Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Taukaba [2018] FJMC 130; Criminal Case 148 of 2015 (29 October 2018)

IN THE MAGISTRATES COURT OF FIJI
AT TAVUA
CRIMINAL JURISDICTION

Criminal Case No: 148 - 2015

STATE
-v-
KINI TAUKABA

For Prosecution : WPC Chand [ Police Prosecution ]

Accused : In person, waived right to counsel

Date of Trial : 5^th October 2018

Date of Judgment : 29^th October 2018

JUDGMENT

1. The defendant KINI TAUKABA, is charged with the following:
   

Statement of Offence

DAMAGING PROPERTY: Contrary to section 369 ( 1 ) of the Crimes Act of 2009.

Particulars of Offence

KINI TAUKABA on the 13^th day of June, 2015 at Natolevu Village, Tavua in the Western Division wilfully and unlawfully damaged the rear window glass of the bus valued at $300.00 the property of NADAN BUSES COMPANY.

2. The defendant pleaded not guilty on the 10^th of August 2015.
   
3. He has waived his right to counsel and said that he will represent himself.
   
4. There is some admission in the police interview and the defendant.
   
5. He purportedly admits hitting the back of the bus but he does not make any admission to causing any damage. He said that he was drunk at the time.
   
6. Normally, a voir dire should be held even if an unrepresented defendant does not dispute voluntariness Sakiusa Rokonabete v The State Criminal Appeal No. AAU0048 of 2005 ( 14^th July 2006 ) from paragraph 24.
   
7. After making enquiries with the defendant on the 5^th of October 2018, the defendant indicated that he did not wish to challenge the police caution interview. He said that there was no ill treatment by the police.
   
8. Despite this, we proceeded with a voir dire nonetheless.
   
9. During the voir dire, the prosecution called the interviewing officer PC 5156 Tomasi Lagakula. He has served 4 years as a police officer.
   
10. PC Lagakula gave evidence that he interviewed the defendant under caution. It was in the Itaukei language because the defendant elected that. There was no witnessing officer as the other police officers were engaged with other duties at the time. He identified the defendant as the person he interviewed. Both he and the defendant signed on the interview. He stands by what is recorded in the interview to be what transpired on that day. There defendant was not forced or threatened to give his answers.
    
11. The police caution interview of the defendant was tendered as Exhibit 1 ( A ) which is the Itaukei version and Exhibit 1 ( B) the translated English version.
    
12. PC Lagakula when cross examined denied that he was angry during the interview. He said that he was normal when interviewing the defendant.
    
13. After his options were explained to the defendant, he chose to give evidence during the voir dire.
    
14. In a more expressive way than what he was telling the court earlier before the voir dire began, the defendant said in evidence that police asked him ‘harshly’ whether he broken the window. The defendant denied telling the officer that he had broken the window.
    
15. When cross examined the defendant admitted signing the interview. He said that he was afraid as that was the first time he was questioned by police. He said that a baton was on the table. He said that police didn’t use it or was not holding it. He said that he gave his answers to police as he wanted to go home. He didn’t complain to police that he was afraid and he didn’t know he could report to other senior officers. He said that no one threatened him but the tone of the police was not friendly.
    
16. Thereafter the court ruled the police caution interview of the defendant admissible.
    
17. The court was satisfied that prosecution had met the standard of proof in realtion to admissibility which is beyond a reasonable doubt.
    
18. The court accepted the evidence of PC Lagakula, that the answers given by the defendant was not obtained by force, threat or inducement or by some unfair practice or through a breach of a constitutional right.
    
19. Amongst other reasons, the court accepted that the defendant was uncomfortable when at the police station as this was his first time. However this feeling was not fostered, created or aggravated by the police interviewing officer or any other officer at the station at the time. This the court expects is the same feeling that any ordinary person in the defendant’s shoes would experience.
    
20. As for the trial proper, the prosecution called Shiu Prasad.
    
21. He was the bus driver on the day in question.
    
22. He has been driving for the bus company for 5 years.
    
23. On the way to Malele, 5 to 6 people got into the bus.
    
24. One of them was the defendant.
    
25. Mr Prasad is familiar with the defendant and has seen him before.
    
26. When they reached Malele, some of the boys jumped off from the bus without paying their fare.
    
27. The defendant was one of them and didn’t pay his fare.
    
28. Mr Prasad stopped the bus and went to the boys asking them to pay their fare but they refused.
    
29. Mr Prasad returned to the bus and he says that this is the time that someone threw a stone at the bus. The boys then ran.
    
30. The bus had moved a bit before the stone hit.
    
31. Mr Prasad did not see who threw the stone.
    
32. The rear glass of the bus was damaged. Mr Prasad says that the cost of damage is $300.
    
33. When cross examined, Mr Prasad maintained that the defendant didn’t pay his fare and had jumped from the bus.
    
34. The next witness for the prosecution was Ifereimi Vukalo.
    
35. He was inside the bus when the boys got in.
    
36. Mr Vukalo says that these boys were drunk.
    
37. When the youths got off, Mr Vukalo heard a loud ‘bang’ behind the bus.
    
38. Mr Vukalo identified the defendant to be one of the boys. Mr Vukalo is related to the defendant as the defendant is his grandson.
    
