State v Mani [2018] FJMC 64; Criminal Case 347 of 2016 (24 July 2018)

THE RESIDENT MAGISTRATES COURT AT LABASA

CRIMINAL JURISDICTION

Criminal Case No. 347/16

STATE -v- ANTHONY KRISHNA MANI

For Prosecution : WPC Musuqawa

Accused : In Person

Date of Hearing : 16 April 2018

Date of Judgment : 24 July 2018

JUDGMENT

1.0 ANTHONY KRISHNA MANI is charged with the offence of THEFT contrary to section 291 (1) of the Crimes Decree No 44 of 2009. You had pleaded not guilty and the court proceeded to trial.

2.0 The particulars of the offence read as follows:

‘

Statement of Offence

THEFT : contrary to section 291 of the Crimes Decree No 44 of 2009.

Particulars of Offence

ANTHONY KRISHNA MANI on the 11^th of June 2016 at Labasa in the Northern Division dishonestly appropriated cash amounting $350.00 the property of SHIU LAL with the intention of permanently depriving the said SHIU LAL.

3.0 The Elements of the charge of Theft /i>are:

(i) The accused on the dates as per the charge (identification and date),
(ii) dishonestly appropriaash amounting to $350.00;
(iii) the property of complainant to permanently deprive the the complainant of the said
Property.

4.0 Prosecution called 2 witnesses to prove the charges against the accused.

5.0 The Material evidence of PW-1 SHIU LAL the complainant was that he was entering Taganikula bus which was parked at the Labasa bus stand when someone took his wallet from his back pocket. Prem Chand, a person who had also boarded the bus from Labasa Bus Stand asked him about his wallet and that was when Shiu checked and found it was not there. He had left it on the right back pocket of his pants. It contained $350.00 cash and some cards. Prem Chand also told him he had seen the person who took the wallet.

6.0 The second witness was Prem Chand 52 years residing in Naleba, Labasa who recalled on that date he was waiting to board the Taganikula bus at Labasa bus stand. The bus stand was crowded and he saw PW-1 getting into the bus when he saw a person put his hand and remove a wallet from his back pocket. He knew the Accuse very well as Accuse resided in Basoga. He usually visited relatives who resided in Basoga who also knew him. The Accuse was identified as the person who took the wallet. He then asked PW-1 to check his pocket for his wallet and that was when PW-1 admitted his wallet was missing.

7.0 In cross-examination he stated he was 2 meters away from where the incident occurred and refuse to apprehend Accuse when he saw what Accuse did. He admitted the bus stand was busy but he confirmed he saw Accuse put his hand into the back pocket of PW-1’s pants and got out the wallet. He stated there was no obstruction from where he could see the Accuse although the bus stand was busy that day. It occurred for 5 to 7 minutes.

8.0 After prosecution closed its case, the Accuse gave his evidence and called a witness.

9.0 The Accuse denied the incident stating that he was not at the bus stand but was at home at the time of the offence. He stated he had taken a taxi home. He stated his mother could confirm this but he had not called his mother as witness.

10.0 The Court carefully considered the evidence of the prosecution.

11.0 The burden of proof in this case is on the Prosecution, the State. The Prosecution is required to prove all the elements of the charge the accused is charged with beyond reasonable doubt. If the defence establishes to the Court's satisfaction that there is reasonable doubt, then the prosecution fails.

12.0 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.".

13.0 The first element is the identity of the Accused.

14.0 Prosecution relies upon the sworn testimonies of PW-1, PW-2 as well as the caution interview. PW-2 recognised and knew Accuse well and was capable of identifying him in court. He saw the Accuse prior to the Accuse taking the purse and after wards. Despite the bus stand being full PW-2 was adamant he saw the Accuse taking the wallet from the back pocket of PW-1’s pants. Given that there can be mistakes in recognition the court applied the turnbull principle.

15.0 Justice Aluthge .A in the case of Matatolu –v- State [FJHC] 274; HAA52.2016 (11 April 2017) when referring to Turnbull principles stated –

14. ‘Turnbull guidelines have been accepted as the Law in Fiji. The guidelines are contained in the following passage by Widgery LCJ:

"First, whenever the case against an accused depends wholly or substantially on one or more identificat#160; of thef the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification&#16> o&#1b> identifications&#160. In adIn addition he should instruct them as to the reason for the need for such a warningshould make some reference to the possibility that a mistaken witness can be a convincing oing one and that a number of such witnesses can all be mistaken. Provided this is done in clear terms, the judge need not use any particular form of words. Secondly, the judge should direct the jury to examine closely the circumstances in which the identification; by each 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 im in any way, as, for example, by passing traffic or a presspress of people? Had the witness 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 observation 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? ... Finally he should remind the jury of any specific weakness which had appeared in the identification

15. There is confusion about the difference between recognition and identiion&#and wone bege bege begins ains and the other ends. See Archbold 14-19.
16. Essentially, recognition is a type of ification. This wais was acas acknowledged in R v Turnbull (su Reci>Recognition may be more reliable than identification&#of a strangtranger but, even when the witness is purpo to rize someone whom whom he knows, the jury should be reminded that mistakes in recognition ofon of close relatives and friends are some made. Thus, even in recognecognition cases, a Turnbull warning is necessary - see R v Bowu> [1993] Crim Crim LR 379.’
    

16.0 Given these principles the court considers the following questions and the answers in light of the nce of prosecution:

How long did the wthe witness have the accused under observation?

PW-2 saw Accuse for 5 to 7 minutes.

At what distance? In what light?

PW-2 saw the Accuse from 2 meters away. It was during the daytime at the bus stand.

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

PW-2 admitted that the bus stand was full but he was able to see the Accuse clearly as he approached PW-1.

Had the witness seen the accused before? How often? If only occasionally , had he any special reason for remembering the accused?

PW-2 witness had only recognized the face as a person who resided in Basoga, a place he frequently visited to see his relatives. The Accuse was known to him.

How long elapsed between the original observation and the subsequent observation 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?

PW-2 only saw the Accuse again when he saw him at the police station. He confirmed the Accuse was the same person.




17.0 The court finds that from the evidences of prosecution, that the evidence of recognition was clear and concise and there were no discrepancies. The court finds that the identity of Accuse is established.




18.0 The prosecution evidence was truthful, consistent and established the elements of the offence. There was direct evidence for the court to find that there was no reasonable doubt that Accuse had taken the wallet from PW-1’s back pocket with intention to permanently deprive PW-1 of his property.




19.0 The Accuse has denied the allegations and argued that he was at home. It is clear that he admitted travelling back home by car but did not verify from whence he returned. The evidence he gave was evasive and not truthful. He did not call an alibi to verify his whereabouts despite the court informing him prior to Hearing. The court finds that his evidence has not created any doubt in my mind as to the prosecution’s evidence.




20.0 Court finds that prosecution has proven beyond reasonable doubt the elements of hte offence.

Conclusion




21.0 ANTHONY KRISHNA MANI I find you not guilty for the offence of THEFT.




22.0 The prosecution will tender your previous convictions and time will be given for you to submit mitigation before I sentence you..




23.0 28 days to appeal.




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Senileba Levaci Resident Magistrate