State v Colati [2021] FJMC 1; Criminal Case 1605 of 2016 (6 January 2021)

IN THE MAGISTRATES’ COURT OF FIJI
AT SUVA
EXTENDED CRIMINAL JURISDICTION

High Court Criminal No. 351 of 2016
Magistrates’ Court Criminal Case No. 1605 of 2016

STATE

v.

SENITIKI COLATI

For the State: Sergeant R. Ram, of counsel, of the Police Prosecution Department

For the Defendant: Mr.W. Navuni, of counsel, of the Legal Aid Commission

JUDGMENT

1. You stand charged as follows:
   

First Count

Statement of Offence

Aggravated Burglary: contrary to section 313 (1)(a) of the Crimes Act 2009

Particulars of Offence

Senitiki Colati, Epeli Ledua and Ulaiasi Qalomai on the 20^th day of September 2016 at Lami in the Central Division, entered the dwelling house of Malcolm Harrison as trespassers with intent to commit theft in the said house.

Second Count

Statement of Offence

Theft: contrary to section 291 (1) of the Crimes Act 2009

Particulars of Offence

Senitiki Colati, Epeli Ledua and Ulaiasi Qalomai on the 20^th day of September 2016 at Lami in the Central Division, dishonestly appropriated properties belonging to Malcolm Harrison namely 1 Logines brand gold wrist watch valued at $3000.00, 4 bottles of wine valued at $40, 12 bottles of Fiji Bitter (stubby) valued at $30 and coins amounting to $83.97; all to the total value of $3153.97, with intention of permanently depriving Malcolm Harrison of the said properties.

2. During trial, the State called Malcolm Harrison. He testified that on 20 September 2016, he had been in Nadi with his wife. His house at Lot 1, Waivote Street, Lami had been locked up and left in the care of his gardener who had been in the downstairs flat. He received a call notifying him that his house had been broken into. He travelled down to Suva from Nadi to find his back door smashed in. He saw blood smeared along the wall and drawers and items strewn everywhere. He discovered that $83.97 in coins missing, and 4 bottles of wine worth $40.00 and 12 bottles of bitter worth $30.00 missing too. He thought his wife’s watch was stolen but they subsequently found it and he is not sure about whether his wife’s jewellery had been stolen.
   
3. The State also called Viliame Buisue to the stand. He testified that on 20 September 2016, he had been caretaking at Malcolm Harrison’s home when he heard noise from upstairs. He called the security company, and then asked for help from the neighbours. The Police then came. He remained downstairs the entire time.
   
4. After him, the State called Detective Constable 3965 Josaia Bolaciri. He testified that on 20 September 2016, he had been on afternoon shift at Lami Police Station and had been assigned mobile patrol. He received a report that there had been a break-in at 1 Waivote Street, Lami. He then informed Detective Inspector of Police (D/IP) Remesio Raikoso who had been on mobile patrol with him. They went to Waivote Street. D/IP Raikoso then dropped him off at the alleged crime scene whereupon he turned on his torchlight and he saw the fence down and three men running toward Naivikinikini Settlement. They ran from the fence along the property toward the Settlement. He shouted out toD/IP Raikoso who had been at the Waivote roundabout. He went to Naivikinikini Settlement through the shortcut to Qauia Street, and there he met up with D/IP Raikoso and party at the Qauia roundabout where he found D/IP Raikoso and two other police officers with Senitiki Colati and another person in custody.
   
5. The State then called Detective Inspector of Police (D/IP) Remesio Raikoso to the stand. He testified that while off-duty on 20 September 2016, he had been at the Catholic Church at Lami when Officer Bolaciri approached him for assistance. The Station had received a report of a break-in in progress at 1 Waivoce Street, Lami. He went into the Lami Police Station, grabbed some keys and then went with Officer Bolaciri in a police vehicle to attend to the report.
   
4. Near Waivote Street, Lami, the two of them split up. Officer Bolaciri was tasked to cover the lower area and in particular, a short-cut from Waivoce Street, and D/IP Raikoso drove the vehicle up to 1 Waivote Street. He told Bolaciri to go up to the house and shine his light and shout and he drove to cover the roundabout. He had had his high beam light on. He said that from the roundabout he saw three of you climb over the fence and run along the street.
   