39. Mr Vukalo is not sure who threw the stone that hit the bus.
    
40. The defendant did not wish to cross examine Mr Vukalo.
    
41. The prosecution closed their case thereafter.
    
42. The court found that there was a case to answer.
    
43. The defendant chose to give evidence.
    
44. In his evidence, he admitted drinking before boarding the bus with others. After the incident, it was not clear who did it and so he was blamed. He maintained that he paid his fare before getting off. The defendant said that police brought him to the station. This was his first time. He says that he is not sure who threw the stone.
    
45. When cross examined, the defendant admitted that he was drinking rum and cola but on that day he was not drunk to the extent that he could not remember what happened. He denied hitting the bus.
    
46. He said that he is new to the area and that maybe the reason why he was blamed.
    
47. That was the defendant’s case.
    

ANALYSIS

Burden and Standard of Proof

48. I remind myself that the burden is on the prosecution to prove the allegation.
    
49. Even if I reject the evidence of the defendant or I don’t accept his denial, it doesn’t necessarily mean that the prosecution has proven their case.
    
50. I remind myself too that the prosecution’s evidence must satisfy me beyond a reasonable doubt or I must be sure that it is the defendant who committed the offence, before I can find him guilty.
    

Elements of the Offence

51. The elements of the offence for damaging property contrary to section 369 ( 1 ) of the Crimes Act 2009 are:
    
    1. The defendant;
       
    2. Wilfully and Unlawfully
       
    100. Damaged any property
         
52. Wilfully can mean either being intentional or being reckless or just not caring about the consequence [ Lagi v The State [2004] FJHC 69; HAA0004J.2004S ( 12 March 2004 ) ].
    
53. Intentional is when the defendant means to engage in a conduct and means to bring about a result or where the defendant is aware that it will occur in the ordinary course of events [ section 19 (1 ) and ( 3 ) of the Crimes Act 2009 ] .
    
54. Being reckless as to a result is when the defendant being aware of a substantial risk that the result will occur and having regard to the circumstance known to him or her, unjustifiably took the risk [ section 21 ( 2 ) of the Crimes Act 2009.
    
55. Unlawful is anything that is without legal justification.
    
56. Damage is liberally defined or is a matter of fact and degree and it is up to the presiding tribunal to decide, based on their common sense, what damage occurred [ Roe v Kingeriee [1986] Crim LR 735 ]. Smearing mud although it is washable and temporary can still be damage. Even dumping on land.
    
57. Property is defined in section 4 of the Crimes Act 2009 and includes real and personal property. A bus window can fall into this description.
    

Findings

58. Amongst other things, I accept the following to be proven beyond a reasonable doubt:
    
    • - That there was damage to the rear glass of the bus;
    • - That the defendant was present or near the bus when the damage occurred;
    • - That the defendant was taken in as a suspect.
      
59. The caution interview of the defendant relates that he slapped the back of the bus to move after he got off. He also said that he doesn’t know about the glass breaking as he was drunk.
    
60. I accept that this is what the defendant told the police and he was telling the truth. I have already accepted after the voir dire that the answers in his caution interview were given voluntarily.
    
61. Having accepted that, I am still unsure whether a slap by the defendant would have been able to cause the glass of the bus to crack. The bus appears to be the normal bus and the defendant would need to jump or stand on something to reach the glass portion on the back of the bus.
    
62. Incidentally, the prosecution’s evidence as related by the bus driver and the defendant’s grandfather, suggests that a stone was thrown which caused the damage and not a slap by the defendant.
    
63. The other piece of evidence the prosecution relies upon which is really circumstantial evidence, is that the defendant was present when the damage was caused.
    
64. Circumstantial evidence can be powerful evidence and must be assessed with care to avoid speculation. It is evidence from which a reasonable inference can be drawn linking the defendant to the crime.
    
65. Mere presence in this case is not sufficient for me to draw the inference that the defendant caused the damage.
    
66. For instance, there were other boys present. The evidence does not rule out the others. No one saw who threw the stone or who hit the bus.
    
67. If it was not the defendant who damaged the bus, then the prosecution has not proved all of the elements beyond a reasonable
    
68. I find that elements a. and b. are not proven beyond a reasonable doubt.
    
69. This also means I accept or believe the defendant’s evidence that he did not cause damage to the glass at the rear of the bus.
    

Conclusion

70. Based on the aforementioned reasons, I’m not satisfied beyond a reasonable doubt that the defendant committed the offence of damaging property contrary to section 369 ( 1 ) of the Crimes Act 2009 as charged.
    
71. I find him not guilty. I acquit him of the charge.
    

....................................................
Lisiate T.V. Fotofili
Resident Magistrate

At Tavua this 29^th October, 2018.