State v Nawalu [2024] FJMC 31; Criminal Case 657 of 2020 (2 August 2024)

IN THE MAGISTRATES’ COURT
AT BA
CRIMINAL JURISDICTION

Criminal Case No. 657/2020

BETWEEN: STATE

PROSECUTION

AND: ESALA NAWALU

ACCUSED

Counsel: WCPL 3443 Vaciseva Marawa for Police Prosecution
Ms. M. Totovosau for the Accused.

Date of Hearing: 7 June 2024
Date of Ruling: 2 August 2024

JUDGMENT
[TRIAL IN ABSENTIA]

Introduction

1. Mr. Esala Nawalu (“the Accused”) was charged with 1 count of Failure to Comply with Orders contrary to Section 69(3) of Public Health Act, 1935 and Regulation 2 of the Public Health (infectious Diseases) Regulations 2020. The particulars of the offences are:

Statement of Offence

Failure to Comply with Orders: Contrary to Section 69(3) of Public Health Act, 1935 and Regulation 2 of the Public Health (infectious Diseases) Regulations 2020

Particulars of Offence

Esala Nawalu on the 22^nd day of November, 2020 at Ba Town, Ba in the Western Division without lawful excuse was found in Ba Town, Ba at about 0015hrs and failed to comply with the hours of curfew (11pm-4am) order issued by the Permanent Secretary of Health.

2. The Accused was produced for this matter on 23 November 2020 and subsequently bailed on the same date. Thereafter, the Accused failed to appear for all his Court dates in this matter.
   
3. On 2 May 2023, Inspector K. Gounder was present in Court and informed this Court’s predecessor that he was the new Investigating Officer (I.O) as the I.O for this matter was on leave. Inspector Gounder informed the Court that the Accused’s last known address was closed and that one Ratu Kinijoji had informed that the Accused was residing somewhere in Nadi but his address was unknown. Inspector Gounder also informed that he had not checked other Police Prosecution Offices and that if he were given time, he would try to locate the Accused. The matter was then adjourned and then on 13 September 2023, this Court’s predecessor ordered that there be a Trial in absentia and listed the matter for Trial on 7 June 2024.
   
4. The matter was listed for Trial on 13 June 2024 with there being no appearance by the Accused. The Learned counsel for the Accused informed the Court that she had no instructions from the Accused.
   
5. Pursuant to section 171(1) of the Criminal Procedure Act, this Court decided to proceed with the Trial as if the Accused were present given that the Accused had notice of this matter and was aware to always be present and appear for his matter as per his Bail Undertaking Form signed on 23 November 2020. Further, despite being aware of these proceedings and undertaking to appear, the Accused’s absence in the matter from 24 March 2022 is deliberate. Subsequently, Trial in absentia proceeded before this Court.
   
6. Prosecution called 2 witnesses and thereafter closed it case. The Court found that there was a case to answer. The Learned counsel for the Accused then informed the Court that she had no instructions with respect to raising a defence. As such, the matter was adjourned for Judgment.
   
7. It is important to note that the Accused’s absence from this Trial has not been taken negatively. It is the Court’s overriding duty to ensure that a hearing conducted in the absence of the Accused is conducted as fair as circumstances permit to lead to a just conclusion and the Court should not deviate from the applicable procedures and principles of conducting a fair and just hearing in the absence of an accused (vide Kumar v State; Criminal Case: HAA 34 of 2015 (15 December 2015).
   

Burden of Proof

8. It is imperative to highlight that as a matter of law, the onus or burden of proof rests on the prosecution throughout the trial and it never shifts to the accused. There is no burden on an accused to prove his or her innocence as an accused is presumed to be innocent until proven guilty.
   
9. It is for the prosecution to prove the accused’s guilt beyond a reasonable doubt. If there is doubt, so that the court is not sure of the accused’s guilt, or if there be any hesitation in the court’s mind on any of the ingredients or on the evidence led by prosecution, the accused must be found not guilty of the charges and accordingly acquitted.
   

Summary of Evidence

10. Prosecution called 2 witnesses to prove its case. The first witness was Acting Sergeant 2785 Lavenia Bechu (‘A/Sgt Lavenia’) whose evidence was that on 22 November 2020 at about 12:15pm, she was the duty officer of Ba Police Station. She stated that whilst attending to a report along Navatu Street, Ba, they came across a drunken man. A/Sgt Lavenia stated that it was during curfew hours as such they arrested him because he was walking along the street during curfew, which was from 11pm-4am. She further testified that the curfew was in place during the COVID pandemic period.
    
11. When asked if she knew the man, A/Sgt Lavenia stated that she knew him when she arrested him but she could not recall his name. She further stated that after arresting him, he was escorted to Ba Police Station and then handed over to the Investigation Officer. A/Sgt Lavenia described the man she arrested as being an itaukei man with frizzy hair and not so tall. She stated that she could not recall what he had been wearing but that she could recall that he was under the influence of liquor as they could smelt alcohol on his breath.
    