   6. Aided by the light of the Police vehicle and street lights along Waivote Street, he pursued you and the other two up Waivoce Street toward Naivikinikini Settlement. You were only five yards away from him during this chase. He had wound down the windows and had directed each of you to stop. Nothing hindered his view of your face. The three of you continued to flee and reached the Naivikinikini roundabout whereupon you all ran toward the Settlement.
      
   7. He had apparently told you Senitiki Colati and your counterpart Epeli Ledua to stop. He said he knew you personally because you all resided at Qauia. You had wanted to cross to Qauia but he blocked you from doing that. He then parked the vehicle and pursued you on foot. The three of you were running down a footpath through the Settlement. Apparently, youths who had been inside the community hall heard his cries and they came out and caught you and another.
      
   8. I found a case to answer and after explaining the substance of the State’s allegation to you and your options pursuant to section 14 (2)(j) of the Constitution and section 179 of the Criminal Procedure Act 2009, you opted to give evidence and you called one witness to testify on your behalf, Mr. Viliame Qoro alias Ulaiasi Qalomai.
      
   9. You testified that at 3.00pm on 20 September 2016 you had been released from Magistrate Court No. 2 and had gone straight home to Qauia. You then asked your girlfriend to take a walk with you to town. This was at around 5.00pm – 6.00pm. You went to town and arrived there at around 6.30pm – 7.00pm. After you had bought the juice you and she walked back home.
      
   10. On the way home, you and your girlfriend had a fight and you chased her to walk home by herself. You decided to take the path home via Naivikinikini. This was at around 7.00pm – 7.30pm. As you were walking toward the shortcut, you met four boys who were going up toward the right hand side.
       
   11. You walked past them and as you did a vehicle came and they all ran. They said it was the Police and you ran too because you had a bail condition that required you to be at home at 6.00pm and it was 7.00pm at that time. You ran toward Naivikinikini Settlement from the roundabout at Waivote Street. You did not jump the fence. At Naivikinikni Settlement you tried to hide in the bushes but were caught by villagers from that settlement.
       
   12. You also called Viliame Qoro alias Ulaiasi Qalomai on your behalf. He testified that on 20 September 2016, he and two other friends had planned a break in at Waivote Street, Lami. While there the Police arrived and they all ran away from the house. They ran toward the roundabout at Waivote Street and he had run toward Qauia Village where he was ultimately caught. He testified that you had not been part of the “Aggravated Burglary” that he and his friends had planned.
       
   13. I note that the Police Officers contradicted each other regarding D/IP Raikoso’s initial involvement on the night in question. D/IP Raikoso was clear that he had been off duty and had been asked to assist that night. DC Bolaciri was adamant that D/IP Raikoso had been on mobile patrol together at the time in question. Then there is D/IP Raikoso’s testimony that he had dropped DC Bolaciri off at the shortcut to Waivote and DC Bolaciri’s account that he had been dropped off at the scene, the house at Waivote. If there are contradictions like this, it is clear that one or both of them are mistaken about at least two things that happened that night. If that is so, it puts in doubt some of the other things that they testified about.
       
   14. For example, DC Bolaciri testified that he saw three people jump over the fence at Lot 1, Waivote Street, Lami, and D/IP Raikoso from his vantage point meters away said he was sure one of these people was you. But you were adamant that you had not been part of that group. You proffered a reasonable explanation for how you came to be caught up in the arrest and you proffered a reasonable explanation for why you ran that night.
       
   15. Moreover, Viliame Qoro alias Ulaiasi Qalomai testified that you had not been part of the group that had participated in the “Aggravated Burglary”. I listened and observed you both carefully during your testimonies and with the advantage of observing your firsthand accounts, I found you both to be cogent and forthright witnesses who remained unshaken under cross-examination. I accept your accounts of what transpired that night as true.
       
   16. That being so, I find that I am not satisfied beyond reasonable doubt that you were a part of the group that participated in the “Aggravated Burglary” and “Theft” that night. I find you not guilty and I acquit of “Aggravated Burglary” and “Theft” as charged.
       
   17. Any party not satisfied with the decision of this Court is at liberty to appeal to the Court of Appeal within 30 days.
       

---------------------------
Seini K Puamau
Resident Magistrate

Dated at Suva this 6^th day of January 2021.