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State v King - Judgment [2016] FJHC 549; HAC69.2013 (21 June 2016)

IN THE HIGH COURT OF FIJI
CRIMINAL JURISDICTION
AT LAUTOKA

CRIMINAL CASE: HAC 69 OF 2013

BETWEEN:

STATE

AND:

1. JOSEPH KING
2. JOSATEKI LABALABA

Counsel : Ms J. Fatiaki for Prosecution
Ms V. Narara for 1^st Accused
Miss S. Nasedra for 2^nd Accused

Date of Hearing : 13^th and 14^th of June 2016
Date of Closing Submissions : 15^th of June 2016
Date of Summing Up : 16^th of June 2016
Date of Judgment : 21^st of June 2016

JUDGMENT

1. The two accused persons are being charged with one count of Aggravated Robbery contrary to Section 311 (1) (a) of the Crimes Decree. The particulars of the offence are that;

“Joe King also known as Joseph King and Josateki Labalaba in company with each other on the 1st day of February 2010 at Nadi in the Western Division robbed one Sachida Anand Pillay of assorted recharge cards valued at $ 21,330, two mobile phones valued at $ 480, and $ 1031 cash and a motor vehicle registration number FL 028 valued at approximately $ 18,000 all to the total value of approximately $ 40,841, the property of Auto Care Fiji Limited”

2. The two accused persons pleaded not guilty, hence the matter was proceeded to hearing. The hearing commenced on 13th of June 2016 and concluded on 14th of June 2016. The prosecution called seven witnesses during the course of the hearing. The two accused person gave evidence but did not call any other witnesses for their defence. The learned counsel for the prosecution and the defence made their respective closing submissions on the 15th of June 2016. I then delivered my summing up on the 16th of June 2016. The three assessors then returned with unanimous verdict of not guilty. Having carefully considered the evidence adduced during the hearing, respective closing submissions of the parties and the opinion of the assessors, I now proceed to pronounce my judgment as follows.
3. Having considered the evidence adduced by the prosecution, I find that the prosecution case against the two accused persons is mainly founded on the confessions made by the two accused persons in their respective caution interviews. The prosecution tendered the copies of the caution interviews in evidence. The victim, Mr. Pillay in his evidence did not state that he identified the two men who attacked and robbed him on the 1st of February 2010. At least he did not give any descriptions of the two assailants who robbed him. The police have not conducted any identification parade for the two accused persons. Moreover, the prosecution did not produce the recharge cards that they claimed as recovered from the possession of the second accused person in evidence.
4. The first accused person disputes the confession in his caution statement stating that he was assaulted and forced to sign on the caution interview that was written by the police. Hence, he alleges that the confession in his caution interview is a fabrication and not true. He further alleges that he was interrogated by DC Avinesh and DC Kaliova without cautioning him prior to the recording of his caution interview. During the said interrogation he was assaulted by these two officers. The defence further alleges that the first and second accused persons were never taken to reconstruction of the scene of the crime as there is no record in the station diary about their movements or anything about the respective caution interviews.
5. The second accused person claims that he was assaulted during the arrest on the 14th of February 2010. He was then assaulted and forced to admit the offence during the caution interview. Hence, the second accused person alleges that his admission to the offence was due to assault and force inflicted on him by the police. D/Sgt Timoci in his evidence stated that the second accused had initially denied the allegation in question number 26 and 54 of the caution interview. However, on the second day of the caution interview, the second accused has changed his denial and admitted that he committed the offence.
6. Meanwhile, the prosecution states that the two accused persons were not assaulted, threatened or forced to admit the committing of the offence in their respective caution interviews. They made their respective admissions voluntarily. To prove it, the prosecution adduced the evidence of DC Avinesh, DC Timoci, D/Sgt Timoci, and DC Kailova.
7. It was revealed during the hearing that there is no record in the Station Diary of Namaka Police Station regarding the movements of the two accused persons during the relevant time material to the recording of the caution interviews. There is no record in the station diary stating that the first and second accused persons were taken to reconstruction. Furthermore, there is no entries in the station diary in respect of the recording of the caution interviews of the two accused persons. In the absence of such entries in the station diary, it is my opinion that there is a reasonable doubt whether the two accused persons were actually taken for reconstruction as stated in their respective caution interviews.
8. The sixth witness of the prosecution Mr. Sanjay Arvind Lal stated in his evidence that one Indian boy came to his shop to sell some stolen recharge cards. He has informed the police about it. That Indian boy came in a vehicle bearing registration number FS 286. DC Timoci, who arrested the second accused person stated in his evidence that the second accused person was arrested while he was traveling in vehicle FS 286. An Indian man was driving said vehicle FS 286 at that time. The second accused person claimed during his evidence that he was not aware of any recharge cards that were found in the van. Moreover, the prosecution did not produce any recharge cards in evidence. Hence, it is my opinion that there is a reasonable doubt whether the second accused person was actually found in possession of any stolen recharge cards as claimed by the prosecution.
9. According to the reasons discussed above, I find there is a reasonable doubt regarding the truthfulness and the credibility of the confessions made by the two accused persons in their respective caution interviews. Hence, I find that the prosecution has failed to prove the truthfulness of the respective caution interviews of the first and second accused persons beyond reasonable doubt. I accordingly find no cogent reason to disregard the unanimous verdict of not guilty given by the three assessors.
10. In conclusion, I hold that the prosecution has failed to prove beyond reasonable doubt that two accused persons have committed this crime as charged in the information. Hence, I find the two accused persons are not guilty for the offence as charged in the information and acquit them accordingly.
11. Thirty (30) days to file appeal to the Fiji Court of Appeal.
    

R. D. R. Thushara Rajasinghe

Judge

At Lautoka

21^st June 2016

Solicitors: Office of the Director of Public Prosecutions

Office of the Legal Aid Commission