State v Tuni [2017] FJMC 17; Criminal Case 1379.2016 (7 February 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: 1379/2016

STATE
V
IMANYUELI TUNI

For the Prosecution: Cpl Shaw
The accused : In person
Date of Judgment : 07^th of February 2017

JUDGMENT

1. The accused is charged with one count of Theft contrary to section 291(1) of the Crimes Decree No 44 of 2009. The particulars of the offence are “IMANYUELI TUNI with another on the 04^th day of August, 2016 at Suva in the Central Division stole f $15,000.00 cash the property of NAZIA IQBAL with the intention of permanently deprives the said NAZIA of the above mentioned cash.”
2. The accused pleaded not guilty wherefore this proceeded for the hearing. The prosecution called 08 witnesses and for the defence the accused gave evidence and called 2 alibi witnesses.
3. PW1 was Nazia Iqbal , the complainant in this case. On 04/08/2016 she came to BSP bank in Suva and was parking the vehicle behind MHCC. At that time she had $15,000.00 in a bag.It was in the right hand side of the vehicle on floor. She could not reverse the vehicle and came out and there were 3 I-tukai people beside her vehicle. Whilst the person in left hand side was signaling, the one in right hand side grabbed her bag and all 3 of them ran away. The person who was talking to her that day was close to her and she was looking at his face at that time. He was nearly 3 to 4 meters away and had white hair. They ran up to MHCC and vanished. At that time even though the doors were locked glasses were down in her vehicle. She with her husband went to Totogo police station and lodged a report about the incident. She gave the description of the suspects and the police officer showed the photos from which she picked the accused. She told the police the accused was the one who distracted her. Later she was called for ID parade where she identified the accused. The witness further said he was present in the court and identified the accused in the dock.
4. In cross-examination she said she reached the parking place at 1.30pm and did not see the accused before the ID parade. She pointed to him during the parade. The accused was talking to her for nearly 5 minutes whist she was trying to park.
5. PW2 was Sgt.Ullesi from CID branch at Central police station and on that day around 4pm was going to check about the washing machine when he met the accused with $50.00 notes with him. PW2 knows him well and the accused told him that he was going home. Later when he went to the station he heard about the theft. It was not normal for the accused to carry such a big amount. In cross-examination the witness denied asking $10.00 from the accused on that day and said the amount the accused was carrying that day was quite big.
6. PW3 was WPC Ileisa, who escorted the complainant to the ID parade. The complainant did not see the accused before the parade and there she pointed to him. In cross-examination also the witness denied the complainant had chance to see the accused before the parade.
7. PW4 was Inspector Napoliene , who conducted the parade where 09 people were present. The accused agreed for the parade and victim identified him there. She did not have the chance to see him before the parade and after that the accused was escorted back to office for further investigation. In cross-examination the witness said it was not easy to bring the same height people within 48 hours.
8. PW5 was PC Victor, who recorded the parade and also confirmed that the victim identified the accused there. In cross-examination the witness denied parties were sitting close to each other before the parade.
9. PW6 was PC Aseri , who conducted the caution interview of the accused. It was conducted in I-tukai language and translated to English (PE1). In cross-examination the officer said during the interview the accused said he was sick and he was taken to hospital and next day it resumed after he said he was well.
10. PW7 was WPC Serenica , who conducted the charge statement of the accused and this was marked as PE2.
11. PW8 was PC Peter, who was doing foot patrol on 04/08/2016 around 3pm and saw the accused and another acting suspiciously. When searched the witness found mobiles and $200.00 cash in the possession of the accused. Later when PW8 went to the station he saw the complainant sitting and talked to her. She described the incident and the witness through his mobile showed the pictures of known criminals in Suva. The complainant showed the accused photo from them. The witness informed the crime officer about the identification. In cross-examination the witness said he searched the accused and in re-examination said he was not aware about the Theft that that time.
12. The accused said whilst he was selling phones when the police officers came and arrested him and took him to car park for search. They demanded BH10 from him and later he met another officer who asked for $10.00. Whilst he was going home they arrested him and took to the station. He was locked and next day interviewed. Later they granted him bail at the station.
13. In cross-examination the accused said he left him home in Tailevu at 9am and was in Suva around 10am. In ID parade the complainant identified him. There were different people in the parade and she could have mistaken. He was with Tukana and his son from 2pm. They were with him for 02 hours.
14. DW2 was Tukana, who came to meet the accused. His wife and son wanted to buy a phone from the accused. They came around 2pm. In cross-examination the witness said he knows the accused for past 15 years.
15. DW3 was Jack Edward, who met the accused around 2pm to buy the phone and was with him till 3pm.
16. At the conclusion of the hearing only the defence filed closing submission which I have considered also for this judgment.
17. 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).

