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State v Cakacaka [2013] FJMC 175; Criminal Case 1993.10 (29 April 2013)

IN THE MAGISTRATE'S COURT
AT SUVA
IN THE REPUBLIC OF FIJI ISLANDS

Criminal Case No: 1993/10

State

v.

Rusiate Cakacaka

Prosecution: PC Pauliasi
Accused: Present – In person

Judgment

Introduction

Rusiate Cakcaka is charged with theft, contrary to Section 291 of the Crimes Decree 2009.

The Particulars of Alleged Offence is that:

"Rusiate Cakacaka with others on the 25th day of September 2010 at Suva in the Central Division stole a Nokia mobile flip phone valued at $300.00, 2 x Apple I-Pod valued at $700.00, 1 x Hard disk Drive valued at $300.00, bag valued at $30.00, cash $10.00 all to the total value of $1340.00 the property of Krystelle Fong."

The Standard and Burden of Proof

The onus in this case, as is with all criminal cases is on the prosecution to prove the case and the standard of proof is beyond reasonable doubt. Lord Denning in Miller v. Minister of Pensions, in commenting on the proof beyond reasonable doubt stated: "it need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond a shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour, which can be dismissed with the sentence 'of course it is possible but not in the least probable,' the case is proved beyond reasonable doubt, but nothing short of that will suffice."

The Evidence

The prosecution called 3 witnesses. The accused gave sworn evidence. The Court has noted all the evidence that was given in Court and the documents that were tendered.

Analysis of Evidence in Relation to the Law

This Court has analysed all the evidence by all the witnesses in this case. The onus was on the prosecution to prove: (a). the identity of the accused, (b). that the accused stole the property of the complainant, and (c). on the specified dates in the charge.

The crucial issue in this case revolves around whether the accused person stole from the complainant or not and if the other person who is alleged to have stolen did the accused assist the other person who stole the items. Identification is also an issue.

From the evidence tendered in Court the complainant stated"that another guy took the bag. Not too sure. Accused did not take the bag." She also told the Court that from the CCTV footage "guy with bag went first and tall guy followed."

PW-2 Etuate gave evidence that he was the investigating officer; he visited the scene and saw the footage "one picked the bag. Accused was with person who picked the bag." In cross-examination he told the court that "accused was outside the door. From footage saw accused and 2nd person together. Accused was not the one who took the bag. Did not see accused have contact with other person."

The accused gave sworn evidence and denied the offence.

Having noted all the evidence This Court notes that the accused did not steal the bag himself. Another person stole the bag; he was not identified and arrested. The accused who was known was arrested and charged. The police need to have shown the accused the footage and questioned him. The Police could have asked the accused if he was present and if he was there, what was he doing? and also who the other person was? The police have relied on a footage which was not made available to the accused and tendered in this Court. The accused has denied the offence. It is also not clear to this Court whether the accused assisted the other person in any manner so that the other person could carry out the theft, so as to be an accessory. The evidence of the complainant also does not implicate the accused. Pw-2 also told this Court that the accused did not have any contact with the other person who took the bag.

The Court must be satisfied beyond reasonable doubt as to the guilt of the accused and that every element of the offence is proven. The prosecution has a very weak case. This Court is not satisfied that the prosecution Court has proven its case against the accused and for the reasons given herein finds that the case against the accused is not proven beyond reasonable doubt. The accused is acquitted. 28 days to appeal.

Chaitanya Lakshman
Resident Magistrate
29th April 2013