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State v Alosio [2014] FJMC 11; Criminal Case 1868.2011 (15 January 2014)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA

Criminal Case No: - 1868/2011

STATE

v

KAITIVI ALOSIO

For Prosecution : Mr. Nath for the State
For Accused : In person

JUDGMENT

1. The accused is charged in this Court for following offences
   

COUNT 1

AGGRAVATED BURGLARY: contrary to Section 313(1)(a) of the Crimes Decree NO. 44 of 2009

Particulars of Offence

Kaitivi Alosio on the 9th day of December 2011 at Suva in the Central Division entered into the house of Christopher Pryde as a trespasser with intent to steal.

COUNT 2

THEFT: contrary to Section 291 of the Crimes Decree No. 44 of 2009

Particulars of Offence

Kaitivi Alosio on the 9th day of December 2011 at Suva in the Central Division stole assorted liquor valued at $550 and some pieces of chicken meat valued at $80 to the total value of $630, the property of Christopher Pryde.

2. The accused pleaded not guilty for this charge. Since he was challenging the admissibility of his caution interview a voir dire hearing was conducted on 01st October 2013 and trial proper was conducted on 12th December 2013.
   
3. After the prosecution closed the case the accused was explained about his rights pursuant to section 179 of the Criminal procedure Decree and he opted to remain silent. He wanted to tender a statement made by his co- accused, but as he was not called as a witness this was not allowed by this Court.
   
4. Both parties were invited to file closing submissions which they filed accordingly. I would address these later in my judgment.
   

SUMMARY OF EVIDENCE

5. The prosecution called the complainant and the interviewing officer to give evidence. The complainant Mr. Prydes said he was abroad and when he came back saw someone has broken into his house. He found that assorted liquor worth $555.00 and frozen meat valued at $80.00 missing from his premises.
   
6. PW2 was Cpl Peterosi the interviewing officer and through him the caution interview was tendered as Ex-01. The prosecution did not call any other witnesses and closed the case after that.
   
7. In the closing submission filed by the state they submitted that they have managed to prove all the elements of these offenses and therefore the accused to be convicted for this charge.
   
8. The accused in his submission said he was challenging his statement to the police and he was not involved in these offenses.
   
9. Having considered the evidence in the above manner now I would briefly consider the law applicable in this case.
   

The LAW

10. The accused is charged in this case for one count of Aggravated Burglary contrary to Section 313(1) (a) of the Crimes Decree and one count of Theft contrary to section 291(1) of the Crimes Decree.
    
11. Section 313(1) (a) of the Crimes Decree defined the Aggravated Burglary in the following manner:
    

"A person commits an indictable offence if he or she —

(a) commits a burglary in company with one or more other persons"

The elements the prosecution has to prove are

1. The accused
2. Commits burglary

100. In a company with one or more other persons.
     

12. Theft is defined in section 291 (1) of the Crimes Decree and states that:
    

"A person commits a summary offence if he or she dishonestly appropriates property belonging to another with the intention of permanently depriving the other of the property."

In view of the above section the elements of this offence are :

1. The accused
2. Dishonestly appropriate properties

100. Belonging to the complainant

4. With the intention of permanently depriving him of his property.
   

13. In Woolmington v DPP (1935) AC 462 Viscount Sankey LC observed that

'no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the accused, is part of the common law".

14. In his summing up in State v Driti [2013] FJHC 644 His Lordship Justice Madigan said :

"The burden of proving the case against this accused is on the Prosecution and how do they do that? By making you sure of it. Nothing less will do. This is what is sometimes called proof beyond reasonable doubt. If you have any doubt then that must be given to the accused and you will find him not guilty- that doubt must be a reasonable one however, not just some fanciful doubt. The accused does not have to prove anything to you"

15. In Miller V Minister Of Pension [1947] 2 AER Lord Denning also explained the 'proof beyond reasonable doubt' as
    

'That degree is well settled. It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of the 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 favor, 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.'

Analysis of the Evidence

16. From the evidence presented in this case I find that the only evidence that link the accused to these offences is the caution interview of his where he has confessed to these. There are no other direct or circumstantial evidence against the accused in this case.
    
17. In State v Kumar [ 2013] FJHC 56; HAC202.2011S (15 February 2013) His Lordship Justice Temo in his summing up said:
    

"A confession, if accepted by the trier of fact – in this case, you as assessors and judges of fact – is strong evidence against its maker. However, before you can accept a confession, you must be satisfied beyond reasonable that it was given voluntarily by its maker. The prosecution must satisfy you beyond reasonable doubt that the accused gave his statements voluntarily, that is, he gave his statements out of his own free will. Evidence that the accused had been assaulted, threatened or unfairly induced into giving those statements, will negate free will, and as judges of fact, you are entitled to disregard them. However, if you are satisfied beyond reasonable doubt, so that you are sure, that the accused gave those statements voluntarily, as judges of fact, you are entitled to rely on them against the accused."

18. Before the trial the accused challenged this statement on the ground of assault. Therefore a voir dire was conducted and by ruling dated 09th October 2013 this Court found that the accused gave that statement voluntarily.
    
19. In his caution statement the accused admitted that he with the co-accused (Illikena) went to the complainant's house and whilst he acted as a watchman his co-accused broke into the house and stole the liquor and meat.
    
20. From this statement I find that the accused was not directly involved in breaking into the house or stealing from that place. According to him he was acting as a watchman and both these offenses were committed by his co- accused.
    
21. Even though this scenario was never discussed by the State in their closing submission the accused submitted that these offenses were committed by his co-accused. Maybe he would have been under the impression that as he was acting just as a watchman he was not responsible for these offenses.
    
22. But I believe this is a situation where the principle of Joint enterprise is applicable. Section 46 0f the Crimes Decree provides:
    

"When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence".

23. In State v Nute (2008) FJHC 325;HAC139.2007 Her Ladyship Justice Shameem held that
    

" the law is that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another and while committing that unlawful act, another offence is committed which is a probable consequence of that first purpose, then each of the persons involved is guilty of the final offence".

24. Again I turn in to the accused's confession. He said that on that day he went with the co- accused and whilst he was acting as a watchman co- accused committed these two offences.
    
25. From these I find that the accused has formed a common intention with his co- accused to commit these offences and based on that these offences were committed by his co- accused.
    
26. Therefore, I find that the prosecution has proved that the accused committed these two offences beyond reasonable doubt.
    
27. I find the accused guilty of this charge and convict him accordingly.
    
28. Since this court is exercising the extended jurisdiction of the High Court in your case, you may appeal against this sentence within 30 days with leave to the Court of Appeal.
    

16th January 2014

H.S.P.Somaratne
Resident Magistrate, Suva