State v Waidrodro [2020] FJMC 128; Criminal Case 633 of 2019 (15 January 2020)

IN THE RESIDENT MAGISTRATE’S COURT
AT NADI
CRIMINAL JURISDICTION

Criminal Case No: 633 of 2019

BETWEEN : THE STATE

AND : EREMASI WAIDRODRO

Before : NILMINI FERDINANDEZ
RESIDENT MAGISTRATE

Date of Judgement : 15^th January, 2020

PC Vurukania for Prosecution
Accused in Person

JUDGEMENT

1. The accused, EREMASI WAIDRODRO, is charged for one count of Burglary contrary to Section 312 of Crimes Act and one count of Theft contrary to section 291(1) of the Crimes Act 2009.
   
2. Particulars of the offence states that Eremasi Waidrodro on the 15^th day of April, 2019 at Nadi in the Western Division entered into the shop of Nadirul Nisha as a trespasser with intent to commit theft and also dishonestly appropriated cash of $3000.00, Vodafone Recharge cards worth $300.00, 12 x tinned corned beef valued at $48.00, 6 x packet of Rewa powdered milk valued at $36.00 and 1 x mobile phone valued at $200.00 all to the total value of $3584.00 the property of Nadirul Nisha, with the intention of permanently depriving the said Nadirul Nisha.
   
3. BACKGROUND

3.1 The accused appeared in court for the first time on the 17^th May 2019, on which date the accused opted to waive off his right to counsel and pleaded not guilty for the charges when the charges were read out to him. As such, the matter was fixed for Trial.
3.2 On the 7^th June 2019 the prosecution informed court that there are admissions at the Caution Interview that they wish to rely upon at the trial and as such, the accused was granted an opportunity to file Voir Dire grounds. Voir Dire Hearing was held before me on the 1^st October 2019 and the prosecution called their first witness, DC 3292 Jesoni Naisoro. The ruling which held that the Caution interview marked as Pr. Ex1 is admissible in evidence was delivered on the 22nd of October 2019.
3.3 Substantial Trial commenced on the 31^st of October 2019 wherein the prosecution called only Ms. Nadirul Nisha to give evidence. After her evidence the prosecution closed its case without calling any further witnesses.
3.4 Thereafter, the accused was explained his rights to give evidence, to call witnesses or to remain silent. The accused opted only to personally give evidence under Oath. After his evidence from the witness box, the accused closed his case and moved for further time to make closing submissions in writing.

4. THE LAW

• 4.1 This case being a Criminal case, the burden of proof lies on the Prosecution.
  
• 4.2 Section 312 of the Crimes Act describes the offence of Burglary as follows:

1) 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.

4.3 Therefore, in this case the prosecution must prove beyond reasonable doubt the following elements to secure a conviction for the offence of Burglary:

1. The accused has entered or remained in the building of the complainant as a trespasser
2. The accused had the intention to commit theft of a particular item of property in the said building.
   

4.4 Section 291 of the Crimes Act also describes the offence of Theft as follows: —

1. 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.
   

4.5 Therefore the prosecution must prove beyond reasonable doubt the following elements to secure a conviction for the offence of Theft:

1. The accused has dishonestly appropriated property belonging to the complainant.
2. The accused had the intention of permanently depriving the other of the property.
   

5. EVALUATION OF EVIDENCE

5.1 Only DC 3292 Jesoni Naisoro gave evidence for the prosecution at the Voir Dire hearing and the ruling that was delivered on the 22nd of October 2019 held that the Caution Interview marked as Pr. Ex1 is admissible as evidence at the substantial hearing.
5.2 After calling Ms. Nadirul Nisha to give evidence the prosecution closed its case. Therefore, the only available evidence for the prosecution to prove charges against the accused, are the evidence of DC Jesoni Naisoro, Ms. Nadirul Nisha and Pr. Ex1.

6. Prosecution’s evidence

6.1 PW1, DC Jesoni Naisoro, is the police officer who recorded the Caution Interview of the accused. He stated in his evidence that on the 15^th May 2019, he has acted as the Investigating Officer in this case and has recorded the statement of the accused under caution
6.2 The statement made by the accused at the caution interview has been recorded by him in English and the accused has acknowledged the caution interview by signing the same. When he conducted the caution interview on the 15^th and the 16^th of May 2019, the accused has not complained to him about any intimidation. The accused has admitted the allegations put to him and he has not been intimidated to say ‘yes’ to the questions that were put to him. When the accused was asked whether he wants to read through the interview that was recorded, the accused has answered ‘No’.
6.3 The witness also stated that during the caution interview a reconstruction of the crime scene has been conducted and that the accused has been taken by the police to the “Leeds Shop” in Nawaka, where the accused has pointed the place from where he gained entry into the shop. The witness stated that the accused was not threatened or forced to point the place he gained entry too.
6.4 The witness has also identified the caution interview that was recorded by him and the same has been then tendered to court marked as Pr.Ex1.
6.5 The witness has also identified the accused in the accused box as the same person whose interview he has recorded.
6.6 In cross – examination, the accused among other things questioned the witness about his experience in the Fiji Police Force as well as his knowledge about recording a caution interview.
6.7 When being questioned as to the amount of police officers that were present at the time of the Caution Interview, the witness admitted that only the Interviewing officer was present.
6.8 The accused questioned the witness whether there were any witnessing officers to confirm that it was really the accused who signed the caution interview, to which he replied ‘No’. The witness admitted that there were no witnessing officers present.
6.9 Allegations were then levelled against the witness by the accused that he has not followed the police protocol procedure to have another officer to witness the Caution interview and that the caution interview he had recorded was not a statement actually made by the accused, in other words, a total fabrication.