18. The accused is charged with one count of Theft contrary to contrary to section 291(1) of the Crimes Decree which provides:

““A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property.”

19. Hence the prosecution has to prove the following grounds beyond reasonable doubt :
    1. The accused ;
    2. Dishonestly appropriates ;
    100. Property belonged to the complainant ;
    4. With the intention of permanently depriving of complainant of that property.
20. In this case the accused is not disputing that the complainant’s money was stolen on that day. He states that he was not involved in this offence. Hence I find the only contested point in this case is the identity of the accused.
21. The accused has taken an alibi in this case as his main defence. Through this he is trying to convince this court at that time he was in another place which makes it impossible for him to commit the offence.
22. Normally when an accused takes an alibi in a criminal trial, he has no burden to prove it. The burden is on the prosecution to prove that the accused was at the crime scene and he also committed the offence.
23. In this case the accused in his evidence and through his witnesses tried to show that around 2pm he was with them trying to sell a mobile. But according to the complainant evidence she was trying to park the vehicle around 1.30pm when the accused stole her money. Hence I do not see how this alibi is would be relevant for this case. Further this alibi was never taken during his caution statement and taken only during the hearing raising the doubt about that.
24. Further the accused said he was with DW2 and DW3 for 02 hours from 2pm. But in his closing submission the accused said he was arrested around 1515 hrs by PC Romeo and SC Akiono. This is further confirmed by PW8 who saw the accused with another around 3pm and searched them. Hence I find this alibi taken by the accused is also not credible.
25. Even if a court finds an alibi of an accused is false it would not mean positively that he has committed the offence. The burden still lies with the prosecution to show it was the accused with others who commit this offence.
26. The complainant made a dock identification of the accused in the court. But before that she also identified the accused through an ID parade. Even though the accused alleged that he was shown her before the ID parade, the complainant and other police officers have denied that. I accept this assertion by the prosecution witnesses.
27. Further before the ID parade, there was a photo identification conducted by PW8. She was shown the photos of various suspects through his mobile and identified the accused from that. The accused did not challenge this identification in the court.
28. Now I would consider whether the complainant has properly identified the accused in this case.
29. This brings me to the guidelines laid down by Court of Appeal of England in R v Turnbull (1977) Q.B.224.
30. Lord Widgery CJ in R v Turnbull(supra) said :

“Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? 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? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence. Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.”

31. In this case there is no evidence to show that the complainant has seen the accused before the incident. But this incident occurred around 1.30pm and the accused was close to the accused. He was talking to her and she was looking at his face. She observed him for nearly 05 minutes and this view was not blocked by anything. She recognized the accused shortly after the incident through photo identification as well as through an ID parade. She also has given a clear description of the accused on that day. Based on these I accept her identification of the accused in this case.
32. The accused in his closing submission argued that this identification was fleeting glance. But based on the reasons in paragraph 27 I would not agree with that. I also find his submission about improper identification is not correct as the complainant has given a proper description of the person who committed the offence on that day. Further I find the ID parade and the photo ID was conducted properly by the police officers.
33. Also the accused submitted this incident happened around 2-2.30pm,but the complainant said she left the office around 4.34pm. But as noted above, the complainant said she was trying to park her vehicle near MHCC around 1.30pm.Hence this suggestion is also not correct.
34. I am also satisfied about the demeanors of the prosecution witnesses in this case especially the complainant. Compared to her I find the accused is evasive and not a credible witness.
35. Hence I am satisfied beyond reasonable doubt that the accused committed this offence.
36. I find the accused guilty for this charge and convict him accordingly.
37. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate