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State v Batigai [2010] FJMC 101; Criminal Case 212 of 2009 (31 August 2010)

IN THE FIRST CLASS MAGISTRATES COURT
AT NAUSORI
FIJI ISLANDS

Criminal Case No: 212 of 2009

STATE

V

MOAPE BATIGAI

BEFORE: MR. C LAKSHMAN
Resident Magistrate

For Prosecutor : Inspector Amelia
Accused : Present – Counsel – Mr V Daveta

JUDGMENT

The accused is charged with Larceny from Person, contrary to Section 271 of the Penal Code (Cap 17).

The particulars of the offence are as follows:

"Moape Batigai on the 22nd day of December 2007 at Nausori Town in the Central Division stole one hand bag valued at $15.00 and cash $100.00 all to the total value of $115.00 from the person of Ashnita Lata d/o Mahesh Prasad"

The onus of proving the charge is on the prosecution. It is for the prosecution to prove the following elements of the offence the accused is charged with:

(i). the accused – (identity),

(ii). on 22nd day of December 2007,

(iii) Stole one hand bag and cash valued at $115.00,

(iv). from the complainant,

The Evidence – Prosecution

The prosecution first witness was the complainant, Ashnita Lata Prasad (PW-1) who gave sworn evidence and stated the following:

" – she recalled 7.30pm on 22/12/07

- 2 friends with me.
- Waiting for parents. Had bag in my hands. Suddenly someone grabbed my bag. He ran towards the washroom. My friend ran after him.
- It was around 8pm when incident took place.
- It was not really dark.
- I saw him from the back. He was wearing at/shirt. And ¾ pants. Navy blue t/shirt and ¾ pants. Cannot remember colour of pants. He was tall and fit.
- Had my wallet, my wages – more than $90.00 (denomination - $20, $10, $5, and some $2 + some coins).
- I did not see his face. Saw him from the back. Friend beside me ran after him. Some police officers around that area. We told them and they ran after him.
- Was not raining was cool day.
- I did not see the person again. I saw him from the back. My parents came and took me to the police station.

In cross-examination PW-1 stated the following: "saw person from the back. I did not see his face. I could not recall how many police were there. 2-3 were there. Police officers ran after the accused. After my friend ran then police ran about 5 minutes later."

There was no re-examination of PW-1.

Pw-2 was SC Sevanaia. His EIC was- "served in police for 4 years. Recall 22/12/07 at around 7.30pm was at charge room – Nausori Police Station. Was detailed to do patrol in Town. Received report from Seru Vuibau who mentioned that male, fair complexion, fizzy hair had robbed an Indian lady. I took off from the station. When I reached the bus stand. I saw Seru running towards the accused back of MH. I was 20-40m from them. From MH's light I can see suspect wearing ¾ trousers – t/shirt was dark. They were beside a drain near MH. I went as close as 10 – 15 m to the suspect.

I did not know the big drain was there. I dropped in the drain. I got up. Seru asked accused to stop. Accused swam. I swam after him. My boot got heavy. I swam to shore. I waited for 5 minutes. I went back went back to get help. When I came back with torch we only got track mark towards the rice mill. We did not get anybody. At Nausori Night Club asked the security there if they saw anyone. He said no. At Rewa Rice Mill security did not see anyone. We had cup of tea at Kings Restaurant.

Whilst we were having tea – the accused arrived to buy 2 bottles of beer. He was wet. He matched the description. He was arrested and escorted to the police station. We asked him he was drunk. His clothes had some insects and pieces of grass on him found near the river. He was fully wet including us. My fellow officer – SC Waisiki conducted search. We took his wallet. He took him to the Police station. Vuibau's description was beard on chin, fair complexion, medium built, fizzy hair and about 1.7m tall."

The person I arrested is in court. Witness pointed to accused in accused box.

In cross-examination the PW-2 stated "I was at the Station. I came over to the Bus Station after I received the call. I came to the scene of offence beside the toilet. I identified the person. I know the suspect properly. From the distance I can recognize him. No rain that day. We went to Kings Restaurant then suspect arrived.

In re-examination PW-2 stated "I know accused before can clearly identify accused. I saw accused that day before the incident."

Pw-3 was Constable Vilivo. His EIC was "in police force for 6 years. Based at crime branch. 23/12/07 recall 8pm was in crime office. Caution interviewed the accused. Interview in Fijian language. Made translation. Accused denied the allegation. Gave accused all rights. I was the I/O took money from the arresting officer. During the interview money seized from the accused was brought to me. I questioned the accused about the money seized by the arresting officer. Money was marked."

The caution interview and the money was marked exhibits and the PW-3 identified the accused. There was no cross examination of PW-3.

Defence Evidence

The accused gave sworn evidence and told the court the following:

"On 22/12/07 was at Sawani Village. It was a Friday. I was drinking in Sawani Village and then I came home. I slept for a while. Every afternoon I wait for my wife. She gets from Suva at 7.30pm. we come and meet. It was heavily raining that day. I asked her for more drinks. I asked her for money. She gave me some money. We came to buy in Sawani shop was closed. Came to Nausori to buy drinks at a black market. I came by carrier I got off in front of the shop. My wife gave me about $80. I altogether had $98. Carrier was driven by an Indian man. When I went to buy drinks police got hold of me. They seized my hands took out my wallet and my money. They took me outside. They said for us to go to the police Station. I was locked in the cell for more than 48 hours. I was interviewed and charged."

In cross examination the accused stated that "was at Sawani left Sawani for Nausori. Left Sawani at 8.00pm. it was raining heavily in sawani. My clothes was wet. My clothes got wet soaked up. Left sawani at 8pm in carrier to get drinks. Did not leave Sawani at 6.30pm. I was waiting for wife at 7.30pm. takes 20 minutes from sawani to Nausori. Cannot recall if raining in Nausori. I was ta Sawani from 7.30 to 8pm. Not at the bus stand at 7.30pm. did not steal from the complainant. Did not run away did not jump into the river. Witness did not find debris on me. Was my money belongs to me. "

In re-examination the accused stated "drinking in Sawani. Came to Nausori to by some more drinks. In the afternoon. Wait for wife at 7.30 to 8pm."

The accused's other witness was his wife, Alisi Ranadi (D-2). She told the Court in EIC the following:

" 22/12/07 was housegirl for a Sri Lankan at Namadi near Superfresh. Last bus from Suva at 7.30pm. boarded the bus got off at the shop met husband at Sawani. Talk with my husband. He was drunk. He asked for money. I gave him more than $80. I waited at the shop. He got a carrier."

In cross examination DW-2 told the Court "I work whole week. 22/12/07 was a Thursday or a Friday. I donot recall telling police on 23/12/07 that he (accused) left for Nausori at 6.30pm. accused wore a ¾ shorts and t/shirt. Accused did not give me van fare. I waited for him. It was raining. No van. I walked all the way home. raining heavily. Moape was lareday wet.

In re-examination DW-2 stated "I waited at the shop more than 1 hour. After 9pm. My father in-law and kids were home.".

The Issues

The court notes that the main issues (elements) for consideration in this case are the following:

(a) identification
(b) credibility of the witnesses – whom the Court believes

Identification

This Court takes note of the identification guidelines, as set out in R v Turnbull & Anor [1976] 3 All ER 549 (CA),

"First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of 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 or identifications. In addition [the judge] should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing 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 witness came to be made. How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever 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 identification to the police? Are there any material discrepancies between the description of the accused given to the police by the witness when first seen by them and his actual appearance? If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given. In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them. Finally, [the judge] should remind the jury of any specific weaknesses which had appeared in the identification evidence:" at 551-52, per Lord Widgery CJ

This court notes the guidelines set in Turnbull and in particular the following questions: (a) How long did the witness have the accused under observation? (b) At what distance? (c) In what light? (d) Was the observation impeded in any way, as for example by passing traffic or a press of people?) (e)Had the witness ever seen the accused before? (f) How often? (g) If only occasionally, had he any special reason for remembering the accused? (h) How long elapsed between the original observation and the subsequent identification to the police? (i) Are there any material discrepancies between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

(a) How long did the witness have the accused under observation?

Pw-1 had only the back view of the accused. Pw-2 saw the accused. He had pursuit of the accused and was at a time as close as 10 – 15 metres from him. The pursuit was some distance until the accused jumped into the river and the witness jumped and had to retreat as his boots got heavy with the water. The PW-2 had the accused for observation for some time in his pursuit of the accused.

(b) At what distance?

Pw-2 had first seen the accused from 20-40 m and later he came as close as 10 -15m.

(c) In what light?

The light was good. It shone from the MH building. . The witness had clear view of the accused. The prosecution witness Pw-2 SC Sevanaia who chased the accused described the accused and what the accused wore.

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

No, the witnesses view was not obstructed in any way. The witness had clear view of the accused. He had not lost sight of the accused until he had to retreat from the river.

(e) Had the witness ever seen the accused before?

The witness has seen the accused before. The witness later apprehended the accused not to too distant place from the scene of the crime.

(f) How often?

The witness has told the Court he had seen the accused well and has seen the accused before.

(g) If only occasionally, had he any special reason for remembering the accused?

This question is not applicable.

(h) How long elapsed between the original observation and the subsequent identification to the police?

The witness apprehended the accused some moments later after being in pursuit of the accused.

(i) Are there any material discrepancies between the description of the accused given to the police by the witness when first seen by them and his actual appearance?

There does not seem to be any material discrepancies in the description given by the witness when he first saw accused and his actual appearance. The chain of evidence was not broken from the time of pursuit of the accused, his identification at the scene and his eventual arrest.

(j) Are there any specific weaknesses appearing in the identification evidence?

The most pronounced issue here is the identification of someone known and linking this person, by reason of that knowledge, back to an offence. The court warns itself of this possibility and judging from the evidence of the witness he clearly identifies the accused and knows the accused. He would not make a fatal mistake of not being able to identifying someone he knows for some time.

(k) The circumstances in which the identification by the witness came to be made are crucial

The accused was identified not too distant from the scene of the alleged crime.

The evidence of the witness as to the identification fulfills the criterion laid down in Turnbull. The court is of the view that the accused was properly identified by the witness using the Turnbull guidelines.

Credibility of the Witnesses

The court noted the demeanor of the prosecution witness and the accused and his witness.

The court believes the prosecution witness as their evidence is credible and has withstood cross examination. The Court finds that the prosecution witnesses and the chain of events are not broken. The complainant was robbed. She alerted the accompanying person. The police joined in. They pursued the accused, who jumped in the river and some moments later he was arrested at a restaurant with debris on his clothing from the river and he was wet. PW-2 who pursued the accused some moments later at the restaurant with other officers arrested the accused. The prosecution witness has positively identified the accused moments after seeing him at the scene of the crime. The Court believes the prosecution witness and his identification of the accused is not a fleeting one. He had the accused in his view for some time and he arrested the accused some moments later after chasing the accused.

The court finds that the prosecution has proved the elements of the offence the accused is charged with and the court believes beyond reasonable doubt that the accused committed the offence he is charged with.

The court finds the accused guilty of the offence that he is charged with. The accused is convicted accordingly.

Chaitanya Lakshman
RESIDENT MAGISTRATE

NAUSORI
31/08/10