[19] From these evidence I find that main issue to be determined in this case is whether the PW1 identified the accused correctly. Therefore I would first consider the law with regard to identification.

[20] In R v Turnbull (1977) Q.B.224, it was held that "the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made.

i. How long did the witness have the accused under observation?

ii. At what distance?

iii. In what light?

iv. Was the observation impeded in any way as for example by passing traffic or a press of people?

v. Had the witness ever seen the accused before?

vi. How often?

vii. If only occasionally, had he any special reason for remembering the accused?

viii. How long elapsed between the original observation and the subsequent identification to the police?

ix. Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

[21] In STATE v DELANA [supra] in his summing up his Lordship Justice Madigan said:

"In assessing identification evidence, you must take the following matters into account:

(i) has the witness known the accused before?

(ii) For how long did the witness have the accused under observation and from what distance?

(iii) Was it more than a fleeting glance?

(iv) In what light was the observation made?

(v) Was there any obstruction to his view?

If after taking into account all these considerations, you think that the identification is reliable then you may act on it. "

[22] Based on the above guidelines now I would consider the evidence of PW1. In her testimony she said she saw the accused for 20 seconds and at that time distance was 1 and ½ meters. She also admitted that she has not seen the accused before but stated that she clearly recognized the accused. Also according to her there were lights from the poach and street lights and no evidence was led to show that there were any obstructions to her view. Therefore I consider her identification of the accused is reliable and safe to rely on.

[23] The accused has admitted that he was in the compound that night. But according to the prosecution witnesses the accused was trying to flee when they approached him. If he was there by mistake I do not see any reason for him to flee from that place.

[24] In his caution interview the accused said he was assaulted by one Maphi and he fled from that place and came to that compound. According to his statement he passed a police post before ending on that compound. Why did he fail to go the police post when he was chased instead of going to the compound of a stranger in the night?

[25] The accused also failed to call any witnesses to substantiate his claim. He was given time but he failed to call the witnesses. Therefore I am not prepared to accept his version.

[26] Based on the above mentioned reasons I am satisfied that the prosecution has proved this offence beyond reasonable doubt.

[27] I find the accused guilty for this charge and convict him accordingly.

[28]28 days to appeal

26th May 2014

H.S.P.Somaratne
Resident Magistrate