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State v Macedru [2013] FJMC 199; Criminal Case 1704.12 (3 May 2013)

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

Criminal Case No: 1704/12 and 1705/12

State

V
Samuela Macedru

Prosecution: PC Pauliasi
Accused: Present – In person

Judgment
Introduction

One of the initial charges of Aggravated Robbery was amended to Theft by the prosecution. This case deals with both the files (1704 and 1705/12). Both the matters were were heard on the same day.

Samuela Macedru is charged with Theft and Resisting Arrest, contrary to Section 291 and Section 277 of the Crimes Decree 2009, respectively.

The Particulars of Alleged Offence is that:

"Samuela Macedru on the 23rd day of November 2012 at Narai Road, Raiwaqa in the Central Division stole a purse containing $500.00 cash the property of Sitela Daurewa." (Case # 1704/12)

Samuela Macedru on the 24th day of November 2012 at Grantham Road, Raiwaqa in the Central Division resisted arrest by police officer namely, Cpl 3685 Vereivalu in due execution of his duty." (Case # 1705/12)

The Standard and Burden of Proof

The onus in this case 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 4 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

Theft- (Case # 1704/12)

This Court has analysed all the evidence by all the witnesses in this case. The onus was on the prosecution to prove the elements of the charge.

The complainant positively identified the accused as the one who stole her purse. For each of the two witnesses the complainant and her husband who immediately after it is alleged the accused stole the complainants purse saw the accused flee the scene. This Court will apply the Turnbull guidelines and deal with the following issues in relation to identification:

(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 seenhem and his actual appearance?

The complainant had the accused under observbservation for a short period of time as she told the Court "I saw the person who took my person, she also told this Court that she saw the "culprit for 1 or 2 minutes, saw the face even when he wore the pom pom. " From the evidence given by the complainant she saw the accused closely as he grabbed her purse. It all happened in broad daylight around 10.30am. There was no impediment to the complainants view. The complainant had not seen the accused before. The Court is not clear from the complainant's evidence whether an ID parade was carried out or not however the complainant positively identified the accused in the dock as the one who stole her purse. This Court has considered that the time period from the date of the offence and the date of hearing is not that long and the complainant positively identified the accused person in the dock. There seems to be no material discrepancies in the evidence of the complainant even in tough cross-examination by the accused.

The Complainants husband (PW-2) who was the second witness for the state also indentified the accused as the one running when he heard his wife scream for help. PW-2 also told the Court he knew the accused even before this incident and he was the only one who was running at that time, which was right after the alleged offence. PW-2 also positively identified the accused as the person fleeing the scene. PW-2 also told the Court that he gave a description of the accused to police and he saw the accused at the police station after he was arrested and identified the accused.

The Court has heard and also considered the evidence of the accused but does not believe the accused.

The Court is satisfied on the evidence of the prosecution witnesses that the prosecution has proven the elements of the offence of theft against the accused beyond reasonable doubt.

Resisting Arrest - (Case # 1705/12)

In his evidence, Corporal Verevalu told the Court that when he "touched the accused from back and told him he was under arrest. He (accused) stood and tried to run away. Accused did not co-operate. Grabbed accused from back, we were struggling when other police came up."

The second police officer who came up the steps told the Court he saw the accused trying to push the first officer and run away. As to this charge and the evidence tendered in Court the Court believes the police officers and finds that that the prosecution has proven the charge beyond reasonable doubt.

The accused is found guilty of both the charges. Court will now hear accused's mitigation.

Chaitanya Lakshman
Resident Magistrate
1st May 2013