7.1 At the Voir Dire Ruling court has considered that the purpose of holding a Voir Dire Hearing is only to decide whether a statement, alleged to be made by an accused at the caution interview, is made voluntarily or not. And court has held that there is no necessity to decide whether the admissions contained in the statement were made voluntarily or not since the accused at the Voir Dire hearing has totally rejected the Caution Interview statement as one made by him,
7.2 As such, court has further held that the Caution interview marked as Pr.Ex1 would be admissible as evidence, although the truthfulness of its contents could be decided at the substantial trial,

8.1 PW2 Ms. Nadirul Nisha is the owner of the “Leeds Shop” into which the accused was alleged to have entered into. On the 15^th of April 2019 at about 4am she has woke up for her prayers and then she has heard a noise coming from her shop which was situated down stairs of the building where she lived. Upon hearing the noise when she peeped out of the window she has seen an Itaukei man wearing a white t-shirt running away with a plastic bag. According to her, it was a man with built who she saw running away, although the accused before this court is a small made youth of about 20 years.
8.2 When she saw the said man running away, she has also heard some more sound from downstairs, which indicates that the breaking into her shop might not be a deed of a single person.
8.3 The witness has thought that the sound she heard was caused by the tin lying outside her shop and since she could not do much at 4am she has continued with her prayers.
8.4 However, when she has gone downstairs at 6 am to open the shop she has seen that the grill door has been opened and the padlock was lying on the ground. Then she has checked her shop together with her sister Nazrin Nisha and realised that the shop has been broken into and valuable items have gone missing. Afterwards, she had contacted the police and has reported the matter.
8.5 At cross – examination, the witness admitted that she did not see the person who broke into her shop that day.

9. Defense’s evidence

9.1 The accused Eremasi Waidrodro chose to give evidence but did not call any other witnesses. He explained to court in length how he was arrested from his home in Suva by Suva Intelligence Officers and how they slapped and smacked him while they took him to Valelevu police station. According to him, he has been later taken to Nadi police station from Valelevu and further subjected to physical harassment by the police officers.
9.2 The accused stated that the police officers has been threatening him to admit some cases which he did not know.
9.3 On the next date the accused has been taken to the Namaka police station and kept in the cell until he was taken back to Nadi police station again on the day after. At Nadi police station he has been interviewed regarding one bench warrant. The accused claimed that during the interview the police officers have slapped and kicked him and spoke about some cases which he did not know.
9.4 At cross examination, the accused went on to deny the facts put to him that he was at his aunt’s place at Navaka on the 15^th April 2019 and that he admitted at the caution interview about braking into the shopping centre.

10.1 The only police witness that gave evidence for the prosecution was PW1, DC Jesoni Naisoro and his knowledge regarding this case was limited to recording of the caution interview. No evidence regarding any recovered stolen property were placed before court and it is not clear how the police managed to connect this accused to this case. The accused claimed that the police initially arrested him in regards to a bench warrant but then went on to question him on some other cases that he had no knowledge of. Even the police witness has admitted in cross examination that the accused was brought into the police station on a bench warrant for absconding bail. As such, it seems that there is some truth in what the accused states.
10.2 On the other hand, since the Voir Dire stage the accused has strongly maintained that the statement recorded at the Caution Interview was a total fabrication by the police and that it was never made by him. While he was cross examining PW1, he pointed out that PW1 was wrong for not keeping a witnessing officer to affirm that it was really the statement made by the accused that PW1 recorded.
10.3 Although this court has ruled out in the Voir Dire Ruling the necessity of having a witnessing officer at the Caution Interview, based on the provisions in the Judges Rule II, a witnessing officer could have strengthened the prosecution’s case at a time when the accused vehemently deny the genuineness of a statement alleged to be made by him.
10.4 In the absence of corroborating evidence to strengthen PW1’s evidence regarding the recording of the caution interview, a doubt is created as to whether Pr. Ex1 is definitely an admission made by the accused or whether it is a fabrication as alleged by the accused. As such, it seems not safe enough to trust the contents of Pr. Ex1 and arrive upon a decision based upon it.
10.5 Other than the admissions recorded in Pr.Ex1, there are no other evidence connecting the accused to this case. Even PW2, the owner of the shop that was broken into did not see the accused at the time she heard the noise. She only had a suspicion that it could be the accused who entered into her property.
10.6 More importantly, she has seen a man with Built running away with a plastic bag at the time she heard the noise, but not a small made youth like the accused.
10.7 PW2’s evidence has further indicated that the breaking-in could have been done by more than one person as she has heard more sound from down stairs at the time she saw the Itaukei man running away. However, the accused’s statement implies that the breaking-in was done by the accused alone, which is a contradiction.

11. As pointer out before, the prosecution need to prove the following important elements to prove the charges against the accused namely;
    1. The accused has entered or remained in the building of the complainant as a trespasser
    2. The accused had the intention to commit theft of a particular item of property in the said building
    100. The accused has dishonestly appropriated property belonging to the complainant.
    4. The accused had the intention of permanently depriving the complainant of the property.
       

12. As per all the evidence before this court, this court is unable to be satisfied that the prosecution has managed to prove any of the aforementioned important elements beyond reasonable doubt.
    
13. Accordingly, I acquit<160;the accused fsed from the charge against him.
    
14. 28 days to appeal.
    

DATED at Nadi ondi on 15^th day of January, 2020.

.........................................
Nilmini Ferdinandez
RESIDENT MAGISTRATE