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State v Kaivei [2016] FJMC 241; Criminal Case 1234 of 2015 (21 December 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: 1234/2015

STATE
v
MANASA KOTOIVATOA KAIVEI

For the Prosecution : CplFisher

For the Accused : Ms.Vulimainadave(LAC)

Date of Judgment: 21^st of December 2016

JUDGMENT ON NEWTON HEARING

1. The accused is charged with one count of Dishonesty Causing a Loss contrary to section 324(1) of the Crimes Decree No 44 of 2009. The particulars of the offence are “MANASA KOTOIVATOA KAIVEI,between 2011 to 2012 , at Lami in the Central Division , with the intention of dishonestly caused a loss of $19,000.00 to APOLNIA BULAVAKARUVA”
2. The accused pleaded guilty for this charge and admitted the summary of facts apart from the amount of the loss.
3. Hence I directed the parties to call the witnesses for a “Newton “hearing as the prosecution was not agreeing for the amount suggested by the defence.
4. The prosecution called only one witness, Ms.Apolonia Bulavakarua. She said she bought the vehicle in 2003 for a $19,000.00 and in 2011 the value would be nearly $10,000.00. During cross-examination she said she was not sure about the engine of the vehicle and radiator was also not good. The accused took the vehicle to his garage. During re-examination she agreed the value of the vehicle would be less than $10,000.00 in 2011.
5. For the defence the accused gave evidence. He got the vehicle from Mika and it was not working. He sold the car before going to Tonga and agreed to pay $5000.00 to the complainant. The accused sold the vehicle for $200.00 even though the resale value would be nearly $2500.00. During cross-examination the accused agreed that he did not take photographs. He knew the vehicle belonged to the complainant and when asked for money the father of Mika said he has given responsibility to the son.
6. In Hefferman v The State [2003] FJHC 163; HAA0051J.2003S (12 December 2003 her Ladyship Justice Shameem made following observation about the Newton hearings :

“In R –v- Newton 77 Cr. App. R. 13, Lord Lane C.J said that where there was a dispute about the facts which would affect sentence, the judge could either accept the defence version, or hear the evidence and come to his own conclusion. Defence counsel does not need to agree to a Newton hearing (R –v- Smith (P.A.) 8 Cr. App. R(s) 169) and where such a hearing is held evidence must be led in the ordinary way by counsel. The court must direct himself/herself on the ordinary standard of proof before accepting any version of the facts. Any appeal from such a finding will only succeed in clear cases which would be rare where there have been findings of credibility, especially on the basis of the defendant’s evidence (R –v- Nabil Ahmed 6 Cr. App. R(s) 391).”

7. Hence the prosecution has to prove beyond reasonable doubt that the accused caused the loss of $19,000.00 to the complainant, when he sold her vehicle without her permission.
8. But the complainant in her evidence said she bought the vehicle for $19,000.00 in 2001 and in 2011 the value would be less than $10,000.00. So even without the accused version already there is a doubt created about the prosecution amount. Hence I accept the version of the accused and find the loss caused to the complainant was only $5000.00.
9. 28 days to appeal

Shageeth Somaratne

Resident Magistrate