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State v Soko [2015] FJMC 142; EJ42.2013 (29 December 2015)

IN THE RESIDENT MAGISTRATE'S COURT AT SUVA
(EXTENDED JURISDICTON OF HIGH COURT)

Criminal Case No. EJ42/2013
HAC 154/2013
CF 619/13

STATE

-v-

SERU SOKO

For the State Mr. Kumar R. (DPP Counsel)
The accused in person

JUDGMENT

The Fact

The accused was charged with one count of Aggravated Burglary Contrary to Section 313(1)(a) of the Crimes Decree No. 44 of 2009.

The particulars of the alleged offence has provided in charge as follows. That the accused Seru Soko with the others on the 5th day of April 2013 at Suva in the Central Division broke and entered Lords Jewellers as trespassers, with intent to commit theft therein.

At the date of plea the accused plead "not guilty" and matter fixed for hearing on 10 & 11/08/2015. On the hearing date the accused did appear in person and all the witnesses were present.

Thereafter the prosecution commenced their case. The prosecution called 02 witnesses and tendered the statement of the charging officer ad caution interviews notes.

[PW1 – PC 4111 Roko Tuiwailevu – Police Officer, CPS,

PW2 – Zahid Hussein Ali (eye witness) – Lautoka.

The Law

Section 313 of the Crimes Decree interprets offence of Aggravated Burglary as follows:

"Sec 313. – (1) A person commits an indictable offence if he or she –

(a) Commits a burglary in company with one or more other persons, or

(b) Commits a burglary and at the time of the burglary has an offensive weapon with him or her.

Penalty – Imprisonment for 17 years

(2) for the purposes of this Decree, an offence against sub-section (1) is to be known as the offence of aggravated burglary.

(3) In this section "offensive weapon" includes (a) an article made or adapted for use for causing injury to, or incapacitating a person or (b) an article where the person who has the article intends or threatens to use, the article to cause injury to, or to incapacitate another person".

The elements of the charge of Theft has mentioned by Achala Wengappuli J in State v Seru – Summing up [2015] FJHC 526; HAC426.2012 (19 June 2015) as follows:

"I will now deal with the elements of the offence:

(1) The offence of Aggravated Burglary is defined under Section 313(1)(a) of the Crimes Decree. Section 313(1)(a) of the Decree makes the offence of Aggravated Burglary an offence triable before this Court Section 313(1)(a) states as follows:

"A person...commits a burglary in the company of one or more other persons;..."

(ii) Section 313(2) states when a person commits a burglary in the company of one or more other persons it is aggravated burglary.

(iii) The offence of burglary too has been defined in Section 312(1) of the Decree as "...if he enters or remains in the building as a trespasser with intent to commit theft of a particular items of property in the building".

(iv) When we consider all these legal definitions setting out the several ingredients of offences with which the accused is charged, it is clear that the prosecution must prove beyond reasonable doubt that Maikeli Seru and another committed burglary.

In order to prove this component of the charge, prosecution must establish the fact that they entered into the pawn shop of Dharmendra Prasad as trespassers. When they entered that building their intention was to commit theft of a particular item of property kept in that pawn shop and there was common purpose.

It must be stressed here that mere entry to the pawn shop by the accused is not sufficient to prove he committed burglary. The prosecution must prove that he entered into the pawn shop with the intention to commit theft/

The accused's intention is a central issue here. No one can look inside of his mind. So you will need to examine the evidence in relation to his conduct and ask yourselves whether it is proved beyond reasonable doubt that the defendant entered the pawn shop to commit theft of a particular item or property kept in that shop".

His Lordship further State v Seru – Summing Up [2015] FJHC 526; HAC426.2012 (19 June 2015) explained the elements and has held "The offence of burglary becomes prosecution. That additional element is that this accused committed burglary in the company of one or more persons. Apart from these elements of the offences, the identity of the person who is alleged to have committed the offence is very important. There must be positive evidence as to the identification of the accused person to connect to the offences in the two courts that he is alleged to have committed. Proof of the elements of these offences could be established only through evidence. Evidence can be from direct evidence that is the evidence of a person who saw it or by a victim who saw, heard or felt the offence being committed. In this case for example, the alleged victim who offered direct evidence if you believe him as to what he saw, heard and felt. Documentary evidence is also important in a case. Documentary evidence is the evidence presented in the form of a document. In this case, caution interview statement and search list which before you, are documentary evidence. If you believe such records were made, as the prosecution presented to you, then you can act on such evidence. You can take into account the contents of the documents if you believe them to have existed at the relevant time".