12. A/Sgt Lavenia further asked in the negative when asked if there were any identifying features about him. When questioned if she could be recognized from a photographed, she replied yes and upon being shown a photograph, she confirmed that it was the same person she had arrested. The photograph was then marked for identification as ‘MFI 1’.
    
13. Prosecution’s final witness was PC 4707 Mosese (‘PC Mosese’) who was the Investigating Officer in the matter. His evidence was that the Accused was on bench warrant in this matter and whilst he had not made any efforts to locate the Accused under the bench warrant, he had knowledge that someone else on his behalf had made efforts to locate the Accused at the Ba and Lautoka Hospital, by checking at the Accused’s last known address, by checking at the Correctional Facilities but all these checks proved futile.
    
14. PC Mosese then testified that he was also the Interviewing Officer of the Accused and that he had also photographed the Accused. He then stated that he would be able to recognize the Caution Interview by his handwriting and signature. When shown a document, he confirmed that it was the Caution Interview of Esala Nawalu and he identified his writing as well as his signature. PC Mosese then read out the Questions and Answers from 19-34 of the Caution Interview.
    
15. PC Mosese then confirmed that he had given the Accused all his rights as at Question and Answer 10 and 11. He then stated that there was no form of assault on the Accused in his presence and that the Accused signed the Caution Interview on all 4 pages. The Caution Interview was then tendered as ‘PEX1’.
    
16. PC Mosese then testified that he had taken a photograph. He described the Accused as being itaukei, dark but not tall. He could not recall the hairstyle, what the person had been wearing or if the person had any distinguishing features. He further testified that after taking the photograph he had placed in the file. When shown MFI 1, he confirmed that he was able to recongise it. He stated that CSI took it on his instructions. PC Mosese then stated it was Esala Nawalu’s photograph and he confirmed that it was the same photograph taken on the day. The photograph was then tendered as ‘PEX2’.
    
17. As the Accused was not present, there was no cross-examination on his behalf by his Learned counsel. The Court will consider the evidence of the witnesses separately and collectively and ensure that all due consideration will be provided to ensure that the Accused is afforded a fair trial in her absence.
    

Preliminary Issue

18. At the time this matter was fixed for Trial Prosecution failed to inform the Court that there were admissions in the Accused’s Caution Interview.
    
19. In the case of Rokonabete v State [2006] FJCA 40; AAU48.2005S (14 July 2006) which was a second-tier appeal before the Full Court of Appeal, the Full Court dealt with the issue of whether the Appellant had been denied a fair trial due to the Magistrate having failed to hold a trial within a trial to determine the admissibility of the admissions in the Record of Interview. During the Trial in the Magistrates’ Court, the Appellant had been unrepresented and had cross examined the interviewing officers on the basis that they had assaulted him to make him confess, this was obviously denied by the officers. At the close of Prosecution’s case and upon explaining the Appellant’s rights, the Appellant elected to make an unsworn statement and call no witnesses. The Magistrate made no Ruling on admissibility during the Trial but within his Judgment found that the Record of Interview was admissible and proceeded to convict the Appellant. On appeal before the High Court, it was found that the Appellant “could point to no error of law in the admissibility of the confession and the charging statement”, thus his appeal was rejected.
    
20. However, before the Full Court of Appeal, it was determined that there was a substantial injustice given the manner the admissibility of the confession was considered. After succinctly discussing the relevant laws prevailing within the jurisdiction, it was held:
    

[24] Whenever the court it advised that there is challenge to the confession, it must hold a trial within a trial on the issue of admissibility unless counsel for the defence specifically declines such a hearing. When the accused is nor represented, a trial with a trial must always be held. At the conclusion of the trial within a trial, a ruling must be given before the principal trial proceeds further. Where the confession is so crucial to the prosecution case that its exclusion will result in there being no case to answer, the trial within a trial should be held at the outset of the trial. In other cases, the court may decide to wait until the evidence of the disputed confession is to be led.

[25] It would seem likely, when the accused is represented by counsel, that the court will be advised early in the hearing that there is a challenge to the confession. When that is the case, the court should ask defence counsel if a trial within a trial is required and then hear counsel on the best time at which to hold it. If the accused is not represented, the court should ask the accused if he is challenging the confession and explain the grounds upon which that can be done.

21. Although there was a counsel appearing for the Accused during Trial, she had no instructions from the Accused. Given that there was no trial within a trial (voir dire hearing) to allow the Court to determine the admissibility of the Caution Interview, the Court will disregard the evidence it heard regarding the admissions in the Caution Interview of the Accused and ensure that the Accused is not prejudiced in any manner due to the same. As stated in paragraph 7 herein, it is the Court’s overriding duty to ensure that a hearing conducted in the absence of the Accused is conducted as fair as circumstances permit to lead to a just conclusion and the Court must not deviate from the applicable procedures and principles of conducting a fair and just hearing in the absence of an accused.
    