The Evidence

PW1 – PC 4111 Roko Tuiwailevu – Police Officer, CPS stated that he can recall 5/4/2013. He was on night shift conducting patrol at Marked Street, in Suva City. When he came to Cumming Street he noticed the glass of Lords Jewellers broken. And he has noticed an Indian boy (PW2) was sitting near Dixson Phone Shop. He added "I asked him about breaking. Then he (PW2) told me that he can identify the Fijian boys who broke the shop". After witness has called police car and got the PW2to police car. They made few mounds at town and at Edwards Street PW2 identified one Fijian boy and asked to drop him first for his safety. Then they arrest the Fijian boy. Then again PW2 point at Seru Soko whom witness knew in the cause of his duty and they arrest him too. (The witness identified the accused at open court).

At the cross examination PW1 confirm that he did recognised the accused.

PW2 Zahid Hussein Ali (eye witness) Lotoka stated he can recall 5/4/2013 he was sitting near the police post and night club. He added "I saw the accused roaming around with his friends. One of them pointing at me and asked why I was sitting there. Then a taxi came and took them. Before that they had rod in their hand. They broke the glass 2 went inside. 2 were outside. Those who went in came with 2 black bags. Then the one who were staying outside went in. I called the police. No one answered. There were security they saw this. Them they called the police. Then police came. They asked me that did I see anyone. I said "yes" then they took me in their vehicle". Witness identified the accused at open court and said the accused is the one who had the rod who entered first and then the other one followed him.

The accused cross examined PW2. Witness added "...actually one of them (accused)light his cigarette from me. The accused once threaten me at market he punched me. I did not report. It was last year". Witness said 4th accused went towards Tappoos and disappeared. 3rd one ran towards mid city and then towards FNPF".

Then the prosecution closed their case. The accused made application under Section 178 of CPD to rule that there is no case to answer. But since the bench was satisfied with the fact that there is evidence on the elements of the offence court ruled there is a case to answer.

Then the defence open their case. The accused gave evidence.

DW1 Seru Soko – admitted that he was at the town on 4/4/13, he came to check his FB account after that he went out at 12 mid night. There is a net cafe. Then he went to find smoking. He checked with his friends outside the Ritz Club. After 1 hour police vehicle came and arrested him. When he arrived to police he noticed another Fijian boy was coming out from another police car. And he is the co-accused of this case. He added" Zaheed did not identified anyone at police. I really don't know this case. PW2 fabricated his story. I was sitting at Ritz for almost 1 hour. Why would 1 sitting at Ritz if I committed this crime when Police looking for me? My co-accused was arrested near legend night club top of wish bone according to police he was sleeping, if we committed this offence why would we waiting there from few meters away from crime scene? All knew is PW2 fabricated this. The accused marked 2 police statement of PW2 as Dex-1 and Dex 2". On the same day I met PW2 after police arrest me. They took me to market..I was hand cuffed. I got no chance to attack him".

The accused was cross examined by state counsel.

Determination

The main issue to be addressed by this Court is whether the accused positively take part in the burglary or not? Ad per evidence of PW2 he is not the only one who witnesses this crime. As per him some security persons were there. Actually PW2 said in the court these security persons called police. But as per PW1 he has come to crime scene not upon information by 3rd party. If there was any call to police might have recorded the statement of the informant and would have called him as an eye witness. But this bench cannot find any.

Further I noticed PW2 confirmed the fact that he was watching this burglary. Therefore he is the most suitable person to testify the same. But he said there were 3 accused later he added another one. He said first that accused went in a taxi. Later he said they ran towards Mid City. Then he said 1 person ran towards Tappoos building. The witness first said one of accused asked him why he is sitting there but did not mentioned lighting the cigarette. As per him accused had 2 black bags when coming out of shop. But surprisingly as per the prosecution nothing has been stolen. Since this place attacked is a jewellery if the culprits came out with 2 bags it has there must be huge lost as there was no one disturbed the burglary. Even PW2 said they (PW2 and Security of the club) chased accused.

Other than the contradictions of evidence of PW2 this Court hesitates to accept the fact that after committing a crime person who has experienced would not stay or hang around nearby place when the committing of the crime witness by 3rd party of eye witness as there is more probability for the police to arrest them with the help of eye witness. In this case as per PW2 accused has talk to him and even light there cigarette. But the accused and co-accused has been arrested at nearby places to crime scene. There are no admissions in caution interview.

After analysing the evidence this court acquitted the accused.

28 days to appeal.

On 29th Dec 2015 at Suva, Fiji Islands.

N. Rupasinghe
Resident Magistrate