Evaluation of Evidence

22. In evaluating the evidence, the Court must determine the testimonial trustworthiness of the evidence given by the witnesses based on the credibility and reliability of their evidence. In doing that, the Court should consider the promptness/spontaneity, probability/improbability, consistency/inconsistency, contradictions/omissions, interestedness/disinterestedness/bias, the demeanour and deportment in Court and the evidence of corroboration where it is relevant. (vide State v Moroci Criminal Case No. HAC 161 of 2023 (26 April 2024))
    
23. For a proper analysis of the evidence, it is imperative for the Court to turn its mind to the elements for Failure to Comply with Orders, the elements for this offence is:
    
    1. the accused
    2. without lawful excuse
    3. failed to comply with the hours of curfew
    4. issued by the Permanent Secretary of Health.
       
24. The evidence of A/Sgt Lavenia is that whilst she was attending to a report on 22 November 2020 at about 12:15pm, she came across a drunken man walking along Navatu Street, Ba. She stated that there was a curfew in place during the COVID pandemic period with the curfew being from 11pm-4am as such the man was arrested.
    
25. A/Sgt Lavenia stated that she could not recall the man’s name and she described him as being an itaukei man with frizzy hair and not so tall. She stated that she could not recall what he had been wearing but that she could recall that he was under the influence of liquor as they could small alcohol on his breath. When shown a photograph (‘PEX2’), A/Sgt Lavenia confirmed that this was the man she arrested.
    
26. PC Mosese testified that he had taken a photograph of the Accused whom he described as being itaukei, dark but not tall. He could not recall the hairstyle, what the person had been wearing or if the person had any distinguishing features. When shown a photograph, PC Mosese confirmed that it was Esala Nawalu’s – the Accused’s photograph (‘PEX2’).
    
27. It is apparent from the above evidence that the observation is one of identification and not recognition. As the observation is one of identification, the guidelines from R v Turnbull [1977] QB 224, most commonly known as the Turnbull Guidelines, are relevant in this instance. The following questions would have better assisted the Court when dealing with identification in such a manner as in this case:
    
    1. The length of time the accused was observed by the witness;
    2. The distance the witness was from the accused;
    3. The state of the light at the time of the observation;
    4. Was the observation impeded in any way?
    5. Had the witness seen the accused before? If so, how often? If only occasionally, had the witness any special reason for remembering the accused?
    6. The length of time that elapsed between the original observation and the subsequent identification to the police;
    7. Was there any material discrepancy between the description given by the witness and the actual appearance of the accused?
       
28. There was no relevant evidence before the Court regarding the length of time A/Sgt Lavenia and PC Mosese had observed the Accused or from what distance or the nature of lighting the observation (if any) was made by them. Prosecution failed to elicit from these witnesses whether their observation of the Accused had been hindered in anyway.
    
29. Further, no questions were asked to confirm whether A/Sgt Lavenia and PC Mosese had seen the Accused previously. Additionally, A/Sgt Lavenia was never asked the length of time that had elapsed from observation of the Accused at the time of the arrest by her to the time she had escorted and handed over the Accused to the Investigating Officer. Moreover, PC Mosese was never asked the duration he had the Accused under his observation.
    
30. The only evidence that is before the Court regarding the perpetrator is of him being an itaukei man, dark, with frizzy hair and not so tall.
    
31. Prosecution showed a photograph to A/Sgt Lavenia who confirmed that it was the person whom she arrested and PC Mosese who confirmed it was the person whose photo he had taken, however, Prosecution failed to link that the person that A/Sgt Lavenia gave evidence about being arrested for failing to comply with curfew hours was the same person whom PC Mosese gave evidence about in terms of taking his photograph.
    
32. In assessing the evidence of both Prosecution witnesses regarding the identity of the Accused, it is apparent that Prosecution failed to elicit the necessary and required evidence to allow the Court to consider the same.
    
33. Thus, little weight is given by the Court regarding the identification of the Accused which is, therefore, insufficient evidence that it was the Accused who failed to comply with orders.
    
34. Further, in the case of State v Raba; Criminal Case No: HAC 18/2022 (31 August 2023) His Lordship Justice Dr. Kumarage acquitted the Accused for 1 count of Failure to Comply with Orders. His Lordship stated:
    

“However, Prosecution did not lead any evidence during the trial to demonstrate the operation of a curfew in the Vatuwaqa area during the time in issue or provide any official document or a gazette to establish the existence of such a curfew during this period.”

35. The matter herein, only A/Sgt Lavenia’s evidence in Court is being relied upon by Prosecution. Prosecution did not tender into evidence in the form of an official document or a gazette to support its contention that the Permanent Secretary of Health had imposed a curfew from 11pm to 4am and that such a curfew was operative on 22 November 2020.
    
36. Thus, the Court cannot rely on the evidence of A/Sgt Lavenia as being reliable that between 11pm to 4am there had been a curfew in place which gave rise to the arrest of the perpetrator.
    

Determination

37. I find that Prosecution has not discharged its burden in proving all the element for Failure to Comply with Orders beyond reasonable doubt.
    
38. I, therefore, find the Accused, Esala Nawalu, not guilty as charged for Failure to Comply with Orders and hereby acquit him forthwith.
    
39. Any party aggrieved with the Court’s decision has 28 days to appeal.
    

N. Mishra
Resident Magistrate